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21-019 Mission Control GG, Inc., Technology Software-as-a-Service Agreement
Page 1 of 9 TECHNOLOGY SOFTWARE-AS-A-SERVICE (SaaS) AGREEMENT AGREEMENT BETWEEN THE CITY OF CUPERTINO AND MISSION CONTROL GG, INC. FOR SOFTWARE-AS-A-SERVICE THIS AGREEMENT (“Agreement”), by and between the CITY OF CUPERTINO, a California municipal corporation ("City"), and MISSION CONTROL GG, INC., a Corporation whose address is 401 Pine Street, Saint Louis, MO 63102 ("Software Provider") (collectively referred to as the “Parties”). RECITALS: The following Recitals are a substantive portion of this Agreement: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California. B. Software Provider is specially trained, experienced, and competent to perform the special services which will be required by this Agreement. C. City and Software Provider desire to enter into an agreement for Software Provider’s provision of software-as-a-service (SaaS) pertaining to City’s online systems. Through this Agreement, Software Provider shall provide to City E-sports application for teens and adults in our community relating to the City’s network. The full scope of services covered by this agreement is described in the attached Exhibit A: Service Level Agreement (the “SLA”). NOW, THEREFORE, the Parties mutually agree as follows: 1. TERM The term of this Agreement shall commence on the last date signed below (“Effective Date”). The term of this Agreement is 1 Year, unless the Agreement is terminated prior thereto under the provisions of Section 16, below. The City’s appropriate department head or the City Manager may extend the Term through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy. 2. SCOPE OF SERVICES AND CONDITIONS THEREOF Subject to the terms and conditions set forth in this Agreement, Software Provider shall perform each and every service to the schedule of performance set forth in the SLA (collectively “Services”), as described below. 1. Responsibilities of Software Provider. Software Provider shall provide the software services as further described in the SLA. The Services provided under this Agreement shall include (a) any software, plug-ins, or extensions related to the Services or upon which the Services are based including any and all updates, upgrades, bug fixes, dot releases, version upgrades, or any similar changes that may be made available to the Software Provider from time to time (the “Software”), (b) Page 2 of 9 any and all technical documentation necessary or use of the Services, in hard copy form or online (the “Documentation”), (c) regular maintenance of Software Provider’s system, and (d) other technology, user interfaces, know-how, and other trade secrets, techniques, designs, inventions, data, images, text, content, APIs, and tools provided in conjunction with the Services. 2. Equipment. If necessary to enable Software Provider to fulfill its obligations under the SLA, Software Provider shall, at its sole cost and expense, furnish all facilities, personnel and equipment to City necessary to provide the Services (the “Equipment”). City agrees, if necessary, to install the Equipment at the location(s) and in the manner specified by Software Provider and as directed by Software Provider. Any Equipment installed by City is a part of the Service and loaned to City by Software Provider, not sold. City agrees to return the Equipment to Software Provider at the termination of this Agreement in an undamaged condition, less ordinary wear and tear. 3. Registration. Prior to using the Services, City shall identify the administrative users for its account (“Administrators”). Each Administrator will be provided an administrator ID and password. 4. License Grant. Software Provider hereby grants City a license to use the Software and the Documentation for the permitted purpose of accessing the Services. 5. Reservation of Rights and Data Ownership. City shall own all right, title, and interest in its data that is related to the services provided by this contract. Software Provider shall not access City user accounts or City data, except (1) as essential to fulfillment of the objectives of this Agreement, (2) in response to service or technical issues, or (3) at City’s written request. 6. Data Protection. In carrying out the Services, Software Provider shall endeavor to protect the confidentiality of all confidential, non-public City data (“City Data”) as follows: 1. Implement and maintain appropriate security measures to safeguard against unauthorized access, disclosure, or theft of City Data in accordance with recognized industry practice. 2. City Data shall be encrypted at rest and in transit with controlled access. Unless otherwise stipulated, Software Provider is responsible for encryption of the City Data. 3. Software Provider shall not use any City Data collected by it in connection with the Service for any purpose other than fulfilling the obligations under this Agreement. 7. Software Ownership. Software Provider owns the Services, Software, Documentation, and any underlying infrastructure provided by Service Provider in connection with this Agreement. City acknowledges and agrees that (a) the Services, any Software, and Documentation are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws, (b) Software Provider retains all right, title, and interest (including, without limitation, all patent, copyright, trade secret, and other intellectual property rights) in and to the Services, the Software, any Documentation, any other deliverables, any and all related and underlying technology and any derivative works or modifications of any of the foregoing, including, without limitation, (c) the Software and access to the Services are Page 3 of 9 licensed on a subscription basis, not sold, and City acquires no ownership or other interest in or to the Services, the Software, or the Documentation other than the license rights expressly stated herein, and (d) the Services are offered as an on-line, hosted solution, and that City has no right to obtain a copy of the Services. 