Service Solicited - 2021 - Healthy Outcomes DBA Engaged Public - Subscription and Support Agreement with Engaged Public SUBSCRIPTION AND SUPPORT AGREEMENT
FOR
Eagle, Idaho
This Subscription and Support Agreement(the "Agreement"), is made hereby entered
into as of April 16, 2021 (the"Effective Date") by and between the City of Eagle, Idaho located
at 660 E. Civic Lane, Eagle, Idaho ("Client") and Healthy Outcomes, Inc., DBA Engaged Public,
("Engaged Public" or "Consultant"), located at 7897 E. 24th Ave Denver, CO, 80238 . Client and
Engaged Public are collectively referred to as "the Parties" and individually referred to as
WHEREAS,Engaged Public is in the business of developing web software and sites capable of
hosting public policy simulations and related projects promoting an exchange of information and
ideas for use by governmental and other entities;
WHEREAS, Client desires to subscribe to access Engaged Public's proprietary web application
known as Balancing Act to be used for public education and engagement, and
NOW,THEREFORE, in consideration of the foregoing recitals and mutual covenants
contained herein, the parties agree as follows:
1. SCOPE OF ENGAGEMENT.
A. Subscription Agreement. Engaged Public shall provide Client with access to the
Balancing Act web application and agrees to provide all of the technical,
administrative, and professional support services necessary to perform this
Agreement. Client is granted a non-exclusive, non-transferable, and revocable
license to access and use the Balancing Act website. Client shall have the right to
test and approve the application prior to it going live.
B. Support Services. Engaged Public shall perform and provide certain support
services to Client in accordance with the terms and conditions of this Agreement
and the SOW(the Services described under"Support Services",the "Support
Services"). If Client hereafter requests additional services not described on
Exhibit A("Additional Services"), and Consultant is willing and able to provide
those Additional Services,the parties shall mutually agree upon and execute one
or more additional SOWs that contain the terms and conditions of the Additional
Services to be performed. Each such SOW shall be attached to and incorporated
into this Agreement as an Exhibit. Except as otherwise provided, any Additional
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Services to be performed by Consultant shall be subject to the terms of this
Agreement.
C. Fees. Client shall pay Engaged Public pursuant to the Fee Schedule selected by
Client and attached hereto as Exhibit"A."
2. FEE PAYMENT AND TIMING.
A. Fees. In consideration of Consultant's granting of access to the Site and
performance of the Services, hereunder, Client shall pay Consultant fees, and
reimburse Consultant for expenses, each in the amounts and in accordance with
the payment terms and conditions specified in this Agreement and on Exhibit B
attached hereto (collectively,the"Fees").
B. Late Payment. Except with respect to amounts disputed in good faith, all amounts
due under this Agreement, if not paid within 30 days of the due date, shall be
considered late and shall accrue interest at the rate of one and one-half percent per
month or the highest amount allowed by applicable law, whichever is less.
Should collection activities become necessary, Client agrees to pay all fees
relating to said activity.
C. Client's Failure to Pay. Client's incurring of a late payment(as determined in
accordance with Section 2(B)) shall be considered a material breach of this
Agreement. As such, until such breach is cured by way of full payment,
Consultant may (i)refuse to deliver the reports, materials, and other deliverables
that it would otherwise be obligated to deliver hereunder, (ii) cease performance
of any Services, (iii) issue a notice of non-payment to Client, which, if not
satisfied within 15 days after the receipt thereof, shall constitute grounds for
Consultant to terminate this Agreement or the SOW applicable to the Services.
These rights are not exclusive and Consultant reserves its right to seek any other
rights or remedies provided in law or equity.
D. Taxes. All amounts payable to Consultant as specified herein are in United States
dollars. Client shall be responsible for any taxes imposed on the transactions
contemplated by this Agreement, including all sales, use, value-added, excise and
other similar taxes (but specifically excluding taxes in, or measured by,
Consultant's income).
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3. CLIENT OBLIGATIONS.
Client shall be responsible for the accuracy of all data utilized by Engage Public under
this Agreement and shall comply with all laws and governmental regulations affecting its
use, including all open and public records laws. Engaged Public shall have no
responsibility to advise Client about the applicability of any laws or regulations that may
apply to this Agreement.
4. SERVICE LEVEL AGREEMENT
A. Support Services.
(i) Engaged Public's web platform will be operational and available to
Client at least 99.5% of the time in any calendar month (the
"Balancing Act Application SLA"). If Balancing Act does not meet
the Balancing Act Application SLA, Client will be eligible to
receive the Support Service Credits described below:
Uptime Percentage Support Service Credit(Days)
<99.5%->=99.0% 3
<99.0%->=95.0% 7
<95.0% 15
(ii) Service Credit Request. In order to receive any of the Support
Service Credits described above, Client must notify Engaged Public
within 30 days from the time Client becomes eligible to receive a
Service Credit. Failure to comply with this requirement will forfeit
Client's right to receive a Service Credit.
