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HomeMy WebLinkAbout19-24 Resolution No. 19-24 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE AGREEMENT WITH BENCHMARK SOLUTIONS, LLC FOR PURCHASE OF PERSONNEL DATABASE SOFTWARE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Purchase Agreement on behalf of the City of Elgin with Benchmark Solutions, LLC, for purchase of personnel database software, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 27, 2019 Adopted: February 27, 2019 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 27th day of February ,2019, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Benchmark Solutions, LLC, a Delaware limited liability company, (hereinafter referred to as "Benchmark"). NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby mutually acknowledged,the parties hereto hereby agree as follows: I. License Fee: In exchange for the License, City shall pay to Benchmark an annual License subscription fee of $25,100 for the Term and any renewal period. Benchmark will increase the annual subscription price by four percent (4%) on an annual basis starting with renewal on the 5th year. The license fee is due within 30 days of contract execution and is due annually on the anniversary date of the contract execution. II. Service-Level Specifications: Other than scheduled downtime, as defined below, Benchmark strives for a high-level of system availability. If in a calendar month these uptime commitments are not met(as reasonably determined by Benchmark), Benchmark shall credit the City with one month of fees to be applied toward the following year's subscription. Benchmark reserves the right to release new functionality to its service on an ongoing basis,through periodic maintenance windows.These periodic releases can take several hours to release and Benchmark will notify City in advance of any unscheduled maintenance, wherever possible. III. Special Instruction and Additional Term The following Additional Terms are hereby agreed to: 1. License Grant. Benchmark has developed a software application designed for City's personnel to enter, manage, track, report and analyze various law enforcement-related information and to perform other incidental and subsidiary functions known as"Benchmark." City is hereby granted a limited, non-exclusive, non-transferable, non-assignable, terminable license ("License") for the following software applications: ❑Benchmark Data Management(BDM) ❑First Sign® Early Intervention System (35% of total license fee attributable to First Sign® if other services selected) ❑Case Action Response Engine®(CARE) City further agrees to use and access the above indicated software applications via the Internet and to use the Benchmark Services described herein, but only for its own business purposes and to provide use of Benchmark to City's administrators, employees and other City- authorized persons or entities ("Users") that are permitted or enabled by City to access and use Benchmark. City has no rights to sublicense or otherwise transfer any of its rights under this Agreement and any purported transfer or sublicense in violation hereof is void. 2. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 3. This agreement embodies the whole agreement of the parties. There are no promises,terms, conditions or obligations other than those contained herein, and this agreement shall supersede all previous communications, representations or agreements, either verbal, written or implied between the parties hereto. 4. Term. The License and this Agreement shall be effective on the date of this Agreement and shall continue for a period of three (3) calendar years from the last day of the calendar month during which this Agreement is executed, including two (2)one-year renewals. 5. Appropriation of Funds. In the event the City's city council does not appropriate funds for any year of this Agreement,this Agreement shall terminate on December 31 of the last year for which funds have been appropriated without penalty to the City. 6. Severability. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. 7. Late Payments. Benchmark hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement,and any and all such rights to interest to which it may otherwise be entitled pursuant to law, including,but not limited to,the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 8. Restrictions; Service Suspension. City may only use Benchmark strictly in accordance with applicable employment laws and policies, data privacy and security laws and any other relevant statutes and policies,as well as any supporting materials provided by Benchmark("User Materials"), and any other restrictions and requirements set forth herein.Benchmark reserves the right at any time, with notice to City, to suspend access to Benchmark by City or City-authorized users to the extent that Benchmark reasonably believes such Party or Person is accessing or using the Benchmark software in breach of, or is otherwise not in compliance with, any of the terms or conditions of this Agreement. In no event shall Benchmark be required to monitor or supervise the use of the software by City, employees or other authorized users and compliance with the terms of this Agreement by each of City and/or authorized users shall at all times be and remain City's responsibility. 9. Relevant Data.City hereby authorizes Benchmark to obtain and maintain data and information that supports Benchmark's ability to provide a research-based, high quality software application ("Relevant Data"). City shall agree to additional data requirements, attached hereto and made a part hereof as Attachment A for First Sign®Early Intervention System. 