HomeMy WebLinkAboutBang the Table - 2017 AgreementBang theTable-NlJ
Service Agreement
This Service Agreement is dated JUNE 1, 2017 ( "Effective Date ") and is between Bang the
Table USA, LLC and the client named below, who, in consideration of the mutual
covenants in this agreement, and for other good and valuable consideration, agree as follows:
Client
City of Gilroy
Project
EngagementHQ Annual License -
6 month unlimited license
Date of
August 1, 2017
Expiry Date
January 31, 2018
Commencement
6 month license
Platform
EngagementHQ Unlimited
Services
EngagementHQ 6 month pilot project, followed by quarterly renewals a
approved by client, at the annual rate of $12,000, payable in quarterly
installments.
Further details regarding the Services are set out in Schedule C. To the
extent of any inconsistency between the matters set out in this part of the
first page of this agreement, the details set out in Schedule C will prevail.
Fees
The total amount payable by You in relation to the Services and access
to and use of the Platform is $_4,860 plus Applicable Taxes.
This Service Agreement ( "agreement ") consists of this Cover Page, the following Terms of
Service, and all schedules attached hereto or referencing this agreement, as it or they may from
time to time be amended, supplemented or restated in accordance with the provisions hereof.
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Terms of Service
1.0 DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this agreement, capitalized terms have the meaning given to them in
Schedule A.
1.2 Schedules. All Schedules attached to this agreement form part of this agreement:
2.0 PLATFORM AND SERVICES
2.1 Subject to You complying with Your obligations under this agreement, We will provide the
Services and the Product to You in accordance with this agreement.
2.2 If You require any additional services, or any change to the Platform or Services, You may
request a change order and the parties may discuss the additional or different services.
We are not obligated to provide additional services or make changes to the Platform or
Services until a written change order is signed by authorized representatives of each
party.
3.0 TERM
3.1 The Term commences on the Effective Date and, unless otherwise renewed or
terminated as allowed in the agreement, continues until the Expiry Date.
3.2 The agreement may be terminated:
(a) at any time upon the mutual written agreement of both Parties;
(b) at any time for any reason by You upon 30 days written notice to Us;
(c) by either Party upon the other Party being subject of an Insolvency Event, which
termination shall be effective on the date selected by the Party who is not the
subject of an Insolvency Event; or
(d) by either party if the other party materially breaches a provision of this agreement
which is capable of being remedied and fails to cure that breach within 30 days
from the date the breaching party receives written notice of the breach from the
non - breaching party.
3.3 Additionally, We may suspend the performance of all or part of Our obligations under this
agreement, including the provision of the Platform and Services if You are in breach of
the agreement.
3.4 Upon termination or expiration of this agreement,
(a) the Parties shall be relieved of their obligations under this agreement except for
the obligation to pay each other all monies owed and not paid under this
agreement prior to the termination or expiration and except for any obligations
which arise under this agreement upon or as a result of the termination or
expiration, each and all which obligations shall survive termination or expiration;
(b) We will cease to provide the Services and Platform to You; and
(c) Your Website will be decommissioned and brought offline.
4.0 FEES AND PAYMENT
4.1 You shall pay the Fees set out in the Fee section on the first page of this agreement.
4.2 We will issue an invoice for the Fees to You on or shortly after the Effective Date
calculated in accordance with this agreement. Fees are exclusive of Applicable Taxes
and You shall pay all Applicable Taxes (excluding taxes based solely on Our income. All
Fees are non - cancellable and non - refundable.
4.3 You shall pay all Fees within 30 days of the date of issuance of each invoice.
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4.4 Any overdue payment shall bear interest from the due date to the date of payment at
1% per month calculated and compounded monthly (approximately 12.68% per
annum).
4.4.1 Fees are subject to annual review.
5.0 INFORMATION AND APPROVALS
5.1 You shall:
(a) provide to Us, in a timely manner, all information and content that We need to
enable Us to provide the Platform and perform the Services ( "Information ");
(b) obtain and provide to Us, in a timely manner, all necessary permission,
authorisations, licences and consents in relation to the Information provided
directly or indirectly by or for You or on Your behalf to Us for placement on Your
Website or otherwise under the provisions of this agreement;
(c) provide to Us any additional assistance which We require of You in order to
provide the Platform and Services to You; and
(d) pay all royalties and other fees associated with the use of such Information
(e) only collect, process, and share information and content from Users in
accordance with applicable law.
5.2 We are entitled to rely on the Information that You provide Us for the purpose of
supplying the Platform and Services to You.
5.3 You acknowledge that We cannot and do not undertake to verify facts or Information
supplied to Us directly or indirectly by or for You or approved by You.
