HomeMy WebLinkAbout2022-652-E-Econominc Dev-SizeUp-Software as a Sevice Subscription FY23-FY25Revised 06/21
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[Departmental Use Only]
TITLE SizeUp ED
FY 23
NORTH CAROLINA
SERVICES AGREEMENT NO RFP/RFQ
ORANGE COUNTY
This Services Agreement (hereinafter “Agreement”), made and entered into this 1 day of
January, 2023, (“Effective Date”) by and between Orange County, North Carolina a political
subdivision of the State of North Carolina (hereinafter, the "County") and SizeUp, Inc.,
(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 Agreement is for services to be rendered by Provider to County with respect to
(insert type of project): Software As A Service Subscriptions (SizeUp Suite with
Premium Key Performance Indicators)
ii) By executing this Agreement, the Provider represents and agrees that Provider is
qualified to perform and fully 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
performance of these services. Provider is solely responsible for the professional
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quality, accuracy and timely completion and submission of all work related to the
Basic Services.
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) If activities related to the performance of this Agreement require specific licenses,
certifications, or related credentials Provider represents that it 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.
vi) In determining the Basic Services to be provided, should any documents be
referenced in this Agreement, the terms of this Agreement shall have priority in any
conflict between the terms of referenced documents and the terms of this
Agreement.
3. Basic Services
a. Basic Services. The Services to be rendered pursuant to this Agreement are as follows
(fully describe services to be provided): See Exhibit A
4. Duration of Services
a. Term. The term of this Agreement shall be from January 1, 2023 to December 31, 2025.
b. Scheduling of Services.
i) The Provider shall schedule and perform its activities in a timely manner.
ii) The Commencement Date for the Provider's Basic Services shall be January 1,
2023.
5. Compensation
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a. Compensation for Basic Services. Compensation for Basic Services shall include all
compensation due the Provider from the County for all services satisfactorily (as
determined by the County) performed pursuant to this Agreement. The maximum amount
payable for Basic Services shall not exceed thirty two thousand two hundred fifty Dollars
($32,250.00) (See Exhibit A)). Payment is due within 30 days of contract execution and
SizeUp shall provide the client API Key and embed code within one (1) business week
defined as Monday through Friday excluding national recognized holidays. Upon receipt
of code the County will enter a review and acceptance period. The client shall have
fourteen (14) days upon receipt of their client code to evaluate their tool. Public use of the
tool or expiration of the fourteen (14) days will constitute acceptance of the tool as
delivered.
b. Disputes. 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. Should Provider fail to perform its duties under the terms
of this Agreement, County may, without fault or penalty, withhold any payment associated
with the work to be performed until such time as said work is completed.
c. 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
a. Cooperation and Coordination. The County has designated (Steve Brantley) to act as the
County's representative with respect to the Project who shall have the authority to render
decisions within guidelines established by the County Manager or the County Board of
Commissioners and who 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 County’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
http://www.orangecountync.gov/departments/purchasing_division/contracts.php). If
County’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 County's Risk Manager.
8. Indemnity
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a. Indemnity. To the extent authorized by North Carolina law the Provider agrees, without
limitation, 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 Pr oject and
arising from property damage or bodily injury including death 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 under North Carolina law.
b. To the extent not prohibited by the North Carolina Local Government Budget and Fiscal
Control Act the County agrees to defend, indemnify and hold harmless the Provider from
all loss, liability, claims or expense, including attorney's fees, arising out of or related to
the Project and arising from property damage or bodily injury including death to any
person or persons caused in whole or in part by the negligence or misconduct of the County
except to the extent same are caused by the negligence or willful misconduct of the
Provider.
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 Convenience of the County. This Agreement may be terminated without
cause by the County and for its convenience upon seven (7) days’ prior written notice to
the Provider. However, termination does not entitle County to a refund of previously paid
fees.
b. Other Termination. The Provider may terminate this Agreement based upon the County's
material breach of this Agreement; provided, the County has not taken all reasonable
actions to remedy the breach. The Provider shall give the County seven (7) days' prior
written notice of its intent to terminate this Agreement for cause. Either party may
terminate this Agreement upon notice to the other party that obligations pursuant to this
Agreement are made impractical due to declarations of emergency by Orange County or
by North Carolina due to events directly impacting Orange County. Both parties shall
remain responsible for all payment and performance due up to the receipt of such notice,
but shall have no further obligation or responsibility beyond that date provided the
terminating party has taken all reasonable steps to complete the performance of its
obligations.
c. Compensation After Termination.
