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HomeMy WebLinkAbout13-169 Resolution No. 13-169 RESOLUTION AUTHORIZING EXECUTION OF MASTER SUBSCRIPTION AGREEMENT WITH SAAS MAINT, LLC D/B/A ASSETOPTICS FOR MAINTENANCE MANAGEMENT SYSTEM SOFTWARE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Sean R. Stegall, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a master subscription agreement with Saas Maint, LLC d/b/a AssetOptics on behalf of the City of Elgin for maintenance management system software, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: September 25, 2013 Adopted: September 25, 2013 Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk i Asset�pUcs Master Subscription Agreement MASTER SUBSCRIPTION AGREEMENT THIS MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") IS HEREBY MADE AND ENTERED INTO THIS 26TH DAY OF SEPTEMBER, 2013, BY AND BETWEEN THE CITY OF ELGIN, AN ILLINOIS MUNICIPAL CORPORATION (HEREINAFTER REFERRED TO AS "YOU" OR "YOUR") AND SAAS MAINT, LLC, A GEORGIA LIMITED LIABILITY COMPANY, (HEREINAFTER REFERRED TO AS "WE", "US" OR "OUR") DOING BUSINESS AS "ASSETOPTICS". THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF ANY SERVICES, RIGHTS OR GOODS PROVIDED BY US. THE SERVICE IS HOSTED FOR SAAS MAINT, LLC BY SALESFORCE.COM. BY AGREEING TO THESE TERMS YOU ARE ACCEPTING THE SALESFORCE.COM FORCE.COM PLATFORM TERMS OF USE. THESE TERMS CAN BE FOUND IN FULL AT http://www.assetoptics.com/platfonntermsofuse. YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES. 1. DEFINITIONS "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. "OEM Services" means the online services provided by salesforce.com for incorporation into the SaaS Maint, LLC Purchased Services as outlined on a relevant service Order Form between you and SaaS Maint, LLC. "Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference. "Organization or Org" means a separate set of customer data and salesforce.com product customizations held by salesforce.com in a logically separated database (i.e., a database segregated through password-controlled access). "Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial. "Services" means the online, Web-based applications and platform provided by Us viahttp://\v\vw.assetoptics.com and/or other designated websites as described in the Purchased Services documentation, that are ordered by You as part of a free trial or under an Order Form, including associated offline components but excluding Third Party Applications. "Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third- party applications. "Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are 1 lJ i not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business. "We," "Us" or "Our" means the Assetoptics.com company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction). 'You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. "Your Data" means all electronic data or information submitted by You to the Purchased Services. 2. FREE TRIAL We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the last day of the trial period after Your acceptance of this Agreement or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY. Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase. 3. PURCHASED SERVICES 3.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. The Order Forms applicable to this Agreement are attached hereto and made a part hereof as Attachment A. The applicable project timeline and scope of work are attached hereto and made a part hereof as Attachment B. In the event of any conflict between the terms of Attachment B and either the Master Services Agreement or Attachment A, the terms of the Master Services Agreement shall control and the terms of Attachment A shall control. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. 3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre- existing subscriptions. User subscriptions are for designated Users and cannot be shared or 2 i used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. 4. USE OF THE SERVICES 4.1 Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations. 4.2. Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the Purchase Services documentation and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of, third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. You shall not develop applications for internal use with the OEM Services purchased from SaaS Maint, LLC. You can not extend the OEM Services using additional custom objects, and Your use of the OEM Services in connection with Your use of the Purchased Services is limited to the objects and functionalities included in the Purchased Services, and those functionalities of the salesforce.com Force.com platform strictly necessary for the operation of the Purchased Services. Subscriptions to the Purchased Services cannot be joined with an existing salesforce.com Org. Where such a combination is required, You must procure the necessary subscriptions directly from salesforce.com to support, operate and run the Purchased Services. Should You wish to upgrade its OEM Service subscriptions contained as part of the Purchased Services to full the salesforce.com Force.com Edition subscriptions, such upgrade subscriptions shall be made available directly by salesforce.com. 4.3. Platform Provider Responsibilities. You are contracting solely with SaaS Maint, LLC and You are not entering into a contractual relationship with salesforce.com. In the event that SaaS Maint, LLC ceases business and/or provision of the Purchased Services, salesforce.com is under no obligation to provide the Purchased Services, to refund any fees paid by You to SaaS Maint, LLC, or to assume the relationship with You. Salesforce.com has no liability for the Purchased Services or for its continued availability. 4.4. Usage Limitations. The maximum disk storage space provided to you at no additional charge is an aggregate of 20 MB for each user of the service for which you request a 3 salesforce.com platform license from SaaS Maint, LLC, with a minimum of one (1) gigabyte of disk storage space per Org. If you choose to add the Service to existing salesforce.com users, then the Service will share the data storage already provided by salesforce.com for that user. If your users of the Service a're additional users including a salesforce.com platform license, then each of these additional users will be allocated 20 MB of disk storage, which will be allocated into your aggregate pool. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. SaaS Maint, LLC will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by SaaS Maint, LLC to so notify you shall not affect your responsibility for such additional storage charges. SaaS Maint, LLC reserves the right to establish or modify its general practices and limits relating to storage of Data. Certain editions of the Service offer integration capabilities via an application programming interface, or "API". You are limited to the use of the API as follows: 1,000 calls/day/User (aggregated over all Users under the account), up to an aggregate maximum of 1,000,000 calls/day/account. 5. THIRD-PARTY PROVIDERS 5.1. Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as "certified" or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services. 5.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services. 5.3. Google Services. Service features that interoperate with Google services depend on the continuing availability of the Google API and program for use with the Services. If Google Inc. ceases to make the Google API or program available on reasonable terms for the Services, We may cease providing such Service features without entitling You to any refund, credit, or other compensation. 6. FEES AND PAYMENT FOR PURCHASED SERVICES 6.1. User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based aid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the, middle of a monthly period will be charged for that full month on 4 (9 services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees per period and the monthly periods remaining in the subscription term. 6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services. 6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those .specified in Section 6.2 (Invoicing and Payment). 6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. 6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute. 6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees. 7. PROPRIETARY RIGHTS 7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. 7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on 5 i Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services. 7.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. 7.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services. 7.5. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227- 7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government. agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. 8. CONFIDENTIALITY 8.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. 8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. 8.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose 6 9 i Your Data except as compelled by law in accordance with Section 7.5 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Purchased Services or prevent or address service or technical problems, or at Your request in connection with customer support matters. 8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so; e.g., pursuant to the requirements of the Illinois Freedom of Information Act. You shall notify us in the event any confidential information is provided. 