HomeMy WebLinkAbout21-126 - Benchmark Solutions (dba Benchmark Analytics) - Law Enforcement Personnel Analytics (Police Department)21-126
Council Approval N/A
Benchmark Solutions LLC DBA Benchmark... y ("Benchmark") - m_ g g p
Anal tics LLCThis Software as a Service Agreement "Agreement" is not valid until accepted and
4619 N. Ravenswood Avenue signed by an authorized representative of Benchmark in Chicago, Illinois.
Suite 203
Chicago, IL 60640 Effective Date: Upon Execution
Client Information
....
Client: Tukwila Police Department
Contact: Deputy Chief
Eric Lund
Telephone: (206) 433-1821
Address: 15005 Tukwila Int'I Blvd, Tukwila, WA 98188 Email: e.lund@tukwilawa.gov
I. Subscription Fees:
Client shall pay Benchmark annual subscription fees ("Fees"), inclusive of integrations noted in Section III below, in the amount of $5,000, for year 1 of the Term. Fees are subject to an annual
increase up to 4% in each subsequent year of the Term. Client shall pay all undisputed Fees for year 1 of the Term within 30 days from the effective date set forth above (the "Effective Date")
and shall pay Fees for each subsequent year of the Term on or before the subsequent anniversary of the Effective Date. The annual subscription fee is subject to sales and use taxes; taxes will be
charged unless a tax exemption form is provided.
IL Service Level Specifications:
Other than scheduled downtime, Benchmark strives for a high level of system availability above 99%. ("Service Level Specifications'). Benchmark will use commercially reasonable efforts to
conform to the Service Level Specifications when accessed and used in accordance with this Agreement. If in a calendar month the Service Level Specifications are not met Benchmark shall
credit Client with one month of Fees, to be applied toward the following year's subscription. Benchmark shall be responsible only for failures to meet the Service Level Specifications due to
conditions that are within Benchmark's reasonable control. In order to obtain a service credit, Client must notify Benchmark in writing of any problem. Client's sole and exclusive remedy and
Benchmark's sole and exclusive obligation with respect to any breach of the Service Level Specifications is the credit set forth in this Article II.
III. Additional Terms:
1. Access and Use. Benchmark has developed a software application designed for its clients' personnel to enter, manage, track, report and analyze various law enforcement -
related information and to perform other incidental and subsidiary functions, known as "Benchmark Analytics" (the "Services"). Subject to and conditioned on Client's payment
of Fees and compliance with all other terms and conditions of this Agreement, Benchmark hereby grants Client a non-exclusive, non -transferable right to access and use the
Services indicated below, during the Term, solely for use by Client's administrators, employees and other Client -authorized persons or entities ("Users") in accordance with the
terms and conditions herein and any additional terms applicable to Users. Such use is limited to Client's internal use. Benchmark shall provide to Client the necessary passwords,
security codes and network links or connections to allow Client to access the Services ("Access Credentials"),
® Benchmark Management System' (BMS)
® Use of Force ® Officer Profile
® Training— ❑ FTO only ® Activity
® Internal Affairs ® Community Engagement
® Performance Evaluation ® Trigger Based Early Warning
❑ First Sign' Early Intervention System (35% of total license fee attributable to First Sign® if BMS and C.A.R.E. are selected)
❑ Case Action Response Engine' (C.A.R.E.)
® _Total Quantity of Integrations: 1, TBD
2. Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect until three
(3) years from the Effective Date (the "Initial Term'), and will automatically renew for up to two (2) additional one (1) year terms (collectively the "Term").
