HomeMy WebLinkAboutApply4.com - 2016-02-22�CONTRACT SUBMITTAL TO
CITY CLERK'S OFFICE
To: JOAN FLYNN, City Clerk
Name of Contractor:
Purpose of Contract:
Amount of Contract:
Apply4.com
Software
N/A �/-5-7a 00
Copy of contract distributed to The original insurance certificate/waiver distributed
to Risk Management ❑
Initiating Dept ® (�n
Finance Dept ❑ ORIGINAL bonds sent to Treasurer ❑
❑ Copy of current insurance and/or waiver (approved by attorney)
❑ Proof of Liability Insurance
❑ If over $30,000 — 3 03 List or Intraagency Agreement attached
❑ If over $50,000 — has City Manager's signature
® Contract dated and signed by all parties
® All Exhibits complete and attached
❑ Any changes initialed by both parties
Sandie Frakes, ext 5249
Name/Extension
City Attorney's Office
Date: 2/29/16 '
2711 V;'o ✓.b
,q4M i.J
G AttyMisc/Contract Forms/City Clerk Transmittal
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Master Subscription Agreement
This agreement governs your acquisition and use of our services
This Master Subscription Agreement ("Agreement") is between
(1) Apply4 Technology, registered in Florida, with principal office located at 19046 Bruce B
Downs Blvd , Suite 207 Tampa, Florida 33647 ("Service Provider") and
(2) The City of Huntington Beach ("Customer") with offices located at 2000 Main Street
Huntington Beach, California 92648 (together known as "The Parties" or "Parties") This
Agreement is effective as of the Commencement Date
WHEREAS
(1) The Service Provider hosts and provides access to the Services described herein its capacity
as a Service Provider
(2) The Customer wishes to access the Services described herein as hosted by the Service
Provider under a non-exclusive License, from a remote location, in return for the payment of
a monthly fee and subject to the terms and conditions of this Agreement
IT IS AGREED as follows
1 Definitions and Interpretation
11 In this Agreement, unless the context otherwise requires, the following expressions
have the following meanings
"Adaptations" means any customization or changes to the text, design or
functionality of the Application Software that have been
specifically requested by the Customer
"Application Software" means the selected software provided by the ASP which
shall be available to the Customer, as set out in Schedule 1
of this Agreement,
"ASP" means Application Software Provider
s
"ASP Infrastructure" means the Service Provider's hosted computer hardware,
firmware, software and communications infrastructure
which is used to facilitate access to the Application
Software by the Customer,
"Business Day" means any day other than Saturday or Sunday that is not a
bank or public holiday,
"Business Hour" means any time between 09 30am and 5 30pm on a
Business Day,
"Commencement Date" means the date on which the Customer executes an Order
Form referencing this Agreement
"Confidential Information" means all business, technical, financial or other
information created or exchanged between the Parties
throughout the Term,
"Customer Computer means the Customer's computer hardware, firmware,
Systems" software and communications infrastructure through and
on which the Applications are to be used,
"Customer Data" means any data belonging to the Customer or to third
parties and used by the Customer under license which is
created using the Application Software or otherwise stored
in the ASP Infrastructure,
"End Users" means parties entering and uploading information via the
Application Software with the express purpose of obtaining
a film permit (i a producers, production assistants,
location scouts, etc )
"Fees" means the sums payable by the Customer in accordance
with clause 4 in return for access to the Application
Software, the ASP Infrastructure and support services
provided by the Service Provider in accordance with Clause
12 and the Order Form
"FilmApp Website" means www FilmApp com
"Intellectual Property means all vested contingent and future intellectual
Rights" property rights including but not limited to copyright,
trademarks, service marks, design rights (whether
registered or unregistered), patents, know-how, trade
secrets, inventions, get-up and database rights,
"Non -Customer User" means a non -employee of the Customer who may not use
the Service in the absence of written consent from the
Service Provider as per sub -Clause 10 3
"Order Form" means the ordering documents for purchases hereunder,
including addenda thereto, that are entered into between
the Service Provider and Customer from time to time
Order Forms shall be deemed to be contained herein by
reference Order Forms will be attached as Schedule 3
"Service" means, collectively, the Application Software, ASP
Infrastructure and support services provided by the Service
Provider to the Customer outlined in Schedule 1
"Term" means the term of this Agreement as defined in clause 3 1
"Upgrades" means any and all upgrades and developments to the
Application Software and the ASP Infrastructure (exclusive
of hardware) created using the specifications developed
under this Agreement
"Users" means an employee of the Customer who shall, from time
to time, access the Applications through the ASP
Infrastructure
"User Guide" means the PDF document entitled "How to use FilmApp" as
updated from time to time and available on the FilmApp
website
12 Unless the context otherwise requires, each reference in this Agreement to
1 2 1 "writing", and any cognate expression, includes a reference to any communication
effected by electronic or facsimile transmission or similar means,
122 a statute or a provision of a statute is a reference to that statute or provision as
amended or re-enacted at the relevant time,
123 "this Agreement" is a reference to this Agreement and each of the Schedules as
amended or supplemented at the relevant time,
124 a Schedule is a schedule to this Agreement and
125 a Clause, sub -Clause or paragraph is a reference to a Clause of this Agreement
(other than the Schedules) or a paragraph of the relevant Schedule
13 The headings used in this Agreement are for convenience only and shall have no effect upon
the interpretation of this Agreement
14 Words imparting the singular number shall include the plural and vice versa
15 References to any gender shall include the other gender
The Service
2 1 The Service Provider shall, with effect from the Commencement Date, provide the Service as
outlined in schedule 1 to the Customer on a non-exclusive basis for the duration of the Term
of this Agreement and in accordance with the terms and conditions of this Agreement
22 The Service Provider shall provide access to the Application Software through the ASP
