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HomeMy WebLinkAbout2021-12-20-I01J_01 ForeUp Golf Course Services AgreementAGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: December 20, 2021 AGENDA ITEM:Consideration of approval of resolution approving License Agreement with foreUp and Golf Compete, INC. for services at Sugar Creek Municipal Golf Course FORMAT:Resolution SYNOPSIS INCLUDING PRO & CON: Sugar Creek Municipal Golf Course has recently researched and completed a demo with foreUp representatives. After the demonstration it became evident that the software and services that foreUp provide would be a great match to meet the needs at Sugar Creek. With easy click and drag options for clubhouse staff, financial reporting, lower rates for credit card processing, and most importantly being able to take online tee times are a few of the positives for making the switch to foreUp. The services and agreement has been reviewed by the IT and Finance Department staff along with the City Attorney. Staff recommends approval of the agreement. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: $910 up front in setup fees. Annual cost will be $5,244.00 COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: RECOMMENDATION: Approve Agreement. ATTACHMENTS: I. foreUp, Golf Compete, INC. License Agreement PREPARED BY:Josh VandeKamp, Assistant Parks & Recreation Director REVIEWED BY: Matt Jermier, Parks & Recreation Director I1J1 THE CITY OF WAUKEE, IOWA RESOLUTION 2021- APPROVING LICENSE AGREEMENT WITH FOREUP AND GOLF COMPETE, INC., FOR SERVICES AT SUGAR CREEK MUNICIPAL GOLF COURSE IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA WHEREAS, the City of Waukee, Iowa is a duly organized municipality within Dallas County; AND, WHEREAS, Waukee Parks & Recreation Department staff have researched software systems that can be utilized at the Sugar Creek Municipal Golf Course to assist with financial reporting, lower rate credit card processing and on-line tee time reservations; AND, WHEREAS, foreUp/Golf Compete, Inc., offers a product that staff believe will provide the required assistance; AND, WHEREAS, the City Attorney has reviewed a proposed licensing agreement and finds it satisfactory. NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council that the License Agreement with foreUp and Golf Compete, Inc., is hereby approved. Passed by the City Council of the City of Waukee, Iowa, and approved the 20th day of December, 2021. ____________________________ Courtney Clarke, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN Anna Bergman Pierce R. Charles Bottenberg Chris Crone Larry R. Lyon Ben Sinclair 1064 S N County Blvd Ste. 260 Pleasant Grove, UT 84062 Agreement ID:6765759488 Contact@foreUP.com | foreUP.com LICENSE AGREEMENT This License Agreement (this “Agreement”) is made and entered into effective as of the date of the last signature set forth below (the “Effective Date”), by and between Golf Compete, Inc., a Delaware corporation doing business as Licensor (“Licensor”) and the City of Waukee, the manager or operator (the “Manager”) of Sugar Creek Golf Course (IA) (the “Course,” also referred to herein as “Licensee”). Name Price Tee Sheet (Pro) • Cloud Based Tee Sheet, Anywhere Access • Live Online Web Booking, Configurable by Player Type • Event, League, Outing Management, Cart Signs • Automated Player Reminders • Easy Point/Click, Drag/Drop Interface $180.00 Point of Sale (Pro) • Customer Dashboard w/ Photo ID & Sales History • Seamless Management of All Pro Shop & Bar/Grill Sales • Pre-Authorization of Credit Cards to Hold Tabs • Integrated, Tiered Loyalty Program, Customizable by Item/Dept • Layered Tournament/Shop Credit Capability • Complex Pass Program with Customizable Parameters • Integrated Time & Attendance (Time Clock Mgmt) $190.00 Email / Text Marketing (Pro) • Easily Design and Send Email AND Text Message Campaigns • Full Marketing Automation, Unlimited Sends • Fully Integrated Email and Texting Based on Play & Purchase Behavior Patterns • Pre-Built Templates for Ease of Use • Full Send and Open Analytics, Google Analytics Compatible $90.00 Total $460.00 Name Price Professional Services One Time Set Up Fee $450.00 Total $450.00 1064 S N County Blvd Ste. 260 Pleasant Grove, UT 84062 Agreement ID:6765759488 Contact@foreUP.com | foreUP.com Needed Payment Information: Payment amount dues are billed on the 1st of each month. A confirmation of each payment will be emailed to provided customer email: . foreUP