HomeMy WebLinkAbout20-128 - NEOGOV - Services Agreement: Enterprise Resource Planning SystemsNEOGOV SERVICES AGREEMENT
20-128
Council Approval 1
You agree that by placing an order through a NEOGOV standard ordering document (the "Order" or "Ordering
Do you agree to follow and be bound by the terms and conditions set forth herein. ^Govemmentjobe.com^.
"NEOGOV", "we", and ~our" meoneGm/emmentjobe.com. Inc(dba "NEOGOV) and, where applicable, its affiliates;
"Customer", "you", your' means the 8overnmentjobe.00m c|ient, cuotomer, or subscriber identified in the Ordering
Document.
If you are placinsuch an Ordebehalf of a legal entity, you represent that you have the authority to bind such entity
to the terms and conditions of the Ordering Document and these terms and, in such event, "you" and "your' as used in
these agreement terms shall refer to such entity. "Agreement" shall be used to collectively refer to this NEOGOV
Services Agreement (the "Services A0reement^), documents incorporated herein including the applicable Ordering
Document and Schedule(s), and Special Conditions (ifany).
1. Provision of Services. Subjecttotheterms of this Agreement NEOGOV hereby agreesto provide Customer with
access to its SaaS Ap|icati and Professional Services (each defined below) included or ordered by Customer
in the applicable Ordering Document(ooUectiveynefenedt000Mhe~Gervoee^).Customerherehyacknow|ed0eo
and agrees that NEOGOVs provision and performance of, and Customer'o access to, the Services is dependent
and conditioned upon Cuotomer'efuU performance of its duhee, obligations and responsibilities hereunder. This
Agreement entered into as of the date of your signature on an applicable Ordering Document or use of the Services
commences (the "Effective Dote^). The Agreement supersedes any prior and contemporaneous discussions,
agreements or representations and warranties,
2 SaaS Subscription.
a) Subscription Grant. "SaaS Applications" means each proprietary NEOGOV web -based software+asa-eenice
application that may be set forth on an Order and subsequently made available by NEOGOV to Customer,
and associated components as described in the Service Specifications made available to Customer by
NEOGOV. Subject toandoondihonedonCuetomer'eonditeAuthorizedUoere'oomp|iancewiththetermeond
conditions of this Agreement, NEOGOV hereby grants to Customer a limited, non-exclusive, non -transferable,
and non-sublicensable right to (a) access and use, and to permit Authorized Users to access and use, the
SaaS Applications specified in the Order solely for Cuetomer'o interna|, non-commercial purposes; (b)
Qenero1e, print, and download Customer Data as may result from any access to or use of the SaaS
Applications; and (c) train Authorized Users in uses of the SaaS Applications permitted hereunder (these rights
shall collectively be referred to as the "SaaS Subscription"). "Authorized Users" means (i) Customer
employees, agents, contractors, consultants who are authorized by Customer to access and use the Seivices
under the rights granted to Customer pursuant to this Services Agreement and (li) for whom access to the
Services has been purchased hereunder. You may not access the SaaS Applications if you are a direct
competitor ofNEOGOV orits affi|ioteo.|naddition, you may not access the SaaS Applications for purposes of
monitoring their avai|abi|iry, pedbrmonoe, or functionality, or for any other benchmarking or competitive
purposes.
b) Delivery and Subscription Term. NEOGOV delivers each SaaS Application by providing Customer with online
access. When you access NEOGOV SaaS App|icatione, you are accepting it for use in accordance with this
Agreement. Unless otherwise specified in an applicable Ordering Document, SaaS Subscriptions shall
commence on the Effective Date and remain in effect for twelve (12) consecutive monthe, unless terminated
earlier in accordance with this Agreement (the "Initial Term"). Thereaher, SaaS Subscriptions shall
automatically renew for successive twelve (12) month terms (each a "Renewal Term" and together with the
Initial Term, collectively, the "Term") unless a party delivers to the other party, at least sixty (60) days prior to
the expiration ofthe Initial Tennorthe applicable Renewal Tem.written notice of suchparty's intention bonot
renewthis Agreement, or unless terminated earlier in accordance with this Agreement. NEOGOV shall provide
Customer access to the SaaS Applications within a reasonable time following the Effective Date unless
otherwise agreed.
o)
Content and Program Documentation. Should Customer purchase access to SaaS Applications containing
audio-visual content ("Licensed Content"), NEOGOV grants to Customer a noo-exo|ueive, non-hane#erab|e,
and non-sublicensable |ioeoee, during the applicable Term, for Authorized Users to access and view the
Licensed Content within the SaaS Application. Customer shall not knowingly permit the Licensed Content to
be, or appear to be, reproduced, pedbrmed, diep|ayed, or distributed on, as part of or in connection with any
website or other online area other than the SaaS Application. Customer shall not knowingly edit, a|ter, modify,
combine with other content, or create any derivative works of the Licensed Content. "Program Documentation"
shall mean all user Quideo, training, and implementation material, and Service descriptions provided by
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NEOGOV to Customer in connection with the Services. NEOGOV hereby grants to Customer a non-exclusive,
non- sublicensable, non -transferable license to use, print, and distribute internally via non-public platforms,
the Program Documentation during the Term oole|yforCustome/o internal business purposes in connection
with its use of the SeMces.
3. Professional Services. "Professional Services" shall mean consulting, training services purchased by Customer in
an applicable Ordering Document or NEOGOV Scope of Work ( elating to assistance, trainingdeployment,
ueo0e, customizohone, accessory data pmoessin0, and best practices of and concerning the SaaS Applications.
