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HomeMy WebLinkAbout16-140 Resolution No. 16-140 RESOLUTION AUTHORIZING EXECUTION OF SERVICE ORDERS AND BOX SERVICE AGREEMENTS WITH BOX, INC. FOR CLOUD-BASED DATA STORAGE AND DOCUMENT MANAGEMENT PLATFORM AND FOR CONSULTING SERVICES 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, be and is hereby authorized and directed to execute service order and Box Service Agreement on behalf of the City of Elgin with Box, Inc. for cloud-based data storage and document management platform, a copy of which is attached hereto and made a part hereof by reference. BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, be and is hereby authorized and directed to execute service order and Box Service Agreement on behalf of the City of Elgin with Box, Inc. for consulting services, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: December 7, 2016 Adopted: December 7, 2016 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk Box,Inc. bO X900 Jefferson Ave Redwood City,CA 94063 Executed Order must be received by: January 6,2017 Service Order This Box Service Order Corder")is entered into by and between Box,Inc.("Box")and City of Elgin("Customer")as of the Service Start Date and is governed by the Box Service Agreement("Agreement")as attached to this Order. Order Details City of Elgin Billing Tarms 150 Dexter CT Service Start Datel: January 1,2017 Elgin Service Renewal Date: January 1,2018 IL Payment Frequency: Annual 60120-5555 Payment Method: Check United States Payment Terms: Net 30 Bill To:2 Sold To: Name: Jeff Massey Name: Jeff Massey Email: masseyjOcityofelgin.org Email: masseyjOcityofelgin.org Phone: (847)931-5642 Phone: (847)931-5642 Products Product Type Charge Unit Price Quantity Recurring Amount Per Total Order Price Type Payment Frequency Premier Services Recurring $13,035.67 1 $13,035.67 $13,035.67 Box Enterprise with Recurring $351.84 247 $86,904.48 $86,904.48 Governance Total One Time Charges: $0.00 USD Total Recurring Amount Per Payment Frequency $99,940.15 USD Total Order Amount: $99,940.15 USD Additional Terms Signature IN WITNESS WHEREOF,Customer has authorized this Order as of the Date of signature below. Customer City of Elgin Signature: Name(Print): Richard G. Kozal Title: City Manager Date: December 7, 2016 Agreement can be found attached. 'U this order Is executed by Customer or received by Box alter the Service Start Date above,Box may adjust that date,without Increasing the Total Pike,based on the date Box proovbnc the Products listed. ' Please note:All nature Invokes and bwrrg inquiries w11 be angled to Brit contact Q084054-A Box,Inc. box 900 Jefferson Ave Redwood City,CA 94063 Executed Order must be received by January 6,2017 Service Order Ihdes aOwrwise met forth N lids Order,upon prior written noon to Customer or upon renewal of the Subscription Period,Box reserves the right to charge Customer for Account licenses deployed above the total number("such Account Licenses set forth In the applicable Order(s). [Noes Premier Support Is purchased under this order,SLC credits an not provided.Prices shown above do not Include any loxes that may apply.Any such taus an the respon*b*y of dur Customer.This is an Order not an Invoke.Nobs MpndMY anftltng w the contrary n the untlslp op agreement between the parties,arty berms and conditions Many embus enter a saner documents Issued by Customer shad be nue and volt. Q084054-A BOX SERVICE AGREEMENT This Box Service Agreement contains the terms and conditions that govern the access and use of the Box Service (as defined below) and is entered into by and between Box, Inc., a Delaware corporation (hereinafter referred to as "Box") and the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City"). Box and the City are sometimes referred to herein individually as a "Party"and together as the "Parties." For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: Section 1. Definitions When used in this Agreement with initial letters capitalized, in addition to terms defined elsewhere in this Agreement,the following terms have the following meaning: "Account(s)" means the number of User account(s) specified in the applicable Order and created by a User for itself or on behalf of the City(including accounts created by or for its Administrators,Managed Users,or External Users)within the Box Service. "Administrator(s)" means a person designated by the City to have an Account with the authority to utilize the Administrative Console to create and manage Accounts associated with the City. "Administrative Console" means the functionality for managing User access, security and other administrative functionality for Accounts associated with the Box Service provided to the City. "Agreement" means this Box Service Agreement together with all Orders, attachments and exhibits. "Bandwidth Limit" means 1 terabyte(1TB)transferred per User per month. "Box Service" means the cloud-based content collaboration platform provided by Box. "Box Software" means software that allows a User to use certain functionality in connection with features of the Box Service that is provided by Box either for installation on the City's or a User's device or that is otherwise accessed by Users from the City's or User's software, hardware or other devices. "Content" means electronic files, materials, data, text, audio, video, images or other content transmitted, stored, retrieved or processed by the City and Users using the Box Service. "Customer Domain" means all City web addresses registered, owned or controlled by the City and used by one or more Users to register an Account. "External User(s)" means a person who is permitted to access,store, retrieve or manage Content with a Managed User of the City, and is not in a Customer Domain. "Malware" means any software program or code intended to destroy,interfere with,corrupt,or cause undesired effects on program files,data or other information,executable code or application software macros. "Managed User(s)" means a person who is permitted to access, store, retrieve or manage Content, and is associated with a Customer Domain. "Order" means a Box order or other ordering document agreed to in writing