only takes payment in two forms; Credit Card or ACH. Please fill in CC or ACH. Services: Payment: (Section 6) Agreement Period: 24Months (Section 10) Billing Start Date (If different than effective date): 3/1/2022(Section 10) IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers or representatives as of the Effective Date. $5,244 Yearly Required Billing Information: In order to complete this contract, it is required to fill out the information below. Please provide either your credit card or ACH information in the fields below. Regardless of inputting a credit card or ACH, you will need to complete all three fields. Credit Card Number - OR - Bank Name Credit Card Expiration - OR - Bank Account Number Credit Card CVV - OR - Routing Number Agreement ID:6765759488 LICENSOR: GOLF COMPETE, INC., By: Name: Richy Damraur Title: Director of Sales Date: LICENSEE: Sugar Creek Golf Course (IA) By: Name: Title: Date:12.15.2021 1064 S N County Blvd Ste. 260 Pleasant Grove, UT 84062 Agreement ID:6765759488 Contact@foreUP.com | foreUP.com Facility/Location Address(es) including City, State and Zip Code: 1505 6th St, Waukee, IA 50263 1064 S N County Blvd Ste. 260 Pleasant Grove, UT 84062 Agreement ID:6765759488 Contact@foreUP.com | foreUP.com NOW, THEREFORE, in consideration of the foregoing and upon the terms and conditions set forth below, the parties hereto agree as follows: 1.DEFINITIONS "Agreement" means the Cover Page and these foreUP Terms and Conditions “Approved Locations” means Licensee’s and Licensor’s website and mobile applications. “Cover Page” means the Initial Page to this Agreement, titled “License Agreement. “Improvement” means any improvement made by either of the parties hereto, bug fixes, modification, enhancement or any other derivative work of the Licensed Technology created after the Effective Date. “Licensee’s Business” means Licensee’s operation and management of the Course. “Licensed Technology” means the Software and the Materials. “Materials” means any instructions, manuals or other documentation and materials, including, without limitation, source code for the Software and related comments, white papers, error reports and help files, related to the development, installation, maintenance or use of the Software existing as of the Effective Date. “Software” means Licensor’s proprietary software product, including both source code and executable format, in the version that exists as of the Effective Date that is designed to offer one retail product at a time via a web interface which displays the next product in the database queue upon the trigger of a definable event. The term “Software” also includes Improvements and custom modifications to the Materials. “Services” means the individual products (i.e. “Tee Sheet”, “Point of Sale”, etc..) associated with the licensed technology. 2.LICENSE. Licensor hereby grants to Licensee a nonexclusive, year-to-year, nontransferable, worldwide license to use the Licensed Technology. 3.LOCATIONS; USE 3.1. Approved Locations. Licensee shall use the Licensed Technology only at the Approved Locations. Licensee may temporarily transfer the Licensed Technology to a different website for testing purposes but in no case for more than twenty- four (24) hours unless Licensee provides Licensor advance notice, in writing, identifying the location of the test site. Licensee acknowledges and agrees that it will purchase an additional license from Licensor if Licensee desires to use the Licensed Technology for commercial purposes on a different site. Any additional licenses required by Licensee will be entered into on terms and conditions negotiated and specified in a separate license agreement between Licensor and Licensee. 3.2. Restrictions on Use. Licensee agrees to use the Licensed Technology only for Licensee’s Business. Licensee shall not (a) permit any parent, subsidiaries, affiliated entities or third parties to use or have access to the Licensed Technology, (b) process or permit to be processed the data of any other party captured Software to use such data for the display, offer, or sale of any retail goods, except that Licensee shall be permitted to push data to third parties whose services are used to facilitate Licensee’s Business, which services may include, but are not limited to, merchant processing, product shipping, web analytics, state sales tax reporting or the like or (d) permit, give, or authorize any other party to possess the Licensed Technology source code or executable code, except that Licensee, its employees, and its software programming contractors are permitted to possess, view, and modify the Licensed Technology source code to debug or create Improvements to the Licensed Technology. 