NEOGOV shall provide the Professional Services purchased in the applicable Order Form or SOW, as the case
may be. Professional Services may be ordered by Customer pursuant to a SOW and Service Specifications
describing the work to be perfbrmed, fees, and any applicable mi|eetuneo, dependencieo, and other technical
epeoifioahonoorrelated information. Order Forms orS[)\Nemust besigned byboth parties before NEOGOV shall
commence work. If the parties do not execute a separate Statement of Work, the Services shall be provided as
stated on the Order Form and this Agreement and documents incorporated herein shall control.
4. Payment Terms. Unless otherwise stated in an Ordering Document, Customer shall pay all undisputed Subscription
fees ("Subscription Fees") and undisputed Professional Service fees ("Professional Service Fees", collectively the
^Feee^)withinforty-five(45)dayeofCustomer'oreceiptofNEQG[)V'oinvoioe.Feeeeho||beinvoioedonnuoUyin
advance and in a single invoice for each Term. Invoices shall be delivered to the stated "Bill To" party on the
Ordering Document. Unless explicitly provided otherwise, once placed, the Ordering Document is non -cancellable
andeumopoidnonrefundab|e.SubeoriphonFeeearebaeedupontheCuotomer'eemp|oyeecount.CuotomerehoU
not exceed the employee amount its Subscription Fees are based off of unless applicable supplemental
Subscription Fees are paid. The Term for the Services is a continuous and non -divisible commitment for the full
duration regardless of any invoice schedule. The purchase of any Service is separate from any other order for any
other Service. Customer may purchase certain Services independently of other Services. Your obligation to pay
for any Service is not contingent on performance of any other Service or delivery of any other Service. If Customer
issues a purchase order, then it shall be for the full amount set forth in the applicable NEOGOV invoice or Ordering
Document. Failure to provide proide NEOGOV with a corresponding purchase order shall not relieve Customer of its
payment obligations. Except as otherwise specifically stated in the Ordering Document, NEOGOV may change the
charges for the Services with effect from the start of each Renewal Term by giving Customer at least sixty (60)day
notice prior to commencement of a Renewal Term but any increase in cost for annual Renewal Term one and two
shall not exceed three percent (3%) of the prior year's Fees. Thereafter, increase in cost for annual Renewal Term
shall not exceed five percent (596)ofthe prior yeor'e Fees Customer will pay all taxeo, duties and levies imposed
by all federal, state, and local authorities (including, without limitation, export, sales, use, excise, and value-added
taxes) based on the transactions or payments under this Agreement, except those taxes imposed or based on
NEOGOV's net income or those exempt by applicable state law. Customer shall provide NEOGOV with a certificate
or other eidence of such exemption with ten (10) days of NEOGOVs request therefor.
. Term and Termination.
a) Term. Unless otherwise specified in an applicable Ordering Document, this Agreement shall commence on
the Effective Date. Thireement shall remain in effect until all SaaS Subscriptionshave expiredand/orboth
parties have achieved full performance of Professional Services or other services detailed in a SOW, unless
it is terminated earlier in accordance with this Agreement.
b) Termination for Cause; Effect of Termination. EitheParty may terminate this Agreement immediately
other is in material breach of this Agreement and such breach is not cured within thirty (30) days following
non-breachingparty's written specification of the breach. NEOGOV may suspend the Services or terminate
this Agreement immediately in the event the Services or Customers use of the Services proided hereunder
become illegal or contrary to any applicable law, rule, re0u|a|ion, or public policy. Upon expiration or any
termination of this Agreement, Customer shall cease all use and refrain from all further use of the Services
and other NEOGOV intellectual property. Additionally, Customer shall be obligated to pay, as of the effective
date of such expiration or termination, all undisputed amounts due and unpaid to NEOGOV under this
Agreement. Fuither, upon wrten request from Customer, NEOGOV will make Customer Data available for expoit to
Customer, in a form approved bCustomer, for a peiiod of sixty (60) days foliowing the expiration or termination ofthis
Agreement along with a certification that all Customer Data has been properly and completely transferred to Customer.
After such sixty (60) day period has expired, NEOGOV shall have no obligation to maintain such data and may destroy
the data.
c) Termination for Nhation If sufficient fonds are not appropriated or allocated for payment under this Agreement
for any future scaI period, Customer shall not be obligated to make payments for Serices or amounts incurred aiter the
end ofthe currentfiscal period, and this Agreement will terminate upon the completion of all remaining SeNices for which
funds are allocated. No penalty or expense shall accrue to Customer in the event this provision applies.
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Service Specifications. "Service Spedficationemeano Program Documentation, Service Schedules, Security
Statements, and Service Level Warranties if applicable. The Service Specifications describe and govern the
Services and are incorporated herein by reference. Online Service Specifications may be made available at
hMpeji*vpx.neo0ov.com/eeniceepeoificahoneorprovided upon Customer request. Excluding Service Schedules,
NEOGOV may update the Service Specifications to reflect changes in, among other things, |ows, reQu|a|iono,
rules, technology, industry practices, patterns of system use, Updates and Upgrades, and availability of third -party
services.
