HomeMy WebLinkAboutItem 21 - Governmentjobs.com Inc. (NEOGOV) Online Onboarding & Perform. Eval. Services Human Resources Department
https://www.santa-ana.org/hr
Item # 21
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
June 15, 2021
TOPIC: Agreement with Governmentjobs.com Inc. dba NEOGOV for Online Onboarding
and Performance Evaluation Services
AGENDA TITLE:
Approve an Agreement with Governmentjobs.com Inc. dba NEOGOV for online
onboarding and performance evaluation services.
RECOMMENDED ACTION
Authorize the City Manager to execute a two-year agreement with NEOGOV for online
Onboard and Perform services for the period of July 1, 2021 through June 30, 2023 in the
amount of $85,709.19, with provisions for two (2) one-year renewals, which, if exercised
would not exceed a total of $188,161.47, subject to non-substantive changes approved
by the City Manager and City Attorney.
DISCUSSION
Over the last several years, the City has partnered with NEOGOV to provide online
recruitment software and services through its Insight module and new employee
onboarding through its Onboard platform.
On July 5, 2017, the City entered into a three-year agreement with NEOGOV for its
Onboard platform, which included an option for two (2) one-year renewals (Agreement
#2017-162). On July 1, 2020, the City exercised its first extension (Agreement #2017-
162-01). Staff recommends entering into a new agreement with NEOGOV to continue
using the Onboard platform. Onboard allows candidates to transition from applicant to
employee, complete required new hire forms online, and provide information on benefits
enrollment.
Furthermore, the proposed agreement with NEOGOV also includes their Perform platform
services. Perform integrates with the existing NEOGOV platforms, and will allow the City
to process employee performance evaluations electronically with automatic notification to
managers. It is the intent to eliminate the manual, paper-laden process currently in place.
In order to evaluate potential options and best practices, the City assessed information
gleaned from Human Resources departments from five other municipalities. Following
Agreement with Governmentjobs.com Inc. dba NEOGOV
June 15, 2021
Page 2
1
7
7
9
the review of options, staff recommends selecting NEOGOV Perform based on a number
of factors including references provided by other agencies and required system
functionality and capabilities. In addition, NEOGOV Perform was found to be a more
robust system for managing performance appraisal that integrates with the City’s existing
business system of record for personnel and compensation data.
Adding the Onboard and Perform platforms with the existing Insight module will promote
efficiency, automation, and create a more comprehensive online process.
FISCAL IMPACT
The Agreement is for a two-year period from July 1, 2021 to June 30, 2023 for an amount
not to exceed $85,709.19, with two (2) one-year options for renewal. If all options are
exercised, the Agreement would last four (4) years for a total aggregate of $188,161.47.
The first year of the agreement is $9,484.57 less than the second year as a result of a
50% reduction in the license fee (as a promotion offered by NEOGOV). The second year
of the Agreement reflects the full Perform license amount. The optional third and fourth
year renewal options shall not increase more than 5% from the previous year. $38,112.31
has been budgeted for FY 2021-22 and future years will be budgeted accordingly in the
Human Resources Contract Services- Professional account (01109050-62300) as
follows:
FISCAL
YEAR
ACCOUNTING
UNIT –
ACCOUNT #
FUND
DESCRIPTION
ACCOUNTING UNIT,
ACCOUNT
DESCRIPTION
TOTAL
AMOUNT
2021 -
2022
01109050 -
62300
Human
Resources
Human Resources,
Contract Services-
Professional
$38,112.31
2022 -
2023
01109050 -
62300
Human
Resources
Human Resources,
Contract Services-
Professional
$47,596.88
2023 –
2024
(Optional)
01109050 -
62300
Human
Resources
Human Resources,
Contract Services-
Professional
$49,976.72
2024 –
2025
(Optional)
01109050 -
62300
Human
Resources
Human Resources,
Contract Services-
Professional
$52,475.56
Total
(Including
Optional
2 years)
$188,161.47
Agreement with Governmentjobs.com Inc. dba NEOGOV
June 15, 2021
Page 3
1
7
7
9
EXHIBITS
1. GovernmentJobs.com., Inc. (d/b/a “NEOGOV”) Order Form and Exhibit A - Service
Agreement
Submitted By: Jason R. Motsick, Executive Director - Human Resources
Approved By: Kristine Ridge, City Manager
1
NEOGOV SERVICES AGREEMENT
V020121
<RX DJUHH WKDW E\ SODFLQJ DQ RUGHU WKURXJK D NEOGOV VWDQGDUG RUGHULQJ GRFXPHQW (WKH ³OUGHU´ RU ³OUGHULQJ
DRFXPHQW´) \RX DJUHH WR IROORZ DQG EH ERXQG E\ WKH WHUPV DQG FRQGLWLRQV VHW IRUWK KHUHLQ. ³GRYHUQPHQWMREV.FRP´,
³NEOGOV´, ³ZH´, DQG ³RXU´ PHDQV GRYHUQPHQWMREV.FRP, IQF.(GED ³NEOGOV´) DQG, ZKHUH DSSOLFDEOH, LWV DIILOLDWHV;
³CXVWRPHU´, ³\RX´, ³\RXU´ PHDQV WKH GRYHUQPHQWMREV.FRP FOLHQW, FXVWRPHU, RU VXEVFULEHU LGHQWLILHG LQ WKH OUGHULQJ
Document.
If you are placing such an Order on behalf of a legal entity, you represent that you have the authority to bind such entity
WR WKH WHUPV DQG FRQGLWLRQV RI WKH OUGHULQJ DRFXPHQW DQG WKHVH WHUPV DQG, LQ VXFK HYHQW, ³\RX´ DQG ³\RXU´ DV XVHG LQ
WKHVH DJUHHPHQW WHUPV VKDOO UHIHU WR VXFK HQWLW\. ³AJUHHPHQW´ VKDOO EH XVed to collectively refer to this NEOGOV
SHUYLFHV AJUHHPHQW (WKH ³SHUYLFHV AJUHHPHQW´), GRFXPHQWV LQFRUSRUDWHG KHUHLQ LQFOXGLQJ WKH DSSOLFDEOH OUGHULQJ
Document and Schedule(s), and Special Conditions (if any).
1.Provision of Services. Subject to the terms of this Agreement NEOGOV hereby agrees to provide Customer with
access to its SaaS Applications and Professional Services (each defined below) included or ordered by Customer
LQ WKH DSSOLFDEOH OUGHULQJ DRFXPHQW (FROOHFWLYHO\ UHIHUUHG WR DV WKH ³SHUYLFHV´). Customer hereby acknowledges
DQG DJUHHV WKDW NEOGOV¶V SURYLVLRQ DQG SHUIRUPDQFH RI, DQG CXVWRPHU¶V DFFHVV WR, WKH SHUYLFHV LV GHSHQGHQW
DQG FRQGLWLRQHG XSRQ CXVWRPHU¶V IXOO SHUIRUPDQFH RI LWV GXWLHV, REOLJDWLRQV DQG UHVSRQVLELOLWLHV KHUHXQGHU. TKLV
Agreement entered into as of the date of your signature on an applicable Ordering Document or use of the Services
FRPPHQFHV (WKH ³EIIHFWLYH DDWH´). TKH AJUHHPHQW VXSHUVHGHV DQ\ SULRU DQG FRQWHPSRUDQHRXV GLVFXVVLRQV,
agreements or representations and warranties.
