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2018/05/17 Neogov Online Services Agreement/t� MENIFEE =7gin. NlEA FEE AGREEMENT/CONTRACT COYERSHMET DATE: May 15, 2018 TO: Armando G. Villa, City Manager CC: Department Date Initials Jeff Wyman, Acting Assistant City Manager �y Wendy Preece, Acting Finance Director Jeffrey T. Melching, City Attorney 5 L Sarah A. Manwaring, City Clerk FROM: Charles Berglund, Management Analyst SUBJECT: NEOGOV Online Servies Agreement IS THE AGREEMENT/CONTRACT WITHIN THE CITY MANAGER'S SIGNATURE AUTHORITY? / ® Yes — ElPurchase of Commodities Under $50,000 ® Professional Services under $25,000 1/ ❑ Change Order under $25,000 or less than 10% of original contract (supplies, equipment, services or construction contracts) ❑ No — City Council authorized City Manager to sign (Council action attached) WHY IS THIS AGREEMENT/CONTRACT NEEDED? This contract is needed to streamline the recruitment process. It will allow quick and efficient screening of applicant pool and electronic routing. This program is meant to reduce recruitment time. WHAT IS THE TOTAL LENGTH OF THE AGREEMENT/CONTRACT? The total length of this Initial Contract is 12 months WHAT IS THE TOTAL DOLLAR AMOUNT OF THE AGREEMENT CONTRACT? $7,594.00 Total HOW WAS THE VENDOR/CONSULTANT/CONTRACTOR DECIDED ON? Supplies/Equipment/Maintenance/Construction Prior Contract/Expericence with the City ® $5,000 - $49,000 — Three Written Quotes ❑ Yes ❑ Over $50,000 — Competitive Bidding and Formal Proposals Public Works Proiects Professional Services ❑ Under $45,000 — Purchase Order, Contract (Prudent Judgement) ❑ Over $25,000 — City Council Approval ❑ $45,000 - $174,999 — Informal Bidding Process ❑ Over $175,000 — Formal Bidding Required WHERE ARE THE FUNDS COMING FROM? HR Professional Services WHAT GENERAL LEDGER ACCOUNT NUMBER SHOULD BE USED FOR THE PURCHASE ORDER? 100-4222-52800 IS THERE SUFFICIENT BUDGET? WHAT IS THE AVAILABLE BUDGET? Yes * Please attached a second page for additional information to support this agreement. NEOGOVTM ONLINE SERVICES AGREEMENT THIS ONLINE SERVICES AGREEMENT (this "Agreement") is made and entered into as of this 174-1' day of Ck M 2018 (the "Effective Date"), by and between GovernmentJobs.com, Inc., a California corporal n doing business as NEOGOV ("NEOGOV"), with offices at 300 Continental Blvd., Suite 565, El Segundo, California 90245, and City of Menifee, California a public entity acting by and through its duly appointed representative ("Customer"). Provision of Online Services. (a) Services. Subject to the terms and conditions set forth herein, Customer hereby engages NEOGOV, and NEOGOV hereby agrees, to provide Customer with, and/or access to, the services (the "Services") described in this Agreement and in the order form attached hereto as Exhibit A (the "Order Form"). Customer hereby acknowledges and agrees that NEOGOV's provision and performance of, and Customer's access to, the Services is dependent and conditioned upon Customer's full performance of its duties, obligations and responsibilities hereunder. (b) Change Orders. Either party may initiate a change to any part of the Order Form by delivering a written change order request to the other party. The receiving party shall notify the party making such request, in writing within ten (10) business days of such receiving parry's receipt of such change order request, of such receiving party's acceptance or rejection of the proposed changes. If the receiving party fails to respond within such ten (10) business day period, such receiving party shall be deemed to have rejected such proposed changes. If the receiving party approves such change order, the parties shall agree on the estimate of time to complete the changes, associated costs, an impact analysis indicating ramifications or impacts to the overall project, a modification of any affected Fees, Services or deliverables, and any other relevant details related to such change order. 2. Customer Resnonsibilities. In connection with the performance of this Agreement and the provision of the Services, Customer shall be responsible for the following: (a) Compliance with Laws. Customer shall be responsible for ensuring that Customer's use of the Services and the performance of Customer's other obligations hereunder comply with all applicable rules, regulations, laws, code and ordinances. (b) Customer Data and Website. Customer shall be solely responsible for (i) the accuracy and completeness of all records, databases, data and information provided, submitted or uploaded by Customer or its users in connection with this Agreement or use of the Services ("Customer Data"), (ii) the content, quality, performance, and all other aspects of the goods or services and the information or other content contained in or provided through Customer's website, and (iii) making and keeping copies of all Customer Data. Except as set forth in Section 9(c)(ii), NEOGOV shall have no obligation