Contract - Bonfire Interactive LTD - 1/12/2023 CITY OF ROUND ROCK AGREEMENT FOR
PURCHASE OF ELECTRONIC BIDDING SOFTWARE
WITH
BONFIRE INTERACTIVE, LTD.
THE STATE OF TEXAS §
CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS §
THAT THIS AGREEMENT for the purchase of electronic bidding software and re ated
services (referred tp herein as the "Agreement"), is made and entered into on this the �rday
of the month of , 2023 by and between the CITY OF ROUND ROCK, a Texas
home-rule municipality, whos offices are located at 221 East Main Street, Round Rock, Texas
78664-5299 (referred to herein as the "City"), and BONFIRE INTERACTIVE, LTD., whose
offices are located at 121 Charles Street West, Kitchener, Ontario, Canada N2G1H6 (referred to
herein as "Vendor").
RECITALS:
WHEREAS, City desires to purchase electronic bidding software and related services;
and
WHEREAS, Chapter 271, Subchapter D of the Texas Local Government Code allows for
a local government to participate in a state cooperative purchasing program for the purposes of
procuring goods and services; and
WHEREAS, the Texas Department of Information Resources ("DIR") is a state approved
cooperative purchasing program wherein the state performs purchasing services on behalf of
local governments; and
WHEREAS,Vendor is an approved DIR vendor; and
WHEREAS, the City is permitted to purchase from a DIR Contract and desires to
purchase certain goods and services from Vendor's DIR Contract No. DIR-TSO-4363; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties, and obligations;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
R-2o2Z-00Z.
4853-7922-6431/ss2
1.01 DEFINITIONS
A. Agreement means the binding legal contract between City and Vendor whereby
City is obligated to buy specified goods and services and Vendor is obligated to provide said
goods and services. The Agreement includes all attached exhibits.
B. City means the City of Round Rock, Williamson and Travis Counties, Texas.
C. Effective Date means the date upon which the binding signatures of both parties
to this Agreement are affixed.
D. Force Majeure means acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind from the government of the United
States or the State of Texas or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government
and the people, civil disturbances, explosions, or other causes not reasonably within the control
of the party claiming such inability.
E. Goods and services mean the specified services, supplies, materials,
commodities, or equipment.
2.01 EFFECTIVE DATE AND TERM
A. This Agreement shall be effective on the date this Agreement has been signed by
each party hereto, and shall remain in full force and effect unless and until it expires by operation
of the term indicated herein, or is terminated or extended as provided herein.
B. The term of this Agreement shall be for sixty (60) months from the effective date
hereof.
C. City reserves the right to review the relationship with Vendor at any time, and
may elect to terminate this Agreement with or without cause or may elect to continue.
3.01 CONTRACT DOCUMENTS AND EXHIBITS
The goods and services which are the subject of this Agreement are described in Exhibit
"A," attached hereto and incorporated herein by reference for all purposes. The Vendor's
Software License and Support Agreement is attached hereto as Exhibit `B," and incorporated
herein by reference for all purposes. Exhibit"A" and Exhibit`B,"together with this Agreement,
comprise the total Agreement and they are fully a part of this Agreement as if repeated herein in
full.
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4.01 SCOPE OF WORK
Vendor shall satisfactorily provide all services described under the attached Exhibit "A."
Vendor's undertakings shall be limited to performing services for the City and/or advising City
concerning those matters on which Vendor has been specifically engaged. Vendor shall perform
its services in accordance with this Agreement, in accordance with the appended exhibit, in
accordance with due care, and in accordance with prevailing industry standards for comparable
services.
5.01 CONTRACT AMOUNT
In consideration for the goods and related services set forth in Exhibit"A," City agrees to
pay Vendor an amount not to exceed Thirty-Eight Thousand Nine Hundred Sixty-Two and
50/100 Dollars ($38,962.50) per year for a total amount not-to-exceed amount One Hundred
Ninety-Four Thousand Eight Hundred Twelve and 50/100 Dollars ($194,812.50) for the term
of the Agreement.
6.01 INVOICES
All invoices shall include, at a minimum,the following information:
A. Name and address of Vendor;
B. Purchase Order Number;
C. Description and quantity of items received or services provided; and
D. Delivery or performance dates.
7.01 NON-APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may affect such termination by
giving Vendor a written notice of termination at the end of its then current fiscal year.
8.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Vendor will be made within thirty (30) days of the day on which City receives the performance,
supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on
which the performance of services was complete, or within thirty (30) days of the day on which
City receives a correct invoice for the performance and/or deliverables or services, whichever is
later. Vendor may charge interest on an overdue payment at the "rate in effect" on September 1
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of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b); however, this Policy does not apply to payments made
by City in the event:
A. There is a bona fide dispute between City and Vendor, a contractor, subcontractor
or supplier about the goods delivered or the service performed that cause the
payment to be late; or
B. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
C. There is a bona fide dispute between Vendor and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late; or
D. Invoices are not mailed to City in strict accordance with instructions, if any, on
the purchase order or the Agreement or other such contractual agreement.