2.SaaS Subscription.
a)SXEVFULSWLRQ GUDQW. ³SDDS ASSOLFDWLRQV´ PHDQV HDFK SURSULHWDU\ NEOGOV ZHE-based software-as-a-service
application that may be set forth on an Order and subsequently made available by NEOGOV to Customer,
and associated components as described in the Service Specifications made available to Customer by
NEOGOV. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and
conditions of this Agreement, NEOGOV hereby grants to Customer a limited, non-exclusive, non-transferable,
and non-sublicensable right to (a) access and use, and to permit Authorized Users to access and use, the
SDDS ASSOLFDWLRQV VSHFLILHG LQ WKH OUGHU VROHO\ IRU CXVWRPHU¶V LQWHUQDO, QRQ-commercial purposes; (b)
generate, print, and download Customer Data as may result from any access to or use of the SaaS
Applications; and (c) train Authorized Users in uses of the SaaS Applications permitted hereunder (these rights
VKDOO FROOHFWLYHO\ EH UHIHUUHG WR DV WKH ³SDDS SXEVFULSWLRQ´) . ³AXWKRUL]HG UVHUV´ PHDQV (L) CXVWRPHU
employees, agents, contractors, consultants who are authorized by Customer to access and use the Services
under the rights granted to Customer pursuant to this Services Agreement and (ii) for whom access to the
Services has been purchased hereunder. You may not access the SaaS Applications if you are a direct
competitor of NEOGOV or its affiliates. In addition, you may not access the SaaS Applications for purposes
of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive
purposes.
b)Delivery and Subscription Term. NEOGOV delivers each SaaS Application by providing Customer with online
access. When you access NEOGOV SaaS Applications, you are accepting it for use in accordance with this
Agreement. Unless otherwise specified in an applicable Ordering Document, SaaS Subscriptions shall
commence on the Effective Date and remain in effect for twelve (12) consecutive months, unless terminated
earlier in accordance with this Agreement (tKH ³IQLWLDO THUP´). TKHUHDIWHU, SDDS SXEVFULSWLRQV VKDOO
DXWRPDWLFDOO\ UHQHZ IRU VXFFHVVLYH WZHOYH (12) PRQWK WHUPV (HDFK D ³RHQHZDO THUP´ DQG WRJHWKHU ZLWK WKH
IQLWLDO THUP, FROOHFWLYHO\, WKH ³THUP´) XQOHVV D SDUW\ GHOLYHUV WR WKH RWKHU SDUW\, DW OHDVW WKirty (30) days prior to
WKH H[SLUDWLRQ RI WKH IQLWLDO THUP RU WKH DSSOLFDEOH RHQHZDO THUP, ZULWWHQ QRWLFH RI VXFK SDUW\¶V LQWHQWLRQ WR QRW
renew this Agreement, or unless terminated earlier in accordance with this Agreement. NEOGOV shall provide
Customer access to the SaaS Applications within a reasonable time following the Effective Date unless
otherwise agreed.
c)Content and Program Documentation. Should Customer purchase access to SaaS Applications containing
audio-YLVXDO FRQWHQW (³LLFHQVHG CRQWHQW´), NEOGOV grants to Customer a non-exclusive, non-transferable,
and non-sublicensable license, during the applicable Term, for Authorized Users to access and view the
Licensed Content within the SaaS Application. Customer shall not permit the Licensed Content to be, or
appear to be, reproduced, performed, displayed, or distributed on, as part of or in connection with any website
or other online area other than the SaaS Application. Customer shall not edit, alter, modify, combine with other
Exhibit A
2
content, or create any GHULYDWLYH ZRUNV RI WKH LLFHQVHG CRQWHQW. ³PURJUDP DRFXPHQWDWLRQ´ VKDOO PHDQ DOO
user guides, training, and implementation material, and Service descriptions provided by NEOGOV to
Customer in connection with the Services. NEOGOV hereby grants to Customer a non-exclusive, non-
sublicensable, non-transferable license to use, print, and distribute internally via non-public platforms, the
Program Documentation during the Term solely for Customer's internal business purposes in connection with
its use of the Services.
3. PURIHVVLRQDO SHUYLFHV. ³PURIHVVLRQDO SHUYLFHV´ VKDOO PHDQ FRQVXOWLQJ, WUDLQLQJ VHUYLFHV SXUFKDVHG E\ CXVWRPHU LQ
an applicable Ordering Document or NEOGOV Scope of Work (SOW) relating to assistance, training, deployment,
usage, customizations, accessory data processing, and best practices of and concerning the SaaS Applications.
NEOGOV shall provide the Professional Services purchased in the applicable Order Form or SOW, as the case
may be. Professional Services may be ordered by Customer pursuant to a SOW and Service Specifications
describing the work to be performed, fees, and any applicable milestones, dependencies, and other technical
specifications or related information. Order Forms or SOWs must be signed by both parties before NEOGOV shall
commence work. If the parties do not execute a separate Statement of Work, the Services shall be provided as
stated on the Order Form and this Agreement and documents incorporated herein shall control.
4. Payment Terms. Unless otherwise stated in an Ordering Document, Customer shall pay all Subscription fees
(³SXEVFULSWLRQ FHHV´) DQG PURIHVVLRQDO SHUYLFH IHHV (³PURIHVVLRQDO SHUYLFH FHHV´, FROOHFWLYHO\ WKH ³FHHV´) ZLWKLQ
WKLUW\ (30) GD\V RI CXVWRPHU¶V UHFHLSW RI NEOGOV¶V LQYRLFH. FHHV VKDOO EH LQYRLFHG DQQXDOO\ in advance and in a
VLQJOH LQYRLFH IRU HDFK THUP. IQYRLFHV VKDOO EH GHOLYHUHG WR WKH VWDWHG ³BLOO TR´ SDUW\ RQ WKH OUGHULQJ DRFXPHQW.
Unless explicitly provided otherwise, once placed the Ordering Document is non-cancellable and sums paid
nonrefundable. SuEVFULSWLRQ FHHV DUH EDVHG XSRQ WKH CXVWRPHU¶V HPSOR\HH FRXQW. CXVWRPHU VKDOO QRW H[FHHG
the employee amount its Subscription Fees are based off of unless applicable supplemental Subscription Fees are
paid. The Term for the Services is a continuous and non-divisible commitment for the full duration regardless of
any invoice schedule. The purchase of any Service is separate from any other order for any other Service.
Customer may purchase certain Services independently of other Services. Your obligation to pay for any Service
is not contingent on performance of any other Service or delivery of any other Service. If Customer issues a
purchase order, then it shall be for the full amount set forth in the applicable NEOGOV invoice or Ordering
Document. Failure to provide NEOGOV with a corresponding purchase order shall not relieve Customer of its
payment obligations. Except as otherwise specifically stated in the Ordering Document, NEOGOV may change the
charges for the Services with effect from the start of each Renewal Term by giving Customer at least thirty (30)
day notice prior to commencement of a Renewal Term. Customer will pay all taxes, duties and levies imposed by
all federal, state, and local authorities (including, without limitation, export, sales, use, excise, and value-added
taxes) based on the transactions or payments under this Agreement, except those taxes imposed or based on
NEOGOV¶V QHW LQFRPH RU WKRVH H[HPSW E\ DSSOLFDEOH VWDWH ODZ. CXVWRPHU VKDOO SURYLGH NEOGOV ZLWK D FHUWLILFDWH
or other evidence RI VXFK H[HPSWLRQ ZLWK WHQ (10) GD\V RI NEOGOV¶V UHTXHVW WKHUHIRU.