by the Parties under this Agreement, or by the City and a Box authorized reseller, which is accepted and provisioned by Box as set forth in Section 2.2, and as a result of such acceptance is incorporated into this Agreement. "Privacy Policy" means the then-current Box privacy policy found at https://www.box.com/static/html/privacv.html which identifies how Box collects, uses and discloses, on a limited basis, information of Users,expressly excluding Content. "Service Level Commitments"means the service level commitments set forth in Exhibit A that the City subscribed to and paid for as specified in the applicable Order. "Subscription Period"means the time commencing on the Order Effective Date and continuing for the period specified in the applicable Order. "Support Services" has the meaning set forth in Exhibit A. "Term"has the meaning set forth in Section 11.1. "User(s)" means,collectively, any person who is permitted by the City,an Administrator or a Managed User to access, store, retrieve or manage Content in any Account, including any Administrator, Managed User or External User. "User Guide" means Box's then current published written or electronic documentation specifying the functionality of the Box Service that is made generally available by Box to its customers or its users. Section 2. Access and Use of the Box Service 2.1 Access Grant. Subject to the terms and conditions of this Agreement and the purchase of an Account for each User, Box hereby grants the City the non-exclusive right during the applicable Subscription Period to access the Box Service to: (a) allow Users designated as Administrator(s) to access and use the Administrative Console to create and administer Accounts registered to the City; and(b) except to the extent otherwise set forth in the applicable Order,allow Users to store, retrieve, collaborate and share Content through the Box Service in accordance with the User Guide. 2 2.2 Orders; Delivery. The City may from time to time place Orders for the Box Service. The City is required to purchase an Account for each User in accordance with the applicable Box Service plan specified in the applicable Order.Orders will be deemed accepted by Box upon the earlier of when the requested access to the Box Service has been provisioned by Box or when Box otherwise informs the City of Box's acceptance of such Order,whichever is earlier("Order Effective Date"). Unless otherwise specified in an Order or previously provided to the City, Box will deliver to the City, within five (5) business days after the Order Effective Date, a copy of the passwords and usernames for the Administrator(s)to manage the City's use of the Box Service under this Agreement. 2.3 Service Plan Upgrade Option. During the Term, Box may from time to time provide the City with the right to obtain the next level of the Box Service plan(e.g.,from Box Business to Box Enterprise) or features and functionality available subject to a separate fee(each a"Box Service Plan Upgrade")at pricing and terms to be mutually agreed upon in writing by the Parties. Fees for such Box Service Plan Upgrade will be invoiced to the City,prorated on an annual basis to be coterminous with the applicable Order. 2.4 Restrictions on Use of the Box Service. The City's use of the Box Service is subject to the Bandwidth Limit as well as the features and functionality of the Box Service plan level specified in the applicable Order. Without limiting any other remedies under this Agreement, if the City exceeds the Bandwidth Limit or Box Service plan level,reasonable restrictions will be placed on the City's Account(s) until any such excess usage is adequately mitigated or eliminated by the City. The City agrees that it is solely responsible for the nature and content of all materials,works,data,statements,and other visual, graphical,video,written or audible communications of any nature submitted by any User or otherwise used through its Account. The City agrees not to use or permit the use of the Box Service: (a) to communicate any message or material that is defamatory,harassing,libelous,threatening,or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful; (c) in any manner that is likely to damage, disable, overburden, or impair the Box Service or interfere in any way with the use or enjoyment of the Box Service by others; (d)to introduce any Malware or other malicious activity in the City's or a User's use of the Box Service; or (e) in violation of any U.S. denied party-list, embargoed country restriction, export law or regulation. 2.5 Suspension of Service. Box may at any time suspend any User's use of the Box Service and/or remove or disable any Content as to which Box reasonably and in good faith believes is in violation of this Agreement. Box agrees to provide the City with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order or prevent imminent harm to the Box Service or any third party, in which case Box will notify the City to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable thereafter. Section 3.Non-Box Applications and Services. Box may make available to the City and/or User certain third-party applications, services or products, which are licensed by their provider to the City and/or User,for use in connection with the Box Service ("Third-party Products"). Box makes no warranties of any kind and assumes no liability whatsoever for the City's or User's use of such Third-party Products. 3 Section 4. Content Security;Data Privacy 4.1 Security. Box will implement commercially reasonable administrative, physical, and technical measures, including disaster recovery procedures, designed to secure the Content against accidental or unlawful loss, access or disclosure. Box will maintain, at a minimum, a SOC-1 Type II report compliance audit documentation, or its equivalent, during the Term and will provide a copy to the City once per year during the Term upon prior written request. 