to provide or make available to Customer, and Customer shall have no right to receive, a copy of the Customer Data or any associated data files in any format. (c) Acceptable Use. Customer shall not: (i) provide system passwords or other log -in information for the Services to any third party except those specifically authorized to access the Services in this Agreement; (ii) share non-public NEOGOV system features or content with any third party; (iii) access the Services in order to build, assist, or facilitate the assembly of a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services; (iv) reverse engineer, decompile, disassemble or otherwise attempt to discover or directly access the source code or any underlying ideas or algorithms of any portions of the Services or any underlying software or component thereof; or (v) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Services except as expressly permitted by this Agreement. In the event that NEOGOV suspects any breach of the requirements provided in this Section 2(c), including by way of users of Customer's system, NEOGOV may suspend Customer's access to the Services for the reasonable time required to confirm or deny suspicion, in addition to other lawful remedies as required. NEOGOV Page 1 of 15 N EOGOW (d) Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the Services, including, without limitation, by protecting its passwords and other log -in information for the Services. Customer will notify NEOGOV immediately of any known or suspected unauthorized use of the Services or breach of its security and will use best efforts to stop any such breach. (e) Customer Equipment. Other than the Services provided by NEOGOV, Customer is responsible for all other services, equipment and facilities (including, without limitation, all hardware, telecommunications equipment, connectivity, cabling and software) required to access the Services. Customer shall be responsible for procuring all licenses of third party software necessary for Customer's use of the Services. 3. Maintenance and Support Services. (a) Maintenance. NEOGOV maintains NEOGOV's hardware/software infrastructure for the Services and is responsible for maintaining the NEOGOV server operation, software delivery, and security for the Services. Preventive system maintenance is conducted by NEOGOV from time to time and is addressed in a variety of methods including scalable architecture and infrastructure, log checking, performance maintenance, and other preventative tasks. Customer is not responsible for NEOGOV system maintenance. (b) Modification. NEOGOV may periodically modify the features, components and functionality of the Services. 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 to a modification of the Services provided by NEOGOV. (c) Support. Phone support for the Services is available to Customer between the hours of 6:OOAM and 6:OOPM, Pacific Standard Time, Monday through Friday, excluding NEOGOV holidays. Online support for the Services is available 24 hours a day, seven days a week. Both phone and online case receipts are confirmed immediately. The length of time for a resolution of any problem is fully dependent on the type of case (i.e., High/Medium/Low priority, question, enhancement request). High priority issues such as "system down" will be addressed immediately and resolved as soon as possible. All other issues are reviewed internally by NEOGOV, and then will be discussed and reviewed with Customer to identify priority and a resolution timeline. (d) Updates and Upgrades. During the Term, NEOGOV will make all Updates and Upgrades to the Services accessible to Customer at no additional expense to Customer. Upgrades are automatic and available upon Customer's next login to the Services following an Update or Upgrade. NEOGOV shall have no obligation to provide, at no additional expense to Customer, major product enhancements and/or new features that NEOGOV markets separately to other customers for an additional fee; provided, that, NEOGOV may, in its sole discretion, elect to provide such enhancements or features to Customer on a case -by -case basis at no cost. NEOGOV shall have no liability for, or any obligations to, investments in or modifications to in Customer's hardware, systems or other software which may be necessary to use or access the Services due to an Update or Upgrade. For the purposes hereof, (i) "Update" means any update, bug fix, patch or correction of the Services or underlying NEOGOV software that NEOGOV makes generally available to its third -party customers of the same module, excluding Upgrades, and (ii) "Upgrade" means any update of the Services or underlying NEOGOV software such as bug fixes, platform updates, and major product enhancements and/or new features that NEOGOV makes commercially available and does not market separately to other customers on a custom, exclusive basis for a separate fee. (e) Trainins. NEOGOV will provide