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HomeMy WebLinkAboutC12-077 Snugg Homes TECHNOLOGY LICENSE AND SERVICES AGREEMENT THIS TECHNOLOGY LICENSE AND SERVICES AGREEMENT (the "Agreement ") is entered into effective as of the 2 t of / 2012 (the "Effective Date "), by and between County of Eagle, State of Colorado, a body coriorate and politic, by and through its Board of County Commissioners, having its business address at 500 Broadway, Eagle, CO 81631 (the "County "), and Snugg Home LLC, a Colorado limited liability company having its business address at P.O. Box 82, Boulder, CO 80306 ( "Snugg Home "). The County and Snugg Home may be referred to herein collectively as the "Parties" and individually as a "Party." WHEREAS, the County is the recipient of United States Department of Energy Better Buildings grant funds for the purpose of improving energy efficiency in homes located in Eagle, Pitkin and Gunnison Counties by twenty percent (the "Grant ") and WHEREAS, the County partnered with Pitkin and Gunnison Counties to create the Energy Smart Colorado Program, which is utilizing Grant funds in a manner that will create energy efficient residential environments with the overall goal of reducing energy consumption in existing buildings in all three counties (the "Program "); WHEREAS, Snugg Home owns and operates a software platform designed to manage and facilitate home energy efficiency programs by tracking energy consumption and evaluating the effectiveness of energy- efficient retrofits for single family and small individually metered multi- family residences (exclusive of common or commercial areas), among other functions (the "Snugg Home Platform," as further described in Section 1 below); and WHEREAS, the County, on behalf of the Program, wishes to obtain and ;Snugg Home wishes to grant a license to use the Snugg Home Platform in connection with the Program, subject to the terms and conditions of this Agreement; NOW, THEREFORE, Eagle County and Snugg Home, intending to be legally bound, agree as follows: 1. Grant of License; Ownership. a. For purposes of this Agreement: i. "Snugg Home Platform" shall mean the current version of Snugg Home's web -based technology platform as further described in the Specifications attached hereto as ATTACHMENT A, and shall include, without limitation, all software, applications, processes, data, codes, tools, content, systems, components, user manuals, and training materials associated therewith, as well as future revisions, modifications, updates, enhancements, and corrections thereto that cause the Snugg Home Platform to continue to perform, function and operate as described in Attachment A. ii. "Snugg License" shall mean a nonexclusive subscription for the Program, including without limitation, County employees and agents, Partner Organizations, 451785_3 UN -01 homeowners, contractors, auditors, utilities, funders and lenders (collectively, "Program Participants "), allowing them unlimited access and use of the Snugg Home Platform to facilitate, track, manage, and evaluate the Program, as well as share information, reports, and calculations to support the goals of the Program and its subsidiaries. "Partner organizations" includes Energy Smart Colorado Partners as of the Effective Date and other partner communities located in the State of Colorado with a population of 100,000 or less in the county where the program is located. Except as set forth herein, the County shall not sublicense the Snugg License without the express written consent of Snugg Home. b. Subject to the terms and conditions of this Agreement, Snugg Home hereby grants to the County, and the County hereby accepts from Snugg Home, the right to use the Snugg License through payment of the Set -Up Fees and License Fees described in Section 10. c. The County may transfer the Snugg License to any of its successor(s) as deemed necessary by the County as it pertains to meeting the ongoing goals and scope of the Program. Written notification of such assignment will be forwarded to Snugg Home. Unless otherwise expressly written, all applicable provisions of this Agreement will be transferred to the named successor(s) upon this notification. d. Snugg Home shall retain all title and rights, including all patent rights, trademark rights, trade secret rights and copyright rights, to the Snugg Home Platform and all other software provided to the County as part of the services provided hereunder (collectively referred to herein as the "Intellectual Property "), as well as all modifications, updates and other works derivative of or to the Intellectual Property, all of which will be subject to the provisions of this Agreement. Neither Party grants the other Party any express or implied licenses under any patents, copyrights or trademarks, except to the extent necessary for each Party to fulfill its obligations to the other under this Agreement, the County may not copy, distribute, reproduce, use or allow access to the Intellectual Property except as explicitly permitted under this Agreement, and the County shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Intellectual Property. Snugg Home recognizes that as a sub - recipient of Grant funds, it may be subject to the intellectual property requirements at 10CFR 600.136(a) and (c). e. Upon the County's request, Snugg Home shall deposit and maintain in escrow a copy of the source materials for the Snugg Home Platform. A separate escrow agreement will provide that the source materials are subject to release to the County in the event that Snugg Home discontinues business or if Snugg Home otherwise denies Program Participants access to the Snugg Platform for reasons other than a breach of the Agreement by the County. Once deposited in escrow, it is expected that source materials representing the current version of the Snugg Home Platform will be maintained on a current basis with the escrow agent. For purposes hereof, the term "source materials" shall mean the source code in the internally documented form actually used for development and maintenance together with all software tools, scripts, development aids, and technical documentation necessary to successfully compile and configure the Snugg Home Platform. Additionally, information containing the names and contact information of a person or persons knowledgeable about and familiar with the source code and 2 451785_3 platform configuration step whom the County may contact with questions thereon. The Parties acknowledge and agree that the escrow agreement referred to above is an agreement supplementary to this Agreement for purposes of Section 365(n) of the United States Bankruptcy Code. The costs and expenses of the source code escrow agreement shall be borne solely by the County. 2. Performance Warranty/Remedy. Snugg Home represents and warrants that (i) the Snugg Home Platform will operate in accordance with the Specifications set forth and described in ATTACHMENT A, attached hereto and incorporated herein by this reference (the "Services ") and (ii) Snugg Home shall perform the Services with care, skill, and diligence in accordance with professional standards applicable to like software and IT service providers, and shall be responsible for the professional quality, technical accuracy, completeness, and coordination of all work product and/or Services furnished under this Agreement. In the event Snugg Home breaches either of the warranties set forth above, Snugg Home will, at no charge to the County, promptly reperform the Services to cause the Snugg Home Platform to conform to the Specifications in all material respects. Snugg Home's obligations are subject to the limitations, response times, and exclusions set forth in this Agreement and in the Service Level Agreement attached hereto as ATTACHMENT B. The County's exclusive remedy for breach of a Snugg Home warranty is Snugg Home's repair or replacement of the Snugg Home Platform; provided that if Snugg Home is not able to repair or replace the Snugg Home Platform to conform to the Specifications, Snugg Home will refund a pro rata portion of the license and development fees paid to Snugg Home under this Agreement based on a five -year straight line depreciation. Except as expressly set forth in this Agreement and its attachments, Snugg Home does not make any representations or warranties, express or implied, regarding the Snugg Home Platform or the Services and Snugg Home expressly disclaims all implied warranties of merchantability, fitness for a particular purpose or noninfringement. 3. Delivery and Acceptance. 3.1 Review and Testing of Deliverables. Upon Snugg Home's delivery of each deliverable, the County shall review and, if appropriate, test such deliverable to determine whether it conforms to its corresponding Specifications. The County shall report to Snugg Home any failure of a deliverable to conform to the applicable Specifications ( "Non- Conformities "), as well as any other problems or concerns that the County may have concerning the deliverable ( "Other Problems "), within 10 days following Snugg Home's delivery of such deliverable, or within such longer or shorter period of time as may be specified in the applicable Statement of Work (the "Review and Testing Period "). 3.2 Revision of Deliverables. Snugg Home shall promptly remedy all Non - Conformities reported by the County in writing at no cost to the County. Snugg Home reserves the right to treat any Other Problems reported by the County as a request for modification of the Services to be performed by Snugg Home, and to handle such request in accordance with the provisions of Section 3.4. Upon Snugg Home's revision of the deliverable to address all Non - Conformities reported by the County and any Other Problems that the County and Snugg Home have agreed that Snugg Home will correct, Snugg Home shall provide the revised deliverable to the County, 3 451785_3 a T whereupon the County shall review and, if appropriate, test the revised deliverable in accordance with the provisions of this Section 3.2 3.3 Ac • e • tance of Deliverables. With respect to each deliverable, the process described in Sections a .1 and 3.2 shall be repeated until the County accepts or finally rejects the deliverable in its reaso able discretion. 