5. Term and Termination.
a) Term. Unless otherwise specified in an applicable Ordering Document, this Agreement shall commence on
the Effective Date. This Agreement shall remain in effect until all SaaS Subscriptions have expired and/or both
parties have achieved full performance of Professional Services or other services detailed in a SOW, unless
it is terminated earlier in accordance with this Agreement.
b) Termination for Cause; Effect of Termination. Either Party may terminate this Agreement immediately if the
other is in material breach of this Agreement and such breach is not cured within thirty (30) days following
non-EUHDFKLQJ SDUW\¶V ZULWWHQ VSHFLILFDtion of the breach. NEOGOV may suspend the Services or terminate
WKLV AJUHHPHQW LPPHGLDWHO\ LQ WKH HYHQW WKH SHUYLFHV RU CXVWRPHU¶V XVH RI WKH SHUYLFHV SURYLGHG KHUHXQGHU
become illegal or contrary to any applicable law, rule, regulation, or public policy. Upon expiration or any
termination of this Agreement, Customer shall cease all use and refrain from all further use of the Services
and other NEOGOV intellectual property. Additionally, Customer shall be obligated to pay, as of the effective
date of such expiration or termination, all amounts due and unpaid to NEOGOV under this Agreement. Unless
otherwise specified, after expiration or termination of this Agreement NEOGOV may remove Customer Data
from NEOGOV Services and without Customer consent or notice.
6. SHUYLFH SSHFLILFDWLRQV. ³SHUYLFH SSHFLILFDWLRQV´ PHDQV PURJUDP DRFXPHQWDWLRQ, SHUYLFH SFKHGXOHV, SHFXULW\
Statements, and Service Level Warranties if applicable. The Service Specifications describe and govern the
Services and are incorporated herein by reference. Online Service Specifications may be made available at
https://www.neogov.com/service-specifications or provided upon Customer request. Excluding Service Schedules,
NEOGOV may update the Service Specifications to reflect changes in, among other things, laws, regulations,
3
rules, technology, industry practices, patterns of system use, Updates and Upgrades, and availability of third-party
services.
7. Maintenance; Modifications; Support Services.
a) Maintenance, Updates, Upgrades. NEOGOV maintains NEOGOV¶V KDUGZDUH DQG VRIWZDUH LQIUDVWUXFWXUH IRU
the Services and is responsible for maintaining the NEOGOV server operation and NEOGOV database
security. NEOGOV may in its sole discretion, periodically modify, Update, and Upgrade the features,
components, DQG IXQFWLRQDOLW\ RI WKH SHUYLFHV GXULQJ WKH THUP. ³USGDWH´ PHDQV DQ\ XSGDWH, EXJ IL[, SDWFK RU
correction of the Services or underlying NEOGOV software that NEOGOV makes generally available to its
customers of the same module, excluding Upgrades. UpdatHV DUH DXWRPDWLF DQG DYDLODEOH XSRQ CXVWRPHU¶V
QH[W ORJLQ WR WKH SHUYLFHV IROORZLQJ DQ USGDWH DW QR DGGLWLRQDO FRVW WR CXVWRPHU. ³USJUDGH´ PHDQV DQ\ XSGDWH
of the Services or underlying NEOGOV software such as platform updates, and major product enhancements
and/or new features that NEOGOV makes commercially available. NEOGOV shall have no obligation to
provide Upgrades to customers and retains the right to offer Upgrades free of cost or on a per customer basis
at additional cost. NEOGOV shall have no liability for, or any obligations to, investments in, or modifications
WR CXVWRPHU¶V KDUGZDUH, V\VWHPV RU RWKHU VRIWZDUH ZKLFK PD\ EH QHFHVVDU\ WR XVH RU DFFHVV WKH SHUYLFHV
due to a modification, Update, or Upgrade of the Services.
b) Training Materials; Support. Primary training of NEOGOV Services is conducted by self-review of online
PDWHULDOV. NEOGOV¶V SUH-built, online training consists of a series of tutorials to introduce the standard
IHDWXUHV DQG IXQFWLRQV (WKH ³TUDLQLQJ MDWHULDOV´). TKH TUDLQLQJ MDWHULDOs may be used as reference material
by Customer Personnel conducting day-to-day activities.
c) Implementation. For Services requiring implementation, NEOGOV implementation supplements the Training
Materials and is conducted off-site unless otherwise agreed in the Ordering Document. NEOGOV personnel
will provide consultation on best practices for setting up the Services, answer Customer questions during the
implementation period, and ensure Authorized User Admins grasp the system.
d) Support. Phone support for the Services is available to Customer Monday through Friday, excluding NEOGOV
holidays. Online support for the Services is available 24 hours a day, seven days a week. The length of time
for a resolution of any problem is dependent on the type of case.
e) Limitations. Unless otherwise specified in the Ordering Document, this Agreement does not obligate NEOGOV
to render any maintenance or support services that are not expressly provided herein, including, but not limited
to data uploads, manual data entry, migration services, data conversion, refinement, purification, reformatting,
SQL dump, or process consultation.
8. NEOGOV Intellectual Property. NEOGOV shall exclusively own all right, title and interest in and to all pre-existing
and future intellectual property developed or delivered by NEOGOV including all Services, products, systems,
software (including any source code or object code) or Service Specifications related thereto, Updates or
Upgrades, trademarks, service marks, logos and other distinctive brand features of NEOGOV and all proprietary
ULJKWV HPERGLHG WKHUHLQ (FROOHFWLYHO\, WKH ³NEOGOV IQWHOOHFWXDO PURSHUW\´). TKLV AJUHHPHQW GRHV QRW FRQYH\ RU
transfer title or ownership of the NEOGOV Intellectual Property to Customer or any of its users. All rights not
expressly granted herein are reserved by NEOGOV. Other than recommendation use or as required by law, all
use of NEOGOV Trademarks must be pre-approved by NEOGOV prior to use. Trademarks shall include any word,
name, symbol, color, designation or device, or any combination thereof that functions as a source identifier,
including any trademark, trade dress, service mark, trade name, logo, design mark, or domain name, whether or
not registered.
9. Data Processing and Privacy.
a) Customer & Platform Data. ³CXVWRPHU DDWD´ VKDOO PHDQ DOO GDWD WKDW LV RZQHG RU GHYHORSHG E\ CXVWRPHU,
whether provided to NEOGOV by Customer or provided by a third party to NEOGOV in connection with
NEOGOV¶V SURYLVLRQ RI SHUYLFHV WR CXVWRPHU, LQFOXGLQJ PHUVRQQHO RU JRE SHHNHU PURIile Data collected,
loaded into, or located in Customer data files maintained by NEOGOV. NEOGOV intellectual property,
including but not limited to the Services and all derivative works thereof, NEOGOV Confidential Information,
and Platform Data do not falO ZLWKLQ WKH PHDQLQJ RI WKH WHUP ³CXVWRPHU DDWD´. CXVWRPHU H[FOXVLYHO\ RZQ DOO
right, title, and interest in and to all Customer Data. Customer grants NEOGOV a license to host, use, process,
display, create non-personal derivative works of, and transmit Customer Data to provide the Services.
³PODWIRUP DDWD´ VKDOO PHDQ DQ\ GDWD UHIOHFWLQJ WKH DFFHVV RU XVH RI WKH SHUYLFHV E\ RU RQ EHKDOI RI CXVWRPHU
or any user, including statistical or other analysis and performance information related to the provision and
4
operation of the Services including any end user visit, session, impression, clickthrough or click stream data,
as well as log, device, transaction data. or other analysis, information, or data based on or derived from any
of the foregoing. NEOGOV shall exclusively own all right, title and interest in and to all Platform Data.