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
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the Provider. Upon request of the County, the Provider shall submit to County all
relevant documentation, including but not limited to, job cost records, to support its
claims for final compensation.
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.
e. Suspension. County may suspend the Basic Services and this Agreement at any time for
County’s convenience and without penalty to County upon three (3) days’ notice to
Provider. Upon any suspension by County, Provider shall discontinue work on the Basic
Services and shall not resume the Basic Services until notified to proceed by County.
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. By executing this Agreement Provider affirms that Provider and any
subcontractors of Provider are and shall remain in compliance with Article 2 of Chapter
64 of the North Carolina General Statutes. By executing this Agreement Provider
certifies that Provider has not been identified, and has not utilized the services of any
agent or subcontractor identified, on the list created by the State Treasurer pursuant to
G.S. 147-86.58. By executing this Agreement Provider certifies that Provider has not
been identified, and has not utilized the services of any agent or subcontractor identified,
on the list created by the State Treasurer pursuant to G.S. 147-86.81.
c. Non-Discrimination. 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 state
and federal non-discrimination laws, policies, rules, and regulations and the Oran ge
County Non-Discrimination Policy and Orange County Living Wage Policy (each policy
is incorporated herein by reference and may be viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php.) Any
violation of the Orange County Non-Discrimination Policy is a breach of this Agreement
and County may immediately terminate this Agreement without further obligation on the
part of the County. This paragraph is not intended to limit and does not limit the definition
of breach to discrimination.
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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 parties 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
Parties.
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.
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 or 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 or 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.
In the event of a change in the County’s statutory authority, mandate or mandated
functions, by state 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 consent of
the Parties to utilize electronic signatures and 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:
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Orange County Provider’s Name
Attention:Steve Brantley SizeUp, Inc.
P.O. Box 8181 9600 Great Hills Trail, Suite 150W
Hillsborough, NC 27278 Austin, TX 78759
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have
hereunder set their hands and seal, all as of the day and year first above written.
ORANGE COUNTY: PROVIDER:
By: _________________________________
Bonnie Hammersley, County Manager
By: __________________________________
Anatalio Ubalde, CEO
Printed Name and Title
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ORANGE COUNTY—DEPARTMENT USE ONLY
______________________________________________________________________________
Party/Vendor Name: SizeUp, Inc. Party/Vendor Contact Person: Anatalio Ubalde Contact Phone: 615-258-9700
Party/Vendor Address: 9600 Great Hills Trail Suite 150W City Austin State: TX Zip: 78759 Department: Economic
Development Amount: $32,250.00 Purpose: Software as a Sevice Subscription FY23-FY25 Budget Code(s):
346000120-611000 Vendor # 67877 (N/A if new vendor) Vendor is a BOCC consultant? Yes No Contract
Type: (Check one) New Renewal Amendment Effective Date 12-15-22 Approved by Board Yes No
Agenda Date: N/A --- For Section XIV. c. contracts only, Approved by Board in Current FY Budget Yes No
This agreement is approved as to technical form and content and I as Department Director affirmatively state work on
this project has not been initiated prior to execution of the agreement:
Department Director’s Signature ________________________________________ Date: ________
Agreements for emergency services or repair are not subject to the above affirmation. If services related to this
agreement have already begun or been completed please briefly describe the nature of the emergency condition that
was addressed: N/A
Information Technologies
(Applicable only to hardware/software purchases or related services) This agreement has been reviewed and is
approved as to information technology content and specifications:
Office of the Chief Information Officer___________________________________ Date: ________
Risk Management
This agreement is approved for sufficiency of insurance standards, specifications, and requirements:
Office of the Risk Management Officer___________________________________ Date: _________
Financial Services
This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act:
Office of the Chief Financial Officer ____________________________________ Date: _________
Legal Services
This agreement is approved as to legal form and sufficiency:
Office of the County Attorney __________________________________________Date: ________