5.4 You indemnify, defend, and hold Us, Our agents, directors, officers and contractors
harmless against any loss, cost, expense, liability, or damage arising out of Our possession
or use of Information, including any loss or damage arising from any deliberate, reckless
or negligent act or omission causing an error or inaccuracy in Your information affecting
Our provision of the Platform and the Services unless Our use of Your information is
negligent or reckless.
6.0 STANDARD OF CARE
6.1 We will use reasonable commercial efforts to provide the Platform that will be free from
material programming errors and other errors and defects in material and workmanship
that materially impede functionality. As Our sole obligation and Your sole and exclusive
remedy for breach of this warranty, We will use reasonable efforts to remedy any non-
conformance at no additional cost to You.
6.2 We represent and warrant that We will perform the Services in a good and workmanlike
manner. As Our sole obligation and Your sole and exclusive remedy for breach of this
warranty, We will re- perform any defective services at no additional cost to You.
6.3 EXCEPT AS SET OUT IN CLAUSE 6.1, WE DO NOT REPRESENT OR WARRANT THAT ALL DEFECTS
WILL BE CORRECTED OR THAT THE PLATFORM OR YOUR WEBSITE WILL RUN ERROR FREE OR
UNINTERRUPTED. THE CONDITIONS, REPRESENTATIONS AND WARRANTIES EXPRESSLY SET
OUT IN THIS AGREEMENT ARE IN LIEU OF, AND WE EXPRESSLY DISCLAIM, ALL OTHER
CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING IMPLIED CONDITIONS, WARRANTIES OR REPRESENTATIONS IN RESPECT OF
QUALITY, CONDUCT, PERFORMANCE, RELIABILITY, TITLE, NON - INFRINGEMENT, AVAILABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY USAGE
OF TRADE, BY COURSE OF DEALING, BY COURSE OF PERFORMANCE, AT LAW, IN EQUITY, BY
STATUTE OR OTHERWISE HOWSOEVER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW.
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6.4 You represent and warrant that (a) You own or have obtained all rights, consents,
permissions, or licenses necessary to allow the Us access to, or possession, manipulation,
processing, or use of the Information, and (b) You shall comply with all applicable laws,
rules, and regulations applicable to Your use of the Platform and Your Website, including,
without limitation, the collection and use of information via the Platform and Your
Website. Additionally, You represent and warrant that You have not relied on any:
(a) representation made by Us, which We have not expressly stated in this
agreement
(b) descriptions, illustrations or specifications contained on any of Our websites or
those of Bang the Table Pty Limited or its other subsidiaries and affiliates; or
(c) document including publicity material produced by Us (or on Our behalf) or Bang
the Table Pty Limited or its other subsidiaries and affiliates.
7.0 INDEMNIFICATION AND LIABILITY
7.1 You will at all times indemnify and hold harmless Us and Our officers, employees and
agents harmless, and, at Our request defend the foregoing, from and against any and all
Losses and Claims that We or any or all of Our officers, employees and agents may incur
directly or indirectly to the extent arising from, based upon or as a result of:
(a) material errors, inaccuracies or omissions of facts in, or breaches of any third party
rights in respect of, any materials, releases, reports or Information supplied to Us
directly or indirectly by You or on behalf of You or approved by You for use by Us;
(b) material errors, inaccuracies or omissions of facts in, or breaches of any third party
rights in respect of, Information, representations, reports, data or releases
furnished or approved by You or by Your authorized representatives for use by Us;
(c) Your gross negligence or wilful misconduct;
(d) any Information or other data, content or materials posted by You or on Your
behalf on Your Website;
(e) Your Website, including the content or materials posted on Your Website; or
(f) Your violation of applicable law.
7.2 Subject to clause 7.3, We will defend, indemnify, and hold You harmless from and against
any and all Losses arising from third -party Claims which You may incur directly or
indirectly to the extent arising from, based upon or as a result of
(a) Our gross negligence or intentional misconduct in the performance of the
Services; or
(b) a Claim brought by a third party against You alleging that the Platform (as
delivered, and other than Information) infringe the Intellectual Property Rights of
any third party.
7.3 We may, at Our option and expense, and in addition to defending You as set forth in
clause 7.2, as Your exclusive remedy hereunder: (a) procure for You the right to continue
using the Platform; (b) replace or modify the Platform so that it is no longer infringing but
continues to provide comparable functionality; or (c) terminate this Agreement and Your
access to the Platform and refund any amounts previously paid for the Platform
attributable to the remainder of the then - current term of this Agreement. We will have
no liability to You for any infringement action that arises out of a breach of the terms and
conditions of this Agreement by You or of the use of the Platform (i) after it has been
modified by You or a third party without Our prior written consent, or (ii) in combination
with any other service, equipment, software or process not provided by Us where the
combination is the basis for the infringing activity. THIS SECTION SETS FORTH THE ENTIRE
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OBLIGATION OF US AND YOUR EXCLUSIVE REMEDY AGAINST US OR ANY OF ITS SUPPLIERS
FOR ANY INFRINGEMENT CLAIM.