8. Restrictions. City agrees not to, directly or indirectly,: (i) modify, translate, copy, or create derivative works based on the Service or any element of the Software, (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein or block or disrupt any use or enjoyment of the Services by any third party, (iii) attempt to gain unauthorized access to the Services or their related systems or networks or (iv) remove or obscure any proprietary or other notice contained in the Services, including on any reports or data printed from the Services. 9. Security Incident. In the event a data breach occurs with respect to City Data, Software Provider shall immediately notify the appropriate City contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident. Software Provider shall (1) cooperate with City to investigate and resolve the data breach, (2) promptly implement necessary remedial measures, if necessary, and (3) document responsive actions taken related to the data breach, including any post-incident review of events and actions taken to make changes in business practices in providing the services, if necessary. 10. Notification of Legal Requests. Software Provider shall contact City upon receipt of any electronic discovery, litigation holds, discovery searches, and expert testimonies related to City Data. Software Provider shall not respond to subpoenas, service of process, and other legal requests related to City without first notifying City, unless prohibited by law from providing such notice. 11. Access to Security Logs and Reports. Software Provider shall provide reports to City in a format as specified in the SLA agreed to by both Software Provider and City. Reports shall include latency statistics, user access, user access IP address, user access history, and security logs for all City files related to this Agreement. 12. Responsibilities and Uptime Guarantee. Software Provider shall be responsible for the acquisition and operation of all hardware, software, and network support related to the services being provided. The technical and professional activities required for establishing, managing and maintaining the environments are the responsibilities of Software Provider. The system shall be available for City’s use on a 24/7/365 basis (with agreed-upon maintenance downtime). 13. Subcontractor Disclosure. Software Provider shall identify all of its strategic business partners related to services provided under this Agreement, including all subcontractors or other entities or individuals who may be a party to a joint venture or similar agreement with Software Provider, and who shall be involved in any application development and/or operations. 14. Business Continuity and Disaster Recovery. Software Provider shall provide to City a written business continuity and disaster recovery plan prior to or at the time of execution of this agreement and shall ensure that it meets City’s recovery time objective (RTO) of four (4) hours or less. 15. Compliance with Accessibility Standards. Software Provider shall comply with and adhere to the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101). Page 4 of 9 16. Web Services. Software Provider shall use Web services exclusively to interface with City Data in near real time when possible. 17. Encryption of Data at Rest. Software Provider shall ensure hard drive encryption consistent with validated cryptography standards as referenced in FIPS 140-2, Security Requirements for Cryptographic Modules for all personal data, unless City approves the storage of personal data on Software Provider’s portable device in order to accomplish work as defined in the statement of work. 3. COMPENSATION TO SOFTWARE PROVIDER Software Provider shall be compensated for services performed pursuant to this Agreement in a total amount not to exceed ($1,900.00)dollars. The payments specified in this section shall be the only payments to be made to Software Provider for services rendered pursuant to this Agreement. Software Provider shall invoice City according to the following schedule of milestones/deliverables: Milestone/Deliverable Total Amount Upon execution of contract 1,900 City shall pay Contractor within thirty (30) days after receipt of Service Provider’s invoice. City shall return to Contractor any payment request determined not to be a proper payment request as soon as practicable, but not later than seven (7) days after receipt, and shall explain in writing the reasons why the payment request is not proper. 4. TIME IS OF THE ESSENCE Software Provider and City agree that time is of the essence regarding the performance of this Agreement. 5. LICENSES; PERMITS; ETC. Software Provider represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature which are legally required to carry out the purposes of this Agreement. 