Infrastructure and shall use its best and reasonable endeavors to ensure that such access is
available, without interruption, 24 hours a day, 7 days a week, 365 days a year This
undertaking shall be subject to the exceptions contained in Clauses 4, 18 and 19 of this
Agreement
23 The Service Provider's responsibilities shall include technical support to the Customer at no
additional charge, and/or additional support (including any technical support requested by
Customer) Any costs related to the additional technical support must be pre -approved in
writing by the Customer
24 The Customers responsibilities shall include i) Users compliance with this Agreement, 11)
compliance and accuracy, quality, integrity and legality of the Customer Data (such as terms
and conditions of filming) and of the means by which it acquired Customer Data, lii) to use
the Application Software and services in compliance with any applicable laws and
government regulations and iv) to ensure that Users do not sell resell, rent or lease the
Service to other third parties
Term
31 The Service will be provided by the Service Provider as a yearly subscription during the term
of this agreement (the "Term"), which shall commence on the "Implementation Date" and
will continue until the "Contract End Date" as defined in the relevant Sales Order Form
attached to this Agreement as Schedule 4 unless otherwise terminated in accordance with
Clause 19 of this Agreement
32 Yearly subscription pricing during the term will be based on the number of "Film Days" used
during the prior year and is defined in the relevant Price Sheet attached to this Agreement
as Schedule 5 The Service Provider will proved a written notice of pricing at least 60 days
before the end of that prior year Customer will accept in writing no less than 30 days
before the end of the prior year, in which case the price will be effective for the following
year
4 Fees and Payment
41 The Fees due for the Service are specified under Terms and Conditions in the relevant Sales
Order Form attached to this Agreement as Schedule 4
42 The Customer shall pay to the Service Provider all Fees due within 30 days of the invoice
date unless otherwise specified in the relevant Order Form to this Agreement
43 In the event that the Customer does not pay all Fees due within the time period specified in
sub -Clause 4 2 above, the Service Provider shall be permitted to suspend the Customer's use
of the Service by whatever means it deems appropriate, subject to written warning to the
Customer
44 The Service Provider shall not exercise its rights under 4 3 if the charges are under good faith
dispute and the Customer is cooperating diligently to resolve the dispute
45 Unless otherwise stated, the Service Provider's Fees do not include any taxes, duties, or
similar government assessments of any nature including value added or sales tax Customer
is responsible for paying all applicable taxes associated with its purchase hereunder The
Service Provider is solely responsible for taxes assessable against it based on its income,
property and employees
The Applications
5 1 The Application Software to which the Customer shall have access is detailed in Schedule 1
to this Agreement
52 Third party providers are not currently supported within the Service Provider's services
Should this situation change (e g the Service Provider begins using Google Maps or similar
web services) then the Customer acknowledges the Service Providers right to include or
cease to include such services without entitling the Customer to any refund or credit
Training
61 Our experience has shown that administrators find the Application Software easy to use and
minimal training is needed to get started The Service Provider shall provide User Guide and
telephone help to all Users throughout the Term during office hours as described in this
Agreement as 9am Pacific time - 5pm Pacific time
62 Service Provider agrees to provide initial telephone, web based and/or in -person training for
Customer and Customer's staff or designees as requested at additional cost as agreed in
writing by both parties
7 Data Security and Protection
71 The Service Provider shall ensure that at all times the ASP Infrastructure includes first-class
industry standard firewalls, encryption and security measures sufficient to reasonably
ensure Customers Data is not intercepted or obtained by unauthorized third parties
72 The data security and protection measures taken by the Service Provider are detailed in
Schedule 3 to this Agreement
8 Maintenance
81 The Service Provider shall be responsible for all maintenance and upgrades to the ASP
Infrastructure, which may from time to time be required
82 Subject to the provisions of Clause 11, the Customer, shall handle all maintenance and
upgrades to the Customer Computer Systems which may from time to time be required
83 Unless maintenance is corrective in nature, maintenance shall only take place at scheduled
times The scheduled maintenance times under this Agreement shall be on weekends
(Saturday or Sunday) Corrective maintenance shall be undertaken as and when required
84 Unless maintenance is corrective in nature, the Service Provider shall provide at least 24
hours' notice of any maintenance which may affect the Customer's
use of the Service The Service Provider shall use its best and reasonable endeavors to
provide as much notice as possible in the case of corrective maintenance, however advance
notice may not always be possible
85 Where maintenance will disrupt the Service, the Service Provider shall aim to complete all
necessary work within 4 Business Hours or as soon as possible thereafter where resolution in
that time is not possible Service Provider will notify Customer once every hour during the
disruption with updates regarding the expected time of resolution and the plan to remedy
Service Provider shall also post a notice on the FilmApp website notifying End Users and
Users of the disruption and a link to the manual entry page
86 Service Provider shall work with Customer to ensure that a manual entry feature is added to
the ASP infrastructure for use during any disruption of Service
9 Software Licenses
91 The Customer shall use the Application Software under a non-exclusive, non- transferrable
license, as set out in this Agreement This license permits a maximum number of Users and
End Users (as detailed in the Order Form) to access the Application Software at any given
time and such access is only permitted through www filmapp com/adman (The Customer
User portal) and www filmapp com/city/ (the End User portal)
92 Where software is the property of a third party, the Service Provider warrants that they have