Customer with access to the online training materials. All NEOGOV provided training materials will be provided online, unless otherwise set forth in the Order Form. (f) Limitations. This Agreement does not obligate NEOGOV to render any maintenance or support services that are not expressly required to be provided by NEOGOV in this Agreement, including, but not limited to, training, data conversion, and program modification and enhancement. NEOGOV Page 2 of 15 N EOGOW 4. Ownership and Protection. (a) Customer Data. As between NEOGOV and Customer, Customer shall exclusively own all right, title and interest in and to all Customer Data and all intellectual property and proprietary rights anywhere in the world ("Proprietary Rights") therein. Other than as set forth in Section 4(c), NEOGOV shall (i) acquire no rights in any Customer Data, and (ii) process Customer Data only to provide the Services or as otherwise instructed by Customer, or as may be required or permitted by applicable law. (b) NEOGOV Intellectual Property. As between NEOGOV and Customer, NEOGOV shall exclusively own all right, title and interest in and to all Services (including any Update or Upgrade thereto), NEOGOV's products, system, any software (including any source code or object code) or documentation related thereto, any trademarks, service marks, logos and other distinctive brand features of NEOGOV and all Proprietary Rights embodied therein (collectively, the "NEOGOV Intellectual Property'). (c) Customer Grant to Use Certain Customer Data. Customer hereby grants to NEOGOV a limited, revocable, non-exclusive, license to download, use, reproduce, archive, adapt, combine with other data, edit and re- format, generate, store, create derivative works of, sell and exploit (commercially or otherwise) certain Customer Data that does not constitute personally identifiable information solely for purposes of providing the Services to Customer and its users, analyzing use of, and developing improvements to, the Services, or as otherwise instructed or authorized by Customer, or as required or permitted by applicable law. (d) Reservation of Rights. This Agreement does not convey or transfer title or ownership of the NEOGOV Intellectual Property to Customer or any of its users. Except as expressly set forth in Section 4(e), this Agreement does not grant Customer any licenses or other rights with respect to any of the NEOGOV Intellectual Property. All rights not expressly granted herein are reserved by NEOGOV. (e) NEOGOV License Grant. NEOGOV's approved logos and trademarks (the "Approved Marks"), including the "powered by" logo, will appear on the "employment opportunities", "job description" and other NEOGOV hosted pages. NEOGOV hereby grants to Customer a limited, revocable, non-exclusive, non -transferable, non-sublicensable license during the Term to use and reproduce the Approved Marks solely for purposes set forth in this Section 4(e). All uses of the Approved Marks shall conform to NEOGOV's standard guidelines and requirements for use of the Approved Marks. (f) Privacy. NEOGOV will have no responsibility or liability for the accuracy of the Customer Data. Customer shall comply with all applicable laws and regulations relating to (i) the privacy of users of the Services, including, without limitation, providing appropriate notices to and obtaining appropriate consents from any individuals to whom Customer Data relates; and (ii) the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of any Customer Data (including any personally identifiable information). 5. Representations, Warranties and Disclaimers. (a) Authori . 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 is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it. (b) Service Performance Warranty. NEOGOV warrants that it will perform the Services in a manner consistent with industry standards reasonably applicable to the performance thereof. . NEOGOV Page 3 of 15 N EOGOW (c) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 51 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, NONINFRINGEMENT AND TITLE, 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 WILL BE CORRECTED. (d) Disclaimer of Actions Caused by and/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 CUSTOMER'S 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 EVENTS, NEOGOV CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, NEOGOV DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS TO THE EXTENT SUCH EVENTS COULD NOT HAVE BEEN AVOIDED BY IMPLEMENTING ALL COMMERCIALLY REASONABLE EFFORTS AS DESCRIBED ABOVE. 6. Publicity. Following the mutual execution and delivery of this Agreement, each party hereto may advertise, disclose and publish its relationship with the other party under this Agreement. NEOGOV may display Customer's name and logo in connection with such advertisement, disclosure and publishing. 