9.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without liability to Vendor
if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or
otherwise were offered or given by Vendor or its agents or representatives to any City officer,
employee or elected representative with respect to the performance of this Agreement. In
addition, Vendor may be subject to penalties stated in Title 8 of the Texas Penal Code.
10.01 TAXES
City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be
included in Vendor's charges.
11.01 ORDERS PLACED WITH ALTERNATE SERVICES PROVIDERS
If Vendor cannot provide the goods as specified, City reserves the right and option to
obtain the products from another supplier or suppliers
12.01 CITY'S REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
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Susan Morgan
Chief Financial Officer
Finance Department
221 East Main Street
Round Rock, Texas 78664
(512) 218-5445
smorgangroundrocktexas.gov
13.01 INSURANCE
Vendor shall meet all City of Round Rock Insurance Requirements as set forth at:
http://www.roundrocktexas.goy/wp-content/uploads/2014/12/corr insurance 07.20112.pdf.
14.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
parry's intent to perform hereunder, then demand may be made to the other party for written
assurance of the intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made, then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
15.01 DEFAULT
If Vendor abandons or defaults under this Agreement and is a cause of City purchasing
the specified goods elsewhere, Vendor agrees that it may be charged the difference in cost, if
any, and that it will not be considered in the re-advertisement of the service and that it may not
be considered in future bids for the same type of work unless the scope of work is significantly
changed.
Vendor shall be declared in default of this Agreement if it does any of the following:
A. Fails to fully, timely and faithfully perform any of its material obligations
under this Agreement;
B. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
C. Becomes insolvent or seeks relief under the bankruptcy laws of the United
States.
16.01 TERMINATION AND SUSPENSION
A. City has the right to terminate this Agreement, in whole or in part, for
convenience and without cause, at any time upon thirty (30) days' written notice to Vendor.
B. In the event of any default by Vendor, City has the right to terminate this
Agreement for cause, upon ten(10)days' written notice to Vendor.
C. Vendor has the right to terminate this Agreement only for cause, that being in the
event of a material and substantial breach by City, or by mutual agreement to terminate
evidenced in writing by and between the parties.
D. In the event City terminates under subsections (A) or (B) of this section, the
following shall apply: Upon City's delivery of the referenced notice to Vendor, Vendor shall
discontinue all services in connection with the performance of this Agreement and shall proceed
to cancel promptly all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement. Within thirty (30) days after such notice of termination, Vendor
shall submit a statement showing in detail the goods and/or services satisfactorily performed
under this Agreement to the date of termination. City shall then pay Vendor that portion of the
charges, if undisputed. The parties agree that Vendor is not entitled to compensation for services
it would have performed under the remaining term of the Agreement except as provided herein.
17.01 SOFTWARE LICENSE AGREEMENT
City agrees to hold, use and operate software in compliance with the Software and
License Support Agreement, attached hereto as Exhibit `B," and incorporated herein by
reference for all purposes.
18.01 COMPLIANCE WITH LAWS, CHARTER, AND ORDINANCES
A. Vendor, its agents, employees and subcontractors shall use best efforts to comply
with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock,
as amended, and with all applicable rules and regulations promulgated by local, state and
national boards,bureaus and agencies.
B. In accordance with Chapter 2270, Texas Government Code, a governmental entity
may not enter into a contract with a company for goods and services unless the contract contains
written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott
Israel during the term of this contract. The signatory executing this Agreement on behalf of
Vendor verifies Vendor does not boycott Israel and will not boycott Israel at any time during the
term of this Agreement.
C. In accordance with 2274, Texas Government Code, a governmental entity may
not enter into a contract with a company with at least ten (10) full-time employees for a value of
at least One Hundred Thousand and No/100 Dollars ($100,000.00) unless the contract has
provision in the contract verifying that it: (1) does not have a practice, policy, guidance, or
directive that discriminates against a firearm entity or firearm trade association; and (2) will not
discriminate during the term of the contract against a firearm entity or firearm trade association.
The signatory executing this Agreement on behalf of Vendor verifies Vendor does not have a
practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade
association, and it will not discriminate during the term of this Agreement against a firearm
entity or firearm trade association.
D. In accordance with 2274, Texas Government Code, a governmental entity may
not enter into a contract with a company with at least ten (10) full-time employees for a value of
at least One Hundred Thousand and No/100 Dollars ($100,000.00) unless the contract has
provision in the contract verifying that it: (1) does not boycott energy companies; and(2)will not
boycott energy companies during the term of this Agreement. The signatory executing this
Agreement on behalf of Vendor verifies Vendor does not boycott energy companies, and it will
not boycott energy companies during the term of this Agreement.
19.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party.
20.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
1. When delivered personally to the recipient's address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Vendor:
Bonfire Interactive, Ltd.