7.4 Notwithstanding any other provision of this agreement, We will not be responsible for any
loss or damage or liability You or any third party may suffer as a direct or indirect result of
anything:
(a) You have done; or
(b) that is otherwise beyond Our reasonable control.
7.5 EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS THIS SECTION 7.0, A PARTY'S
PAYMENT OBLIGATIONS, OR A BREACH OF CONFIDENTIALITY UNDER SECTION 10.1:
(A) NO PARTY HERETO WILL BE LIABLE TO ANY OTHER FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL CLAIMS OF ANY KIND WHATSOEVER AND HOWEVER
CAUSED, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF
OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF
BUSINESS, LOSS OF MANAGEMENT OR OPERATION TIME AND LOSS OF GOODWILL
OR ANTICIPATED SAVINGS, EVEN IF THE PARTY HAS BEEN NOTIFIED OF THE
POSSIBILITY THEREOF OR COULD HAVE FORESEEN SUCH CLAIMS, AND
(B) NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF
OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU
HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO
EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO
THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 24
MONTHS PRECEDING THE FIRST INCIDENT. THE ABOVE LIMITATIONS WILL APPLY
WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY
OF LIABILITY.
7.5.1 This Section 7.0 shall survive the expiration or termination of this agreement. The
covenants in this Section 7.0 are made for good and valuable consideration given and received
by each Party hereunder and are fair and reasonable in the circumstances.
8.0 WEBSITE ACCESS
8.1 As part of the Services, We will use all reasonable endeavours to minimise interruptions to
the availability of Your Website. We reserve the right to change the Platform from time to
time.
8.2 Your Website may contain links to other websites. Those links are provided for Your
convenience only and may not remain current or be maintained. We are not
responsible for the content or privacy practices associated with linked websites.
9.0 INTELLECTUAL PROPERTY
9.1 Nothing in this agreement affects the ownership of any Intellectual Property Rights
owned by a Party. For clarity, You acknowledge and agree that We own all intellectual
property rights in the Platform and Services including any documentation, templates and
data created by Us in relation to the Platform and the Services, and We acknowledge
that You own the intellectual property rights relating to the Your Data that You and third
parties have uploaded to Your Website including comments and results. If We develop
or create any new software, technology, intellectual property or other work product
while performing Services or providing You the Platform ( "Work Product "), We retain
ownership to the Work Product and all intellectual property rights therein.
9.2 You grant Us the right throughout the Term to store, display, process, modify, distribute
and use Your Data, including any content provided by You or on Your behalf under this
agreement, for Our back -up or archival purposes, and to perform the Services and
provide Your Website under this agreement.
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9.3 For the purpose of this Agreement, You hereby grant to Us a limited, non - exclusive, non-
transferable, royalty -free license to use the trade - marks, logo designs and tradenames
provided by You (collectively, the "Customer Marks ") subject to the terms of this
Agreement. Use of the Customer Marks by Us is strictly limited to branding Your Website.
10.0 CONFIDENTIALITY
10.1 Confidential Information. Each party (the "Disclosing Party ") may from time to time
disclose to the other party (the "Receiving Party ") certain information regarding the
business, products, or services of the Disclosing Party and its suppliers, including technical,
marketing, financial, employee, planning, and other confidential or proprietary
information, including information that the Receiving Party knew or should have known,
under the circumstances, was considered confidential or proprietary by the Disclosing
Party ( "Confidential Information ").
10.2 Protection of Confidential Information. The Receiving Party will not use any Confidential
Information of the Disclosing Party for any purpose other than exercising its rights or
exercising its obligations under this Agreement, and will disclose the Confidential
Information of the Disclosing Party only to the employees or contractors of the Receiving
Party who have a need to know such Confidential Information for purposes of the
Agreement and who are under a duty of confidentiality no less restrictive than the
Receiving Party's duty under this Section 10.2. The Receiving Party will protect the
Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in
the same manner as the Receiving Party protects its own confidential or proprietary
information of a similar nature and with no less than reasonable care.