(iii) Maximum Service Credit. The aggregate maximum number of
Support Service Credits to be issued by Engaged Public to Client for
all Downtime that occurs in a single calendar month shall not exceed
fifteen days of Service added to the end of Client's term for the
Service. Support Service Credits may not be exchanged for, or
converted to, monetary amounts.
(iv) Application SLA Exclusions. The Engaged Public Application
SLA does not apply to any services that expressly exclude this
Engaged Public Application SLA or any performance issues:
(i) caused by factors described in the"Force Majeure"section of the
Agreement; or (ii)that resulted from Client's equipment or third
party equipment,or both(not within the primary control of Engaged
Public).
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5. TERM AND TERMINATION.
A. Term. This Agreement shall commence on the Effective Date and be effective for
One year("Initial Term"), unless terminated by either of the parties.
B. Termination. Either party may terminate this Agreement at any time and for any
reason by providing written notice of termination to the other party 10 days prior
to the effective date of such termination, or may terminate this Agreement
immediately without prior notice if the other party has materially breached this
Agreement. In the event of termination by Client, Client shall immediately pay all
Fees remaining due under this Agreement.
C. Effect of Termination. Upon termination, Client agrees that it will immediately
cease using the Balancing Act services and website and Engaged Public may take
steps to change, remove or otherwise block Client's access to the Balancing Act
website.
6. OWNERSHIP AND USE OF THE MATERIALS, USER CONTENT.
A. Creative Materials. The Parties acknowledge and agree that an integral part of the
services is the creation of the Balancing Act application for Client, which includes
the development of certain information, content,text, graphics, logos, photos,
videos, software and other items, as well as their selection and arrangement
("Creative Materials"). Such Creative Materials are protected by copyrights,
trademarks, patents,trade secrets and other intellectual property and proprietary
rights, and Engaged Public shall be considered the author of such Creative
Materials and retains all right, title and interest in and to such Creative Materials.
Client's rights to use the Creative Materials are limited to use solely in connection
with this Agreement, and the rights and obligations granted hereunder. Any rights
granted to Client under this Agreement to use the Creative Materials shall cease
upon the termination of this Agreement.
B. User Content. The Parties acknowledge and agree that the user content generated
on the Balancing Act website by others who are not parties to this Agreement is
not owned by either Engaged Public or Client, but can be used by either Party for
promotional purposes or any other purpose during and after the term of this
Agreement. Engaged Public acknowledges that the Client can and will retain the
right to use any user content and the deliverables under this Agreement for any
and all purposes related to the general business of the Client.
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7. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES AND
LIABILITY FOR ACTIONS OF THIRD PARTIES.
A. Other than the obligations under this Agreement, neither Party shall be liable to
the other Party under this Agreement for any indirect, incidental, special,punitive
or consequential damages for any claim, whether in contract, tort or otherwise. In
no event will the total aggregate liability against a Party for any claims, losses or
damages arising out of this Agreement exceed the total amount of fees and other
consideration actually paid under this Agreement.
B. Except for the terms and conditions set forth in this Agreement, Engaged Public
makes no express or implied warranties about the performance of Balancing Act,
including warranties of merchantability or fitness for a particular purpose.
C. Neither party shall be liable for false or defamatory statements, either orally or in
writing, made by others who are not parties to this Agreement.
8. ASSIGNMENT. Either Party may assign all or a portion of its rights or obligations
under this Agreement but only with the express written consent of the other Party.
9. CONFIDENTIALITY. During the term of this Agreement, each party (the "Disclosing
Party")may provide the other(the "Receiving Party") with certain confidential and
proprietary information("Confidential Information"). Confidential Information includes,
but is not limited to, (a)the Deliverables under this Agreement, (b) all business, financial
and technical trade secrets, (c) any written information which is marked "Confidential",
and(d) any information which is orally disclosed, identified as confidential at the time of
disclosure and confirmed in writing as being confidential within 30 days thereafter.
Confidential Information shall not include information that(a) is publicly known at the
time of its disclosure; (b) is lawfully received by the Receiving Party from a third party
not under an obligation of confidentiality to the Disclosing Party, or(c) is published or
otherwise made known to the public by the Disclosing Party. The Receiving Party will
refrain from using the Disclosing Party's Confidential Information except to the extent
necessary to exercise its rights or perform its obligations under this Agreement. Except as
required by law,the Receiving Party may not disclose the Disclosing Party's Confidential
Information to any third party, other than its affiliates or representatives who have an
absolute need to know such Confidential Information in order for the Receiving Party to
perform its obligations and enjoy its rights under this Agreement, and only if such
persons are informed of and are subject to the provisions of this Agreement. The
Receiving Party remains liable for any unauthorized use or disclosure of the Confidential
Information by any such representative or affiliate.