121 Charles Street West
Kitchener, Ontario, Canada N2G 1 H6
Notice to City:
City Manager Stephanie L. Sandre, City Attorney
221 East Main Street AND TO: 309 East Main Street
Round Rock, TX 78664 Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Vendor.
21.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
22.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Vendor and City. This Agreement may only be amended or supplemented by mutual agreement
of the parties hereto in writing, duly authorized by action of the City Manager or City Council.
23.01 DISPUTE RESOLUTION
City and Vendor hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
24.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
25.01 MISCELLANEOUS PROVISIONS
Standard of Care. Vendor represents that it employs trained, experienced and
competent persons to perform all of the services, responsibilities and duties specified herein and
that such services, responsibilities and duties shall be performed in a manner according to
generally accepted industry practices.
Time is of the Essence. Vendor understands and agrees that time is of the essence and
that any failure of Vendor to fulfill obligations for each portion of this Agreement within the
agreed timeframes will constitute a material breach of this Agreement. Vendor shall be fully
responsible for its delays or for failures to use best efforts in accordance with the terms of this
Agreement. Where damage is caused to City due to Vendor's failure to perform in these
circumstances, City may pursue any remedy available without waiver of any of City's additional
legal rights or remedies.
Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it is not
responsible as defined herein. However, notice of such impediment or delay in performance
must be timely given, and all reasonable efforts undertaken to mitigate its effects.
Multiple Counterparts. This Agreement may be executed in multiple counterparts, any
one of which shall be considered an original of this document; and all of which, when taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates
indicated.
City of Round Rock, Texas Bonfire Interactive, Ltd.
By: By:
Printed Na e: Printed Name: e'!l
Title: Title: I/P
Date Signed: Date Signed: ' �_-
Attest:
B ,
Meagan Spi Ci Clerk
For City,Approved as to Form:
By:
Stephanie L. Sandre, City Attorney
Exhibit "A"
ORDER FORM
fire• Bonfire Interactive Ltd.
66 Bon
121 Charles St.W.Suite C429,Kitchener,ON
Plan a Annual City of Round Rock
Current USD 221 E Main St.,Suite 221
Year 1 Term Start:01-Jan-23 End:31-Dec-23 Round Rock,Texas,USA,78664
Year 2 Term Start:01-Jan-24 End:31-Dec-24 Attn:David Carter
Year 3 Term Start:01-Jan-25 End:31-Dec-25 Prepared on:Oct 12th 2022
Year 4Term Start:0l-an-26 End:31-Dec-26
Year 5 Term Start:01-an-27 End:31-Dec-27
Billing Cycle JAnnuai
Data Location I USA
Quantity Description Rate Amount
12 Seats Bonfire eSourcing I $3,5W.00 $42,000.00
Bonfire Contract Management $9,950.00 $9,950.00
Single Sign On Included
Less:Provided Discount(25%OffAnnual Fees) -$12,987.50
Unlimited Additional Review Licenses for Leadership/Ancillary Users Included
Unlimited Evaluators,Draft Editors,and Observers Included
Unlimited Solicitations Included
Bidtables Included ^�
Questionnaires Included
Unlimited Vendors Included
Unlimited Contract Records Included
Community Pro'ects&Tem lates Included
Vendor Registration&Reporting Included
Vendor Performance Management Included
Insights(KPI Reporting) Included
Maintenance/Hosting Included
Associated Releases/Upgrades Included
lOn-going Support Included
Year 1 Costs $38,962.50
Year 2 Costs $38,962.50
Year 3 Costs $38,962.50
Year 4 Costs $38,962.50
Year 5 Costs $38,962.50
QUOTE COMMENTS:
-includes all internal users including suppliers,data analysts,managers,administrators,evaluators&advisor/client roles for the organization
-Includes implementation,training,unlimited projects,support,submissions,and cloud storage.