10.3 Exceptions. The Receiving Party's obligations under Section 10.2 with respect to any
Confidential Information of the Disclosing Party will not apply if such information: (a) was
already known to the Receiving Party without restriction at the time of disclosure by the
Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the
right to make such disclosure without any confidentiality restrictions; (c) is, or through no
fault of the Receiving Party has become, generally available to the public; or (d) was
independently developed by the Receiving Party without access to, or use of, the
Disclosing Party's Confidential Information. In addition, the Receiving Party will be
allowed to disclose Confidential Information of the Disclosing Party to the extent that
such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the
Receiving Party to enforce its rights under the Agreement in connection with a legal
proceeding; or (iii) required by law or by the order of a court of similar judicial or
administrative body, provided that the Receiving Party notifies the Disclosing Party of
such required disclosure promptly and in writing and cooperates with the Disclosing
Party, at the Disclosing Party's request and expense, in any lawful action to contest or
limit the scope of such required disclosure. Disclosure pursuant to Section 10.3(iii) shall not
render Confidential Information as non - confidential or remove such Confidential
Information from the obligations of the confidentiality obligations set forth in this Section
13.
10.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party
or use reasonable efforts to destroy all Confidential Information of the Disclosing Party in
the Receiving Party's possession or control promptly upon the written request of the
Disclosing Party upon the expiration or termination of the Agreement. The Receiving
Party will certify in writing signed by an officer of the Receiving Party that it has fully
complied with its obligations under this Section 10.4.
11.0 SPECIAL CONDITIONS
11.1 Schedule B is incorporated into and forms part of this Agreement
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12.0 NO RELATIONSHIP
12.1 Neither Party shall, for any purpose, be deemed to be an agent of the other party and
the relationship between the Parties shall only be that of independent contractors.
12.2 Neither Party shall have any right or authority to assume or create any obligations or to
make any representations or warranties on behalf of any other Party, whether express or
implied, or to bind the other party in any respect whatsoever.
12.3 The Parties must not represent themselves, and must ensure that their officers, employees,
agents and subcontractors do not represent themselves, as being an officer, employee,
partner or agent of the other Party, or as otherwise able to bind or represent the other
Party.
12.4 This agreement does not create a relationship of employment, agency or partnership
between the parties and neither party has the right to bind or represent the other party.
13.0 ASSIGNMENT AND SUB - CONTRACTING
13.1 This agreement may not be assigned by either party without the prior written approval of
the other party, (such approval not to be unreasonably withheld) except in connection
with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a
party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii)
any other form of combination or reorganization involving (directly or indirectly) such
party. Any purported assignment in violation of this section shall be void.
13.2 We may, from time to time, without Your consent, engage individuals on a sub - contract
or consultancy basis, whether or not operating under a corporate structure, delegate
elements of the provision of services and access to the Services to a subcontractor in Our
absolute discretion.
14.0 GENERAL PROVISIONS
14.1 Entire Agreement. This agreement supersedes all prior agreements, understandings,
negotiations and discussions, whether written or oral, between the Parties with respect to
its subject matter, including the contents of Our Platform and constitutes (collectively
with any documents to be delivered pursuant to this agreement) a complete and
exclusive statement of the terms of the agreement between the Parties with respect to
the subject matter of this agreement.
14.2 Waiver. A right or remedy created by this document cannot be waived except in writing
signed by the Party entitled to that right. Delay by a Party in exercising a right or remedy
does not constitute a waiver of that right or remedy, nor does a waiver (either wholly or in
part) by a Party of a right operate as a subsequent waiver of the same right or of any
other right of that Party.
14.3 Amendment. This Agreement may only be amended, supplemented or otherwise
modified by a writing executed by the Parties.
14.4 Severability. If, in any jurisdiction, any provision of this Agreement or its application to
any Party or circumstance is restricted, prohibited or unenforceable, such provision shall,
as to such jurisdiction, be ineffective only to the extent of such restriction, prohibition or
unenforceability, without invalidating the remaining provisions of this Agreement and
without affecting the validity or enforceability of such provision in any other jurisdiction or
without affecting its application to other Parties or circumstances.
14.5 Survival of Agreement. Those provisions of this agreement that, by their nature, are
intended to survive any termination or expiry of this agreement shall so survive.
14.6 Further Assurances. The Parties shall execute and deliver to each other such other
documents and do such other acts and things as a Party may reasonably request for the
purpose of carrying out the intent of this agreement.
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14.7 Successors and Assigns. This agreement and each of its provisions shall enure to the
benefit of and be binding upon the Parties and their respective heirs, executors,
administrators, successors and assigns and all persons claiming through them as if they
had been a Party to this agreement.
14.8 Force Majeure Event. Any delay in or failure of performance by either party under this
Agreement will not be considered a breach of this Agreement and will be excused to
the extent caused by any Force Majeure.