3.4 Stat ment of Work Chan. es. If the County desires to modify the Services to be performed and/or d; liverables to be provided under any Statement of Work, the County shall notify Snugg Home i writing of such modifications. Promptly following Snugg Home's receipt of the County' • written notice, Snugg Home shall submit a written change order proposal to the County. Such change order proposal shall include, among other items, an estimate of additional charges • the County, if any, and any expected impact the change will have on the scheduled date(s) fl r completion of such Services and/or deliverables. Upon the County's written approval of the c ange order proposal, the change order proposal will become a part of the relevant Statement of Work. No change to any Statement of Work shall be binding on the parties unless the change is embodied in a writing that has been signed by an authorized representative of each party. 4. ainin . Snugg Home agrees to provide the County with up to two (2) on -site, in- person t : ining sessions at no additional charge for as many as three (3) days each, which will be supplem nted by shorter and more focused training sessions administered through webinars and phone s pport. Snugg Home acknowledges and agrees that these training sessions will accomm date the needs of the County employees and agents, as well as contractors and auditors participa ing in the Program. Snugg Home warrants and represents that the type and length of training . s set forth in this Section 4 is reasonably adequate to ensure that the County employees and age ts, contractors and auditors can access and use the Snugg Home Platform for their intended purposes. When substantial changes are made to the platform, Snugg Home will notify Eagle CI unty and explain the changes at no additional charge. If the program expands and engages new staff and/or trade allies, or if additional training is requested, training will be provided as follows: the County can purchase additional in- person training sessions at a cost of twelve undred 0 /100 Dollars ($1200.00) per day, plus travel expenses that have been preappro ed by County. The County may purchase additional web -based training at $150 per hour. 5. Term. This initial term of this Agreement shall be from the Effective Date through December 31, 2013 (the "Term "). Unless the County provides Snugg Home with written notice of its int nt not to renew within thirty days of the end of an annual term, the Agreement shall continue to automatically renew each year on the same terms and conditions contained herein through ecember 31, 2020 unless earlier terminated in accordance with the terms set forth in Section . Unless otherwise mutually agreed in writing between the Parties, the Snugg License granted nder this Agreement shall remain in effect throughout the Term and shall terminate only up n the earlier of: (i) expiration of the Term; or (ii) the earlier termination of this Agreem t as permitted in Section 7. 4 451785 3 6. Suspension. In the event that Snugg Home fails to comply with the terms of this Agreement, then the County may, upon written notification to Snugg Home, suspend this Agreement in whole or in part, withhold payments to Snugg Home, and prohibit Snugg Home from receiving any additional funds, in addition to all other remedies available hereunder, at law or in equity. Any such instance where the County determines to suspend this Agreement and is withholding payment upon written notification due to failure to comply in any material respect with the terms of this Agreement shall not be deemed a breach of the terms of the Agreement by County and Snugg Home may not suspend County's access to the Snugg Home Platform in such instance. In the event that Snugg Home does comply with the terms of this Agreement, and the County fails to pay when and as due under this Agreement, Snugg Home may suspend performance hereunder and deny the County access to the Snugg Home Platform, in addition to all other remedies available hereunder, at law or in equity, until such payment has been received or the issue has been resolved. 7. Termination. a. The County's Right to Terminate. In addition to any termination rights granted elsewhere in this Agreement, the County shall have the right, upon thirty (30) days written notice to Snugg Home, to terminate this Agreement, in whole or in part, at any time. The County shall notify Snugg Home in writing prior to the thirtieth day preceding the termination of such determination and include: 1. the reasons for such termination; 2. the effective date of such termination; and 3. in the case of partial termination, the portion of this Agreement to be terminated. In the event the County terminates this Agreement as a result of Snugg Home's breach of the terms of this Agreement, County shall be entitled to a refund of the License Fees on a per -diem pro -rated basis for the remainder of the year in which the termination becomes effective. The County may also terminate this Agreement immediately upon written notice to Snugg Home if funding to the County for the Program is terminated or Grant funds become insufficient to pay the fees set forth in Section 10 herein. If the County terminates the Agreement due to a lack of funds, Snugg Home shall have no obligation to refund fees paid to date, except as may be otherwise required by the federal government under the terms of the Grant. b. Snugg Home's Right to Terminate. Snugg Home shall have the right to terminate this Agreement for the County's breach of the terms of this Agreement upon 30 days prior written notice to the County unless the County cures such breach during the 30 -day cure period, including payment of overdue amounts hereunder. c. Rights upon Termination. Upon termination of this Agreement, the County shall immediately stop use of the Snugg Home Platform and return to Snugg Home or destroy all copies of tangible Confidential Information relating to the Snugg Home Platform, but not User Data as defined herein. Upon expiration of this Agreement (including all renewal options), the County and Snugg Home agree to negotiate a renewal of the Snugg License in good faith; however, nothing herein shall obligate either Party to renew after the expiration of the Agreement in 2020. In the 5 451785_3 event of contract expiration or termination, Eagle County may retain use of all User Data. In the event th Agreement is terminated and the Snugg License is not renewed, the County and Snugg Home s 11 jointly prepare and send an electronic announcement to homeowners participating in the Pro am to notify them that they may continue using the Snugg Home Platform by entering into a c ntract directly with Snugg Home; provided however, that if the County intends to continue operating the Program after termination with Snugg Home, the joint announcement shall als provide information regarding homeowners' option to continue participating in the Program outside of the Snugg Home Platform. The Parties agree to reasonably assist in the transitio of users as needed. 8. onitorin . The County and the Federal Government reserve the right to perform, at the their sol cost and expense, periodic on -site or off-site monitoring of Snugg Home's compliance with this Agreement's terms and conditions and of the adequacy and timeliness of Snugg Home's performance pursuant to this Agreement. The County will monitor Snugg Home to assure compliance with applicable federal and state requirements and that performance goals are being achieved for each program, function, or activity. After any monitoring event, the County or Federal Government may provide Snugg Home with a written report of the monitor's findings. If the monitoring report notes deficiencies in Snugg Home's performance under this Agreement's terms, then the monitoring report shall include requirements for the timely correction of such deficien ies by Snugg Home. Material failure by Snugg Home to take action specified in the monitori g report may be cause for the suspension or termination of this Agreement as provided in Secti s 6 and 7 and potential refund of fees previously paid by County as contemplated in Section 0 herein. For onsite monitoring visits by the Federal Government, Snugg Home agrees to provide reasonably access to its facilities, office spaces, resources and assistance for the safety and convenience of the government representatives in the performance of their duties. 9. >L ecords, Audit, and Reporting Requirement. a. Snugg Home shall maintain, for a minimum of 5 years, adequate financial and programmatic records for reporting to County on performance of its responsibilities hereunder. Snugg Home shall be subject to financial audit by federal, state or county auditors or their designees. Snugg Home a horizes County or Federal Government to perform audits or to make inspections during normal usiness hours, upon 48 hours notice to Snugg Home, for the purpose of evaluating perform ce under this Agreement. Snugg Home shall reasonably cooperate in the observation and evaluation of the program and records to facilitate performance of the audit, and to obtain any documents, materials, or information necessary to facilitate such audit. b. Snug Home understands that this Agreement is entirely funded by Grant funds and that Snugg ome's acceptance of such funds acts as acceptance of the authority of the County, Federal overnment or their designated agent(s) to conduct an audit or investigation in connecti n with these funds. Snugg Home further agrees to reasonably cooperate with the County, Federal Government or its designated agent(s) during the audit or investigation, includin providing all records requested. Snugg Home shall ensure that this clause concerning the auth rity to audit funds received indirectly by subcontractors through Snugg Home and the require nt to cooperate is included in any subcontract it awards. 