2021/06/21 SizeUp Local Business Intelligence SizeUp Local Business Intelligence (Software As A Service) Agreement
SizeUp Local Business Intelligence (Software As A Service) Agreement
This SizeUp Local Business Intelligence (Software As A Service) Agreement, effective as of June 21,
2021 is entered into by and between SizeUp, Inc. and the City of Menifee located in Menifee, CA. In
consideration of the mutual promises and upon the terms and conditions below, the parties agree as
follows:
1. License. Subject to the terms and conditions of this Agreement, SizeUp will provide Client with
online access to the SizeUp Local Business Intelligence software for use as described in Exhibit A
attached hereto (or a product with identical functionality even if marketed under a different product name),
including updates, bug fixes, or other minor enhancements or improvements that are made gener ally
available by SizeUp for users of SizeUp Local Business Intelligence software (hereafter the “Services”).
Subject to the terms and conditions of this Agreement, and upon payment in full to SizeUp, SizeUp grants
to Client a personal, nontransferable, n onsublicensable, nonexclusive limited license to use the Services
for Clients’ own use, in accordance with any documentation provided by SizeUp, to allow Client’s web site
users to use SizeUp Local Business Intelligence services as provided by SizeUp. Subject to the terms
and conditions of this Agreement, and upon payment in full to SizeUp, SizeUp also grants to Client a
personal, nontransferable, nonsublicensable, nonexclusive limited license to download and embed the
SizeUp Local Business Intelligence widget software (“Widget Software”) on Client’s website solely, in
accordance with any documentation provided by SizeUp, for the purpose of providing users of Client’s
website the ability to use SizeUp services as provided by SizeUp. Client agrees that it s hall not: i)
distribute, rent, sell, lease, license, assign or otherwise transfer all or any part of the Services or Widget
Software (including any associated documentation) and Client’s rights to use such Services, except for
use by web site end-users as described herein, ii) reverse engineer or otherwise attempt to discover
source code or underlying ideas or algorithms of the Services or Widget Software, or iii) modify or create
derivative works based on the Services or Widget Software, including any modification to the text, layout,
marks, logos or designs that appear in the SizeUp Widget. If Client does modify or create derivative
works, Client agrees to assign, and hereby does assign to SizeUp, all right, title and interest in and to all
and any modifications and derivative works of the Services or Widget Software created by Client. For the
sake of clarity, this Agreement does not grant Client any rights in the Widget Software, except for the right
to embed the Widget Software on its website in acco rdance with the license granted above. SizeUp
retains the sole and exclusive right to control and direct the manner or means by which Services are
performed, and may employ or subcontract others with respect to such services. Nothing herein entitles
Client to actual possession of any software other than as to the license for the Widget Software.
2. Client’s Duties and Responsibilities; Data. Client must follow SizeUp’s instructions how to add
the Services or Widget Software to Client’s website, including updated instructions, modifications,
additions or deletions to the Widget Software, as may be updated and provided by SizeUp . Services are
offered as or through an embedded tool. Data provided through the Services comes from a variety of
sources and is provided on an "as is" basis. SizeUp makes no guarantee or representation about the
accuracy or completeness of the information, and disclaims all warranties, express or implied, including
but not limited to warranties of merchantability, fitness for a particular purpose and non -infringement. See
Section 6. SizeUp is not responsible for any damages arising from the use of Services. It is the
responsibility of anyone using Services to independently investigate the information's accuracy and
completeness, and to determine to their satisfaction the suitability of the information for any needs. Any
projections, opinions, assumptions or estimates used are for example only and do not represent the
current or future performance of any business.
3. Fees and Payment.
3.1 Fees. The fees for the Services and Widget Software are specified in Exhibit A. Client
shall pay SizeUp the fees upon entering into this Agreement. Renewal fees as set forth in Exhibit A, if
any, shall be paid thirty (30) days prior to the end of the then current term. The renewal fees are subject
to change. SizeUp may cease provision of Services at any time if payment is not timely made and/or
suspend or terminate the licenses granted herein. In addition, Client shall pay SizeUp two percent (2.0%)
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interest per month on the outstanding balance of any fees or approved expenses not paid within thirty
(30) days of the due date.