14.9 Notices. Any notice given or made under this agreement may be delivered by hand, by
mail or by facsimile to the address or fax number of the recipient. Any notice or
communication will be taken to be received by the recipient:
(a) in the case of hand delivery, upon written acknowledgement of receipt by an
officer or other duly authorised representative of the recipient;
(b) in the case of a letter, on the third (seventh, if sent outside the country in which
the letter is posted) Business Day after the date of posting;
(c) in the case of a facsimile, on production of a transmission report by the machine
from which the facsimile was sent which indicates that the facsimile
communication was sent in its entirety to the fax number of the recipient; and
(d) if the time of dispatch of a facsimile is not on a day, or is after 5.00 pm (local time)
on a day, in which business generally is carried on in the place to which the
facsimile communication is sent it will be taken to have been received at the
commencement of business on the next day in which business is generally carried
on in that place.
14.10 Governing law and Attornment. This agreement shall be governed by and interpreted in
accordance with the laws of the state of California, but excluding any such laws or choice
of laws rules that might direct the application of the laws of another jurisdiction. The
Parties hereby irrevocably and unconditionally submit to the non - exclusive jurisdiction of
the Superior Court of Santa Clara County, California, with respect to any dispute, action,
claim or cause of action arising out of or in connection with this agreement, including
any disputes regarding its validity or interpretation and the exercise of any right or the
enforcement of any obligation arising hereunder.
15.0 COUNTERPARTS, ELECTRONIC SIGNATURES, INDEPENDENT LEGAL ADVICE AND
LANGUAGE
15.1 This agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original copy and all of which, when taken together, shall be deemed
to constitute one and the same agreement, and shall be effective when counterparts
have been signed by each of the Parties and delivered to the other Party.
15.2 A manual signature on this agreement, an image of which shall have been transmitted
electronically, shall constitute an original signature for all purposes. The delivery of copies
of this agreement, including executed signature pages where required, by electronic
transmission shall constitute effective delivery of this agreement or such other document
for all purposes.
15.3 Each Party hereto hereby acknowledges that it has been provided with a reasonable
opportunity to obtain independent legal advice with respect to the execution and
delivery of this agreement and has sought such advice or has determined that such
advice is not required.
15.4 Headings are inserted for convenience of reference only and do not affect the
construction or interpretation of this agreement or any provision of this agreement. A
reference to a person includes a natural person, corporation, statutory corporation,
partnership, the government and any other organisation or legal entity. The words
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"including" and "includes" are not words of limitation (whether or not used with phrases
such as "but not limited to" or "without limitation ", and or, by itself, does not imply an
exclusive relationship between the matters being connected. If a word or expression is
defined in this Agreement, other parts of speech and grammatical forms of the same
word or expression have corresponding meanings, unless the context requires otherwise.
15.5 The Parties confirm that it is their wish that this agreement, as well as any other
documents relating to this agreement or to be delivered under this agreement, including
notices, schedules, and invoices, have been and shall be drawn up in the English
language only.
IN WITNESS WHEREOF the Parties have caused this agreement to be executed as of the date
and year first above written.
BANG THE TABLE USA LLC
W (�-Z
Per:
Signature of Director,
Matthew Crozier
Client Name
Per:
tAuthorized Signatory
VA
Per:
Authorized Signatory
_ BangiTablext
Schedule A
Definitions
A(1) The following words, phrases and expressions wherever used in this agreement have the
following meanings:
(a) Applicable Taxes means all taxes, duties, levies and other governmental charges
levied in respect of the provision of the Platform and Services under this
agreement including, without limitation, all local, provincial, state and federal
sales taxes, goods and services taxes and similar taxes, and any duties or other
tariffs of any jurisdiction in which one of the Parties to this Agreement is domiciled
or is otherwise subject in respect of the provision of the Platform and Services
under this agreement, as any of them may be amended or substituted from time
to time;
(b) Business Day means a day that is not a Saturday or a Sunday nor a statutory
holiday in Kansas;
(c) Fees means the fees and other charges described on the first page of this
agreement, Applicable Taxes and any other moneys payable to Us under this
agreement;
(d) Claim includes any claim, notice, demand, debt, account, action, expense, cost,
lien, Liability, proceeding, litigation (including reasonable legal costs),
investigation or judgement of any nature, whether known or unknown;
(e) Confidential Information means:
(i) all information disclosed (whether orally, in writing or by any other means)
by one of Us or You (the "First Party ") to the other of Us or You (the "Other
Party ") which is marked by the First Party as being confidential or which
the Other Party should reasonably regard as being confidential; and
(ii) trade secrets, designs, drawings, know how, techniques and procedures
disclosed by the First Party to the Other Party whether or not marked as
confidential;
but Confidential Information does not include:
(iii) information which is in the public domain or is generally known or is
available by publication, commercial use or otherwise without a breach
of this agreement;
(iv) information which the Other Party already possesses at the time of
disclosure to it by the First Party without an obligation of confidentiality; or
(v) information which a Party acquires from a third party entitled to disclose it;
(f) Consultation Hub (CH) means the home page of Your EngagementHQ site and
generally incorporates a number of links through to Your Project Hubs;
(g) Discussion Topic (DT) means the questions or topics posted within a Smart Forum.