4.PROPRIETARY RIGHTS. 4.1. Licensor. Licensee acknowledges and agrees that as between Licensee and Licensor, except for the license granted under this Agreement, Licensor retains all right, title and interest in and to the Licensed Technology and any Improvement created by or for Licensor, including any Improvements created by Licensee after the Effective Date, and all copyright, trade secret, trademark, patent and other intellectual property rights therein. 4.2. General. Each party hereto hereby reserves all intellectual property rights not expressly granted hereunder. Except as expressly provided otherwise herein, this Agreement will not be construed to assign or transfer from either party hereto to the other party any intellectual property rights developed or acquired after the Effective Date. 5.TECHNICAL TRANSFER. Within three (3) business days after the Effective Date, unless otherwise specified by either Licensor or Lisensee, Licensor shall deliver to Licensee the suite of Services purchased by the Licensee. 6. LICENSE FEE; Payment Options. 6.1. Cash Payment Option. The terms of this Section 6.1 apply to all Licensees that have selected the “Cash” payment option on the Cover Page. 6.1.1. As consideration for the license granted in Section 2, Licensee shall pay Licensor the Monthly or Annual Fee set forth on the Cover Page (the “License Fee”). Monthly Fees shall be due and payable in advance each month during the Term, beginning on the Billing Start Date. Annual Fees shall be due and payable in advance each year during the Term, beginning on the Billing Start Date. 1064 S N County Blvd Ste. 260 Pleasant Grove, UT 84062 Agreement ID:6765759488 Contact@foreUP.com | foreUP.com through any site other than the Approved Locations, (c) permit 1064 S N County Blvd Ste. 260 Pleasant Grove, UT 84062 Agreement ID:6765759488 Contact@foreUP.com | foreUP.com 6.4. Taxes; Late Payments. All License Fees payable under this Section 6 are exclusive of, and Licensee shall pay and hold Licensor harmless from, any local, state or federal sales, use, value-added, excise or similar taxes that may be imposed by any jurisdiction (other than taxes on the net income of Licensor). Licensor reserves the right to charge a monthly interest rate of 3% monthly on all License Fees and other fees due hereunder that are fifteen (15) or more days late. Licensee agrees to pay all collection fees, including associated commission and legal fees. 7. CONFIDENTIAL INFORMATION. 7.1. Obligations. The parties hereto acknowledge and agree that proprietary or nonpublic information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), directly or indirectly, which information is marked as “proprietary” or “confidential” or, if disclosed orally, is designated as confidential or proprietary at the time of disclosure and is summarized in writing within thirty (30) days of disclosure, constitutes the confidential and proprietary information (“Confidential Information”) of the Disclosing Party. The Receiving Party shall retain in confidence and not disclose to any third party any Confidential Information of the Disclosing Party without the Disclosing Party’s express written consent, and the Receiving Party shall not use such Confidential Information except to exercise the rights and perform its obligations under this Agreement. Without limiting the foregoing, each party shall use at least the same procedures and degree of care which it uses to protect its own Confidential Information of like importance, and in no event less than reasonable care. 7.2. Exceptions. Notwithstanding the foregoing, Confidential Information will not include information to the extent that, in each case, such information, as demonstrated by written documentation: 7.2.1 was already known by the Receiving Party, to the extent such information was so known by the Receiving Party without an obligation of confidentiality, at the time of disclosure hereunder; 7.2.2 was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party hereunder; 7.2.3. became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; or 7.2.4. was subsequently lawfully disclosed to the Receiving Party after the Effective Date by a person other than a party or developed by the Receiving Party without reference to any information or materials disclosed by the Disclosing Party. 