HomeMy WebLinkAbout19-164 Resolution 19-164
RESOLUTION
AUTHORIZING THE RENEWAL AND EXECUTION OF SERVICE ORDERS AND
SECOND PLATFORM ADDENDUM TO THE BOX SERVICE AGREEMENT 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, and Kimberly A. Dewis, City Clerk, be and are
hereby authorized and directed to renew and execute service orders and Second Platform
Addendum to the 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.
s/ David J. Kaptain
David J. Kaptain, Mayor
Presented: December 4, 2019
Adopted: December 4, 2019
Omnibus Vote: Yeas: 9 Nays: 0
Attest:
s/ Kimberly Dewis
Kimberly Dewis, City Clerk
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SECOND PLATFORM ADDENDUM TO THE BOX SERVICE AGREEMENT
This Second Platform Addendum, hereby made and entered into this 4th day of December,2019 to the
Box Service Agreement (the "Agreement"), dated December 7, 2016, by and between Box, Inc., a Delaware
corporation,("Box")and the City of Elgin,Illinois,a municipal corporation,("Customer"),(attached hereto and made
a part hereof as Attachment B)as each are identified on the Service Order attached hereto and made a part hereof
as Attachment A, is effective, and Customer agrees to be bound by its terms, upon the Service Start Date set forth
in Attachment A. Box and Customer are sometimes referred to herein individually as a"Party"and together as the
"Parties".
RECITALS
WHEREAS, the Parties entered into the Agreement whereby Customer purchased the right to access the
Box Service.
WHEREAS, the Parties wish to modify the Agreement by adding certain terms and conditions to the
Agreement in order for Customer to purchase one or more of Box's Platform Products(as defined below).
NOW THEREFORE, in consideration of these premises and the mutual promises contained herein, the
sufficiency of which is mutually acknowledged,the Parties agree as follows:
Section 1. Applicability
This Second Platform Addendum is subject to the terms and conditions of the Agreement and is applicable only when
Customer has purchased Platform Products under an executed Order. All references under the Agreement to the
"Box Service" shall be deemed to include the Platform Products and except as otherwise set forth in this Second
Platform Addendum,all terms and conditions of the Agreement shall apply.
Section 2. Definitions
Capitalized terms not otherwise defined herein shall have the same meaning ascribed to such terms in the
Agreement.
"API"means the application-programming interface used by Customer to access functionality as provided by Box.
"Box Platform View" means certain features of the Platform Products that permit a Platform Service Account, a
User,or Platform Application User to view,annotate and comment on Content.
"Content" has the meaning set forth in the Box Service Agreement; provided that for the purposes of this Second
Platform Addendum, "Content" shall also include Content uploaded by Platform Application Users and Platform
Service Accounts.
"Monthly Active User" or"MAU" means a Platform Application User that is Active. A Platform Application User is
deemed to be"Active"when an application uses the Box Service to access a Platform Application User via an API call
(made by or on the behalf of the Platform Application User account)at least once in a monthly calendar period.
"Monthly Platform API Calls" means the total number of all API calls made by a Platform Application to the Box
Service within a monthly calendar period on behalf of: (a)a Platform Application User; (b)a User; or(c) a Platform
Service Account.Except as otherwise set forth in the applicable Order,excluded from Monthly Platform API Calls are
API calls made on behalf of: (i)third party software application integrations that were permitted with Customer's
purchase of the Box Service as set forth in the applicable Order; (ii) Box provided applications (e.g., the Box Web
App, Box Desktop,Box Notes, Box Capture);or(iii)Box provided services(e.g.Box Shuttle),if applicable. For clarity,
any API calls resulting from a Platform Application will be considered chargeable if 95%of its Monthly Platform API
Calls are used by or on behalf of Customer.
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"Monthly Platform Bandwidth" means the total amount of platform bandwidth (ingress and egress of data to or
from the Box Service as a result of a Platform Application),consumed on a monthly calendar basis by or on behalf
of:(a)a Platform Application User;(b)a User;or(c)a Platform Service Account. Except as otherwise set forth in the
applicable Order, excluded from Monthly Platform Bandwidth is platform bandwidth consumed by: (i) third party
software application integrations that were permitted with Customer's purchase of the Box Service as set forth in
the applicable Order; (ii) Box provided applications(e.g.,the Box Web App, Box Desktop, Box Notes, Box Capture);
and(iii)Box provided services(e.g.Box Shuttle),if applicable. For clarity,any platform bandwidth consumption from
a Platform Application will be considered chargeable if 95% of its Monthly Platform Bandwidth is used by or on
behalf of Customer.
"Platform Application" means any application used by or on behalf of Customer that uses the API for the purposes
of access to the Box Service or to access certain functionality as provided by Box.
