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HomeMy WebLinkAboutC15-447 Colorado Government Association of Information Technology (CGAIT)PARTICIPATING MEMBER AGREEMENT THIS PARTICIPATING MEMBER ACREEMENT ("Agreement") is made by and between the COLORADO GOVERNMENT ASSOCIATION OF INFORMATION TECHNOLOGY ("CGAIT') and Eagle County (the "Participating Membet''). RECITALS WHEREAS, CGAIT, in an efifort to promote the interests of its members, entered into an ordering doeument with a Linkedln company identified as lynda.com, Inc. ("Lynda.com"); WHEREAS, the ordering document coupled with the Linkedln Subscription Agreement constitutes a "Contract" under which CCAIT will be entitled to utilize certain services provided by Lynda.com (the "Services"); WHEREAS, those members of CGAIT who enter into an agreement with CGAIT similar to this one shall also be entitled to utilize the Services provided by Lynda.com under the Contract; and WHEREAS, Participating Member desires to utilize the Services provided by Lynda.com under the Contract. NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration it is hereby mutually agreed as follows: AGREEMENT l. The Contract. Participating Member and CGAIT acknorvledge that in connection with utilizing the Services provided by Lynda.com under the Contract that each must comply with and are bound by the Contract including the ordering document, the Linkedln Subscription Agreement, the User Agreement and certain privacy policies promulgated by Lynda.com andlor Linkedln rvhich User Agreement and privacy policies may be modified by Lynda.com and/or Linkedln from time to time. A copy of the Linkedln Subscription Agreement is attached hereto as Exhibit A. Under the Linkedln Subscription Agreement CGAIT is the "CustomeC' and Participating Member is an "Affiliate." Participating Member has revierved the Linkedln Subscription Agreement and the agreements and policies referenced therein and agrees to abide by and comply with the Linkedln Subscription Agreement and the agreements and policies referenced tlrerein in all respects. 2. Consent. Participating Member hereby consents to (a) the transfer of all of its, and its representatives, personally identifiable information if required under applicable law; (b) the compilation of reports as to its, and its representatives, usage of the Services and the sharing of such reports with CGAIT; and (c) any other consents that Eagle County Ccmrnissioners' OfficeC15-447 may be required in order for Lynda.com to provide the Services to it and its representatives. 3, Fees. In connection with utilizing the Services, Participating Member agrees to pay CCAIT,$566.? The foregoing amount shall be paid by tire participating Member to CGAIT within 30 days after invoice by CCAIT, Ttre fa*icipating Member also agrees to reimburse CGAIT for any actual out of pocket costs and "*p.n-r6 which are incuned by CCAIT as a result of Participating Member's use of the Services 30 days after invoice by CGAIT 4, Term. _ The term of this Agreement shall commence as of November 30tt1 2015 and shall terminate on July 31. 2016. If Participating Member ir inter.rt.O in renewing this Agreement for an additional period of time P-articipating Member shallnotiff CCAIT in writing of such interest no less than sixty tOOl OaVs prior to this Agreement's expiration whereupon CGAIT shall attempt to nigotiate a ieniwal term of the Contract with Lynda.com. 5. Amendment. This Agreement may not be modified, amended or otherwise altered unless mutually agreed upon in writing by the parties hereto. 6. Notices' Any notice, request, instruction, demand or other communication given hereunder by either ptrty to the other party shalt be given in writing and shal be delivered either by hand or by certified mail, postage prepaid, with ietum receipt requested, as follows: a. If to CGAIT addressed to: colorado Govemment Association of Information Technology Attn: Scott Lingle PO Box 620217 Littleton. CO 80t62 b. If to Participating Member addressed to: Eagle County Attn: Amanda Bav or to such other address as either party shall have previously designated by written notice g]u:.n to the other party in the manner hereinabove set forth. Notices given hereunder shall be deemed given, in tlre case of personal delivery" on the date deliv-ered, and in the case of delivery by certified mail, postage prepaid, return receipt requesred three (3) days after being deposited with the United States postal Service. 7 , Representations arld Warranties. Each of the parties hereto represents and rvarrants to the other that they have full power and authority to execute and deliver this Agreement and to perform the obligations hereunder. 8. Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto on separate counterparts, each of whieh when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. The parties agree that signatures on this Agreement delivered via facsimile or electronically (in a portable document format Gdfl) shall be the equivalent of original signatures. IN WITNESS WHEREOF, the parties have executed this Agreement this !ltg! day of November, 2015. COLORADO COVERNMENT ASSOCIATION OF INFORMATION TECHNOLOGY By: ) Title: Vice Treasurer CGAIT EAGLE COUNTY Print Name: EXHIBIT A LINKEDIN SUBSCRIPTION AGREEMENT (see attachedl t. Exhibit A Service Terms Linkedln offers several different web-based Services under a variety of subscription models. Each Service is subject to rights or restrictions stated in this Exhibit A ("Service Terms") that are in addition to the terms stated above, Service Terms apply to Customer to the extent the specific Service is included in an ordering document. Linkedln may, in its sole discretion, change, modify, upgrade or discontinue any aspect or feature of a Service in whole or in part. ALL SERVICES (EXCLUDING ELEVATE). Customer (a) will designate in writing one Customer User for each seat it purchases; (b) will promptly provide to and maintain with Linkedln accurate contact information for each Customer User; and (c) will not, and will not permit a Customer User to, share a Customer Use/s access to the Services with any other individual. ln the event a Customer User ceases employment, takes any type of leave or vacation, or transfers work function, Customer may transfer the Customer User's seat to a different Customer User. Linkedln reserves the right to limit the number of transfers of each seat. SALES NAVIGATOR SERVICE. Customer may use the Sales Navigator Service only to generate sales leads. RECRUITER SERVICE. Customer will use the Recruiter Service and information about Linkedln Members only to recruit individuals to become employees and consultants of Customer or its Affiliates, or, if Customer is an approved agency, only to recruit individuals to become employees and consultants of its clients. An agency is classified as a recruitment process outsourcer for a particular client of agency, if agency's Customer User uses that client's name, brand, or logo on Customer User's Member profile, profile summary, current employer description, or in messaging in the Linkedln environment ("RPO"). Agency will inform Linkedln of its RPO classification with a particular client and the name of that client (a) before purchasing any Recruiter Service, and (b) upon a change in classification. RPO must use Recruiter-Corporate seats to support a client. RPO must not use Recruiter Professional seats to support a client. lf the Customer User is using its client's name, brand, or logo as described above, in conjunction with the RPO's name, brand or logo, its purchase of Recruiter-Corporate is governed by the master subscription agreement between Linkedln and the RPO. lf the Customer User is using its client's name, brand, or logo as described above, in place of the RPO's brand or logo, then its purchase of Recruiter-Corporate seats is governed by the master subscription agreement between Linkedln and that client. Upon any termination, Customer is responsible for downloading any content, data or other information Customer Users uploaded to Linkedln's system or otherwise provided to Linkedln. Customer's breach of this section 3 is deemed a material breach of the LSA. REFERRAT SERVICE. Customer will use the Referral Service and information about Members only to recruit individuals to become employees and consultants of Customer or its Affiliates. The Referral Service must integrate with Customer's applicant tracking system ("ATS"). The Referral Service will only operate with certain third party ATSs, as specified in the ordering document. Integration of any ATS to the Referral Service is Customer's sole responsibility. Linkedln disclaims all liability resulting from or related to any ATS, LYNDA.COM AND VIDEO2BRAIN CONTENT SERVICES. Customer will state the name of its single designated administrator in the ordering document and that administrator will have access to the reporting and management tools. Displaying or publicly performing lynda.com or video2brain content in a public setting (including a conference room or classroom) without Linkedln's prior written consent constitutes an unauthorized use of the content and an infringement of Linkedln's intellectual property rights. The lynda.com Privacy Policy is located at.Thevideo2brainPrivacyPo|icyislocatedat httos://www.video2brain.com/de/datenschutzerklaeruns. Updates to the Privacy Policies will be effective immediately upon posting to the respective website, ETEVATE SERVICE. Customer will maintain a social media policy and ensure that its personnel comply with the policy. Only Customer's designated curator(s) is/are authorized to post content to the Elevate Service. Customer Users who are not curators may only read and forward content. Customer will ensure that it owns or has the necessary licenses, rights, consents, and permissions to the content it posts to the Elevate Service. Linkedln Confidential and Proprietary fast Updated: September 23,20ts 2. 3. 4. 5. 6. Apttus No. 22058 LinkedEil. TINKEDIN SUBSCRIPTION AGREEMENT This Linkedln Subscription Agreement, including its exhibits ("LSA"), governs any ordering document executed by the customer identified in that ordering document ("Customer") and the Linkedln company identified in that ordering document ("Linkedln"). This LSA, the applicable ordering document, and any other incorporated terms, comprise the complete understanding between the parties on the subject matter ("Agreement"). This LSA is designed to address the unique concerns of a Government Entity and is not applicable to private entities. "Government Entity'' means any federal, state, or local government unit, agency, political subdivision or instrumentality. lf Customer is not a Government Entity, then Linkedln's standard terms and conditions set forth at; http://business.linkedin.com/lsa shall supersede this LSA and govern all ordering documents between the parties. Customer is a nonprofit corporation whose members are comprised of Government Entities. Based on the foregoing, the parties acknowledge and agree that Customer, for purposes of this Agreement, is also a Government Entity. 