K8943 Periscope.docx

K8943

THE NIGP CODE SITE-WIDE SUBLICENSE AGREEMENT

BETWEEN

PERISCOPE HOLDINGS, INC.

AND

THE STATE OF WASHINGTON

FOR THE NIGP 11-DIGIT CODE,

MCC to NIGP CROSSWALK, NAICS to NIPG CROSSWALK, and UNSPSC to NIGP CROSSWALK

May 1, 2024 to April 30, 2029

I. INTRODUCTION: NIGP – The Institute for Public Procurement has licensed the use of the NIGP Commodity/Services Code (“NIGP Code” or “Code”), including the 5-Digit, 7-Digit, 11-Digit, and the Alphabetical Index, to Periscope Holdings, Inc. (“Periscope”) and Periscope has created a crosswalk file of MCC Codes to NIGP Codes (“MCC Crosswalk”), a crosswalk file of NAICS Codes to NIGP Codes (“NAICS Crosswalk”) and a crosswalk file of UNSPSC Codes to NIGP Codes (“UNSPSC Crosswalk”). Periscope sublicenses the right to use the Code, MCC Crosswalk, NAICS Crosswalk, and UNSPSC Crosswalk on the following terms and conditions to the State of Washington (the “Sublicensee” or “you” or “your”) pursuant to this Sublicense Agreement (“Agreement” or “License Agreement”).

II. ENTIRE AGREEMENT: This Agreement sets forth the full and complete understanding of the parties as of the Effective Date stated below for the Code and supersedes all agreements and representations made or dated prior thereto. Any invoice, acknowledgment or other communication issued in connection with this Agreement shall be construed to be for record and accounting purposes only. Any terms and conditions stated in such communications shall not be applicable to this Agreement and shall not be an exception to the provisions of this Agreement.

A. This “Site-Wide License” will cover the:

1. Sublicensee’s state agencies, departments, authorities, boards, commissions, offices, State colleges and universities, and other authorized participants in the State’s electronic procurement solution (collectively referred to as “State Agencies”). Authorized participants under this agreement are listed in Attachment A of this Agreement.

2. Sublicensee’s local government, municipalities, cities, townships, counties, and other political subdivisions of the Sublicensee (“Local Entities”) participating in the State’s electronic procurement solution to the extent required for participation in the State’s cooperative purchasing programs; however, Local Entities must license the Code from Periscope if they desire to use the Code for any other internal purchasing activities. Private entities are excluded from participating in this Agreement.

B. Under this Site-Wide License, Periscope Holdings, Inc. agrees to:

1. Manage, license, maintain, and update the NIGP Code.

2. Provide and maintain the current edition of the NIGP 11-Digit Code, the MCC Crosswalk, the NAICS Crosswalk, and the UNSPSC Crosswalk for the Sublicensee. Updates to the NIGP Code’s Master File will be made available to the Sublicensee when placed on the Living Code site for downloading.

3. A single seat to the Living Code will be provided to all State Agencies and Local Entities which participate in the State’s electronic procurement solution. The regular per seat licensing fee of $47.00 will be waived for the first seat, however, additional seats will be provided for the identified fee.

4. Maintain a toll-free customer service telephone number for providing Code assistance to the Sublicensee. Direct support for individual entities (State or Local) requesting an individual level of service outside the services provided to Sublicensee will be negotiated and priced separately from this Agreement with the individual entity.

5. Provide access and updates to the Living Code for the Sublicensee if the annual subscription to the Code is current.

6. Grant this Site-Wide License for five (5) consecutive years and thereafter on an annual basis unless the parties agree to a different renewal option.

7. Include in this License the right for the Sublicensee’s suppliers participating in the state’s e-procurement solution to use the NIGP Code within the context of the Sublicensee’s electronic procurement system at no additional charge. The use of the NIGP Code by the suppliers will be limited to the NIGP 5-Digit Codes that describe the commodities and/or services they will provide to the Sublicensee.

8. Provide services to assign NIGP Codes either at the 5-, 7-, or 11-digit level for catalogs, price lists, term contracts, inventory files, vendor files, purchase history or any other procurement data related files. Prices for coding services will be quoted and negotiated on a case-by-case basis but will be included in the catalog of services provided by Periscope under this Agreement. The range of per item charges for commodity coding services is between $1.15 and $3.50 per item, depending on anticipated level of services required and other factors including the volume of items to be converted/added and the quality of the descriptive information associated with the items. An additional management fee of 15% may be assessed on all coding services.

