AGREEMENT TO PROVIDE MINDMIXER SUBSCRIPTION TO THE CITY OF OAKLAND, CALIFORNIA, (Project No.

1264) This Master Subscription Agreement (the Agreement) is made and entered into as of September 20, 2012 (the Effective Date) by and between Socialmentum, LLC, d/b/a MindMixer, located at 1111 N. 13th Street, Suite 101, Omaha, NE 68102 (the Consultant) and City of Oakland, California, located at 1 Frank H. Ogawa Plaza, Oakland, CA 94612 (the Client). The project to which the Subscription (as defined herein) relates are referred to herein as the Project. WHEREAS, Consultant is in the business of developing websites capable of hosting town hall meetings and related projects promoting an exchange of information and ideas for use by governmental and other entities; WHEREAS, Client desires to engage Consultant to develop, support and maintain a website (the Site) for use in connection with the Project, and Consultant desires to accep t said engagement; and WHEREAS, the parties intend this Agreement to evidence their understanding with respect to Clients engagement of Consultant to develop the Site and perform the Services. NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants contained herein, the parties agree as follows: 1. SUBSCRIPTION. Upon execution of this Agreement by both parties, Consultant shall provide a subscription to Client in accordance with the terms and conditions of this Agreement and the Statement of Work (SOW) that is attached hereto as Exhibit A and incorporated herein by this reference (the Supporting Services). 2. FEE PAYMENT AND TIMING. A. Fees. In consideration of Consultants performance Client shall pay Consultant fees, and reimburse Consultant for expenses, each in the amounts and in accordance with the payment terms and conditions specified in this Agreement and on Exhibit B attached hereto (collectively, the Fees). Late Payment. Except with respect to amounts disputed in good faith, all amounts due under this Agreement, if not paid within [30] days of the due date, shall be considered late and shall accrue interest at the rate of one and one-half percent per month or the highest amount allowed by applicable law, whichever is less. Should collection activities become necessary, Client agrees to pay all fees relating to said activity. Clients Failure to Pay. Clients incurring of a late payment (as determined in accordance with Section 2(B)) shall be considered a material breach of this Agreement. As such, until such breach is cured by way of full payment, Consultant may (i) refuse to deliver any Deliverables

B.

C.

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or Marketing Materials (each as defined below), (ii) cease performance of any Services, (iii) issue a notice of non-payment to Client, which, if not satisfied within [15] days after the receipt thereof, shall constitute grounds for Consultant to terminate this Agreement or the SOW applicable to the Services. These rights are not exclusive and Consultant reserves its right to seek any other rights or remedies provided in law or equity. 3. DELIVERABLES. A. Electronic Database. Upon request and upon termination/expiration of the Agreement, Consultant will provide Client with an electronic database (the Database) (Database and Summary Document, collectively the Deliverables) containing the following information: (i) user names and associated electronic mail addresses; (ii) aggregate reports containing information about the age, location and activity of the Sites users; and (iii) all user-generated content on the Site.

4.

CONSULTANT OBLIGATIONS + SERVICE LEVEL AGREEMENT. A. All Services shall be performed by qualified Consultant personnel in a professional and workmanlike manner, and in accordance with applicable industry standards. Consultant shall have sole discretion regarding the selection of the personnel to render the Services. Consultant will establish working hours for its personnel, and may, at its sole discretion, use the resources and materials it deems necessary to perform the Services. Consultant shall, within the specifications set forth in any applicable Schedule or SOW, determine the method, details and means of performing the Services. Upon the completion of the Site pursuant to a SOW, Consultant shall deliver the Site to Client for review and/or testing. Within [15] days of receipt, Client shall either notify Consultant in writing of its acceptance or rejection of the Site. Acceptance of the Site shall signify the completion by Consultant of its development obligations under this Agreement or any applicable SOW. Any notice of rejection shall include reference to specific issues in detail sufficient for Consultant to provide suitable remedial solutions. Upon completion of the remedial work, Consultant shall again deliver the Site to Client, which shall then have 5 business days within which to complete its acceptance or rejection review. Any further rejection of the Site shall also require Clients review and response within 5 business days. In the event Client fails to accept or reject a remedy supplied by Consultant within the applicable 15 or 5 day periods, such failure shall be deemed to constitute acceptance. No Site may be used by Client until Client has accepted said Site. The Consultants web platform will be operational and available to Customer at least 99.5% of the time in any calendar month (the MindMixer Application SLA). If MindMixer does not meet the MindMixer Application SLA, Customer will be eligible to receive the Service Credits described below:

B.