9. WARRANTIES AND DISCLAIMERS 9.1. Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the Purchased Services documentation, and (ii) subject to Section 5.3 (Google Services), the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below. 9.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party). 9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 10. MUTUAL INDEMNIFICATION 10.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. 10.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney's fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense. 7 10.3. Exclusive_ Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this Section. 11. LIMITATION OF LIABILITY 11.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES). 11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. 12. TERM AND TERMINATION 12.1. Term of Agreement. This Agreement continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. 12.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 45 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 45 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time. 12.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 45 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. 12.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination. 19 8 i 12.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control. 12.6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement. 13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION 13.1. General. You are contracting solely with SaaS Maint, LLC and You are not entering into a contractual relationship with salesforce.com. In the event that SaaS Maint, LLC ceases business and/or provision of the Purchased Services, salesforce.com is under no obligation to provide the Purchased Services, to refund any fees paid by You to SaaS Maint, LLC, or to assume the relationship with You. Salesforce.com has no liability for the Purchased Services or for its continued availability. 13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You. Notices to SaaS Maint, LLC should be addressed to: Legal SaaS Maint, LLC 885 Woodstock Road, Suite 430-117 Roswell,Georgia 30075 13.3. Agreement to Governing Law and Jurisdiction. This agreement shall be subject to and governed by 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. 13.1. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. 14. GENERAL PROVISIONS 14.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. governmen 9 i list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction. 14.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. 14.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the 'remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 14.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. 14.6. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment) 14.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 14.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. 10 IN WITNESS WHEREOF, the parties hereto have caused this Mutual Non-Disclosure Agreement to be executed as of the Effective Date. SaaSMaint LLC dba AssetOptics City of Elgin By: Michael wards, Pr' cipal By: Sean R. Stegall City Ma ger Signature: Signature: Date: 20 Date: September 26, 2013 Address: 570 Crossville Rd Address: 150 Dexter Court Suite 204 Roswell, GA 30075 Elgin, Illinois 60120 Attest: By: Kimberly Dewis, City Clerk Signature: FALegal Dept\Agreement\AssetOptics-City of Elgin-Master Subscription Agreement-clean-9-19-13.docs 11 Asset DpVOCS Order Form SAAS MAINT, LLC dba AssetOptics ORDER FORM THIS MSA ADDENDUM AMENDS THE MASTER SUBSCRIPTIQN GREEM ENT ("AGREEMENT') BETWEEN YOU AND SAAS MAINT, LLC, dba AssetOptics DATED �`l1(� l3 TERM UNIT COST DESCRIPTION LENGTH QTY EXT AMT (MONTHS) PER MONTH AssetOptics Named User 12 10 65.00 $7,800.00 Total $7,800.00 AssetOptics Named Users includes OEM Salesforce Platform license. Payment Terms: Invoiced at Order Form execution and Due on Receipt. SaaSMaint LLC dba AssetOptics City of Elgin By: =Qec s, Prin ipal By: Sean R. Stegall, City Manager Signature: Signature: Q Date: 91201 L3 Date: September 26, 2013 Address: 570 Crossville Rd Address: 150 Dexter Court Suite 204 Roswell, GA 30075 Elgin, Illinois 60120 Attest: By: Kimberly Dewis, City Clerk Signature: Attachment A 1 AssetSp ocs Order Form SAAS MAINT, LLC dba AssetOptics ORDER FORM THIS MSA ADDENDUM AMENDS THE MASTER SUBSCRIPTIO A REEMENT ("AGREEMENT") BETWEEN YOU AND SAAS MAINT, LLC, dba AssetOptics DATED uo l3 TERM UNIT COST DESCRIPTION LENGTH QTY EXT AMT (MONTHS) PER MONTH Consulting Services (Days) 35 $1500 $52,500 Total $52,500 Consulting Services as outlined in Proposal Dated September 19, 2013. Payment Terms: Invoiced