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HomeMy WebLinkAboutBang the Table - 2018 Agreement for EngagementHQ Annual License and ServicesBang theTable This Service Agreement is dated March 13, 2018 ( "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 Unlimited License Date of Febuary 1, 2018 Commencement Platform EngagementHQ Unlimited Services Expiry Date I Dec 31, 2018 EngagementHQ Annual Unlimited License "Quarterly renewals to be 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 12,000, payable in $.3,000 quarterly installments. 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. Bang theTable_ Page 2 - Terms of Engagement 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. Bang theTable ��� Page 3 - Terms of Engagement 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. Bang theTabie Page 4 - Terms of Engagement 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 Bang theTable Page 5 - Terms of Engagement 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 properly 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. Bang theTable Page b - Terms of Engagement 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 some 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 Bang theTable Page 7 - Terms of Engagement 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. Bang theTable Q;- Page 8 - Terms of Engagement 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 Bang thebble z- nilaboutengogement 0P^ Page 9 - Terms of Engagement "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 Per: 41W Signature of Director, Matthew Crozier Approved as to Form: City of Gilroy Gilroy Per: Authorized Signatory By; Per: C f� AA-4i v--,) city Aut on cl gnatory sChe,,dUIF. P, BangxTable ,e Schedule A Definitions A()) 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 Ca 1 ifornia; (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; Bang theTable N O Page 11 - Terms of Engagement (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); Page 12 - Terms of Engagement and Bang theTable NO . _. (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 (f f) 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 �� 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.enaaaementhci.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@engagementha.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, EngagementHQ'm. 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 Testing 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 outhorisation Information Tools • Blogs • RSS Feeds • Direct Email • Embeddable Rich Content - Mops. Video, Images, Slideshows 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, Linkedin 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 the Table` 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 on 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 supoortaenaagementha.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 - four hours; • 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 carried 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 supportsengagementhq.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.