6. ASSIGNMENTS. Software Provider may assign, sublease, or transfer this Agreement, or any interest therein, to a third party with the prior written consent of City. Such consent shall not be unreasonably withheld. City’s withholding of consent shall be deemed reasonable if it appears that the intended assignee in question is not financially or technically capable of performing Software Provider’s obligations under this Agreement, or if City has reason to conclude that the proposed assignee is otherwise incapable of fulfilling Software Provider’s duties hereunder. Page 5 of 9 7. INDEPENDENT PARTIES City and Software Provider intend that the relationship between them created by this Agreement is that of independent contractor. No civil service status or other right of employment will be acquired by virtue of Software Provider's services. None of the benefits provided by City to its employees, including but not limited to unemployment insurance, workers' compensation plans, vacation, and sick leave are available from City to Software Provider, its employees, or agents. Software Provider is not a "public official" for purposes of Government Code §§ 87200 et seq. 8. IMMIGRATION REFORM AND CONTROL ACT (IRCA) Software Provider assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or other federal or state rules and regulations. Software Provider shall indemnify and hold City harmless from and against any loss, damage, liability, costs, or expenses arising from any noncompliance of thi s provision by Software Provider. 9. NON-DISCRIMINATION Consistent with City's policy prohibiting harassment and discrimination, Software Provider agrees that neither it nor its employee or subcontractors shall harass or discriminate against a job applicant, a City employee, or a citizen on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, sexual orientation, or any other protected class status. Software Provider agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 10. INTELLECTUAL PROPERTY INDEMNIFICATION Software Provider agrees to, at its expense, defend and/or settle any claim made by a third party against City alleging that the City's use of the Services infringes such third party’s United States patent, copyright, trademark, or trade secret (an “IP Claim”), and pay those amounts finally awarded by a court of competent jurisdiction against City with respect to such IP Claim. 11. DUTY TO INDEMNIFY AND HOLD HARMLESS Software Provider shall indemnify, defend, and hold harmless City and its officers, officials, agents, employees, and volunteers from and against any and all liability, claims, actions, causes of action, or demands whatsoever against any of them, including for any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential, or otherwise, arising out of, pertaining to, or related to the performance of this Agreement by Software Provider or Software Provider’s employees, officers, officials, agents, or subcontractors, except where such liability arises solely as a result of the active negligence or willful misconduct of City. Such costs and expenses s hall include reasonable attorneys’ fees of counsel of City’s choice, expert fees, and all other costs and fees of litigation. Page 6 of 9 Provider agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. The provisions of this Section 11 survive the completion of the Services or termination of this Agreement. 12. INSURANCE: A. General Requirements. On or before the commencement of the term of this Agreement, Software Provider shall furnish City with certificates showing the type, amount, class of operations covered, effective dates, and dates of expiration of insurance coverage in compliance with the requirements listed in Exhibit B. Software Provider shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement. B. Subrogation Waiver. Software Provider agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Software Provider shall look solely to its insurance for recovery. Software Provider hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Software Provider or City with respect to the services of Software Provider herein, a waiver of any right to subrogation which any such insurer of said Software Provider may acquire against City by virtue of the payment of any loss under such insurance. 13. RECORDS Software Provider shall maintain internal records reflecting that the Services were performed by Software Provider hereunder in accordance with customary recordkeeping practices in the software development industry. Software Provider shall provide free access to such records to the representatives of City or its designee’s at all reasonable and proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary. No such examination and audit shall give City the right to access records relating to other Software Provider customers. Such records shall be maintained for a period of four (4) years after Software Provider receives final payment from City for all services required under this Agreement. 14. NONAPPROPRIATION This Agreement is subject to the fiscal provisions of the Cupertino Municipal Code, and this Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. Page 7 of 9 15. NOTICES All notices, requests, and approvals must be sent to the persons below in writing to the persons below, and will be considered effective on the date of personal delivery, the delivery date confirmed by a reputable overnight delivery service, on the fifth (5th) calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: TO CITY: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Bill Mitchell TO SOFTWARE PROVIDER: Mission Control GG, INC. 401 Pine Street Saint Louis, MO 63102 Attention: Andrew Madison 16. TERMINATION A. Basis for Termination. In the event Software Provider fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Software Provider shall be deemed in default in the performance of this