"Platform Application User" means a user with a unique identifier that is created and provisioned by Customer and
such user's access to Content in the Box Service is governed through an external-facing Platform Application that is
built by or on behalf of Customer.
"Platform Product(s)" means the Box APIs that provide programmatic access to the Box Service from a Platform
Application, and any additional Platform Product features and functionalities. The Platform Products include Box
Platform View and Platform Resources,if expressly purchased by Customer as set forth in the applicable Order.
"Platform Resource(s)"means the resources, as may be specified in the applicable Order, including but not limited
to Monthly Platform Bandwidth, Monthly Platform API Calls, Platform Storage and Monthly Active Users; and any
other resources set forth in the applicable Order. Also included within the definition of Platform Resource(s) are
Box's APIs, tools and services made available for development of or integration with a Platform Application with
respect to the APIs under this Second Platform Addendum.
"Platform Service Account" means a backend system-to-system connection with a unique identifier that is created
and provisioned by or on behalf of Customer and its access to Content in the Box Service is governed through a
Platform Application.
"Platform Storage" means the total amount of Content stored by or on behalf of all Platform Application Users,
Platform Service Accounts and any other users of Platform Products that may be released by Box from time to time.
Platform Storage does not include the storage of Content by Managed Users.
"Platform Use Limit(s)" means, as may be specified in the applicable Order (or in accordance with the applicable
subscription level set forth in the Order): (i) Monthly Platform Bandwidth, Monthly Platform API Calls, Platform
Storage and number of Monthly Active Users;and(ii)any other usage limits or restrictions set forth in the applicable
Order.
Section 3. Access and Use of the Platform
3.1 Access and Use. Subject to the terms and conditions of this Second Platform Addendum and the purchase
of one or more Platform Products under an applicable Order,Customer shall have the non-exclusive right during the
applicable Subscription Period to: (a) allow Administrators to access and perform administrative functions through
the Administrative Console;(b)utilize the Platform Products subscribed to by Customer under the applicable Order;
and (c) incorporate the API into the Platform Applications for the sole purpose of accessing certain functionality
provided by the Platform Products subscribed to by Customer, solely through the API and associated tools and
services. Customer will ensure that its usage of the Platform Products is at all times in conformance with the
applicable Order (including but not limited to any Platform Use Limit), this Second Platform Addendum, the
Agreement and applicable law.
3.2 Usage in Excess of Platform Use Limits. If Customer has exceeded the Platform Use Limits set forth in the
applicable Order,additional fees will be due in accordance with an Order.
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3.3 Branding. No co-branding of the Platform Products will be permitted without Box's prior written consent.
Customer may not use any Box trademarks,logos,or other Box marks to promote and market the Platform Products
without the prior written consent of Box.
Section 4. Restrictions
4.1 Restrictions on Use of the Platform Products. Customer will not(and will not encourage or assist any third
party to): (i) modify, alter, tamper with, repair or otherwise create derivative works of the API or any software
included in or used or distributed by Box to provide or access the Platform Products; or (ii) reverse engineer,
disassemble or decompile the Platform Products,or attempt to discover or recreate the source code for the Platform
Products. Without limiting any other remedies under the Agreement, if Customer's use of the Platform Products
does not conform with Customer's subscription under this Second Platform Addendum and the applicable Order
(including but not limited use in access of any Platform Use Limit), reasonable restrictions may be placed on
Customer's account until any non-conformance is adequately mitigated or eliminated by Customer.
4.2 Platform Application Restrictions.
(a) Content. Customer will not,and will ensure that the Platform Application does not,promote,constitute or
contain(nor will Customer use or permit use of the Platform Application to transmit)any of the following:
Unlawful Content or Content that would constitute, encourage, advertise, promote, solicit or
provide instructions for a criminal offense or illegal goods,services or transactions,or that would
violate any law, rule or regulation;
ii. Content that infringes upon or violates the rights of any third party,including copyright,trademark,
trade secret, privacy, publicity or other personal or proprietary right, or that is deceptive,
misleading or fraudulent or that may otherwise be unlawful or give rise to civil or criminal liability;
iii. Content that is or includes"spam,""junk mail,""phishing,""chain letters,"or"pyramid schemes";
or
iv. Content that includes or disseminates spyware, adware, viruses, worms, or any other type of
Malware of malicious code.