based in phased milestone completions. Due Net 30 Days. SaaSMaint LLC dba AssetOptics City of Elgin By: Michael d ds, Principa By: Sean R. Stegall, City Manager Signature: Signature: (1. Date: 3 Date: September 26, 2013 Address: 570 Crossville Rd Address: 150 Dexter Court Suite 204 Roswell, GA 30075 Elgin, Illinois 60120 Attest: By: Kimberly Dewis, City Clerk Signature: Attachment A 1 i o Ucz sse •� AssetOptics Solution Proposal for City of Elgin LGIN THE CITY IN THE SUBURBS- Submitted by: Mike Edwards, Principal mike.edwards @assetoptics.com 09/19/13 Attachment B i 09/10/13 Mr.Jeff Massey IT Director City of Elgin 150 Dexter Court Elgin, IL 60120 Dear Jeff, Thank you again for the opportunity to earn your business. In the following pages, you will find the project scope definition and the planned level of effort to implement AssetOptics for the City of Elgin Facilities Maintenance team. As per our discussion the scope of this effort is principally focused on the facilities maintenance team and does not include integration to the 311 call center case management process. This is to be accomplished within the scope of the BasicGov initiative. The project plan is estimated to be 7 weeks from kickoff to go-live. The total billable consulting effort is 35 days for a total amount of$52,500. The facilities team requires a total of 10 users for an annual subscription fee of$7,800. An additional order form is provided for the consulting services. The MSA, MSA Amendment, and Subscription Order Form were separately provided. Why choose AssetOptics? 1. We solve the business problem with a full CMMS solution. 2. Our solution is 100% native Force.com and fully integrated to Salesforce CRM. 3. You can leverage your existing Salesforce CRM skills to effectively manage total cost of ownership. 4. Proven success as demonstrated by our favorable AppExchange reviews. We look forward to your success as an AssetOptics customer. I am available to review this proposal at your convenience this week. Sincerely, U(J'a &(41—tir Michael Edwards, Founder& Principal Functional Scope of AssetOptics CMMS/EAM Deployment The scope of this engagement is to deploy AssetOptics; Facilities, Equipment and Fleet Maintenance for Salesforce for the City of Elgin Facilities Maintenance team. The facilities team is comprised of one manager, 2 admins and 5 technicians. 311 Case integration to Work Orders will be delivered in a follow up phase as will full integration to BasicGov for public works billable work orders. Security will be configured so as to provide future expansion to Public Works and Fleet while maintaining the integrity of separation of data (assets, work orders, pm's, parts). The functional scope as contemplated is outlined as follows. Asset Management: 1. Configure 7 ea Asset Tag recordtypes along with up to 5 custom fields per recordtype. Create 1 ea Page Layout for each recordtype. a. Building b. Floor c. Area d. Room e. Location (Functional Location) f. Equipment g. Component 2. Configure Asset Hierarchy 3. Configure up to 7 ea Workflow processes to update Asset Hierarchy display based on each Asset Tag recordtype. Work Management 1. Configure 3 ea Work Order recordtypes with up to 5 ea custom fields per recordtype. Create 4 Page Layouts. a. Facilities Work Request b. Model Work Order for PM Scheduling Process c. Facilities Work Order (1 for Techs, 1 for Mgr) 2. Configure Work Order Backlog Management process to quantity the total number of planned hours by Craft (Facilities Maintenance). 3. Configure MRO Inventory Materials planning to Work Orders. a. Plan unique stock item materials to a work order. b. Generate materials kitting reports for each material storeroom. 4. Configure Work Order Time Entry 5. Configure Work Order Cost Tracking a. Labor by Employee (based on time entry) b. Miscellaneous Work Order Charges c. MRO Inventory Issues 6. Optionally configure AssetOptics email to Work Request process. 7. Configure Email Notifications to Work Requesters (Work Order create, scheduled & assigned, completed) i Preventive Maintenance 1. Configure Preventive Maintenance Process to support the automatic release of PM Work Orders for calendar based PM's. a. Configure automatic PM release process b. Configure manual PM release override c. Configure for Fixed/Floating Calendar Intervals MRO Inventory Management 1. Configure Multi-Site MRO Inventory Management with Automatic Replenishment Processing Notifications 2. Configure MRO Inventory Master w/up to 10 user defined custom fields. 3. Setup a single MRO Storeroom for facilities 4. Configure Stock Item to support a single primary and multiple secondary bin locations. 5. Configure automatic purchase requisition creation and an associated approval process to support the replenishment of repair parts inventory management by storeroom. 