Clerk to the Board
Received for record retention:
All Docusign contracts must be copied to the Clerk upon completion: occlerkdocs@orangecountync.gov
The following signature block is for hard co pies only and is not required for Docusign contracts:
Office of the Clerk to the Board __________________________________________Date:_________
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12/28/2022
12/28/2022
12/29/2022
SizeUp Local Business Intelligence (Software As A Service) Agreement
This SizeUp (Software As A Service) Agreement, effective as of November ___, 2022 is entered into by
and between SizeUp, Inc. and Orange County Economic Development, located in Hillsborough, North
Carolina. In consideration of the mutual promises and upon the terms and conditions below, the parties
agree as follows:
1. License. Subject to the terms and conditions of this Agreement, SizeUp will provide Client with
online access to the SizeUp software for use as described in Exhibit A attached hereto (or a product with
identical functionality even if marketed under a different product name), including updates, bug fixes, or
other minor enhancements or improvements that are made generally available by SizeUp for users of
SizeUp software (hereafter the “Services”). Subject to the terms and conditions of this Agreement, and
upon payment in full to SizeUp, SizeUp grants to Client a personal, nontransferable, nonsublicensable,
nonexclusive limited license to use the Services for Clients’ own use, in accordance with any
documentation provided by SizeUp, to allow Client’s web site users to use SizeUp services as provided
by SizeUp. Subject to the terms and conditions of this Agreement, and upon payment in full to SizeUp,
SizeUp also grants to Client a personal, nontransferable, nonsublicensable, nonexclusive limited license
to download and embed the SizeUp widget software (“Widget Software”) on Client’s website solely, in
accordance with any documentation provided by SizeUp, for the purpose of providing users of Client’s
website the ability to use SizeUp services as provided by SizeUp. Client agrees that it shall not: i)
distribute, rent, sell, lease, license, assign or otherwise transfer all or any part of the Services or Widget
Software (including any associated documentation) and Client’s rights to use such Services, except for
use by web site end-users as described herein, ii) reverse engineer or otherwise attempt to discover
source code or underlying ideas or algorithms of the Services or Widget Software, or iii) modify or create
derivative works based on the Services or Widget Software, including any modification to the text, layout,
marks, logos or designs that appear in the SizeUp Widget. If Client does modify or create derivative
works, Client agrees to assign, and hereby does assign to SizeUp, all right, title and interest in and to all
and any modifications and derivative works of the Services or Widget Software created by Client. For the
sake of clarity, this Agreement does not grant Client any rights in the Widget Software, except for the right
to embed the Widget Software on its website in accordance with the license granted above. SizeUp
retains the sole and exclusive right to control and direct the manner or means by which Services are
performed, and may employ or subcontract others with respect to such services. Nothing herein entitles
Client to actual possession of any software other than as to the license for the Widget Software.
2. Client’s Duties and Responsibilities; Data. Client must follow SizeUp’s instructions how to add
the Services or Widget Software to Client’s website, including updated instructions, modifications,
additions or deletions to the Widget Software, as may be updated and provided by SizeUp. Services are
offered as or through an embedded tool. Data provided through the Services comes from a variety of
sources and is provided on an "as is" basis. SizeUp makes no guarantee or representation about the
accuracy or completeness of the information, and disclaims all warranties, express or implied, including
but not limited to warranties of merchantability, fitness for a particular purpose and non-infringement. See
Section 6. SizeUp is not responsible for any damages arising from the use of Services. It is the
responsibility of anyone using Services to independently investigate the information's accuracy and
completeness, and to determine to their satisfaction the suitability of the information for any needs. Any
projections, opinions, assumptions or estimates used are for example only and do not represent the
current or future performance of any business.
3. Fees and Payment.
3.1 Fees. The fees for the Services and Widget Software are specified in Exhibit A. Client
shall pay SizeUp the fees upon entering into this Agreement. Renewal fees as set forth in Exhibit A, if
any, shall be paid thirty (30) days prior to the end of the then current term. The renewal fees are subject
to change. SizeUp may cease provision of Services at any time if payment is not timely made and/or
suspend or terminate the licenses granted herein. In addition, Client shall pay SizeUp two percent (2.0%)
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interest per month on the outstanding balance of any fees or approved expenses not paid within thirty
(30) days of the due date.