7.3. Required Disclosure. Nothing in this Agreement shall prohibit either party from disclosing Confidential Information of the other party if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding (“Required Disclosure”); provided that the disclosing party shall (a) give the other party prompt written notice of such Required Disclosure prior to disclosure, (b) cooperate with the other party in the event that it elects to contest such disclosure or seek a protective order with respect thereto and (c) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure. 7.4. No Licenses or Warranties for Confidential Information. All Confidential Information shall remain the property of the respective Disclosing Party. Except as otherwise provided in this Agreement, no license under any intellectual property right is granted or implied by the conveying of Confidential Information to Receiving Party. None of the Confidential Information which may be disclosed by Disclosing Party shall constitute any representation, warranty, assurance, guarantee, or inducement by Disclosing Party of any kind and, in particular, with respect to the non-infringement of any intellectual property rights, or other rights of third persons or of Disclosing Party. 7.5. Injunctive Relief. In the event of breach of this Section 7, the non-breaching party may have no adequate remedy at law and will be entitled to seek immediate injunctive and other equitable relief, without the necessity of showing actual money damages. 8. COVENANTS OF THE PARTIES. 8.1. Mutual. The parties hereto covenant and agree with respect to the following matters during the Term of this Agreement: 8.1.1. No Restrictions on Other Activities. Except as otherwise specifically provided herein, neither party hereto is restricted from engaging into relationships with other clients or customers or from generating revenue from advertising on its website or mobile applications and, except as specifically provided herein, all revenues generated by each party will be retained by such party. 1064 S N County Blvd Ste. 260 Pleasant Grove, UT 84062 Agreement ID:6765759488 Contact@foreUP.com | foreUP.com 8.1.2. Manager will provide Licensor with live access to the Course’s tee sheet, so that users of Licensor’s website and/or mobile applications can view available tee times at the Course by accessing such website and/or mobile applications. 8.2. Licensor. Licensor represents and warrants to Licensee, each of which is true and correct as of the Effective Date and shall continue to be true and correct at all times during the Term of this Agreement (as set forth in Section 10.1): 8.2.1. No Conflicting Agreements. Licensor is not currently obligated nor will it assume any future obligation under any contract (including without limitation any license, covenant or commitment of any nature) or other agreement, instrument or arrangement that could conflict with its material obligations under this Agreement. 8.2.2. Right to License. Licensor owns all right, title and interest in and to the Licensed Technology. Licensor has the full right to grant to Licensee the license granted under this Agreement, and Licensee’s right to exercise such license will be unrestricted (except by the terms of the license). The Licensed Technology provided to Licensee under this Agreement is the most current version of the Licensed Technology and is comprehensive of all available materials related to the Software. 8.2.3. No Infringement. The Licensed Technology does not and will not infringe or violate any copyright, trade secret, patent, trademark or other proprietary right of any third party. There are no liens, encumbrances or claims pending or threatened against Licensor or, to Licensor’s knowledge, anyone else, that relate to the Licensed Technology. 8.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, LICENSOR DOES NOT MAKE ANY OTHER WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LICENSED TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. 9. LEGAL RIGHTS 9.1. Limitation on Liability. Licensor shall not be liable to Licensee for indirect, special, incidental, exemplary or consequential damages (including, without limitation, lost profits) related to this Agreement or resulting from Licensee’s use or inability to use the Licensed Technology, arising from any cause of action whatsoever, including contract, warranty, strict liability or negligence, even if Licensor has been notified of the possibility of such damages. 