NEOGOV grants to Customer a limited, non-perpetual, non-exclusive, non-transferable, and non-
sublicensable license during the Term to use and access, and to permit Authorized Users to use and access,
PODWIRUP DDWD RI ZKLFK NEOGOV PDNHV DYDLODEOH WKURXJK WKH SDDS ASSOLFDWLRQV VROHO\ IRU CXVWRPHU¶V
internal purposes. Customer acknowledges NEOGOV may compile Platform based on Customer Data input
into the Services. Customer agrees that NEOGOV may (i) make Platform Data publicly available in compliance
with applicable law, and (ii) use Platform Data to the extent and in the manner permitted under applicable law.
b) Privacy Policy; Data Processing Agreement. NEOGOV shall process all data in accord with the NEOGOV
Privacy Policy available at https://www.neogov.com/privacy-policy. The defined terms in the Privacy Policy
shall have the same meaning in this Agreement unless otherwise specified herein. To the extent Customer
uses the Services to target and collect personal information form users located in the European Union,
EXURSHDQ EFRQRPLF AUHD, RU SZLW]HUODQG (WKH ³EU´), RU KDV AXWKRUL]HG UVHUV DFFHVVLQJ WKH SHUYLFHV Irom
the EU, the NEOGOV Data Processing Addendum ("DPA") available at https://www.neogov.com/service-
specifications is incorporated herein by reference.
c) Data Responsibilities. Customer is solely responsible for the development, content, operation, maintenance,
and use of Customer Data. NEOGOV will have no responsibility or liability for the accuracy of the Customer
Data prior to receipt of such data into the Services. Customer shall be solely responsible for and shall comply
with all applicable laws and regulations relating to (i) the accuracy and completeness of all information input,
submitted, or uploaded to the Services, (ii) the privacy of users of the Services, including, without limitation,
providing appropriate notices to and obtaining appropriate consents from any individuals to whom Customer
Data relates; and (iii) the collection, use, modification, alteration, extraction, retention, copying, external
storage, disclosure, transfer, disposal, and other processing of any Customer Data. NEOGOV is not
responsible for lost data caused by the action or inaction of Customer or Authorized Users. Unless vital to
provide the Services or otherwise mutually agreed in writing, Customer shall not maintain any financial, health,
payment card, or similarly sensitive data that imposes specific data security or data protection obligations
within the Services.
d) Breach Notice. In the event of a data or security breach, as defined by applicable law, by anyone other than
your employee, contractor, or agent, upon discovery of such breach, NEOGOV will initiate remedial actions
DQG QRWLI\ CXVWRPHU RI WKH EUHDFK DV UHTXLUHG E\ DQG LQ FRPSOLDQFH ZLWK DSSOLFDEOH ODZ. NEOGOV¶V
notification of, or response to, a data breach under this Section will not be construed as an acknowledgement
by NEOGOV of any fault or liability with respect to the breach. In the event of a security breach, as defined by
applicable law, by your Personnel, Authorized, or unauthorized user, contractor or agent, you shall have sole
responsibility for initiating remedial actions and you shall notify NEOGOV of the breach and steps you will take
to remedy the breach as soon as possible. Customer is solely responsible for complying with data breach
notification laws applicable to the Customer and fulfilling any t hird-party notification obligations related to any
data breach(es).
10. Subcontractors; Third Party Products. NEOGOV may from time to time in its discretion engage third parties to
SHUIRUP SHUYLFHV (HDFK, D ³SXEFRQWUDFWRU´). ´TKLUG-PDUW\ PURGXFWV´ PHDQV DQ\ Sroducts, content, services,
information, websites, or other materials that are owned by third parties and are incorporated into or accessible
through the Services. The Services may permit access to Third-Party Products. For purposes of this Services
Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for
acceptance by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third -
Party Products, then you should not install, access, or use such Third-Party Products. NEOGOV cannot guarantee
the continued availability of such Third-Party Products and may cease providing them without entitling Customer
to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party
Product ceases to make the third-party application available for interoperation with the corresponding NEOGOV
Service in a manner acceptable to NEOGOV.
11. NRQGLVFORVXUH. TKURXJK H[HUFLVH RI HDFK SDUW\¶V ULJKWV XQGHU WKLV Agreement, each party may be exposed to the
RWKHU SDUW\¶V WHFKQLFDO, ILQDQFLDO, EXVLQHVV, PDUNHWLQJ, SODQQLQJ, DQG RWKHU LQIRUPDWLRQ DQG GDWD LQ ZULWWHQ, RUDO,
electronic, magnetic, photographic, and/or other forms, including, but not limited to (a) oral and written
communications of one party with the officers and staff of the other party which are marked or identified as
confidential or secret or similarly marked or identified, (b) other communications which a reasonable person would
recognize from the surrounding facts and circumstances to be confidential or secret, and (c) trade secrets
(FROOHFWLYHO\, ³CRQILGHQWLDO IQIRUPDWLRQ´). IQ UHFRJQLWLRQ RI WKH RWKHU SDUW\¶V QHHG WR SURWHFW LWV OHJLWLPDWH EXVLQHVV
interests, each party hereby covenants and agrees that it shall regard and treat each item of information or data
5
constituting Confidential Information of the other party as strictly confidential and wholly owned by such other party
and that it will not, (x) without the express prior written consent of the other party, (y) except as permitted or
DXWKRUL]HG KHUHLQ RU, (]) H[FHSW DV UHTXLUHG E\ ODZ LQFOXGLQJ WKH PXEOLF RHFRUGV AFW RI WKH CXVWRPHU¶V SWDWH,
redistribute, market, publish, disclose, or divulge to any other person, firm or entity, or use or modify for use, directly
RU LQGLUHFWO\ LQ DQ\ ZD\ IRU DQ\ SHUVRQ RU HQWLW\: (L) DQ\ RI WKH RWKHU SDUW\¶V CRQILGHQWLDO IQIRUPDWLRQ GXULQJ WKH THUP
and for a period of three (3) years thereafter or, if later, from the last date Services (including any warranty w ork)
DUH SHUIRUPHG E\ WKH GLVFORVLQJ SDUW\ KHUHXQGHU; DQG (LL) DQ\ RI WKH RWKHU SDUW\¶V WUDGH VHFUHWV DW DQ\ WLPH GXULQJ
ZKLFK VXFK LQIRUPDWLRQ VKDOO FRQVWLWXWH D WUDGH VHFUHW XQGHU DSSOLFDEOH ODZ. IQ DVVRFLDWLRQ ZLWK NEOGOV¶V FRQFHUQ
for the protection of trade secrets, Confidential Information, and fair market competition, Customer acknowledges
DOO SKRWRV, ³VFUHHQ FDSWXUHV´, YLGHRV, RU UHODWHG PHGLD RI NEOGOV SURGXFWV, SDJHV, DQG UHODWHG GRFXPHQWDWLRQ
shall be approved by NEOGOV prior to any publicly accessible disclosure of such media.
12. Representations, Warranties, and Disclaimers.
a) Service Performance Warranty. NEOGOV warrants that it provides the Services using a commercially
reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND NEOGOV
STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
b) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS WARRANTY
SECTION, THE SERVICES ARE PROVIDED ON AN ³AS IS´ BASIS, AND CUSTOMER¶S USE OF THE
SERVICES IS AT ITS OWN RISK. NEOGOV DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL
OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
NEOGOV DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR
COMPLETELY SECURE, OR THAT ANY ERROR WILL BE CORRECTED.
c) Disclaimer of Actions Caused by and/or Under the Control of Third Parties. NEOGOV DOES NOT AND
CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE NEOGOV SYSTEM AND OTHER
PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF
INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR
INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER¶S CONNECTIONS TO
THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH NEOGOV WILL USE COMMERCIALLY
REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID
SUCH EVENTS, NEOGOV CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR.