3.2 Taxes. If Client is not a tax-exempt entity, Client shall pay or reimburse any and all
federal, state, dominion, provincial or local sales, use, personal property, excise, or other taxes, fees or
duties arising from or related to this Agreement (other than taxes based on SizeUp’s net income).
4. Ownership. Client acknowledges that, as between SizeUp and Client, all right, title and interest
in the Services and Widget Software including SizeUp Local Business Intelligence, and any other SizeUp
materials furnished or made available hereunder, and all modifications, enhancements and improvements
thereof, including all rights under copyright and patent and other intellectual property rights, belong to and
are retained solely by SizeUp, or SizeUp’s licensors and providers, if any. There are no implied rights.
Any rights not granted under this Agreement are reserved by SizeUp.
5. Confidential Information. To the extent permitted by law, Client agrees to keep confidential and
not disclose or use except in performance of its obligations under this Agreement, confidential or
proprietary information related to SizeUp’s technology or business, including, but not limited
to: information relating to products or technology of SizeUp or the properties, composition, structure, use
or processing thereof, computer programs, code, algorithms, schematics, data, know-how, processes,
ideas, inventions, and other technical, business, financial, and product development plans, forecasts,
strategies and information (all of the foregoing, “Confidential Information”). Client shall use reasonable
precautions to protect SizeUp’s Confidential Information. Confidential Information shall not include
information that (a) is in or enters the public domain including in reasonably available public or
government databases through no improper action or inaction by Client; (b) was rightfully in the Client’s
possession or known by it prior to receipt from SizeUp; (c) was rightfully disclosed to the Client by another
person without restriction; or (d) was independently developed by Client by persons without access to
such information and without use of any Confidential Information of SizeUp. Client may disclose
Confidential Information that is required to be disclosed by a court or other adjudicative body provided
that reasonable measures are taken to minimize disclosure and guard against further disclosure, and also
provided that Client gives SizeUp prior written notice of the proposed disclosure to allow SizeUp to seek
protection for the Confidential Information.
6. Warranty Disclaimer; Limitation of Liability. SIZEUP FOR ITSELF AND ITS LICENSORS IF
ANY, MAKES, AND CLIENT RECEIVES, NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, ARISING IN ANY WAY OUT OF, RELATED TO, OR UNDER THIS AGREEMENT OR
THE PROVISION OF MATERIALS OR SERVICES THEREUNDER, AND SIZEUP SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. IN ADDITION, CLIENT AGREES THAT SIZEUP’S LIABILITY UNDER THIS AGREEMENT
IS LIMITED TO THE AMOUNT PAID FOR THE SERVICES AND SOFTWARE BY CLIENT. IN NO
EVENT SHALL SIZEUP HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA
OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY
OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION.
7. Term and Termination. This Agreement will take effect on the Effective Date and will remain in
effect, unless earlier terminated in accordance herein, for the term specified in Exhibit A. At the end of
each term, this Agreement shall renew automatically for additional one (1) year terms unless either party
provides written notice of termination to the other at least thirty (30) days before the end of the then
current term. Any such renewal shall be subject to the same terms and conditions of this Agreement,
except for the renewal fee which may change after the initial term. Notwithstanding the foregoing, SizeUp
may immediately terminate this Agreement if SizeUp determines that Client has failed to materially
comply with any of the terms and conditions of this Agreement, or may terminate for convenience
provided that SizeUp offers Client a pro-rata reimbursement for the time period that the Services are not
provided due to such termination for convenience. This Agreement may be terminated by either party if
the other party (i) fails to pay any amount due under this Agreement within ten (10) days after written
notice of such nonpayment, or (ii) commits a material breach of this Agreement, which breach, if capable
of being cured, is not cured within thirty (30) days of written notice of termination. Termination by any
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means will not affect the provisions of this Agreement relating to the payment of amounts due, or the
provisions of Sections 4 (Ownership), 5 (Confidential Information), 6 (Warranty Disclaimer; Limitation of
Liability), 9 (Reference) and 10 (General Provisions) of this Agreement, all of which will survive
termination of this Agreement, regardless of the reason for termination. Upon termination, all licenses
and rights to the Services and Widget Software that are granted hereunder shall terminate, and Client
shall immediately return to SizeUp, SizeUp’s proprietary and confidential information, and documentation
regarding use of the Services and Widget Software, if any, along with a signed, written statement
certifying that Client has returned to SizeUp, and is no longer in possession of the foregoing items.