6 451785_3 c. As a sub - recipient of Grant funds, Snugg Home may be required to submit backup documentation regarding to the County or the Federal Government, including such items as timecards and invoices. Snugg Home agrees to provide copies of backup documentation at the request of the County or Federal Government. d. Snugg Home acknowledges and agrees that according to the Special Terms and Conditions of the Grant, the Federal Government is authorized to examine its records and interview any officer or employee regarding the Services provided and payments made under this Agreement. 10. Payment. a. During the 2012 term of the Agreement, the County shall pay Snugg Home for the Snugg License and the Services as follows: i. A set -up fee (the "Set -up Fee ") in the total amount of Thirty Thousand and 0 /100 Dollars ($30,000.00), payable upon the execution of this Agreement. In the event that the Basic Platform Services and Complete Platform Services are not substantially completed within 30 days of the time frame specified in Attachment A: Specifications and Timeline, and Attachment C: Timeline Chart without delay caused by the County or a Force Majeure Event; and this Agreement is terminated pursuant to 7 Termination, Snugg Home shall forthwith return the Set -up Fee in its entirety to the County. ii. Seventy Thousand and 0 /100 Dollars ($70,000) for the Basic Platform Services as identified in Attachment A: Specifications and Timeline. This payment includes 2012 licensing. In the event that the Compliete Platform Services are not substantially completed within 30 days of the time frame specified in Attachment A: Specification and Timeline and Attachment C: Timeline Chart without delay caused by the County or a Force Majeure Event, and this Agreement is terminated pursuant to Section 7 Termination, Snugg Home shall forthwith return the Set -up and Basic Platform Fees in their entirety to the County. iii. Seventy Five Thousand and 0 /100 Dollars ($75,000) for the Complete Platform Services as identified in Attachment A: Specifications and Timeline. This payment includes licensing fees for 2013. iv. A transaction fee (the "Transaction Fee ") (which will begin to accrue upon delivery of Basic Platform Services but will not be payable until delivery of the Complete Platform Services) based on the number of users (unique homeowner profiles), which shall be paid in batches of not less than 1000 users, determined as follows: 1. $27,000.00 for up to 4100 users during the term of this Agreement; and 7 451785.3 Snugg Home. Policies and reporting requirements may further be amended by the County during the Term as the Federal Government issues policy directives that serve to establish, interpret, or clarify this Agreement's performance requirements. Such policy directives shall be disseminated by the County and shall have the effect of qualifying this Agreement's terms and shall be binding upon Snugg Home as if written in this Agreement. c. Any alterations, additions, or deletions to this Agreement's terms that are required by the changes in federal and state laws or regulations are automatically incorporated into this Agreement without written amendment to this Agreement and shall become effective on the date designated by such law or regulation; provided that the County shall give Snugg Home written notice of the same. d. Snugg Home shall notify the County within ten (10) working days of the occurrence of any change in Snugg Home's key personnel assigned to this Program, significant changes affecting Snugg Home's identity (such as name, governing structure or organization ownership or control, name change, governing board membership), any voluntary or involuntary actions in bankruptcy, or any criminal or civil allegations or actions by or against Snugg Home. 12. Notice. Any notice or communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given (i) on the day of service if served personally, via email with confirmation, or delivered by facsimile with printed confirmation; (ii) 3 days after mailing if mailed by first class mail, registered or certified, postage prepaid; or (iii) the next business day if sent by a reputable overnight courier, to the addresses set forth below or to any other address that a Party designates by providing notice. To the County: To Snugg Home: Eagle County Attn: Adam Palmer Snu gg Home LLC P.O. Box 850 Attn: Adam Stenftenagel 500 Broadway P.O. Box 82 Eagle, Colorado 81631 Boulder, CO 80306 with a copy to: with a copy to: Eagle County Attorney Patrick K. Perrin, Esq. 500 Broadway Berg Hill Greenleaf & Ruscitti LLP P.O. Box 850 1712 Pearl Street Eagle, CO 81631 Boulder, CO 80302 13. Subcontracting. Snugg Home may subcontract or delegate its obligations to perform the Services under this Agreement with prior written approval from the County; provided however, that any subcontractors shall be engaged directly by Snugg Home and that Snugg Home shall be responsible for any payments or other obligations to any subcontractors for the performance of 9 4517853 such services. Snugg Home hereby agrees to indemnify and hold harmless the County from and against .1 y liability, costs, damages and fees (including reasonable attorney fees) based upon or arising f om any claims or threatened claims by any subcontractor related to the Services. 14. I de i endent Contractor. Snugg Home understands that it is acting as an independent contract i and shall not hold itself out as representing or acting in any manner on behalf of the County ; xcept as expressly allowed under the terms of this Agreement. Snugg Home shall have no auth i rity to bind the County, and nothing contained in this Agreement shall make Snugg Home a I artner, agent, employee, or joint venturer of the County. 15. ' ublicity; Trademarks. This Agreement does not grant or convey to Snugg Home any license or other rights in and to the County's or Energy Smart Colorado's trademark, trade names or other designations, and Snugg Home agrees that it shall not use such designations without the I County's. prior approval and consent, which consent shall not be unreasonably withheld. Snugg 1 Home s tall not make any public announcement regarding the existence or content of this Agreement without the County's prior approval and consent, which consent shall not be unreaso ably withheld. 16. 11 ser Data. a. Snug;, Home agrees to deliver in a native database format (using a commercial data base platfo ■ to the County upon the County's request and in any event, upon termination of this Agreem nt, a complete set of all information discovered or derived in the performance of the Services required under this Agreement and through the County's use of the Snugg Home Platfo including a complete set of all information pertaining to Program Participants that is uploade , stored or transmitted through the Snugg Home Platform ( "User Data "). b. The ' : 'es acknowledge and agree that the County shall own all right, title and interest in and to all U' • r Data, and to the extent the County is determined not to be the owner of the User Data, Snugg ome hereby irrevocably assigns to the County all right, title and interest Snugg Home has or .y hereafter acquire in the User Data. c. The ' arties agree that Snugg Home shall have access to the User Data, and that it may use such information during the Term as necessary to carry out the intent of this Agreement; provide however, that Snugg Home shall comply with all applicable privacy and data security laws an regulations and payment card systems rules and will be solely responsible for any required disclosures associated therewith. For purposes of this Agreement, User Data shall be deemed Confidential Information as that term is defined in Section 25. d. Upon termination of this Agreement, Snugg Home shall first fully comply with the requirements of Section 16(a) herein and then delete or destroy any User Data in its possession to the exte t it contains personal identifying information of Program Participants, including without limitati names, addresses, telephone numbers, business names, social security numbers, driver's icense numbers, and credit card numbers. Notwithstanding the foregoing, Snugg Home may re 'n, use and disclose anonymized, non - identifying energy consumption data for the purpose of tracking, compiling, synthesizing and evaluating energy consumption trends among 10 451785 3 participants and the effectiveness of energy - efficient retrofits. Snugg Home shall have no rights to User Data other than as expressly granted herein or as mutually agreed between the parties. 17. Force Majeure. Neither Party shall be deemed in default of the Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or associated shortages of materials or supplies ( "Force Majeure"), provided that the Party affected shall promptly notify the other, giving particulars of the event. The Party so affected shall use reasonable efforts to eliminate or remedy the event and resume performance. Notwithstanding any of the foregoing, the County may terminate this Agreement if such Force Majeure event continues for more than thirty (30) days, and the County shall not be responsible for any fees that may have incurred during the time in which the delay or failure in performance by Snugg Home occurred. 