3.2 Taxes. If Client is not a tax-exempt entity, Client shall pay or reimburse any and all
federal, state, dominion, provincial or local sales, use, personal property, excise, or other taxes, fees or
duties arising from or related to this Agreement (other than taxes based on SizeUp’s net income).
4. Ownership. Client acknowledges that, as between SizeUp and Client, all right, title and interest
in the Services and Widget Software including SizeUp Local Business Intelligence, and any other SizeUp
materials furnished or made available hereunder, and all modifications, enhancements and improvements
thereof, including all rights under copyrigh t and patent and other intellectual property rights, belong to and
are retained solely by SizeUp, or SizeUp’s licensors and providers, if any. There are no implied rights.
Any rights not granted under this Agreement are reserved by SizeUp.
5. Confidential Information. To the extent permitted by law, Client agrees to keep confidential and
not disclose or use except in performance of its obligations under this Agreement, confidential or
proprietary information related to SizeUp’s technology or business, including, but not limited
to: information relating to products or technology of SizeUp or the properties, composition, structure, use
or processing thereof, computer programs, code, algorithms, schematics, data, know -how, processes,
ideas, inventions, and other technical, business, financial, and product development plans, forecasts,
strategies and information (all of the foregoing, “Confidential Information”). Client shall use reasonable
precautions to protect SizeUp’s Confidential Information. Confidential Information shall not include
information that (a) is in or enters the public domain including in reasonably available public or
government databases through no improper action or inaction by Client; (b) was rightfully in the Client’s
possession or known by it prior to receipt from SizeUp; (c) was rightfully disclosed to the Client by another
person without restriction; or (d) was independently developed by Client by persons without access to
such information and without use of any Confidential Information of SizeUp. Client may disclose
Confidential Information that is required to be disclosed by a court or other adjudicative body provided
that reasonable measures are taken to minimize disclosure and guard against further disclosure, and also
provided that Client gives SizeUp prior written notice of the proposed disclosure to allow SizeUp to seek
protection for the Confidential Information.
6. Warranty Disclaimer; Limitation of Liability . SIZEUP FOR ITSELF AND ITS LICENSORS IF
ANY, MAKES, AND CLIENT RECEIVES, NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, ARISING IN ANY WAY OUT OF, RELATED TO, OR UNDER THIS AGREEMENT OR
THE PROVISION OF MATERIALS OR SERVICES THEREUNDER, AND SIZEUP SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. IN ADDITION, CLIENT AGREES THAT SIZEUP’S LIABILITY UNDER THIS AGREEMENT
IS LIMITED TO THE AMOUNT PAID FOR THE SERVICES AND SOFTWARE BY CLIENT. IN NO
EVENT SHALL SIZEUP HAVE ANY LIABILITY FOR ANY SPECIAL, I NDIRECT, OR CONSEQUENTIAL
DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA
OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY
OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION.
7. Term and Termination. This Agreement will take effect on the Effective Date and will remain in
effect, unless earlier terminated in accordance herein, for the term specified in Exhibit A. At the end of
each term, this Agreement shall renew for additional one (1) year terms with Client approval at least 30
days before the end of the current term. Any such renewal shall be subject to the same terms and
conditions of this Agreement, except for the renewal fee which may change after the initial term.
Notwithstanding the foregoing, SizeUp may immediately terminate this Agreement if SizeUp determines
that Client has failed to materially comply with any of the terms and conditions of this Agreement, or may
terminate for convenience provided that SizeUp offers Client a pro-rata reimbursement for the time period
that the Services are not provided due to such termination for convenience. This Agreement may be
terminated by either party if the other party (i) fails to pay any amount due under this Agreement wi thin
ten (10) days after written notice of such nonpayment, or (ii) commits a material breach of this Agreement,
which breach, if capable of being cured, is not cured within thirty (30) days of written notice of termination.