Agreement. If Software Provider fails to cure the default within the time specified and according to the requirements set forth in City’s written notice of default, and in addition to any other remedy available to the City by law, the City Manager or her designee may terminate the Agreement by giving Software Provider written notice thereof, which shall be effective immediately. The City Manager or her designee shall also have the option, at her sole discretion and without cause, of terminating this Agreement by giving seven (7) calendar days' prior written notice to Software Provider as provided herein. Upon receipt of any notice of termination, Software Provider shall immediately discontinue performance. B. Pro Rata Payments. City shall pay Software Provider for services satisfactorily performed up to the effective date of termination. In such event, a calculation of the amounts due shall be deemed correct as computed on a pro rata basis with compensation provided for the period of service paid as a percentage of the total contract amount. C. Handling of City Data. In the event of a termination of this Agreement, Software Provider shall implement an orderly return of City data in a CSV or another mutually agreeable format at a time agreed to by the parties and the subsequent secure disposal of City data. During any period of service suspension, Software Provider shall not take any action to intentionally erase any City data for a period of thirty (30) days after the effective date of termination, unless authorized by City. City shall be entitled to any post-termination assistance generally made available with respect to the Services; unless a unique data retrieval arrangement Page 8 of 9 has been established as part of the SLA. Software Provider shall securely dispose of all requested data in all of its forms, including disk, CD/DVD, backup tape, and paper, when requested by City. Data shall be permanently deleted and shall not be recoverable, according to National Institute of Standards and Technology (NIST)- approved methods. Certificates of destruction shall be provided to City. 17. WARRANTY AND WARRANTY DISCLAIMER Software Provider warrants that, (i) the Services shall be provided in a diligent, professional, and workmanlike manner in accordance with industry standards, (ii) the Services provided under this Agreement do not infringe or misappropriate any intellectual property rights of any third party, and (iii) the Services shall substantially perform in all material respects as described in the SLA. In the event of any breach of section (iii), above, Software Provider shall, as its sole liability and as City’s sole remedy, repair or replace the Services that are subject to the warranty claim at no cost to City, or if Software Provider is unable to repair or replace, then it will refund any pre-paid fees for services not rendered. Except for the warranty described in this section, the Services are provided without warranty of any kind, express or implied, including, but not limited to, the implied warranties or conditions of design, merchantability, fitness for a particular purpose, and any warranties of title and non-infringement. 18. COMPLIANCE Software Provider shall comply with all state or federal laws and all ordinances, rules, policies, and regulations enacted or issued by City. 19. CONFLICT OF LAW This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. Any suits brought pursuant to this Agreement shall be filed with the Superior Court for the County of Santa Clara, State of California. 20. ADVERTISEMENT Software Provider shall not post, exhibit, or display, or allow to be posted, exhibited, or displayed, any signs, advertising, show bills, lithographs, posters, or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 21. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Software Provider. In the event that any Service Level Agreement, Exhibit, associated instrument, or agreement executed by the Parties in conjunction with Page 9 of 9 this Agreement or prior thereto contains a term that conflicts with the terms of this Agreement, the terms of this Agreement shall govern and supersede any other document or Exhibit. 22. AUTHORITY The individual(s) executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed. CITY OF CUPERTINO A Municipal Corporation By ___________________ Title ___________________ Date __________________ APPROVED AS TO FORM: _________________________ City Attorney Heather M. Minner ATTEST: __________________________ City Clerk __________________________ Date SOFTWARE PROVIDER MISSION CONTROL GG, INC. By ___________________ Title ___________________ Date __________________ Austin M Smith CEO Oct 27, 2020 Heather M. Minner Nov 3, 2020 IT Manager Applications Nov 4, 2020 Mission Control GG Service Level Agreement 1. Purpose. Mission Control is in the business of designing and operating a software-as-a-service platform which facilitates the formation of recreational esports leagues (the "Services"). Individuals within Channel Partner's network wish to have access to the Services and Channel Partner wishes to arrange for such access for the Authorized Users (the "Purpose"). In order to fulfil the Purpose, the Parties enter into this Agreement. 