4.2 Content Storage Location. The Box Service is provided from the United States and Content is stored in the United States. Box reserves the right to provide the Box Service from outside the United States and to store Content outside the United States. Box will use commercially reasonable efforts to provide the City with at least 30 days' notice of any such changes in the Content storage location. Notwithstanding the foregoing, the City understands that nothing herein prohibits: (a) a User from accessing the Box Service, including Content, outside of the United States (subject to applicable law); and (b) processing of other information outside of the United States.The Privacy Policy identifies how Box collects, uses and discloses, on a limited basis, information of Users other than Content. 4.3 EU Data Protection and Onward Transfer. The Privacy Policy identifies how Box collects, uses and discloses,on a limited basis,information of Users other than Content. In providing the Box Service, Box will comply with the applicable data protection laws and regulations for onward transfer of "personal data" (as described in the EU Data Protection Directive 95/46/EC)to the United States. Box will only process personal data as directed by Customer or a User (including as enabled through the Box Service) or as described or contemplated by this Agreement. If applicable, the Parties will enter into the Box Data Processing Addendum, which will apply to the processing of personal data. Section 5. City Responsibilities 5.1 Establishment of Accounts. The City will comply with the procedures set forth below in establishing and maintaining Accounts. The City will promptly appoint an Administrator for the Administrative Console and such Administrator shall be responsible for configuring the settings of the Box Service. Box will initially provide the necessary passwords or other unique identifiers to the Administrator to access the Administrative Console. As between the Administrator and Box, the Administrator will be solely responsible for the assignment and management of Accounts. 5.2 Content. The City will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b)ensure that the Content complies with this Agreement and all applicable laws and regulations; (c) promptly handle and resolve any notices and claims relating to the Content(e.g. take- down notices pursuant to the Digital Millennium Copyright Act); and (d) maintain appropriate security and protection of the City's and User's devices accessing the Box Service. Box has no liability to the City or any third party for any reason as a result of: (i) any unauthorized disclosure or access to the City's or User's Account or Content as a result of the City's or a User's misuse of the Box Service or loss or theft of any User password or username, except to the extent resulting from Box's negligence or 4 willful misconduct; or (ii) any deletion, destruction, damage or loss of Content caused by or at the direction of the City or a User. 5.3 Notification of Unauthorized Use. The City will promptly notify Box in writing of any unauthorized use of any Account,Content or the Box Service that comes to the City's attention. In the event of any such unauthorized use by any third party that obtained access to the Box Service directly or indirectly through the City or through any User, the City will take all steps within the City's control as reasonably necessary to terminate such unauthorized use and will provide Box with such cooperation and assistance related to any such unauthorized use as Box may reasonably request. Section 6. Support and Service Level Commitments. 6.1 Support Services. Subject to payment of the corresponding fees, Box will provide the support services ("Support Services") specified in the applicable Order and as further described in Exhibit A (Service Level Commitments and Support Services). 6.2 Service Level Commitments. The Service Level Commitments for the Box Service are as specified on Exhibit A, subject to the level subscribed to and paid for by the City under the applicable Order. The sole and exclusive remedy for any breach of any Service Level Commitment is set forth in Exhibit A; provided that if Box is in material breach of this Agreement the City may terminate this Agreement subject to the notice and cure provisions of Section 11.3 (Termination for Cause) in which case the City will be entitled to a pro-rated refund of the fees unused pre-paid to Box for the remainder of the corresponding Subscription Period. 7. Warranty and Disclaimer 7.1 Box Service Warranty. Box warrants that while the corresponding paid-for Subscription Period is in effect,the Box Service will perform substantially in accordance with the functions specified in the User Guide when under use by Users in a manner that conforms to the terms and conditions of this Agreement and the User Guide. Subject to the notice and cure provisions of Section 11.3(Termination for Cause), the City's sole and exclusive remedy and Box's entire liability for a breach of this warranty shall be for Box to use commercially reasonable efforts to modify the Service to substantially achieve in all respects the functionality described in the User Guide and if Box is unable to restore such functionality,the City shall be entitled to terminate the applicable Order and receive a pro-rated refund of the fees pre-paid to Box for the corresponding unused portion of the Subscription Period. The warranties set forth herein are made to and for the benefit of the City only. 7.2 Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party's execution, delivery or performance of this Agreement; and (c)the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound. 5 7.3 City Warranties. The City represents and warrants to Box that: (a)the City or its licensors own all right, title and interest in and to the Content as necessary in order to grant the rights to Box contemplated by this Agreement; (b) the Content does not violate privacy or publicity rights; and (c) the Content is not unlawful or otherwise does not give rise to civil or criminal liability. 