-The ongoing annual rate is$38,962.50.Contract is in accordance with Texas DIR Contract DIR-TSO-4363
•This order form serves as an amendment to Phase 2 on previously executed Order form(dated June 30,2022). The proposal will remain
expire January 31,2022
SIGNATURE&EXECUTION:
The Customer hereby agrees to order the products and/or services outlined above at the prices indicated,and acknowledges it has read,
understands and agrees to be bound by the terms and conditions detailed under Texas DIR Contract DIR-TSO-4363
City of Round Rock:
Date: Name: Signature:
Payment Type:❑Credit Card❑Check ❑Bank Transfer❑Purchase Order,PO#
121 Charles St.W.Suite C429,Kitchener,ON GoBonfirexom
Exhibit T"
Bonfire Interactive Ltd. Appendix D DIR-TSO-4363
SOFTWARE LICENSE AND SUPPORT AGREEMENT
1. LICENSE.Bonfire Interactive Ltd.("Bonfire")hereby grants to Customer(identified on the Order Form),
for internal use by Customer, its agents, contractors, employees and suppliers (collectively, the
"Users") a non-transferable, non-exclusive, non-sub-licensable right and license (the "License") to
access and use the services identified on Schedule A (collectively, the "Platform Services") (being
software, data and applications of Bonfire for purposes of collecting, managing, analyzing and
reporting data)during the Term (as outlined on the Order Form).The Platform Services shall be made
available on-line at bonfirehub.com or bonfirehub.ca (or such other URL as Bonfire may designate
from time to time) (the "Site") from a third party hosted facility, located in the country specified on
the Order Form, and/or other systems used by Bonfire to host the Platform Services in the country
specified on the Order Form (collectively, the "Systems"). Platform Services may be amended,
enhanced or modified from time to time by Bonfire. Users shall access the Platform Services by means
of a specific account (the "Customer's Account") using individual User login names and passwords
("Passwords") provided by Bonfire. Bonfire shall enable the Platform Services and provide the
Passwords on the Plan Start Date (identified on the Order Form).The Customer is responsible for the
confidentiality and use of its Passwords and Customer Account, and in no event shall Bonfire be liable
for any loss of information of the Customer or other claims arising from unauthorized access to the
Platform Services as a result of the failure by Customer to protect the confidentiality of its Passwords
and Customer Account. Bonfire is also responsible for the confidentiality of the Passwords and
Customer Account provided to Customer and shall in all events be liable and indemnify Customer for
any breach of this provision.
2. USE. The License and Support (as defined in Section 3 below) is granted exclusively for Customer's
internal use, and the Customer is solely and exclusively responsible:
a. For the collection, accuracy, currency, quality, legality, completeness and use of Customer
Data (as defined in Section 7.2 below) that is stored on the Systems, disclosed to or used by
Customer or Users in connection with the Platform Services;
b. For the content of all communications (including without limitation, any transfer of signs,
signals, text, images, videos, sounds, data or intelligence of any nature transmitted in whole
or in part electronically the "Electronic Communications") while using Customer's Account;
c. To ensure that it and the Users will not use the Platform Services to communicate, by way of
Electronic Communication or otherwise, any message or material that (1) is libelous, harmful
to minors, obscene or constitutes pornography; (2) infringes the copyrights, patents, trade
secrets, trademarks, trade names or other proprietary rights of a third party or is otherwise
unlawful; or (3) would otherwise give rise to any breach of confidentiality or privacy laws, or
any civil liability, or that constitutes or encourages conduct that could constitute a criminal
offence, under any applicable law or regulation;
d. To ensure that the use of the Platform Services by any User is limited to the rights outlined
herein; and the Customer shall not permit Users, directly or indirectly, to do (and shall be
responsible for any violation of) any of the following acts:
i. Reverse engineer, de-compile, disassemble or otherwise attempt to discover the
source code or underlying ideas or algorithms of the Platform Services;
ii. Modify,translate, or create derivative works from the Platform Services;
iii. Rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise
commercially exploit the Platform Services;
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WAT LAW\6092016 V
Exhibit T"
Bonfire Interactive Ltd. Appendix D DIR-TSO-4363
iv. Publish or disclose to third parties any evaluation of the Platform Services without
prior written notice to Bonfire;
v. Violate any local, state / provincial, federal or foreign law, treaty, regulation or
convention applicable to the Customer in connection with Users' use of the Platform
Services;
vi. Access data or log into a server or account on the System that the Customer is not
authorized to access, or access or tamper with other customer accounts of Bonfire;
vii. Willfully tamper with the security of, or probe,scan or test the vulnerability of, any of
the Systems, or render any part of the Systems unusable.
3. SUPPORT AND MAINTENANCE. Bonfire shall provide general maintenance services and technical
support in respect of the Platform Services("Support")throughout the Term, during Business Days(as
defined in Schedule A). The Customer acknowledges that the Support will not be available during
System maintenance periods for purposes of upgrades and maintenance to the Platform Services
and/or System. Downtime for such System maintenance periods shall only occur between the hours
of 11:00 pm and 6:00 am Eastern Standard Time ("Downtime") unless there is a defect that renders
the Platform Services unavailable in which case Bonfire shall take steps to correct such deficiency
immediately. Otherwise, Bonfire will make reasonable efforts to announce the scheduled Downtime
via e-mail to the Customer's designated e-mail address.Support does not include services required as
a result of (i) User misuse, improper use, alteration, or damage of the Platform Services; (ii) any
problem caused by modifications in any version of the Platform Services not made or authorized by
Bonfire; (iii) any problem resulting from the Customer combining or merging the Platform Services
with any hardware or software not supplied by Bonfire,or not identified by Bonfire as compatible with
the Platform Services and/or Systems, or (iv) any custom development services outlined on Schedule
A hereto. Optional additional services which may be provided by Bonfire at the request of the
Customer are as outlined on Schedule A hereto.
4. SERVICE LEVEL AGREEMENT. Bonfire shall provide the Platform Services at a service level described in
the Service Level Agreement outlined on Schedule B hereto.