ACCORDINGLY, NEOGOV DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO
SUCH EVENTS.
d) Services Do Not Constitute Advice or Credit Reporting. NEOGOV does not provide its customers with legal
advice regarding compliance, data privacy, or other relevant applicable laws in the jurisdictions in which you
use the Services. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES PROVIDED HEREUNDER
ARE NOT INTENDED TO BE AND WILL NOT BE RELIED UPON BY YOU AS EITHER LEGAL, FINANCIAL,
INSURANCE, OR TAX ADVICE. TO THE EXTENT YOU REQUIRE ANY SUCH ADVICE, YOU REPRESENT
THAT YOU WILL SEEK SUCH ADVICE FROM QUALIFIED LEGAL, FINANCIAL, INSURANCE,
ACCOUNTING, OR OTHER PROFESSIONALS. YOU SHOULD REVIEW APPLICABLE LAW IN ALL
JURISDICTIONS WHERE YOU OPERATE AND HAVE EMPLOYEES AND CONSULT EXPERIENCED
COUNSEL FOR LEGAL ADVICE. YOU ACKNOWLEDGE THAT NEOGOV IS NOT A "CONSUMER
REPORTING AGENCY" AS THAT TERM IS DEFINED IN THE FAIR CREDIT REPORTING ACT AS
AMENDED.
e) Configurable Services. The Services can be used in ways that do not comply with applicable laws and it is
CXVWRPHU¶V VROH UHVSRQVLELOLW\ WR PRQLWRU WKH XVH RI WKH SHUYLFHV WR HQVXUH WKDW VXFK XVH FRPSOLHV ZLWK DQG LV
in accordance with applicable law. In no event shall NEOGOV be responsible or liable for Customer failure to
comply with applicable law in connection with your use of the Services. NEOGOV is not responsible for any
harm caused by users who were not authorized to have access to the Services but who were able to gain
access because usernames, passwords, or accounts were not terminated on a timely basis by Customer.
Customer acknowledges that NEOGOV exercises no control over specific human resource practices
LPSOHPHQWHG XVLQJ WKH SHUYLFH RU CXVWRPHU¶V decisions as to employment, promotion, termination, or
compensation of any personnel or Authorized User of the Services. Customer further agrees and acknowledge
that NEOGOV does not have a direct relationship with Customer employees and that Customer is responsible
for all contact, questions, Customer Data updates and collection, with Customer employees.
6
13. CXVWRPHU CRPSOLDQFH. CXVWRPHU VKDOO EH UHVSRQVLEOH IRU HQVXULQJ WKDW CXVWRPHU¶V XVH RI WKH SHUYLFHV DQG WKH
SHUIRUPDQFH RI CXVWRPHU¶V RWKHU REOLJDWLRQV KHreunder comply with all applicable rules, regulations, laws, codes,
and ordinances. Customer is responsible for Customer's information technology infrastructure, including
computers, software, databases, electronic systems (including database management systems), and networks,
whether operated directly by Customer or through the use of third-party services equipment and facilities required
to access the Services. All users of the Services are obligated to abide by the Terms of Use available at
https://www.neogov.com/terms-of-use. Customer shall be responsible for procuring all licenses of third-party
VRIWZDUH QHFHVVDU\ IRU CXVWRPHU¶V XVH RI WKH SHUYLFHV. CXVWRPHU LV UHVSRQVLEOH DQG OLDEOH IRU DOO XVHV RI WKH
Services, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
14. Indemnification.
a) Indemnity. Subject to subsections (b) through (d) of this Section, if a third party makes a claim against
Customer that any NEOGOV intellectual property furnished by NEOGOV and used by Customer infringes a
WKLUG SDUW\¶V LQWHOOHFWXDO SURSHUW\ ULJKWV, NEOGOV ZLOO GHIHQG WKH CXVWRPHU DJDLQVW WKH FODLP DQG LQGHPQLI\
the Customer from the damages and liabilities awarded by the court to the third-party claiming infringement
or the settlement agreed to by NEOGOV, if Customer does the following:
i) Notifies NEOGOV promptly in writing, not later than thirty (30) days after Customer receives notice of the
claim (or sooner if required by applicable law);
ii) Gives NEOGOV sole control of the defense and any settlement negotiations; and
iii) Gives NEOGOV the information, authority, and assistance NEOGOV needs to defend against or settle
the claim.
b) Alternative Resolution. If NEOGOV believes or it is determined that any of the Services may have violated a
WKLUG SDUW\¶V LQWHOOHFWXDO SURSHUW\ ULJKWV, NEOGOV PD\ FKRRVH WR HLWKHU PRGLI\ WKH SHUYLFHV WR EH QRQ-
infringing or obtain a license to allow for continued use. If these alternatives are not commercially reasonable,
NEOGOV may end the subscription or license for the Services and refund a pro-rata portion of any fees
covering the whole months that would have remained, absent such early termination, following the effective
date of such early termination.
c) No Duty to Indemnify. NEOGOV will not indemnify Customer if Customer alters the Service or Service
Specifications, or uses it outside the scope of use or if Customer uses a version of the Service or Service
Specifications which has been superseded, if the infringement claim could have been avoided by using an
unaltered current version of the Services or Service Specifications which was provided to Customer, or if the
Customer continues to use the infringing material after the subscription expires. NEOGOV will not indemnify
the Customer to the extent that an infringement claim is based upon any information, design, specification,
instruction, software, data, or material not furnished by NEOGOV. NEOGOV will not indemnify Customer for
any portion of an infringement claim that is based upon the combination of Service or Service Specifications
with any products or services not provided by NEOGOV. NEOGOV will not indemnify Customer for
LQIULQJHPHQW FDXVHG E\ CXVWRPHU¶V DFWLRQV DJDLQVW DQ\ WKLUG SDUW\ LI WKH SHUYLFHV DV GHOLYHUHG WR CXVWRPHU
and used in accordance with the terms of the Agreement would not otherwise infringe any third-party
intellectual property rights.
d) Exclusive Remedy. This Section provides the exclusive remedy for any intellectual property infringement
claims or damages against NEOGOV.
15. Limitations of Liability.
a) EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS
SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a)
LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b)
IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS,
DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d)
COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL, LOSS OF BUSINESS
OPPORTUNITY OR PROFIT, OR LOSS OF REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF
WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES
OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE
FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7
b) CAP ON MONETARY LIABILITY. WITHOUT LIMITATION OF THE PREVIOUS SECTION, EXCEPT FOR
DAMAGES ARISING OUT OF LIABILITY WHICH CANNOT BE LAWFULLY EXCLUDED OR LIMITED,
CUSTOMER¶S OBLIGATIONS TO MAKE PA<MENT UNDER THIS AGREEMENT, OR LIABILITY FOR
INFRINGEMENT OR MISAPPROPRIATION OF NEOGOV INTELLECTUAL PROPERTY RIGHTS, THE
TOTAL LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS AGAINST THE OTHER PARTY UNDER
THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY,
SHALL NOT EXCEED THE AMOUNT OF ALL PAYMENTS ACTUALLY RECEIVED BY NEOGOV FROM
CUSTOMER DURING THE RELEVANT YEAR OF THIS AGREEMENT DURING WHICH THE CAUSE OF
ACTION AROSE. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL PAYMENTS
FOR CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO
DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT
ENLARGE THE LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF
LIABILITY IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND
SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN
INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND
UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT AND HAS BEEN TAKEN INTO
ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY
UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS
AGREEMENT.