C.

D.

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Uptime Percentage < 99.5% - >= 99.0% < 99.0% - >= 95.0% < 95.0%

Service Credit (Days) 3 7 15

E.

Service Credit Request. In order to receive any of the Service Credits described above, Customer must notify MindMixer within thirty days from the time Customer becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Customer's right to receive a Service Credit. Maximum Service Credit. The aggregate maximum number of Service Credits to be issued by MindMixer to Customer for all Downtime that occurs in a single calendar month shall not exceed fifteen days of Service added to the end of Customer's term for the Service (or the value of 15 days of service in the form of a monetary credit to a monthly-billing customers account). Service Credits may not be exchanged for, or converted to, monetary amounts, except for customers who are on MindMixers monthly billing plan. Application SLA Exclusions. The MindMixer Application SLA does not apply to any services that expressly exclude this MindMixer Application SLA or any performance issues: (i) caused by factors described in the "Force Majeure" section of the Agreement; or (ii) that resulted from Customer's equipment or third party equipment, or both (not within the primary control of MindMixer). Records Retention. Consultant will maintain all Site records for 7 years from the effective termination date. Any request for records beyond the termination date must be made in writing 30 days prior to desired record delivery date.

F.

G.

H.

5.

CLIENT OBLIGATIONS. Client shall be responsible for compliance with all laws and governmental regulations affecting its use of the Services and the Site, and Consultant shall not have any responsibility relating to Client therefore, including, without limitation, any responsibility to advise Client of such laws or regulations.

6.

TERM AND TERMINATION. A. Term. This Agreement shall commence on the Effective Date and terminate twelve (12) months thereafter, unless otherwise terminated or extended in accordance with the provisions of this Agreement (the initial term and any extension(s) thereof, the Term). This Agreement may be

589490.2

extended for one or more additional periods, as the parties may mutually agree in writing. B. Early Termination. Either party may terminate this Agreement or any applicable SOW at any time and for any reason by providing written notice of termination to the other party 30 days prior to the effective date of such termination, or may terminate this Agreement immediately without prior notice if the other party has materially breached this Agreement. In the event of termination, Client must pay Consultant all Fees associated with Services rendered as of the effective date of termination, including reimbursable expenses. In addition, Client acknowledges that the amount of any applicable recurring monthly Fee is based on Clients agreement to pay the fee for the entire Term, and thus, in the event Consultant terminates this Agreement due to Clients material breach of this Agreement, or if Client terminates this Agreement in a manner not expressly provided for in this Agreement, Client agrees that all monthly recurring Fees due hereunder for the remainder of the Term shall be due within 15 days following the effective date for such termination. Unless otherwise specified in this Agreement, Client will not receive any refund for payments already made by Client as of the date of termination, and Client may incur additional fees as provided herein. Effect of Termination. Upon termination for any reason, Client agrees that: (a) it will immediately cease using the terminated Services and the Site, if applicable; and (b) Consultant may take steps to change, remove or otherwise block Client access to the Site or any Services to which Client had access. Unless otherwise agreed upon, termination of any applicable SOW shall not constitute a termination of any other applicable SOW or of this Agreement. However, the termination of this Agreement shall terminate all SOWs otherwise then in effect.

C.

7.