S. CUSTOM DEVELOPMENT. Custom Application Development is not allowed under DIR Contract No.
DIR-TSO-4363, and therefore, is not available or payable under the present agreement. In the event
the Customer wishes to have Bonfire provide additional custom development and/or services at any
time during the Term, the parties will negotiate the terms and conditions of such additional services,
and enter into a mutually agreeable contract which, among other things,will address which party will
own any and all intellectual property developed as a result.
6. FEES, PAYMENT AND TAXES.
6.1 Fees. Fees for the License, Platform Services and Support (collectively the "Fees") are based on (i)
Appendix C Pricing Index to DIR Contract No. DIR-TSO-4363 and the Plan Type selected by the
Customer, and (ii)the number of projects("Projects")that the Plan Type includes, each as defined on
the Order Form.
6.2 Payment.
a. General. All Fees are quoted in American currency and are non-refundable except as may
otherwise be provided in DIR Contract No. DIR-TSO-4363, its Appendices and this Agreement.
The Fees in an Order Form apply for the Initial Term and any Renewal.
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WAT LAW\6092016\1
Exhibit "B"
Bonfire Interactive Ltd. Appendix D DIR-TSO-4363
b. Invoicing. Invoicing shall be handled in accordance with Appendix A, Section 8.1., to DIR
Contract No. DIR-TSO-4363.
c. Expenses. Expenses shall be paid in accordance with Appendix A,Section 8 and Appendix C to
DIR Contract No. DIR-TSO-4363. The Customer is responsible for all its internet connection
charges related to the use of the Platform Services.
7. OWNERSHIP AND CONFIDENTIALITY.
7.1 Intellectual Property. The Customer acknowledges and agrees that the Platform Services, and all
intellectual property rights therein (including without limitation, copyrights, patents, trade secrets,
trademarks, moral rights and other intellectual property rights, in and to the Platform Services,and all
modifications, changes, enhancements, or additions thereto (whether initiated by the Customer or
otherwise), and all intellectual property rights relating to the provision of Support in respect of the
Platform Services (collectively, "Bonfire IP"), are owned or licensed by Bonfire. Except for the License
granted hereunder, nothing in this Agreement gives the Customer any right, title or interest in, to or
under any of the Bonfire IP,and to the extent the Customer acquires rights in the Bonfire IP, Customer
assigns such rights to Bonfire and waives any moral rights it may have in the Bonfire IP to and in favor
of Bonfire. All Bonfire IP shall be deemed to be Confidential Information (as defined below), and the
Customer shall be bound by all confidentiality provisions.
7.2 Customer Data. "Customer Data" means any data, information or other materials of any nature
recorded in any form whatsoever, disclosed or provided to Bonfire by the Customer and by the Users
in the course of using the Platform Services, including all information generated by the Users' use of
the Platform Services.The Customer retains all right,title and interest in and to all Customer Data.The
Customer Data shall be deemed to be Confidential Information (as defined below) of the Customer,
and Bonfire will restrict access to Customer's Confidential Information to those Bonfire employees,
consultants and/or subcontractors who have a need to access the Customer Data in order to provide
the Platform Services and Support and have agreed to be bound by the confidentiality provisions
outlined herein. The Customer agrees that it is solely and exclusively responsible for the collection,
accuracy, currency, quality, legality, completeness and use of Customer Data that is stored on the
System, disclosed to or used by Customer or Users in connection with the Platform Services, and for
compliance with all applicable laws and regulations in the appropriate jurisdiction, including without
limitation with respect to privacy, non-disclosure and confidentiality.
7.3 Bonfire Access and Use. Bonfire shall have the right to access the Customer's Account from time to
time,for purposes of Support, administration, anonymized data aggregation, invoicing and to inspect
the Customer's utilization of the Platform Services so as to ensure Customer's compliance with the
provisions of this Agreement.
7.4 Confidential Information. As used herein, "Confidential Information" means all confidential and
proprietary information of a party that is disclosed to the other party pursuant to this Agreement,and
includes without limitation all Passwords,Customer Account information,Customer Data,and Bonfire
IP. Each party agrees to keep all Confidential Information disclosed to it by the other party strictly
confidential, in the same manner as it protects the confidentiality of its own information and data (at
all times exercising at least a reasonable degree of care in the protection of the Confidential
Information). Confidential Information shall not include information which: (a) is known publicly; (b)
is generally known in the industry before disclosure; (c) has become known publicly, without fault of
a party, subsequent to disclosure by the other party; or (d) has been otherwise lawfully known or
received by a party. This section will not be construed to prohibit the disclosure of Confidential
Information if required by law or order of the court or other governmental authority, provided that a
3
Exhibit "B"
Bonfire Interactive Ltd. Appendix D DIR-TSO-4363
party shall give the other party prompt notice of such request,so that the other party has a reasonable
time to attempt to limit or prevent such disclosure. Upon termination of this Agreement, all copies of
all Confidential Information shall be either returned to the applicable party or destroyed, at the
discretion and written direction of the other party.