all requisite authority to sub -license such applications to the Customer for the purposes of
this Agreement and for use under its terms
10 Applications and ASP Infrastructure Terms of Use
101 End Users' and Users' access to the Application Software and the ASP Infrastructure shall be
controlled by means of a Username and Password
102 Should the Customer require an increased maximum number of End Users or Users, such an
increase shall be permitted at the exclusive discretion of the Service Provider The Service
Provider reserves the right to increase Fees proportionately, in accordance with Schedule
1,in the event of an increase in the maximum number of Users
103 Use by Non -Customer Users is not permitted under this Agreement in the absence of
express written consent from the Service Provider, such consent not to be unreasonably
withheld The Service Provider may require such details as the reason that access to the
Application Software and ASP Infrastructure is required by the Non -Customer User, details
of the Non -Customer User and other information which may be specified from time to time
104 The Customer shall use the Service exclusively for the purposes of carrying on its business of
providing filming permits (or similar) to film makers
105 The Customer may only access the Application Software detailed in Schedule 2 to this
Agreement No access to other parts of the ASP Infrastructure shall be permitted in the
absence of express written permission from the Service Provider
106 The Customer is exclusively responsible for its use of the Service, including the conduct of
Users and Non- Customer Users and must ensure that all use is in accordance with this
Agreement The Customer shall notify the Service Provider immediately of any breaches of
this Agreement by any End Users, Users or Non -Customer Users
107 Access to the Application Software is only permitted through the adman portal via the ASP
Infrastructure Under no circumstances may the Customer download, store, reproduce or
redistribute the Application Software or any other part of the ASP Infrastructure, without
first obtaining the express written permission of the Service Provider
108 The Customer's use of the Application Software and ASP Infrastructure may, from time to
time, be governed by statutory or regulatory rules and requirements external to the terms
and conditions of this Agreement It shall be the Customer's exclusive responsibility to
ensure that their use of the Service is in compliance with any such laws
109 The Customer's use of the Service shall be subject to the following limitations, any of which
may be waived by the Service Provider giving their express written consent
10 9 1 The Customer may not use or redistribute the Application Software or the ASP
Infrastructure for the purpose of conducting the business of an Application
Service Provider,
10 9 2 The Customer may not redistribute or reproduce the Application Software or the
ASP Infrastructure through any network, and
10 9 3 The Customer may not allow any unauthorized third party to access the Application
Software or the ASP Infrastructure
1010 Neither the Customer, nor anyone on their behalf may, in the absence of written consent
from the Service Provider
10 10 1 Make changes of any kind to the Application Software or the ASP
Infrastructure, or
10 10 2 Attempt to correct any fault or perceived fault in the Application Software or the
ASP Infrastructure
1011 Service Provider shall install and provide maintenance and technical support for any and all
Upgrades to the Application Software, ASP Infrastructure and other related Service Provider
systems created using the specifications developed under this Agreement whether created
for the Customer or another party Service Provider shall provide Customer with a non-
exclusive, non- transferable, license to use Upgrades at no additional cost during the Term of
this Agreement or during any additional terms agreed to by the parties
11 Customer Computer Systems
111 The Customer is expected to have sufficient bandwidth access to the internet, and to use
compatible to industry standard browsers such as Microsoft I E , Google Chrome, Mozilla
Firefox or similar, and for these to be reasonably up to date versions (within S years of
version release) (for example Application Software is currently compatible to I E v8)
112 In the event of any unauthorized access by the Customer of Application Software or the ASP
Infrastructure, in breach of sub -Clause 10 3 or otherwise the Service Provider shall be
entitled to terminate access indefinitely or temporarily as it deems appropriate and to
terminate this Agreement in accordance with Clause 19 below Service Provider shall notify
Customer of the breach and provide a timeframe for resolution and reactivation of service, if
possible
113 The Customer shall ensure that no Customer Computer Systems are connected to a third
party ASP Infrastructure or other service, communications system or network in such a way
that the Service may be accessed by unauthorised third parties
114 Service Provider shall work with Customer to create an online payment feature to be hosted
on the FilmApp website
12 Support
121 The Service Provider shall provide telephone and email support services during their normal
business hours of 9am Pacific time to 5pm Pacific time on Business Days The support
provided by the Service Provider shall relate to the Applications, ASP Infrastructure,
maintenance and other support as requested by Customer Any problems which are related
to Customer Computer Systems must be resolved by the Customer's own support staff
122 In addition to the standard support provided for in sub -Clause 12 1, the Service Provider
shall also provide emergency email support services outside of their normal business
hours (support@filmapp com)
123 When seeking support the Customer shall use its best and reasonable endeavours to provide
the fullest information possible to aid the Service Provider in diagnosing any faults in either
the Application Software or the ASP Infrastructure
124 The Service Provider shall aim to resolve all support problems within 4 Business Hours or as
soon as possible thereafter where resolution in that time is not possible Service Provider
shall also provide notice to Customer of all support problems
125 Whenever possible, the Service Provider shall provide a workaround solution to the
Customer to enable the Customer's continued use of the Service or to enable use that is as
commercially reasonable as is possible under the prevailing circumstances
13 Intellectual Property
13 1 Subject to sub -Clause 13 2 all Intellectual Property Rights subsisting in the Application