7. Nondisclosure. Through exercise of each parry's rights under this Agreement, each party may be exposed to the other party's technical, financial, business, marketing, planning, and other information and data, in written, oral, electronic, magnetic, photographic and/or other forms, including, 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 interests, 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 State of California, 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 of the other parry'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 a trade secret under applicable law. In association with NEOGOV's concern for the protection of trade secrets, Confidential Information, and fair market competition, Customer acknowledges all photos, "screen captures", videos, or related media of NEOGOV products, pages, and related documentation shall be approved by NEOGOV prior to any publicly accessible disclosure of such media. 8. Liability Limitations. (a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEOGOV HAVE ANY LIABILITY TO CUSTOMER OR TO ANY OTHER PERSON OR ENTITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CUSTOMER'S USE OR, OR INABILITY TO USE, THE SERVICES, UNDER ANY CIRCUMSTANCE, CAUSE OF ACTION OR THEORY OF LIABILITY, OR DUE TO ANY EVENT WHATSOEVER, FOR ANY NEOGOV Page 4 of 15 N EOGOW CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OPPORTUNITY OR PROFIT, LOSS OF USE, LOSS OF GOODWILL OR BUSINESS STOPPAGE, EVEN IF NEOGOV KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. (b) WITHOUT LIMITING SECTION 8(A), EXCEPT FOR DAMAGES ARISING OUT OF NEOGOV'S NEGLIGENCE OR WILLFUL MISCONDUCT, THE TOTAL LIABILITY OF NEOGOV FOR ANY AND ALL CLAIMS AGAINST NEOGOV UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO NEOGOV UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PROCEEDING THE CLAIM. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE WITH 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 OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY NOTWITHSTANDING 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. HOWEVER, IF NEOGOV IS UNABLE TO FULFILL ITS OBLIGATIONS UNDER THIS AGREEMENT, NEOGOV SHALL REFUND TO CUSTOMER A PRO-RATA PORTION OF THE PRE -PAID FEES EQUIVALENT TO THE REMAINING TERM (FROM THE DATE OF CANCELLATION TO TERM EXPIRATION DATE), PLUS AN ADDITIONAL ONE MONTH OF LICENSE FEES. (c) If promptly notified in writing of any action brought against Customer based on a claim that NEOGOV's Services infringe a United States patent, copyright or trademark right of a third party (except to the extent such claim or infringement relates to any third party software incorporated into NEOGOV's applications), NEOGOV will defend such action at its expense and will pay any and all fees, costs or damages that may be finally awarded in such action or any settlement resulting from such action (provided that Customer shall permit NEOGOV to control the defense of such action and shall not make any compromise, admission of liability or settlement or take any other action impairing the defense of such claim without NEOGOV's prior written approval). Term and Termination. (a) Term. This Agreement shall commence on the Effective Date and remain in effect for the initial term set forth on the Order Form, unless terminated earlier in accordance with this Agreement (the "Initial Term"). Thereafter, this Agreement shall automatically renew for successive twelve (12) month terms (each a "Renewal Tenn" and together with the Initial Term, collectively, the "Term") unless a party delivers to the other party, at least ninety (90) days prior to the expiration of the Initial Term or the applicable Renewal Tenn, written notice of such parry's intention to not renew this Agreement, or unless terminated earlier in accordance with this Agreement. (b) Termination. (i) Termination by NEOGOV. NEOGOV may suspend the Services or terminate this Agreement immediately in the event of any of the following: (A) Customer fails to pay any amount then due under this Agreement and such failure is not cured within five (5) days following NEOGOV's written notice thereof, (B) Customer is in material breach of this Agreement and such breach is not cured within thirty (30) days following NEOGOV's written notice thereof; or (C) the Services provided hereunder become illegal or contrary to any applicable law, rule, regulation, public policy. NEOGOV Page 5 of 15 N EOGOW (ii) Termination by Customer. Customer may terminate this Agreement immediately if NEOGOV is in material breach of this Agreement and such breach is not cured within thirty (30) days following Customer's written notice thereof. (c) Effect of Termination. (i) Generally. 