7. Maintenance; KNodifioohone;Support Services; Interfaces and Integrations.
a) Maintenance, Updates, UpgradesNEOGOV maintains NEOGOVs hardware and software infrastructure for
the Services and is responsible for maintaining the NEOGOV server operation and NEOGOV database
security. NEOGOV may in its sole diecretion, periodically moddy. Update, and Upgrade the features,
components, and functionality ofthe SeMces during theTerm. "Update means any update, bug fix.patch or
correction of the Services or underlying NEOGOV software that NEOGOV makes generally available to its
customers of the same module, excluding Upgrades. Updates are automatic and available upon Customer'e
next login to the SeMces foliowing an Update at no additional cost to Customer. Upgrade means any update
of the Services or underlying NEOGOV software such as platform updates, and major product enhancements
and/or new features that NEOGOV makes commercially available. NEOGOV shall have no obligation to
provide Upgrades to customers and retains the right to offer Upgrades free of cost or on a per customer basis
at additional cost. NEOGOV shall have no liability for, or any obligations to, investments in, or modifications
to Customer's hardware, systems or other software which may be necessary to use or access the Services
due toomodifioahon.Update, orUpgrade ofthe Services.
b) Training Materials; Support. Primary training of NEOGOV Services is conducted by self -review of online
materials. NEOGOV's pre -built, online traininconsists of a series of tutorials to introduce the standard
features and functions (the "Training Materials"). The Training Materials may be used as reference material
by Customer Personnel conducting day-to-day activities.
o)
Implementation. For Services requiring knp|ementahon. NEOGOV implementation supplements the Training
Materials and is conducted off-site unless otherwise agreed in the Ordering Document. NEOGOV personnel
will provide consultation on best practices for setting up the Services, answer Customer questions during the
implementation period, and ensure Authorized User Admins grasp the system.
d) Support. Phone support for the Services is available to Customer Monday through Friday, excluding NEOGOV
holidays. Online support for the Services is available 24 hours a day, seven days a week. The length of tinne
for a resolution of any problem is dependent on the type of case.
e) Limitations. Unless otherwise specified in the Ordering Document, this Agreement does not obligate NEOGOV
to render any maintenance or support services that are not expressly provided herein, including, but not limited
to data uploads, manual data entrymigration services, data conversion, refinement, purification, reformatting,
SQL dump, or process consultation.
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Interfaces and Integrations. N EOGOV agrees to answeronyix|edaoequeohonoandboaosistwhhCuohome/e
other vendors to complete required integrations in timely manner.
NEOGOV Intellectual Property. NEOGOV shall exclusively own all right, title and interest in and to all pre-existing
and future intellectual property developed or delivered by NEOGOV including all Gervcee, products, systems,
software (including any source code or object code) or Service Specifications related Mhereto. Updates or
Up0radee, trademarke, service marks, logos and other distinctive brand features of NEOGOV and all proprietary
rights embodied therein (collectively, the "NEOGOV Intellectual Property). This Agreement does not convey or
transfer title or ownership of the NEOGOV Intellectual Property to Customer or any of its users. All rights not
expressly granted herein are reserved by NEOGOV. Other than recommendation use or as required by law, all
use of NEOGOV Trademarks must be pre -approved by NEOGOV prior to use. Trademarks shall include any word,
name, eymbo|, oo|or, designation or device, or any combination thereof that functions as a source idenhfier,
including any trademark, trade dreee, service mark, trade name, logo, design mark, or domain name, whether or
not registered.
Data Processing and Privacy.
a) Customer & Platform Data. "Customer Data" shall mean all data thais owned or developed by Customer,
whether provided to NEOGOV by Customer or provided by a third party to NEOGOV in connection with
NEOGOV'e provision of Services to Customer, including Personnel or Job Seeker Profile Data collected,
loaded into, or located in Customer data files maintained by NEOGOV. NEOGOV intellectual property,
including but not limited to the Services and all derivative works thereof, NEOGOV Confidential Information,
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and Platform Data do not fall within the meaning ofthe term "Customer Data". Customer exclusively own all
right, title, and interesin and to all Customer Data. Customer grants NEOGOV a license to host, use, process,
diep|oy, create non -personal derivative works of, and transmit Customer Data to provide the Services.
"Platform Data" shall mean any data reflecting the access or use of the Services by or on behalf of Customer
or any user, including statistical or other analysis and performance information related to the provision and
operation of the Services including any end user visit, session, impression, clickthrough or click stream data,
as well as |o0, device, transaction data. or other ona|yeio, information, or data based on or derived from any
ofthe foregoing. NEOGOV shall exclusively own all right title and interest in and to all Platform Data. NEOGOV
grants to Customer a |imhed, non-penpe|ua|, nm+exc|uoive, non-trone#erab|e, and non- sublicensable license
during the Ternn to use and access, and to permit Authorized Users to use and access, Platform Data of which
NE[)G[)Vmakeeovoi|ab|ethrou0htheGoaGApp|icohoneeo|e|yforCuotomer'ointerna|purpoeeo.Customer
acknowledges NEOGOV may compile Platform Data based on Customer Data input into the Services.
Customer agrees that NEOGOV may (i) make Platform Data publicly available in compliance with applicable
law, and (ii) use Platform Data to the extent and in the manner permitted under applicable law; provided that
NEOGVO shall be solely responsible and Iiable for de -identifying Platform Data in amanner that ensures that
such deidenhfioationcannot betraced back toCustomer.