OWNERSHIP AND USE OF THE MATERIALS, USER CONTENT. A. Creative Materials. The parties acknowledge and agree that an integral part of the Services is the development of the Site, which will include the development of certain information, content, text, graphics, photos, videos, domain names, software and other items, as well as their selection and arrangement (collectively, the Creative Materials). Such Creative Materials are protected by copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights, and except as otherwise provided herein, Consultant shall be considered the author of such Creative Materials and retains all right, title and interest in and to such Creative Materials. Clients rights to use the Creative Materials are limited to use solely in connection with this Agreement, the Project and the rights and obligations granted hereunder. Except as otherwise provided herein, any rights granted to Client to use the Creative Materials shall terminate upon termination of this Agreement. User Content. The parties acknowledge and agree that the user content generated on the Site is not owned by either Consultant or Client, but can be used by either party for promotional purposes or any other applicable

B.

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purpose during and after the Term, or as otherwise provided herein. Consultant acknowledges that the Client can and will retain, throughout the Term and thereafter, the right to use any user content and the Deliverables for any and all purposes related to the general business of the City Oakland, California, future city projects, and any and all promotional activities related to the Oakland MindMixer Site. Client will be provided with an electronic copy of all user content at the completion of the Term. 8. INDEMNITY; LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES A. Client agrees, at its own expense, to indemnify, defend and hold harmless Consultant, its shareholders, officers, directors, agents, employees, successors and assigns, against any and all losses, costs, liabilities, damages and/or expenses brought against Consultant by any third party to the extent based on or arising from the Project, the Services or the Site (Third Party Claims), excluding Third Party Claims caused by Consultants gross negligence, willful misconduct, or breach of this Agreement. Neither Client nor Consultant shall be liable under this Agreement, or any SOW, for any indirect, incidental, special, punitive or consequential damages from any cause of action, whether in contract, tort or otherwise. In no event will the total aggregate liability of Consultant for any claims, losses or damages arising out of this Agreement exceed the total amount of fees and other consideration actually received by Consultant under this Agreement, or any SOW. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of any other remedies. Consultant shall not be liable for any loss or damage caused by the failure of the Site to properly or timely operate. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE GREATEST EXTENT ALLOWED BY LAW, CONSULTANT HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE SITE, SERVICES, MARKETING MATERIALS, DELIVERABLES AND MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR USE OR PURPOSE. THE SITE AND ALL SERVICES, MATERIALS AND DELIVERABLES WILL BE PROVIDED TO CLIENT AS IS.

B.

C.

9. CONFIDENTIALITY. During the term of this Agreement, each party (the Disclosing Party) may provide the other (the Receiving Party) with certain confidential and proprietary information (Confidential Information). Confidential Information includes, but is not limited to, (a) the Deliverables, (b) all business, financial and technical trade secrets, (c) any written information which is marked Confidential, and (d) any information which is orally disclosed, identified as confidential at the time of disclosure and confirmed in writing as being confidential within 30 days thereafter. Confidential Information shall not include information that (a) is publicly known at the time of its disclosure; (b) is lawfully received by the Receiving Party

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from a third party not under an obligation of confidentiality to the Disclosing Party, or (c) is published or otherwise made known to the public by the Disclosing Party. The Receiving Party will refrain from using the Disclosing Partys Confidential Information except to the extent necessary to exercise its rights or perform its obligations under this Agreement. Except as required by law, the Receiving Party may not disclose the Disclosing Partys Confidential Information to any third party, other than its affiliates or representatives who have an absolute need to know such Confidential Information in order for the Receiving Party to perform its obligations and enjoy its rights under this Agreement, and only if such persons are informed of and are subject to the provisions of this Section 9. The Receiving Party remains liable for any unauthorized use or disclosure of the Confidential Information by any such representative or affiliate. 10. WEBSITE TERMS OF USE AND PRIVACY POLICY. Consultant shall include on the Site certain terms of use (Terms of Use) and privacy policies (the Privacy Policy) that govern the activities of Consultant and the users on the Site, including the use of users personal information. Client represents that it has read and is familiar with the Terms of Use and Private Policy and, to the extent applicable, shall govern itself in accordance therewith. 11. GOVERNING LAW. This Agreement is to be construed in accordance with and governed by the internal laws of the State of Nebraska without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Nebraska to the rights and duties of the parties. 12. ASSIGNMENT. Neither party may assign any of its rights or this Agreement or delegate any of its obligations to any party without the consent of the other, except that Consultant shall be permitted to assign or delegate in conjunction with a merger, consolidation, change in control or sale of substantially all of the assets to which the Agreement pertains. This Agreement is binding upon and enforceable by each partys permitted successors and assigns. 13. INDEPENDENT CONTRACTOR. Client and Consultant intend at all times to be independent contractors. Neither party is an employee, joint venturer, agent or partner of the other, nor is either party authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of the other. The employees, methods, facilities and equipment of each party shall at all times be under the exclusive direction and control of that party. 14. NOTICES. Any notice, consent or other communication required or permitted hereunder shall be in writing. It shall be deemed given when (a) sent by confirmed facsimile transmission or email, (b) sent by commercial overnight courier with written verification of receipt, or (c) sent by registered or certified mail, return receipt requested, postage prepaid, and the receipt is returned to the sender, in each case to the address, facsimile number, or e-mail address set forth on the signature page of this Agreement, or such other address, facsimile number, or e-mail address of a party that is provided by that party, to the other party, in compliance with the notice requirements of this Section. 15. WAIVER. All waivers to any terms and conditions of this Agreement (or any rights, powers or remedies under it) by either party must be in writing in order to be effective. No waiver granted with respect to one matter or incident will be construed to operate as a waiver with respect to any different or subsequent matter or incident.