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 amounts owing to NEOGOV under this Agreement. (ii) Customer Data. Upon expiration or any termination of this Agreement, Customer may elect to receive either associated data files from the NEOGOV system or read-only access to such files as set forth below. (A) Delivery of Insight Data Files. Upon expiration or termination of this Agreement, in the event that Customer elects to receive Insight data files from the NEOGOV system, NEOGOV shall provide Customer with a dedicated data file in .CSV format, or provide a proprietary and confidential delete of data. Such data files will be comprised of Customer's standard data contained in NEOGOV's Insight Enterprise (IN) system. The structure of the relational database will be specific to the Customer's data and will not be representative of the proprietary NEOGOV database. NEOGOV retains the right to purge such data files from NEOGOV's systems without consent from, or notice to, the Customer after ninety (90) days after the date of expiration or termination of this Agreement. (B) Read -Only Access. In the event that Customer elects to maintain read-only access to such associated data files, Customer shall deliver to NEOGOV written notice of such election within ninety (90) days of the date of expiration or termination date of this Agreement. As consideration for such access, Customer agrees to pay NEOGOV an upfront payment equal to ten (10%) of annual recurring Fee in effect at the time of the expiration or termination of this Agreement. Customer agrees that such access to the NEOGOV system shall be limited to the functionality included at time of the expiration or termination of this Agreement. Customer may only elect to maintain read-only access to such data files if Customer has paid all outstanding amounts owed to NEOGOV under this Agreement. (d) Survival. Sections 2, 44(a) through 41d , 44f), 5, 7, a, 9(c), 9(d�, 12 and 13 shall survive the termination or expiration of this Agreement. 10. Payments. (a) Payment Terms. Customer shall pay NEOGOV the applicable fees set forth in the Order Form (collectively, the "Fees") within the applicable time periods set forth in the Order Form. NEOGOV may invoice all Fees due under this Agreement in one invoice for each invoice period. The parties agree that all invoices shall be delivered to the stated "Bill To" party on the Order Form. (b) Taxes. Customer will pay all taxes, 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 evidence of such exemption with ten (10) days of NEOGOV's request therefor. (c) Fee Increases. NEOGOV may, in its sole discretion, increase the Fees for any Renewal Term. NEOGOV shall provide Customer with written notice of any such Fee increase at least one hundred twenty (120) NEOGOV Page 6 of 15 NEOGOV"' days' prior to the commencement of such Renewal Term. Such increase shall not be effective unless, and until the Customer provides its written consent. 11. Force Maieure. Neither party shall be liable for any damages, costs, expenses or other consequences incurred by the other party or by any other person or entity as a result of delay in or inability to deliver any Services or fulfill obligations owed due to circumstances or events beyond their reasonable control, including, without limitation: (a) acts of God; (b) changes in or in the interpretation of any law, 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. 12. Pigryback Clause. It is understood and agreed by Customer and NEOGOV that any governmental entity may purchase the services specified herein in accordance with the prices, terms, and conditions of this Agreement. It is also understood and agreed that each local 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 governmental entity and NEOGOV. It is also hereby mutually understood and agreed that Customer is not a legally bound party to any contractual Agreement made between NEOGOV and any entity other than Customer. 13. Miscellaneous. (a) Assi ment. This Agreement may not be assigned by either party without the express written approval of the other party and any attempt at assignment in violation of this Section 13(a) shall be null and void. (b) Entire Agreement, Amendment. This Agreement and the Order Form 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. 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. (c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to conflict of law rules. (d) Severability. If any provision of this Agreement is held to be illegal 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 and enforceable. (e) Independent Contractor: Third Party Agreements. Both parties are and shall be deemed to be independent contractors of the other 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. Both parties acknowledge that nothing in this Agreement gives either party the right to bind or commit the other 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. (f) Notices. 