Software and the ASP Infrastructure, including any supporting software and documentation
which User Manuals are the property of the Service Provider For the purposes of this
Clause 13, 'Applications' and 'ASP Infrastructure' along with supporting software and
documentation are taken to include the manner in which all such material is compiled and
presented Each upgrade is accompanied by an updated User Manual, which is copyright
protected
132 Where expressly indicated, the Intellectual Property Rights subsisting in the Application
Software including any supporting software and documentation may be the property of
named third parties Service Provider agrees to obtain all permissions related to use of any
third party properties
133 The Customer shall not either during the Term or after the expiry of this Agreement permit
or cause to occur any infringement of any Intellectual Property Rights covered by this Clause
13 Use by the Customer and its employees of the Service shall be only within the terms of
this Agreement
134 The Customer shall not, in the absence of the Service Provider's written consent, reproduce,
adapt, translate, reverse -engineer, or make available to any third party any of the
Application Software, any part of the ASP Infrastructure, or any other material associated
with this Agreement where such activity goes beyond the scope of actions permitted by the
terms and conditions of this Agreement
135 If the Customer receives an allegation of any breach of Intellectual Property Rights covered
by this Clause 13 it shall be under a duty to inform the Service Provider of such breach
immediately
14 Customer and End User Data
141 Subject to sub -Clause 14 2 all Intellectual Property Rights subsisting in Customer Data are
and shall remain the property of the Customer
142 Certain Customer Data may belong to third parties In such cases, the Customer warrants
that all such Customer Data is used with the consent of relevant third parties Service
Provider shall post a notice informing the End Users and Customer Users that their data may
be provided to the creator of FilmApp
143 The Service Provider may use data supplied by film companies/End Users to the Customer
only to distribute marketing and user information about the Service Provider and to collect
customer service feedback Service Provider shall also create an "opt -in box" for End Users
to consent to receiving materials from the Service Provider Service Provider is not allowed
to supply any Customer Data to third parties The Service Provider shall not sell, rent or
otherwise distribute the Customer Data or compile any reports or lists including the
Customer Data for external distribution
15 Confidentiality
151 During the Term of this Agreement and after the termination or expiration of this
Agreement for any reason, the Service Provider shall use its best and reasonable endeavours
to ensure that all Customer Data is kept secure and confidential The Service Provider shall
not, in the absence of express written consent from the Customer, disclose Customer Data
to any third party unless such disclosure is required by law in which case the Customer shall
be notified in writing of the disclosure
152 During the Term of this Agreement and after termination or expiration of this Agreement for
any reason for a period of one year, the following obligations shall apply to the Party
receiving Confidential Information (the "Receiving Party") from the other Party (the
"Disclosing Party")
153 At the end of the Term, except for responding to audits or Open Records requests, the
Service Provider shall not store or otherwise catalogue Data collected unless otherwise
directed by Customer
154 Subject to sub -Clause 15 5, the Receiving Party
15 4 1 may not use any Confidential Information for any purpose other than the
performance of their obligations under this Agreement,
1542 may not disclose any Confidential Information to any third party except with the
prior written consent of the Disclosing Party, and
15 4 3 shall make every effort to prevent the unauthorized use or disclosure of the
Confidential Information
155 The obligations of confidence referred to in this Clause 15 (excluding sub- Clause 15 1) shall
not apply to any Confidential Information that
15 5 1 is in the possession of and is at the free disposal of the Receiving Party or is
published or is otherwise in the public domain prior to its receipt by the Receiving
Party,
1552 is or becomes publicly available on a non -confidential basis through no fault of the
Receiving Party,
1553 is required to be disclosed by any applicable law or regulation, or
1554 is received in good faith by the Receiving Party from a third party who, on
reasonable enquiry by the Receiving Party claims to have no obligations of
confidence to the Disclosing Party in respect thereof and who imposes no
obligations of confidence upon the Receiving Party
156 The obligations of the Parties under all provisions of this Clause shall survive the expiry or
the termination of this Agreement irrespective of the reason for such expiry or termination
157 Customer and Service Provider understand and agree that this Agreement may be subject to
Open Records Acts Requests
16 Liability
161 The Service Provider shall not be liable to the Customer for any indirect or consequential
loss the Customer may suffer related to the Agreement even if such loss is reasonably
foreseeable or if the Service Provider has been advised of the possibility of the Customer
incurring it
162 The Service Provider's total liability to the Customer in respect of all and any breach of its
contractual obligations, all and any breach of warranties, or any representations, statement
or tortious act or omission including negligence arising under or in connection with this
Agreement shall be limited to $50,000
17 Indemnity
171 The Service Provider shall defend and hold harmless Customer and Customer's employees
against any claim, demand, suit or proceedings made against Customer by a third party
alleging that the use of the services as permitted hereunder infringes or misappropriates the
Intellectual Property Rights of a third party, and shall indemnify Customer for any damages
finally awarded against and for reasonable attorney fees incurred by Customer in connection
with any such claim, provided that the Customer shall, as soon as reasonably practical give
the Service Provider written notice of the claim, and the Customer shall give sole control of
the defense and settlement of the claim The Customer agrees to provide all reasonable
assistance at the Service Provider expense
172 As permitted by law, the Customer, but specifically not its affiliates, shall defend and hold