3. Restrictions.
a. Client may only use the Services strictly in accordance with (1) all applicable laws, including without limitation, employment laws and data privacy and security laws, (2) the
supporting materials ("User Materials") provided by Benchmark, and (3) any other restrictions and requirements set forth herein. Client agrees that while the Services and
the reports generated for Client ("Client Reports") may be used by Client in employment-related matters, they are not designed to be, nor shall they be, utilized as the
substantial or sole factor in any employment-related decisions and are only designed to provide information to Client. Benchmark shall not be responsible for Clients' or its
Clients' employees' use of the Services or any Client Reports generated by the Service. All employment-related decisions of Client, including without limitation the
termination or discipline of any employee of Client, and Client's use of the Services, is at the sole discretion and responsibility of Client, and Benchmark shall have no
responsibility whatsoever for any such decisions. In no event shall Benchmark be required to monitor or supervise the use of the Services by Client or any authorized users
and compliance with the terms of this Agreement by all authorized users shall at all times be and remain the Client's sole responsibility.
b. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, permit any
Users or any third -party to: (i) copy, modify, or create derivative works of the Services or User Materials, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense,
assign, distribute, publish, transfer, or otherwise make available the Services or User Materials; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise
attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or User Materials,
misappropriates, or otherwise violates any intellectual property (IP) right or other right of any person, or that violates any applicable law; or (vi) use the Services or User
Materials for the purpose of creating any competing or similar service or software.
4. Intellectual Prooertv.
a. Benchmark acknowledges that, as between Benchmark and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to information,
data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or a User through the Services ("Client Data").
Client hereby grants to Benchmark (i) a non-exclusive, royalty -free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform
all acts with respect to the Client Data as may be necessary for Benchmark to provide the Services to Client; and (ii) a non-exclusive, perpetual, irrevocable, royalty -free,
worldwide license to reproduce, distribute, modify, and otherwise use, prepare derivative works from, and display Client Data (a) to evaluate, enhance and improve the
Services and future products and services (subject to the confidentiality obligations in Section 8); (b) for Research Purposes; and (c) to the extent incorporated within the
Aggregated Statistics. "Research Purposes" means the use of Client Data for research, educational, evaluative or related purposes, provided that if such Client Data is
disclosed to a third -party, it shall not directly or indirectly identify any individual or agency and shall comply with applicable confidentiality obligations.
b. Client acknowledges that, as between Client and Benchmark, Benchmark and its licensors own all right, title, and interest, including all intellectual property rights, in and to
the Services, all underlying software for the Servkes, the User Materials, and any and all intellectual property provided to Client or any User in connection with the foregoing,
including, without limitation, Aggregated Statistics and any information, data, or other content derived from Benchmark's monitoring of Client's access to or use of the
Services ("Benchmark IP"). For the avoidance of doubt, Benchmark IP excludes Client Data.
5. Aggregate Statistics. Notwithstanding anything to the contrary in this Agreement, Benchmark may monitor Client's use of the Services and collect and compile data and
information related to Client's use ofthe Services that is used by Benchmark in an aggregate and anonymized manner, including, but not limited to, compilation of statistical and
performance information related to the provision and operation of the Services ("Aggregated Statistics"), As between Benchmark and Client, all right, title, and interest in
Aggregated Statistics, and all intellectual property rights therein, belongto and are retained solely by Benchmark. Client acknowledges that Benchmark may compile Aggregated
Statistics based on Client Data input into the Services; provided, that such Aggregated Statistics do not identify Client or Client's Confidential Information.
6. Support Services. Benchmark shall provide a customer support number for client. The customer support line may be accessed through a toll-free telephone number (1 -888 -40 -
BENCH) or via e-mail (support@benchmarkanalytics.com) and will be available Monday through Friday 8:OOAM — 6:OOPM (CST), excluding all federal holidays. In the event of a
system wide outage, the client shall be provided with a 24-hour hotline for immediate response.
7. Client's Obligations.
a. Client is responsible and liable for all uses of the Services and User Materials resulting from access provided by Client, directly or indirectly, whether such access or use is
permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Users, and any act or
omission by a User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall make all Users aware
of this Agreement's provisions as applicable to such User's use of the Services, and shall cause Users to comply with all such provisions.
b. Client understands and agrees that (i) Client is responsible for obtaining and installing all software and/or hardware upgrade, fixes, or enhancements required by the
applicable browser software; and (ii) that Benchmark is not responsible for any compromise of data transmitted across computer networks or telecommunications facilities,
including, but not limited, to the Internet.