A Smart Forum may incorporate any number of discussion topics;
(h) Expiry Date means the earlier of (1) the expiry date indicated on the Cover Page,
and (2) such other date as agreed in writing by the Parties;
(i) Force Majeure Events means a circumstance beyond the reasonable control of
the Parties which results in a Party being unable to observe or perform on time an
obligation under this agreement. Such circumstances shall include but shall not
be limited to:
(i) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires
and any natural disaster;
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(ii) acts of war, acts of public enemies, terrorism, riots, civil commotion,
malicious damage, sabotage and revolution;
(iii) failures in telecommunications services, the Internet, networks, servers,
routers, hosts, cabling, equipment, power and facilities that are not in Our
control; and
(iv) strikes and labour disputes;
(j) Insolvency Event means:
(i) a Party is liquidated, whether compulsorily or voluntarily (other than for the
purpose of amalgamation or reconstruction whilst solvent);
(ii) a Party enters into any arrangement with creditors;
(iii) a Party becomes subject to an insolvency proceeding under applicable
law or legislation, including having a liquidator, receiver or administrator
appointed over all or any part of its assets; or
(iv) anything analogous or having a substantially similar effect to the events
specified in (i) to (iii) above occurs in relation to a Party in any jurisdiction;
(k) Intellectual Property Rights means all proprietary or intellectual property rights,
including trademarks, trade names, domain names, logos, designs, patents,
inventions, registered and unregistered design rights, copyrights, circuit layout
rights, and all similar rights in any part of the world (including know -how)
including, where such rights are obtained or enhanced by registration, any
registration of such rights and applications and rights to apply for such
registrations;
(1) Liabilities means all liabilities of any nature, whether actual or contingent;
(m) Local Government Unlimited Package provides access to an unlimited number of
Page Moderation Units;
(n) Local Government Limited Packages provide access to a pre- agreed number
Page Moderation Units;
(o) Loss means, in relation to any person, a damage, loss, cost, expense or Liability
incurred by the person in connection with a third party Claim made against the
person;
(p) Moderated Page (MP) means any page where We are providing the comment
moderation services including: Public Smart Forum; Private Smart Forum;
Newsfeed; or Guest Book.
(q) Moderation Unit (MU) means either (1) a period of three months, or part thereof,
from the date a Moderated Page is launched, but this definition only applies to
Local Government Limited Packages, or (2) a period of one week, or part
thereof, from the date a Moderated Page is launched, but this .definition applies
to all non -local government packages.
(r) Page in relation to the Service Details set forth in Schedule C means any of the
Consultation Hub, or the Project Hub or the Smart Forum;
(s) Page Moderation Units (PMU) means the sum of all Pages multiplied by the
number of MODERATION UNITS for each individual page. (example, # 1, 1 CH + (4
PH x 4 MU) = 17 PMU; example #2, 1 CH + (10 PH x 1 MU) + (4 PH x 2 MU) = 19
PMU);
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(t) Parties means Bang the Table USA LLC and the Client identified on the first page
of this agreement; and Party means any one of them;
(u) Person means an individual, partnership, corporation, business trust, limited liability
company, limited liability partnership, joint stock company, unlimited liability
corporation, trust, unincorporated association, joint venture or any other entity or
organization, and includes a governmental authority;
(v) Privacy Laws means applicable laws which require a person to observe privacy or
confidentiality obligations in respect information;
(w) Platform means Our hosted technology platform described in the section marked
Platform on the first page of this agreement and in any Schedules to this
agreement referred to in the Platform part on the first page of this agreement;
(x) Project means the project named on the first page of this agreement;
(y) Project Hub (PH) means the home page for an individual project. NOTE: The
Project Hub may feature any, or a number, of the following feedback tools: Smart
Forum; Surveys; Forms; Guestbook; Q&A. NOTE FURTHER: The Project Hub may
incorporate a links through to number of Smart Forums;
(z) Services means the services described on the first page of this agreement and in
any Schedules to this agreement referred to in the Services part on the first page
of this agreement;
(aa) Site means the totality of all of the pages on Your Website;
(bb) Smart Forum (SF) means a discrete page linked to a Project Hub featuring: a
single standalone forum; one or a number of discussion topics; and no other
feedback tools;
(cc) Term means the term of this agreement set out on the first page of this
agreement;
(dd) Terms of Use means the terms of use appearing on and accessible by Users from
the Website from time to time to govern User behaviour;
(ee) Us, We, and Our means Bang the Table USA, LLC
(ff) User means those members of the community to whom the website is targeted
for the purposes of imparting information to them and /or allowing them to
actively engage in discussion with other members of the community on topics of
mutual interest, but excludes You;
(gg) You and Your means the client identified on the first page of this agreement;
(hh) Your Data means the Information and other data and materials provided by You
relating to the Project; and
(ii) Your Website means the website built by You using the Platform under this
agreement, comprising one or more news -pages and /or one or more community
engagement forums, located at or from a URL agreed to between You and Us.