10. Hosting, Implementation, Training, Support, Other Services and Obligations. Benchmark shall host an Internet website(the"Site")on its Servers(the"Servers")and shall procure and maintain its Servers as is necessary for Benchmark to substantially perform according to functional specifications promulgated by Benchmark from time to time (the "Functional Specifications"). The services to be provided by Benchmark hereunder with respect to Benchmark are herein sometimes referred to as the "Services" or "Benchmark Services". City shall provide, at City's expense, all computers, software, Internet connectivity and technology required for City and its Users to use the Site and the Services. Benchmark shall provide City with training (per proposal) and allow a designated number of Trainees to attend each training. Implementation timelines and dates will be mutually agreed upon by City and Benchmark. Benchmark shall provide a City Service Line to 2 answer questions regarding Benchmark. The City Service Line may be accessed through a toll-free telephone number(1-888-44-BENCH)or via e-mail (support@benchmarkanalytics.com)and will be available Monday through Friday 8:00AM —6:00PM (CST), excluding all federal holidays. 11. City's Obligations. a. To the extent that provision of Benchmark, or City's use of Benchmark or the Benchmark Services requires Benchmark to copy, modify, perform, display, transmit, or otherwise use the information,data,or other similar content provided by City or its Users that is stored on or transmitted via the City's or User's use of Benchmark("City Data"), City and its Users hereby grant Benchmark a nonexclusive, nontransferable, worldwide, royalty-free right to copy, modify, perform, display, transmit, and otherwise use the City Data for such purposes. b. City understands and agrees that City must provide workstations and computers that have reliable Internet access at its own expense. The Benchmark application will reside at the Benchmark host site (a commercially viable and secure data center) and may be accessed electronically by appropriate personnel using secure identification procedures via the City's individual user workstation.The City must provide its own workstations with Internet access and a web browser that allows 128-bit encryption.Acceptable browsers at the time of the original agreement include: Internet Explorer 11 and higher,Edge,Mozilla Firefox 4.0 and higher,Apple Safari 4.0 and above,and Google Chrome. Further required modifications or other changes will be communicated by Benchmark in the ordinary course. c. City understands and agrees that(i) Benchmark is not responsible for notifying City of any upgrades, fixes, or enhancements to any software used by City to access and utilize Benchmark and the Services;(ii)City is responsible for obtaining and installing all software and/or hardware upgrade, fixes, or enhancements required by the applicable browser software; and (iii) that Benchmark is not responsible for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited, to the Internet. Notwithstanding the foregoing, City understands and agrees that City may have to modify, change,or otherwise upgrade its browser software in order to be compatible with upgrades and changes made to Benchmark by Benchmark. d. City understands and agrees that City and/or its authorized Users shall designate their own user-identifications and passwords to access Benchmark. City understands and agrees that (i) the License granted is not a concurrent License and that City is prohibited from sharing passwords and/or user names with unauthorized users; (ii) City is responsible for the confidentiality and use of City's (including its Users) passwords and user names; (iii) City is responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, City Data, and any other data of any kind entered electronically through Benchmark or under City's account; (iv) City agrees to immediately notify Benchmark if City becomes aware of any loss or theft or unauthorized use of any of City's passwords, user names,and/or account number;(v)City shall use its best efforts to prevent unrelated third parties from accessing Benchmark and/or using the Services; and (vi) City and its Users are automatically subject to all terms and conditions set forth herein and any privacy statement related to any websites operated or maintained by Benchmark, as such terms and conditions and privacy statements may be modified or changed by Benchmark from time-to-time. e. City understands and agrees that the technical processing and transmission of City's Data is fundamentally necessary to City's use of Benchmark and the Services. City expressly consents to Benchmark's interception and storage of City Data, and City understands and agrees that City's Data will be transmitted over the Internet and other various networks, only part of which may be owned and/or operated by Benchmark. City understands and agrees that changes to City's Data may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. City understands and agrees that City's Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic 3 means. City agrees that Benchmark is not responsible for any City Data that is lost, altered, intercepted, or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Benchmark. f. Benchmark may upgrade and improve Benchmark and/or the Benchmark Services from time to time (the "Upgrades"). City must upgrade and improve its software to conform to the Upgrades made to Benchmark. g. City shall (i) not alter, reverse engineer, dissemble, decompile, or copy any part of Benchmark, (ii) limit access to the non-public portions of Benchmark to its Users, and (iii) not sublicense or otherwise transfer any of its rights, duties or obligations under this Agreement. h. City must properly enter data and information onto Benchmark in order for Benchmark to operate properly. City shall be responsible to verify the accuracy of any of City's Data entered on Benchmark. i. City and/or its Users shall adhere to the Terms of Service and Privacy Policies governing the Site, as they may be modified by Benchmark in its sole discretion. 