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.S. mail, registered or certified, postage prepaid, return receipt requested. All such communications shall be sent to (i) Customer at the address set forth in the Order Form and (ii) NEOGOV at the address set forth in the introductory paragraph hereof. Notice of change of address shall be given by written notice in the manner detailed in this Section 13(f). NEOGOV Page 7 of 15 N EOGOW (g) Waiver. The waiver, express or implied, 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. (h) Attorneys' Fees. Should either party hereto initiate a legal or administrative action or proceeding (an "Action') to enforce any of the terms or conditions of this Agreement, the prevailing party shall be entitled to recover from the losing party all reasonable costs of the Action, including without limitation attorneys' fees and costs. 0) Conflict. In the event of a conflict between the body of this Agreement and the Order Form, the terms of the body of this Agreement shall control. 0) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, 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. [Signature Page Follows] IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized officers as of the Effective Date. Customer: City Of Menifee Signature: Aef�m (201o�, A ANDO G. VILLA eff y MelchiUTY n Print Name: MANAGER City Attorney Title: CCITY OF MENIFEE Date: 7 �� 7 g Attest: rah M arin NEOGOV: GovernmentJobs.com�nc., a California corporateCity Clerk Signature: Print Name: tit, U, ann S C (� Title: Date: 6ro NEOGOV Page 8 of 15 NEOGOW EXHIBIT A — ORDER FORM Customer: Bill To: City of Menifee (CA) Daniel Alvarado 29714 Haun Rd. Menifee, CA 92586 dalvarado@cityofinenifee.us 951 723-3779 Quote Date: 3/7/2018 Revision: 1 Valid From: 3/7/2018 Valid To: Quote Date + 30 Days Order Number: Re uested Service Date: TBD Initial Term: 12 Months Order Summary Annual Recurring Fees Line Description' Initial Annual Recurrin Fee" 1. Tnsi ht Enterprise Edition N IN Subscription $3 694.00 2. GovernmentJobs.com Job Posting Subscription (GJC) GJC Subscription $900.00 3. Perform (PE) PE Subscription N/A 4. Onboard (ON) ON Subscription N/A 5. Learning Management System LMS LMS Subscription N/A 6. NEOGOV Integrations Integration Maintenance N/A Sub Total: $4 594.00 NEOGOV Page 9 of 15 NEOGOVTM Non-Recurring Fees Line Description' Non -Recurring Fees NEOGOV Services 6. Insight (IN) Setup and Implementation $1 500.00 Training $1 500.00 7. Perform (PE) Setup and Implementation N/A Training N/A $, Onboard (ON) Setup and Implementation N/A Training N/A Onboard form building as Professional Service 9. Learning Management System (LMS) Setup and Implementation N/A Training N/A 10. NEOGOV Integrations Setup and Configuration N/A Sub Total: $3 000.00 Order Total: $7 594.00 'Items designated as Not Applicable, N/A or NA on the Order Form are not included in the Services. Customer may request a quote for these items at their discretion throughout the Term. z The annual recurring Fees for a Renewal Term are subject to increase pursuant to the Agreement. Description of Services. (a) Insight Enterprise (IN). Insight Enterprise (IN) is designed to address five major areas of human resource activities including recruitment, selection, applicant tracking, reporting and analysis, and HR automation. As described below, Insight Enterprise (IN) enables agencies to post class specifications online, post job announcements on Customer websites, accept online applications, conduct applicant tracking including EEO and other statistical analysis, create email/hardcopy applicant notices, complete item analysis, create/route/and approve requisitions and hire actions online, and certify eligible lists electronically. A subscription to Insight Enterprise (IN) will include the following: (i) Recruitment • Online job application • Online job announcements and descriptions NEOGOV Page 10 of 15 NEO_._ • Automatic online job interest cards • Recruitment and examination planning (ii) Selection o Configurable supplemental questions o Define unique scoring plans © Test analysis and pass -point setting • Score, rank, and refer applicants (iii) Applicant Tracking • Email and hardcopy notifications • EEO Data collection and reports • Track applicants by step/hurdle • Schedule written, oral, and other exams • Candidate self-service portal for scheduling and application status (iv) Reporting and Analysis • 90 standard system reports • Ad hoc reporting tool (v) HR Automation • Automatically route job requisitions and hire actions for approval • Automatically score and pass/fail applicants based on scoring plans • Automatically email users when there are candidates sent to them for review • Automatically email jobseeker job interest card notices for jobs posted on the main job openings page (vi) Training • NEOGOV will create a Customer -specific training environment for Insight Enterprise (IN), which is used by Customer during training and afterwards to train in prior to moving into production. • Customer will have full access to the demo/training environment setup for Insight Enterprise (IN). • NEOGOV training is available online (web -based, pre -built, content) unless otherwise proposed as included in the Order Form. • NEOGOV's pre -built, online training