C. Under this Site-Wide License, the Sublicensee agrees to:

1. Endorse and abide by the terms and conditions of this License.

2. Cite copyright disclaimer if Code is published by the Sublicensee on any public website or publicly available source or reference.

3. Actively promote adoption of the NIGP Code to all State Agencies within the State.

4. Make payment of the annual subscription fees within thirty (30) days of the receipt of an undisputed invoice.

5. Provide training, as deemed necessary on the NIGP Code to all agencies covered by this license. At the Sublicensee’s option, this training may be performed by Periscope at their prevailing rates in effect at the time of the service.

6. Actively promote adoption of the NIGP Code to catalog suppliers and contractors to have their items coded by Periscope to the NIGP Code.

7. Provide a list of all covered State Agencies and Local Entities using the State’s electronic procurement solution to Periscope within thirty (30) days following the execution of this Agreement. This list should be submitted using Attachment A.

8. Provide a list of additional contract provisions which must be approved, confirmed and verified by Periscope before being in effect. This list is submitted as Attachment B.

9. Provide a list of insurance requirements. This list is submitted as Attachment C.

D. In accepting the Site-Wide License granted by Periscope, the Sublicensee agrees that it shall not:

1. Loan, rent, lease, give, sublicense, or otherwise transfer the Code and/or the MCC Crosswalk, the NAICS Crosswalk, or the UNSPSC Crosswalk, in whole or in part, to any person or entity except as authorized herein.

2. Make copies or other use of the Code, the MCC Crosswalk, the NAICS Crosswalk, or the UNSPSC Crosswalk except as expressly set forth in this Agreement.

3. Copy, alter, translate, decompile, disassemble, modify, reverse engineer, or create derivative works of the Code, the MCC Crosswalk, the NAICS Crosswalk, or the UNSPSC Crosswalk, (Note: Derivative works is meant to cover creating a commercially available product for which the State would realize financial gain. Cross-walking to internal expenditure codes would not constitute a violation of this prohibition.).

4. Treat the Code, the MCC Crosswalk, the NAICS Crosswalk, or the UNSPSC Crosswalk with less care than it treats its own proprietary information.

E. Any rights not expressly granted to the Sublicensee are retained by Periscope.

F. Sublicensee shall be exclusively responsible for the supervision, management, and control of its use of the Code, the MCC Crosswalk, the NAICS Crosswalk, and the UNSPSC Crosswalk, including, but not limited to:

1. Ensuring proper hardware and software are compatible with the Code, the MCC Crosswalk, the NAICS Crosswalk, and the UNSPSC Crosswalk and hierarchical Code structure to include extended Code descriptions.

2. Establishing adequate operating methods and management/control of the Code, the MCC Crosswalk, the NAICS Crosswalk, and the UNSPSC Crosswalk.

3. Implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate control of its employees to prevent misuse, unauthorized copying, modification, or disclosure of the Code, the MCC Crosswalk, the NAICS Crosswalk, and the UNSPSC Crosswalk.

G. Sublicensee hereby acknowledges that Periscope is the Licensee which has proprietary rights in the Code, the MCC Crosswalk, the NAICS Crosswalk, and the UNSPSC Crosswalk, including without limitation, the authority to sublicense under the authority of NIGP. Sublicensee acknowledges that the Code is copyrighted by NIGP which Periscope is contractually obligated to protect, including the specific design, structure and logic of the Code, and their interactions employed therewith, and Sublicensee agrees to use its best efforts not to disclose such copyrighted materials, except as may be authorized herein. Sublicensee acknowledges that the MCC Crosswalk, the NAICS Crosswalk, and the UNSPSC Crosswalk are copyrighted by Periscope which it is obligated to protect, including the specific design, structure, and logic of the MCC Crosswalk, the NAICS Crosswalk, and the UNSPSC Crosswalk, and their interactions employed therewith, and Sublicensee agrees to use its best efforts not to disclose such copyrighted materials, except as may be authorized herein.