8 TERM AND TERMINATION.
8.1 Term. Subject to DIR Contract No. DIR-TSO-4363, and its appendices, the License and Support shall
commence on the Plan Start Date (as outlined on the Order Form) and shall continue for the Term
outlined on the Order Form (the "Initial Term"), unless earlier terminated in accordance with the
provisions of Appendix A,Section 11.13.to DIR Contract No. DIR-TSO-4363.
8.2 Termination.This Agreement may be terminated subject to Appendix A,Section 11.6.to DIR Contract
No. DIR-TSO-4363.
8.3 Effect of Termination.This Agreement may be terminated subject to Appendix A,Section 11.6.to DIR
Contract No. DIR-TSO-4363. Upon the effective date of termination,the License and all Support shall
terminate and:
a. Survival of contract terms shall be handled in accordance with Appendix A, Section 4.E. to
DIR Contract No. DIR-TSO-4363; and
b. Each of the parties shall have all remedies which are available to it at law or in equity.
9 INSURANCE.
Bonfire shall, at its own cost and expense, procure and maintain in full force and effect during the
Term, policies of insurance from licensed and reputable insurance carriers covering the operations of
Bonfire and its potential liabilities pursuant to this Agreement in accordance with Appendix A,Section
10.N.to DIR Contract No. DIR-TSO-4363.
10 WARRANTIES AND DISCLAIMERS.
10.1 Software Limited Warranty. Bonfire warrants that the Platform Services will operate in substantial
conformity with the applicable written documentation provided by Bonfire. For any breach of this
warranty, Customer's remedy shall be that Bonfire will, at its expense, correct any errors identified by
Customer in the Platform Services, in addition to any other remedy that might be available to
Customer for such breach by Bonfire. Bonfire also warrants that it will maintain the Platform Services
at reputable third party Internet service providers and hosting facilities. Bonfire warrants that it has
implemented industry best practices security measures, including without limitation, technical,
physical and procedural controls to protect Customer Data against destruction, loss, alteration,
unauthorized disclosure to third parties or unauthorized access by employees or contractors employed
by Bonfire,whether by accident or otherwise. However,the Customer acknowledges and agrees that,
notwithstanding such security measures,use of or connection to the Internet provides the opportunity
for unauthorized third parties to circumvent such precautions and illegally gain access to the Platform
Services and Customer Data.Accordingly, Bonfire cannot and does not guarantee the privacy,security
or authenticity of any information so transmitted over or stored in any system connected to the
Internet. For any breach of the foregoing warranties, Bonfire shall pay to Customer all damages the
Customer suffers in connection with such breach, subject to the limitations set out in Section 11.
10.2 Exclusions. Except as expressly stated in this Section 11, there are no warranties or conditions
(whether implied or arising by statute or otherwise in law or from a course of dealing or usage of trade)
for the Platform Services or Support, and BONFIRE DISCLAIMS ALL STATUTORY OR IMPLIED
WARRANTIES AND CONDITIONS INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR
4
Exhibit "B"
Bonfire Interactive Ltd. Appendix D DIR-TSO-4363
WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR ANY PURPOSE,
PARTICULAR, SPECIFIC OR OTHERWISE. Bonfire does not warrant that the functions contained in the
Platform Services will meet the Customer's requirements or that the operation of the Platform
Services will be uninterrupted.
Limitations of Liability. UNLESS PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY
OR THEIR RESPECTIVE AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, WHETHER OR NOT FORESEEABLE INCLUDING
WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE, OR FAILURE TO REALIZE
EXPECTED SAVINGS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTALAGGREGATE LIABILITY OF BONFIRE FOR DIRECT DAMAGES UNDERTHIS AGREEMENT SHALL
BE LIMITED TO THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON
WHICH THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE.
HOWEVER,THIS LIMITATION OF BONFIRE'S LIABILITY SHALL NOT APPLY TO CLAIMS OF BODILY INJURY;
VIOLATION OF INTELLECTUAL PROPERTY RIGHTS INCLUDING BUT NOT LIMITED TO PATENT,
TRADEMARK, OR COPYRIGHT INFRINGEMENT; INDEMNIFICATION REQUIREMENTS UNDER THIS
AGREEMENT; AND VIOLATION OF STATE OR FEDERAL LAW INCLUDING BUT NOT LIMITED TO
DISCLOSURES OF CONFIDENTIAL INFORMATION AND ANY PENALTY OF ANY KIND LAWFULLY ASSESSED
AS A RESULT OF SUCH VIOLATION.
11 INDEMNIFICATION. Indemnification shall be handled in accordance with Appendix A, Section 10.A. of
DIR Contract DIR-TSO-4363.