2.Payment for Access to the Services. Channel Partner shall pay Mission Control the following: 2.1 Setup Fee. Channel Partner shall pay Mission Control a setup fee for the on-boarding and deliverables as Channel Partner joins the platform: Basic Setup Fee (Automated Setup Process): $700.00 Advanced Setup Fee (Exclusive 1on1 Setup Process): $1,500.00 2.2 Annual Fee. Beginning 10/22/2020, unless Channel Partner terminates this agreement by written notice to Mission Control, Channel Partner will automatically be charged a recurring annual fee for access to the Services, based upon the number of Active Authorized Users accessing the Services. "Active Authorized Users" are defined as users who have been registered in Channel Partner’s organization on the Mission Control platform within the previous 30 days or has been active in a league associated with Channel Partner's organization on the Mission Control platform within the previous 90 days. Channel Partners will not be upgraded to a new tier (as set forth below) without its explicit consent. Select the tier you expect to be in (subject to change, based on size, pending approval): 0 – 40 Active Authorized Users: $600.00 ("Tier 1") 41-150 Active Authorized Users: $1,200.00 ("Tier 2") 151-500 Active Authorized Users: $3,000.00 ("Tier 3") 500+ Mutually Agreed Upon Pricing 3. Revenue Share. Channel Partner intends to charge League Registration Fees Channel Partner does not intend to charge League Registration Fees 3.1 League Registration Fee Revenue Share. If the applicable box is checked immediately above, as directed by the Channel Partner at time of League Creation, Mission Control will charge Authorized Users a fee for participating in the Services (a "League Registration Fee"). Mission Control will pay to the Channel Partner 90% of League Registration Fee gross revenues generated by the Channel Partner's Authorized Users (the "Revenue Share Amount"). If the applicable box is not checked immediately above, the provisions of this Section 3 shall not apply to the relationship between the Parties. 3.2 Reporting. Monthly, no later than the 30th day of the month following the month in which a League Registration Fee is paid, Mission Control shall send to Channel Partner a report X X X EXHIBIT A - SLA indicating the amount of League Registration Fees paid by Channel Partner's Authorized Users and the Revenue Share Amount for the preceding month. 3.3 Payment of Revenue Share. Monthly, no later than the 30th day of the month following the month in which a League Registration Fee is paid, Mission Control shall pay the Revenue Share Amount to Channel Partner via ACH using the following instructions: 4.Licensing of Marks. Each of the Parties grants to the other the limited, non-transferable, revocable permission to use the other Party's trademarks, service marks or other identifying marks of the other Party (the "Marks") in order to achieve the Purpose. No other use of the Marks is permitted without the express written consent of the other Party. Neither Party shall depict the Marks in any manner or in any materials that would tend to denigrate, disparage, tarnish, present in a false light, or otherwise reflect negatively on the Marks, the other Party or any of its affiliates, or any of the other Party's respective products or services. The Parties may revoke the permission set forth in this Section 4 at any time by written notice. Each Party may publicly disclose the fact that an agreement between Mission Control and Channel Partner exists, however the terms of this Agreement shall be kept confidential by both Parties. 5.Terms of Use. The relationship between Mission Control and Channel Partner, and the use of the Services by Authorized Users shall at all times be subject to Mission Control's Terms of Use, as set forth at https://app.termly.io/document/terms-of-use-for-website/15087e11-678e-49c8-9fb9- feff372268de, as may be amended from time to time. 6. Data and Privacy. The relationship between Mission Control and Channel Partner, and the use of the Services by Authorized Users shall at all times be subject to Mission Control's Terms of Use, as set forth at https://app.termly.io/document/privacy-policy/61d2c399-55ab-4ba8-b7bf- 9c704dd6330c#infocollect, as may be amended from time to time. Contract No. ________ Exhibit B: Insurance Requirements and Proof of Insurance Proof of insurance coverage described below is attached to this Exhibit, with City named as additional insured. 1. MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES Additional Insureds: The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s Commercial General Liability and Cyber Liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage: Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self- insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Software Provider’s insurance and shall not contribute to it. Notice of Cancellation: Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Workers' Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Software Provider, its employees, agents, and subconsultants. General Liability: For bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Software Provider’s policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 01 (04/13). Contract No. ________ c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Agreement. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect City as a named insured. Automobile Liability ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. Cyber Liability: Insurance, with limits not less than: $2,000,000 each occurrence $2,000,000 aggregate - all other Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Software Provider in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion, and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. If the Software Provider maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Software Provider. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 2. ABSENCE OF INSURANCE COVERAGE. City may direct Software Provider to immediately cease all activities with respect to this Agreement if it determines that Software Provider fails to carry, in full force and effect, all insurance policies with coverages at or above the limits specified in this Agreement. At the City’s discretion, under conditions of lapse, City may purchase appropriate insurance and charge all costs related to such policy to Software Provider. 3. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION. A Certificate of Insurance, on an Accord form, and completed coverage verification shall be provided to City by each of Software Provider's insurance companies as evidence of the stipulated coverages prior to the Commencement Date of this Agreement, and annually thereafter for the term of this Agreement. All of the insurance companies providing insurance for Software Provider shall be licensed to do insurance business in the State of California and shall have, and provide evidence of, a Best Rating Service rate of A:VII or above. Contract No. ________ 4. SUBCONTRACTORS Software Provider shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies. 5. HIGHER INSURANCE LIMITS If Software Provider maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Software Provider. 6. ADEQUACY OF COVERAGE City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 06/15/2020 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 have ADDITIONAL INSURED provisions or 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 Vouch Insurance Services, LLC 831 Montgomery Street San Francisco, CA 94133 CONTACT NAME: PHONE (A/C, No, Ext): FAX (A/C, No): E-MAIL ADDRESS : INSURER(S) AFFORDING COVERAGE NAIC # INSURER A : State National Insurance Company 12831 INSURED Mission Control GG, Inc. 401 Pine St St. Louis, MO 63102 INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: COI.25.ESJ8.1 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 LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) LIMITS COMMERCIAL GENERAL LIABILITY HDG.BOP.20.FLQM-ESJ8 06-10-2020 06-10-2021 EACH OCCURRENCE $1,000,000 CLAIMS-MADE X OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence) $100,000 X Business Liability MED EXP (Any one person) $10,000 PERSONAL & ADV INJURY $1,000,000 GEN’L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 X POLICY PRO-JECT LOC PRODUCTS - COMP/OP AGG $2,000,000 OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $ ANY AUTO BODILY INJURY (Per person) $ OWNED AUTOS ONLY HIRED AUTOS ONLY SCHEDULED AUTOS NON-OWNED AUTOS ONLY BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ Per Occurrence Limit $ UMBRELLA LIAB EXCESS LIAB OCCUR CLAIMS-MADE EACH OCCURRENCE $ EXCESS LIAB AGGREGATE $ DED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N / A PER STATUTE OTH- ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ DIRECTOR AND OFFICERS CYBER - 1ST PERSON CYBER - 3RD PERSON CRIME -COMPUTER FRAUD & FUNDS CRIME - COUTERFIT MONEY CRIME – EMPLOYEE DISHONESTY CRIME – FOGERY & ALTERATION CRIME - FRAUDULENT IMPERSONATION CRIME - OFF-PREMISE MONEY + SECURITIES CRIME - ON-PREMISE MONEY & SECURITIES HDG.MPL.20.9KVC-VBTD HDG.CRIME.20.D1LK-UOOK 06-10-2020 06-10-2020 06-10-2021 06-10-2021 D&O LIMIT: $1,000,000 CYBER 1ST PERSON LIMIT: $250,000 CYBER 3RD PERSON LIMIT: $500,000 COMPUTER FRAUD & FUNDS LIMIT: $10,000 COUTERFIT MONEY LIMIT: $25,000 EMPLOYEE DISHONESTY LIMIT: $500,000 FOGERY & ALTERATION LIMIT: $100,000 FRAUDULENT IMPERSONATION LIMIT: $10,000 OFF-PREMISE MONEY + SECURITIES LIMIT: $10,000 ON-PREMISE MONEY & SECURITIES LIMIT: $25,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) CERTIFICATE HOLDER CANCELLATION ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE John Wallace (415) 488-6728 john.wallace@vouch.us @vouch INFORMATIONAL ONLY. CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 10/21/2020 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 SUBROGATIONIS 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 WEISS INSURANCE AGENCY INC 84531203 683 TRADE CENTER BLVD STE 100 CHESTERFIELD MO 63005 CONTACT NAME: PHONE (A/C, No, Ext): (636) 787-7777 FAX (A/C, No): (636) 787-7778 E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC# INSURER A :Hartford Fire and Its P&C Affiliates 00914 INSURED MISSION CONTROL GG, INC. 401 PINE ST SAINT LOUIS MO 63102-2731 INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: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 LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/Y YYY) LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE CLAIMS-MADE OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence) MED EXP (Any one person) PERSONAL & ADV INJURY GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE POLICY PRO- JECT LOC PRODUCTS - COMP/OP AGG OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) ANY AUTO BODILY INJURY (Per person) ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per accident) HIRED AUTOS NON-OWNED AUTOS PROPERTY DAMAGE (Per accident) UMBRELLA LIAB EXCESS LIAB OCCUR CLAIMS- MADE EACH OCCURRENCE AGGREGATE DED RETENTION $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N/ A 84 WBC AH6K25 09/15/2020 09/15/2021 X PER STATUTE OTH- ER Y/N E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE -EA EMPLOYEE $1,000,000 E.L. DISEASE - POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Those usual to the Insured's Operations. CERTIFICATE HOLDER CANCELLATION Mission Control Customer 401 PINE ST SAINT LOUIS MO 63102 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03)The ACORD name and logo are registered marks of ACORD