16. E-Signatures.
a) E-Signature Provisioning & Consent. NEOGOV E-FRUPV DQG RWKHU HOHFWURQLFDOO\ VLJQHG VHUYLFHV (³E-
SLJQDWXUHV´) DUH SURYLGHG E\ NEOGOV IRU WZR FRXQWHUSDUWLHV (JHQHUDOO\ D JRYHUQPHQW HPSOR\HU (WKH ³VHQGLQJ
SDUW\´) VXEVFULELQJ WR NEOGOV SHUYLFHV DQG PHUVRQQHO RU JRE SHHNHUV) WR HOHFWURQLFDOO\ VLJQ GRFXPHQWV. II
you use E-Signatures offered by NEOGOV, you agree to the statements set forth in this Sect ion. Whenever
you sign a document using E-Signatures you affirmatively consent to using electronic signatures via the E-
Signatures and consent to conducting electronic business transactions. You also confirm that you are able to
access the E-Signatures and the document you are signing electronically. When using E-Signatures for a
document, your consent applies only to the matter(s) covered by that particular document.
b) Right to Opt-Out of E-Signatures. You are not required to use E-Signatures or accept electronic documents
provided thereby. Personnel and Job Seekers can choose to not use E-Signatures and may sign the document
manually instead by notifying the sending party they are choosing to do so and by obtaining a non-electronic
copy of the document. NEOOGV assumes no responsibility for providing non-electronic documents. In the
event a non-sending party elects to sign the document manually, do not use E-Signatures to sign the
document.
c) Electronic Download. If you have signed a document electronically using E-Signatures and transmitted it back
to the sending party, NEOGOV provides the opportunity to download and print a paper copy of the document
at no charge. If you later withdrawn your consent to using E-Signatures, please notify the sending party and
stop using E-Signatures. Note that the decision to stop using E-Signatures after you have already used it does
not change the legality of the documents you have previously signed using an electronic signature.
d) E-Signature Validity. PLEASE NOTE THAT NEOGOV¶S STATEMENTS CONTAINED HEREIN OR
ELSEWHERE CONCERNING THE VALIDITY OF ELECTRONIC DOCUMENTS AND/OR THE SIGNATURE
LINES OF DOCUMENTS THAT ARE ELECTRONICALLY SIGNED ARE FOR INFORMATIONAL
PURPOSES ONLY; THEY SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. UNDER FEDERAL AND
STATE LAWS GOVERNING ELECTRONIC SIGNATURES, ELECTRONIC SIGNATURES ON CERTAIN
TYPES OF AGREEMENTS ARE NOT ENFORCEABLE. NEOGOV HEREBY DISCLAIMS ANY
RESPONSIBILITY FOR ENSURING THAT DOCUMENTS ELECTRONICALLY SIGNED THROUGH E-
SIGNATURE¶S ARE VALID OR ENFORCEABLE UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, ANY PARTICULAR STATE, OR ANY OTHER LEGAL JURISDICTION. YOU SHOULD CONSULT
WITH LEGAL COUNSEL CONCERNING THE VALIDITY OR ENFORCEABILITY OF ANY DOCUMENT YOU
MAY SIGN ELECTRONICALLY USING NEOGOV¶S E-SIGNATURE¶S.
17. Text Message Communications. NEOGOV may offer Job Seekers and Personnel the opportunity to receive text
messages regarding job application or hiring process reminders, applicant status updates, or other human resource
related notices. Since these text message services depend on the functionality of third-party providers, there may
8
be technical delays on the part of those providers. NEOGOV may make commercially reasonable efforts to provide
alerts in a timely manner with accurate information, but cannot guarantee the delivery, timeliness, or accuracy of
the content of any alert. NEOGOV shall not be liable for any delays, failure to deliver, or misdirected delivery of
any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in
reliance on an alert. NEOGOV cannot vouch for the technical capabilities of any third parties to receive such text
messages. NEOGOV MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS,
STATUTORY, OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES; (ii) ANY
LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii)
ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA,
COMMUNICATIONS, OR SETTINGS CONNECTED WITH THE SERVICES.
18. Cooperative Agreement. As permitted by law, it is understood and agreed by Customer and NEOGOV that any (i)
federal, state, local, tribal, or other municipal government (including all administrative agencies, departments, and
offices thereof); (ii) any business enterprise in which a federal, state, local, tribal or other municipal entity has a
full, majority, or other controlling interest; and/or (iii) any public school (including without limitation K-12 schools,
FROOHJHV, XQLYHUVLWLHV, DQG YRFDWLRQDO VFKRROV) (FROOHFWLYHO\ UHIHUUHG WR DV WKH ³NHZ EQWLW\´) PD\ SXUFKDVH WKH
Services specified herein in accordance with the terms and conditions of this Agreement. It is also understood
and agreed that each New Entity will establish its own contract with NEOGOV, be invoiced therefrom and make
its own payments to NEOGOV in accordance with the terms of the contract established between the New Entity
and NEOGOV. With respect to any purchases by a New Entity pursuant to this Section, Customer: (i) shall not be
construed as a dealer, re-marketer, representative, partner or agent of any type of NEOGOV, or such New Entity;
(ii) shall not be obligated, liable or responsible for any order made by New Entities or any employee thereof under
the agreement or for any payment required to be made with respect to such order; and (iii) shall not be obliged,
liable or responsible for any failure by any New Entity to comply with procedures or requirements of applicable law
or to obtain the due authorization and approval necessary to purchase under the agreement. Termination of this
Agreement shall in no way limit NEOGOV from soliciting, entering into, or continuing a contractual relationship with
any New Entity.
19. Publicity. Each party hereto may advertise, disclose, and publish its relationship with the other party under this
Agreement.
20. Force Majeure. NEOGOV shall not be liable for any damages, costs, expenses or other consequences incurred
by Customer or by any other person or entity as a result of delay in or inability to deliver any Services due to
FLUFXPVWDQFHV RU HYHQWV EH\RQG NEOGOV¶V UHDVRQDEOH FRQWURO, LQFOXGLQJ, ZLWKRXW OLPLWDWLRQ: (D) DFWV RI GRG; (E)
changes in or in the interpretation of any law, rule, regulation or ordinance; (c) strikes, lockouts or other labor
problems; (d) transportation delays; (e) unavailability of supplies or materials; (f) fire or explosion; (g) riot, military
action or usurped power; or (h) actions or failures to act on the part of a governmental authority.
21. Independent Contractor; Third Party Agreements. The relationship of the parties shall be deemed to be that of an
independent contractor and nothing contained herein shall be deemed to constitute a partnership between or a
joint venture by the parties hereto or constitute either party the employee or agent of the other. Customer
acknowledges that nothing in this Agreement gives Customer the right to bind or commit NEOGOV to any
agreements with any third parties. This Agreement is not for the benefit of any third party and shall not be deemed
to give any right or remedy to any such party whether referred to herein or not.
22. Entire Agreement; Amendment. This Services Agreement and documents incorporated herein, the applicable
Ordering Document, and Special Conditions (if any) constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior or contemporaneous oral and written statements of
any kind whatsoever made by the parties with respect to such subMHFW PDWWHU. ³SSHFLDO CRQGLWLRQV´ PHDQV
individually negotiated variations, amendments and/or additions to this Service Agreement of which are either
drafted, or incorporated by reference, into the Ordering Document. Any Customer proposal for additional or
different terms, or Customer attempt to vary in any degree any of the terms of this Agreement is hereby objected
to and rejected but such proposal shall not operate as a rejection of this Service Agreement and Ordering
Document unless such variances are in the terms of the description, quantity, or price but shall be deemed a
material alteration thereof, and this Service Agreement and the applicable Ordering Document shall be deemed
accepted by the Customer without said additional or different terms. It is expressly agreed that the terms of this
Agreement and any NEOGOV Ordering Document shall supersede the terms in any non-NEOGOV purchase order
or other ordering document. Notwithstanding the foregoing, any conflict of terms shall be resolved by giving priority
in accordance with the following order: 1) Special Conditions (if any), 2) NEOGOV Ordering Document, 3) the
NEOGOV Services Agreement and incorporated documents, 4) Customer terms and conditions (if any). This
Agreement supersedes the terms and conditions of any clickthrough agreement associated with the Services. This
9
Agreement may not be modified or amended (and no rights hereunder may be waived) except through a written
instrument signed by the party to be bound.