harmless the Service Provider and the Service Provider's employees against any claim made
or bought against the Service Provider by a third party alleging that the use by the Service
Provider of Customer Data or Customer's use of the service in violation of this Agreement
infringes or misappropriates the Intellectual Property Rights of any third party or violates
applicable law and the Customer shall indemnify the Service Provider for any damages finally
awarded against and for reasonable attorney fees incurred by the Customer in connection
with any such claim, provided that the Service Provider shall, as soon as reasonably practical
give the Customer written notice of the claim
18 Force Majeure
181 Service Provider and Customer shall be allowed to suspend their obligations under this
Agreement for the duration of such Force Majeure event and for a reasonable period
thereafter to permit the parties to commence or recommence performance Service
Provider and Customer shall have the right to terminate this Agreement by written notice if
a suspension of service due to an event of Force Majeure exceeds three weeks
1B 2 Force Majeure refers to any event that is beyond the reasonable control of the parties and
includes, but is not limited to power failure, internet service provider failure, industrial
action, civil unrest, theft, fire, flood, storms, earthquakes, acts of terrorism, acts of war,
governmental action or any other event that is beyond the control of the Party in question
19 Termination
191 The Service Provider reserves the right to terminate this Agreement or to suspend the
Service upon 30 days written notice to the Customer in the following circumstance
1911 If the Customer fails to pay Fees due under Clause 4 of this Agreement,
1912 If the Customer is in breach of the terms of this Agreement,
192 The Customer reserves the right to terminate this Agreement upon 30 days written notice to
the other party in the following circumstances
1921 No refund will be given for anytime remaining on current contract,
193 Upon Termination of this Agreement Customer agrees to destroy all copies of User Manuals
and supporting documentation it has in its possession
20 Notices
201 All notices under this Agreement shall be in writing and shall be provided to the contacts
designated by Customer and/or the Service Provider as appropriate
202 Notices shall be deemed to have been duly given
20 2 1 when delivered, if delivered by courier or other messenger (including registered
mail) during Business Hours of the recipient, or
20 2 2 when sent, if transmitted by fax or e-mail and a successful transmission report
or return receipt is generated, or
20 2 3 on the fifth business day following mailing, if mailed by national ordinary mail,
postage prepaid, or
20 2 4 on the tenth business day following mailing, if mailed by airmail, postage prepaid
203 In each case notices should be addressed to the most recent address, e-mail address, or
facsimile number notified to the other Party
21 Relationship of Parties
Nothing in this Agreement shall create, or be deemed to create, a partnership, the
relationship of principal and agent, or of employer and employee between the Service
Provider and the Customer
22 Assignment
Neither Party shall assign, transfer, sub -contract, or in any other manner make over to any
third party the benefit and/or burden of this Agreement without the prior written consent of
the other, such consent not to be unreasonably withheld
23 Severance
The Parties agree that, in the event that one or more of the provisions of this Agreement is
found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be
deemed severed from the remainder of this Agreement The remainder of this Agreement
shall be valid and enforceable
24 Entire Agreement
241 This Agreement embodies and sets forth the entire agreement and understanding between
the Parties and supersedes all prior oral or written agreements, understandings or
arrangements relating to the subject matter of this Agreement Neither Party shall be
entitled to rely on any Agreement, understanding or arrangement not expressly set forth in
this Agreement, save for any representation made fraudulently
242 Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be
varied only by a document signed by both of the Parties
25 Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision
in this Agreement shall constitute a waiver of the right to subsequently enforce that
provision or any other provision of this Agreement Such failure shall not be deemed to be a
waiver of any preceding or subsequent breach and shall not constitute a continuing waiver
26 Non -Exclusivity
The relationship between the Parties under this Agreement is and shall remain non-
exclusive Both parties are free to enter into similar relationships with other parties
27 Proprietary Rights
271 Subject to the limited rights expressed herein, the Service Provider reserves all rights title
interest in the services and Application Software provided including all Intellectual Property
Rights No rights are granted to Customer hereunder other than expressly set out herein
272 Customer exclusively owns all rights, title and interest in or has the exclusive right to use the
Customer Data and End User data
273 The Service Provider shall have a royalty free, worldwide, transferable sublicencable,
irrevocable, perpetual license to use or incorporate into the services any suggestions,
enhancements, requests, recommendations, or other feedback provided by Customer
relating to the provision of services
274 Customer reserves the right to retain and archive Customer and End -User suggestions,
enhancements, requests, recommendations, or other feedback related to the online film
permitting process for Customer's future use This right does not include any rights to
Application Software or ASP Infrastructure
28 Governing Law
281 This Agreement and any disputes arising out of or related hereto shall be governed
exclusively by the internal laws of the State of California
282 The state courts located in County of Orange, State of California shall have exclusive
jurisdiction to adjudicate any dispute arising out of or relating to the Agreement Each party
consents to the exclusive jurisdiction of such courts
29 Counterparts
This Agreement may be executed by facsimile and in counterparts which taken together
shall form one legal instrument
{Signature Page Follows}
ACCEPTED AND AGREED
CUSTOMER
Name The City of Huntington Beach
Signa re
Title &gets jon+ cl� M A,(IA 1p,—
Date
Apply4 Technologies
Name GregoryJ Schwanzl
Signature
Title Managing Director
Date a / ,a-1 i.
