HomeMy WebLinkAbout09-1101 FOIA Systems QS- llot
co►A StsNourAS
FOIA SYSTEMS SERVICES AGREEMENT
THIS SERVICE AGREEMENT (the "Agreement") between FOIA
Systems, Inc. ("FOIA Systems") with its principal place of business 3. INTELLECTUAL PROPERTY OWNERSHIP
at S25 W. State St., Geneva, IL 60134 and City of Elgin, IL with its This Agreement does not transfer to Customer any ownership or
principal place of business at City Hall, 150 Dexter Court, Elgin, IL proprietary rights in the Technology,and all right,title and interest in
60120 ("Customer") is made effective as of November 1, 2009 and to the Technology will remain solely with FOIA Systems or its
("Effective Date".) supplier's.
1. OVERVIEW AND DEFINITIONS 4. LIMITED WARRANTY
General. This Agreement states the terms and conditions by which 4.1 Service Level. FOIA Systems will use commercially reasonable
FOIA SYSTEMS and its suppliers will deliver to Customer various efforts to perform the Services in a manner consistent with applicable
services,as described below. industry standards including,but not limited to:
1.1 'Authorized User" means a designated employee or agent of 1) Maintain Service availability 24 hours a day, 7 days a week,
Customer. 2) Perform daily backups of all customer information,and
3) Respond to customers' requests for support during the hours of
1.2 "Authorized \Vebsite"means a website owned or operated by or 7:00 AM to 7:00PM CT, Monday through Friday, excluding
on behalf of Customer, for which FOIA Systems has agreed to federal holidays.
provide the Technology and various Services.
4.2 No Other JVarranty. THE SERVICES ARE PROVIDED ON AN
1.3 "Seat License" means a license that permits a single Authorized "AS IS"BASIS, AND CUSTOMER'S USE OF THE SERVICES IS
User to access and use the Service. AT ITS OWN RISK. FOIA SYSTEMS DOES NOT MAKE; AND
HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS
1.4 "Service(s)" means the specific service(s) provided by FOIA AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT
SYSTEMS or its suppliers, including access to the Technology. LIMITED TO, WARRANTIES AND MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND ANY
1.5 "Technology" means FOIA Systems' (or its supplier's) web- WARRANTIES ARISING FROM A COURSE OF DEALING;
based applications, which have been designed to enhance FOIA and USAGE OR TRADE PRACTICE. FOIA SYSTEMS DOES NOT
Open Records request tracking capabilities by providing self-service, WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED
interactive support, intelligent tracking, and knowledge access, and OR ERROR-FREE.
may include software, and software tools, user interface designs, and
documentation; and any derivatives, improvements, enhancements or 5. LIMITATION OF LIABILITY
extensions thereof. . 5.1 Damage to Customer. FOIA SYSTEMS ASSUMES NO
LIABILITY FOR ANY DAMAGE TO,OR LOSS TO,CUSTOMER
2. DELIVERY OF SERVICES;TERM; FEES, PAYMENTS RESULTING FROM ANY CAUSE- OTHER -THAN THE
2.1 Grant of License. Subject to the terms and conditions of this WILLFUL OR RECKLESS MISCONDUCT OF FOIA SYSTEMS.
Agreement, FOIA Systems and/or its supplier grants to Customer a
non-exclusive, non-transferable, limited license to permit the number 5.2 Consequential Damages Waiver. IN NO EVENT SHALL FOIA
of Authorized Users equal to the number of Seat Licenses purchased SYSTEMS OR ITS SUPPLIERS BE LIABLE TO CUSTOMER
by Customer to access and use the Service on the Authorized FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR
Website(s)identified in Schedule I. CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO, LOST REVENUE, LOST PROFITS,
2.2 Responsibilities. Customer agrees to (a) maintain the Authorized REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS
Website(s) identified in Schedule I; and (b) procure and maintain all OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS
hardware, software and telecommunications equipment necessary to OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE
access the Service via the Internet. Customer further agrees to (a) POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING
provide FOIA Systems with all information reasonably necessary to UNDER THEORY OF CONTRACT, TORT (INCLUDING
setup or establish Service on Customer's behalf; and (b) provide NEGLIGENCE),STRICT LIABILITY OR OTHERWISE.
proper attribution of the Technology and Services to Systems on
Customer's Authorized Website(s) in the form of a "Powered by
FOIA Systems" logo with a hyperlink to FOIA Systems' website 6. INDEMNIFICATION
home page. 6.1 Indemnification. Each Party agrees to fully indemnify and hold
harmless the other for any and all costs,liabilities,losses,and
2.3 Payment Terms. Customer shall pay all applicable fees for the expenses(including attorney's fees) resulting from any claim,suit,
Services in accordance with the terms and conditions set forth in action,or proceeding brought by any third party arising from a party s
Schedule 1. (a)breach of any of its obligations or warranties;or(b)negligence or
willful misconduct.The parties liability hereunder is expressly
2.4 Term. This Agreement starts on the Term Start Date and limited to the amount paid and received under this agreement:
continues for the term identified in the Schedule 1.
7.TERMINATION OR CHANGE ORDER •
7.1 Termination for Cause. Either party may terminate this
Agreement if the other party breaches any material term or condition
FOIA Systems and City of Elgin Agreement Page I of 5
FOIA Systems Confidential
I
•
FOIA SYSTEMS SERVICES AGREEMENT
of this Agreement and fails to cure such breach within sixty(60)days
after receipt of written notice of the same. If FOiA Systems 8.3 Withdrawal of Access. FOIA Systems may, upon misuse of the
terminates for cause, all payments due and owing for the remainder program, misconduct, security breaches or grossly improper use of
of the then current Term will immediately be due. If customer the Customer data, instruct Customer to terminate access to any
terminates for cause, it shall be entitled to a refund of any prepaid Authorized User or individual and Customer agrees to promptly
service fees,or fees paid for service not received on a pro-rata basis comply with such instruction.