9.2 Insurance. Licensor shall maintain the insurance and coverage, in at least the limits set forth on the Certificate of Liability insurance attached exhibit A, throughout the term of this agreement, and any extension thereof. The licensee shall be named as an additional insured on said insurance and coverage. 9.3. Indemnification. Licensor shall indemnify and hold harmless Licensee from and against any claims, including reasonable legal fees and expenses, based upon infringement of any United States copyright or patent by the Licensed Technology. Licensee agrees to notify Licensor of any such claim promptly in writing and to allow Licensor to control the proceedings. Licensee agrees to cooperate fully with Licensor during such proceedings. Licensor shall defend and settle at its sole expense all proceedings arising out of the foregoing. In the event of such infringement, Licensor may replace, in whole or in part, the Licensed Technology with a substantially compatible and functionally equivalent computer program or modify the Licensed Technology to avoid the infringement. 9.4. Prosecution of Infringers. During the Term of this Agreement, Licensor and Licensee shall give each other written notice of any acts of infringement related to the Licensed Technology of which Licensor or Licensee has knowledge. 9.5. Sole Remedy. Licensor’s performance under this Section 9 shall be Licensee’s sole and exclusive remedy in the event of infringement or misappropriation of any copyright, patent, trademark, trade secret or any other intellectual property rights of any third party by the Licensed Technology. 10. TERM AND TERMINATION. 10.1. Term. This Agreement will be effective as of the Effective Date and will continue in full force and effect until the number of months set forth on the Cover Page have elapsed following the Billing Start Date (the “Initial Term”). Unless Licensee provides written notice of termination to Licensor at least sixty (60) days prior to the end of the then- current Term, this Agreement will automatically renew for an additional one (1) year term (each such term a “Renewal Term,” and together with the Initial Term, the “Term”), at the end of each then-current Term, and will continue in full force and effect unless and until this Agreement is otherwise terminated as provided in Section 10.2 below. Licensee’s obligation to pay the annual License Fee becomes absolute fifty-nine (59) days prior to the then end of the then-current Term. 10.2. Termination. Each party hereto shall have the right to terminate this Agreement and the license granted herein upon the occurrence the following events (each, an “Event of Default”): 10.2.1. In the event the other party hereto violates any material provision of this Agreement; 1064 S N County Blvd Ste. 260 Pleasant Grove, UT 84062 Agreement ID:6765759488 Contact@foreUP.com | foreUP.com 10.2.2. In the event that Licensee decides to terminate this Agreement, Licensee shall pay remaining dues, determined by Licensor (but not exceeding that of the current full value of this Agreement if paid through the end of the Term including automatic renewals), to satisfy the Terms and License Fee of this Agreement; 10.2.3. In the event that Licensee decides to remove one (or more) Services from this Agreement, Licensee shall pay remaining fees associated with such Service, as determined by Licensor in its sole discretion (but not exceeding that of the current full value of that Service in this Agreement, if paid through the end of the Term including automatic renewals), to satisfy term and License Fee for aforementioned Service, (removal of one or more services may affect allocated discounts on remaining services, as determined by Licensor in its sole discretion); 10.2.4. In the event the other party hereto (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; 10.2.5. In the event the other party has wound up or liquidated, voluntarily or otherwise, or had a change of management; 10.2.6. In the event of a sale of the facility, or change in management, licensee agrees to deliver appropriate documentation verifying the sale/management change as soon as available to Licensor and to (i) transfer this Agreement to new facility owners or operators, or (ii) pay remaining dues, determined by Licensor (but not exceeding that of the current full value of this Agreement if paid through the end of Term, including automatic renewals), to satisfy term and License Fee of agreement; or 10.2.7. In the event that Licensor determines that Licensor cannot continue to provide the Licensed Technology to Licensee for any reason at any time during this Agreement, Licensor may terminate this Agreement by providing at least four (4) weeks' written notice to Licensee. 10.3. Effect of Termination. Upon any termination or expiration of this Agreement for any reason (unless terminated by Licensor), Licensee will pay to Licensor any fees due and owing under this Agreement as of the effective date of termination. All delinquent accounts will be charged an interest rate of 3% monthly. In the event any balance is not paid as agreed, Licensee agrees to pay all collection fees, including associated commission and legal fees. 10.4. Notice and Opportunity to Cure. Upon the occurrence of an Event of Default, the non-defaulting party shall deliver to the defaulting party a Notice of Intent to Terminate that identifies in reasonable detail the Event of Default. If the Event of Default remains uncured for thirty (30) days, the non-defaulting party may terminate this Agreement and the license granted herein by delivering to the defaulting party a Notice of Termination that identifies the effective date of the termination, which date shall not be less than thirty (30) days after the date of delivery of the Notice of Intent to Terminate. 10.5. Proration and Refunds. Upon the occurrence of any Event of Default caused by Licensor, Licensor shall refund to Licensee an amount equal to the Licensee Fee paid for the then-current Term divided by 365 days, multiplied by the number of days remaining in the then-current Term as of the license termination date. No refund shall be issued to Licensee for any Event of Default caused by Licensee. 10.6. Procedure. Within ten (10) days after termination of the license, Licensee shall return to Licensor, at Licensee’s sole expense, the Licensed Technology and all copies thereof, delete or destroy all other copies of the Licensed Technology, and deliver to Licensor a certification, in writing signed by an officer of Licensee, that the Licensed Technology has been returned, all copies deleted or destroyed, and its use discontinued. 11.GENERAL PROVISIONS. 11.1. Notices. Any notice to be given under this Agreement shall be in writing and may be effected by personal delivery or by e- mail or facsimile that provides confirmation of delivery, or by next day delivery through Federal Express or other reputable, overnight courier service, in each case delivered or addressed as set forth. 11.2. No Assignment. Neither this Agreement, nor any rights under this Agreement, may be assigned or otherwise transferred by either party, in whole or in part, whether voluntarily, or by operation of law, without the prior written consent of the other party; however, Licensor may assign, without such consent, all its rights and obligations under this Agreement to a wholly-owned subsidiary, or to an entity that succeeds to substantially all of the business or assets of Licensor through merger, acquisition or similar transaction. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns. 11.3. Independent Contractors. In performing this Agreement, each of the parties will operate as, and have the status of, an independent contractor. This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between the parties. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever. 11.4. Governing Law. This Agreement shall be governed by and construed under, and the legal relations between the parties hereto shall be determined in accordance with, the laws 1064 S N County Blvd Ste. 260 Pleasant Grove, UT 84062 Agreement ID:6765759488 Contact@foreUP.com | foreUP.com of the State of Iowa, without giving effect to such state’s conflicts of law principles. The parties hereto hereby submit to the personal jurisdiction of, and agree that any legal proceeding with respect to or arising under this Agreement shall only be brought in federal and state courts located in the State of Iowa as the case may be. 11.5. Severability. If any provision of this Agreement or portion thereof is determined by a court of competent jurisdiction, or declared under any law, rule or regulation of any government having jurisdiction over the parties hereto, to be invalid, illegal or otherwise unenforceable, then such provision will, to the extent permitted by the court or government not be voided but will instead be construed to give effect to its intent to the maximum extent permissible under applicable law, and the remainder of this Agreement will remain in full force and effect according to its terms. 