12 GENERAL PROVISIONS.
12.1 Entire Agreement. DIR Contract No. DIR-TSO-4363, its Appendices, this Agreement, and any
amendments or additions thereto from time to time, constitute the entire agreement and set forth
the entire understanding between the parties hereto with respect to the subject matter hereof and
supersede all prior or other agreements, covenants, arrangements and discussions with respect
thereto. In the event of an inconsistency between the terms and conditions of this Agreement and any
other document or agreement between the parties with respect to the subject matter hereof, the
Order of Precedence shall be as set forth in DIR Contract No. DIR-TSO-4363 and shall prevail and
govern to the extent necessary to remedy such inconsistency.
12.2 Relationship of Customer and Bonfire. Nothing contained in this Agreement shall be deemed or
construed as creating a joint venture or partnership between the parties; no party is by virtue of this
Agreement authorized as an agent, employee or agent representative of the other.
12.3 Export and control restrictions. The Customer acknowledges that this Agreement and the
provision of all products hereunder shall be subject to the export control laws and regulations of the
United States of America as are in force from time to time and the Customer shall comply with all such
laws and regulations.
12.4 Non-Exclusivity. Nothing in this Agreement will be construed to prevent Bonfire from marketing,
licensing, selling or otherwise providing the Platform Services, Support or Systems, or any aspects of
Bonfire's technology or services to any third party. Nothing in this Agreement will be construed to
prevent the Customer from obtaining services similar to the Platform Services from a third party.
12.5 Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid
or binding unless set forth in writing and fully executed by both parties hereto in accordance with
Appendix A, Section 4.E. to DIR Contract No. DIR-TSO-4363. Any waiver of any right or remedy under
this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy
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Exhibit "B"
Bonfire Interactive Ltd. Appendix D DIR-TSO-4363
shall operate as a waiver of such right or remedy or any other right or remedy.The exercise or failure
to exercise any remedy shall not preclude the exercise of that remedy at any time.The waiver of any
breach hereof or default in any payment shall not be deemed to constitute a waiver of any succeeding
breach or default.
12.6 Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned,
sublicensed or otherwise transferred except in accordance with Appendix A, Section 4.D. to DIR
Contract No. DIR-TSO-4363. This Agreement shall be binding upon and shall inure to the benefit of
Bonfire and the Customer and each of their successors and permitted assigns.
12.7 Governing Law.The rights and obligations of the parties and all interpretations and performance
of this Agreement shall be governed by and construed in accordance with the laws of the State of
Texas, USA,without regard to conflicts of laws principles.The parties agree that the provisions of the
United Nations Convention on Contracts for the International Sale of Goods do not apply to this
Agreement. The parties irrevocably and unconditionally stipulate to the exclusive venue of the state
district courts of Travis County,Texas.
12.8 Notices.Any notices, demands and other communications hereunder shall be in writing and shall
be delivered, sent by electronic transmission, or by mail, registered or certified, return receipt
requested, postage prepaid, and addressed to the parties as outlined on the Order Form. All notices
shall be effective and deemed to be delivered (i) if mailed, on the fifth business day following such
mailing, unless there is an interruption in the mail,in which case it shall be deemed to have been given
when received; or (ii) if delivered or sent by facsimile, on the business day following the date of
dispatch or the date of transmission, as the case may be. Either party may change the address for
notice by giving written notice of such change to the other party in the manner provided in this Section.
12.9 Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of
competent jurisdiction, such provision shall be modified to the extent necessary to render it
enforceable, or shall be severed from this Agreement,and all other provisions of this Agreement shall
remain in full force and effect.
12.10 Force Majeure. Issues of Force Majeure shall be addressed according to the terms set forth in
Appendix A, Section 11.C.to DIR Contract No. DIR-TSO-4363.
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Exhibit "B"
Bonfire Interactive Ltd. Appendix D DIR-TSO-4363
SCHEDULE A—SERVICE DESCRIPTIONS AND DEFINITIONS
All capitalized terms used in this Schedule shall have the meanings ascribed thereto in the Agreement.
1. PLATFORM SERVICES.
a. Description of Platform Services. Platform Services include the following functionality:
i. Public portal for file upload/submission.
ii. Project creation and management.
iii. User account creation and management.
iv. Evaluation criteria and scorecard creation and management.
v. Scoring summary creation and management.
vi. General file management.
vii. Dashboards and activity reports.
viii. Data exports.
2. CUSTOM DEVELOPMENT AND SERVICES. Custom Application Development is not allowed under DIR
Contract No. DIR-TSO-4363 and therefore, is not available or payable under this Agreement
3. BUSINESS DAYS.
a. Business Days are defined as Monday—Friday.
b. Business Days do not include holidays, which include:
i. New Year's Day(January 1)
ii. President's Day/Family Day(Third Monday in February)
iii. Good Friday(Friday before Easter Sunday)
iv. Victoria Day(Monday before May 25)
v. Labor Day(First Monday in September)
vi. Columbus Day/Thanksgiving Day(Second Monday in October)
vii. Christmas Day(December 25)
viii. Boxing Day(December 26)
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Exhibit "B"
Bonfire Interactive Ltd. Appendix D DIR-TSO-4363
SCHEDULE B—SERVICE LEVEL AGREEMENT
Bonfire understands the importance and centrality the Platform Services plays in supporting an
organization's business processes.We value and appreciate the trust that each customer places in us.