18. Indemnification and Limitation of Liability. a. Snugg Home agrees, to the fullest extent permitted by law, to indemnify and hold harmless the County, its officers, directors, and employees against all damages, liabilities, or costs, including reasonable attorneys' fees and defense costs, to the extent arising out of (a) Snugg Home's intentional, reckless, or negligent performance of the Services; (b) any breach of this Agreement or the Service Level Agreement by Snugg Home; (c) any third -party claim that the Snugg Home Platform or the Intellectual Property infringes a patent, trademark, copyright or any other intellectual property or proprietary right, or misappropriates such third party's trade secret; or (d) any intentional or unintentional disclosure of User Data by Snugg Home. The Parties acknowledge and agree that the foregoing indemnification shall not apply to claims made directly by the County related to the quality of the Services or the availability of the Services (including server outages and similar claims), which shall be resolved in accordance with the Service Level Agreement. b. Neither Party shall be liable to the other Party for indirect, incidental, punitive, special, or consequential damages arising out of this Agreement, even if the Party has been informed of the possibility of such damages, including but not limited to, loss of profits, loss of revenues, failure to realize expected savings, loss of data, loss of business opportunity, or similar losses of any kind. However, this limitation shall not apply to damages of any kind related to criminal, intentional, reckless, or grossly negligent conduct or omissions on the part of either Party. c. Except as to Snugg Home's indemnification obligations under Section 18.a. (a) or (c), the total cumulative liability of Snugg Home, its parents, subsidiaries, affiliates, officers, employees, or agents for all claims of any kind arising under this Agreement, whether in contract, tort, or otherwise, shall be limited to, and in no event shall be greater than, the total funds paid to Snugg Home under this Agreement. 19. Severability. In the event that any one or more of the provisions contained in this Agreement shall be held to be invalid, illegal, or unenforceable in any respect, then such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any provision of this Agreement 11 451785_3 is held to be excessively broad, then that provision shall be reformed and construed by limiting and redu :ing it to be enforceable to the maximum extent permitted by law. 20. E ntire Agreement. This Agreement, including all appendices, attachments, and exhibits hereto, constitutes the entire agreement of the Parties and supersedes any previous agreement or understa-iding. The appendices, attachments, and exhibits enumerated and denominated herein are here J3/ made a part of this Agreement and constitute promised performances by Snugg Home. 21. Compliance with Law; Order of Precedence. In the event of a conflict between the terms of this Agreement, the Special Terms and Conditions of the Grant, or the attachments to this Agreement (Attachment A, Attachment B, Attachment C, Schedule 1 and Schedule 2), the conflict ;hall be resolved by giving precedence in the following order: (a) Special Terms and Conditions of the Grant; (b) this Agreement; (c) Attachment A, Specifications and Timeline; (d) Attachment B, Service Level Agreement; (e) Attachment C, Timeline; (f) Schedule 2, Security and Recovery Protocols for Eagle County; (e) Schedule 1, Contact Information. The Parties agree to comply with all applicable state and federal laws and regulations in performance of this Agreement. 22. Governing Law. The validity, interpretation, and performance of this Agreement shall be govemed by the laws of the State of Colorado. All disputes which arise in connection with, or in relation to, this Agreement or any claimed breach thereof shall be resolved, if not sooner settled, 5y litigation only in the state and federal courts (as applicable) of Eagle County, Colorado, subject only to the authority of the court in question to order changes of venue. To this end Snugg Home waives any rights it may have to insist that litigation related to this Agreement to which Snugg Home is a party be had in any venue other than the above court, and covenants not to sue the County in court other than the above courts with respect to any dispute related t3 this Agreement. Snugg Home expressly submits to the jurisdiction of the state and federal of Eagle County, Colorado with respect to any action related to or arising from this Agreement and hereby waives any jurisdictional or venue defenses otherwise available to it. 23. Limitation on Recourse. Snugg Home acknowledges that (a) the County is acting hereunder in connection with the fulfillment of its obligation to manage the Program pursuant to the Special Terms and Conditions of the Grant, and any and all other federal mandates related to the use of Grant funds, and (b) the County's obligations hereunder and/or relating hereto shall be limited to the extent of the availability of such Grant Funds. All liabilities and obligations of the County ander this Agreement are subject and limited to the availability of the Grant Funds associated with the Program. 24. vailable Funding. The County shall not be obligated to provide payment or any portion f the payment under this Agreement if there are insufficient funds for such purpose because of any legislative or regulatory action curtailing, reducing, or eliminating funding necess to operate the Program. Notwithstanding anything to the contrary contained in this Agreem nt, County shall have no obligations under this Agreement after, nor shall any payments be mad to Contractor in respect of any period after, December 31st of any the calendar year during t e Term of this Agreement, without an appropriation therefore by County in accordance 12 451785_3 with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29 -1 -101 et.seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 25. Confidentiality. a. Confidential Information Defined. For purposes of this Agreement, "Confidential Information" shall mean information of a sensitive or proprietary nature that is provided with a commercially reasonable expectation of confidentiality, as well User Data and/or any other personally identifying information regarding any Program Participant that is uploaded, stored or transmitted through the Snugg Home Platform. b. Non - Disclosure. In connection with the performance of this Agreement, each Party acknowledges that it may have access to certain Confidential Information of the other Party. Subject to Section 27 below, each Party agrees to maintain in confidence all Confidential Information of the other Party, and agrees not to disclose any such Confidential Information to any third party (except as contemplated under this Agreement). In maintaining the confidentiality of Confidential Information, each Party shall exercise the same degree of care that it exercises with its own Confidential Information, and in no event less than a reasonable degree of care. Each Party shall ensure that its personnel hold in confidence and make no use of the other Party's Confidential Information for any purpose other than those permitted under this Agreement or otherwise required by law. c. Exceptions to Confidentiality Obligations. The obligations of confidentiality contained in this Agreement shall not apply to the extent that (a) a Party is required to disclose information by order or regulation of a governmental agency or a court of competent jurisdiction; provided, however, that the disclosing Party shall not make any such disclosure without first notifying the non - disclosing Party and allowing such party a reasonable opportunity to seek injunctive relief from (or a protective order with respect to) the obligation to make such disclosure. 26. Disclosure Obligations. Notwithstanding any contrary provision contained in this Agreement, Snugg Home acknowledges that the County may be subject to certain laws, regulations and grant requirements requiring disclosure of documents and information related to this Agreement, including information generated by or derived from use of the Snugg Home Platform ( "the County Information "). Snugg Home agrees to fully cooperate with the County in identifying and disclosing the County Information, regardless of which Party owns the information. Further, Snugg Home acknowledges and agrees that the County, including its officers, directors, or employees, shall not be liable for the disclosure of the County Information provided that the County determines in its reasonable discretion that it is obligated to disclose such information. Snugg Home agrees to notify the County immediately upon any unintentional disclosure of County Information which constitutes or includes Confidential Information or User Data. Snugg Home further agrees to notify the County immediately upon receipt of a third -party request for the County Information which constitutes or includes Confidential Information or User Data and await County's instructions before disclosing or allowing inspection of such County Information or User Data. 13 451785_3 27. Assignment and Binding Effect. The Parties acknowledge and agree that the obligations of Snugg Home are personal to Snugg Home and that Snugg Home may not assign its rights, obligations or this Agreement, except as expressly provided in this Agreement or with the prior written approval of the County (which will not be unreasonably withheld). Subject to the fore ing, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Part s and their respective successors and permitted assigns. 28. Attorneys' Fees. The Parties shall bear their own legal fees and costs incurred in the negotiation of this Agreement and prior to the execution of this Agreement. In the event that legal ac on ensues to compel performance of this Agreement, the prevailing Party shall be entitled an award of the reasonable costs and attorneys' fees incurred in such action. 29. aiver. No waiver by either Party of any default shall be deemed a waiver of prior or subsequ t default of the same or other provisions of this Agreement. 