7.4 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS SECTION 7,TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY (AND EACH PARTY SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE BOX SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT,AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH AN EVENT, THE ABOVE EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW. Section 8. Proprietary Rights 8.1 Content Ownership by City. As between the City and Box,the City or its licensors own all right, title and interest in and to the Content.The City hereby grants Box the right to transmit, process, use and disclose the Content solely to provide the Box Service to the City or any User or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which Box believes in good faith requires Box to disclose information to assist in preventing the death or serious bodily injury of any person. 8.2 Ownership of Box Service by Box. As between Box and the City, Box or its licensors own and reserve all right,title and interest in and to,including any improvements or derivatives,the Box Service, the Box marks and other items used to provide the Box Service, other than the access rights explicitly granted to the City in Section 2.1. No title to or ownership of any proprietary rights related to the Box Service is transferred to the City or any User pursuant to this Agreement.All rights not explicitly granted to the City are reserved by Box. Box reserves the right, in its sole discretion,to change or require the City to change its Box Service user ID and any custom or vanity URLs, custom links, or vanity domains the City may obtain through the Box Service. In the event that the City makes suggestions regarding any features, functionality or performance that Box adopts for any of its products including the Box Service (expressly excluding the City Confidential Information), such features, functionality and performance shall be deemed to be automatically assigned under this Agreement to Box, and shall become the sole and exclusive property of Box. Section 9. Training or Professional Services 9.1 General Terms. The City may wish to receive certain professional, educational, operational or technical services (collectively, "PS") as described in a mutually agreed upon Statement of Work ("SOW") accompanying the applicable Order. Box and the City may, from time to time, execute 6 additional SOWs that specify the PS to be provided to the City. Each SOW will include, at a minimum: (a) a description of the PS and any work product or other tangible and/or training materials to be developed and/or provided to the City(each,a"Deliverable");(b)the scope of PS;and(c)the applicable fees and payment terms for such PS unless specified in the corresponding Order. To the extent payment terms are not specified in the SOW, the payment terms in this Agreement shall apply. An initial SOW is attached hereto and made a part hereof as Attachment A. 9.2 Deliverables,Ownership. (a) Deliverables. Unless otherwise set forth in the applicable SOW, Box shall own all rights, title and interest in and to the Deliverables(excluding any City Property,defined below),and related intellectual property rights. Subject to terms and conditions of the Agreement, and during the Term, Box hereby provides the City with a limited, non-exclusive, non-transferable and terminable license to use the Deliverables solely for the City's internal operations in connection with its authorized use of the Box Service. (b) Box Tools. Nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise ("Box Tools") used by Box to develop the Deliverables, and to the extent such Box Tools are delivered with or as part of the Deliverables,they are licensed, not assigned,to the City, on the same terms as the Deliverables. (c) City Property. The City shall own all rights, title and interest in and to any City Property. "City Property" means any technology, City-specific business processes, or deliverables, specifically as such materials are designated as City-owned property in a SOW. Box shall have the right to use any such City Property solely for the purpose of providing the PS to the City hereunder and as set forth in the applicable SOW. 9.3 PS Warranty. In regards to PS only, Box warrants that: (a) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform PS has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the PS in accordance with this SOW; and (b) the PS will be performed for and delivered to the City in a professional and workmanlike manner in accordance with the laws and governmental regulations applicable to the performance of such PS. The City acknowledges that Box's ability to successfully perform the PS is dependent upon the City's provision of timely information, access to resources, and participation. If through no fault or delay of the City the PS do not conform to the foregoing warranty, and the City notifies Box within seven(7)days of Box's delivery of the PS, Box will re-perform the non- conforming portions of the PS at no cost to the City. Section 10. Fees and Payment 10.1 Fees. The City agrees to pay all fees set forth on all Orders under this Agreement. In the event that the Parties mutually agree in writing to any extension of a Subscription Period or the provisioning of a Box Service Plan Upgrade,the City will pay Box the then-current list price for such extension or Box Service Plan Upgrade, unless otherwise set forth in the applicable Order. Subject to any credits or refunds applicable to any Service Level Commitments hereunder, if any, or as otherwise set forth in 7 this Agreement,all Fees are nonrefundable. Unless otherwise specified in an Order,all fees and other amounts are payable in United States Dollars. 10.2 Invoicing and Payment Terms. Unless otherwise specified in the applicable Order,the City will pay all fees within thirty(30) days of the date of the applicable invoice issued by Box. In the event the City disputes any invoiced Fees, the City will provide written notice of the disputed amount within fifteen (15) days after receiving such invoice and timely pay any undisputed portion of such invoice. The Parties will cooperate in good faith to resolve any disputed invoice or portion thereof within fifteen (15) days of notice of dispute. All amounts payable by the City under this Agreement will be made without setoff and without any deduction or withholding. Customer will promptly reimburse Box for any cost or expense incurred in connection with any collection efforts undertaken by Box in connection with any past due amount owed under this Agreement. Any past due undisputed amounts may accrue a late fee equal to the lesser of 0.5% per month or the maximum amount allowed by applicable law pertaining to collection of interest on past due undisputed fees, including, but not limited to, pursuant 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.). 