Loading...
2023/01/02 Productive Parks, LLC Subscription Services AgreementConfidential Information for Productive Parks, LLC 1 1. SOFTWARE SERVICE. 2. USE OF SERVICE. 3. SERVICE LEVEL AGREEMENT AND WARRANTIES. SUBSCRIPTION SERVICES AGREEMENT This agreement is between Productive Parks, LLC, an Illinois limited liability company (Productive Parks), and the Customer agreeing to these terms (City of Menifee) and is effective as of the date of the last signature below. This agreement provides Customer access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, and underlying software, as specified on an order (Service). Implementation services will also be provided by Productive Parks as specified under an order. a. Customer Owned Data. All data uploaded by Customer to the Service remains the property of Customer, as between Productive Parks and Customer (Customer Data). Customer grants Productive Parks the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export reports of its Customer Data as allowed by functionality within the Service. b. Affiliates and Contractors. Customer, may enter into orders with Productive Parks and its Affiliates. Customer may allow its contractors to use the Service, provided Customer is responsible for their compliance with the terms of this agreement, and use by its contractors is solely for Customer’s benefit. Affiliate means any company controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%. c. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Productive Parks promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service's user guide and applicable law. d. Productive Parks Support. Productive Parks must provide Customer support for the Service under the terms of Productive Parks's Customer Support Policy (Support), as seen in the addendum ‘Productive Parks Support.pdf’. e. Third Party Service. The Service interoperates with third party services (Third Party Service), and it depends on continuing availability of and access to the Third Party Service, including application programming interfaces, for full email and SMS text functionality of the Service. Customer is aware of this usage of Third-Party Services. f. Acceptable Use Policy. The customer agrees to abide by the Service Acceptable Use Policy detailed in Exhibit A. a. Availability Warranty. Productive Parks warrants to Customer that Productive Parks will maintain the availability of the Service as provided in the chart below (excluding maintenance outages, outages beyond Productive Parks's reasonable control, and outages that result from any Customer technology issues). i. Credit for Availability Warranty. Less than 99.5% = 3% of monthly fee for each full hour of an outage (beyond the warranty).* *Maximum amount of the credit is 100% of the fee for such month. DocuSign Envelope ID: E53A9034-872C-4E66-8F3C-037BA0109BDA Confidential Information for Productive Parks, LLC 2 4. PAYMENT. 5. MUTUAL CONFIDENTIALITY. ii. CUSTOMER'S EXCLUSIVE REMEDY AND PRODUCTIVE PARKS'S SOLE OBLIGATION FOR ITS FAILURE TO MEET THIS WARRANTY WILL BE FOR PRODUCTIVE PARKS TO PROVIDE A CREDIT FOR THE APPLICABLE MONTH, AS PROVIDED IN THE CHART ABOVE (IF THIS AGREEMENT IS NOT RENEWED, THEN A REFUND FOR THE MONTH), PROVIDED THAT CUSTOMER NOTIFIES PRODUCTIVE PARKS OF SUCH BREACH WITHIN 30 DAYS OF THE END OF THAT MONTH. b. Service Warranty. Productive Parks warrants to Customer that: (i) Productive Parks will not materially decrease the overall security of the Service; (ii) the Service will perform materially in accordance with its technical documentation; and (iii) Productive Parks will not materially decrease the overall functionality of the Service or the scope of Support. For any breach of this warranty, Customer’s exclusive remedies are those described in the “Mutual Termination for Material Breach” and “Effect of Termination” sections set forth in this agreement. c. Customer Warranty. Customer represents and warrants to Productive Parks that Customer has provided required notices and has obtained all required licenses, permissions and consents regarding Customer Data for use within the Service pursuant to this agreement. d. DISCLAIMER. PRODUCTIVE PARKS DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE PRODUCTIVE PARKS TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, PRODUCTIVE PARKS DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS AND AGREES THAT: (I) THE SERVICE MAY NOT BE ERROR-FREE, AND THE USE MAY BE INTERRUPTED, AND (II) PRODUCTIVE PARKS IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY SERVICE OUTAGE, ERROR OR OTHER ISSUE. a. Fees and Payment. Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law. If Productive Parks has the legal obligation to pay or collect taxes for which Customer is responsible under this section, Productive Parks will invoice Customer and Customer will pay that amount unless Customer provides Productive Parks with a valid tax exemption certificate authorized by the appropriate taxing authority. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. Year-over-year cost increases shall be limited in the following way: If the Consumer Price Index (CPI) is less than 3%, the maximum increase shall be equal to the CPI. If the CPI is over 3% the maximum price increase shall be the midway point between 3% and the current CPI. b. Nonpayment. Any invoiced amount not received by Productive Parks by the due date may accrue interest at the lower rate of 1% per month. In addition, if an invoiced amount is 45 days or more past due, Productive Parks may suspend Service and Support until the amount is paid in full, provided Productive Parks has given Customer at least 30 days’ prior written notice that its account is past due. a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Customer's Confidential Information includes, without limitation, the Customer Data. b. Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its