C. Client shall be responsible for: (i) securely administering the distribution and use of all Access Credentials and protection against any unauthorized access to or use of the
Services; and (ii) controlling the content and use of Client Data, including the uploading or other provision of Client Data to or through the Services and the accuracy thereof.
Client shall immediately notify Benchmark if Client becomes aware of any loss or theft or unauthorized use of any Access Credentials.
d. Client shall endeavor to provide immediate notice to Benchmark if it becomes aware that the Services, or Client's use of the Services, violates or potentially violates any
applicable laws.
e. Client is solely responsible for maintaining the confidentiality of Client's user name(s) and password(s).
8. Breach Notification. Benchmark shall maintain a data breach plan and shall implement the procedures required under such data breach plan on the occurrence of a data breach,
in compliance with the requirements of Washington's data breach notification law codified at RCW 42.56.590. Benchmark shall report, in writing, to Client any data breach
involving data maintained or managed by Benchmark on behalf of Client, including any reasonable belief that an unauthorized individual has accessed Client Data. The report
shall identify the nature of the event, a list of the affected individuals and the types of data, and the mitigation and investigation efforts of Benchmark. Benchmark shall make
the report to Client immediately upon discovery of the data breach, but in no event more than five business days after discovery of the data breach. Bencmark shall provide
investigation updates to the City.
9. Mutual Obligations. "Confidential Information" means any information that includes the following: (a) for Benchmark, all information relating to its business affairs, products,
technology (including, but not limited to, source code, research and/or analytics), confidential intellectual property, trade secrets, third -party confidential information and other
sensitive or proprietary information; and (b) for Client, the identities of its Users, records of interactions with the Users, and Client Data (including, but not limited to, information
regarding Client's employees). Neither party shall disclose any Confidential Information of the other party to any person or entity, except to those of its employees or contractors
who require access to it in order for the party to be able to perform its obligations under this Agreement, and who are bound by confidentiality obligations consistent with the
terms of this Section, and except to the extent otherwise permitted by the licenses granted in Sections 5 The receiving party shall be responsible and liable for compliance with
this Section by its employees and contractors. This Section does not apply to any information that (i) becomes generally publicly available other than as a result of improper
disclosure by the receiving party; (ii) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; (iii) becomes available
on a non -confidential basis from a third -party that is not bound by confidentiality; or (iv) is known to the receiving party at the time of disclosure. To the extent required by any
applicable law, regulation, or order of any court or governmental body, disclosure of Confidential Information is not a breach of this Agreement; provided, that the party required
to disclose it (a) promptly, and prior to such disclosure, notifies the other party so that it can seek a protective order or other remedy, and (b) prior to any disclosure, asserts the
confidential nature of the Confidential Information.
10. Insurance. Prior to commencing the Services, Benchmark shall procure and maintain at its sole cost and expense at least the following insurance, covering its obligations under
this Agreement.
a. Commercial General Liability: With coverage of not less than $1,(500,000 per occurrence, $2,000,000 general aggregate, and $2,000,000 products -completed operations
aggregate limit, which shall cover liability arising from premises, operations, independent contractors, products -completed operations, stop gap liability, personal injury
and advertising injury, and liability assumed under an insured contract. Commercial General Liability insurance shall be as least at broad as ISO occurrence form CG 00 01
and shall cover liability arising from premises, operations, independent contractors, products -completed operations, stop gap liability, personal injury and advertising
injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide a per project general aggregate limit using
ISO form CG 25 03 05 09 or an equivalent endorsement. There shall be no exclusion for liability arising from explosion, collapse or underground property damage. Client
shall be named as an additional insured under Benchmark's Commercial General Liability insurance policywith respectto the work performed for Client using ISOAdditional
Insured endorsement CG 20 10 10 01 and Additional Insured -Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing at least as broad
coverage.