23. General. This Agreement shall be goYHUQHG E\ DQG FRQVWUXHG LQ DFFRUGDQFH ZLWK WKH ODZV RI CXVWRPHU¶V SWDWH,
without giving effect to conflict of law rules. If any provision of this Agreement is held to be illegal or unenforceable,
such provision shall be limited or eliminated to the minimum extent necessary so that the remainder of this
Agreement will continue in full force and effect. Provisions that survive termination or expiration are those relating
to limitation of liability, payment, and others which by their nature are intended to survive. All notices or other
communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given
either when personally delivered, one (1) business day following delivery by recognized overnight courier or
electronic mail, or three (3) business days following deposit in the U.S. mail, registered or certified, postage
prepaid, return receipt requested. All such communications shall be sent to (i) Customer at the address set forth
in the Ordering Document and (ii) NEOGOV at 300 Continental Blvd., Suite 565, El Segundo, CA 90245. The
waiver, express or implied, by either party of any breach of this Agreement by the other party will not waive any
subsequent breach by such party of the same or a different kind. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which taken together shall constitute one and the
same instrument. Delivery of a copy of this Agreement bearing an original signature by facsimile transmission, by
electronic mail or by any other electronic means will have the same effect as physical delivery of the paper
document bearing the original signature. Each party represents and warrants to the other party that (i) it has full
power and authority under all relevant laws and regulations and is duly authorized to enter into this Agreement;
and (ii) to its knowledge, the execution, delivery and performance of this Agreement by such party does not conflict
with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound,
nor violate any law or regulation of any court, governmental body or administrative or other agency having
jurisdiction over it. Customer may not assign this Agreement without the express written approval of NEOGOV and
any attempt at assignment in violation of this Section shall be null and void. The parties intend this Agreement to
be construed without regard to any presumption or rule requiring construction or interpretation against the party
drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and
appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth
verbatim herein.
1 of 8
NEOGOV ORDERING FORM
Employee Count: 1,060 GRYHUQPHQWMREV.FRP, IQF. (GEa ³NEOGOV´)
300 Continental Blvd., Suite 565
El Segundo, CA 90245
accounting@neogov.com
Customer Information
Customer
Name:
City of Santa Ana (CA) Customer
Contact
Name:
Haney Mostafa
Customer
Address:
20 Civic Center Plaza
Santa Ana, CA 92702
Email
Address:
hmostafa@santa-ana.org
Fee Summary
Service Description Term 1: 7/1/21 -
6/30/22
Term 2: 7/1/22 -
6/30/23
Subscription Fees:
Onboard License $15,429.20 $16,200.66
Perform License (50% off Term 1) $14,198.11 $28,396.22
Position Integration License (50% off Term 1) $1,500.00 $1,500.00
Employee Import Integration License (50% off
Term 1) $1,500.00 $1,500.00
Professional Service Fees:
Perform Training $2,500.00 N/A
Perform Setup $2,985.00 N/A
Position Integration Setup Waived N/A
Employee Integration Setup Waived N/A
Total: $38,112.31 $47,596.88
A. Agreement and Applicable Modifications to the Agreement.
1.Agreement. This Ordering Document and the Services purchased herein are governed by the
terms of the Services Agreement either affixed hereto or the version most recently publis hed
prior to execution of this Ordering Document available at https://www.neogov.com/service-
specifications, as well as the Service Specifications and applicable Schedules incorporated
therein.
2.Effectiveness & Modification. Neither Customer nor NEOGOV will be bound by this
Ordering Document until it has been signed by its authorized representative. This Order Form
may not be modified or amended except through a written instrument signed by the parties.
B. General Terms Summary.
1.Summary of Fees. Listed above is a summary of Fees under this Order. Once placed, your
order shall be non-cancelable and the sums paid nonrefundable, except as provided in the
Agreement.
2 of 8
2.The Effective Date. This Order is made and entered into as of the date of Customer signature
RQ WKLV OUGHU DRFXPHQW (WKH ³EIIHFWLYH DaWH´).
3.SaaS Subscription(s) Start Date. The Effective Date.
4.Billing Frequency. Annual. Net 45 from Customer receipt of NEOGOV invoice.
5.Order of Precedence. This Ordering Document shall take precedence in the event of direct
conflict with the Services Agreement, applicable Schedules, and Service Specifications.
6.Offer Validity. This Order is valid for 30 days from the date of Customer receipt of this
Ordering Document unless extended by NEOGOV.
C.Special Conditions (if any).
1.Initial Term: 7/1/21 - 6/30/23 plus two, one-year renewal options to be exercised at the
Customer¶V GLVFUHWLRQ.
2.Onboard, Perform, Position Integration and Employee Integration Subscription Fees shall
not increase more than 5% from the previous Term.
3.NEOGOV will provide the following insurance coverage during the terms of this
Agreement:
a)Commercial General Liability (CGL): Insurance Services Office
Form CG 00 01 covering CGL on an ³RFFXUUHQFH´ basis, including
products and completed operations, property damage, bodily injury and
personal & advertising injury with limits no less than $1,000,000 per occurrence.
If a general aggregate limit applies, either the general
aggregate limit shall apply separately to this project/location (ISO CG
25 03 or 25 04) or the general aggregate limit shall be twice the
required occurrence limit.
b)Automobile Liability: Insurance Services Office Form Number CA
0001 covering, Code 1 (any auto), or if NEOGOV has no owned autos,
Code 8 (hired) and 9 (non- owned), with limit no less than $1,000,000
per accident for bodily injury and property damage.
c)WRUNeUV¶ Compensation insurance as required by the State of
California, with Statutory Limits, and EPSOR\HU¶V Liability Insurance
with limit of no less than $1,000,000 per accident for bodily injury or
disease.
d)Cyber Liability Insurance, with limits not less than $2,000,000 per
occurrence or claim, $2,000,000 aggregate. Coverage shall be
sufficiently broad to respond to the duties and obligations as is
undertaken by NEOGOV in this agreement and shall include, but not
be limited to, claims involving security breach, system failure, data
recovery, business interruption, cyber extortion, social engineering, 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, and alteration of electronic
information. The policy shall provide coverage for breach response
3 of 8
costs, regulatory fines and penalties as well as credit monitoring
expenses.
e)Technology Professional Liability Errors and Omissions
Insurance aSSURSULaWH WR NEOGOV¶V SURIHVVLRQ aQG ZRUN KHUHXQGHU,
with limits not less than $2,000,000 per occurrence. Coverage shall be
sufficiently broad to respond to the duties and obligations as is
undertaken by NEOGOV in this agreement and shall include, but not
be limited to, claims involving security breach, system failure, data
recovery, business interruption, cyber extortion, social engineering,
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, and alteration of electronic
information. The policy shall provide coverage for breach response
costs, regulatory fines and penalties as well as credit monitoring
expenses.