6. AssetOptics to provide City of Elgin with an Excel template for MRO data conversion. City of Elgin to responsible to data export from MP2 or other legacy solution and for data quality. AssetOptics to normalize and upload data. Dashboards/Reports 1. Create City of Elgin specific dashboards and reports (PM's, Work Mgmt, & MRO Inventory Management) a. Manager Dashboard —components TBD b. Admin Dashboard —components TBD c. Tech Dashboard—principally focused on work assignments Security 1. Profiles- Establish up to 4 user profiles complete with Object and Field level security to meet City of Elgin business process requirements. a. AssetOptics Application/System Administrator b. Facilities Maintenance Manager c. Facilities Maintenance Admin d. Facilities Maintenance Technicians 2. Define & Configure Org Wide Object Defaults (mostly private) 3. Create 3 Roles and Role Hierarchy a. Facilities Mgr b. Facilities Admin c. Facilities Techs 4. Create Criteria and/or Owner Based Sharing Rules for Asset Tags, Work Orders and Parts to support future multi-department expansion. Data Migration 1. Facilitate/Support Data Migration Design (City to create CSV's) i a. Assets—from recent inventory audit process b. MRO Inventory—from MP2 9• c. MRO Suppliers—from MP2 2. AssetOptics to facilitate data mapping workshop and provide Excel documents into which the data is to be populated. City of Elgin is responsible to data preparation and cleaning. AssetOptics to normalize and upload data. 3. Existing Preventive Maintenance Scheduling or Work Order History Data Migration is NOT included (MP2 tasks and PM's can be separately assessed and quoted). AssetOptics Integrations No system integrations are included in this scope of effort. Mobile City will utilize tablet access via browser. Salesforce Mobile Classic or other offline replicated mobile technology is not in scope. Training 1. Provide onsite AssetOptics training for"project team" in conjunction with discovery& system design planning. 2. Provide web based (via Go To Meeting), or optionally onsite training sessions to support Go-Live a. 1 ea Facilities Maintenance Manager& 2 ea Admins b. 5 ea Facilities Maintenance Techs AssetOptics Package Installation 1. Provision Force.com Platform Licenses to Production. 2. Install AssetOptics managed package to Production. 3. Refresh CCH Sandbox to capture new licenses and managed package. 4. Configure Sandbox to Production Deployment Connections 5. Build Change Sets in Sandbox. Migrate Configuration to Production. Configure Non-Change Set Enabled Components Directly in Production. Payment Terms: Subscription Fees—Net 30 Days from Order Form Acceptance. Consulting Fees billed weekly as incurred and due Net 30 Days. Any material changes to project scope will be reflected in an appropriate change order. This proposal is valid thru Oct 10, 2013. Days Rate Ext Amt AssetOptics Consulting Fees 35 $1,500.00 $52,500.00 Estimated Travel $6,000.00 Total AssetOptics Fees $58,500.00 Project Timeline & Level of Effort Asset Optics Project Timeline Billable Days Week 1 Week 2 Week 3 Week 4 Week 5 Week 6 Week 7 Project Team Overview Training 1 Planning&Design(onsite) 4 Prototype Configuration(Sandbox) 10 Prototype Testing&Refinement(Sandbox) 5 UAT&System Documentation(Sandbox) 5 Production Conversion&Data Migration 5 Go Live Planning 1 End User Training 3 Go-Live 1 1 Total Billable Effort(Days)1 35 The Project Timeline is estimated to be 7 weeks. The initial billable event will be onsite project team training and configuration planning. Prototype configuration, initial prototype testing and prototype refinement and user acceptance testing will all take place offsite utilizing Go To Meeting as the collaboration tool. Process documentation, production conversion (move configuration from Sandbox to Production via Change Sets) and production data loading will be performed offsite. End user training and go-live support will be performed onsite during Week 7. The total billable effort is planned for 35 days at a billable rate of$1500/day for a total of$52,500. This is a FIRM FIXED PRICE proposal. Invoicing will occur based on the transition of the milestone objectives. There are two onsite visits planned (Project Team Training/Planning& Design and End User Training/Go-Live Support with 2 ea resources per visit (Mike Edwards—certified Salesforce Developer& Pam Capone—certified Salesforce Administrator). T&E estimated at $6,000 to be billed at actual costs incurred; provided, however, that in no event shall such T&E costs exceed $7,000 without the prior written agreement of the parties hereto. F:\Legal I)ept\Agrecmcnt\AssetOptics-City of Elgin-Masicr Subscription Agreemem-Attachment 13-clean-9-19-11docx