• Local Government Unlimited Package provides access to an unlimited number of
Page Moderation Units;
• Local Government Limited Packages provide access to a pre- agreed number Page
Moderation Units;
• All Other Packages provides access to a pre- agreed number of Pages; and an
agreed number of Moderation Units.
Bang theTable N o
Page 13 - Terms of Engagement
Schedule B
Special Conditions
C(1) We will moderate all publicly accessible community contributions to Forums and
Guestbooks according to Our site moderation rules as amended from time to time
(Rules), the current version of which is located at
http:/ /demonstration.engagementha.com /moderation. Public comments are either
allowed or removed but are never edited by Us. If You disagree with a decision of Our
moderators or are concerned that a breach of Rules has occurred, You may request
that We review contributions by emailing support @engaaementha.com.
C(2) Unless otherwise agreed in writing, You are responsible for the preparation and
uploading of all data and material to Your Website.
C(3) Unless otherwise agreed in writing, You are responsible for keeping the content of Your
Website up to date. You may add or remove data during the term of this agreement
subject to Special Condition C(1). You acknowledge and agree that all content You
upload to Your Website is at Your discretion and is solely under Your supervision and
control (subject to Our right to moderate the Site). You agree that We are not liable to
You in relation to any content uploaded by You, nor are We obliged to vet Your content.
C(4) You are responsible for promoting Your Website to the wider community.
C(5) You must comply with Our website Privacy Policy, the current version of which You
acknowledge having received before execution of this agreement, and a hyperlink to
which will be contained on Your Website. Our website Privacy Policy will be subject to
review and may be amended from time to time.
C(6) Unless Our written consent is obtained within a reasonable time in advance, You must
not sub -let space on Your Website to any other individual or entity.
C(7) We do not warrant that Your Website or Our website will be available at all times during
the term of this agreement however Our target availability is 99.6% per 3 month period.
(refer to website availability in Schedule C), except in the case of a Force Majeure Event.
However, We will use reasonable commercial efforts to minimize interruptions to the
availability of Your Website and Our website and will advise You of all planned or
scheduled outages (if any). We further reserve the right to change Our website and Your
Website from time to time and will endeavor to provide advance notice of major
changes.
C(8) Your Website and Our website may contain links to other websites. Those links are
provided for Your convenience only and may not be current or maintained during the
term of this agreement. You acknowledge and agree that We are not responsible to You
for the content or privacy practices associated with any third party websites linked to
Your Website or Our website.
C(9) We will continue to manage Your domain name on Your behalf thorough the Term and
agree to transfer ownership of this property upon formal request from You.
Schedule C
Schedule C
Details of
Platform and Services
I. Site Build
Build
We will build and support a unique instance of Your Website
using Our online community engagement software,
EngagementHQT'", following receipt of instructions regarding:
• Your preferred website domain name:
• Materials to support the rebranding process
• Website contact email address;
• Your nominated contacted officer for all correspondence
with us, and
• Your logo: and
• Information to enable production and processing of Our
invoice.
Site Domain Name
We will either:
• Purchase and manage a URL on Your behalf; or
• Provide an IP address to You.
Branding
We will rebrand the software using either of two methods:
• Simple - using Your preferred banner and colours
• Deep - using Your style sheets
Accessibility Tesfing
We will test Your colour combinations to ensure the site meets
WCAG 2.0 web accessibility requirements.
2. EngagementHQTM Software Functionality
Content Management System
• Whole of site client level authorisation
• Single or multi - project level authorisation
Intormofion Tools
• Blogs
• RSS Feeds
• Direct Email
• Embeddable Rich Content - Maps, Video, Images,
Siideshows etc.