1)The Policy shall include, or be endorsed to include,
property damage liability coverage for damage to,
alteration of, loss of, or destruction of electronic data
aQG/RU LQIRUPaWLRQ ³SURSHUW\´ RI WKH Customer in the
care, custody, or control of the NEOGOV. If not covered
under the NEOGOV¶V liability policy, such ³SURSHUW\´
coverage of the Agency may be endorsed onto the
NEOGOV¶V C\EHU LLaELOLW\ PROLF\ as covered property
as follows:
2)If NEOGOV maintains broader coverage and/or higher
limits than the minimums shown above, the Customer
requires and shall be entitled to the broader coverage
and/or the higher limits maintained by NEOGOV. Any
available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be
available to Customer.
f)Other Insurance Provisions: the insurance policies are to contain, or be
endorsed to contain, the following provisions:
1)Additional Insured Status- The Customer, its officers, officials,
employees, and volunteers are to be covered as additional
insureds on the CGL policy with respect to liability arising out of
work or operations performed by or on behalf of NEOGOV
including materials, parts, or equipment furnished in connection with
such work or operations. General liability coverage can be provided
in the form of an endorsement to NEOGOV¶V LQVXUaQFH (aW OHaVW aV
broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26,
CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
2)Primary Coverage- For any claims related to this contract,
NEOGOV¶V iQVXUaQce cRYeUage VhaOO be SUiPaU\. Coverage for
4 of 8
commercial liability shall be at least as broad as ISO CG 20 01 04 13
as respects the Customer, its officers, officials, employees, and
volunteers. Any insurance or self-insurance maintained by the
Customer, its officers, officials, employees, or volunteers shall be
excess of NEOGOV¶V insurance and shall not contribute with it.
3)Notice of Cancellation- Each insurance policy required above shall
state that coverage shall not be canceled, except with notice to the
Customer.
4)Waiver of Subrogation- NEOGOV hereby grants to Customer a
waiver of any right to subrogation which any insurer of NEOGOV
may acquire against the Customer by virtue of the payment of any
loss under such insurance. NEOGOV agrees to obtain any
endorsement that may be necessary to affect this waiver of
subrogation, but this provision applies regardless of whether or not
Customer has received a waiver of subrogation endorsement from
the insurer.
5)Self-Insured Retentions- Self-insured retentions must be declared to
and approved by the Customer. The Customer may require
NEOGOV to provide proof of ability to pay losses and related
investigations, claim administration, and defense expenses within
the retention. The policy language shall provide, or be endorsed to
provide, that the self-insured retention may be satisfied by either the
named insured or Customer.
6)Acceptability of Insurers- Insurance is to be placed with insurers
authorized to conduct business in the state with a current A.M. BHVW¶V
rating of no less than A-:VII, unless otherwise acceptable to the
Customer.
7)Claims Made Policies- If any of the required policies provide
coverage on a claims-made basis:
a.The Retroactive Date must be shown and must be before the
date of the contract or the beginning of contract work.
b.Insurance must be maintained and evidence of insurance
must be provided for at least five (5) years after completion
of the contract of work.
c.If coverage is canceled or non-renewed, and not replaced
with another claims-made policy form with a Retroactive
Date prior to the contract effective date, NEOGOV must
SXUFKaVH ³H[WHQGHG UHSRUWLQJ´ FRYHUaJH IRU a PLQLPXP RI
five (5) years after completion of contract work.
8)Verification of Coverage- NEOGOV shall furnish the Customer
with original Certificates of Insurance including all required
amendatory endorsements (or copies of the applicable policy
language effecting coverage required by this clause) and a copy of
the Declarations and Endorsement Page of the CGL policy listing
all policy endorsements to the Customer before work begins.
However, failure to obtain the required documents prior to the work
beginning shall not waive the NEOGOV¶V obligation to provide
5 of 8
them. The Customer reserves the right to require complete, certified
copies of all required insurance policies, including endorsements
required by these specifications, at any time.
9)Subcontractors- NEOGOV shall require and verify that all
subcontractors maintain insurance meeting all the requirements
stated herein, and NEOGOV shall ensure that Customer is an
additional insured on insurance required from subcontractors.
10) Special Risks or Circumstances- Customer reserves the right to
modify these requirements, including limits, based on the nature of
the risk, prior experience, insurer, coverage, or other special
circumstances.
5.Section 15(b) (Cap on Monetary Liability) is modified to the following: CAP ON
MONETARY LIABILITY. WITHOUT LIMITATION OF THE PREVIOUS SECTION,
EXCEPT FOR DAMAGES ARISING OUT OF LIABILITY WHICH CANNOT BE
LAWFULLY EXCLUDED OR LIMITED, CUSTOMER¶S OBLIGATIONS TO MAKE
PAYMENT UNDER THIS AGREEMENT, OR LIABILITY FOR INFRINGEMENT OR
MISAPPROPRIATION OF NEOGOV INTELLECTUAL PROPERTY RIGHT S, THE
TOTAL LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS AGAINST
THE OTHER PARTY UNDER THIS AGREEMENT, WHETHER ARISING UNDER
OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL
NOT EXCEED THHREE TIMES (3X) THE AMOUNT OF ALL PAYMENTS
ACTUALLY RECEIVED BY NEOGOV FROM CUSTOMER DURING THE
TRAILING TWENTY-FOUR (24) MONTHS OF THIS AGREEMENT FROM WHICH
THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION OF LIABILITY
IS CUMULATIVE WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN
CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE
SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS
WILL NOT ENLARGE THE LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE
THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL ELEMENT OF THE
BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY
NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION
OF LIABILITY REFLECTS AN INFORMED, VOLUNTAR Y ALLOCATION
BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY
EXIST IN CONNECTION WITH THIS AGREEMENT AND HAS BEEN TAKEN INTO
ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE
GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECI SION BY
EACH PARTY TO ENTER INTO THIS AGREEMENT.
6.SHFWLRQ 14(a) (IQGHPQLILFaWLRQ) LV PRGLILHG WR WKH IROORZLQJ: IQGHPQLW\. ³SXEMHFW WR
subsections (b) through (d) of this Section, if a third party makes a claim against Customer
that any NEOGOV intellectual property furnished by NEOGOV and used by Customer
LQIULQJHV a WKLUG SaUW\¶V LQWHOOHFWXaO SURSHUW\ ULJKWV, RU aULVLQJ RXW RI aQ\ JURVVO\ QHJOLJHQW
action or willful FRQGXFW E\ NEOGOV RU LW¶V VXEFRQWUaFWRUV, NEOGOV ZLOO GHIHQG WKH
Customer against the claim and indemnify the Customer from the damages and liabilities
6 of 8
awarded by the court to the third-party claiming infringement or the settlement agreed to
by NEOGOV, if Customer does the following:
i) Notifies NEOGOV promptly in writing, not later than thirty (3) days after Customer
receives notice of the claim (or sooner is required by applicable law);
ii) Gives NEOGOV sole control of the defense and any settlement negotiations; and
iii) Gives NEOGOV the information, authority, and assistance NEOGOV needs to d efend
aJaLQVW RU VHWWOH WKH FOaLP.´
7 of 8
IN WITNESS WHEREOF, the parties have caused this Order to be executed by their respective
duly authorized officers as of the date set forth below, and consent to the Agreement.
Customer Governmentjobs.com, Inc. (DBA
³NEOGOV´)
Entity
Name:
City of
Santa Ana
Signature: Signature:
Print Name: Kristine Ridge Print
Name:
Date: Date:
8 of 8
ATTEST:
________________________
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By: _______________________
Laura A. Rossini
Chief Assistant City Attorney
RECOMMENDED FOR APPROVAL:
________________________
JASON MOTSICK
Executive Director of Human Resources