This Service Level Agreement("SLA")is a policy governing the use of the Platform Services between Bonfire
("us" or"we") and users of Platform Services ("you").This SLA applies separately to each Customer using
the Platform Services. Any amendments or revisions to this SLA will be in writing and agreed to by both
parties.
Bonfire is committed to providing reliable high-performance managed services to our customers. Our SLA
has been designed to ensure the highest quality service and to provide compensation to the Customer in
the event of failure to achieve the specified metrics herein.
1. SERVICE COMMITMENT.
a. Service Availability. Bonfire will use commercially reasonable efforts to make the Platform
Services available with a Monthly Uptime Percentage(defined below)of at least 99.5%during
any monthly billing period. In the event Bonfire does not meet the Service Commitment,you
will be eligible to receive a Service Credit as described below.
b. Data Redundancy. Bonfire will use commercially reasonable efforts to provide at a minimum
one (1) redundant data store for Customer Data, updated on a daily basis, during the period
of the Term.
c. Data Storage Term. While there exists an SLA in place between the Customer and Bonfire,
Bonfire will use commercially reasonable efforts to store all Customer Data for a period of
nine (9)years from its creation date.
d. Data Exportation. Bonfire will use commercially reasonable efforts to provide (i) the access
or means for the Customer to export the Customer Data out of the Platform Services or(ii) a
comprehensive export of all Customer Data in downloadable Excel and ZIP formats upon
request.
2. SERVICE AVAILABILITY DEFINITIONS.
a. Server Outage.A "Server Outage" is defined as an instance in which no traffic can pass in or
out of the Bonfire managed server(s) for more than 15 consecutive minutes ("Service
Unavailable"). We will calculate the Service Unavailable for each Customer as a percentage
for each fifteen-minute period in the monthly billing cycle.The calculation of the number of
Server Outages will not include outages that arise directly or indirectly as a result of any of
the SLA Exclusions(as defined below).
b. Monthly Uptime Percentage.The "Monthly Uptime Percentage"is calculated by subtracting
from 100%the average of the Service Outage from each fifteen-minute in the monthly cycle.
3. SERVICE CREDITS. "Service Credits"are calculated as a percentage of the total charges paid by you to
Bonfire for the billing cycle in which the error occurred in accordance with the schedule below.
a. Service Credit Percentages:
i. For Monthly Uptime Percentage equal to or greater than 99.0% but less than
99.5%-Service Credit of 1%
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Exhibit "B"
Bonfire Interactive Ltd. Appendix D DIR-TSO-4363
ii. For Monthly Uptime Percentage less than 99%-Service Credit Percentage of 5%.
We will apply any Service Credits against future Bonfire payments otherwise due from you unless there
are none, in which case Service Credits will be refunded.A Service Credit will be applicable and issued
only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 U.S.
Dollar). Service Credits may not be transferred or applied to any other Customer.
4. SERVICE CREDIT PROCEDURE.To receive a Service Credit,you must submit a request by sending an e-
mail message to support@gobonfire.com. To be eligible, the credit request must (i) include your
account URL in the subject of the e-mail message; (ii) include, in the body of the e-mail,the dates and
times of each incident of each outage; and (iii) be received by us within ten (10) business days after
the end of the billing cycle in which the errors occurred. If the Monthly Uptime Percentage applicable
to the month of such request is confirmed by us, we will issue the Service Credit to you within one
billing cycle following the month in which the error occurred. Your failure to provide the request and
other information as required above will disqualify you from receiving a Service Credit.
5. SERVICE COMMITMENT EXCLUSIONS.The Service Commitment does not apply to any unavailability,
suspension, termination of Platform Services, or any other Platform Services performance issues (i)
that result from Downtime and Service Suspensions as defined below. "Service Suspensions" means,
collectively, Bonfire's right to suspend access to any portion or all of the Platform Services at any time,
on a Service-wide basis: (a) for scheduled Downtime to permit us to conduct maintenance or make
modifications to any Platform Service; (b) in the event of a denial of service attack or other attack on
the Platform Service or other event that we determine, in our sole discretion, may create a risk to the
applicable Platform Service, to you or to any of our other customers if the Platform Service were not
suspended; or(c) in the event that we determine that any Platform Service is prohibited by law or we
otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons To the
extent we are able,we will endeavor to provide you email notice of any Service Suspension and email
notice regarding resumption of Platform Services following any such suspension; (ii)caused by factors
outside of our reasonable control, including any force majeure event or Internet access or related
problems beyond the demarcation point of the Platform Services; (iii) that result from any actions or
inactions of you or any third party; or (iv) that result from your equipment, software or other
technology and/or third parry equipment, software or other technology (other than third party
equipment within our direct control). If availability is impacted by factors other than those used in our
calculation of the Server Outage, we may issue a Service Credit considering such factors in our sole
discretion.
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