12. Mutual Obligations. "Confidential Information" means: (a) for Benchmark—all information relating to the Benchmark technology (including, but not limited to Benchmark' source codes, research and/or analytics), any information related to pricing, Site features and the functionality of Benchmark, all other proprietary information and property belonging to Benchmark that is otherwise not in the public domain; and(b) for City—the identities of its Users, records of interactions with the Users, and City Data. Each party shall not use for its own benefit or knowingly disclose to, or use for the benefit of, any other person, any Confidential Information of the other party without the other party's prior written consent and shall use reasonable care and caution in protecting the Confidential Information and disclose Confidential Information only to those of its employees or contractors who require access to it in order for the party to be able to perform its obligations under this Agreement. This Section does not apply to any information that (i) becomes generally publicly available other than as a result of improper disclosure by the receiving party; (ii) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (iii) becomes available to either party on a non-confidential basis from a third party that is not bound by a similar duty of confidentiality. The City's good faith compliance with the requirements of law, including but not limited to the Illinois Freedom of Information Act(5 ILCS 140/1, et seq) shall not constitute and shall not be construed as a breach of this Agreement; provided, that the party required to disclose (a) promptly notifies the other party of such requirement, and (b) prior to any disclosure, asserts the confidential nature of the Confidential Information. 13. License Restrictions. a. City shall not sublicense, sell, resell, lease, assign, transfer, pledge or otherwise encumber or dispose of any of City's rights or obligations under this Agreement. b. Except as specifically provided to the contrary herein, the License does not extend to, and no right is granted for use or access of by, any third party or other individual or entity not a party to this Agreement, except for any properly authorized employees of City and designated Users. c. Information regarding City's employees, data or proprietary confidential information acquired by Benchmark from City shall be confidential and shall not,without the City's prior consent, be used or disclosed to others by Benchmark except upon an assignment or as otherwise permitted hereunder. 14. Injunctive Relief. In addition to any other rights and remedies available to Benchmark, if City or any of its Users breaches any of its obligations under this Agreement, (i) Benchmark shall be entitled to an injunction or similar equitable relief ordering the cessation of such breach upon request 4 of a court of competent jurisdiction without having to post any bond or prove anything other than the fact of such breach, and(ii)the City and its Users waive all defenses, including that such breach will not cause irreparable harm. 15. Warranties; Intellectual Property Indemnification. a. Subject to the terms and limitations hereof, Benchmark represents and warrants that Benchmark will substantially conform and perform according to the Functional Specifications and the Service-Level Specifications.If Benchmark fails to meet the Functional Specifications or Service- Level Specifications contained herein for any calendar month during the term of this Agreement, City's sole and exclusive remedy (notwithstanding anything to the contrary herein contained) shall be a credit on the terms specified herein for one calendar month of License fees in accordance with the Pricing Schedule included herein, as modified from time to time pursuant to this Agreement. Benchmark shall be responsible only for failures to meet the Functional Specifications or Service- Level Specifications due to conditions that are within Benchmark's reasonable control. In order to maintain the warranty, City must notify Benchmark immediately in writing of any problems or potential problems and make available to Benchmark all written and printed documents to substantiate the problem. b. City represents and warrants that City is and at all times will be the owner of or authorized to use the City Data required by this Agreement. c. Benchmark agrees to defend, indemnify, and hold City harmless against all loss, cost, liability, expenses, and pay the amount of any adverse final judgment (or settlement that Benchmark consents to) including reasonable attorneys' fees, resulting from third party claims (collectively, the "Claims") that Benchmark infringes any United States patent, copyright, trade secret, or other intellectual property arising under United States law; provided Benchmark is promptly notified in writing of the Claims and has sole control over its defense or settlement,and City provides reasonable assistance in the defense of the Claims. In case of alleged infringement, Benchmark will have the right, but not the obligation, at its sole option and expense, to procure for City the right to continue using Benchmark or to replace or modify Benchmark so that it becomes non-infringing or damages are mitigated. 