SizeUp.
8.Government Use. If Client is a unit or agency of the government, or licensing use of the
Services by payment with government funds, the Services are provided subject to SizeUp’s standard
commercial terms, set forth in this Agreement.
9.Reference: Client agrees that SizeUp may identify Client as a customer on its brochures,
websites, and other marketing materials, and describe the project and the Services provided by SizeUp to
Client. Nothing herein constitutes an endorsement of SizeUp by Client.
10.General Provisions. This Agreement is not assignable or transferable by Client, and any such
attempted assignment or transfer shall be void and without effect. Each party will be and act as an
independent contractor and not as an agent or partner of, or joint venturer with, the other party for any
purpose related to this Agreement or the transactions contemplated by this Agreement, and neither party
by virtue of this Agreement will have any right, power or authority to act or create any obligation,
expressed or implied, on behalf of the other party. This Agreement shall be governed by and construed
in accordance with the laws of the State of California or applicable federal law without regard to the
conflicts of law provisions thereof and without regard to the United Nations Convention on the
International Sales of Goods. The parties agree that any dispute relating to this Agreement shall be
heard in the courts located in California, Alameda County, and the parties consent to jurisdiction and
venue therein. In any action to enforce this Agreement the prevailing party will be entitled to costs and
attorneys' fees. The waiver by either party of a breach of this Agreement or any right hereunder shall not
constitute a waiver of any subsequent breach of this Agreement; nor shall any delay by either party to
exercise any right under this Agreement operate as a waiver of any such right. If any provision of this
Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire
agreement between the parties hereto related to the subject matter hereof, and any and all written or oral
agreements are expressly cancelled. Any modifications of this Agreement must be in writing and signed
by both parties hereto. Pre-printed purchase order terms and any other additional terms, and any terms in
conflict with this Agreement, shall be void and of no effect.
11.Indemnification. Client shall defend, indemnify and hold SizeUp harmless from any and all
claims, injuries, damages, losses or suits arising out of a claim (i) of any breach of this Agreement by
Client, its affiliates, employees agents, successors and assigns; and (ii) relating to or based on the
activities conducted by Client, its employees, contractors and agents, using or that used the Services;
and Client shall pay any final judgment entered against SizeUp in any such proceeding or agreed to in
settlement. Client shall be released from the above indemnification obligation unless SizeUp provides
Client with: i) reasonably prompt written notification of the claim or action; ii) sole control and authority
over the defense or settlement thereof; and iii) at no cost to Client, all reasonably available information
and assistance reasonably necessary to settle or defend any such claim or action.
SizeUp, Inc. Orange County Economic Development
By: By:
Name (print): Anatalio Ubalde Name (print):
Title: CEO Title:
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EXHIBIT A
1. Fees
Initial Term: 3 years
SizeUp Software As A Service Subscriptions
Individual Subscriptions
SizeUp Local Business Intelligence (LBI)
SizeUp Local Business Intelligence (LBI) with Premium Key Performance Indicators (KPIs)
SizeUp Shop Local
SizeUp Small Business Advisor
Three Subscription Suites
SizeUp Suite
SizeUp Suite with Premium Key Performance Indicators (KPIs)
Annual Fee: $9,750 (Nine-thousand-seven-hundred-fifty dollars and no cents)
One-time Setup Fee: $3,000 (Three-thousand dollars and no cents)
Annual Renewal Fee after Initial Term: Previous Annual Fee + 3% (three percent)
DocuSign Envelope ID: EC5EFAEF-2401-4C60-8F93-CF3CF6CC7702
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2. Services (Software As A Service)
SizeUp Local Business Intelligence (LBI)
The Services shall be the provision of SizeUp Local Business Intelligence software functionality (or a
product with identical functionality even if marketed under a different product name); references to
Services below shall refer to SizeUp Local Business Intelligence or SizeUp LBI as provided to end users)
on an online basis via the Internet. SizeUp LBI will be hosted on servers with an Internet service provider
or hosting facility that SizeUp owns or uses. SizeUp provides no client or customer service support, other
than providing documentation on installing the Widget Software by Client. The functionality of the
Services will include the following features:
• Industry Benchmarking - Website users of the Services as provided through Licensee’s Website
will be able to enter certain data about their business to receive industry benchmarking of their business
to other businesses in the same or similar industry. The information will be presented through graphs
and/or maps at varying geographic levels.