b. Cyber Liability Insurance: With coverage of not less than $1,000,000 per occurrence and $5,000,000 in the annual aggregate which shall include, but not be limited to,
coverage, including defense, for the following losses or services:
i. Breach of Client Data, including but not limited to liability arising from theft, dissemination, and/or use of Client's confidential and Personal Information as
defined by RCW 42.56.590.
ii. Network security liability arising from: (a) the unauthorized access to, use of, or tampering with computer systems, by an outside party, including hacker attacks
or a virus introduced by a third party; or (b) the inability of an authorized third party to gain access to supplier systems and/or Client Data, including denial of
service, unless caused by a mechanical or electrical failure; (c) introduction of any unauthorized software computer code or virus causing damage to Client Data
or any other third party data.
iii. Event management services and first -party loss expenses for a data breach response including crisis management services, credit monitoring for individuals,
public relations, legal service advice, notification of affected parties, independent information security forensics firm, and costs to re -secure, re-create and
restore data or systems.
C. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington.
d. Automobile Liability Insurance of a minimum combined single limit for per occurrence for bodily injury and property damage of $1,000,000 per accident, covering all
awned, non -owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 0001 or a substitute form providing equivalent liability
coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage.
e. Professional Liability/Errors and Omissions Insurance (including Technology Errors and Omissions) of at least $1,000,000 per occurrence and $2,000,000 in the annual
aggregate.
f. Additional Insurance Requirements.
I. If Benchmark maintains higher insurance limits than the minimums shown above, Client shall be insured for the full available limits of Commercial General and
Excess or Umbrella liability maintained by Benchmark, irrespective of whether such limits maintained by Benchmark are greater than those required by this
Agreement or whether any certificate of insurance furnished to Client evidences limits of liability lower than those maintained by Benchmark.
ii. The insurance required in Section 10 shall be in a form and on terms and written by insurers with a current A.M. Best rating of not less than A: VII. The
Commercial General Liability, Cyber Liability Insurance and Automobile Liability Insurance shall name Client as an additional insured, and shall contain, or be
endorsed to contain, that they shall be primary insurance as respect to Client, Any insurance, self-insurance, or self-insured pool coverage maintained by Client
shall be excess of Benchmark's insurance and shall not contribute with it.
iii. Benchmark shall provide Client with written notice of any policy cancellation within two business days of the receipt of such notice. Benchmark shall obtain
replacement insurance policies meeting the requirements of this Section 10.
iv. Failure of Benchmark to maintain the insurance as required shall constitute a material breach of this Agreement, upon which Client may, after giving five
business days' notice to Benchmark to correct such breach, immediately terminate this Agreement.
V. Benchmark's maintenance of insurance, its scope of coverage and limits as required herein shall not be construed to limit the liability of Benchmark to the
coverage provided by such insurance, or otherwise limit Client's recourse to any remedy available at law or in equity.
g. Subcontractor's Insurance. Benchmark shall cause each and every subcontractor utilized by Bencmark in connection with the provision of Services ("Subcontractors"), to
provide insurance coverage that complies with all applicable requirements of Benchmark -provided insurance as set forth herein, except Benchmark shall have sole
responsibility for determining the limits of coverage required to be obtained by Subcontractors. Benchmark shall ensure Client is an additional insured on each and every
Subcontractor's Commercial General liability insurance policy, using an endorsement as least as broad as ISO CG 20 10 10 03 for ongoing operations and CG 20 37 10 01
for completed operations.
h. Benchmark shall furnish Client with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured
endorsements, evidencing the insurance requirements of Benchmark before commencement of the work. Upon request by Client, Benchmark shall furnish certified copies
of all required insurance policies, including endorsements, required in this Agreement and evidence of all subcontractors' coverage.