589490.2

16. SEVERABILITY. If any provision of this Agreement is held to be unenforceable, then both Parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is unenforceable, and this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it enforceable while preserving its intent or, if that is not possible, by substituting another provision that is enforceable and achieves the same objective and economic result. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, INDEMNIFICATION OR EXCLUSION OF DAMAGES OR OTHER REMEDIES IS INTENDED TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY UNDER THIS AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES OR OTHER REMEDIES SHALL REMAIN IN EFFECT. 17. FURTHER ASSURANCES. Each party will, from time to time during and after the term of this Agreement, upon every reasonable request and at the cost of the other party, execute documents and do all further assurances and things for the purpose of giving full effect to the terms and conditions of this Agreement. 18. CONSTRUCTION. The words or and nor are inclusive and include and. Including means including without limitation and does not limit the preceding words or terms. The singular shall include the plural and vice versa. References to Sections, Subsections or Exhibits shall mean the Sections of this Agreement, Subsection of this Agreement or Exhibits attached to this Agreement, unless otherwise expressly indicated. The headings or titles preceding the text of the Sections or Subsections are inserted solely for convenience of reference, and shall not constitute a part of this Agreement, nor shall they affect the meaning, construction or effect of this Agreement. 19. FORCE MAJEURE. In the event of a force majeure condition, including but not limited to fires, acts of God, terrorist attacks, labor disputes, the party whose performance is restricted shall be excused from such performance and shall commence performance when such force majeure is removed. The foregoing shall not apply to any payment obligation of Client hereunder. 20. COUNTERPARTS. This Agreement may be executed in multiple counterparts and by facsimile, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. 21. COMPLIANCE WITH LAWS. Each party shall comply with all United States federal, state and local laws, statutes, rules and regulations applicable to this Agreement. 22. SURVIVAL. The provisions of this Agreement that by their nature extend beyond the expiration or earlier termination of the Agreement will survive and remain in effect until all obligations are satisfied. 23. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement, together with any Exhibits attached hereto or referenced herein, constitutes the entire agreement of the parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements, understandings or communications between the parties, whether written or oral. This Agreement may not be amended, modified, qualified or otherwise changed or altered except in writing executed by an authorized signatory of each party hereto.