W Privacy Policy; Data Processing Agreement. NEOGOV shall process all data in accord with the NEOGOV
Privacy Policy available at hMpe:8*pmxoeoQoxoom/phvocy-policy.The defined terms in the Privacy Policy
shall have the same meaning in this Agreement unless otherwise specified herein, To the extent Customer
uses the Services to target and collect personal information form users located in the European Union,
European Economic Area, or Switzerland (the ~EU^), or has Authorized Users accessing the Services from
the EU, the NEOGOV Data Processing Addendum (''DPA'') available at hMpe:8vpxw/oeo0ov.com/eervioe-
opecifica|ionoieinoorporated herein by reference,
c) Data Responsibilities. Customer is solely responsible for the development, content, operation, maintenance,
and use of Customer Data, NEOGOV will have no responsibilityIiability for the accuracy of the Customer
Data prior to receipt of such data into the Seivices. Customer shall be solely responsible for and shall comply
with all applicable laws and regulations relating to (i) the accuracy and completeness of all information input,
oubmiMed, or uploaded to the Services, (ii) the privacy of users of the Genicee, including, without limitation,
providing appropriate notices to and obtaining appropriate consents from any individuals to whom Customer
Data relates; and (iii) the coUection, use, modifioo1ion, a|terahon, extraohon, retenhon, copying, external
ehzage, diedooune, honsfer, diopoea|, and other processing of any Customer Data. NEOGOV is not
responsible for lost data caused by the action or inaction of Customer or Authorized Users.
d) Breach Notice, In the event of a data or security breach,aedefinedb
your emp|oyee, conhactor, or oQen|, upon discovery of such breech. NEOGOV will initiate remedial actions
and notify Customer of the breach as required by and in compliance with applicable law. NEOGOVo
notification of, or resto, a data breach under this Section will not be construed as an acknowledgement
by NEOGOV of any fault or Iiability with respect to the breach, In the event of a security breach, as defined by
applicable law, by your Personnel, Authorized, or unauthorized user, contractor or agent, you shall have sole
responsibility for initiating remedial actions and you shall notify NEOGOV of the breach and steps you will take
to remedy the breach as soon as possible. Customer is solely responsible for complying with data breach
notification laws applicable to the Customer and fulfilling any third -party notification obligations related to any
data breach(es).
10. Subcontractors; Third Party Products. NEOGOV may from time to time in its discretion engage third parties to
perform Services (each, a "Subcontractor"). "Third -Party Products" means any pmducts, conten|, eeniceo,
infbnnahon, webehee, or other materials that are owned by third parties and are incorporated into or accessible
through the Services. The Services may permit access to Third -Party Products. For purposes of this Services
Agreement, such Third -Party Products are subject to their own terms and conditions presented to you for
acceptance by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third -
Party Products, then you should not install, access, or use such Third -Party Products. NEOGOV cannot guarantee
the continued availability of such Third -Party Products and may cease providing them without entitling Customer
to any refund, credit, or other oompeneation, if for example and without |imitohon, the provider of a Third -Party
Product ceases to make the third -party application available for interoperation with the corresponding NEOGOV
Serice in a manner acceptable to NEOGOV
11. Nondisclosure. Through exercise of each partys rights under thisnt, each party may be exposed to the
other party's technical, finanoial. busineeo, marketing, p|annin0, and other information and data in x«hten, oral,
electmnic, maQne|io, photographic, and/or other fonne, indudin0, but not limited to (a) oral and written
communications of one party with the officers and staff of the other party which are marked or identified as
confidential or secret or similarly marked or identified, (b) other communications which a reasonable person would
recognize from the surrounding facts and circumstances to be confidential or secret, and (c) trade secrets
(collectively, "Confidential Information"). In recognition of the other party's need to protect its legitimate business
'nteneots, each party hereby covenants and agrees that it shall regard and treat each item of information or data
constituting Confidential Information of the other party as strictly confidential and wholly owned by such
other party and that it will not, (x) without the express prior written consent of the other party, (y) except
as permitted or authorized herein or, (z) except as required by law including the Public Records Act of
the Customer's State, redistribute, market, publish, disclose, or divulge to any other person, firm or entity,
or use or modify for use, directly or indirectly in any way for any person or entity: (i) any ofthe other party's
Confidential Information during the Term and for a period of three (3) years thereafter or, if later, from
the last date Services (including any warranty work) are performed by the disclosing party hereunder;
and (ii) any of the other party's trade secrets at any time during which such information shall constitute
atrade secret under applicable law. In association with NEOGOV'sconcern forthe protection oftrade
secrets, Confidential |nfnrmaUon, and fair market compeUUon. Customer acknowledges all photos,
"screen cmpturea^, videoa, or related media of NEOGOV products, pagea, and related documentation
shall be approved by NEOGOV prior to any publicly accessible disclosure of such media.
12. Public Records Requests. NEOGOV acknowledges that Customer is a public entity and is subject to the Public
Records Act under Chapter 42.56 RCW. To the extent permitted by law, Customer shall treat as exempt from
treatment as a public recovd, and shall not disclose in response to a request made pursuant to any applicable
public records law, any ofNE[)G[)V'e Confidential Information. If a request is received for records NEOGOV has
submitted to Customer and has identified as Confidential Information, Customer will use its best efforts to provide
NEOGOV with notice of the request in accordance with RCW 42.56.540 and a reasonable time within which
NEOGOV may seek an injunction to prohibit Customer's disclosure of the requested record. Customer shall comply
with any injunction or court order requested by NEOGOV which prohibits the disclosure of any such Confidential
Information; however, in the event a higher court overturns such injunction or court order, NEOGOV shall reimburse
Customer for any fines or penalties imposed for failure to disclose such records. Nothing in this Section prohibits
Customer from complying with RCVV42.5O.orany other applicable law or court order requiring the release of public
records, and Customer shall not be liable to NEOGOV for compliance with any law or court order requiring the
release of public records.