consists of a series of web courses as well as a series of hands-on exercise designed to introduce the standard features and functions and may be used as reference material by the staff following training to conduct day- to-day activities. The pre -built, online training includes exercises that are designed to be flexible enough to allow Customer led training sessions internally to introduce user - specific requirements and processes for staff to learn the system as closely as possible to the customer's actual recruitment processes after go -live. NEOGOV will provide the URLs for the Career Pages, which the Customer will use to advertise on their website. Customer will need to change the IP addresses for the following three Customer website links (NEOGOV will provide the new link addresses): • Job openings • Promotional job openings • Transfer Job openings • Class Specifications • Job Interest Cards NEOGOV Page 11 of 15 N EO 1OV ` Furthermore, Customer may export data from and to Insight Enterprise (IN) to integrate with other systems. As part of each such integration, NEOGOV shall: • Conduct project scope, review integration plan, discuss timeline, and set schedule for required meetings. • Provide Integration Worksheets and/or guides. Specifications regarding for cost, additional NEOGOV integrations can be made available to Customer, including: • Configure New Hire Export Interface ® Configure Position Control Import Interface o Class Spec Interface o Employee Integration (b) GovernmentJobs.com Job Posting Subscription. A subscription to GovernmentJobs.com Job Posting Subscription will include the following functionality: • Enables organizations to advertise their job postings created in Insight on the GovernmentJobs.com website. • May add an unlimited number of postings Note: Jobs advertised on the promotional and transfer webpages are not advertised on GovernmentJobs.com as these are typically for internal employees. (c) Perform (PE). Perform (PE) is designed to address the major areas of human resource activities centered around employee performance management. As described below, Perform (PE) includes built-in workflow for business processes, configurable tasks, performance evaluations and reports. A subscription to Perform (PE) will include the following: • Configurable Performance Evaluations • Ability to build Library of Goals, Competencies, and Writing Assistants • Shareable Competency Content • Development Plans • Configurable Process Workflows • Scored and Non -scored Rating Scales • Log of Performance Observations throughout the year • Peer Reviews & Multi -rater capability • Configurable Email Notifications • Automatic Evaluation Creation • Ability to perform actions in bulk for Employees & Evaluations (d) Onboard (ON). Onboard (ON) is designed to facilitate the onboarding process for new hires. As described below, NEOGOV maintains standard forms as part of the annual subscription. Agencies shall maintain any custom forms created by Customer. A subscription to Onboard (ON) will include the following functionality: • Electronic Employee File • Federal I9 and W4 forms • Task Manager • Employee data upload • Build your own Onboarding forms* *Onboard (ON) includes Federal I9 standard forms that are updated annually and Federal W4 forms updated every 2- 4 years. Additional forms or form maintenance is available from NEOGOV at the following cost. • Background forms $295 per form • Dynamic Forms $195 per form • Updates to existing forms $200 an hour NEOGOV Page 12 of 15 N EOGOW (e) Learning (LMS). . earning (LMS) is designed to provide a seamless experience for organizations to train and develop employees. LMS addresses the critical need of organizations to ensure completion of required trainings. By tracking both in -person and online training in one central place, organizations can improve employee performance and safety and reduce risk and liability claims. A subscription to Learning (LMS) will including the following: • Create, schedule, enroll learners in, and track completion of online and in -person, classroom trainings • Ability to upload course content files • Certificates after course completion • Learner transcripts & class rosters • Course catalog with configurable categories for learners to browse • Centralized dashboard that displays all required and elective trainings (online and in - person) that employees can take • Over 700 `off -the -shelf online courses related to: o Health & Safety, o Employment Practices and Liability, o Human Capital o Cyber Security and Privacy, o Law Enforcement, o Higher Ed/Campus Safety & Compliance, o Safe Driving, and o Parks & Recreation (including Child Safety courses) o Computer/IT Skills • Training Setup and Implementation o The following activities will be conducted as a part of the Services: ■ NEOGOV will work with Customer staff to understand the existing processes, as well as other workforce business practices, where