10.3 Taxes. Fees are exclusive of Taxes and,the City will promptly pay or reimburse Box for all Taxes arising out of this Agreement. For purposes of this Agreement,"Taxes"means any sales,use and other taxes (other than taxes on Box's income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement that are imposed by any government or other authority. The City hereby confirms that Box can rely on the ship-to name and address set forth in the Order(s)the City places directly with Box as being the place of supply for sales tax purposes. Box acknowledges that the City has provided a sufficient tax exemption certificate indicating the City's tax exempt status. Pursuant thereto, Box shall apply the benefits associated with such tax exempt status the charges incurred under the City's account. 10.5 Purchases Through Authorized Box Resellers. The terms of this Agreement related to pricing, payment and taxes do not apply to any City Orders placed through an authorized Box reseller ("Box Reseller") where the City pays the applicable fees directly to such Box Reseller. The City will establish such terms independently with the Box Reseller. Section 11. Term and Termination 11.1 Term of Agreement and Term of Order. This Agreement will remain in effect for as long as there is an Order in effect("Term"),unless otherwise terminated as provided for in Section 11.3 herein below. Each Order placed under this Agreement will be in effect for a period of one (1) year from the Order Effective Date unless otherwise agreed in writing by the Parties. 11.2 Order Renewal. Unless the Agreement is terminated as provided for herein, Order(s) under this Agreement will automatically renew for a period of one (1) year from the expiration of the prior order subject to payment of the corresponding fees,with either Party having the ability to provide the other Party with its intent not to renew the applicable Order(s) with at least thirty (30) days written notice prior to the end of the then-current Subscription Period of such Order(s). Any such notice of 8 intent not to renew shall terminate the affected Subscription Period effective the date of the end period of the affected Subscription Period without penalty. 11.3 Termination for Cause. Either Party may terminate this Agreement for cause: (a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured after the expiration of such period; or(b) if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding.Any failure by the City to timely pay fees owing hereunder or to comply with Sections 2 or 5 will constitute a material breach of this Agreement; provided, however that failure of the City to pay such fees based on a good faith dispute or litigation shall not constitute a material breach of this Agreement during the period of time that such dispute or litigation is pending. 11.4 Post-Termination Obligations. Upon the termination or expiration of this Agreement for any reason the City will have no further rights to the Box Service hereunder except as set forth in this Section 11.4. For thirty(30)days following the expiration or the termination of the Agreement and/or applicable Subscription Period,and subject to the City's prior written request, Box will grant the City's Administrator limited access to the Box Service solely for purposes of the City's retrieval of the Content. After such thirty(30)day period, the City will have no further rights to access the Box Service and Box will have no obligation to maintain the Content. 11.5 Surviving Provisions. Upon any expiration or termination of this Agreement, the following sections will survive: Sections 1,2.4, 5.3, 7.4, 8, 10, 11.4, 11.5, 12, 13, 14 and 15. Section 12. Indemnification 12.1 Indemnification by Box. Box will defend the City against any third party claim that the Box Service infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret("Claim Against City"),and will indemnify the City for the resulting costs and damages finally awarded against the City to such third party by a court of competent jurisdiction or agreed to in settlement.To the extent permitted by law, Box will have no liability to the City under this Section 12.1 for any Claim Against the City that arises out of: (a) any unauthorized use, reproduction, or distribution of the Box Service by the City; (b) use of the Box Service in combination with any other software or equipment not supported in the User Guide; or (c) any modification or alteration of the Box Service by anyone other than Box or Box's agents without the written approval of Box. In the event of a Claim Against the City pursuant to this Section 12.1, Box may(at Box's option and expense): (i) obtain for the City the right to continue using the Box Service; (ii) modify the Box Service to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by Box in its sole discretion), terminate this Agreement and refund the City on a pro-rated basis any Fees pre-paid to Box for the corresponding unused period of the applicable Subscription Period. 12.2 Indemnification by City. The City will defend Box against any third party claim: (a) that any Content, or the City's use of the Box Service in breach of this Agreement, infringes a registered patent, registered trademark, or copyright, or misappropriates a trade secret (to the extent that such 9 infringement or misappropriation is not the result of Box's actions); or(b) relating to any Content or to the City's use of the Box Service in violation of Section 2.4(Restrictions on the Use of the Box Service). The City will, with respect to any claim against Box that is subject to this Section 12.2, indemnify Box for the resulting costs and damages finally awarded against Box to such third party by a court of competent jurisdiction or agreed to in settlement. 