own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this agreement; and (ii) limit access to Confidential Information of Discloser to those of its and its Affiliates’ employees
and contractors who need that access for purposes consistent with this agreement and who DocuSign Envelope ID: E53A9034-872C-4E66-8F3C-037BA0109BDA Confidential Information for Productive Parks, LLC 3 6. PROPERTY. 7. TERM AND TERMINATION. have signed confidentiality
agreements with Recipient containing protections not materially less protective of the Confidential Information than
those in this agreement. c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order. a. Reservation of Rights. Productive Parks and its licensors are the sole owners of the Service, including all associated intellectual property rights, and they remain only with Productive Parks. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Productive Parks reserves all rights that are not expressly granted in this agreement. b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third- party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service except as allowed by applicable law despite this limitation; or (vi) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. Productive Parks may suspend Service to Customer if Productive Parks believes in good faith that Customer’s use of the Service poses an imminent threat to the security, availability or legality of the Service; in such event, Productive Parks will work with Customer to address the issue and restore Service as quickly as possible. c. Aggregated and Anonymized Data. During and after the term of this agreement, Productive Parks may use and owns all aggregated and anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support, and other business purposes. a. Term. This agreement continues until the 30th day after all orders have expired, unless earlier terminated as provided below. b. Term of Orders. Unless otherwise stated in an order, (i) orders and all subscriptions under them will automatically renew for additional one-year periods unless either party notifies the other of non-renewal 30 or more days before the renewal date, (ii) an automatically renewing order will remain unchanged from the prior term except for any pricing increase of which Productive Parks has notified Customer 60 or more days before the renewal date, and (iii) upon automatic renewal, the per-unit pricing for any Service will not increase by more than 7% over that in the prior term unless the prior pricing was clearly designated in the order as promotional or one-time. c. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured. d. Return of Customer Data. i. Within 60 days after termination, upon request Productive Parks will make the Service available for Customer to export Customer Data as provided in Section 2(a). ii. After such 60-day period, Productive Parks has no obligation to maintain the Customer Data and may destroy it. DocuSign Envelope ID: E53A9034-872C-4E66-8F3C-037BA0109BDA Confidential Information for Productive Parks, LLC 4 8. LIABILITY LIMIT. 9. INDEMNIFICATION FOR THIRD-PARTY CLAIMS. 10.GOVERNING LAW, FORUM, AND ARBITRATION. 11.OTHER TERMS. e. Effect of Termination. If this agreement is terminated for Productive Parks's breach, Productive Parks will refund Customer fees prepaid for the remainder of the term of all orders after the termination effective date. If this agreement is terminated for Customer’s breach, Customer will pay any unpaid fees for the term of all orders. Upon request, following any termination of this agreement, each party will destroy or return all of the other party’s property that it holds, subject to the “Return of Customer Data” section above. a. EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, PRODUCTIVE PARKS IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS. b. TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT FOR PRODUCTIVE PARKS'S INDEMNITY OBLIGATIONS, PRODUCTIVE PARKS'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED TWO TIMES (2X) THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY. a. Productive Parks will defend or settle any third-party claim against Customer to the extent that such claim alleges that Productive Parks technology used to provide the Service infringes a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies Productive Parks of the claim in writing, cooperates with Productive Parks in the defense, and allows Productive Parks to solely control the defense or settlement of the claim. Costs. Productive Parks will indemnify and hold harmless Customer from any infringement claim defense costs it incurs in defending Customer under this indemnity, Productive Parks-negotiated settlement amounts agreed to by Productive Parks, and court-awarded damages. Process. If such a claim appears likely, then Productive Parks may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Productive Parks determines that none of these are reasonably available, then Productive Parks may terminate the Service and refund any prepaid and unused fees. Exclusions. Productive Parks has no obligation for any claim arising from: Productive Parks's compliance with Customer's specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; Customer Data; or technology or aspects not provided by Productive Parks. THIS SECTION CONTAINS CUSTOMER'S EXCLUSIVE REMEDIES AND PRODUCTIVE PARKS'S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT. b. If a third party makes any claim against Productive Parks with respect to Customer’s breach of Section 3(c) or Productive Parks’ use of the Customer Data pursuant to this agreement, Customer will defend Productive Parks against that claim at Customer's expense, and indemnify Productive Parks, to the extent permitted by California law, from all regulatory fines, and all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer; provided that Productive Parks promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim. This agreement is governed by the laws of State of North Carolina (without regard to conflict of laws principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Nothing in this agreement prevents either party from seeking injunctive or equitable relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party. See exhibit B – Terms and Conditions. DocuSign Envelope ID: E53A9034-872C-4E66-8F3C-037BA0109BDA Confidential Information for Productive Parks, LLC 5 a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it. b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all a party's businesses, assets, not involving a competitor of the other party, or at any time to an Affiliate. c. Export Compliance. The Service and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation. d. Independent Contractors. The parties are independent contractors with respect to each other. e. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events. f. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement. g. Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply. h. Feedback. If Customer provides feedback or suggestions about the Service, then Productive Parks (and those it allows to use its technology) may use such information without obligation to Customer. [●] City of Menifee Productive Parks, LLC Signature: Signature: Printed Name: Armando G. Villa Printed Name: Mike Smith Title: City Manager Title: President of Sales and Development Date: Date: 12/14/2022 Address: 29844 Haun Road, Menifee, CA 92586 Address: 380 E Saint Charles Rd, Lombard, IL 60148 Attest: Approved as to Form: _______________________________ Stephanie Roseen, Acting City Clerk Jeffrey T. Melching, City Attorney Exhibit A – Acceptable Use Policy Customer agrees that it has reviewed and agrees to the Acceptable Use Policy stated below. DocuSign Envelope ID: E53A9034-872C-4E66-8F3C-037BA0109BDA 1/2/2023 Confidential Information for Productive Parks, LLC 6 General Prohibitions • Any activity or conduct that is likely to be in breach of any applicable laws, codes or regulations, including data protection and privacy laws and laws relating to unsolicited commercial electronic messages. • Using the Services in a manner that may expose Productive Parks to civil or criminal liability, or regulatory enforcement. • Using the Services in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, or other devices or systems in which malfunction of the Services would result in foreseeable risk of injury or death of the operator of the device or system, or to others. • You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. Protecting Individuals’ Rights • Engaging in fraudulent, deceptive, inaccurate, or misleading activity with respect to third parties (including impersonation of identity or identifiers such as phone numbers or email addresses) or otherwise bypassing legitimate identification systems. • Failing to obtain any legally required consent from applicable third parties (or, where required, their parents, representatives, or guardians) for the collection, use, and disclosure of the third parties’ personal data. Inappropriate or Harmful Content Using, storing, uploading, downloading, submitting, transmitting, distributing, or facilitating the distribution of, any information that contains “inappropriate content,” including, but not limited to, content that: • May be considered libelous, slanderous, defamatory, threatening, sexually explicit, vulgar, profane, obscene, offensive, abusive, malicious or otherwise harmful to any person or entity, constitutes or promotes “hate speech,” or is otherwise discriminatory based on race, sex, creed, religion, nationality, disability, sexual orientation, language, or age. • Contains fraudulent offers for products or services, or any advertising or promotional materials that contain deceptive, false, or misleading statements, representations or claims, or false or inaccurate data, including the fraudulent use of credit cards. • Contains or transmits viruses, Trojan horses, worms or any other malicious, harmful, or deleterious programs, or similar destructive programming routines. DocuSign Envelope ID: E53A9034-872C-4E66-8F3C-037BA0109BDA Confidential Information for Productive Parks, LLC 7 • Promotes, markets, or otherwise relates to illegal activities or terrorism. • Conducting any gambling activity in violation of any required licenses, codes of practice, or necessary technical standards required under the laws or regulations of any jurisdiction in which your site is hosted or accessed; • Infringes on, misappropriates, dilutes, or violates any intellectual property rights or other rights of third parties, including but not limited to trademark, copyright, patent, trade secrets, rights of publicity, and rights of privacy. • Constitutes or relates to “adult services” or content of an adult nature, including, without limitation, content that contains or depicts nudity, contains or depicts sexual activity. • Comprises or promotes alcohol, firearms, or tobacco content, except where appropriate age-gating functionality has been implemented and such content is otherwise legal in the applicable jurisdiction. • Contains sensitive financial or identification information or documents. • Contains “protected health information” as defined by the United States’ Health Insurance Portability and Accountability Act of 1996 as amended, except in connection with and in compliance with an active Business Associate Agreement with Vonage, or as covered by the “conduit exception” or other applicable exception to requiring a Business Associate Agreement. • Using the Services in any manner that results in charges to Productive Parks by third parties, such as originating access charges, dip charges, calls made to NPA976-XXX or 900-XXX-XXXX numbers, or any other number or service where the calling party is billed for the call by the calling party’s provider on behalf of the terminating provider or its customer. • Bulk call-in lines (e.g., “hotlines,” 900 numbers, sports-line numbers, etc.); DocuSign Envelope ID: E53A9034-872C-4E66-8F3C-037BA0109BDA