30. I surance. Snugg Home and any subcontractors shall procure and maintain until all of their obligations have been discharged, insurance against claims for injury to persons or damage to property which may arise from on in connection with the performance of the work hereunder by Snugig Home, its agents, representatives, employees or subcontractors. The insurance requirements herein are minimum requirements for this Agreement and in no way limit the indemnity covenants contained in this Agreement. Snugg Home shall provide coverage with limits of not less than those stated below. An excess liability policy or umbrella liability policy may be used to meet the minimum liability requirements provided that the coverage is written on a "folio ing form" basis. a Commercial General Liability i. The policy shall include bodily injury, property damage and liability a sumed under an Insured Agreement including defense costs. ii. The policy shall be endorsed to include the following additional insured 1. nguage: "Eagle County, its associated and/or affiliated entities, successors, or assigns, i . elected officials, trustees, employees, agents, and volunteers shall be named as a I ditional insureds with respect to liability arising out of the activities performed by, or o behalf of Snugg Home." iii. Minimum Limits: General Aggregate $1,000,000 Products /Completed Operations Aggregate $1,000,000 Each Occurrence Limit $1,000,000 Personal/Advertising Injury $1,000,000 14 4517853 b. Automobile Liability i. The policy shall include Bodily Injury and Property Damage for any owned, hired, and non -owned vehicles used in the performance of this Agreement. ii Minimum Limits: Bodily Injury/Property Damage (per Accident) $1,000,000 c. Worker's Compensation and Employers' Liability Snugg Home shall maintain worker's compensation insurance as required by law. d. Professional Liability (Errors and Omissions Liability) including Cyber Liability i. Snugg Home shall maintain a professional liability insurance policy covering professional misconduct or lack of ordinary skill for those positions defined in the scope of work or set forth in this Agreement. ii. In the event that the professional liability insurance required by this Agreement is written on a claims -made basis, Snugg Home warrants that any retroactive date under the policy shall precede the effective date of this Agreement; and that either continuous coverage will be maintained or an extended discovery period will be exercised for a period of two (2) years beginning at the time work under this Agreement is completed. iii. If such insurance is maintained on an occurrence form basis, Snugg Home shall maintain such insurance for an additional period of one (1) year following termination of Agreement. iv. The insurance shall provide coverage for the following risks: • Liability arising from theft, dissemination and / or use of confidential information (a defined term including but not limited to bank account, credit card account, personal information such as name, address, social security numbers, etc. information) stored or transmitted in electronic form; • Network Security Liability arising from the unauthorized access to, use of or tampering with computer systems including hacker attacks, inability of an authorized third party, to gain access to your services including denial of service, unless caused by a mechanical or electrical failure; • Liability arising from the introduction of a computer virus into, or otherwise causing damage to, a customer's or third person's computer, computer system, network or similar computer related property and the data, software, and programs thereon. 15 451785_3 i I I i v. Minimum Limits: Per Loss $3,000,000 Aggregate $3,000,000 vi. The policy shall be endorsed to include the following additional insured language: "Eagle County, its associated and/or affiliated entities, successors, or assigns, its elected officials, trustees, employees, agents, and volunteers shall be named as additional insureds with respect to liability arising out of the activities performed by, or on behalf of Snugg Home." e. Additional Insurance Requirements: The policies shall include, or be endorsed to include, the following provisions: i. On insurance policies where the County is named as an additional insured, County shall be an additional insured to the full limits of liability purchased by Snugg Home even if those limits of liability are in excess of those required by this Agreement. ii. Snugg Home's insurance coverage shall be primary insurance and non- contributory with respect to all other available sources except with respect to the sole negligence of the Additional Insured. f. Notice of Cancellation: Snugg Home will provide to Eagle County thirty (30) days prior written notice of cancellation or non - renewal except when cancellation is for non - payment of premium, then ten (10) days prior notice may be given. Such notice shall be sent directly to the Eagle County Attorney, Post Office Box 850, Eagle, Colorado 81631. No notice is required if coverage remains continuously in force under replacement or renewal policies of an essentially similar nature. g. Acceptability of Insurers: Insurance is to be placed with insurers duly licensed or authorized to do business in the state of Colorado and with an "A.M. Best" rating of not less than A- VII. Licensee in no way warrants that the above- required minimum insurer rating is sufficient to protect Snugg Home from potential insurer insolvency. h. Verification of Coverage: Snugg Home shall furnish County with certificates of insurance (ACORD form or equivalent approved by the County) as required by this Agreement. The certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and any required endorsements are to be received and approved by the County before Services are commenced. Each insurance policy required by this Agreement must be in effect at or prior to commencement of work under this Agreement and remain in effect for the duration of the Agreement. Failure to maintain the insurance policies as required by this Agreement or to provide evidence of renewal is a material breach of contract. The parties acknowledge that Snugg Home's insurance is renewable on an annual basis and evidence of renewal will be provided subsequent to each applicable renewal. All certificates required by this Agreement shall be sent directly to 16 4517853 • • Eagle County Energy Smart Program, Attention Adam Palmer, Post Office Box 850, Eagle, Colorado 81631. County reserves the right to require complete, certified copies of all insurance policies required by this Agreement at any time. i. Subcontractors: Snugg Home's certificate(s) shall include all subcontractors as additional insureds under its policies or Snugg Home shall furnish to the County separate certificates and endorsements for each subcontractor. County shall require that each subcontractor maintain coverage reasonable and appropriate for the services being provided. 31. No Third Party Beneficiaries. No provision of this Agreement is intended or shall be construed to provide or create any third party beneficiary right or any other right of any kind in any Person other than the Parties and their proper successors and assigns, and all terms and provisions hereof shall be personal solely between the Parties to this Agreement and such proper successors and assigns. 32. No Waiver of Immunity. The Parties hereto understand and agree that County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended. 17 451785_3 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. The Effective Date for this Agreement is the date it is fully executed by both parties. EAGLE COUNTY By and through its Board of County om VI ners ATTEST: 13. sf.C.LE e Peter Runyon, Chairman Gl e t Arita • , .< mrIEW J Aor • o tie , oars o Co SNUGG HOME: SNUGG HOME LLC By: i J Vii . en, . ager, Snugg Home LLC STATE OF G 1 art is ) ) ss. COUNTY OF Bso lain ) The fore _oing instrument was acknowledged before me by F r PSp , this 1 day of L ocxr 2012 My com ission expires: 1 3 IIL I,��h asf 9 6 s, Tiv otary Public w! NOTARY ` _ . �/ : x .o.-111-.01b i ms 's . PUBLIC / 1 1; 1 5. 4 :.- ........•• Q �� tal OF cO - .! 18 4517853 ATTACHMENT A SPECIFICATIONS Timeline: See attached Gantt chart, Attachment C Items completed to meet prescribed functionality according to Attachment C will be paid in accordance with Section 10 of the Agreement. County will provide all necessary information to Snugg Home to complete deliverables and Snugg Home shall have no liability for delays caused by the County or by Force Majeure Events. Written notification of such delays, outstanding items, or items not meeting specific functionality as described below must be expressed promptly by the appropriate party. The County shall provide Snugg Home with existing participant and user information, process flow descriptions (and diagrams, if available), marketing materials, information on auditors /contractors participating in the program, financial program information, and any other reasonable information requested by Snugg Home necessary to implement the Snugg Home platform in a manner that meets the agreed upon functionalities described in this agreement. The Snugg Home Platform will be delivered in 3 phases: Basic Platform Services, Complete Platform Services, and Customized Features. The Snugg Home Platform will perform substantially similar to the beta version previously reviewed by the County. Basic Platform Services will be completed and delivered no later than 14 days after payment of the Set -Up Fee as identified in Section 10 of the Agreement and will perform according to the following Specifications: A. Homeowner Functionality. Homeowners will have the capability to do the following: 1. Create a user profile, password and log in to the Snugg Home Platform 2. Enroll in the Program and sign up for an Energy Smart assessment 3. Utilize iAudit 4. Utilize