Loading...
HomeMy WebLinkAbout20-1103 NeoAwareS1-RSCRI PTION AGREEMENT . / THfS AGREEMENT is hereby made; Arid entered into this S "day of NNE 2020, by and between the Cite of Elgin, Illinois a municipal corporation (hereinafter referred to as "City") and Neo-Aware, L,LC, an Illinois limited liability, company, (hereinafter referred to as "Neo- Aware"' or "Seller").. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the isufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: I. PURCHASE, City shall purchase, and Neo-Aware shall sell the goods and/or services described by Attachment A, attached hereto and made a part hereof. 2. TERMS. This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachment A, 3. LAWNELW>Y,_' . This agreement ;is subject to and governed by file fawn of the State of Illinois. 'venue far the resolution of any disputes or "the enforcement of any rights arising out of or in connection with this agreement shall be the Circuit Court of Kane County, Illinois, Neo-Aware .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 Neo-Aware agrees that service. by, first class U.S. mail to Zlato I�:oprivec, 1901 N. Roselle Road, suite $0o, Schaumburg, Illiois 60195 shall constitute effective service, Both parties hereto waive any rights to a jury. 4; NO MODIF CAT1ON: There shall be no,modification of this agreement, except in writing and: executed with the same formalities as the original, 5;. MERGER. This agreement embodies the whole agreement of the parties, There are t o promises, terms, conditions or obligations 'other than those contained herein, and this agreement shall supersede. all previous communications, representations or agreements; either verbal., written or implied between the parties hereto. 6. MEREST, Neo-Aware hereby waives: any and all claimns or rights to interest on money claimed to be due pursuant to this agreement, and;waives any and all such rights to interest to which. it may otherwise be entitled pursuant to law, including, but riot limited to; pursuant to the Local Government Prompt Payment Act (50 ILCS 505/1, et seq. ), as amended, or the Illinois Interest Act (815 1LCS 205/1, et svq.);. as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 7, S VERABILITY, The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreeiment are deemed to be void or otherwise unenforceable for. any reason, the remainder of thisagreement shall remain in full force and effect. $: COMPLIANC-WITH LAW. Notwithstanding: any other provision, this agreement, it is expressly agreed .and understood that in connection with. the performance of this agreement, Neo- Aware shall comply with all applicable federal, state, city and other requirements of law, including,. but not limited to, any applicable requirements regarding prevailing wages, minimum wage; workplace .safety and legal status of employees. Without limiting the .foregoing, Neo-Aware hereby certifies, represents and warrants to the City that all of Neo-Aware's employees and/or agents who will be. providing products and/or services with respect to this agreement shall be legally authorized to work in the United States. Neo-Aware shall also, at its expense, secure all permits: and licenses; pay al charges and fees, and give alI notices necessary and incident to the due and lawful prosecution of the worm, and/or the products and/or services to be provided for in this agreement., The City shall have the right to audit any records in the possession or control of Neo-Aware to determine Neo-Aware's compliance with the provisions of this section. In the event the City proceeds with such an audit, NeoyAware ;shall snake available to the City Neo-Aware's relevant records at no cost to the City. City shall pay any and all .costs associated with any such audit. 9. C.ONFLICT. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A hereto, the terms and provisions of this purchase agreement shall supersede and control. 10: fA:YMENT. City shall pay the total sum of $4,000 within thirty (30) days of city's receipt of invoice. IL LIMITATION OF -DAMAGES. in no event shall City be liable for any monetary damages in excess of the purchase price contemplated by this agreement. In 'no event shall City be liable for any consequential, special. or punitive damages, or any damages resulting from loss of profit. 