1. 1.1 t.2 ORDERING AND THE PROVISION OF SERVICES Services. Customer may access and use the Linkedln subscription services offered via Linkedln's websites to the extent and for the term stated in the ordering document ("Services"). Affiliates. Customer may allow its Affiliates to access and use the Services only if Customer is fully liable for its Affiliates' use of the Services and compliance with the Agreement. "Affiliate" means an entity that controls, is controlled by, or is under common control with, a party. Affiliate shall also mean any of the members of Customer. Customer may allow its Affiliates to access and use the Services under the terms of this LSA only if Customer informs Linkedln in writing of the Affiliates authorized to access and use the Services ("Authorized Affiliate"). lf an Authorized Affiliate executes an ordering document under the terms of this LSA, that Authorized Affiliate will be (a) deemed a "Customer" for that purchase only; and (b) jointly and severally liable with Customer for its use of the Services and compliance with the Agreement. Payment. Customer will pay the fees for the Services stated in the ordering document within 30 calendar days after receipt of Linkedln's invoice, unless otherwise stated in the ordering document, subject to approved line of credit. For Services that require payment by credit card, Linkedln will charge Customer's credit card upon receipt of the credit card information and also upon renewals. Customer's purchases are non-cancelable and payment for Services is non-refundable, except as otherwise stated in this LSA. Customer will maintain complete and accurate billing and contact information with Linkedln. Taxes. Customer will pay or reimburse Linkedln for all federal, state, and local taxes, including sales, use, gross receipts, VAT, GST, or similar transaction taxes, imposed on Customer's purchase of Services, unless Customer provides Linkedln with a valid tax exemption certificate. All taxes payable by Customer will be separately stated and exclusive of the fees. Customer will have no liability for taxes that are statutorily imposed on Linkedln including taxes or fees measured by Linkedln's net or gross income. RESPONSIBITITIES Use of the Services. Customer will use the Services solely for its intended purpose, as detailed in Exhibit A. Only Customer-designated employees, contractors, Affiliates, and Affiliate-designated employees are authorized to use the Services ("Customer User"). A Customer User must also be a Member. A "Membe/' is an individual who signs- up to use Linkedln's services under Linkedln's user agreement, currently available at https://www.linkedin.com/lesal/user-asreement. as amended by Linkedln from time to time ("User Agreement"). The terms of the User Agreement are incorporated into this LSA. Customer will ensure that Customer Users comply 1.3 1.4 2.1 Linkedln Confidential and'Proprietary Last Updated: September 23, 2015 Apttus No. 22O58 2.3 2.2 Linkedln Confidential and Proprietary Last Updated: September 23, 2015 with the User Agreement. Customer will use the Services solely for Customer's internal use and will not provide access to the Services to any third party, except as otherwise permitted in the Agreement. Customer will notify Linkedln immediately upon learning of any unauthorized use of the Services or any other breach of security relating to the Services. Member Data. Customer may use content, data and other information about Members that Customer collects in connection with its use of the Services (collectively, "Member Data") only as expressly permitted in this LSA. lf Customer provides Linkedln with Member Data that is Personal Data (defined below), then Linkedln, in providing the Services, stores Member Personal Data on behalf of Customer. Customer is the controller of Member Personal Data and Linkedln will collect and process Member Personal Data (i) in accordance with applicable Data Protection Laws (defined in section 2.3); (ii) in compliance with the written instructions received from Customer including, as applicable, sub-processing as necessary; and (iii) only for the purpose of the Agreement, using appropriate technical and organizational security measures. "Personal Data" means information about an individual that (a) can be used to identify, contact or locate a specific individual; (b) can be combined with other information that is linked to a specific individual to identify, contact or locate a specific individual; or (c) is defined as "personal data" or "personal information" by applicable laws or regulations relating to the collection, use, storage or disclosure of information about an identifiable individual. Customer will provide all information (including Personal Data) to Linkedln that Linkedln needs to provide the Services. Compliance with Laws. The parties will comply with all applicable international, federal, state, provincial and local laws relating to (a) corruption practice, bribery, and acts contrary to the public administration including the Us Foreign Corrupt Practices Act of L977,!5 U.S.C. 5 78dd-I, et seq.;(b)discrimination against employees or job applicants based on race, color, religion, sex, national origin, veteran status or disability; and (c) the privacy, confidentiality, security and protection of Personal Data including the EU Data Protection Directive 95/46/EC as amended and as implemented in the various European Economic Area countries or any similar and applicable legislation enacted outside of the European