Termination by any means will n ot affect the provisions of this Agreement relating to the payment of
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amounts due, or the provisions of Sections 4 (Ownership), 5 (Confidential Information), 6 (Warranty
Disclaimer; Limitation of Liability), 9 (Reference) and 10 (General Provisions) of this Agreement, all of
which will survive termination of this Agreement, regardless of the reason for termination. Upon
termination, all licenses and rights to the Services and Widget Software that are granted hereunder shall
terminate, and Client shall imme diately return to SizeUp, SizeUp’s proprietary and confidential
information, and documentation regarding use of the Services and Widget Software, if any , along with a
signed, written statement certifying that Client has returned to SizeUp, and is no longer in possession of
the foregoing items. SizeUp.
8.Government Use. If Client is a unit or agency of the government, or licensing use of the
Services by payment with government funds, the Services are provided subject to SizeUp’s standard
commercial terms, set forth in this Agreement.
9.Reference: Client agrees that SizeUp may identify Client as a customer on its brochures,
websites, and other marketing materials, and describe the project and the Services provided by SizeUp to
Client. Nothing herein constitutes an endorsement of SizeUp by Client.
10.General Provisions. This Agreement is not assignable or transferable by Client, and any such
attempted assignment or transfer shall be void and without effect. Each party will be and act as an
independent contractor and not as an agent or partner of, or joint venturer with, the other party for any
purpose related to this Agreement or the transactions contemplated by this Agreement, and neither party
by virtue of this Agreement will have any right, power or authority to act or create any obligation,
expressed or implied, on behalf of the other party. This Agreement shall be governed by and construed
in accordance with the laws of the State of California or applicable federal law without regard to the
conflicts of law provisions thereof and without regard to the United Nations Convention on the
International Sales of Goods. The parties agree that any dispute relating to this Agreement shall be
heard in the courts located in California, Riverside County, and the parties consent to jurisdiction and
venue therein. In any action to enforce this Agreement the prevailing party will be entitled to costs and
attorneys' fees. The waiver by either party of a breach of this Agreement or any right hereunder shall not
constitute a waiver of any subsequent breach of this Agreement; nor shall any delay by either party to
exercise any right under this Agreement operate as a waiver of any such right. If any provision of this
Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire
agreement between the parties hereto related to the subject matter hereof, and any and all written or oral
agreements are expressly cancelled. Any modifications of this Agreement must be in writing and signed
by both parties hereto. Pre-printed purchase order terms and any other additional terms, and any terms in
conflict with this Agreement, shall be void and of no effect.
11.Indemnification. Client shall defend, indemnify and hold SizeUp harmless from any and all
claims, injuries, damages, losses or suits arising out of a claim (i) of any breach of this Agreement by
Client, its affiliates, employees agents, successors and assigns; and (ii) relating to or based on the
activities conducted by Client, its employees, contractors and agents, using or that used the Services;
and Client shall pay any final judgment entered against SizeUp in any such proceeding or agreed to in
settlement. Client shall be released from the above indemnification obligation unless SizeUp provides
Client with: i) reasonably prompt written notification of the claim or action; ii) sole control and authority
over the defense or settlement thereof; and iii) at no cost to Client, all reasonably available information
and assistance reasonably necessary to settle or defend any such claim or action. SizeUp agrees to
mutual indemnification.
SizeUp, Inc. City of Menifee
By: By:
Name (print): Anatalio Ubalde Name (print):
Title: CEO Title:
Attest:
_________________________
Sarah A. Manwaring, City Clerk
Approved as to Form:
_______________________
Jeffrey T. Melching, City Attorney
Armando G. Villa
City Manager
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EXHIBIT A
1. Fees
Initial Term: 3 years
Annual Fee: $4,995 (four thousand nine hundred ninety five dollars and no cents )
First Year Setup Fee: $3,000
Renewal Term Fee: $4,995 (four thousand nine hundred ninety five dollars and no cents)
2. Services (Software As A Service)
The Services shall be the provision of SizeUp Local Business Intelligence software functionality (or a
product with identical functionality even if marketed under a different product name); references to
Services below shall refer to SizeUp Local Business Intelligence or SizeUp LBI as provided to end users)
on an online basis via the Internet. SizeUp LBI will be hosted on servers with an Internet service provider
or hosting facility that SizeUp owns or uses. SizeUp provides no client or customer service support, other
than providing documentation on installing the Widget Software by Client. The functionality of the
Services will include the following features:
• Industry Benchmarking - Website users of the Services as provided through Licensee’s Website
will be able to enter certain data about their business to receive industry benchmarking of their business
to other businesses in the same or similar industry. The information will be presented through graphs
and/or maps at varying geographic levels.