the self assessment energy survey tool; 5. View their energy savings potential; 6. Receive simplified custom retrofit and behavior recommendations. B. Program Staff: Energy Advisor Functionality Program Staff will have the capability to do the following: 1. Choose to guide a homeowner through the process of getting a home energy retrofit 2. Track and manage a homeowner through the process of getting a home energy retrofit 3. Work with homeowner to identify comfort, health and safety issues in the home that can be improved with an upgrade. C. Program Staff: Administration Functionality Program Staff will have the capability to do the following: 1. Add, edit and remove users from the Platform or the system including: a. Homeowners b. Energy advisors 19 451785_3 c. Auditors d. Contractors e. Other contractors 2 Assign contractors to homeowners 3 Review customer sign -ups and other recorded engagements through the CRM/Data Repository— existing data will be uploaded in initial stages of deployment 4 View and manage leads and data from participants, volunteers, events, providers, communities, and campaigns 5 Track leverage data (in -kind and volunteer hours, contributed expenses, rebates, incentives, etc.) 6 Export data for DOE reporting and 3rd party measurement and verification 7 View and manage aggregated estimated energy savings 8 Add, edit and remove energy and water saving alerts 9, View and analyze customer click through and website engagement Complel e Platform Services will be delivered no later than 60 days after payment of the Set -Up Tee as identified in Section 10 of the Agreement and will, inclusive of all features of the Basic Platform, perform according to the following Specifications: A. Eomeowner Functionality Eomeowners will have the capability to do the following: 1 Sign up for the Program and follow a link to finance partners' application forms on external sites 2, Access a personal dashboard with: a. Manual Utility bill entry b. Customizable alerts with energy and water saving tips and rebates c. Ability to track progress towards completion of a home energy retrofit through both a progress bar and text -based activity feed g p � �' d. Ability to apply for EnergySmart rebates 3. Receive email notices throughout the retrofit enrollment, assessment and retrofit process. 4. Request and choose dates and times for an energy audit and/or retrofit work — program staff will schedule work during requested time blocks as appropriate. 5. View energy efficiency upgrade recommendations from iAudit Pro including: a. Costs, savings, and incentives for each recommendation b. ROI, Comfort, and Health and Safety criteria as chosen by the auditor /advisor c. Total costs, rebates, and energy savings d. Cash flow based on chosen financing options 6. Sign up for program at events 7. Sign up for email newsletters 8. Communicate seamlessly with other stakeholders in the process 1Set a savings goal. 1 . Choose to join peer, neighborhood, and town groups. 11. Share energy graphs and data on social media sites such as Twitter and Facebook. 20 451785 3 12. View group rankings and leaderboards for energy actions which can be shared on social media and other partner websites 13. Fill out satisfaction surveys, provide testimonials, and rate and rank performance of contractors 14. Choose from a database of approved contractors to perform retrofit work 15. View carbon savings impact through recommended energy efficiency improvements from iAudit Pro B. Program Staff: Energy Advisor Functionality Program Staff will have the capability to do the following: 1. Schedule a consultation with a homeowner based on the homeowner's requested dates and times 2. Schedule an audit based on requested dates and times from a homeowner 3. View the energy audit report created by iAudit Pro or other energy audit report pdf 4. Mark the retrofit work as complete and compare recommendations to completed work 5. Schedule a quality assurance visit 6. Mark the project as complete 7. Pre -load homeowner information into iAudit Pro 8. Upload captured data from iAudit Pro after audit 9. After a quality assurance visit, upload quality assurance information C. Program Staff: Administrators can: Program Staff will have the capability to do the following: 1. Manage financing data 2. Track the entire homeowner engagement from intake to completion to M &V 3. Track campaigns by audience target, conversion rate, media channels, and cost Customized and iAudit Pro features: Customized items are not included in the Snugg Home Platform or Snugg License as described herein this Agreement. Customized items shall be billed in addition to payments described in Section 10 at a development rate of $150 per hour and to the specifications and timelines as is mutually agreed upon by the parties and included in an amended scope of work to be negotiated separately from this document. Customized items include, but are not limited to, the following: A. Homeowner Functionality 1. View year to year energy savings comparisons that are normalized to actual weather data (with utility participation )—this is a custom feature. B. Program Staff Functionality 1. Create events, post events on website calendar automatically, and track attendance — this is a custom feature 2. Track installed measures using assumed/deemed savings —this is a custom feature 3. Utility user data integration —this is a custom feature most likely requiring agreements with respective utility(s) providing data agreement(s). 21 451785_3 C. iAudit Pro Functionality i.• udit Pro is a proprietary field -based home energy audit software platform which i i cludes integration with the Snugg Home Platform and utilized by partner contractors of ti e Program. Use of the iAudit Pro tool by auditors /contractors will be billed at ', c 0 /audit. Snugg Home will bill auditors /contractors performing work for the :nergySmart Program at this rate. Use is not included in licensing fees for the Snugg ome platform. There will not be a direct cost to the Program for iAudit Pro unless utually agreed upon and established in a separate agreement. • udit Pro Contractors Can: 1. anage, schedule, and assign jobs to multiple crews 2. 1 apture audit and assessment information 3. 1 enerate recommendations for energy upgrades 4. 1 enerate savings calculations for reporting 5. 1 ather data on homeowner concerns / comfort / safety issues 6. 1 enerate a PDF report and/or upload recommendations to homeowner's dashboard— logo and company name are editable, most of the text fields are editable 7. pload all data and recommendations to Snugg Home Platform 8. :dit and modify recommendations and recalculate energy savings 9. ake and store photos with the mobile device 10. s11ow up after work is performed and document installed measures 11. ' -rform Quality Assurance inspection and document results (can be 3rd party) 22 451785_3 ATTACHMENT B SERVICE LEVEL AGREEMENT THIS SERVICE LEVEL AGREEMENT (the "Service Level Agreement ") is referenced in and incorporated into that certain Technology License and Services Agreement (the "Agreement "), dated as of the Effective Date, between Snugg Home LLC (" Snugg Home ") and Eagle County ( "the County "). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement. 1. DEFINITIONS. "Business Hours of Operation" shall mean the County's hours of operation as advertised to its customers. "The County User" shall mean an agent of the County who is qualified and trained by the County to access the Snugg Home Platform. "Service Response Center" shall mean the Snugg Home Service Response Center that is accessible via the contact addresses as listed on Schedule 1 to this Service Level Agreement. "Enhancement" shall mean technical or functional additions to the Snugg Home Platform to improve functionality and/or operation. Enhancements are delivered with new releases of the Snugg Home Platform. "Interrupted Service Minutes" shall begin upon the date and time as reported on the applicable Trouble Ticket for a verified interruption of service, and shall end upon the point in time when such Trouble Ticket has been closed. Interrupted Service Minutes shall be calculated for any period of time during which there is (a) a continuous interruption in service lasting in excess of fifteen (15) minutes, or (b) two or more periods of interruption within in a twenty -four hour period that collectively, but not individually, exceed fifteen minutes. Interrupted Services Minutes shall not include periods during which the Snugg Home Platform is unavailable as a result of (i) negligent or intentional acts or omissions of the County, its employees, contractors or agents or its end users, including, without limitation, the repetition of acts or omissions by such persons after being warned by Snugg Home not to repeat such acts or omissions; (ii) failure or malfunction of equipment, applications or systems owned, controlled or maintained by the County, its employees, contractors or agents or its end users; (iii) Force Majeure events; (iv) regularly scheduled service maintenance, updating, alteration, or implementation in accordance with the terms and conditions set forth herein; or (v) the County's failure to provide valid and accurate contact information. "Qualified Agent" is an agent of the County who is qualified and trained by the County to access the Snugg Home Platform and who has been designated by the County to access Snugg Home's Service Response Center. 23 451785_3 "Service Credit" shall mean a dollar credit equal to: (i) a percentage equal to the total Interrupted Service Minutes in a given month divided by the total number of minutes in such month, but excluding the total number of normal maintenance minutes; multiplied by (ii) the annual License Fee for such year divided by twelve (12). This formula is illustrated below for reference. Monthly Interrupted Services Minutes License Fee x Total Monthly Minutes 12 = Servic° Credit "Support Services" shall mean all maintenance and technical support necessary to ensure that the Snugg Home Platform has the functionality and operates in accordance with the Specifications. "Trouble Ticket" shall mean a documented service request marked with the date and time the request was reported to the Service Response Center by a Qualified Agent and with the date and time that the applicable problem was resolved. "Update" shall mean all published revisions to the Snugg Home Platform that are not designated by Snugg Home as new products for which it charges separately. 2. COVERAGE. In consideration for the County's payment of the applicable License Fee to Snugg Home, Snugg Home will provide the County with the Support Services for the term of the Agreement. Only Qualified Agents may contact Snugg Home to receive the Support Services. Snugg Home will periodically issue Updates and Enhancements to operation im rove the f h gg P Y P improve of the Snugg Home Platform at no additional charge to the County. All Updates and Enhancements are subject to the terms and conditions of the Agreement. 3. SERVICE LEVEL WARRANTY. 3.1 Warranty. Snugg Home warrants that the Snugg Home Platform shall be made available to the County at a ninety -nine percent (99 %) Rate of Availability (the "Service Level Warranty "). The "Rate of Availability" shall be calculated as (i) the number of minutes in a given month that the Snugg Home Platform is accessible and functioning substantially in accordance with the Specifications; divided by (ii) the total number of minutes in the month. This formula is illustrated below for reference. Monthly Interrupted Services Minutes Rate of Availability Monthly Minutes The Service Level Warranty does not cover failures in or of the Snugg Home Platform due to circumstances or conditions due to (i) negligent or intentional acts or omissions of the County, its 24 451785 3 4 employees, contractors or agents or its end users, including, without limitation, the repetition of acts or omissions by such persons after being warned by Snugg Home not to repeat such acts or omissions; (ii) failure or malfunction of equipment, applications or systems owned, controlled or maintained by the County, its employees, contractors or agents or its end users; (iii) circumstances or causes beyond the control of Snugg Home or its employees, agents, contractors, licensors or suppliers; (iv) regularly scheduled service maintenance, updating, alteration, or implementation in accordance with the terms and conditions set forth herein; or (v) the County's failure to provide valid and accurate contact information. 3.2 Remedies. Upon Snugg Home's failure to meet the Service Level Warranty in a given month, Snugg Home shall provide a Service Credit to the County, which Snugg Home shall either pay out to the County at the end of the month or, if applicable, credit to the County against amounts owed to Snugg Home. 4. SERVICE RESPONSE CENTER. 4.1 Access. The County access to the Service Response Center, for problems or issues experienced by the County, is available during the County's Business Hours of Operation, and for one hour before and one hour after the County's Business Hours of Operation, during which a Qualified Agent may contact Snugg Home at the phone number or email listed on Schedule 1, attached hereto and incorporated herein by this reference. Snugg Home staff will respond to the County's call or email at the phone number or email address as provided by the County on Schedule 1. In the event of an interruption of service occurring outside the County's Business Hours of Operation, the County should call or SMS the After Hours Paging Number provided in Schedule 1, and the Snugg Home staff will respond as soon as possible. Notwithstanding the foregoing, automatic monitoring of the Snugg Home Platform will be in place, and support staff should be notified immediately upon notification by this system. 4.2 First Level Diagnosis and Resolution. The Service Response Center will investigate Trouble Tickets in detail concerning reported problems. The Service Response Center will use commercially reasonable efforts to promptly correct the problem or provide a workaround to permit the County to resume use of the Snugg Home Platform. Should a problem not be resolved quickly or for problems that require further investigation, the Service Response Center will develop an action plan and communicate this plan to the County at the contact addresses as noted on Schedule 1. A problem will be considered closed upon the earlier of the resolution of such problem or the delivery of a workaround such that the Snugg Home Platform is accessible and functioning substantially in accordance with the Specifications. 4.3 Excluded Services. Snugg Home shall not be obligated to fix any problem where the Snugg Home Program: (i) is not used for its intended purpose; (ii) has been altered, damaged, modified or incorporated into other software in a way not approved by Snugg Home; (iii) is caused by the County's or a third party's software or equipment, or by the County's gross negligence, abuse, misapplication or use of the Snugg Home Platform; or (iv) is being used by program participants on any browser other than Internet Explorer 7 or greater, Google Chrome 3.0 or greater, Firefox 7.0 or greater, or Safari 3.0 or greater; or (v) is being used by program 25 4517853 r • staff on any browser other than Internet Explorer 8 or greater, Google Chrome 3.0 or greater, Firefox 9.0 or greater, or Safari 5.0 or greater or other software, hardware, operating systems or network environments that Snugg Home has approved in advance, or specifically directed the County to use. If Snugg Home has no obligation to fix the reported incident for one of the reasons tated above, the parties may enter into a separate agreement authorizing Snugg Home to provide dditional support services at Snugg Home's then- current consulting rates plus expenses. 5. ENANCE. Maintenance performed by Snugg Home shall be classified as one of the followin two (2) types: 5.1 Normal Maintenance. The term "Normal Maintenance" shall mean: (a) upgrades of hardware or software, or (b) upgrades to increase capacity. Normal Maintenance, while being conducted, may degrade the quality or cause an outage of the Snugg Home Platform; provided, however, that an outage related to Normal Maintenance shall not be deemed to be Interrupted Service Minutes. Normal maintenance shall be undertaken by Snugg Home weekly on Sunday morning between the hours of 2:00 a.m. and 4:00 a.m., Eastern Time and on Wednesday morning between the hours of 2:00 a.m. and 4:00 a.m., Eastern Time. In addition, Snugg Home shall pe orm extended maintenance once per year for up to eight (8) hours and once per month for up one (1) hour. The County shall be notified at least fifteen (15) days prior to the perform nce of such extended maintenance, which shall be performed at such times and dates to be reaso ably determined by Snugg Home. The County may reasonably object to the timing of such scheduled maintenance provided that it can be rescheduled within a reasonable time frame. .2 Urgent Maintenance. The term "Urgent Maintenance" shall mean efforts by Snugg ome to correct conditions which are likely to cause a material outage and which require immedi a correction. Urgent maintenance, while being conducted, may degrade the quality of the Snu g Home Platform provided to the County or may cause an outage of service. An outage or decli a in the quality of the Snugg Home Platform related to Urgent Maintenance shall be deemed outage for purposes of calculating Interrupted Service Minutes. Snugg Home may underta e Urgent Maintenance at any time Snugg Home deems necessary. Snugg Home shall provide notice of Urgent Maintenance to the County as soon as practical based on the circum stances. .3 Contacts. Email: support(snugghome.com; Phone: 720- 663 -7836 6. ECURITY AND BACKUP PROCEDURES. Snugg Home shall maintain security and back -up procedu es in accordance with the Security and Recovery Protocols provided in Schedule 2, attached hereto and incorporated herein by this reference. Snugg Home agrees that it shall notify the Cou ty prior to modifying its security and back -up procedures in any material way, unless the mo 'fled procedures are more stringent than those set forth in Schedule 2 such that the County ill receive greater protection. 7. RRORS AND DEFECTS. During the Term, at no cost to the County, Snugg Home shall furnish 11 materials and services (including, without limitation, all diagnosis and analysis of problem and defects), necessary to address and take corrective action on defects and errors in the sof are, documentation, services, and deliverables identified in the Agreement. Defects and 26 451785 3 errors which prevent basic system functionality, critical processing, or data corruption will be considered disruption of service. 27 4517x5_3 ATTACHMENT C Timeline Chart 28 451785 3 • ATTACHMENT C- -Snugg Home Eagle County Month 1 Month 2 Month 3 Month 4 Month 5 Month 6 Functionality 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Homeowner functionality 1. Sign up for the program 2. Utilize Audit, the self assesment energy survey tool 3. Access a personal dashboard with: a. Manual Utility bit entry b. Customizable alerts with energy and water saving tips and rebates c. Ability to track their progress towards completion of a home energy retrofit 4. Receive email notices throughout the retrofit enrollment, assessment and retrofit process. 5. Request and choose dates and times for an energy audit and/or retrofit work . 6. View energy efficiency upgrade recommendations from Audit Pro including : a. Costs, savings, and incentives for each recommendation b. ROI, Comfort, and Health and Safety criteria as chosen by the auditor /advisor c. Total costs, rebates, and energy savings d. Cash flow based on chosen financing options 7. Sign up for events 8. Sign up for email newsletters 9. Communicate seamlessly with other stakeholders in the process 10. Set a savings goal. 11. Choose to join peer, neighborhood, and town groups. 