III. COPYRIGHT: The NIGP Commodity/Services Code (Code) is the product of NIGP – The Institute for Public Procurement, licensed to Periscope Holdings, Inc., is protected under the copyright laws of the United States. You may not copy, publish, or transfer the Code, or any copy or merged copy of the Code unless expressly authorized to do so by a subsequent written document signed by an authorized officer of Periscope. Any use of the Code or reference to the Code, including but not limited to on the Internet, must expressly indicate that it is copyrighted by NIGP, and must not be used in any manner by clients and associates of the Sublicensee, other than as stated in this License, including using less than the full code.

The MCC Crosswalk, NAICS Crosswalk, and UNSPSC Crosswalk are copyrighted by Periscope Holdings, Inc. and are protected under the copyright laws of the United States. You may not copy, publish, or transfer the Crosswalks, or any copy or merged copy of the Crosswalks unless expressly authorized to do so by a subsequent written document signed by an authorized officer of Periscope. Any use of the Crosswalks or reference to the Crosswalks, including but not limited to on the Internet, must expressly indicate that it is copyrighted by Periscope Holdings, Inc., and must not be used in any manner by clients and associates of the Sublicensee, other than as stated in this License, including using less than the full Crosswalk.

IV. SUBLICENSEE DISCLOSURE STATEMENT: Unless Sublicensee has prior written approval from Periscope for a deviation from the language indicated below, Sublicensee shall use the following wording for all disclosures:

NIGP Code: The NIGP Code is the property of NIGP, is licensed to Periscope Holdings, Inc. and is protected under the copyright laws of the United States. Unauthorized duplication or copying is prohibited.

MCC to NIGP Code Crosswalk: The MCC Crosswalk is the property of Periscope Holdings, Inc. and is protected under the copyright laws of the United States. Unauthorized duplication or copying is prohibited.

NAICS to NIGP Code Crosswalk: The NAICS Crosswalk is the property of Periscope Holdings, Inc. and is protected under the copyright laws of the United States. Unauthorized duplication or copying is prohibited.

UNSPSC to NIGP Code Crosswalk: The UNSPSC Crosswalk is the property of Periscope Holdings, Inc. and is protected under the copyright laws of the United States. Unauthorized duplication or copying is prohibited.

V. NON-DISCRIMINATION: The parties agree to comply with Titles VI and VII if the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 if the Rehabilitation Act of 1973, Executive Order 11,246, the Americans with Disabilities Act of 1990, and the related regulations of each. Each party assures that it will not discriminate against any individual including, but not limited to, employees or applicants for employment and/or students because of race, religion, creed, color, sex, age, disability, veteran status, or national origin.

VI. CONFLICT OF INTEREST: Periscope and NIGP warrant that no part of the Sublicense Agreement amount provided herein shall be paid directly or indirectly to any officer or employee of the State as wages, compensation, or gifts in exchange for acting as an officer, agent, employee, subcontractor, or consultant to the vendor in connection with any work contemplated or performed relative to this Agreement.

VII. TERM: This Agreement and the Subscription created thereby are effective for a five-year term and thereafter on an annual basis unless the parties agree to a different renewal option. The Agreement may be terminated at the end of this term by the Sublicensee or Licenser by providing the other party the reason for the termination in writing. The letter must be sent to the other party prior to the renewal date of the Subscription. Failure to renew the subscription as the result of non-payment of the subscription fee when due will be just cause for early termination of this Agreement. Termination of the Code means you must destroy the Code and all copies, modifications, and portions merged into other programs or copies.

VIII. LICENSING FEES: The annual subscription fee for this License to the NIGP 11-Digit Code, MCC Crosswalk, NAICS Crosswalk, and UNSPSC Crosswalk has been calculated in the following manner:

Price structure is based on a 4% annual price increase.

IX. RIGHT TO AUDIT: Periscope reserves the right to audit the use of the License to ensure compliance with the provisions of this License Agreement. Periscope shall provide the Sublicensee with a 15-day advance notice of its intent to Audit. The Sublicensee, per signature of this Agreement, agrees to fully cooperate and provide all records, recordings, notes, system access, and access to institutions covered as part of License, as may be required for completion of the audit, within 21 days of receipt of the notice of intent to Audit.