applicable. ■ NEOGOV will establish Customer's production environment. ■ All NEOGOV products will be implemented off -site. Customer may integrate NEOGOV solutions with other systems using standard NEOGOV integration tools, web services and/or flat files. The specifications and scope must be defined prior to agreeing to a timeline or price. ■ Initial LMS will be built on the FirstNet Learning platform. Based on the functionality utilized by Customer, NEOGOV will migrate Customer to updated LMS platform at a future date agreed upon by both NEOGOV and Customer. o NEOGOV training is available online (web -based, pre -built, content) unless otherwise proposed as included in the Order Form. o NEOGOV's pre -built, online training consists of a series of tutorials to introduce the standard features and functions and may be used as reference material by the staff conducting day-to-day activities. (f) NEOGOV Integrations. NEOGOV offers Standard Integrations as well as platform APIs for third party system integration(s). A subscription to Standard Integrations includes the following: • Conduct project scope, review integration plan, discuss timeline, and set schedule for required meetings • Annual maintenance by NEOGOV • Employee import and export • Department division position import and export Note: NEOGOV APIs are to be configured directly by Customer staff using NEOGOV documentation. If required, professional services may be included by NEOGOV to help define and validate scope, business requirements, NEOGOV Page 13 of 15 N EOGOW timelines, and associated costs (if applicable). (g) NEOGOV Implementation. The following activities will be conducted as a part of the Services: • Customer to review the project kick-off tutorial for information on the project timeline, deliverables, and establish project expectations. • NEOGOV will work with Customer staff to understand the existing processes as well as other workforce business practices where applicable. • NEOGOV will establish Customer's production environment. • All NEOGOV products will be implemented off -site. Customer may integrate NEOGOV solutions with other systems using standard NEOGOV integration tools, export data from Insight Enterprise (IN) using web services and/or flat files to integrate with other systems, but the specifications and scope must be defined prior to agreeing to a timeline or price. • Following NEOGOV product rollout, NEOGOV and Customer will conduct two (2) post go - live conference call(s) (if scheduled) to ensure that the rollout was completed successfully and that any production questions are addressed promptly. 2. Fees. Customer shall pay the Fees set forth in this Order Form as follows: (a) Annual Recurring Fees. Customer shall pay all annual recurring Fees (including for any NEOGOV Integrations) for the Initial Term within thirty (30) days of the date of Customer's execution and delivery of this Order Form. Customer shall pay all annual recurring Fees (including for any NEOGOV Integrations) for any Renewal Term within thirty (30) days of Customer's receipt ofNEOGOV's invoice therefor. The annual recurring Fees for a Renewal Term are subject to increase pursuant to the Agreement. (b) Training Fees. Customer shall pay all training Fees within thirty (30) days of the date of Customer's execution and delivery of this this Order Form. (c) Setup and Implementation. Customer shall pay all setup and implementation Fees within thirty (30) days of the date of Customer's execution and delivery of this this Order Form. (d) Other Fees. Any other Fees owed by Customer to NEOGOV pursuant to this Agreement shall be paid by Customer within thirty (30) days of Customer's receipt of NEOGOV's invoice therefor. Miscellaneous. (a) Online Services Agreement. This Order Form is an attachment to and part of that certain Online Services Agreement (the "Agreement") by and between NEOGOV and Customer. Terms not defined in this Order Form shall have the meanings set forth in the Agreement. THERE ARE SIGNIFICANT ADDITIONAL TERMS AND CONDITIONS, WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS CONTAINED IN THE AGREEMENT. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT IT HAS READ THE AGREEMENT IN ITS ENTIRETY AND AGREE TO BE BOUND BY ITS PROVISIONS. (b) Effectiveness. Neither Customer nor NEOGOV will be bound by this Order Form until this Order Form has been signed by authorized representatives of both parties. (c) Modifications. This Order Form may not be modified or amended except through a written instrument signed by the party to be bound. [Signature Page Follows] NEOGOV Page 14 of 15 NE0C`- IN WITNESS WHEREOF, the parties have caused this Order Fonn to be executed by their respective duly authorized officers as of the date set forth below. Customer: NEOGOV: GovernmentJobs.com, Inc. Signature: �4n� Signature: i Print Name: ARMANDO G- VILLA Print Name: Title: CITY MANAGER Title: Date: CITY OF MENIFEE Date: Y r7 /k NEOGOV Page 15 of 15