• Market mapping – Website users of the Services as provided through Licensee’s Website will be
able to view companies within the same/similar industry on a map. Users will also be able to select
businesses in industries they sell to or buy from and these will also be displayed on the map. This tool
helps enable businesses to spatially see the distribution of potential business competitors, customers,
and suppliers.
• Locations to advertise – Website users of the Services as provided through Licensee’s Website
will be able to enter their industry and city to see geographic locations to advertise based on a variety of
measurements and filters.
• Demographic analysis – Website users of the Services will be able to access demographic
reports and analysis in the Project Geography including demographic, consumer expenditures, and labor
force.
• Limited Industries and Geographies. The parties agree that provision of the Services through
Licensee’s Website will limit users to only being able to select from pre-defined industries and
geographies available through the Services. If SizeUp does not include data for a unique industry,
location, or combination of location and industry, SizeUp is not obligated to provide reports in any of these
situations.
Product evolution. The parties agree that the Services may change over time including the addition or
subtraction of features.
“Web site users” refers to end users accessing Client’s website who have the necessary and adequate
hardware, software and Internet connection services to access and use most commercial Internet sites.
Client may schedule additional consulting services as needed.
DocuSign Envelope ID: EC5EFAEF-2401-4C60-8F93-CF3CF6CC7702
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Small Business Advisor
The Services shall be the provision of SizeUp Small Business Advisor software functionality (or a product
with identical functionality even if marketed under a different product name); references to Services below
shall refer to SizeUp Small Business Advisor or SizeUp SBAdvisor as provided to end users) on an online
basis via the Internet. SizeUp SBAdvisor will be hosted on servers with an Internet service provider or
hosting facility that SizeUp owns or uses. SizeUp provides no client or customer service support, other
than providing documentation on installing the Widget Software by Client. The functionality of the
Services will include the following features:
• Plan Your Business - Website users of the Services as provided through Licensee’s Website will
be able to click to access webpages with content related to planning to open a business. This content
may include text, data, and/or other media content.
• Start Your Business – Website users of the Services as provided through Licensee’s Website will
be able to click to access webpages with content related to starting a business. This content may include
text, data, and/or other media content.
• Manager Your Business – Website users of the Services as provided through Licensee’s Website
will be able to click to access webpages with content related to planning to managing a business. This
content may include text, data, and/or other media content.
• Grow Your Business – Website users of the Services as provided through Licensee’s Website will
be able to click to access webpages with content related to planning to growing a business. This content
may include text, data, and/or other media content.
• Limited Industries and Geographies. The parties agree that provision of the Services through
Licensee’s Website will limit users to only being able to select from pre-defined industries and
geographies available through the Services. If SizeUp does not include data for a unique industry,
location, or combination of location and industry, SizeUp is not obligated to provide reports in any of these
situations.
Product evolution. The parties agree that the Services may change over time including the addition or
subtraction of features.
Review and acceptance period. The client shall have fourteen (14) days upon receipt of their client code
to evaluate their tool. Public use of the tool or expiration of the fourteen (14) days will constitute
acceptance of the tool as delivered.
“Web site users” refers to end users accessing Client’s website who have the necessary and adequate
hardware, software and Internet connection services to access and use most commercial Internet sites.
Client may schedule additional consulting services as needed.
DocuSign Envelope ID: EC5EFAEF-2401-4C60-8F93-CF3CF6CC7702
017005.7000\2564684.1 7
Shop Local
The Services shall be the provision of SizeUp Shop Local software functionality (or a product with
identical functionality even if marketed under a different product name); references to Services below
shall refer to SizeUp Shop Local as provided to end users on an online basis via the Internet. SizeUp
Shop Local will be hosted on servers with an Internet service provider or hosting facility that SizeUp owns
or uses. SizeUp provides no client or customer service support, other than providing documentation on
installing the Widget Software by Client. The functionality of the Services will include the following
features:
• Search businesses by industry - Website users of the Services as provided through Licensee’s
Website will be able to search for businesses by industry. The results of the search will be displayed in a
list format and shown geographically on a map.