X. LIMITED WARRANTY: NIGP and Periscope’s sole warranty is that the Code will be free from defects in materials and workmanship under normal use. In selecting this Code, you assume full responsibility:

· that it will meet your needs for installation and use,

· that it is compatible with the software and hardware on which it will be used, and

· for verifying the results obtained from such use.

NIGP and Periscope expressly exclude any warranty that the Code will meet your needs, that the Code will operate error-free or uninterrupted on any particular hardware, or that it will meet any need not expressly described.

EXCEPT AS STATED ABOVE, NEITHER NIGP NOR PERISCOPE MAKES ANY OTHER WARRANTY REGARDING THE CODE, INCLUDING, WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES. NIGP AND PERISCOPE EXPRESSLY DISCLAIM THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND ANY OTHER WARRANTY, EXPRESS OR IMPLIED.

THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.

XI. TERMINATION OF AGREEMENT: Sublicensee commits any event of default, and this Agreement and the Sublicense granted under this Agreement may be terminated by Periscope, if any of the following occur:

A. Sublicensee discloses the Code or any part thereof to an unauthorized user, whether such disclosure occurs directly or indirectly and whether inadvertently or purposefully.

B. Sublicensee fails to maintain a current license of the NIGP Code.

C. Sublicensee attempts to use, copy, license, or convey the Code in any manner contrary to the terms of this Agreement or in derogation of NIGP’s proprietary rights in the Code.

D. Sublicensee fails to correct a breach of its responsibilities under this Agreement within fifteen (15) days following written notice of such breach. To maintain its Sublicense hereunder, Sublicensee must provide written verification of the cure of the breach and/or pay additional license fees as required to comply with this Agreement.

E. Sublicensee agrees that upon termination of this License Agreement, it shall destroy all copies of the Code, including all archival copies. This obligation shall survive the termination of this Agreement. Sublicensee shall also certify to Periscope that it has retained no copies of the Code and acknowledge that it may no longer use the Code. Upon termination of the Sublicense, Periscope’s obligations under this Agreement shall cease.

F. Sublicensee fails to cure a breach of its responsibilities under this Agreement as referred to in section (d) above, termination under this subparagraph shall be effective by delivery of written Notice of Termination from Periscope to Sublicensee, to the contact email address indicated in this Agreement. Any Notice of Termination of this Sublicense shall contain a sufficient explanation of the reasons for the termination and shall be considered effective at the close of business on the tenth business day following the date the notice was emailed.

XII. LIMITATIONS OF REMEDIES: Your remedy and the entire liability NIGP and Periscope shall be exclusively as set forth above. Neither NIGP nor Periscope will be liable to you for damages whether under theory of warranty, tort, including NIGP’s, Periscope’s, or any other party’s negligence, product liability or otherwise, including any lost profits, lost savings, or other incidental or consequential damages arising from the use of your inability to use the Code or the breach of any expressed or implied warranty, including negligence, even if NIGP and Periscope or its agent have been advised of the possibility of such damages. In no event shall NIGP and Periscope liability for damages exceed the greater of $100 or the total annual amount paid for the Subscription granted hereunder. Some states prohibit the above limitations, so they may not apply to you.

XIII. FURTHER USE OR ASSIGNMENT: Any attempt to copy the Code as described above or to assign or transfer this Subscription or the Code covered hereunder except as provided in this Agreement, shall void the Agreement.

XIV. ACCEPTANCE: By signing this document, you acknowledge that in reading this Agreement, you understand this Agreement and agree to be bound by its terms.

XV. EXECUTION OF SUBSCRIPTION: This Subscription, to be properly executed, must be signed, and returned to Periscope. This will ensure proper documentation for Periscope user file, and prompt notification of future updates and/or enhancements.

XVI. LEGAL JURISDICTION: This Agreement shall be governed by the laws of the State of Washington.

XVII. SEVERABILITY: Any invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity of any other of its provisions.

XVIII. EFFECTIVE DATE: This license will become effective on May 1, 2024.

XIX. CONTACT INFORMATION:

Olympia WA 98501

Inquiries regarding invoices shall be addressed to:

The signatures below establish the execution of this Agreement between the two parties:

For Periscope Holdings, Inc. For the State of Washington

Date: ________________________ Date: ______________________________

K8943 NIGP Code Sublicense Agreement_2024

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