589490.2

[Remainder of This Page Intentionally Left Blank and Signature Page Follows]

589490.2

IN WITNESS WHEREOF, CLIENT and CONSULTANT have executed this Agreement as of the Effective Date. City Oakland, California 1 Frank H. Ogawa Plaza Oakland, CA 94612 _____________________________________ Signature Date ____________________________________ Printed Name / Title

Socialmentum, LLC 1111 N. 13th Street, Suite 101 Omaha, NE 68102

_____________________________________ Signature Date ____________________________________ Printed Name / Title

589490.2

EXHIBIT A MINDMIXER SUBSCRIPTION #1264 FOR MINDMIXER SUBSCRIPTION AGREEMENT BETWEEN THE CITY OF OAKLAND, CALIFORNA AND SOCIALMENTUM, LLC DATED SEPTEMBER 20, 2012 1. Customer Information. Company Name: City of Oakland, California Contact Person: Nicole Neditch Address: 1 Frank H. Ogawa Plaza, Oakland, CA 94612 Phone: 510.238.2105 Fax: N/A Email: NNeditch@oaklandnet.com URL of the Site: TBD MINDMIXER UNIVERSITY TRAINING SESSION MindMixer staff will host a training session for up to 10 Client staff members via WebEx or alternative web conferencing system. The approximately 90 minute training session will cover the following items: A. B. C. D. E. 3. Online Community Engagement 101 Introduction to the MindMixer User Platform Introduction to the MindMixer Content Management System Introduction to the MindMixer Data Dashboard Site Marketing 101

2.

SUBSCRIPTION SUPPORT RELATED TO THE SITE A. Design and Launch the Site i) Client will have access to Site beginning on the date the Site is launched (the Launch Date). Consultant will use its commercially reasonable efforts to conduct the Launch Date no later than August 1, 2012. Consultant will provide a custom designed site.

ii) B.

Domain Name and Site Hosting i) Consultant will work with Client to identify Project Name, secure URL, and host Site for operation through the Term.

589490.2

Ex. A - 1

ii)

Site URL will be retained by Consultant until future use is decided on MindMixer projects, with an option for Client to retain ownership if both parties mutually agree.

C.

Live Site i) The Site shall include all aspects of the MindMixer Engagement Platform, including idea submission, idea evolvement, user voting, interactive budgeting, and expert / client feedback (two-way engagement). Consultant will provide Client access to the MindMixer Content Management Dashboard and the MindMixer Data Dashboard. Client is responsible for selecting and uploading Site topics and any asset associated with each topic (i.e. photos, maps, videos, etc.). Consultant may reject topics and topic assets at sole discretion if topics contain obscene material, offensive language, or defamatory remarks about an individual or entity. Client is solely responsible for the time and cost associated with topic asset production related to the Site (i.e., video introductions of topics, topic photos, map production, etc.). Site will remain live as a read-only site for up to three (3) months after termination/expiration of this Agreement.

ii)

iii)

iv)
D.

Subscription Support i) Consultant will provide up to four (4) hours each month of Site administration, maintenance and support, including Client and user support (collectively the Support Services) during the Term. Subscription support includes, but may not be limited to the following: Additional Client support on topic creation, topic uploading, or other site modification tasks General user support (password reset, site navigation issues, site utilization questions, etc.)

E.

Content Support i) Consultant will provide up to four (4) hours each month of Content Support Services, during the Term. Content Support includes, but may not be limited to the following: Content Support Specialist review and recommendations of all Client created topics Access to the Searchable Topic Database and Content Support Specialist recommendations for all topics across all MindMixer sites

589490.2

Ex. A - 2

F.

Context Support Features i) Consultant will provide the following Context Support features: SMS (mobile text) Integration Access to the Searchable Topic Database, Content Support Specialist recommendations, and topic activity levels for all topics across all MindMixer sites Access to the Context Analysis and Site Optimization resources in the Data Dashboard (community benchmarking, quarterly optimization reports)

ACCEPTED AND AGREED TO BY: CITY OF OAKLAND, C.A., CLIENT By:____________________________ Its:____________________________ Date:__________________________ SOCIALMENTUM, LLC., CONSULTANT By:____________________________ Its:____________________________ Date:__________________________

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Ex. A - 3

EXHIBIT B FEES The following is a summary of the Fees associated with the Subscription provided by Consultant hereunder. 1. Client shall be invoiced $15,000 upon the date on which the contract is signed.

2. All payments of the Fees must be made by cash or cash equivalent to Consultant at 1111 N. 13th Street, Suite 101, Omaha, NE 68102.

589490.2

Ex. B - 1