12. Share energy graphs and data on social media sites such as Twitter and Facebook 13. View group rankings and leaderboards for energy actions which can be shared on social media 14. Fill out satisfaction surveys, provide testimonials, and rate and rank performance of contractors 15. Choose from a database of approved contractors to perform retrofit work 16. View carbon savings impact through recommended energy efficiency improvements from Audit Pro 17. View year to year energy savings comparisons (with utility participation) Energy Advisor Functionality 1. Choose to guide a homeowner through the process of getting a home energy retrofit 2. Track and manage a homeowner through the process of getting a home energy retrofit 3. Work with homeowner to identify comfort, health and safety issues 4. Schedule a consultation with a homeowner based on the homeowner's requested dates and times 5.Schedule an audit based on requested dates and times from a homeowner 6. View the energy audit report created by iAudit Pro 7. Mark the retrofit work as complete 8. Schedule a quality assurance visit 9. Mark the project as complete 10. Pre -load homeowner information into iAudit Pro 11. Upload captured data from iAudit Pro after audit ' 12. After a quality assurance visit, upload quality assurance information Program Stan functionality 1. Add, edit and remove users from the system including: a. Homeowners b. Energy advisors c. Auditors d. Contractors e. Other contractors 2. Add, edit and remove energy and water saving alerts 3. Assign contractors to homeowners 4. Review customer sign -ups and other recorded engagements through the CRM/Data Repository 5. View and manage leads 6. Track leverage data (in -kind and volunteer hours, contributed expenses, rebates, incentives, etc.) 7. Export data for 3rd party measurement and verification 8. View and manage aggregated estimated energy savings 9. View and analyze customer click through and website engagement 10. Manage financing data 11. Track the entire homeowner engagement from intake to completion to M &V 12. Track campaigns by audience target, conversion rate, media channels, and cost 13. Create events, post events on website calendar automatically, and track attendance-this is a custom i feature 14. Track installed measures using assumed/deemed savings - this is a custom feature iAudit Pro Functionality 1. Manage, schedule, and assign jobs to multiple crews 2. Capture audit and assessment information 3. Generate recommendations for energy upgrades 4. Generate savings calculations for reporting 5. Gather data on homeowner concerns / comfort / safety issues 6. Generate a pdf report and /or upload recommendations to homeowner's dashboard 7. Upload all data and recommendations to Snugg Horne Platform 8. Edit and modify recommendations and recalculate energy savings 9. Take and store photos with the mobile device 10. Follow up after work is performed and document installed measures 11. Perform Quality Assurance inspection and document results (can be 3rd party) J Base Functionality Full Functionality Customized Functions u1111■o ur ..= � i I i i I i i i SCHEDULE 1 CONTACT INFORMATION SERVICE RESPONSE SUPPORT CENTER CONTACT NUMBERS: Business Hours of Operation: 9:00 -5:00 MST/MDT After Hours Paging Number: 303 - 810 -6619 THE COUNTY CONTACT INFORMATION: Primary Contact Name: Adam Palmer Office Phone Number: 970 - 328 -8734 Mobile Phone: 970 -471 -5558 Email: adam.palmer @eaglecounty.us Secondary Contact Name: Andris Zobs Office Phone Number: 970 - 641 -7682 Mobile Phone: 970 -497 -6090 Email: andris@resourceefficiency.org 29 451785_3 SCHEDULE 2 SECURITY AND RECOVERY PROTOCOLS FOR EAGLE COUNTY Connect vity and Security Enabling connectivity and managing data security risk. Commun_cation among components is performed most often by REST and SOAP -based APIs, using industry- standard security protocols. Non- API communication will be done securely, such as through SFTP. All components will be cloud hosted and programmably managed, deployed, and scaled. Traditional security and system administration plus `machine as application' approaches will ensure maintainability, auditability, scalability, and security. Snugg H me utilization of internal and external network environments; hardware and software equirements and costs. Our prim platform is an integrated system of web services with a robust and documented API. Snugg Home se ers are deployed on the Amazon EC2 infrastructure and have a nightly backup plan in place in case of catastrophic failure. Snugg Home will be responsible for all server costs for the lifetime of the contract ` and extensions identified in Attachment C. Our support platform is Software as a Service (SaaS), where they host and manage all software needs. We do not include the purchase of an ongoing SaaS license in our pricing. If requested, Snugg Home can purchase e required SaaS license(s) and charge the program at cost for these licenses. Network 1 anagement, monitoring, and alerting capabilities and approach to ensuring security . f assets and networks. We use ' •• anon Web Services' high - quality up -time monitoring system that alerts us through email and SMS of . y interruptions in service. Firewalls, security tools and encryption techniques are industry- standard I d used by many of the largest applications on the internet. Details r. garding the most recent security assessment of the Snugg Home environment performe . by a recognized third party. Dojo4, o technology partner, has done a full assessment of the security of our platform. Dojo4 has extensiv: experience in high - security web applications. One of their current applications is an online, sharable • assword and text- encryption application. This expertise in the security domain allows us to stay up -to -da with the latest best practices. Exchange of sensitive data will happen over SSL. The Snu: g Home approach to information security including but not limited to incident identific. ion, escalation, client involvement, breach stoppage, remediation, and reporting While w: take great care in preventing security breaches to our data, we have a Security Incident Respons: Plan in the event that it does. Dojo4 and their network of security experts are our primary Compute Security Incident Response Team (CSIRT). Our plan includes the following phases: • ' lert Phase: Detection from a variety of sources 30 451785_3 • Triage Phase: Examine evidence of a security breach to determine false positives and severity of real breaches. • Response Phase: Gather evidence to determine the extent of data loss, damage or transfer. Examine all systems connected to the breached system to determine full extent. • Outreach: Work with key stakeholders, such as program administrators, to determine the best approach with homeowners regarding lost or stolen data • Recovery Phase: Fix and restore systems from backup, patch security holes, test for vulnerabilities and proper functioning. Compliance with utility IT and data security requirements and will provide a certificate to utility partners upon request. Through our contract with Connecticut's Neighbor to Neighbor Energy Challenge, Snugg Home has successfully negotiated security and data sharing contracts with the utilities involved in that program. We look forward to assisting in similar negotiations with associated utilities for the program. Risk Mitigation Acceptance of risk and liability in service performance. We will manage risk and liability in the following ways for the program: Risk Reduction: By building small, iterative, deliverable software units, we reduce our risk of bugs and insecure software problems are found almost in real -time, and they are able to be fixed before additional software functionality is built on top of these bugs. It allows us to constantly refine and test our security models as well. Risk Sharing: • Partners: Our platform is hosted on Amazon Web Services with the highest- quality infrastructure and support. With our long history of projects with them, we have tested their ability to immediately mitigate problems as they arise before they become a liability. • Insurance: We carry web liability insurance for each project. Risk Retention: Because we are a national platform for managing home efficiency improvements, we are: • Motivated to reduce risk and our liability for our software services • Able to absorb the loss in the form of additional developer time and consulting. In other words, if the development and complexity of program deliverables are much greater than we anticipated, we are more likely to be able to absorb that development cost than a vendor that is programming a custom solution for a single client. In the latter case, often the program either fails or the client pays for the cost overruns. Risk Avoidance: Wherever feasible, we practice risk avoidance. For example, we use a trusted, established 3rd party user authentication system instead of building our own. They accept risk and liability (and it lowers our development costs). Disaster Recovery Disaster recovery and business continuity systems and procedures in place to ensure uninterrupted project delivery. Customer notifications procedures should a disaster be declared. 31 451785_3 • Snugg Home software is hosted on a cloud computing platform, which means multiple instances of our data are a ive at once. So if one goes down, other servers are there to back it up immediately. Hourly backups are made offline and can restore our databases within minutes to hours. We have access to highest level support with our provider at Amazon Web Services. Customer notifications in case of disaster can be made through email, SMS (if they have opted in), or if needed, by snail mail. 32 451785_3