16. Disclaimer of Warranties. EXCEPT AS STATED IN THE PRECEDING SECTION, BENCHMARK DOES NOT REPRESENT THAT CITY'S USE OF BENCHMARK WILL BE SECURE,TIMELY,UNINTERRUPTED,ERROR-FREE,OR THAT BENCHMARK WILL MEET CITY'S REQUIREMENTS OR EXPECTATIONS OR THAT ERRORS IN THRIVE, THE SERVICES, AND/OR THE SUPPORTING DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WARRANTIES STATED IN THE PRECEDING SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY BENCHMARK. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. 17. Limitation of Liability. a. THE PARTIES ACKNOWLEDGE THAT THERE IS GREAT DIFFICULTY IN ASCERTAINING DAMAGES UNDER THIS AGREEMENT AND, THEREFORE, THE MAXIMUM LIABILITY OF EITHER PARTY HERETO, OR THEIR EMPLOYEES, AGENTS, OR REPRESENTATIVES, FOR ALL DAMAGES, CLAIMS OR LOSSES WHATSOEVER, INCLUDING THOSE RELATING TO ANY ERROR,FAILURE,MALFUNCTION,OR DEFECT, ANY BREACH OF THIS AGREEMENT AND ANY NEGLIGENCE OR OTHER MALFEASANCE BY BENCHMARK SHALL NOT EXCEED THE AMOUNT OF FEES 5 ACTUALLY PAID BY CITY TO BENCHMARK DURING THE PRECEDING TWELVE (12) MONTH PERIOD. IN NO EVENT SHALL BENCHMARK, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE TO CITY OR ITS USERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES AT ANY TIME OR OF ANY KIND, SUCH AS, BUT NOT LIMITED TO, LOSS OF CITY DATA, REVENUE OR OTHER ECONOMIC LOSS IN CONNECTION WITH, OR ARISING OUT OF THE SERVICES PROVIDED FOR IN THIS AGREEMENT, THE PERFORMANCE OF THE SOFTWARE, THE USE OF BENCHMARK, ANY BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. b. Upon termination of this Agreement for any reason, the provisions of this Section shall survive termination and continue in full force and effect. c. No action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two (2)years after the cause of action was discovered or should have been discovered. 18. Termination. a. Except as otherwise provided herein, this Agreement may be terminated as follows: by Benchmark, if City is in breach of any payment obligation contained in this Agreement and fails to cure such breach within ten(10)days written notice of such breach by Benchmark;or by either party, if the other party is in material breach of any other provision of this Agreement, by written notice to the other party effective thirty (30) days after the receipt of such notice unless the other party cures such breach within the thirty (30) day period or, if such breach cannot be cured within thirty (30) days, the other party commences its best efforts to cure such breach immediately and such breach is cured within ninety (90) days after receipt of the original notice of breach. b. City understands and agrees that following termination or non-renewal of this Agreement, for any reason, Benchmark may (i) immediately deactivate City's account, and/or (ii) delete City's account and all related City Data and files in City's account and/or bar any further access to such information and Benchmark and the Services after a reasonable period of time. Upon such termination or non-renewal, Benchmark will grant Client temporary and limited access to Benchmark for the sole purpose of permitting City to retrieve lawful City Data,provided that City has paid in full all amounts owed to Benchmark. Client understands and agrees that Benchmark is not liable to City, its Users, or any third party for any termination of City's access to Benchmark or deletion of City Data or any other data of any kind. 19. Copyright and Trademarks. All intellectual property pertaining to Benchmark, including trademarks and copyrights, are and shall remain the sole property of Benchmark and its affiliated companies. This Agreement in no way conveys to City or its Users any rights or interests in Benchmark other than the limited license granted to use Benchmark in accordance with this Agreement. 20. Severability. Each paragraph and provision of this Agreement is severable from the entire agreement, and, if one provision is declared invalid, the remaining provisions shall remain in effect and the invalid provision shall be reformed and amended to the extent needed to be valid. 21. Force Majeure. The performance by Benchmark of any obligation shall be excused, if such failure is caused by any event or circumstance beyond Benchmark's own direct control. If Benchmark should fail to become available as a result of any such event or circumstance beyond its own direct control, Benchmark shall have the right to cause availability within a reasonable time after the cause of such delay has been removed, and the City shall be obligated to accept deferred availability, it 6 being agreed that upon the occurrence of any such circumstance or event beyond Benchmark's own direct control,the time for performance by Benchmark shall be extended by that number of days equal to the number of days of delay attributable to any such circumstances or event beyond Benchmark's direct control. 22. Taxes. The City is a municipal corporation with tax exempt status. Benchmark shall be liable for any and all taxes which may accrue to Benchmark by law. 23. Applicable Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this Agreement shall be in the Circuit Court of Kane County, Illinois,without jury. 24. Service. Licensor hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof; and the Licensor agrees that service by first class U.S. mail to the entity and address provided for herein shall constitute effective service. Both parties hereto waive any rights to a jury. 25. Entire Agreement and Amendment. This Agreement supersedes all prior agreements and understandings between City and Benchmark, including any representations, expressed or implied. City acknowledges that this Agreement may not be changed or terminated orally. No change, termination or attempted waiver of any of the provisions of this Agreement shall be binding unless in writing and signed by the party against who the same is sought to be enforced.The parties,each acting under proper authority, have signed this Agreement on the date indicated below. 