13. Representations, Warranties, and Disclaimers.
a) Limited Warranty. NEOGOV warrants that it provides the Serviceusing a commercially reasonable level of
care and skill. NEOGOV further warrants that: (i) it has all rights, title and interest to license the SeMces on
the terms and conditioned contained in this Agreement; (ii) to NEOGOVe knowledge, the Services do not
contain any viruses at the time of delivery, and no instruohone, rouhnee, devioee, key-|ocke, time bombs or
similar mechanisms that could disrupt Cuetomer'o use of the Services or Customer'o system; and (iii) any
update, up0rade, patch and software release will improve, and will not reduce or e|iminote, any function,
feature, or option present in the Serices at the time of the update, upgrade, patch and/or software release.
THE FOREGOING WARRANTY DOES NOT APPLY, AND NEOGOV STRICTLY DISCLAIMS ALL
WARRANTIES, WTH RESPECT TO ANY THI RD -PARTY PRODUCTS.
b) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS WARRANTY
SECTION, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE
SERVICES IS AT ITS OWN RISK. NEOGOV DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL
OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE_ AND ANY WARRANTIES ARISING
FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEOGOV DOES NOT WARRANT THAT
THE SERVICES WILL BE UNINTERRUPTED, ERROR -FREE, OR COMPLETELY SECURE, OR THAT ANY
ERROR WLL BE CORRECTED.
c) Disclaimer of Actions Caused by d/or Under the Control of Third Parties. NEOGOV DOES NOT AND
CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE NEOGOV SYSTEM AND OTHER
PORTIONS OF 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 CUSTOMERS CONNECTIONS TO
THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH NEOGOV WILL USE COMMERCIALLY
REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID
SUCH EVENTG, NEOGOV CANNOT GUARANTEE THAT SUCH EVENTS WLL NOT OCCUR.
ACC[)RD|NGLY, NEOGOV DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO
SUCH EVENTS.
d) Services Do Not Constitute Advice or Credit Reporting. NEOGOV does not provide its customers with legal
advice regarding comp|iance, data privacy, or other relevant applicable la in the jurisdictions in which you
use the Services. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES PROVIDED HEREUNDER
ARE NOT INTENDED TO BE AND WILL NOT BE RELIED UPON BY YOU AS EITHER LEGAL, FINANCIAL,
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INSURANCE, OR TAX ADVICE, TO THE EXTENT YOU REQUIRE ANY SUCH ADVICE, YOU REPRESENT
THAT YOU WILL SEEK SUCH ADVICE FROM QUALIFIED LEGAL, FINANCIAL, INSURANCE,
ACCOUNTING, OR OTHER PROFESSIONALS. YOU SHOULD REVIEW APPLICABLE LAW IN ALL
JURISDICTIONS WHERE YOU OPERATE AND HAVE EMPLOYEES AND CONSULT EXPERIENCED
COUNSEL FOR LEGAL ADVICE. YOU ACKNOWLEDGE THAT NEOGOV IS NOT A 'CONSUMER
REPORTING AGENCY'' AS THAT TERM IS DEFINED IN THE FAIR CREDIT REPORTING ACT AS
AMENDED.
e) Configurable Serices. The Services can be used in ways that do not comply with applicable laws and it is
Custome/eeole responsibility to monitor the use of the Services to ensure that such use complies with and is
in accordance with applicable law. In no event shall NEOGOV be responsible or liable for Customer failure to
comply with applicable law in connection with your use of the Services. NEOGOV is not responsible for any
harm caused by users who were not authorized to have access to the Services but who were able to gain
access because uoernameo, poeeworde, or accounts were not terminated on a timely basis by Customer.
Customer acknowledges that NEOGOV exercises no control over specific human resource practices
implemented using the Service or Cuetomer'e decisions as to emp|oyment, promo|ion, terminahon, or
compensation of any personnel or Authorized User of the Services. Customer further agrees and acknowledge
that NEOGOV does not have a direct relationship with Customer employees and that Customer is responsible
for all contact, questions, Customer Data updates and collection, with Cuetomeremp|oyeeo.
14. Customer Compliance. Customer shall be responsible for ensuring that Customer's use of the Services and the
performance ofCustomer'e other obligations hereunder comply with all applicable rules, regulations, laws, cudeo,
and ordinances. Customer is responsible for Cuotomer'e information technology infrostructure, including
oomputere, eoftvware, databoeee, electronic systems (including database management systems), and netvnorke,
whether operated directly by Customer or through the use of third -party services equipment and facilities required
to access the Services. All users of the Services are obligated to abide by the Terms of Use available at
hMpe:8vmmx.neoQov.comitermeof-uoe. Customer shall be responsible for procuring all licenses of third -party
software necessary for Cuetomer'o use of the Services. Customer is responsible and liable for all uses of the
Senicee, directly or indirectly, whether such access or use is permitted by or in 'ioIation of this Agreement.
15. Indemnification.
a) Indemnity. Subject to subsections (b) through (d) of this Gection, if a third party makes a claim against
Customer that any NEOGOV intellectual property furnished by NEOGOV and used by Customer infringes a
third party's intellectual property h0hts. NEOGOV will defend the Customer against the claim and indemnify
the Customer from the damages and Iiabilities awarded by the court to the third -party claiming infringement or
the settlement agreed to by NEOGOV, if Customer doesthefollowing:
1) Notifies N EOGOV promptly in writing not later than thirty (30)days afteCustomer receives notice of he
claim (or sooner if required by applicable law);
ii) Gives NEOGOV sole control ofthe defense and any settlement negotiations; and
iii) Gives NEOGOV the information, authority, and assistance NEOGOV needs to defend against or settle
the claim;
b) Alternative Resolution. If NEOGOV believes or it is determined that any of the Services may have violated a
third party's intellectual property hQhts. NEOGOV may choose to either modify the Services to be non -
infringing or obtain a license to allow for continued use. If these alternatives are not commercially reasonable,
NEOGOV may end the subscription or Iicense for the Services and refund a pro -rata portion of any fees
covering the whole months that would have remained, absent such early termination, following the effective
date of such earlytermination.