11. Indemnification. Benchmark shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys'
fees) ("Losses') incurred by Client resulting from any third -party claim, suit, action, or proceeding ("Third -Party Claim") that the Services, or any use of the Services in accordance
with this Agreement, infringes or misappropriates such third -party's valid U.S. patent or copyright, or for a breach of Client Data resulting from Benchmark's gross negligence,
provided that Client promptly notifies Benchmark in writing of the claim however to the extent Client's failure to so notify and request indemtnifiation prejudcices Benchmark's
ability to defend a non -frivolous claim or suit under this Section 9, Client's failure to so notify shall not relieve Benchmark of its indemnification obligations, cooperates with
Benchmark, and allows Benchmark sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Client agrees to permit
Benchmark, at Benchmark's sole discretion, to (i) modify or replace the Services, or component or part thereof, to make it non -infringing, or (ii) obtain the right for Client to
continue use. This Section will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, or technology not
provided by Benchmark or authorized by Benchmark in writing; (ii) modifications to the Services not made by Benchmark; (iii) failure to timely implement any modifications,
upgrades, replacements or enhancements made available to Client by or on behalf of Benchmark; or (iv) Client Data or any other Client materials. THIS SECTION SETS FORTH
CLIENT'S SOLE REMEDIES AND BENCHMARK'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE,
MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD -PARTY,
12. Limited Warranty.[ Disclaimer of Warranties.
a. Benchmark warrants that the Services will substantially perform according to written functional specifications provided by Benchmark from time to time and that
Benchmark will not materially decrease the overall funcationlity of its Services during the term of this Agreement. Benchmark further warrants that the time of delivery,
the Services do not contain any virus, instructions, routines, devices, key -locks, time bombs or similar mechanisms that could disrupt Client's use ofthe Services or Client's
system.
b. THE SERVICES AND BENCHMARK IP ARE PROVIDED "AS IS" AND BENCHMARK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, BENCHMARK 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. EXCEPT AS STATED IN SECTION 9, BENCHMARK MAKES NO
WARRANTY OF ANY KIND THATTHE SERVICES AND BENCHMARK IP, 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,.
13. Limitation of Liability. Except for a claim for indemnification or breach of Client Data under Section 9, in IN NO EVENT WILL either party BE LIABLE UNDER OR IN CONNECTION
WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE,
FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) DAMAGES OF ANY NATURE WHATSOVER IN CONNECTION
WITH, RELATED TO OR ARISING OUT OF ANY TERMINATION OR DISCIPLINE OF A CLIENT EMPLOYEE, OR ANY CLIENT EMPLOYMENT-RELATED MATTER, (c) INCREASED COSTS,
DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (d) LOSS OF GOODWILLOR REPUTATION; OR (e) COST OF REPLACEMENT GOODS OR SERVICES,
IN EACH CASE REGARDLESS OF WHETHER BENCHMARK WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE
FORESEEABLE. IN NO EVENT WILL either party's LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED $250,000.
14. Time to File Claims. No action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than six (6) years after the cause of action
was discovered or should have been discovered.
15. Termination,
a. In addition to any other express termination right set forth in this Agreement, this Agreement may be terminated as follows: by Benchmark, if Client is in breach of any
payment obligation contained in this Agreement and fails to cure such breach within ninety (90) days written notice of such breach by Benchmark; or by either party, if the
other party is in material breach of any other provision of this Agreement (other than Client's obligation to pay Fees), by written notice to the other party effective sixty (60)
days after the receipt of such notice unless the other party cures such breach within the sixty (60) day. In addition, Benchmark may terminate this Agreement immediately
upon notice to Client in the event Client breaches its obligations under Section 4 above. Upon expiration or earlier termination ofthis Agreement, (i) Client shall immediately
discontinue use of the Benchmark IP and, without limiting Client's obligations under Section 8, Client shall delete, destroy, or return all copies of the Benchmark IP; and (ii)
Benchmark may immediately deactivate Client's account, and, after providing Client with ninety (90) days limited access to the Services for the sole purpose of permitting
Client to retrieve Client Data, delete Client's account and bar any further access to such information and the Services. Client understands and agrees that Benchmark is not
liable to Client, its Users, or any third -party for any termination of Client's access to the Services or deletion of Client Data or any other data of any kind.
b. Client may terminate this Agreement at any time for convenience by providing Benchmark fourty-five (45) days' prior written notice. Upon termination by Client pursuant
to this Section 13.b,
C. This Section 13, and Sections 3, 4, 5, 8, 9; 10, 11,12, 15 through 22 of Article III will survive any termination or expiration of this Agreement.