• Search businesses by name - Website users of the Services as provided through Licensee’s
Website will be able to search for businesses by name after performing a search of businesses by
industry. The results of the search will be displayed in a list format and shown geographically on a map.
• Option to restrict search results to locally-owned companies - Client will have the option to show
only businesses results for which the headquarter location is within the client Project Geography.
• Limited Industries and Geographies. The parties agree that provision of the Services through
Licensee’s Website will limit users to only being able to select from pre-defined industries and
geographies available through the Services. If SizeUp does not include data for a unique industry,
location, or combination of location and industry, SizeUp is not obligated to provide reports in any of these
situations.
Product evolution. The parties agree that the Services may change over time including the addition or
subtraction of features.
Review and acceptance period. The client shall have fourteen (14) days upon receipt of their client code
to evaluate their tool. Public use of the tool or expiration of the fourteen (14) days will constitute
acceptance of the tool as delivered.
“Web site users” refers to end users accessing Client’s website who have the necessary and adequate
hardware, software and Internet connection services to access and use most commercial Internet sites.
Client may schedule additional consulting services as needed.
DocuSign Envelope ID: EC5EFAEF-2401-4C60-8F93-CF3CF6CC7702
017005.7000\2564684.1 8
3.Implementation Meetings and Trainings
SizeUp staff and Client will have the following meetings related to implementation of Services:
•Kickoff meeting (1 meeting, 1 hour, with SizeUp and Client) – This meeting starts the process of
implementing Services. Topics include, but are not limited to Introduction of team members, review of
implementation and marketing materials, discussion of timelines and scheduling of follow-up meetings,
review and walkthrough of Client’s Application, discussion of success criteria, and any additional
questions and answers.
•Training (1 meeting, 1 hour, with SizeUp and Client) – This meeting is designed for SizeUp to
train Client on the use of the SizeUp Services. In some cases, the Kickoff and Training meetings are
combined into one meeting. This meeting will include a demonstration and training of SizeUp on Client’s
web properties or hosted by SizeUp, followed by a Q&A session.
•Public Webinar (Optional) - Launch of the website to local businesses (1 meeting, 1 hour) – This
meeting is designed for SizeUp and Client to host a webinar to introduce and train local businesses about
the use of SizeUp Services. This meeting will follow the following format pre-webinar mic & audio check,
introductions, context setting, demo, Q&A, and additional demonstration scenarios as time permits,
followed by a wrap-up meeting and media availability.
•Implementation Review Meeting (1 meeting, 30 minutes, with SizeUp and Client) – This meeting
is designed to review the implementation and public launch of Services. Topics include, but are not
limited to, review of delivery by SizeUp team, review of implementation process, finalization of success
criteria for quarterly reviews. An anonymous survey will be sent to the Client’s team post-meeting for
additional feedback.
Client may schedule Additional Consulting Services as needed.
4. Project Geography
The geographic scope of the Services provided to Client will cover the geographic boundaries of Orange
County, North Carolina, which is an area with a population of no more than 150,000 people.
5. Additional Consulting Services
Except for Services identified above in this Exhibit A, any additional services requested, travel and time
(“Additional Consulting Services”) will be charged at a consulting fee rate of $150 per hour for staff, $275
per hour for senior staff, or $395 per hour for Principals, plus expenses for calendar year 2022. A four (4)
hour minimum is required for consulting services. Time will be billed in hourly increments. Unused time
shall expire one-hundred-eighty days after approval of additional consulting services. Client shall make
any request for Additional Consulting Services in writing and the parties shall agree to such additional
services in writing (including by e-mail) prior to performance of the Additional Consulting Services. The
hourly rate for service is subject to change, in which case client shall be notified and approve of change
before work is performed by SizeUp.
DocuSign Envelope ID: EC5EFAEF-2401-4C60-8F93-CF3CF6CC7702