7.2 Termination Without Cause. Either party may terminate this 9.CONFIDENTIALITY
agreement without cause providing that the terminating party gives 9.1 FOIA Systems Information. Customer acknowledges that the
the other party sixty (60) day's written notice prior to termination. Technology and Services contain valuable trade secrets,which are
Should Customer terminate without cause after the first day of the the sole property of FOIA Systems or its suppliers,and Customer
then current Term as defined in Schedule 1, Customer will pay the agrees to use reasonable care to prevent other parties from learning of
fees for service on a pro rata basis through the end of such sixty(60) these trade secrets. Customer will take all reasonable steps to prevent
day period. Should FOIA Systems terminate without cause, the unauthorized access to the Technology and Services.
Customer has no obligation for payment.
9.2 Customer Information. FOIA Systems acknowledges that
7.3 Termination for Bankruptcy. Either party may terminate this Customer's database may contain valuable trade secrets,which are
Agreement immediately if(a) the other party becomes the subject of the sole property of Customer. To the extent that FOiA Systems
a voluntary petition in bankruptcy or any voluntary proceeding becomes aware of the content of a Customer database, FOIA Systems
relating to insolvency, receivership, liquidation, or composition for agrees to use reasonable care to prevent other parties from learning of
the benefit of creditors; or(b) the other party becomes the subject of these trade secrets;provided FOIA Systems may disclose such trade
an involuntary petition in bankruptcy or any involuntary proceeding secrets to affiliates,agents and other third parties, including counsel
relating to insolvency, receivership, liquidation, or composition for and regulators,on a need-to-know basis,so long as such parties agree
the benefit of creditors, if such petition or proceeding is not dismissed to maintain the confidentiality of such information.
within thirty(30)days of filing.
9.3 Exceptions.The obligations of this Section 9 shall not apply to
7.4 Effect of Termination. Upon the effective date of expiration, any information that(a)is now,or hereafter becomes,through no act
cancellation or termination of this Agreement(a) FOIA Systems will or failure to act on the part of receiving party(the"Receiver.),
immediately cease providing the Service(s); and (b) any and all generally known or available;(b)is known by the Receiver at the
payment obligations of the Customer through the termination, time of receiving such information,as evidenced by the Receiver's
depending upon cause or without cause, as defined above, will records;(c) is hereafter furnished to the Receiver by a third party,as
immediately become due. a matter of right and without restriction on disclosure:(d)is
independently developed by the Receiver without reference to or use
7.5 Survival. The following provisions will survive any expiration or of the disclosing party's information;or(e)is required to be
termination of the Agreement: Sections 3 (Intellectual Property disclosed by law,provided that the party to whom the information
Ownership). 5 (Limitation of Liability), 6 (Indemnification), belongs is given prior written notice of any such proposed disclosure.
9(Confidentiality)and 10(Miscellaneous).
10. MISCELLANEOUS PROVISIONS
8. USE 10.1 Force Majeure. Neither FOIA Systems, its suppliers nor
S.l Acceptable Use. Customer represents and warrants that the Customer will be liable for any failure or delay in its performance
Technology and Services will only be used for lawful purposes, and under this Agreement due to any cause beyond its reasonable control,
in accordance with reasonable operating rules policies, terms and including acts of war, acts of God, earthquake, flood, embargo, riot,
conditions and procedures. sabotage, labor shortage or dispute,governmental act or failure of the
Internet (not resulting from the negligence or willful misconduct of
8.2 Restrictions on Use. Customer represents and warrants that FOIA Systems), provided that the delayed party: (a) gives the other
Customer and its Authorized Users will not (a)sell, lease,distribute, party prompt notice of such cause, and (b) uses its reasonable
license or sublicense the Technology or Services;(b)modify,change, commercial efforts to promptly correct such failure or delay in
alter, translate, create derivative works from, reverse engineer, performance. If FOIA Systems is unable to provide Service(s) for a
disassemble or decompile the Technology or Services in any way for period of thirty(30)consecutive days as a result of a continuing force
any reason; (c) provide, disclose, divulge or make available to, or majeure event,Customer may cancel the Service(s)without penalty.
permit use of the Technology or Services by, any third party; (d)
copy or reproduce all or any part of the Technology or Services 10.2 Governing Law. This Agreement is made under and will be
(except as expressly provided for herein); (e) interfere, or attempt to governed by and construed in accordance with the laws of the State
interfere, with the Technology or Services in any way; (f) introduce of Illinois.
into or transmit through the Technology or Services any virus,worm,
trap door, back door, timer, clock, counter or other limiting routine, 10.3 Severability. In the event any provision of this Agreement is
instruction or design: (g) remove, obscure or alter any copyright held to be contrary to the law, the remaining provisions of this
notice,trademarks, logos or other proprietary rights notices affixed to Agreement will remain in full force and effect.
or contained within the Technology or Services: or (h) engage in or
allow any action involving the Technology or Services that is 10.4 Assignment. FOIA Systems may assign its rights and
inconsistent with the terms and conditions of this Agreement. obligations under this Agreement, in whole or in part, to any entity.
FOIA Systems and City of Elgin Agreement Page 2 of>
FOIA Systems Confidential
ti� Memorandum
City of E l g i n
�A�P:• F�0ti�F
Date: November 16, 2009 '
To: Diane Robertson, City Clerk
From: William A. Cogley, Corporation Counsel
Subject: Agreement between FOIA Systems Inc. and the City of Elgin
Attached find a fully executed copy of the above-referenced agreement.
(-6(1LC:Ce•-• 41,7
WAC
trig
Attachment