APPROVED AS TO FORM
Gstes, City Attorney j)jw
Recetys#nd P e
City Clerk
Schedule 1- FilmApp, EventApp,
WorksApp Service Description
CONTENTS
Overview of FilmApp, EventApp and MarketApp
On -boarding
Training
Service management details and service constraints
Service levels and refunds
Ordering and invoicing process
Data migration upon termination
Client responsibilities
Technical requirements
2
2
3
IMPORTANT NOTES
FilmApp, EventApp, and WorksApp can be purchased separately or together
At the time of writing, MarketApp is currently under development, it is expected to
become available early in 2016.
OVERVIEW OF FILMAPP, EVENTAPP, and WORKSAPP
These are online programs used by public bodies for receiving, processing and reporting on
applications for film or event licences No additional software or local storage is necessary,
and they are accessible from any device in any location with an Internet connection
They are a modern solution to replace old-fashioned application processes which are time-
consuming, paperwork -heavy and not what today's customers are coming to expect
applY14.c vur-,U,
itr�+ arofile
Each application is made up from 4 data sets (m blue on left side) The data sets
are of two types, constant or variable Constants (m yellow) are supplied to the
administrator as pre stored profiles (like Facebook profiles) Variables (m green),
are different for each application Outcomes are shown in purple on the nght
For film, event and Public Works officers, they collect and store all the application details
securely in one place Keeping on top of the applications is made easy by workflow
management features including reminders, calendars and activity logs Collaboration
between colleagues and other departments like parking is made easy by granting them
access to the application details online Detailed report options are also available
For applicants, they make the application process easy and accessible with an online form,
and they can then check its status online All relevant guidance is also made available to the
applicant throughout, and their details can be saved for future applications As more public
bodies adopt these services, the process becomes more standardised for applicants — to
date FilmApp is used by 23 London boroughs, 2 non -London UK authorities, and 2 US local
authorities However, the licenses, invoices and conditions that are issued can still be
unique to each client
ON -BOARDING
Getting you setup is quick and easy No additional software or equipment is necessary —all
you need is access to the internet using a browser like Internet Explorer (IE8 or later),
Mozilla Firefox or Google Chrome
All we need to do is create a 'microsite' for you This is where applicants will come to apply
to you for a license, and although it uses a standard template it is unique to each client in
some aspects of its appearance and functions
To customise your home page we will need from you the logos, graphics and text you
would like to use, and also links to any relevant guidance or documents for applicants
• So that you can use our services to issue your own licenses and invoices and set your
own standard conditions, we will need from you the details of these
• To save you time, we will upload your contact lists and venue/location lists for you We
will need you to provide us with those
TRAINING
These services are intuitive and easy to use We have successfully trained all of our clients
using their microsites at the start of the contract They are simple enough that after the
initial "train the trainer" type training, our clients are able to train new staff themselves
To get the quickest return on your investment, we highly suggest the on -site training option
We will come to your office to do the initial training using your new microsite We will take
your staff through various scenarios, and will provide a detailed handbook complete with
screenshots and step-by-step instructions If your staff still have questions, you can always
give us a call and we will help
SERVICE MANAGEMENT DETAILS AND SERVICE CONSTRAINTS
Once we have set up your microsite and you have completed training, you should be able to
use FilmApp, EventsApp, and WorksApp independently Of course we remain available to
troubleshoot for you and resolve any issues you might have with the service We work very
closely with our developers to resolve issues as quickly as possible
We strive to build close working relationships with our clients, and we are continually
developing the services on based on your feedback We occasionally invite clients to
meetings with our developers to discuss future improvements
Clients' microsites use a standard template, which allows for the customisations outlined in
'Getting Started with FilmApp and EventApp' documents These customisations are included
in the initial set-up fee However, if you would like specific customisations, this can be
negotiated for a separate fee — see the pricing document for more details
SERVICE LEVELS AND REFUNDS
These services are available around -the -clock with no scheduled periods of downtime.