16. Public Disclosure. Client grants to Benchmark the right to publicly disclose the fact that Client is using the Services of Benchmark.
17. Non-Aooro riation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, Client shall not be obligated to
make payments for Services or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Services for
which funds are allocated. No penalty or expense shall accrue to Client in the event this provision applies,
18. Severability. Each paragraph and provision of this Agreement is severable from the entire Agreement, and, if one provision is declared invalid, the remaining provisions shall
remain in effect and the invalid provision shall be reformed and amended to the extent needed to be valid
19. Force Majeure. In no event shall either party be liable, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement,
if and to the extent such failure or delay is caused by any circumstances beyond that party's reasonable control, including but not limited to acts of God, pandemics, flood, fire,
earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action
taken by a governmental or public authority, including imposing an embargo.
20. Taxes. Fees do not include any local or state sales, value added, use or other applicable excise taxes now in force or enacted in the future, any assessment of which shall be paid
by Client. Without limiting the foregoing, Client shall promptly pay to Benchmark any amounts actually paid or required to be collected or paid by Benchmark pursuant to any
statute, ordinance, rule or regulation of any legally constituted taxing authority
21. Entre,,A rg eement ten4ment: Waiver. This Agreement supersedes all prior agreements and understandings between Client and Benchmark, including any representations,
expressed or implied. Client acknowledges that this Agreement may not be changed or terminated orally, No change, termination or attempted waiver of any of the provisions
of this Agreement shall be binding unless in writing and signed by an authorized representative of the party against who the same is sought to be enforced. The parties, each
acting under proper authority, have signed this Agreement on the date indicated below. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in
exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right,
remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
22. Governing„Law: Venue• Attornev,'s Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Venue for any action
arising out of or relating to this Agreement shall lie in the King County Superior Court. If one party substantially prevails in any litigation arising out of this Agreement, that party
shall be entitled to an award of its reasonable attorneys' fees and costs incurred therefor.
23. Signatory Warranties. Each signatory to this Agreement represents and warrants that he or she has full power and authority to execute and delive r this Agreement on behalf of
the entity or party for which he or she is signing, and that he or she will defend and hold harmless the other parties and signatories from any claim that he or she was not fully
authorized to execute this Agreement on behalf of the person or entity for whom he or she signed.
24. Notices. Any notices required or permitted under this Agreement shall be in writing and shall be effective when delivered in person or sent by registered or certified mail, return
receipt requested, with proper postage affixed, or by personal courier to the address set forth in this Agreement or any more recent address to which the sending party has been
apprised.
25. Relationshig,,,of,the Parties. Benchmark and Client are independent contractors. Neither party shall make any contracts, warranties, representations, or assume or create any
other obligations, whether express or implied, in the other party's name or on its behalf.
26. Assignment. Neither party may assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party; provided
that Benchmark shall have the right to assign its rights and obligations hereunder to its parent, subsidiary, or affiliate or a successor (including any successor through merger,
consolidation or any other form of acquisition resulting in a change of control of Benchmark) upon written notice to Client, Any purported assignment of rights in violation of
this Section is null and void.
27. Third -Party Beneficiaries, This Agreement does not and is not intended to confer any rights or remedies upon any person or entities other than Benchmark and Client.
Client: Benchmark Solutions LLC DBA Benchmark Analytics LLC
Signature: Signature:
Name: ` ��r�� C Lil N G, Name: Ron Huberman
Title:
ILK -LA C6— (f A// Title: CEO
Date: Date: 8-11-21
By:
Office of the City Attorney
8-23-21
Date: