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HomeMy WebLinkAbout18-0417 CIP ClearGov Insights Program 18-04t-4 CIEARGOV ClearGov Service Agreement This ClearGov Service Agreement(the Agreement")is hereby made and entered into this tt day of April, 2018 by and between ClearGov,InC. ("ILXearGor"), a Delaware corporation with its principal offices at 2 Mill& Main; Suite 630, Maynard, MA 01754 and the tarty d figlit,ateeirs a aeunk*ie1 corporation(berefnefbar referred to are"City") (each a "Party"and collectively the "Parities".This Agreement governs the terns and conditions under which City may utilize the ClearGov Insights Platform(VIP')as set forth herein and as specified in one or more applicable CtearGov Service Order(s)executed by City In connection herewith and incorporated herein(the "ClearGor Service Order(s)i. WHEREAS,ClearGov owns and operates the CIP, a Web-based service that conveys public entity finances and key metrics in an easy-to-u►derStand, infographic-style format;and WHEREAS,City wishes to utilize the ClearGov Service in order to convey financial data, key metrics and other information to the public; NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the sufficiency of which is hereby mutually acknowledged,ClearGov and City hereby agree as follows: 1) Definitions.Capitalized terms used in this Agreement,and not otherwise defined herein,shall have the following meanings: 1.1) Account"means a registered user access point for the Service. 1.2) "ClearGov API'means an application programming interface that provides access to the ClearGov Widgets. 1.3) "OearGor Apps'means a Web application available via the ClearGov Web Site that utilizes ClearGov Data to provide analytics and benchmarking services for comparison of municipal entities 1.4) "ClearGov Data"means any aggregated and normalized key metrics and benchmarking data collected by ClearGov for the creation of profiles and/or the provision of the Service. 1.5) "ClearGov Profile-means the propnetary ClearGov infographic profile utilized as a template for the City Profile, including but not limited to the design, look and feel,functionality,etc of such template 1.6) "OeerGov Web Site' means the Web site owned and operated by ClearGov and made available at the following URL: http ,Iwww.CleaLUovcorn and/or any successor site(s). 1.7) "ClearGov Widget-means a graphical element that displays ClearGov Data and may be accessed via the ClearGov API. 1.8) "City Data-means any data provided directly to ClearGov by City by or on behalf of City pursuant to this Agreement. City Data specifically exdudes ClearGov Data as well as any anonymized, customized, modified or derivative works related to the City Data. 1.9) "City Profile"means a customized version of the ClearGov Profile that incorporates public financial data and other key public metrics that are specifically relevant to City 1.10) "City Site(s)"means any Web site owned and operated by City 1.11) -Documentation-means any accompanying proprietary documentation made available to City by ClearGov for use with the Service,including any documentation available online or otherwise 1.12) 'Report"means the resulting analysis shown via the ClearGov Apps for an individual Account. Each Report is considered a material part of the ClearGov Apps. 1.13) "Service-means the complete CIP including but not limited to the ClearGov API,ClearGov Apps, the ClearGov Data,the ClearGov Profile,the ClearGov Web Site, the ClearGov Widget, the Documentation,the Reports and the Software 1.14) "Software"means the source code other code which are material parts of the Service 2) Service Usage&Licenses. 2.1) Account Password and Security.City shall protect its passwords and take full responsibility for City's own as well as any third party use of the City Account(s) City is solely responsible for any and all activities that occur under such City Account(s),except for any activities performed by ClearGov as set forth herein. City agrees to notify ClearGov immediately upon learning of any unauthorized use of a City Account or any other breach of security. From time to time, ClearGov's support staff may log in to the Service under City password in order to maintain or improve service, including providing City assistance with technical or billing issues City hereby acknowledges and consents to such access. 2.2) ClearGov License.Subject to the terms and conditions of this Agreement and as specifically set forth in the applicable ClearGov Service Order(s), ClearGov grants City a limited, revocable, non-exclusive, non-transferable, non-distributable, worldwide license to utilize the Service for the following functionality: a) profile Delivery City may integrate and publish the City Profile within one or more City Sites. b) Aops Access,City may access the ClearGov Apps via City's Account to create and review Reports. c) API Access.City may access ClearGov Widgets via the ClearGov API and may distribute such ClearGov Widgets via one or more City Sites. 