Unless it is beyond our control, if the service is affected by downtime we will compensate at
a pro rata rate based on your subscription fee
ORDERING AND INVOICING PROCESS
We invoice our clients manually at the start of the agreement, and on each anniversary
thereafter We ask clients to pay us within 30 days of receiving the invoice
DATA MIGRATION UPON TERMINATION
If our agreement is terminated, you will have the opportunity to download a complete
backup of your data within 30 days of termination After 30 days, all client and user data
will be deleted from our system and servers
CLIENT RESPONSIBILITIES
Our clients are not to use the services for anything other than their intended purpose and
are not to attempt to copy any part of them
TECHNICAL REQUIREMENTS
No additional software or local storage is necessary, and the services are accessible from
any device in any location with an internet connection
Internet Explorer 8 is the oldest internet browser which can support our services If you
have an older version, you can easily update it for free on the Microsoft website
4 Ai
Schedule 2
FilmApp, EventApp, WorksApp Limits
to Service
t- I IIIII
u ( u
I�
x R M
FilmApp, EventApp, and WorksApp are application management services
Client Access (Clause 10 5 of the Agreement)
The client has sole access to their private administration area via login ID and Password
(Example) URL https //www XxxApp apply4 com/adman/
and through this has exclusive right to manage content on their microsite
(Example) URL https //www XxxApp apply4 com/clientatyname/
Appy4 Staff Access
Apply4 staff have administrator access to these sites and to the data stored on the sites, for
maintenance and troubleshooting purposes only
For clients using the Online Payment Gateway Module, Apply4 staff may require "developer
level" access to your payment gateway account This access is for maintenance and
troubleshooting purposes only
Apply4 staff Contractual Privacy Agreement
• Apply4's employment contracts include confidentiality provisions that prohibit us
from disclosing customer confidential information, including customer and end user
data, except under certain narrowly defined circumstances, such as when required
by law
• FilmApp, EventApp, and WorksApp employees agree not to access customer's
accounts, including customer data, except to maintain the service, prevent or
respond to technical or service problems, at a customer's or end user's request in
connection with a customer support issue, or where required by law
Schedule 3-
Security Overview
Apply4 Technology Ltd is a software as a service (SaaS) provider for authorities to
manage application processes Our portfolio includes FilmApp our flagship product,
EventApp, and WorksApp
Collectively, there are over thirty five instances our product offerings installed in
twenty five authorities in the UK and three authorities in the USA
We understand the importance of our clients being able to trust our system as
being reliable and secure To ensure we are able to meet the high standards
expected, xAe have taken the steps that we believe have created a robust, resilient
and dependable system This document outlines the key parts of our security
system Where questions arise about our approach we are always happy to provide
answers
When required and appropriate we can design and offer alternative physical
hosting environments and security methods Additional fees would apply
Technology
Physical Environment
Apply4 Technology's products are hosted on public servers managed by our
hosting partner EveryCity Ltd All data, including backups, are stored in the UK
in two locations
Primary datacenter.
Offsite backups
Interxion
The Bunker
11 Hanbury Street
Ash Radar Station
London
Marshborough Road
E1 6QR
Sandwich, Kent
CT13 OPL
*If a client would prefer their data to be hosted and reside in another location, i e
on a USA based public cloud server such as Amazon Web Services or Joyent, we
are happy to work with them to put this setup in place The following storage,
security and cloud backup information would need to change and would not be
available until we configure the hosting service
The server's configuration and environment include
• Hardware The servers are Dell PowerEdge with redundant PSUs into
separate PDUs that are in turn routed through separate UPS rooms and
diesel generators All servers are configured with RAID (ZFS RAID at the
Hypervisor layer) Two network connections are bonded together via
802 3ad Link Aggregation, connected into two separate switch fabrics,
routed to two diverse routers for full network redundancy
• Power The data -center is provided with 2 separated lines Each server
is powered by 2x PDUs
• Routers EveryCity Ltd operates two Juniper MX routers, with multiple
links to various transit providers
• Switches EveryCity Ltd operates two separate virtual -chassis Juniper EX
stacks for redundancy, all servers connect to both stacks and do 802 3ad
NIC Teaming
• Connectivity Dual -entry fibre from two separate carrier main routes and
SLA-based cross connect to connect to customers and suppliers that
need reached
• Power A secured supply is used with two power feeds for all equipment,
each independently equipped with UPS and generator backup with full
load capacity for indefinite running
• Climate SLAs on temperature and humidity in line with ASHRAE
recommendations, N+1 cooling, sophisticated water and smoke
detection systems, advanced fire suppression in line with local
regulations and designed for maximum safety and minimum damage "
Resilience
The servers are monitored twenty four hours a day, seven days a week and alarms
are in place to protect critical systems following best practice set by the
ITILv3framework These include both internal checks and external checks
performed from a separate network as part of a Nagios monitoring system Alerts
from these checks are sent to the EveryCity Network Operations Center and can
be configured to be sent to third parties on request Performance statistics are
produced as part of the monitoring process including core server vitals such as
CPU, memory and disk space These are available in graph form
Security patches are updated weekly, every Sunday at 0300 GMT
Emergency resilience support is provided all day, three hundred and sixty five days
a year with routine support offered Monday to Friday, 0900 to 1800 GMT
Data Security, Backup, and Compliance
Data Security
All information while on the move between the browser and FilmApp is protected
from eavesdroppers with 256-bit SSL encryption The lock icon in your browser lets
you verify that you aren't talking to a phishing site impersonating FilmApp and that
your data is secure in transit
To ensure data at rest contained on the server is protected, we operate a
dedicated virtual server in a cloud environment Only Apply4 Technology client
data is stored within this virtual server
Your data is stored alongside other Apply4 Technology client data within this
server The data is prevented from mixing with other client information by the
FilmApp application code Data is always stored on the file system and in our
database using a unique client ID and is strong password protected When you log
in, your unique client ID is used to determine what information is displayed Our