c) No Duty to Indemnify. NEOGOV will not indemnify Customer if Customeknowingly alters the Service or
Service Specifications, or uses it outside the scof use or if Customer uses a version of the Serice or
Service Specifications which has been superseded, if the infringement claim could have been avoided by
using an unaltered current version of the Services or Service Specifications which was provided to Customer,
or if the Customer continues to use the infringing material after the subscription expires. NEOGOV will not
indemnify the Customer to the extent that an infringement claim is based upon any information, deoign,
opecifica|ion, instruchon, eo#mare, data, or material not furnished by NEOGOV. NEOGOV will not indemnify
Customer for any portion of an infringement claim that is based upon the combination ofSewice or Service
Specifioa|ionewith any products orservices not provided byNEOGOV. NEOGOV will not indemnify Customer
forinfrin0ementcouoedbyCuetomer'eoohoneaQainstanythirdpahyiftheGervioeeaede|iveredtoCuotomer
and used in accordance with the terms of the Agreement would not otherwise infringe any third -party
intellectual property rights.
d) Exclusive Remedy. This Section provides the exclusive remedy for any intellectual property infringement
claims or damages against NEOGOV.
(EInMzzomm000x2/13175 oomms} 6
11111111111111111,
16. Limitations of Liability.
a) EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WTH THIS AGREEMENT OR ITS
SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWSE, FOR ANY: (a)
LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b)
IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS,
DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d)
COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL, LOSS OF BUSINESS
OPPORTUNITY OR PROFIT, OR LOSS OF REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF
WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES
OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE
FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b) CAP ON MONETARY LIABILITY. WITHOUT LIMITATION OF THE PREVIOUS SECTION, EXCEPT FOR
DAMAGES ARISING OUT OF LIABILITY WHICH CANNOT BE LAWFULLY EXCLUDED OR LIMITED,
CUSTOMER'S OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, OR LIABILITY FOR
INFRINGEMENT OR MISAPPROPRIATION OF NEOGOV INTELLECTUAL PROPERTY RIGHTS, THE
TOTAL LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS AGAINST THE OTHER PARTY UNDER
THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY,
SHALL NOT EXCEED THE AMOUNT OF ALL PAYMENTS ACTUALLY RECEIVED BY NEOGOV FROM
CUSTOMER DURING THE RELEVANT YEAR OF THIS AGREEMENT DURING W -ICH THE CAUSE OF
ACTION AROSE. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE WTH ALL PAYMENTS
FOR CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO
DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT
ENLARGE THE LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF
LIABILITY IS AN ESSENTIAL ELEMENT OFTHE BASIS OFTHE BARGAIN BETWEEN THE PARTIES AND
SHALL APPLY NOTWTHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN
INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND
UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT AND HAS BEEN TAKEN INTO
ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY
UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS
AGREEMENT.
17. E Signatures.
a) E -Signature Provisioning & Consent. NEOGOV E -Forms and other electronically signed services ("E -
Signatures") are provided by NEOGOV for two counterparties (generally a government employer (the "sending
party") subscribing to NEOGOV Services and Personnel or Job Seekers) to electronically sign documents. If
you use E -Signatures offered by NEOGOV, you agree to the statements set forth in this Section. Whenever
you sign a document using E -Signatures you affirmatively consent to using electronic signatures via the E-
Signatures and consent to conducting electronic business transactions. You also confirm that you are able to
access the E -Signatures and the document you are signing electronically. Wien using E -Signatures for a
document, your consent applies only to the matter(s) covered by that particular document.
b) Right to Opt -Out of E -Signatures. You are not required to use E -Signatures or accept electronic documents
provided thereby. Personnel and Job Seekers can choose to not use E -Signatures and may sign the document
manually instead by notifying the sending party they are choosing to do so and by obtaining a non -electronic
copy of the document. NEOOGV assumes no responsibility for providing non -electronic documents. In the
event a non -sending party elects to sign the document manually, do not use E -Signatures to sign the
document.
Electronic Download. If you have signed a document electronically using E -Signatures and transmitted it back
to the sending party, NEOGOV provides the opportunity to download and print a paper copy of the document
at no charge. If you later withdrawn your consent to using E -Signatures, please notify the sending party and
stop using E -Signatures. Note that the decision to stop using E -Signatures after you have already used it does
not change the legality of the documents you have previously signed using an electronic signature.
d) E -Signature Validity. PLEASE NOTE THAT NEOGOV'S STATEMENTS CONTAINED HEREIN OR
ELSEWHERE CONCERNING THE VALIDITY OF ELECTRONIC DOCUMENTS AND/OR THESIGNATURE
229663.DOGX,2/13175.000001/ } 7
LINES OF DOCUMENTS THAT ARE ELECTRONICALLY SIGNED ARE FOR INFORMATIONAL
PURPOSES ONLY; THEY SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. UNDER FEDERAL AND
STATE LAWS GOVERNING ELECTRONIC G|GNATUREG, ELECTRONIC SIGNATURES ON CERTAIN
TYPES OF AGREEMENTS ARE NOT ENFORCEABLE. NEOGOV HEREBY DISCLAIMS ANY
RESPONSIBILITY FOR ENSURING THAT DOCUMENTS ELECTRONICALLY SIGNED THROUGH E -
SIGNATURE'S ARE VALID OR ENFORCEABLE UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, ANY PARTICULAR STATE, OR ANY OTHER LEGAL JURISDICTION, YOU SHOULD CONSULT
WITH LEGAL COUNSEL CONCERNING THE VALIDITY OR ENFORCEABILITY OF ANY DOCUMENT YOU
MAY SIGN ELECTRONICALLY USING NEOGOVS E -SIGNATURES,
18. Text Message Communications, NEOGOV may offer Job Seekers and Personnel the opportunity to receive text
messages regarding job application or hiring process reminders, applicant status updates, or other human resource
related notices, Sincethesetext message seMces dependonMhefunchono|hyofMhin-pahyprovidevs.Mheremay
be technical delays on the part of those providers. NEOGOV may make commercially reasonable efforts to provide
alerts in a timely manner with accurate informohon, but cannot guarantee the de|ivery, hme|ineoe, or accuracy of
the content of any alert. NEOGOV shall not be liable for any de|oye, failure to de|iver, or misdirected delivery of
any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in
reliance on an alert. NEOGOV cannot vouch for the technical capabilities of any third parties to receive such text
messages. NEOGOV MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS,
STATUTORY, OR IMPLIED AS TO: (1) THE AVAILABILITY OF TELECOMMUNICATION SERVICES; (ii) ANY
LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii)
ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA,
COMMUNICATIONS, OR SETTINGS CONNECTED WITH THE SERVICES.
19. Cooperative Agreement. As permitted by law, it is understood and agreed by Customer and NEOGOV that any (1)
federal, state, local, tribal, or other municipal government (including all administrative aQenciee, deportments, and
offices thereof); (ii) any business enterprise in which a federal, state, local, tribal or other municipal entity has a full,
majority, or other controlling interest; and/or (iii) any public school (including without limitation K-12 echmde,
md|egee, universdiee, and vocational schools) (collectively referred to as the "New Entity") may purchase the
Services specified herein in accordance with the terms and conditions of this Agreement. It is also understood and
agreed that each New Entity will establish its own contract with NEOGOV, be invoiced therefrom and make its own
payments to NEOGOV in accordance with the terms of the contract established between the New Entity and
NEOGOV. With respect to any purchases by a New Entity pursuant to this Section, Customer: (i) shall not be
construed as a dealer, re -marketer, representative, partner or agent of any type of NEOGOV, or such New Entity;
(ii) shall not be obligated, liable or responsible for any order made by New Entities or any employee thereof under
the agreement or for any payment required to be made with respect to such order; and (iii) shall not be obliged,
liable or responsible for any failure by any New Entity to comply with procedures or requirements of applicable law
or to obtain the due authorization and approval necessary to purchase under the agreement. Termination of this
Agreement shall in noway limit NEOGOV from soliciting, entering into, or continuing a contractual relationship with
any New Entity.
20. Publicity. Each party hereto may odvertiee, diedoee, and publish its relationship with the other party under this
Agreement.
21. Force Majeure. NEOGOV shall not be Iiablefor any damages,costs, expenses or other consequences incurred by
Customer or by any other person or entity as a result of delay in or inability to deliver any Services due to
circumstances or events beyond NEOGCN'e reasonable oontud, including, without limitation: (a) acts of God; (b)
changes in or in the interpretation of any |a*, rule, regulation or ordinance; (c) strikes, lockouts or other labor
problems; (d) transportation delays; (e) unavailability of supplies or materials; (f) fire or explosion; (g) riot, military
action or usurped power: or (h) actions or failures to act on the part of a governmental authority.
. Independent Contractor; Third Party Agreements. The relationship of the parties shall be deemed to be that of an
independent contractor and nothing contained herein shall be deemed to constitute a partnership between or a
joint venture by the parties hereto or constitute either party the employee or agent of the other. Customer
acknowledges that nothing in this Agreement gives Customer the right to bind or commit NEOGOV to any
agreements with any third parties. This Agreement is not for the benefit of any third party and shall not be deemed
to give any right or remedy to any such party whether referred to herein or not.
23. Entire Agreement; Amendment. This SeMces Agreement and documents incorporated herein, the applicable
Ordering Document, and Special Conditions (if any) constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior or contemporaneous oral and written statements of
any kind whatsoever made by the parties with respect to such subject matter. "Special Condihone^ means
individually negotiated varia|iono, amendments and/or additions to this Service Agreement of which are either
drafted, or incorporated by reference, into the Ordering Document. Any Customer proposal for additional or
different terms, or Customer attempt to vary in any degree any of the terms of this Agreement is hereby objected
{eaM2296863 000x2a3175 oomms}
8
to and rejected but such proposal shall not operate as a rejection of this Service Agreement and Ordering
Document unless such variances are in the terms of the deechp|ion, quanhty, or price but shall be deemed a
material alteration thereof, and this Service Agreement and the applicable Ordering Document shall be deemed
accepted by the Customer without said additional or different terms. It is expressly agreed that the terms of this
Agreement and any NEOGOV Ordering Document shall supersede the terms in any non-NEOGOV purchase order
orother ordering document. Notwithstanding the foregoing, any conflict ofterms shall be resolved by giving priority
in accordance with the following order: 1) Special Conditions (if any), 2) the NEOGOV Services Agreement and
incorporated documents, 3)NEOGOV Ordering Document , 4) Customer terms and conditions (if any). In the event
of a conflict between the Agreement and a subsequent Service or Order Dooument, the parties may agree to the
inconsistent terms in a writing, signed by a duly -authorized representative of each party, that expresses an intent
to alter the specific terms of the Agreement as it relates to the Service or Order Document. This Agreement
supersedes the terms and conditions of any clickthrough agreement associated with the Services. This Agreement
may not be modified or amended (and no rights hereunder may be waived) except through a written instrument
signed by the party to be bound,
24. General. This Agreement shall be governed by and construed in accordance with the laws of Custome/o State,
without giving effectto conflict of Iaw rules. If any provision ofthis Agreement is heldto be iliegal or unenforceable,
such provision shall be limited or eliminated to the minimum extent necessary so that the remainder of this
Agreement will continue in full force and effect. Provisions that survive termination or expiration are those relating
to indemnification, limitation of liability, payment, and others which by their nature are intended to survive. All
notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have
been duly given either when personally delivered, one (1) business day following delivery by recognized overnight
courier or electronic mail, or three (3) business days following deposit in the U.G. mail, registered or oertified,
postage prepoid, return receipt requested. All such communications shall be sent to (i) Customer at the address
set forth in the Ordering Document and (ii) NEOGOV at 300 Continental B|vd., Suite 565, El Ge0undo, CA 90245.