2.3) Service Order.This Agreement shall be subject to the terms and provisions of the ClearGov Service Order Form attached hereto and made a part hereof as Attachment A. In the event of a conflict between any of the terms of provisions of this Agreement and Attachment A hereto, the terms and provisions of this Agreement shall control. 3) Term and Termination. 3.1) Term.This Agreement shall terminate May 1, 2019 unless otherwise terminated prior to such date as provided for herein. 3.2) Termination.This Agreement and/or any applicable ClearGov Service Order may be terminated as follows: a) Either Party may terminate this Agreement if the other Party fails to cure a material breach of the Agreement within fifteen(15)days after receipt of written notice thereof. b) Either Party may terminate this Agreement if the other Party is involved in insolvency proceedings,receivership,bankruptcy,or assignment for the benefit of creditors. 3.3) Obligations.Upon expiration or termination of this Agreement: a) Each Party shall promptly return to the other all of the Confidential Information of the other Party In its possession or control; b) City shall cease use of the Service and shall remove all links from the City Site(s)to the City Profile and/or ClearGov Widgets. 3.4) Survival.Sections_3,3.3.4 and 4 through 8 Inclusive shall survive any termination or expiration of this Agreement ClearGov,Inc. Service Agreement ver.04.13.18 Page 1 of 4 r. 4) 4.1)E .CRy shah pay the Fees N i aaardance with the tams set forth et the applicable ClearGov Serelee Order. & 4.2) laignetant,Cglealgork ClearGov hereby waives any and all claims to Interest on money claimed tD be due ptauellit„ any and all such rights to interest to which It may otherwise be entitled pursuant to law,Including,but not Unified,* . • Prompt Payment Act,as amended(50 ILCS 505/1,et seq.),or the INkrols Interest Act,as atiended(815 ILCS 205/1,Old + 5) Intellectual Property. 5.1) general.Both Parties may only use the other Patty's intellectual property as expressly set forth herein or as may be regtdild Imre in this Agreement shall be construed in any manner to affect or modify either Party's ownership rights in any premdtterg or*Oro trademarks,copyrights or technologies developed or created by either Party,including without limitation,their respective prepdatay - used in connection with the development and provision of their respective Web sites,databases,systems, products and/or>ieMOS.tMtlaalt spedfically agreed by the Parties in writing,all Intellectual property,including without limitation information that could become*subject Of a patent,copyright or trade secret,developed by a Party In the context of performing Its obligations under this Agreement shall be enitfdvaly owned by that Party and the other Party shall cooperate with any reasonable requests to execute documents confi rni g such ownerihlp. 5.2) Data Ownership and License.City Data shall remain the property of City,and City hereby grants ClearGov a limited,perpetual,krevorable and royalty free right to 1) use, copy, modify, display the City Data for the purpose of providing the Service; 2) use, copy,display,distribute, publish,modify and/or otherwise utilize the City Data for ClearGov's normal business purposes. 5.3) proorietary Rights Notice. The Service and all Intellectual property rights In the Service are, and shall remain,the property of ClearGov.All rights in and to the Service not expressly granted to City in this Agreement are hereby expressly reserved and retained by ClearGov without restriction, including, without limitation, ClearGov's right to sole ownership of the ClearGov API, ClearGov Apps, ClearGov Data, ClearGov Profile, ClearGov Web Site, ClearGov Widget, Documentation, Reports and Software. Without limiting the generality of the foregoing, City agrees not to(and to not allow any third party to): (a)sublicense,distribute,or use the Service outside of the scope of the license granted herein;(b)copy,modify,adapt,translate,prepare derivative works from,reverse engineer,disassemble,or decompile the Service or otherwise attempt to discover any source code or trade secrets related to the Service;(c)use the trademarks,trade names,service marks,logos,domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of ClearGov; (d)register, attempt to register, or assist anyone else to register any trademark,trade name,serve marks,logos,domain names and other distinctive brand features, copyright or other proprietary rights associated with ClearGov other than in the name of ClearGov; or(e)remove,obscure, or alter any notice of copyright,trademark,or other proprietary right appearing in or on any item included with the Service. If the use of the Service is being purchased by or on behalf of the U.S.Government or by a U.S.Government prime contractor or subcontractor(at any tier), in accordance with 48 C.F.R. 227.7202-4(for Department of Defense(DOD)acquisitions)and 48 C.F.R.2.101 and 12.212(for non DOD acquisitions), the Government's rights in the Service, including its nghts to use,modify,reproduce, release,perform,display or disclose any elements of the Service, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement 6) Representations,Warranties,Indemnification and Liability. 6.1) By ClearGov.ClearGov represents and warrants that. (i)the Service shall be provided in accordance with,and shall not violate applicable laws, rules or regulations, and (ii)by using the Service, City will not violate or in any way infringe upon the personal or proprietary rights of any third party, (iii)the Service does not contain any virus, worm, Trojan horse, time bomb or similar contaminating or destructive feature;and (iv)ClearGov holds all necessary rights to permit the use of the Service and all components thereof provided to City under this Agreement. 6.2) By Both. ClearGov and City both represent and warrant that(i) each has full power and authority to enter into and perform its obligations under this Agreement,(ii)this Agreement is a legal, valid and binding obligation,enforceable against it in accordance with its terms;and(iii) entering into this Agreement will not violate any laws, regulations or third party contracts. 6.3) Indemnification a) By City.At City's cost, City agrees to indemnify and hold harmless and ClearGov against any cost, loss or expense(exduding attorney's fees) resulting from any claims by third parties for loss, damage or injury arising out of or relating to (i)City's breach of any term or condition of this Agreement, or(ii)City's violations of applicable laws, rules or regulations in connection with the Service.In such a case, ClearGov will provide City with written notice of such claim, suit or action ClearGov shall cooperate as fully as reasonably required in the defense of any claim.ClearGov reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by City. Notwithstanding the foregoing, unless the settlement involves no cost, loss or continuing liability to ClearGov, City shall not settle any claim,action or demand without the written consent of ClearGov, such consent not to be unreasonably withheld. b) By ClearGov,At ClearGov's cost,ClearGov agrees to indemnify,hold harmless and defend City against any cost,loss or expense(including attorney's fees)resulting from any claims by third parties for loss,damage or injury arising out of or relating to(i)ClearGov's breach of any term or condition of this Agreement, (ii)ClearGov's violation of any third party rights in connection with the Service or(iii)ClearGov's violations of applicable laws, rules or regulations in connection with the Service. In such a case, City will provide ClearGov with written notice of such claim,suit or action.City shall cooperate as fully as reasonably required in the defense of any claim.City reserves the right, at its own expense,to assume the exclusive defense and control of any matter subject to indemnification by ClearGov.Notwithstanding the foregoing, unless the settlement involves no cost, loss or continuing liability to City, ClearGov shall not settle any claim, action or demand without the written consent of City,such consent not to be unreasonably withheld. 6.4) Disclaimer,THE SERVICE,ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN"AS IS,""AS AVAILABLE"BASIS.TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CLEARGOV PROVIDES NO WARRANTIES(INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES,STATEMENTS,ESTIMATES,CONDITIONS,OR OTHER INDUCEMENTS,EXPRESS,IMPLIED,ORAL,WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6. ClearGov,Inc. Service Agreement ver.04.13.18 Page 2 at 4 xf.� x •• r • • i +R... .. 6.5) I at Liability,NEITHER CLEARGOV NOR CITY WILL BE LIABLE TO THE OTHER PARTY FOR ANY HIDET, CONSEQUENTIAL(INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR INCIDENTAL DAMAGES,WHETtER ACTION OF CONTRACT,WARRANTY,NEGLIGENCE,STRICT LABILITY,OR OTHER TORT,BREACH OF ANY STATUTORY DEQ` OR CONTRIBUTION,OR OTHERWISE,EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.TSE CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN TIE SENTENCE. BOTH PARTIES'TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING -' CLAIMS,DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE QJMUUMVE FEIS PIE! BY CITY TO CLEARGOV IN THE PRECEDING TWELVE (12) MONTHS. THE FOREGOING SHALL NOT LIMIT A PARTY'S (A) PAYMENT OBLIGATIONS UNDER THE AGREEMENT; (B)INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.3; (C)LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7; OR (D) LABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS EXCLUDING OR LIMITING A PARTY'S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ITS NEGLIGENCE OR ITS LIABILITY FOR FRAUD. 6.6) Essential Element,The provisions of this Section 6 are an essential element of the benefit of the consideration reflected in this Agreement. 7) Confidentiality. 7.1) Each Party will keep the specific terms of this Agreement confidential,including the contents of the schedules and exhibits,and not diidase any portion of them to any third party(other than to Its attorneys, accountants,advisors and potential investors who are bound to keep such information confidential)without the other Party's prior written consent,except as required by law. Notwithstanding anything provided to the contrary herein,City's good faith compliance with the requirements of the Illinois Freedom of Information Act(5 ILCS 140/1,et seq)shall not constitute and shall not be construed as a breach of this Agreement. 7.2) In addition,in connection with the negotiation and performance of this Agreement,a Party(the "Receiving Party')may receive information from the other Party(the "Disdosing Party')which is confidential or proprietary in nature, including without limitation information about a Party's products, systems and services("Confidential Information').The Receiving Party agrees that,during the term of this Agreement and for a period of three(3)years thereafter, it will keep the Confidential Information in strictest confidence and protect such Confidential Information by similar security measures as it takes to protect its own Confidential Information of a similar nature,but in no event shall the Receiving Party take less than reasonable care with the Confidential Information of the Disclosing Party.The Receiving Party also agrees that it will not use any Confidential Information for any purpose other than in connection with the performance of its obligations under this Agreement or as may be required by law 7.3) The term"Confidential Information"shall not include information which is or becomes generally available to the public without breach of this Agreement,is in the possession of the Receiving Party prior to its disclosure by the Disclosing Party,becomes available from a third party not in breach of any obligations of confidentiality,is independently developed by the Receiving Party,or is required to be disclosed by the Receiving Party pursuant to law,rule,regulation,subpoena or court order 7.4) The Parties recognize that the disclosure or use of a Disclosing Party's Confidential Information by the Receiving Party in violation of the provisions of this Section 7 may cause irreparable injury to the Disclosing Party;therefore, in the event either Party breaches the provisions of this Section 7,the other Party, in addition to any other remedies it may have, shall be entitled to seek preliminary and permanent injunctive relief without the necessity of posting a bond 8) Miscellaneous. 8.1) General.If any provision of this Agreement is held to be unenforceable for any reason,such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to implement the intent of the Parties, and the remainder of this Agreement shall continue in full force and effect A waiver of any default is not a waiver of any subsequent default. The relationship between ClearGov and City is one of independent contractors, not partnership,joint venture or agency This Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the parties hereto. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Software is controlled by U.S. Export Regulations, and it may not be exported to or used by embargoed countries or individuals. 8.2) Entire Agreement. This Agreement and the accompanying ClearGov Service Order(s), together, constitute a valid and binding agreement between the Parties and are intended to be the Parties'complete, integrated expression of the terms of their agreement with respect to the Service,and any prior agreements or understandings with respect to such subject matter are superseded hereby and fully merged herein. 8.3) Assignment.Neither Party will assign this Agreement in whole or in part to any third party without the prior written consent of the other Party; provided,however,either Party may assign this Agreement without such consent to any subsidiary or parent company of such Party or to any successor by way of any merger,consolidation or other corporate reorganization of such Party or sale of all or substantially all of the assets of such Party or to an entity that assumes,by sale, license or otherwise,the business activities that are the subject of this Agreement,provided that such subsidiary or parent company or successor assumes or is otherwise fully bound by all of the obligations of the assigning Party under this Agreement. 8.4) Marketing Materials,City agrees that ClearGov may utilize City's name solely to identify it as a ClearGov City on the ClearGov Web site,in dient lists and other marketing materials. Any other uses of City's name and/or logo (other than as included in the Creative and/or other items furnished to ClearGov by City)shall require City's prior written consent. 8.5) Insurance. ClearGov shall maintain commercial general liability insurance and auto liability insurance in amounts that are consistent with industry standards.ClearGov shall maintain Worker's Compensation insurance as required by law. 8.6) jisisdiction,This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes with the enforcement of any rights arising out of or in connection with this Agreement,shall be in the Circuit Court of Kane County,Illinois. ClearGov 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 ClearGov agrees that service by first class U.S.mail to ClearGov, Inc., 2 Mill&Main, Suite 630, Maynard, MA 01754 shall constitute effective service. Both parties hereto waive any rights to a jury. Cise ov,Inc. Service Agreement ver.04.13.18 wI" � f -s x- " .'1,..1,- .f 3 fie . *" 01, = a '4111004 € = the puntomrertae of this Agreeatter>t or any obligators hereunder is N��Cif p "mow 0 °r err*Meek'Mina or tabor disguiss,war or other viole ce,arty law,pyo tldq,ne itlO4 Cr apetrcy,or any other act or condition beyond the reasonable canbvl of a Party hereto,that Pah upon 9 shill be amused from such performance(luring suchoccurrence. yty: `. 8 8) .Al nogoes,requests,or other conal u lcatlons between the Partes that are req or penMlted homith M' . ;,,„; , shall be given as e> sy provided for hereki,and P not exlxessly presided for hereinshah be by not dela fact,or by e-mail. 7, 8.9) ildes&Subtales.The tides and subtitles in this Agreement are used for convenience only and are not to be considered kn aollisllil :: % 8.10)ionic Transmission. This agreement may be executed in counterparts,each of whshall be an original and all of whidr dd ` '` , one and the same agreement. For the purposes of exeatkng this agreement,any signedcopy of this agreement 0•arnurtityed by Ant tomtits*ora mail shah be treated In all manners and respects as an original document. The signature of any party on a copy of title a1pl+aarlMeRt transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal e�lbtyt 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 inan originaltam. No party to this agreement shall raise the use of fax machine or e-mall as a defense to this agreement and shag forever waMe such defense. ClaarGov,Inc. Ci of Elgin !i % Il ' {�/'�� Bryan A.Burdick .� ♦o, •• l/. .1 . c .t I Print N.i •khans zal,City Ma ..- ' A City Clerkqv President Title CearGov,Inc Service Agreement ver.04.13.18 Page 4 of 4 ICJIIEAR1111Y ClearGov Service Order - Attachment 2 MI&Mair,;Suite 630 pmparadlyrhomas Heffernan an Maynard,MA 01754 Order pater4/13/11 Pridrg Valid Throudti 4/16✓18 Ottlimilarasalimelt �"' . ._... Customer City of BQnt„IL Pirchase Order# Contact tante Laura Valdez-Wilson Bina , Contact Contact TkkJlssistaxt City Manager ■:1111,"�L.•fir a^_ contact E-maN vaicevwilsnn ir9ritynfel nnrp 81111 • Contact E-mail Coritact Phone,(847)931-6749 Address 150 Dexter Ct Address City,State Zip Elgin, IL,60120 City, State 21 Service Pwbd-111111 End� Description of Services Ordered �� 5tanrio•FMr te 05/01/18 O5/01/18 ClearGov Insights Ortboarding: Includes settle and tdlmited trailing and support. 05/01/18 One-Time $1,200.t 05/01/18 04/30/19 ClearGov Insights Platform: Civic Ecition - Large(Annual Subscription) 05/01/18 Ash In $10,000.11 Advance PaymantTonns itTaxea All mw ces are due Net 30 days horn the date of invoice The Fees set forth in th s ClearGov Seance Order do not indude applicable tails. Customer shall provide all deliverables and respond to an approval requests within three(3)business days of such requests.Any delay by CusE merDlNtrlrables Customer in meeting these deliverable requirement:may,ecu r m a delayed launch of the Customer Profile,but such delay shaft not affect or change the Seroce Period as set forth in thi:Se,am Orde' CuseoreerSatifaction During the first ninety(90)days of the Service Pei,pd,Customer shall nave the option to terminate the Service,by providing vvritten notice. In the Guaranteeevent that Customer exeroses this customer sabsfacton qua,antee option such term nation shall become effecLve immediatelyand Customer Fn. n r.1._ __ X4'4 may?w