12.3 Indemnification Process.As a condition of receiving an indemnification under this Agreement, the Party seeking indemnification hereunder(the"Indemnified Party")will provide the other Party(the "Indemnifying Party") with (a) prompt written notice of the claim; (b) complete control over the defense and settlement of the claim (provided, that the Indemnifying Party will not settle any claim without the Indemnified Party's prior written permission if the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim, such permission not to be unreasonably withheld,delayed or conditioned);and(c)such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party's expense, as the Indemnifying Party may reasonably request. 12.4 Exclusive Remedy. This Section 12 states the Indemnified Party's sole and exclusive remedy against, and the Indemnifying Party's sole liability to, the other party for any type of claim under this Section 12. Notwithstanding the foregoing,each Party will have the right to terminate this Agreement pursuant to Section 11.3, to the extent the event giving rise to indemnification constitutes a material breach of this Agreement. Section 13. Limitation of Liability 13.1 Limitation of Liability. IN NO EVENT WILL BOX'S OR ANY OF ITS AFFILIATES' TOTAL AND CUMULATIVE LIABILITY, OR THAT OF ITS DISTRIBUTORS AND RESELLERS, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY THE CITY TO BOX FOR THE SPECIFIC USE OF THE BOX SERVICE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT.THE FOREGOING LIMITATION DOES NOT LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE. Disclaimer of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,IN NO EVENT WILL EITHER PARTY OR THEIR DISTRIBUTORS AND RESELLERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, LOSS OF PROFITS OR REVENUE, OR CONSEQUENTIAL DAMAGES(INCLUDING,WITHOUT LIMITATION,LOSS OF GOODWILL OR LOSS OF USE OR DATA) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT,TORT,WARRANTY, NEGLIGENCE OR OTHERWISE,EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. Section 14. Confidentiality 10 14.1 Definition. Either Party may disclose Confidential Information to the other Party during the Term of this Agreement. "Confidential Information" means all information disclosed by one Party ("Disclosing Party") to the other Party ("Receiving Party") which is in tangible form and labeled "confidential"or the like,or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. The following information will be considered Confidential Information: (a) the Box Service; (b) Content; and (c) the Disclosing Party's strategic roadmaps, product plans, product designs and architecture, technology and technical information, security processes, security audit reviews, business and marketing plans, and business processes. Confidential Information, other than Content, will not include information that as shown by the Receiving Party's records was: (i) already known to Receiving Party at the time of disclosure by the Disclosing Party;(ii)was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions;(iii) is,or through no fault of the Receiving Party has become, generally available to the public; or(iv)was independently developed by Receiving Party without use of the Disclosing Party's Confidential Information. 14.2 Protection.The Receiving Party will use no less than a reasonable standard of care to safeguard the Confidential Information received from the Disclosing Party. The Receiving Party will only use the Confidential Information of the Disclosing Party: (a) to exercise its rights and perform its obligations under this Agreement; or(b) as otherwise required by law. 14.3 Permitted Disclosure. Neither Party will disclose Confidential Information in violation of the terms and conditions of this Agreement to any third party without the prior written consent of the other Party. Notwithstanding the foregoing, each Party may disclose Confidential Information, including the terms and conditions of this Agreement, without the prior written consent of the other Party: (a) as compelled or required by law, including but not limited to the Illinois Freedom of Information Act (5 ILCS 140/1 et seq.) ; (b) in confidence, to legal counsel, accountants, banks, and financing sources and their advisors;(c) in connection with the enforcement of this Agreement or rights under this Agreement; (d)the terms and conditions of this Agreement in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction; or (e) or to respond to an emergency which Box believes in the good faith requires Box to disclose information to assist in preventing the death or serious bodily injury of any person. Section 15. Miscellaneous 15.1 Contractual Relationship. The Parties are entering into this Agreement as independent contracting parties. Neither Party will have, or hold itself out as having,any right or authority to incur any obligation on behalf of the other Party. This Agreement will not be construed to create an association, joint venture or partnership between the Parties or to impose any partnership liability upon any Party. 15.2 Anti-Corruption.The City agrees that it has not received or been offered any illegal or improper bribe,kickback,payment,gift,or thing of value from any of Box's employees,agents or subcontractors in connection with this Agreement. The City will use reasonable efforts to promptly notify Box at legalops @box.com should the City learn of any violation of this restriction. 11 15.3 Press Release; References. Box may reference the City as a Box customer or a user of the Box Service in sales and marketing materials including press releases.Any City logo or trademark usage will be in accordance with the City's trademark and logo usage guidelines as provided to Box. 15.4 Notices. Any notice or other communication under this Agreement given by any Party to any other Party will be in writing and will be effective upon delivery as follows: (a) if to the City, (i) when delivered via registered or certified mail,return receipt requested,to the address specified in an Order; or (ii)when sent via email to the email address specified in an Order or otherwise on record for the City; and (b) if to Box, when sent via email to legalopst box.com, with a duplicate copy sent via registered or certified mail, return receipt requested, to the appropriate Box address listed here: Attention LegalOps, Box, Inc., 900 Jefferson Ave., Redwood City, California 94063, United States of America. Any such notice, in either case,must specifically reference that it is a notice given under this Agreement. 