(b) Use. Customer will not, and will ensure that the Platform Application does not(nor will Customer permit
use of the Platform Application to):
Install software:(i)to perform hidden activities without Platform Application User consent,(ii)that
may harm or alter a Platform Application User's system without express permission from the
Platform Application User, (iii) that is downloaded as a hidden component of other software, or
(iv)that is automatically downloaded in whole or in part without express Platform Application User
consent;
ii. Impersonate,or misrepresent an affiliation with,any person or entity;
iii. Use in any manner not authorized by a Platform Application User,
iv. Except as otherwise authorized by a Platform Application User with respect to such Platform
Application User's Content, mine or analyze any Content transmitted to, retrieved from or stored
in the Platform Products/Box Service (including, but not limited to, through spiders, robots,
crawlers, data mining tools, scrapers,or other automated means,or services employing any such
means);
v. Circumvent any security measures or content filtering devices;
vi. Engage in any activity or conduct that is deceptive, unfair or harmful or that violates the rights of
Box or any third party;
vii. Use or affect the Platform Products in any manner that could damage, disable, overburden or
impair the Platform Products or its functionality or negatively affect or interfere with users use and
enjoyment of the Platform Products or disrupt the normal flow of traffic any Box website
(including,but not limited to,flooding the Platform Products with an excessive amount of data or
content);and
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viii. Violate any law,rule or regulation or generally accepted industry standards or guidelines,including
but not limited to laws pertaining to intellectual property rights,privacy and publicity.
Section 5. Support Services
5.1 Box Support Services. Subject to service level provisions of the Agreement and payment of the
corresponding Fees for the applicable subscription and support level purchased in the Order, Box will provide the
support services("Support Services")specified in the Order and as further described in the Agreement.
5.2 Customer Support Services. Notwithstanding anything to the contrary set forth in Section 5.1 above,
Customer will be responsible for supporting the Platform Application and shall provide such support direct to
Platform Application Users. Box will not provide Support Services to Platform Application Users and is not
responsible for any Downtime, Issues or other performance issues to the extent attributable to a Platform
Application
Section 6. Term of Platform Addendum
This Second Platform Addendum will commence on the Service Start Date described by Attachment A hereto, and
will remain in effect during any Subscription Period under which Customer has purchased access to the Platform
Products, unless otherwise terminated as provided for in the Agreement. For the avoidance of doubt, renewal of
any Order for the Platform Products shall be governed in accordance with Order renewal provisions of the
Agreement and survival of provisions shall be governed in accordance with the survival provision of the Agreement.
Section 7. Integration;Order of Precedence
This Second Platform Addendum constitutes the entire agreement, and supersedes any and all prior agreements,
between the Parties with regard to the subject matter hereof. With respect to the Platform Products,this Second
Platform Addendum shall supersede and control over any conflicting terms and conditions in the Agreement.
Section 8. Electronic Transmission of Signatures
This Second Platform Addendum may be executed in counterparts,each of which shall be an original and all of which
shall constitute one and the same Second Platform Addendum. For the purposes of executing this Second Platform
Addendum,any signed copy of this Second Platform Addendum 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 Second Platform
Addendum 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 Second Platform
Addendum 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 Second Platform Addendum shall be re-executed by the parties in an
original form. No party to this Second Platform Addendum shall raise the use of fax machine or e-mail as a defense
to this Second Platform Addendum and shall forever waive such defense.
Section 9. Non-Appropriation of Funds
Notwithstanding anything to the contrary provided for herein, the term of this Second Platform Addendum
Agreement is conditioned upon the appropriation of funds by the Customer's city council. If no funds are
appropriated for any year of this Second Platform Addendum Agreement, this Second Platform Addendum
Agreement shall terminate as of the last date for which funds have been appropriated, and this Second Platform
Addendum Agreement, the Agreement, and any currently operative service order(s) shall be void after such date,
and shall be of no further force or effect.
BOX,INC. CITY . ..IN
Luke Arno / ! if
Print Name Ric and G. Kozal,City Man.:er
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Signature City Cle
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Title
F:\Legal Dept\Agreement\Platform Addendum Second-Box Service Agr-Clean-11-14-19.docx
Box Legal Approved: Linda Chan
11/15/2019 4:10 pm
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ATTACHMENT A
[SERVICE ORDER]
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ATTACHMENT A
bO' Box,Inc
900 Jefferson Ave
Redwood City,CA 94063
Executed Order must be received by:
January 31,2020
Service Order
This Box Service Order("Order")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 per the link below,or as attached to this Order.