• Market mapping – Website users of the Services as provided through Licensee’s Website will be
able to view companies within the same/similar industry on a map. Users will also be able to select
businesses in industries they sell to or buy from and these will also be displayed on the map. This tool
helps enable businesses to spatially see the distribution of potential business competitors, customers,
and suppliers.
• Locations to advertise – Website users of the Services as provided through Licensee’s Website
will be able to enter their industry and city to see geographic locations to advertise based on a variety of
measurements and filters.
• Demographic analysis – Website users of the Services will be able to access demographic
reports and analysis in the Project Geography including demographic, consumer expenditures, and labor
force.
• Limited Industries and Geographies. The parties agree that provision of the Services through
Licensee’s Website will limit users to only being able to select from pre-defined industries and
geographies available through the Services. If SizeUp does not include data for a unique industry,
location, or combination of location and industry, SizeUp is not obligated to provide reports in any of these
situations.
Product evolution. The parties agree that the Services may change over time including the addition or
subtraction of features.
“Web site users” refers to end users accessing Client’s website who have the necessary and adequate
hardware, software and Internet connection services to access and use most commercial Internet sites.
3. Implementation Meetings and Trainings
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SizeUp staff and Client will have the following meetings related to implementation of Services:
• Kickoff meeting (1 meeting, 1 hour, with SizeUp and Client) – This meeting starts the process of
implementing Services. Topics include, but are not limited to Introduction of team members, review of
implementation and marketing materials, discussion of timelines and scheduling of follow-up meetings,
review and walkthrough of Client’s Application, discussion of success criteria, and any additional
questions and answers.
• Training (1 meeting, 1 hour, with SizeUp and Client) – This meeting is designed for SizeUp to
train Client on the use of the SizeUp Services. In some cases, the Kickoff and Training meetings are
combined into one meeting. This meeting will include a demonstration and training of SizeUp on Client’s
web properties or hosted by SizeUp, followed by a Q&A session.
• Public Webinar (Optional) - Launch of the website to local businesses (1 meeting, 1 hour) – This
meeting is designed for SizeUp and Client to host a webinar to introduce and train local businesses about
the use of SizeUp Services. This meeting will follow the following format pre-webinar mic & audio check,
introductions, context setting, demo, Q&A, and additional demonstration scenarios as time permits,
followed by a wrap -up meeting and media availability.
• Implementation Review Meeting (1 meeting, 30 minutes, with SizeUp and Client) – This meeting
is designed to review the implementation and public launch of Services. Topics include, but are not
limited to, review of delivery by SizeUp team, review of implementation process, finalization of success
criteria for quarterly reviews. An anonymous survey will be sent to the Client’s team post -meeting for
additional feedback.
Client may schedule Additional Consulting Services as needed.
4. Project Geography
The geographic scope of the Services provided to Client will cover the geographic boundaries of Menifee
which is an area with a population of no more than 100,000 people.
5. Additional Consulting Services
Except for Services identified above in this Exhibit A, any additional services requested, travel and time
(“Additional Consulting Services”) will be charged at a consulting fee rate of $150 per hour for staff, $275
per hour for senior staff, or $395 per hour for Principals, plus expenses for calendar year 2021. Client
shall make any request for Additional Consulting Services in writing and the parties shall agree to such
additional services in writing (including by e-mail) prior to performance of the Additional Consulting
Services. The hourly rate for service is subject to change, in which case client shall be notified and
approve of change before work is performed by SizeUp.
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