application code ensures you can never access other client data, and other clients
cannot access your data We also use permission levels and sharing rules to
separate information within each client data set
While we hold all data during the life of a contract, the authority retains all
ownership of its data Our Master Subscription Agreement with each authority
outlines this in full The Master Subscription Agreement also sets out that clients
would be notified via email as soon as possible following any breach of their data
*Different levels of additional protection can be provided if required For example,
we could provide a dedicated virtual server for you, which runs a copy of the
FilmApp application code, but with only your data stored on this virtual server
Cloud Data Backup
We have a daily incremental backup procedure with data retained for a fourteen
day period Each hour a ZFS snapshot is taken of the physical hosts, which are
kept for twenty four hours before being securely deposited A further snapshot is
taken daily of the server locally, and then sent over an encrypted dedicated leased
line to ouroffsite backup facility to a Hard Disk based backup storage array These
backups are kept for 14 days
Backups are fully integrated into EveryCity's Hypervisor, so there is little room for
operator error When a new VM is provisioned, its file system is automatically
snapshotted as the backup script snapshots all file systems on the server We can
roll back a SmartOS Zone or Windows/Linux VM to a snapshot held locally on a
physical host within seconds so long as the data is still held To restore from
further back, we would need to transfer the backup from the offsite location and
may take longer
Log files of backup jobs are kept on the server for 30 days Backups are
performed to disk and their success status is monitored Failed disks are kept on -
site until they can be securely destroyed by a certified data destruction company
Removal of any media that has not been securely erased is expressly forbidden
by EveryCity's Information Security Policy
We would be happy to set up a simulated scenario of the loss of a server to show
the recovery process in action
Optional On -site Data Backup
We understand to meet compliance standards, you may require to a copy of all
data to be kept on your local servers We are happy to help,
Our On -site backup module allows you to download and store a complete backup
of information from all applications on your server in usable formats You set the
interval of how often to get this backup (daily, weekly, etc)
Of course, this is a backup the data you own, our source code is not included
Email Compliance
Many authorities have statues stating any email pertaining to municipal business
needs to "touch" their email server at some point
By design, our messaging system utilizes both the client's email server as well as
our internal email server (inbound requests and replies to notifications are directed
to client email addresses, outbound notifications are sent from our internal email
server) To account for the outbound notifications "touching" the client's server, we
have created a compliance email field within the message system You create a
generic address such as filmapp compliance(aD-yourcity gov and enter it into the
compliance email field once This email address will receive a copy of all email
sent from our email server
Policies
Contractual Privacy Protection for Customers
Apply4's employment contracts include confidentiality provisions that prohibit us
from disclosing customer confidential information, including customer and end user
data, except under certain narrowly defined circumstances, such as when required
by law
Apply4 Technology, LLC employees agree not to access customer's accounts,
including customer data, except to maintain the service, prevent or respond to
technical or service problems, at a customer's request in connection with a
customer support issue, or where required by law
Code of Conduct, Confidentiality Agreements, and Information Security
Policies
Every Apply4 Technology; LLC employee and contractor must follow Apply4's
code of conduct, sign confidentiality agreements and follow Apply4's security
policies
Conclusion
We understand that having confidence that secure and resilience systems are in
place is vital for our partners Our goal is to ensure that Apply4 Technology's
application management systems are able to fully meet your needs While this
document provides a snapshot of the protection that is in place using our standard
hosting provider, we are always willing to discuss our approach and work with
partner communities to make sure that we are able to meet their individual needs
EveryCity can provide their full Information on Security Policy, Privacy Policy,
Removable Media Policy and latest Wireless Access Point Security Audit upon
request
* We would also obtain this information as part of any due diligence before
establishing a relationship with any other cloud service provider
Bill To
The City of Huntington Beach
Sales Order
# 20160014
Creation Date
Expiry Date
1 One Set Up Fee 1 00 000
Setup and Provisioning of FilmApp Huntington Beach Authonty(i
es)
No Charge - AFCI 2015 Locations participant discount
February 11, 2016
March 31, 2016
000
2 On -Site Training / Consulting
1 00
000
000
* Daily Fee for 8 hours training and consulting
Day(s)
No Charge - AFCI 2015 Locations participant discount
3 Credit Card Payment Gateway Integration
1 00
89500
89500
Development and deployment of FilmApp Huntington Beach credit
Authority(i
card gateway
es)
4 FilmApp - Hosting, Maintenance, and Upgrades (101-200 Film Days
1 00
67500
67500
per Year)
Year(s)
Client Administrative Dashboard
Administrative Users are entitled to use the FilmApp administrative
back office dashboard Then Limber of Administrative Users is
unlimited
User Portal
This portal is used by any person (User) who wishes to apply to the
client for permission to film There are no restrictions on the amount
of end users who want to use the portal
Sub Total
1,57000
Total
- c $1,570 00
_ Fw
-
Notes
*Travel, Hotel and Meals for Apply4 training staff not included Standard federal employee travel allowances will be used Receipts will be
provided
Terms & Conditions
Apply4 Master Subscription Agreement required before provisioning can begin
Payment for Setup, Integration, Hosting, and Training due before implementation date (launch)
i
Implemetation and End of Contract
Implemetation Date
End of Contract Date
Yearly Hosting, Upgrades, and Maintenance
Number of Film Days Per Year
Yearly Fee
1-100
$613 00
101-200
$675 00
201-300
$708 00
301-400
$944 00
401-500
$1,180 00
501-600
$1,416 00
601-700
$1,656 00
701-800
$1,888 00
801-900
$2,125 00
901-1000
$2,362 00
1001-1200
$2,716 00
1201-1400
$3,128 00
1401-1600
$3,568 00
1601-1800
$4,160 00
1801-2000
$4,760 00
2001-2500
5,36000
2501-3000
$5,948 00
3000+
$6,544 00
The first year fees are based on the best available estimate of number of film days the authority
had the previous year Subsequent yearly fees are calculated on actual number of film days
logged in the FilmApp platform the previous year until a three-year average is established
All setup, integration, customization, and first year hosting fees, as well as a signed Master
Subscription Agreement, are due before launch
q Apply4 Technology, LLC