15.5 Nonwaiver. The failure of either Party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect. 15.6 Assignment. The City will not, directly, indirectly, by operation of law or otherwise, assign all or any part of this Agreement or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of Box. Box may assign this Agreement(or Order)without obtaining the City's consent: (a) to an affiliate of Box; or (b) in connection with a successor in interest in a merger, reorganization or a sale of all or substantially all of the assets of Box. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns. 15.7 Integration;Order of Precedence. This Agreement,together with any Orders and the Exhibits which are incorporated and included into this Agreement, constitutes the entire agreement between the Parties and supersedes any and all prior agreements or communications between the Parties with regard to the subject matter hereof. In the event of a conflict between terms of this Agreement and an Order,the terms of the Order shall prevail. This Agreement may not be amended or modified except by a writing signed by both Parties hereto. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation or other document issued by the City. 15.8 Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the Parties.The Parties will promptly replace such void or unenforceable provision with a valid and enforceable provision that will achieve, to the extent possible,the economic, business and other purposes of such void or unenforceable provision. 12 15.9 Applicable Law; Dispute Resolution. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of Illinois,without reference to its choice of law rules. 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. 15.10 Third-Party Beneficiaries. Nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement. 15.11 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) ("Force Majeure") the affected Party's performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party (a) provides the other Party with prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event. For the avoidance of doubt, the City understands that the Box Service is not provided in countries listed in the Office of Foreign Control ("OFAC") and that access to the Box Service in such countries by the City may be restricted, with such restriction not to be deemed a Force Majeure. 15.12 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. 15.13 Box 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 Box agrees that service by first class U.S. mail to the entity and address provided for herein shall constitute effective service. [Signatures on following page.] 13 City of Elgin Box,Inc. Signature Signatur Printed Name Richard G. Kozal Printe Name ,��//7,4,r iLj Title City Manager Title ‘J7 SYP Zi ihriotGsGG4wOS j Date December 7, 2016 Date /�/ -1a0 6oxaEGA .teem 12/1/161l2:34IPMm 14 EXHIBIT A SERVICE LEVEL COMMITMENTS AND SUPPORT SERVICES Commencing on the Order Effective Date, Box will provide to the City the Service Level Commitments and Support Services defined herein and as otherwise may be specified in the Order. In the event of a conflict between the terms of the Agreement,this Exhibit A, and an Order,the terms of this Exhibit A shall prevail. 1) Exhibit Definitions "Downtime" means any period during which the City is unable to access the Box Service,as measured at the Box network by industry standard tools, because of a Box Service system wide Issue preventing access to Content. "Issue" means a single, reproducible issue or problem materially or significantly affecting the functionality of the Box Service for multiple Users of the City. "Enhanced Support Services" means that specific subscription level of support purchased and identified under the applicable Order as either"Premier Service"or"Platinum Service"and subscribed to by the City under such Order. "Scheduled Downtime" means a scheduled time period in which the Box Service is unavailable for use not to exceed one(1) hour per calendar quarter. "Standard Support Service" means the standard level of support provided by Box for the Box Service at no additional charge to the City and as specified under Section 4(a). "Premier Response Credit" means the credit that may be available to the City who has subscribed to one of the Enhanced Support Services under the applicable Order and as specified under Section 4(b)(iii) of this Exhibit. "Premier SLC Credit" means the credit that may be available to the City who has subscribed to one of the Enhanced Support Services under the applicable Order and as specified under Section 4(b)(i)of this Exhibit. "Uptime Percentage" means the total number of minutes in a calendar month minus the number of minutes of Downtime experienced in such calendar month, divided by the total number of minutes in such calendar month. 2) Case Prioritization 15 Any Issues reported by the City to Box and verified by the Box support team will be classified and assigned a priority by Box in its reasonable discretion. The following priorities and their meanings are used herein: a) Level 1— Urgent—An Issue that renders the Box Service completely inoperative for all Users and no workaround is available. b) Level 2—High—An Issue that materially impairs substantial features of the Box Service for many Users and no reasonable workaround is available. c) Level 3—Normal—An Issue that impairs a feature of the Box Service for a few Users and a reasonable workaround is available. Box will provide an acknowledgement of a reported Issue to the City and respond within the target time frames specified below in Section 4("Response"). The Response will include the priority assigned to the case by Box, any actions taken,estimated resolution time if available, and any escalation plans. Resolution of an Issue is subject to verification and reproduction of the Issue by Box, with