Economic Area and security breach notification laws (collectively, "Data Protection Laws"). Linkedln is enrolled in the U.S. Department of Homeland Security's E-Verify program regarding the immigration and employment eligibility of newly hired employees. CON FI DENTIAL I NFORMATION Definition. "Confidential Information" means any information disclosed under the Agreement that (a) if tangible, is clearly marked as "Confidential" or with a similar designation; (b) if intangible, is identified as "Confidential" by discloser at time of disclosure and confirmed in writing to recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by recipient to be confidential (e.9. pricing, certain Member Data including certain Personal Data, etc.). Linkedln acknowledges that Customer is a Government Entity and is subject to certain mandatory disclosure requirements under applicable international, federal, state, provincial and local freedom of information laws, including the Freedom of lnformation Act, 5 U.S.C. S 552, et seq., as amended ("FOl Laws"), and Customer acknowledges that certain information provided by Linkedln during the performance of this Agreement may contain trade secrets and confidential commercial or financial information exempt from the mandatory disclosure requirements under FOI Laws. Exclusions. Confidential Information does not include any portion of the information that recipient can prove (a) was rightfully known to recipient before receipt from discloser; (b) was generally known to the public on the Effective Date; (c) becomes generally known to the public after the Effective Date, through no fault of recipient; (d) was received by recipient from a third party without any confidentiality obligation; or (e) was independently developed by recipient without breach of this section 3. Limited Use and Non-Disclosure. Recipient will (a) use Confidential Information solely to fulfill its obligations under the Agreement; (b) protect Confidential Information using the same degree of care it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; (c) not disclose Confidential Information to any third party except to Affiliates or employees, consultants, and agents who (i) have a need to know it in order to carry out their obligations under the Agreement, and (ii) are under written confidentiality and non-use obligations at least as restrictive as those stated in this LSA; (d) not modify, reverse 3. 3.1 3.2 3.3 Apttus No.22oS8 4. engineer, decompile, create other works from, or disassemble any Confidential lnformation, to the extent applicable, unless authorized in writing by discloser; and (e) not disclose Confidential Information to any third party except to Affiliates or employees, consultants, and agents or as required by law. INTEIIECTUAL PROPERTY RIGHTS AND OWNERSHIP. No right, title or interest in any intellectual property right transfers to the other party, except for the limited rights stated in the Agreement. Customer is not obligated to provide Linkedln or its Affiliates with any suggestions, enhancement requests, or other feedback about the Services or related technology. However, if Customer does provide any feedback to Linkedln, Linkedln may use and modify it without any restriction or payment. TERM AND TERMINATION Term. This LSA is effective on the date the first ordering document is executed by Customer and Linkedln ("Effective Date") and remains in effect until terminated. Termination and Suspension. Either party may terminate this LSA or an ordering document if the other party materially breaches the Agreement and fails to cure the breach within 30 days after receiving notice of the breach. Linkedln may immediately terminate this LSA or an ordering document if Customer is in breach of section 2.3. Linkedln may suspend Customer's access to the Services if Customer is in breach of the Agreement and the suspension will continue for as long as reasonably necessary for Customer to remedy the breach. lf all ordering documents under this LSA have expired or been terminated, then either party may terminate this LSA for convenience by providing written notice to the other party. Effect of Termination. Termination of this LSA or an ordering document will not relieve Customer from its obligation to pay Linkedln any fees stated in an ordering document. lf Customer terminates this LSA or an ordering document because of Linkedln's uncured material breach, Linkedln will refund a pro-rata share of any pre-paid fees under the applicable ordering document. Customer will notify Customer Users that their access to the applicable Services has terminated and Linkedln may remove or discard all content that Customer uploaded or otherwise made available to Linkedln in accordance with Linkedln's policies. Termination of an ordering document does not terminate this LSA; however, termination of this LSA will result in the immediate termination of all ordering documents. The provisions of this LSAthat bytheir nature extend beyond the termination of this LSAwill survive termination of this LSA. NO WARRANTY. The Services are provided "as is". Linkedln makes no representation or warranty about the Services including any representation that the Services will be uninterrupted or error-free. To the fullest extent permitted under applicable law, Linkedln disclaims any implied or statutory warranty, including any implied warranty of title, non-infringement, merchantability or fitness for a particular purpose. THI RD-PARTY INDEMNIFICATION AND RESPONSIBILIW Linkedln Indemnity. Linkedln will defend