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10. WEB SOFTWARE AND SITE TERMS OF USE AND PRIVACY
POLICY. Engaged Public shall include on the Balancing Act website its privacy policy
("Privacy Policy")that applies to the activities of Engaged Public and the users of
Balancing Act, including the use of users' personal information. Client represents that it
has read and is familiar with the Privacy Policy and,to the extent applicable, shall govern
itself in accordance therewith.
11. INDEPENDENT CONTRACTOR. Client and Engaged Public intend at all times to be
independent contractors. Neither party is an employee,joint venture, agent or partner of
the other, nor is either party authorized to assume or create any obligations or liabilities,
express or implied, on behalf of or in the name of the other. The employees, methods,
facilities and equipment of each Party shall at all times be under the exclusive direction
and control of that Party.
12. GOVERNING LAW AND VENUE. This agreement shall be construed in accordance
with and governed by the laws of the State of Colorado and any claim or lawsuit brought
to enforce the terms of this Agreement shall be brought in the City and County of
Denver, Colorado.
13. FULL AUTHORITY. The person agreeing to the terms and conditions of this
Agreement states and affirms that they have the full authority of Client to enter into and
execute this Agreement.
[Remainder of This Page Intentionally Left Blank;Signature Page Follows.]
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IN WITNESS WHEREOF, CLIENT and ENGAGED PUBLIC have executed
this Agreement as of the Effective Date.
CLIENT:
660E Civic Lane
Eagle, ID 83616
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Jaen Ticrw
Printed Name/Mayor
Engaged Public:
7897 E. 24th Ave
Denver, CO 80238
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4/15/2021
Signature Date
Chris Adams, President
Printed Name/Title
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EXHIBIT A
SUBSCRIPTION AND SUPPORT
FOR SUBSCRIPTION,AGREEMENT BETWEEN ENGAGED PUBLIC AND the City of
Eagle,Idaho DATED April 16,2021.
1. Client Information.
Name: City of Eagle, Idaho
Contact Person: Nichoel Baird
Phone: 208-939-0227
Email: nbaird@cityofeagle,org
2. SUPPORT SERVICES
A. Ciclient staff. The training session will cover the following items:
i) Setting up site, general orientation, strategic advice
3. SUBSCRIPTION AGREEMENT
A. Design and Launch of the Site (s)
i) Client will have access to design and launch Site (s) beginning on
the date of execution of the agreement.
B. Live Site (s)
i) The Site (s) shall include all aspects of the Balancing Act Program,
including category manager, budget manager, reports, one (1)
published budget.
ii) Client is responsible for selecting and uploading categories,
subcategories, supporting information, additional details and all
costing of budget items.
iii) Client is solely responsible for the time and cost associated with
content creation and inputting.
4. SUPPORT SERVICES
A. Administration and Site Support
i) Engaged Public will provide up to two (2) hours per live site each
month of Site administration, maintenance and support, including
Client and user support during the Term. Support Services include,
but may not be limited to the following:
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• General user support(password reset, site navigation issues, site
utilization questions, etc.)
ii) Any Support Services requested by Client other than Site
administration, maintenance and support will be considered custom
development and billed to client in accordance with Exhibit B.
5. CUSTOM DEVELOPMENT
A. Enter description of custom service Engaged Public retains ownership of
custom code and may repurpose or reuse it for other clients and purposes.
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EXHIBIT B
FEES
FOR SUBSCRIPTION AND SUPPORT AGREEMENT BETWEEN CITY OF EAGLE
AND ENGAGED PUBLIC DATED APRIL 22,2021.
The following is a summary of the Fees associated with the Services provided by Engaged
Public hereunder.
1. Licensing Fee (published budget)
a. $6,000
2. General
a. Except as otherwise provided herein or in an applicable SOW, all Fees due to Engaged
Public will be payable within 30 days of receipt of the applicable invoice.
b. All payments of the Fees must be made by cash or cash equivalent to Engaged Public
at 1490 Lafayette St. Ste. 306, Denver, CO, 80218.
2016 ENGAGED PUBLIC RATE SCHEDULE AND REIMBURSEMENT SCHEDULE
FOR"ADDITIONAL SERVICES" AND CUSTOM DEVELOPMENT
Effective January 1,2016
HOURLY RATE SCHEDULE
Description Rate
Principal Staff $180/hour
Design& Development Staff $150/hour
Support Staff $50/hour
These rates listed above are valid for the initial Term of this Agreement, and Engaged Public
may, as a condition to agreeing to any extension of the Term, require that the rates be adjusted.
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