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HomeMy WebLinkAbout2015-243-E VB - Simpleview, LLC for website creation, host and support $128,000 i DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 2 [Departmental Use Only] TITLE Simpleview Web FY 2015 NORTH CAROLINA SERVICES AGREEMENT OVER $90,000.00 NO REIMBURSABLE EXPENSES ORANGE COUNTY This Services Agreement (hereinafter "Agreement"), made and entered into this p,r day of June, 2015, ("Effective Date") by and between Orange County, North Carolina a body politic and corporate of the State of North Carolina (hereinafter, the "County") and Simpleview, LLC, (hereinafter, the "Provider"). WITNESSETH: That the County and Provider, for the consideration herein named, do hereby agree as follows: 1. Services a. Scope of Work. i) This Services Agreement ("Agreement") is for professional services to be rendered by Provider to County with respect to (insert type of project): Website consulting, content management solutions and customer relations management ii) By executing this Agreement, the Provider represents and agrees that Provider is qualified to perform and frilly capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner. iii) Time is of the essence with respect to this Agreement. iv) The services to be performed under this Agreement consist of Basic Services, as described and designated in Section 3 hereof. Compensation to the Provider for Basic Services under this Agreement shall be as set forth herein. 2. Responsibilities of the Provider a. Services to be provided. The Provider shall provide the County with all services required in Section 3 to satisfactorily complete the Project within the time limitations set forth herein and in accordance with the highest professional standards. b. Standard of Care. i) The Provider shall exercise reasonable care and diligence in performing services under this Agreement in accordance with the highest generally accepted standards of this type of Provider practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the Revised 10/14 1 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 3 performance of these services. Provider is solely responsible for the professional quality, accuracy and timely completion and/or submission of all work related to the Basic Services. I ii) Provider shall be responsible for all errors or omissions of its agents, contractors, employees, or assigns in the performance of the Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. iii) The Provider shall not, except as otherwise provided for in this Agreement, subcontract the performance of any work under this Agreement without prior written permission of the County. No permission for subcontracting shall create, between the County and the subcontractor, any contract or any other relationship. iv) Provider is an independent contractor of County. Any and all employees of the Provider engaged by the Provider in the performance of any work or services required of the Provider under this Agreement, shall be considered employees or agents of the Provider only and not of the County, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Provider. v) Provider agrees that Provider, its employees, agents and its subcontractors, if any, shall be required to comply with all federal, state and local antidiscrimination laws, regulations and policies that relate to the performance of Provider's services under this Agreement. vi) If activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Provider represents that it and/or its employees, agents and subcontractors engaged in such activities possess such licenses, certifications, or credentials and that such licenses certifications, or credentials are current, active, and not in a state of suspension or revocation. 3. Basic Services a. Basic Services. i) The Provider shall perform as Basic Services the work and services described herein and as specified in Exhibit I attached hereto. In the event a term or condition in Exhibit 1 conflicts with a term or condition of this Agreement the term or condition in this Agreement shall control. Should such conflict arise the priority of documents shall be as follows: This Agreement then Exhibit 1. ii) To the extent practical the Basic Services will be performed by the Provider in accordance with the following schedule: (Insert task list and milestone dates) Task Milestone Date 1. Initial consultation,research & strategy of brand June 2015 2. Responsive Design site map consultation July/August 2015 Revised 10/14 2 1 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 4 3. Creative brief August 2015 4. RD creative strategy &design develop. August/September 2015 1 5. Design implementation& execution September 2015 6. Content migration and page creation September/October 2015 7. Training October/November 2015 8. Site transition, Google analytics configuration November/Dec. 2015 9. QA Testing for usability December 2015 10. Launch, hosting and support December 2015/January 2016 iii) County will work with Provider to ensure Provider has all information necessary to complete these tasks in a timely manner. 4. Duration of Services a. Term. The term of this Agreement shall be from the date first above recorded and shall continue for a term of three years. Upon mutual agreement the parties hereto may renew this Agreement for one additional three-year term. b. Scheduling of Services i) The Provider shall schedule and perform its activities in a timely manner so as to meet the Milestone Dates listed in Section 3. ii) Should the County determine that the Provider is behind schedule for reasons within the sole and exclusive control of the Provider, it may require the Provider to expedite and accelerate its efforts, including providing additional resources and working overtime, as necessary, to perform its services in accordance with the approved project schedule at no additional cost to the County. iii) The Commencement Date for the Provider's Basic Services shall be upon signing of contract and payment of deposit. 5. Compensation a. Compensation for Basic Services. Compensation for Basic Services shall include all compensation due the Provider from the County for all services under this Agreement and as shown and described in Exhibit 1. The maximum amount payable for Basic Services is One Hundred Twenty-eight Thousand Seven Hundred Sixty-six Dollars ($128,766). In the event the amount stated on an invoice is disputed by the County, the County may withhold payment of all or a portion of the amount stated on an invoice until the parties resolve the dispute. Payment for Basic Services shall become due and payable in direct proportion to satisfactory services performed and work accomplished. b. Additional Services. County shall not be responsible for costs related to any services in addition to the Basic Services performed by Provider unless County requests such additional services in writing and such additional services are evidenced by a written amendment to this Agreement. 6. Responsibilities of the County Revised 10/14 3 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 5 a. Cooperation and Coordination. The County has designated (Laurie Paolicelli) to act as the County's representative with respect to the Project and shall have the authority to render decisions within guidelines established by the County Manager and/or the County Board of Commissioners and shall be available during working hours as often as may be reasonably required to render decisions and to furnish information. 7. Insurance a. General Requirements. Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, and any additional insurance as may be required by Owner's Risk Manager as such insurance requirements are described in the Orange County Risk Transfer Policy and Orange County Minimum Insurance Coverage Requirements (each document is incorporated herein by reference and may be viewed at lam://oran ecg ouiitviic.gov/purchasing/contt'acts.asp). If Owner's Risk Manager determines additional insurance coverage is required such additional insurance shall consist of N/A (if no additional insurance required mark N/A as being not applicable). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the Owner's Risk Manager. 8. Indemnity a. Indemnity. The Provider agrees to defend, indemnify and hold harmless the County from all loss, liability, claims or expense, including attorney's fees, arising out of or related to the Project and arising from bodily injury including death or property damage to any person or persons caused in whole or in part by the negligence or misconduct of the Provider except to the extent same are caused by the negligence or willful misconduct of the County. It is the intent of this provision to require the Provider to indemnify the County to the fullest extent permitted Linder North Carolina law. 9. Amendments to the Agreement a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional compensation or a change in duration of this Agreement shall be made by a written Amendment to this Agreement executed by the County and the Provider. The Provider shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. 10. Termination a. Termination for Cause by the County. This Agreement may be terminated for cause by the County with ten (10) days prior written notice to the Provider. b. Other Termination. The Provider may terminate this Agreement for cause based upon the County's material breach of this Agreement; provided, the County has not taken reasonable actions to remedy the breach. The Provider shall give the County ten (10) days prior written notice of its intent to terminate this Agreement for cause. c. Compensation After Termination. Revised 10/14 4 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 6 i) In the event of termination, the Provider shall be paid that portion of the fees and expenses that it has earned to the date of termination, less any costs or expenses incurred or anticipated to be incurred by the County due to errors or omissions of the Provider. ii) Should this Agreement be terminated, the Provider shall deliver to the County within seven (7) days, at no additional cost, all deliverables including any electronic data or files relating to the Project. d. Waiver. The payment of any sums by the County under this Agreement or the failure of the County to require compliance by the Provider with any provisions of this Agreement or the waiver by the County of any breach of this Agreement shall not constitute a waiver of any claim for damages by the County for any breach of this Agreement or a waiver of any other required compliance with this Agreement. 11. Additional Provisions a. Limitation and Assignment. The County and the Provider each bind themselves, their successors, assigns and legal representatives to the terms of this Agreement. Neither the County nor the Provider shall assign or transfer its interest in this Agreement without the written consent of the other. b. Governing Law. This Agreement and the duties, responsibilities, obligations and rights of respective parties hereunder shall be governed by the laws of the State of North Carolina. c. Compliance with Laws. Provider shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all anti-discrimination laws. d. Dispute Resolution. Any and all suits or actions to enforce, interpret, or seek damages with respect to any provision of, or the performance or non-performance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina. It is agreed by the patties that no other court shall have jurisdiction or venue with respect to such suits or actions. Binding arbitration may not be initiated by either Party, however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. e. Entire Agreement. This Agreement represents the entire and integrated agreement between the County and the Provider and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. f. Severability. If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be valid and binding upon the Patties. Revised 10/14 5 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 7 g. Ownership of Work Product. Should Provider's performance of this Agreement generate documents, items or things that are specific to this Project such documents, items or things shall become the property of the County and may be used on any other project without additional compensation to the Provider. The use of the documents, items or things by the County or by any person or entity for any purpose other than the Project as set forth in this Agreement shall be at the full risk of the County. For purposes of this section Work Product does not include Simpleview, LLC's CMS and CRM software platforms. h. Non-Appropriation. Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non-appropriation of public funds. It is expressly agreed that County shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County's statutory authority, mandate and/or mandated functions, by state and/or federal legislative or regulatory action, which adversely affects County's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to Provider of such limitation or change in County's legal authority. i. -Signatures. This Agreement together with any amendments or modifications may be executed electronically. All electronic signatures affixed hereto evidence the intent of the Parties to comply with Article 11A and Article 40 of North Carolina General Statute Chapter 66. j. Notices. Any notice required by this Agreement shall be in writing and delivered by certified or registered mail,return receipt requested to the following: Orange County Provider's Name &Address Attention: Laurie Paolicelli Simpleview, LLC P.O. Box 8181 7458 N. La Cholla Blvd. 100 Hillsborough,NC 27278 Tucson,AZ 85741 [SIGNATURE PAGE TO FOLLOW] i Revised 10/14 6 1 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder j set their hands and seal, all as of the day and year first above written. C ORANGE COUNTY: PROVIDER: DocuSigned by: DocuSigned by: B i�ov�,�,it, �auxw�e,V'sl,t,� B y' 06:}7 @�B5E y: Bonnie Hammersley, County Manager Vice President Simpleview, LLC Revised 10/14 7 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 g WEB SITE CONSULTING, CONTENT MANAGEMENT SOLUTIONS AND CUSTOMER RELATIONSHIP MANAGEMENT AGREEMENT This AGREEMENT (the "Agreement") is made and entered into as of the 18th day of March, 2015 (the "Effective Date"), by and between Sirpleview, LLC, with offices at 7458 N. La Cholla Blvd., Suite 100, Tucson, Arizona, 85741 ("Simpleview") and the Chapel Hill and Orange County Visitors Bureau, located at 501 West Franklin Street, Chapel Hill, NC 27516 ("Client"). RECITALS A. WHEREAS, Simpleview offers certain consulting, development and hosting services and web- based applications for use on the World Wide Web, including a customer relationship management application ("CRM") and a content management system application ("CMS"); B. WHEREAS, Client desires that Simpleview develop and host a Client Web site (the "Site") that utilizes the CMS, provide and implement the design for the Site, implement CRM, and provide certain other services and applications useful in the design, programming, and maintenance of the Site, C. WHEREAS, Client desires to engage Simpleview, and Sirnpleview desires to be engaged by Client, to provide Internet services and products on the terms and subject to the conditions set forth below; NOW THEREFORE, in consideration of the mutual promises set forth herein, Simpleview and Client (collectively, the "Parties') hereby agree as follows: 1. Simpleview Services Simpleview agrees to provide design, programming and hosting of the CMS and/or CRM on the World Wide Web as set forth or described in Exhibit A hereto (the " Services') and to provide Client with additional services, if any, set forth or described in Exhibit B hereto (the "Additional Services'), which exhibits may be amended from time to time by mutual written agreement of the Parties. Obligations of Simpleview, if any, to provide ongoing maintenance tasks for the CMS and/or CRM shall be set forth and included as part of Additional Services on Exhibit B hereto ("Maintenance') (the Services and the Additional Services are hereinafter referred to collectively as the "Services'). Client agrees that Simpleview is responsible only for providing the Services specifically set forth in Exhibit A and Exhibit B hereto. 2. Web Site Development and Hosting 2.1 Delivery of Client Content Pagel DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 10 "Client Content" shall mean any materials provided by Client for incorporation into the CMS and/or CRM, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text. Client shall deliver the Client Content to Simpleview in an electronic file format specified and accessible by Simpleview (e.g., .txt, .gif) or as otherwise specified in Exhibit A. Any services required to convert or input Client Content not set forth in Exhibit A as Services shall be charged as Additional Services. Client shall promptly deliver all Client Content to Simpleview as required by Simpleview. 2.2 Work Orders If Client wishes to implement upgrades or revisions to the CMS and/or CRM that differ materially from the Services in Exhibits A and 3, Client shall submit to Simpleview a written change order containing (i) such revisions in detail and (ii) a request for a price quote for such change (collectively, the "Change Order"), Simpleview shall promptly evaluate the Change Order and submit to Client for its written acceptance a proposal for undertaking the applicable tasks and a price quote reflecting all associated fees associated with Client's Change Order. Client shall have ten (10) business days from receipt of such proposal to accept or reject Simpleview's proposal in writing. If Client accepts Simpleview's proposal to undertake the work necessitated by the Change Order, then the Change Order, as supplemented and/or modified by Simpleview's proposal, shall amend and become a part of Exhibit A and Exhibit C hereto (Fee Schedule). Routine updates and "fixes" shall be performed according to the Fee Schedule in Exhibit C. 2.3 Hosting 2.3.1 System Availability. Simpleview warrants at least 99.9% System Availability during each calendar month. "System Availability" means the percentage of total time during which the CMS and/or CRM is fully accessible at standard Server Response and Time and Throughput Capacity, excluding Scheduled Maintenance and Emergency Maintenance and any loss or interruption due to causes beyond the control of Simpleview. "Emergency Maintenance" means downtime of the CMS and/or CRM due to the application of urgent patches or fixes, or other urgent maintenance, recommended by Simpleview vendors to be applied as soon as possible, that is performed outside of Scheduled Downtime hours. "Scheduled Maintenance° means downtime of the CMS and/or CRM during preset, scheduled maintenance windows. Scheduled Maintenance typically is performed during off-peak hours which are defined as between 6 P.M. and 3 A.M. MST Standard Time. Simpleview will provide Client with notice of any scheduled maintenance at a minimum of 24 hours prior to the scheduled outage and will endeavor to schedule maintenance after 9 P.M. Eastern Standard Time. Times for Scheduled Maintenance may be changed with reasonable prior written notice to Client (which may be via email). i I Page 12 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 11 Should Simpleview fail to achieve 99.9% System Availability in any calendar months, Client shall receive a prorated credit towards future services. The credit shall be calculated by taking the difference between 99.9% and the actual percent of System Availability and multiplying by the monthly calculated licensing fee for the specific application affected (excluding annual licensing fees from third party providers like Distribion). Should Simpleview fail to achieve 99.9 % System Availability in each of two consecutive calendar months, Client shall have the right to terminate this Agreement for cause (and without having to give Simpleview any cure period), in which case Simpleview will refund to Client any prepaid fees for the remainder of the Term after the date of termination. Claims under this service level warranty must be made in good faith and by submitting a support case within 20 business days after the end of the relevant period. i 2.3.2 Disaster Recovery. Simpleview shall maintain a disaster recovery plan (a "DRP") for all technology required to provide the Services, together with the capacity to execute the DRP. The DRP shall, at a minimum, require mirror servers or ability to connect Client's servers via multiple Internet Service Providers (ISPs). Upon request by Client, Simpleview shall provide Client with an executive summary of Simpleview"s then-current version of the DRP. Simpleview shall perform disaster recovery tests at least annually. Simpleview shall provide Client a written description of all DRP test results in sufficient detail to allow Client to assess the success of each test. 2.3.3 Security. Simpleview shall provide all reasonable physical, anti-virus and password related security for the Simpleview system and/or services, and will make all reasonable security procedures available to protect Client Data from unauthorized access. Simpleview shall have and adhere to commercially reasonable written information security guidelines for maintaining security controls which guidelines include without limitation, physical, administrative and technological controls. Simpleview shall act proactively in preventing security breaches and laying out a process for fixing known security breaches once identified. Simpleview shall notify Client when security breaches or security holes are identified. 2.3.4 Backup Procedures. Data will be backed up on at least a daily basis. In the event that a data restore is required as a result of equipment failure, Simpleview will bear the costs of such restore. Client may request a back-up of data at any time. 3. Service Fees Page 13 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 12 Client shall pay the fees set forth in the Fee Schedule in Exhibit C. Simpleview expressly reserves the right to change the rates charged hereunder for the Services during any Renewal Term; provided, however, that the annual increase for any fee shall not exceed ten percent (10%) of the fee paid during the immediately preceding 12-month term. Client shall pay to Simpleview all fees within thirty (30) days of the date of the applicable Simpleview invoice. 4. Proprietary Rights 4.1 Proprietary Rights of Client Client Content, Client Data and User Information shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Nothing in this Agreement shall be construed to grant Simpleview any ownership right in the Web site, Client Content, Client Data or User Information. "Client Data' rneans all data and information about Client's businesses, customers (current, former or prospective), employees, operations, facilities, products, markets, assets or finances that Simpleview obtains, creates, generates, collects or processes in connection with this Agreement, and all intellectual property rights in that data and information. Simpleview shall provide Client with copies of the server logs applicable to its web site and reports derived from the server logs at no additional cost. "User Information" means all information about users, and Client members and personnel and Internet browsers (whether or not users), that Client provides to Simpleview hereunder, or that Simpleview otherwise collects, compiles, creates or stores in connection with the access and use of CRM and, including without limitation (i) name, address, email address, password information, account numbers, financial information, demographic data, marketing data, credit data, any other identification data; (ii) any other user data submitted in the course of the access or use of the CRM any Web Site Service; and (iii) any information about an identifiable individual that constitutes "personal information" under applicable law. Simpleview shall provide Client with copies of the server logs applicable to its web site and reports derived from the server logs at no additional cost. On Client's written request or upon termination of this Agreement for any reason, Simpleview will promptly and at no additional cost to Client return or destroy all originals and copies of all documents and materials containing Client Content, Client Data and User Information including reports derived from the server logs. 4.2 Proprietary Rights of Simpleview Subject to Client's ownership interest in Client Content, Client Data and User Information, and further subject to Section 1.2 of this Agreement, all materials, including, but not limited, to any computer software (in object code and source code form), script, programming code, data, information or HTML script developed or provided by Simpleview or its suppliers under this Agreement (with the exception of Page 14 I DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 13 � I original elements of audiovisual displays created hereunder specifically for Client, which shall be deemed to be part of Client Content), and any trade secrets, know-how, methodologies and processes related to Simpleview's products or services, shall remain the sole and exclusive property of Simpleview or its suppliers, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively "Simpleview Materials"). Client acknowledges and agrees that Simpleview is in the business of designing and hosting Web sites, and that Simpleview shall have the right to provide to third parties services which are the same or similar to the Services, and to use or otherwise exploit any Simpleview Materials in providing such services. 4.3 Simpleview Notices Unless otherwise agreed to in writing by the Parties, Simpleview shall have the right to place proprietary notices of Simpleview (including hypertext links related thereto) on the Simpleview Materials and on the Site, including developer attribution and hypertext links to Simpleview's web sites, and to change or update such notices from time to time upon notice to Client. The size and location of these notices shall be subject to Client's approval, which approval shall not be unreasonably withheld. In no event may Client remove or alter any Simpleview proprietary notice from the Simpleview Materials or the Site without Simpleview's prior written consent. Simpleview may use the name of and identify Client as a Simpleview client, in advertising, publicity, or similar materials distributed or displayed to prospective clients. 5. License 5.1 Grant of License - Client Client hereby grants to Simpleview a non-exclusive, worldwide, royalty free license for the Initial Term and any Renewal Term (as those terms are hereinafter defined) to edit, modify, adapt, exhibit, publish, transmit, perform, display, and otherwise use Client Content solely as necessary to render the Services to Client under this Agreement. 5.2 Grant of License- Simpleview Simpleview hereby grants to Client a limited, non-exclusive, nontransferable license solely for the Initial Term and any Renewal Term (as those terms are hereinafter defined) to make use of Simpleview Materials that are incorporated in the CMS and/or CRM and that are required for the operation of the CMS and/or CRM. Client cannot use the Simpleview Materials for any other purpose, including selling, copying or transferring any portions to third parties, or providing Web site development or hosting services for others. Simpleview hereby reserves for itself all rights in and to the Simpleview Materials not expressly granted to Client in the immediately foregoing sentence. In no event shall Client use any trademarks or service marks of Simpleview without Simpleview's prior written consent. 6. Warranties 6.1 Simpleview Warranties Page 15 1 I DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 14 Simpleview warrants. (i) that Simpleview has the right and authority to enter into and perform its obligations under this Agreement, (ii) that Sirnpleview shall perform the Services in a professional and workmanlike manner and (iii) none of the Simpleview Materials, any other materials used by Simpleview or any actions of Sirnpleview in connection with the Services will infringe or violate any right of any third party. 6.2 Client Warranties Client warrants that: (a) it has all authorization(s) necessary for hypertext links to third party Web sites; and; and (b) that the Client Content does not infringe or violate any right of any third party. Client shall provide all necessary Client Content, including database files, reports and other materials for implementation of the CMS and/or CRM. 7. Indemnification 7.1 Indemnification by Client Client agrees to indemnify, defend, and hold harmless Simpleview, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action results in proof: (i) would constitute a breach of any of Client's warranties, hereunder, (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the CMS and/or CRM provided by Client infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, traderarks, trade secrets and/or licenses. 7.2 Indemnification by Simpleview Simpleview agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action results in proof: (i) would constitute a breach of any of Simpleview's warranties hereunder; or (ii) arises out of the negligence or willful misconduct of Simpleview; or (iii) Client's use of, or Simpleview's use of, Simpleview Materials or any other materials used by Sirnpleview in connection with the Services, infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses 8. Warranty Disclaimer and Limitation of Liability EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6, Simpleview MAKES NO WARRANTIES HEREUNDER, AND Simpleview EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, AND WARRANTIES AGAINST INFRINGEMENT. Page 16 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 15 i i EXCEPT FOR A CLAIM FOR INDEMNIFICATION UNDER SECTION 7, THE TOTAL LIABILITY OF Simpleview HEREUNDER FOR ANY SERVICES NOT PROPERLY PERFORMED (INCLUDING ANY LIABILITY FOR NEGLIGENCE) SHALL BE LIMITED TO (a) PERFORMING THOSE SERVICES CORRECTLY, OR (b) IF SUCH PERFORMANCE IS IMPOSSIBLE, TO THE AMOUNT'S PAID TO Simpleview FOR THE SERVICES THAT WERE IMPROPERLY PERFORMED. IN NO EVENT SHALL Simpleview OR CLIENT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND OR INCREASED COST OF OPERATIONS, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. Term and Termination This Agreement shall be effective when signed by the Parties and thereafter shall remain in effect for three (3) years, unless earlier terminated as otherwise provided in this Agreement (the "Initial Term"). At the end of the Initial Term this Agreement shall renewal for additional terms of three (3) years unless Client provides sixty (60) days written notice of cancellation for each subsequent renewal term. Either party may terminate this Agreement if the other party breaches any of its representations, warranties or material obligations under this Agreement, and such breach is not cured within thirty (30) days of receipt of written notice specifying the breach. 10. Confidentiality Each party agrees that during the course of this Agreement, information that is identified as confidential or proprietary may be disclosed to the other party, including, but not limited to software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data ("Confidential Information"). The obligations with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be, when receiving party can demonstrate such information (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party, (b) was 1 known to the receiving party as of the time of its disclosure, (c) is independently developed by individuals of the receiving party without access to the Confidential Information, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of this Agreement. Page 17 I DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 16 'i Each of the Parties shall use at least those precautions to protect such information and other property that it uses to protect its own information and other property, in no event less than those precautions generally required by industry standards. Client shall not use any Simpleview Materials to compete with Simpleview or in any way that would diminish Simpleview's rights therein. 11. Miscellaneous 11.1 Entire Agreement This Agreement and attached Exhibits constitute the entire agreement between Client and Simpleview with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the party against which such amendment, change, waiver, or discharge is sought to be enforced. 11.2 Governing Law This Agreement shall be construed in accordance with the laws of the State of Arizona. Exclusive jurisdiction shall rest in Arizona, with venue in Tucson, Arizona for any dispute concerning interpretation, breach of or enforcement of this Agreement. 11.3 Independent Contractors The Parties agree that Simpleview and its personnel, in performance of this Agreement, are acting as independent contractors and that this Agreement shall not create any agency between the Parties. 11.4 Alternative Dispute Resolution In the event of any dispute or claim arising under or related to this Agreement, the parties shall use their best efforts to settle such dispute or clairn through good faith negotiations with each other. If such dispute or claim is not settled through negotiations within 30 days after the earliest date on which one party notifies the other party in writing of its desire to attempt to resolve such dispute or claim through negotiations, then the parties agree to attempt in good faith to settle such dispute or claim by mediation conducted under the auspices of an established and neutral mediation service selected by the parties. Such mediation shall be conducted within 60 days following either party's written request therefore. If such dispute or claim is not settled through mediation, then either party may seek legal or equitable remedies in a proceeding in a court of law. 11.5 Force Majeure Neither party shall be liable for delays or failure in performance thereunder caused by acts of God, war, strike, riot, labor dispute, work stoppage, fire, judicial or governmental action, or any other cause, whether similar or dissirnilar, beyond reasonable control of that party. Notwithstanding the aforementioned, it is understood that Simpleview shall have the responsibility to perform its services in a commercially reasonable manner to safeguard Client's Internet and web hosting, including data, from Page 18 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 17 i damages, disruption and loss caused by acts of God, war, strike, riot, labor dispute, work stoppage, fire, judicial or governmental action, or any other cause. [ 11.6 Waiver The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. 11.7 Severability If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. 11.8 Taxes 1 In the event that a city, state, or federal government agency other levies taxes on the work specific to the project or projects outlined in this agreement, Client will bear the responsibility of paying the taxes either directly, or indirectly through invoices marked up for tax inclusion. 11.9 Survival All provisions of this Agreement relating to warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement. C Page 19 i DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 18 i i IN WITNESS WHEREOF, the Parties have caused this agreement to be executed by their I respective duly authorized officers on the date written below. Authorized Signature Authorized Signature Simpleview, LLC Chapel Hill& Orange Cnty VB 7458 N La Cholla Blvd., Suite 100 501 West Franklin Street Tucson, AZ 85741 Chapel Hit[, NC 27516 USA USA i j By----------------------- Date:-------- By-------------------------- Date:----- 1 Its: Vice President of Finance Its:___________________ Exhibits A—Simpleview Services B—Additional Services C— Fee Schedule Page110 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 19 I EXHIBIT A Simpleview SERVICES I _ A 2 0m � � 9 Simpleview CRM Level 2 Licensing Included Simpleview CRM annual fee (includes hosting, updates, upgrades, and 10 Included $2,400 hours of free support per year) $1,200 flat + $1,200/year per user x 1.user Industry Partner Management Module Included Industry Partner Extranet Included Consumer/Visitor Inquires Module Included Inkind/Expense Tracking Components Included DMO Hosted Events Management Module (Partner Meetings, Luncheons, Included Tradeshows, Sales Missions, etc.) Dashboards Included Standard Reports Included Report Builder Included Form Builder Included Hosting, Point Updates, Version Upgrades Included Data Migration (Partner listings, special offers and visitor inquiries data Included migration included) Training -16 hours included; conducted virtually via GoToMeeting or similar Included Project management and Client Portal Access Codes (Ticketing System, Included Knowledgebase, Webinars, Users Forum) o I' M 41211 12MENNEEMOM *As part of this agreement, Client is allotted 30 support hours, which can be used at any time over a three-year term, at which point the hours will expire. Any overages during the contract term will be billed at $125/hour, or customer can purchase Additional Support Bundles at discounted rates and/or upgrade to the next CRM support level. Additional Support Bundles Premium Bundle $10,000/ Free Support and Bundles can be 100 hours used at any time within a given contract term. Bundles Discounted Bundle $6,000/ can be purchased at anytime 50 hours during an initial or renewal term, but do not carry forward from Hourly Support $125/hour one three-year term to the next. Pa e 11 9 � 1 i DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 20 IM Mi Responsive Design Site Map Consultation & Content Roadmap Included Creative Brief Included Responsive Design Creative Strategy 0 Design Development Included Design Implementation & Execution (Responsive Design - Desktop, Tablet, Smartphone) Included MEN Content Migration and Page Creation Included Training (via GoToMeeting) Included Site Transition SEO Program (301 redirects, XML sitemap, friendly 404 page, search engine submissions, etc) Included Google Analytics Configuration Included OA Testing Included Access to Client Portal (Ticketing System, Documentation, Webinar Library, User Forum, etc.) Included ONE-TIME ONE-TIME FEES SUMMARY COSTS (USD) RESEARCH, PLANNING, CREATIVE SERVICES, DESIGN EXECUTION $37,950 IMPLEMENTATION AND MIGRATION SERVICES $9,775 C::(v)NI 1{: IEN I IAL 1.5% E)I,`)'COl_JC'q i_ _$7,159 Page 112 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 21 i Simpleview CMS Navigation & Content Management System Included Member/Partner Listings Module (integrated with Simpleview Cl Included Calendar of Events Module Included Google Maps Integration with Listings and Events Calendar(includes Map Explorer with "What's Nearby" proximity search) Included Visitor Inquiry forms (integrated with Simpleview CRM form builder) Included Fast-Track RFP 0-frame) Included Special Offers, Packages, Coupons Module Included Booking Engine Integration (ARES, Jackrabbit Book Direct, Priceline, Regatta, Orbitz, or other) Included Press Center (Press Releases, Articles, Story Ideas, Etc.) Included Advanced Site Search with tracking Included Microsite building capability Included Homepage Slideshow and Interior Header Image Management Included Landing Pages, Vanity URLs and Meta Tag Management Included RSS Feeds Included Social Media Content Feed Integration (widgets for Facebook, Twitter, Pinterest and YouTube) Included "Add This" Social Sharing integration (Twitter, Facebook, StumbleUpon, Delicious, Tumbtr, Pinterest, Etc.) Included Facebook "Like" buttons for site pages Included Weather Feed Integration Included CMS Media Asset Management Library(central repository for images, videos, audio, documents) Included Print/email pages Included Responsive Geo Triggers Included Edgecast Caching (CDN / Content Delivery Network) Included Advanced Admin Access (CSS, Template b Javascript Code Overwrite Capabilities) Included ill IN Ili IN q111q1ffl.1 111 Included w/ Hosting CMS Annual Fee SimpleSupport Website Maintenance Plan (includes 5 support hours per month, unused monthly hours may be carried forward) $6,000 . 111 COST PER ANNUAL FEES SUMMARY YEAR (USD) I Page 113 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 22 I i SIMPLEVIEW CMS & CORE MODULES $21,000 HOSTING, POINT UPDATES, VERSION UPGRADES INCLUDED SIMPLE SUPPORT 5 PLAN (60 HOURS OF SUPPORT/YEAR) $6,000 eee As of July 1, 2013, our hourly fee for routine fixes and maintenance of the Web Site is $125 per hour. Upon launch of the live site, Client will have thirty (30) days to review the site and provide a written change list to Simpleview for minor modifications within the scope of the original proposal. Any modifications requested after the 30 day period will be billed as part of the simpleSupport plan. simpleSupport Plan - 5 M Total Hours per Month Queirterly,$trateg)c P19nn1h GWI; 00 site 0onsult n 'P a s Access to Ticketin ,System Access t0 Users ForUrn Pagejt4 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 23 EXHIBIT B ADDITIONAL SERVICES No Additional Services as of March 18, 2015 i Page 15 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 EXHIBIT 1 24 EXHIBIT C FEE SCHEDULE o. Initial Portion of One-time Fees as a Project Deposit Due Upon Contract Execution $20,283 Remaining Portion of One-time CMS Fees and Initial Quarterly CMS Licensing Fees Due $27,033 Upon Approval of Design Quarterly CMS Licensing Fees Due at the Beginning of Each Subsequent Quarter During $6,750/Quarter the Term of Agreement Annual CRM Licensing Fees Due Upon Launch of the Live CRM $2,400 Annual CRM Licensing Fees Due at the Beginning of Each Subsequent Anniversary Date of $2,400/Year Launch of the Live CRM During the Term of Agreement Pagel 16 DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 F DATE(MMIDDIYYYY) AC"R" CERTIFICATE OF LIABILITY INSURANCE 6/4/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies) must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Jim Chamb erlin NAME: FA , Koty-Leavitt Insurance Agency, Inc. PH WCE�N N..Extl, (520)571-1900-1900 1 1,CX No):(520)571-9667 6992 E. Broadway Blvd E-MAIL SS:3. .3-M-C amb h erlin@leavitt.com .ADDRE INSURERS)AFFORDING COVERAGE NAIC# Tucson AZ 85710-2803 INSURER A:Travelers Indemnity Co America 25666 INSURED INSURER B: Simpleview LLC INSURERC: New Media Gateway LLC INSURER D: 7458 N La Cholla Blvd INSURER E: Tucson AZ 85741-2397 INSURER F: COVERAGES CERTIFICATE NUMBER:CL1491916645 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDLSUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE lam 22M POLICY NUMBER _ (MMIDDNYYY) (MM/DDIYYYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 DAMAGE To RENTED 300,000 X COMMERCIAL GENERAL LIABILITY PREMISES(E.occurrence) $ A CLAIMS-MADE FxI OCCUR x 6800159P2881442 9/4/2014 9/4/2015 MED EXP(Any one person) $ 5,000 PERSONAL&ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: [PRODUCTS-COMP/OP AGG $ 2,000,000 1 7X POLICY D LOC $ 1,000,000 AUTOMOBILE LIABILITY (CEO,accident LIMIT ,d.ntis $ A ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED 6800159P2881442 9/4/2014 9/4/2015 AUTOS AUTOS BODILY INJURY(Per accident) $ X NON-OWNED PROPERTY DAMAGE AUTOS Per accident) $ HIRED AUTOS x I I Non-owned — $ 1,000,000 UMBRELLA LIAB HOCCUR EACH OCCURRENCE $ EXCESS LIAR F ]CLAIMS-MADE AGGREGATE $ DED I I RETENTION$ $ _WORKERS COMPENSATION WC STATU_ OTH- AND EMPLOYERS'LIABILITY Y/N __iTnRY LIMITS ER ANY PROPRIETOR/PARTNER/EXECUTIVE F---1 E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101,Additional Remarks Schedule,if more space is required) General Liability: ADDL INSR per CG D417 (01/12) , attached. CERTIFICATE HOLDER CANCELLATION tifuller@visitchapelhill.o SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Orange County, North Carolina ACCORDANCE WITH THE POLICY PROVISIONS. Attn: Tina Fuller 200 S Cameron Street AUTHORIZED REPRESENTATIVE Hillsborough, NC 27278 pp Gayleen Swan/GASWAN I ACORD 25(2010/05) ©1988-2010 ACORD CORPORATION. All rights reserved. INS025 onion-,,)ol Tho Ar.r)pn name nnrl Innn nra ronictaresei m=rkc of Ar-r)pn i DocuSign Envelope ID: 79E3BFD4-30BE-4A79-9674-5A78DD593240 Additional Named Insureds Other Named Insureds j I New Media Gateway LLC Limited corporation, Insured Multiple Names Simpleview Holdings LLC Limited corporation, Insured Multiple Names I Simpleview Intermediate Holdings LLC Limited corporation, Insured Multiple Names C OFAPPINF(02/2007) COPYRIGHT 2007,AMS SERVICES INC