26. Notices. Any notices required or permitted under this Agreement shall be in writing and shall be effective when transmitted by U.S. Mail to the address provided herein. CITY NOTICE BENCHMARK NOTICE Elgin Police Department Benchmark Analytics, LLC 151 Douglas Avenue 4619 N. Ravenswood Avenue, Suite 203 Elgin, IL 60120 Chicago, IL 60640 Ana Lalley: lallcy a(q)cityofelgin.orc Ron Huberman: support@benchmarkanalytics.com 27. Relationship of the Parties. Benchmark and City are independent contractors.Nothing in this Agreement makes them partners or creates (i) an employer and employee relationship, (ii) a master and servant relationship, (iii) a principal and agent relationship, or(iv) any other relationship of any kind other than an independent contractor relationship. Neither party shall make any contracts, warranties, representations, or assume or create any other obligations,whether express or implied, in the other party's name or on its behalf. 28. Assignment.Neither party may assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party; provided that Benchmark shall have the right to assign its rights and obligations hereunder to its parent, successor (including any successor through merger, consolidation or any other form of acquisition resulting in a change of control of Benchmark),or to any subsidiary or affiliate upon notice to City.Any purported assignment of rights in violation of this Section is null and void. 7 29. Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person or entities other than Benchmark and City. 30. Electronic Transmission. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same Agreement. For the purposes of executing this Agreement, any signed copy of this Agreement transmitted by fax machine or e- mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re-executed by the parties in an original form. No party to this Agreement shall raise the use of fax machine or e-mail as a defense to this Agreement and shall forever waive such defense. 31. I-9 Compliance. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this agreement, Benchmark shall comply with all applicable federal,state,city and other requirements of law, including,but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Benchmark hereby certifies, represents and warrants to the City that all of Benchmark's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legally authorized to work in the United States. Benchmark shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of Benchmark to determine Benchmark's compliance with the provisions of this section. In the event the City proceeds with such an audit, Benchmark shall make available to the City Benchmark's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 32. Conflict. In the event of any conflict between the terms and provisions of the body of this agreement and any attachments hereto, the terms and provisions of the body of this agreement shall govern. LGIN Ron Huberman _ //dr_-"1,1P Print Name � Richard zal, City ranage �'2"''"c— Attest: 441&44, Signature City Clerk CEO Title 8 Exhibit A DATA SHARING AGREEMENT First Sign®Early Intervention System 1. Access to First Sign®and Use of Relevant Data. Reports and associated Analyses received by Client resulting from Benchmark Analytics'First Sign® or any other analytics and reporting tools("Client Reports")will be accessible to Client and its authorized users through the software application. Client authorizes Benchmark Analytics to use Relevant Data,including aggregating such Relevant Data with other data and information,for purposes of performing, evaluating,improving or enhancing First Sign@ and the software application broadly.Benchmark Analytics will restrict access to Relevant Data to only those Benchmark Analytics staff,the Benchmark Research Consortium,or subcontractors(the"Agents")required to access the Relevant Data in order to perform the services set forth in this Agreement and/or to evaluate,improve or enhance the software application Benchmark Analytics will instruct all Benchmark Analytics Agents on the use and confidentiality restrictions set forth in this Agreement,and shall require all Benchmark Analytics Agents to comply with applicable provisions of the data privacy and security laws Benchmark Analytics will not disclose Relevant Data to anyone other than Benchmark Analytics Agents except,upon the prior written consent of Client,to a party authorized to receive the Candidate Data in accordance with data privacy and security laws. In the event that Benchmark Analytics subcontracts any of its duties and obligations,Benchmark Analytics agrees that:(i)the third party contractor shall execute an agreement regarding confidentiality consistent with the terms of this Agreement to the extent that such third party contractor has access to Confidential Information of Client and an agreement relating to any other obligations of such contractor as required to comply with this Agreement and data privacy and security laws,and(ii)any such permitted subcontracting shall not release Benchmark Analytics from any of its obligations under this Agreement. Subject to the requirements of this Section above,Benchmark Analytics may freely subcontract its duties and obligations under this Agreement 2. Client's Obligations. Client will adopt and maintain appropriate security precautions to prevent disclosure of Candidate Portal passwords to and use by,any unauthorized person,and appropriate expiration of the access following completion of the application process by the candidate. 3. Aggregate Data. Aggregated Relevant Data not relating to individual employees of Client acquired by Benchmark Analytics in the course of performing this Agreement will be the sole property of Benchmark Analytics.