Order Details
City of Elgin Billing Terms
150 Dexter CT Service Start Date': January 5,2020
Elgin Service Renewal Date: January 5,2022
Illinois Payment Frequency: Annual
60120 Payment Method: Check
United States Payment Terms: Net 30
Quote Number: Q-00067868-A
Enterprise ID: 837018
Bill To=: Sold To: •
Name: Jeff Massey Name: Jeff Massey
Email: masseyj@dtyofelgin.org Email: masseyj@cityofelgin.org
Phone: 8479315642 Phone: 8479315642
Products
r �� Product Name Price Type Unit Price Quantity Amount Per-Payment Total Price
_ Frequency
Enterprise with Governance I Recurring ; $194.18 700.00 $ 135,922.92 $271,845.84
I Suite
sPrrrtuer Services, Recurring 1 $15,8400000 1.00 $ 15,840.00 $31,680.00
Platform Enterprise Recurring $3,871.78 10.00 $38,717.80 $77,435.60
Platform Governance Recurring ! $12,362.70 : 1.00 $ 12,362.70 $24,725.40
Platform Premier Services Recurring I $8,035.80 1.00 $8,035.80 $ 16,071.60
I Monthly Active Users Recurring : $0.25 10,000.00 , $2,491.20 $4,982.40
Total One Time Charges: $0.00 USD
Total Recurring Amount Per Payment $213,370.42 USD
Frequency:
• Total Order Amount: $426,740.84 USD
Additional Terms
Platform Enterprise packages purchased under this order include the following Platform Use Limits: 1,000 Monthly Active Users, 1,043 GB of
Platform Storage, 1,460,000 Monthly Platform API Calls, 1,043 GB of Monthly Platform Bandwidth.
In addition,Customer will be granted additional Platform Resources with the following Platform Use Limits: 10,000 Monthly Active Users.The
sum of Platform Use Limits for the purchased packages and the additional Platform Resources indicated above,in total,will constitute the
Platform Use Limits purchased under this order.
For the avoidance of doubt,Monthly Active Users,Monthly Platform Bandwidth and Monthly Platform API Calls limits are not cumulative and
do not carry over to subsequent months.
Q-00067868-A
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Box,Inc.
X900 Jefferson Ave
Redwood City,CA 94063
Executed Order must be received by:
January 31,2020
Service Order
Upon the one-year anniversary of the subscription,and on a quarterly basis thereafter,Box and Reseller will assess Customer's usage of
Platform Products over and above the Platform Use Limits herein as reported to Customer by Box("Deployment Report").For the avoidance
of doubt,usage of Platform Products shall be assessed based on an average of the Monthly Active Users,Monthly Platform API Calls,and
Monthly Platform Bandwidth in the trailing twelve-month period.Platform Storage shall be assessed at the time of the assessment as reported
in the Deployment Report.
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
7-itfe: City Manager
Date: December 4, 2019
Platform Addendum to the Box Service Agreement can be found at the following link and attached for convenience:
https://cloud.box.com/s/h3wdny4jhuwbvmu46161fz5w3b1hw4yi
Agreement can be found at the following link and attached for convenience:https://cloud.box.com/s/Ihxrrn6337x60bhyooa0463wrold6sd2
If this order is executed by Customer or received by Box after the Service Start Date above,Box may adjust the Service Start Date based on the date Box
provisions the products listed.
'Please note:All future invoices and billing inquiries will be emailed to this contact.
Unless otherwise set forth in this Order,during the Subscription Period Box will periodically assess Customer's usage of the products purchased herein.In the
event that Customer's use of the products is in excess of the amount purchased herein,Box reserves the right to issue an order for the number of additional
products utilized by the Customer to be purchased by Customer on a prospective basis.Customer will either agree to said purchase or cease use of the additional
products.
Unless Premier Support is purchased under this order,SLC credits are not provided.Prices shown above do not include any taxes that may apply.Any such taxes
are the responsibility of the Customer.This is an Order not an invoice.Notwithstanding anything to the contrary in the underlying agreement between the parties,
any terms and conditions in any purchase order or similar documents issued by Customer shall be null and void.
Q-00067868-A
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ATTACHMENT B
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 (ITB)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.
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"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/orivaqv.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 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.
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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.
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-I 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
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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. takedown 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 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
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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.
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
NONINFRINGEMENT, 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
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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 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,
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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 nonconforming 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 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.
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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 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),
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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 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 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.
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Section 14. Confidentiality
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 Parties 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.
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.
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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 legalops@box.com, with a duplicate copy sent via registered or
certified mail, return receipt requested,to the appropriate Box address listed here:Attention Legal Ops,
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.
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,
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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 emailed 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 email 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.]
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City$Elgin
iture .1� -� _ice Signatur•
ed Name Richard G. Kozal Printe. Name .44/7,01.41/6
City Manager Title
Signature
Printed Name
Title /
December 7, 2016 Date / 1/ -1010
Date
BOX[ZEGALR3Aeem
12/1/16A2:34xMm
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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.
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2) Case Prioritization
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
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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%.
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 SLC 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 SLC 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
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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.
SLC Table
Uptime Percentage Premier SLC Credit
Percentage
ess than 99.9% but equal to or more than 5%
99.8%
ess than 99.8% but equal to or more than 10%
99.7%
ess than 99.7% but equal to or more than 15%
99.6%
ess than 99.6% but equal to or more than 20%
99.5%
ess than 99.5% but equal to or more than 25%
99.4%
ess than 99.4% but equal to or more than 30%
99.3%
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%
ess than 99.1%but equal to or more than 99.0%
Less than 99.0%
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
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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 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.
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