The waiver, express or imp|ied, by either party of any breach of this Agreement by the other party will not waive
any subsequent breach by such party of the same or a different kind. This Agreement may be executed in two or
more counterporto, each of which will be deemed an ori0ina|, but all of which taken together shall constitute one
and the same instrument. Delivery of a copy of this Agreement bearing an original signature by facsimile
transmission, by electronic mail or by any other electronic means will have the same effect as physical delivery of
the paper document bearing the original signature. Each party represents and warrants to the other party that (i) it
has full power and authority under all relevant laws and regulations and is duly authorized to enter into this
Agreement; and (ii) to its knowledge, the execution, delivery and performance of this Agreement by such party does
not conflict with any agreement, instrument or understanding, oral or written, to which it isa party or bywhich it may
be bound, nor violate any law or regulation of any oourt. governmental body or administrative or other agency
having jurisdiction over it. Neither Party may assign this Agreement without the express written approval ofthe other
Party and any attempt at assignment in violation of this Section shall be null and void. 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 exhibito, oohedu|ee,
attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as ifthey
were set forth verbatim herein.
{eaM2296863 000x2a3175 oomms}
NEOGOV:
ollEN
NEOGOV ORDER FORM
Customer Name & Address:
Gcwe nmentjobe.00m. (dbo^NEQGCV)
3O0Continental Bkd,Suite 5G5
El Segundo, CA 90245
occounhnQ@neoQov.00m
Quote Creation Date: 10/1/20
City ofTukwila, NA
6200 Southcenter Blvd
Tukwila, WA 98188-2599
Contact Name: Juan Padilla
Quote Expiration Date: 12/30/20 Contact Email: juan.padilla@tukwilawa.gov
Pa.ymentTeomm
AnnuaL Net 3Qfrom NEOGOV invoice,
Service Description
NEOGOV Bundle:
Core HR
Time &Attendance
Position Management
Benefit Management
eFomne
Insight
GovernmentJobs.com
Onboard
Perform
Learning Management
Candidate Text Messain0
Single Sign On Integration
HR IS/Payroll Additional Integration
NEOGOV Bundle
Professional Services —
Implementation and Training
A. Terms and Conditions
Fee Summary
Term
12 Months
Term Fees
$61,195
12 Months
$75317
98,853
12 Months
$8,000
Year 1Total: $69,195
Year 2 Total: $75,317
Year 3 Total". $98,853
1. Agreement. This Ordering Document and the Services purchased herein are expressly conditioned upon the acceptance by
Customer of the terms of the NIEOGOV Services Agreement either affixed hereto or the version most recently published prior
to execution of this Ordering Form available at mzpaxw~wwnenqn,ronvaervine-speomnmmono. Unless otherwise stated, all
capitalized terms used but not defined in this Order Form shall have the meanings given to them in the mIE000v Services
Agreement.
2. Effectiveness & Modification. Neither Customer nor NIEOGOV will be bound by this Ordering Document until it has been signed
by its authorized representative (the Effecttve Date), Unless otherwise stated, all SaaS Subscriptions shall commence on the
Effective Date. This Order Form may not uemnmfieuovamended except through awritten instrument signed uythe parties.
3. Summary of Fees. Listed above is a summary of Fees under this Order. Once placed, your order shall be non -cancelable and
the sums paid nonrefundable, except as provided in the Agreement.
4. Order of Precedence. The following order of precedence applies: (1) Special Conditions (if any), (2) the NIEOGOV Services
Agreement and incorporated documents, (3) NIEOGOV Ordering Document , and (4) Customer terms and conditions (if any).
In the event of a conflict between the Agreement and a subsequent Service or Order Document, the parties may agree to the
inconsistent terms in a writing, signed by a duly -authorized representative of each party, that expresses an intent to alter the
specificterms oftheAgreement as it relatestothe Service or Order Document.
B. Special Conditions (if any).
Initial Term: 36 Months
1/13175 0000m/} 1
IfNM
101111111%
41,00A
ON WTNIESS WHEREOF, the parties have caused this Order to be executed by their respective duly authorized officers as of the
date set forth below, and consent to the Agreement.
Customer
lEntity Name: C ity of Tukwila
VC
Signature:
C-4(Leut ..65e/cg
PrintName: Allan Ekberg
Date. 12/17/2020
Attest/Authenticated:
(%I1ej
City Clerk, Christy O'Flaherty
Approved as to Form:
cji Q.5erwee
Office of the City Attorney
{EFM2300057 DOGX,1/13175 000001/ }
Governmenfobs.com, Inc. DBA "NEOGOV"
Signature:
Print Name: John Closs
Date: 12/15/2020