• Document Library
• Image Library
• Video Library
- Hosted Video
- YouTube or Vimeo Streamed Video Content
• Frequently Asked Question Library
• Key Dates
• External Links Gallery
• Social Media Sharing via Facebook, Unkedin and Twitter
Feedback Tools
• Smart Forums
- Public
- Private
- Database Limited
- Panel
• Multiple Surveys
• Multiple Quick Polls
• Guestbook
• Q &A
• Story telling
• Mapper
• Email Contact
Bang theTable 11
Analysis & Reporting Tools
• Comment Tagging
• Participant Demographics
• Participant Contact Details
• Quantitative Site Activity Report
• Downloadable data reports in PDF and CSV file format
3. Website Hosting
Your server is stored in an A grade data centre in North
America, with:
• Gas based fire suppression:
• Rotary UPS backup power supply (short term);
• Diesel generator backup power supply (long term);
• Full electronic access control with man traps; and
• 24 x 7 onsite security technicians and service engineers.
• Your site is backed up nightly and a disaster recovery plan
is in place.
4. Response to Technical Issues
All technical issues should be reported to
suDDort@enaaaementha.com with a full description and
screen shots if needed. Emails to this address will be attended
to within 2 hours during Eastern Australian business hours.
We will work to ensure that any faults are corrected as soon as
practically possible.
When faults are notified the following minimum service
standards are in place:
• Website unavailability - fourhours;
• Core Functionality Breakdown - one business day;
• Non Critical Functionality Glitch -two business days:
• Minor Functionality Glitch - as soon as practicable; and
• New or Modified Functionality Request - at Our discretion.
5. Support
Content Management System Training
Introduction training - training session by phone and screen
share with Your key contacts.
Smart Forum Moderation
Moderation will be canted out in accordance with the
moderation rules on Your Website.
A moderator will review all comments posted to Your Smart
Forums within 2 hours of posting or being reported by a
member of the community.
If You believe a comment should be removed which has not
been already removed by a moderator email
support@engagementhq.com and we will respond within 2
hours.
Day -to -Day
All support requests should be forwarded to
support@engagementhq.com.
Support requests will be responded to within two hours of
receipt during normal Australian Eastern Standard Time business
hours.
Bryce Atkins
From: Branson, Michael <Michael.Branson @berliner.com>
Sent: Wednesday, July 05, 2017 11:53 AM
To: Bryce Atkins
Subject: RE: Bang the Table /Engagement HQ Contract
Sounds good, thanks!
From: Bryce Atkins [ mailto :Bryce.Atkins @ci.gilroy.ca.us]
Sent: Monday, July 03, 2017 1:08 PM
To: Branson, Michael
Subject: FW: Bang the Table /Engagement HQ Contract
Michael,
Below is the response. They are fine with the change, but the contract person is out, so they won't be able to send a
revised copy until next week. Since that is the only issue, once they get it changed to Santa Clara County, I will relay for
signatures.
Thanks,
Bryce Atkins, Management Analyst
City Administrator's Office
City of Gilroy
brvice.atkins(@ci.eilrov.ca.us
(408) 846 -0210
7351 Rosanna Street
Gilroy, CA 95020
www. c ityofgi l roy. o r�
From: Amanda Nagl f mailto :amanda(cbbangthetable.com]
Sent: Monday, July 03, 2017 12:48 PM
To: Bryce Atkins; Angie Tilley
Cc: Rachelle Bedell
Subject: Re: Bang the Table /Engagement HQ Contract
Bryce,
No problem on the change itself; local jurisdiction is a common client request. Angie handles our contracts but
is away for the holiday this week. I've copied her in so she will know what is needed. You are welcome to
make the change on the contract or we can do so and send you a new version upon her return next week.
Just let me know your preference.
Have a wonderful holiday.
Thanks,
Amanda Nagl
Engagement Manager
Bang the Table
P 970.4492270
E amanda @bangthetable.com
D
00 D
On Mon, Jul 3, 2017 at 12:51 PM, Bryce Atkins <Bryce.Atkins(&,,ci. ilroy.ca.us> wrote:
Amanda,
Our City Attorney has stated that the legal jurisdiction in the contract, which is listed as Kansas City, Kansas, is not
acceptable. The policy of the City is that for agreements to have the jurisdiction be the Superior Court of Santa Clara
County in California. Is Bang the Table amenable to that change, and if so can you send a revised version with that
change? It is section 14.10.
Thanks,
Bryce Atkins, Management Analyst
City Administrator's Office
City of Gilroy
bryce.atkins @ci.gilroy.ca.us
(408) 846 -0210
7351 Rosanna Street
Gilroy, CA 95020
www.cityofgilroy.org