11.6. Entire Agreement; Modification; Waiver This Agreement constitutes the entire agreement of the parties concerning its subject matter and supersedes any and all prior or contemporaneous, written or oral negotiations, correspondence, understandings and agreements, between the parties respecting the subject matter of this Agreement. No supplement, modification or amendment to this Agreement shall be binding unless evidenced by a writing signed by the party against whom it is sought to be enforced. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. 11.7. Execution; Counterparts. This Agreement shall not be binding in whole or in part upon the parties unless and until duly executed by or on behalf of both parties hereto, in which event this Agreement shall be effective as of the Effective Date. This Agreement may be executed in counterparts, each of which shall be deemed to be an original instrument enforceable in accordance with its terms and all of which shall constitute but one and the same agreement of the parties. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 12/13/2021 Arthur J. Gallagher Risk Management Services, Inc. 201 E. 4th Street, Ste 625 Cincinnati OH 45202 Susan D. Masters, CIC 513-977-3139 susan_masters-oh@ajg.com Continental Insurance Company 35289 CLUBLLC-01 Continental Casualty Company 20443Clubessential Holdings, LLC 4600 McAuley Place Ste 350 Cincinnati OH 45242-4765 Valley Forge Insurance Company 20508 Ascot Specialty Insurance Company Crum & Forster Specialty Insurance Co 44520 1190305984 C X 1,000,000 X 100,000 5,000 1,000,000 2,000,000 X X X 6079684571 11/15/2021 11/15/2022 2,000,000 C 1,000,000 X X Hired PhyDam 6079684568 11/15/2021 11/15/2022 Hired PhyDam 75,000 A X X 2,000,000607968460411/15/2021 11/15/2022 2,000,000 X 10,000 A A X6079684599 WC679684585 11/15/2021 11/15/2021 11/15/2022 11/15/2022 1,000,000 1,000,000 1,000,000 E B D Prof/Cyber-CM Crime-3rd Party Excess Prof/Cyber-CM TCM101288 652175238 EOXS2110000601-01 3/23/2021 11/15/2021 3/23/2021 3/23/2022 11/15/2022 3/23/2022 Ea Claim/Agg Ea Claim Ea Claim $5,000,000 $1,000,000 $5,000,000 Complete Named Insured: Clubessential Holdings LLC; CE Management Holdings, LLC; Clubessential, LLC; ClubReady, LLC; LEGP II Blocker(CR), Inc; ClubReady Canada Software ULC; GYM HQ, LLC; FitBPO Solutions, LLC; PrestoSports, LLC; RecTrac, LLC dba Vermont Systems; Immersion Media, Inc. dba ScoreShots; (eff 1/29/21) iKizmet, Inc; (eff 2/19/21) Golf Compete, Inc dba foreUP; (eff 5/25/21): Exerp Buy Co.; Exerp America Inc.; Exerp Holdings ApS; Exerp ApS; Exerp Asia-Pacific Pty Ltd OH Employers Defense Liability(Stop Gap): Policy# 6079684571 11/15/2021-11/15/2022 $1,000,000/$1,000,000/$1,000,000 CGL: CNA74872XX(01/15) CNA Technology Broadening Endorsement provides: See Attached... City of Waukee 805 University Ave Waukee, IA 50263 EXHIBIT A ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: CLUBLLC-01 1 1 Arthur J. Gallagher Risk Management Services, Inc.Clubessential Holdings, LLC 4600 McAuley Place Ste 350 Cincinnati OH 45242-4765 25 CERTIFICATE OF LIABILITY INSURANCE -Additional Insured by Contract, Agreement or Permit when required in a written contract with you; -Waiver of Subrogation when required in a written contract with you PKG: CNA62665XX(10/15) CNA Paramount Technology Broadening Endorsement provides: -Employee Dishonesty including ERISA $50,000 Ea Occ Limit/$2,500 Deductible BA: CA2048(10/13) Blanket Additional Insured when required in a written contract with you BA: CA0444(10/13) Blanket Waiver of Subrogation when required in a written contract with you WC: WC000313(04/84) Blanket Waiver of Subrogation when required in a written contract with you where allowed by State law. WC: WC420304B(06/14) Texas Blanket Waiver of Subrogation when required in a written contract with you. Umbrella is follow form regarding underlying: CGL BA WC Prof/Cyber Retention: $50,000; Retro Active 3/23/11 Prof/Cyber: TCM-POL-001 (01/19) C&F TCM Technology E&O, Cyber and Multimedia Liability Insurance Policy coverage form: -pg 6 Automatic Additional Insured status when required by written contract with you; -pg 15 Automatic Waiver of Subrogation where required by written contract with you. Third Party Crime Deductible: $5,000 Excess Prof/Cyber: Underlying Limit $5,000,000; Underlying Retention $50,000; Retro Active 3/23/2020 EXHIBIT A