the City's reasonable assistance in verifying and reproducing the Issue. Resolution(s) may include a temporary workaround, patch or bypass supplied by Box. 3) Applicability of Exhibit A Box's obligations under this Exhibit do not extend to any ongoing test or training instances of the Box Service provided to the City or Downtime, Issues or errors that are caused by: a) Third party hardware or software; b) Use of the Box Service in violation of the terms of the Agreement; c) Use of the Box Service other than in accordance with any User Guide or the reasonable instructions of Box; or d) Services, circumstances or events beyond the reasonable control of Box, including, without limitation, any Force Majeure events, the performance and/or availability of local ISPs employed by the City, or any network beyond the demarcation or control of Box. 4) Support Services. Box will provide the level of support services as described in this Exhibit A to assist the City in resolving Issues ("Support Services"). Support Services do not include: (a) physical installation or removal of the API, the Box Software and any User Guides; (b)visits to the City's site; (c) any professional services associated with the Box Service, including, without limitation, any custom development, data modeling, training and knowledge transfer; or (d) the set-up, configuration and use of the Box Service. a) Standard Support Service i) Service Level Commitment for Standard Support Service: For the City's Standard Support Service, Box will use commercially reasonable efforts to meet an Uptime Percentage of at least 99.9%. 16 Hours of Operation 9 AM—6 PM Local Time Monday—Friday Support Access Method Web/Phone Support Response Method Web/Phone Number of Support Requests Unlimited Level 1—Urgent Within 4 business hours Level 2—High Within 8 business hours Level 3—Normal Within 1 business day ii) Standard Services Response Time for Issues: For the City's Standard Support Service, Box will use commercially reasonable efforts to meet the target response times listed in the table herein: b) Enhanced Support Services i) Service Level Commitments and Premier SLC Credits: For City's who have purchased one of the Enhanced Support Services, Box will use commercially reasonable efforts to meet an Uptime Percentage of at least 99.9%. In the event that Box does not meet such Uptime Percentage, the City will receive Premier SIC Credits as identified in the SLC Table below during the applicable Subscription Period if: (1) The City has reported an Issue by filing a ticket with Box support within fifteen(15) days of experiencing a possible Downtime event and(2)The City has provided Box a written claim request for Premier SLC Credits within fifteen (15) days of receiving the uptime percentage report (as made available by Box)for the period in which the possible Downtime event occurred. Failure to comply with this requirement will forfeit the City's right to receive the Premier SLC Credits as set forth herein.The Premier SLC Credits will be equal to the SIC Credit Percentage multiplied by the City's Box Service license fees paid by the City for the Box Service that are attributable to the corresponding month (calculated on a straight line pro-rated basis with respect to any Fees paid in advance)and then pro-rated for the basis attributable to affected Users.The City is not eligible to receive Premier SLC Credits during any period of time when payments owed are past due. Box (including where applicable through a Box Reseller) will settle Premier SLC Credits, as determined in its sole discretion, either by applying to future billing cycle(s) or as a refund against annual fees earlier paid. In no event will the total amount of Premier SLC Credits if any, exceed the Box Service fees paid by the City for the corresponding month. 17 SLC Table Uptlme Percentage Premier SLC Credit Percentage Less than 99.9%but equal to or more than 99.8% 5% Less than 99.8%but equal to or more than 99.7% 10% Less than 99.7%but equal to or more than 99.6% 15% Less than 99.6%but equal to or more than 99.5% 20% Less than 99.5%but equal to or more than 99.4% 25% Less than 99.4%but equal to or more than 99.3% 30% Less than 99.3%but equal to or more than 99.2% 35% Less than 99.2%but equal to or more than 99.1% 40% Less than 99.1%but equal to or more than 99.0% 45% Less than 99.0% 50% ii) Enhanced Support Services Response Times for Issues: For City's who have purchased one of the Enhanced Support Services, Box will use commercially reasonable efforts to meet the guaranteed response times listed in the table herein: Hours of Operation 24 Hours/Day 7 Days/Week 365 days/year Support Access Method Web/Phone Support Response Method Web/Phone Number of Support Requests Unlimited Level 1—Urgent Within 1 hour Level 2—High Within 2 hours Level 3—Normal Within 2 hours iii) Premier Response Credits: The City will be eligible to receive a Premier Response Credit, provided that the City: (1) has purchased one of the Enhanced Support Services, (2) has opened a support ticket for an Issue; and (3) Box fails to meet the Response Times for Level 1 and Level 2 support tickets three times during the given month. In the event that the foregoing three requirements are achieved,the City will receive a Premier Response Credit of 15%of the Enhanced Support Services fees paid by the City for Enhanced Support Services that are attributable to such month (calculated on a straight line pro-rated basis with respect to any fees paid in advance). The Premier Response Credit is the City's sole and exclusive remedy for any failure by Box to meet any response time performance obligations pertaining to the Box Service as set out in this Exhibit A.The City is not eligible to receive Premier Response Credits during any period of time when payments owed are past due. Box (including where applicable 18 through a Box Reseller)will issue Premier Response Credits,as determined in its sole discretion,either by applying to future billing cycle(s)or as a refund against annual fees earlier paid. In no event will the total amount of Premier Response Credits exceed the Enhanced Support Services fees paid by the City for the corresponding month. 19