and indemnify Customer, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from (a) the Services' (excluding any non-Linkedln Data and excluding Customer Personal Data) infringement of a third party's intellectual property right. Customer Responsibility. To the extent legally liable and permitted by law, Customer will be responsible for any damages resulting from the negligent acts or omissions of Customer, its employees, or agents, arising from claims made or brought against Linkedln by a third pafi alleging that (a) the Customer Personal Data or Linkedln's transmission or hosting thereof infringes or violates the rights of such third party; (b) Custome/s use of the Services in violation of the Agreement infringes or violates the rights of any third party; or (c) Customer failed to comply with the applicable laws, rules or regulations in its performance of the Agreement. TIMITATION OF LIABIIITY 5.3 5. 5.2 7.2 8. 5.1 Linkedln Confidential and Proprietary Last Updated: September 23,20Ls 5. 7. 7.1 Apttus No.22058 8.1 8.2 Damages Waiver. To the fullest extent permitted by law, neither party, including its respective Affiliates, will be liable to the other in connection with the Agreement for lost profits or lost business opportunities, loss of data, or any indirect, incidental, consequential, special or punitive damages. liability Cap. To the fullest extent permitted by law, neither party, including its respective Affiliates, will be liable to the other in connection with the Agreement for an amount that exceeds the total fees paid or payable to Linkedln during the 12-month period before the event giving rise to the liability. Subject to section 8.3 (b), Linkedln will not be liable for any unauthorized third party access to Customer's content, data, programs, information, network, or systems. Exclusions. The limitations on liability stated in sections 8.1 and 8.2 above, do not apply to a party's (a) confidentiality obligations; (b) liability for fraud, gross negligence or intentional misconduct; (c) liability for death or personal injury; or (d) violation of the other party's intellectual property. Sovereign lmmunity. The parties recognize that Customer is a Government Entity, and nothing in this LSA is intended to waive or diminish Customer's rights under principles of Sovereign lmmunity, as established by law. DISPUTE RESOLUTION. The Agreement is governed by the laws of Customer's home jurisdiction. The prevailing party may seek to recover its legal fees and costs. MISCELLANEOUS. lf a conflict exists between any of the terms in the Agreement, then the LSA will govern, followed by the ordering document, and then the User Agreement. lf a conflict exists between any of the general terms in the LSA and the relevant exhibits, then the exhibits will prevail to the extent of that inconsistency. Neither party relies on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as stated in the Agreement. The parties will provide notices in writing and deliver them by commercial overnight courier to the address of the other party stated on the ordering document, unless otherwise stated in the Agreement. Notices are effective on the date of delivery as indicated in the records of the courier. The Agreement does not create a partnership, agency relationship, or joint venture between the parties. Neither party has the power or authority to bind the other or to create any obligation or responsibility on behalf of the other. Under no circumstances will any employee of one party be deemed to be the employee of the other. Neither party will assign this LSA or an ordering document in whole or in part without the other party's prior written consent. Any attempted assignment in violation of the foregoing restriction will be void. Customer will provide Linkedln written notification if Customer is purchasing Services through a Linkedln approved agency. lf Customer is an agency binding a client under this LSA, Customer (a) represents and warrants that it has the authority to bind the client to the terms stated in this LSA; (b) will notify Linkedln in writing of the name and address of its client that will access and use the Services; and (c) remains jointly and severally liable for all obligations of Customer under the Agreement. lf the Agreement is translated into a language other than English, the translation is for convenience only, and the English language version will govern. Linkedln may remotely monitor Customer's use of the Services to ensure compliance with the Agreement. lf any provision of the Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to affect the parties' intention and the remaining provisions will not be affected. The parties may amend the Agreement only in a written amendment signed by both parties, except for the User Agreement, which may be modified in accordance with its terms. lf this LSA or an ordering document will be executed then it can be executed electronically and in counterparts, each of which is deemed to be an original and all of which taken together comprise a single document. Each party represents and warrants to the other that the individual binding a party under this LSA or an ordering document is authorized to do so. - - - tINKEDIN SUBSCRIPTION AGREEMENT Signature page follows - - - 8.3 8.4 9. Linkedln Confidential and Proprietary Last Updated: September 23,z0ts Aattus No.22058 Linkedln Confidential and Proprietary Last Updated: September 23, 2015 Title; IS Director & Vice chair CGAIT Title: VP, Legal 22 october 201-5 26 october 2015 Apttus No.22O58