12. INDEM IF C' ION. To the fullest extent permitted by law, Neo-Aware agrees to and. shall indemnify, defend and hold harmless the City, its officers, employees, boards and commissions from and against any and all claims, suits;. judgments, 'eosts, attorney's fees, damages. or any and -all other relief or liability arising out of or resulting. from or through or alleged; to arise out of any acts or negligent acts or omissions of Neo•Aware or Neo-Aware's officers, employees, agents or subcontractors in the performance of this agreement, including but not limited to, all goods delivered or services or work performed hereunder, In the event of any action against the. City, its officers, employees, agents, boards or commissions :covered by the foregoing: duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing:. 13, WAIVER. Neither party hereto shall be responsible for any consequential, indirect, punitive. -or incidental damages for any reason whatsoever. Any delay or failure to enforce any rights by either party arising: out of or pursuant to this Agreement shall not coast#ute, and shall not be construed as, a waiver of any such rights. 14. NO_OTHER ,AGREEMENTS. This Agreement is :the :only agreement between the parties hereto regarding the subject matter hereof.. There are no other' agreements, either ora1, written or implied, between the parties hereto regarding the subject matter hereof: This Agreement may only be altered or modified by written instrument signed by both parties. The person signing this Agreement certifies that s/he has been authorized by the Seller to commit the Seller contractually and has been authorized to execute this Agreement on its behalf 2 M, WiTNESS WHEREOF, the parties have hereto set their hands the day and year first above written. NEO-AWARE, LLC 'title CITY tN 'Richard G. YOM, City MaTagor Attest: city / Jerk F Al.egal J),ept\Agrccment\Nco-,Aware MAM Seas Subscription Agr�l 0-22-20,doex Page I of 3 ATTACHMENT A. NEO-AWARE MUNICIPAL ASSET MANAGEMENT SYSTEM "Software as a Service Pricing Agreement for the City of Elgin Subject.to the Terms and Conditions attached, Neo-Aware, LLC (`"Neb.—AWARE"') hereby agrees to allow the City of Elgin, Illinois, a municipal . corporation ("ELGIN") to access NEO-AWARE's Municipal Asset management bystem unaer the following Software as a Service Pricing Agreement. A. riml YOar Set Upj-8ubscr1p-bQn- Em - $4,000 First year fees include software set-up, training, and :support services necessary to. prepare the Municipal Asset. Management (MAM) system for use, as well as legacy data migration and licensing for the first 12, months of use.. First year fee does not include customization. B. Subsequent AnnUal-Subscriptign Fgg for Initlai Term w $4,000 The subsequent annual sLibscription fee includes: support services and licensing for an additional 12 months of the Municipal Asset Management (MAM) system. C. Subscriplia.a Fee Billing 0 The :First -Year Set-Up/Subscription 'fee shall be invoiced upon contract signing. * the annualsubscription fees shall be ;invoiced yearly on the anniversary of this agreement. Payments are due within 30 d . ays after the Invoice dote. D. Oplionji lute r—fa�CeQ=z a NONE E. Initial Terrn: Three-year Initial Term which begins. upon contract sign . ing, After the initial Term, Elgin can cancel service anytime by giving NEOAWME a minimum of 90 days written notice of termination date. - ,e, LLU ... q ..... ..... .. .. . ............... Print Name: ,Zlatko Koprivec Title: President Date; NEO-AWARE MUNICIPAL ASSET MANAGEMENT SYSTEM "'Software as a Service Terms and Conditions A. Agreein ent Definitions ``municipalI I Yoe and refers to the entity that has executed Asset Man4gernekit. 4'�,aqd - System Software as a Service Pricing; Agree (the "Pricing A&reemenfl) that accompaniesand incorporates these Terms and Conditions: sei vine coits�sts :of (die Pricing Agreementand.these `Germs.andConditions amcollectivdly referred to as the"Agreemene.). Software as A system administration, systom .. managemdnt, and system monitoring activities that NF.0-AWARE LLC perform$ for its Municipal Asset Manage ent Sy$tcm (collectilvely,the. "Set vices"). T the ftare products owned The term "Municipal Asset Management System" refers tQ $Q or distributed b NFO.AWARE to which NEO-�AWARE grants You access as pan of the Services. The left "Users" shall mean those: P 'y .individ4als authorized by you of po Your behalf to use the Services. B. Rights Granted ?s �acceptance of your order and. for the duration of the Term. of this Agreement, You have the nonexclusive, non - Upon NEO-AWARE. , assignable, royalty free, worldwide limited right to use the Services solely for Your municipal asset management. purposes and Subject to Services for this purpose And You are responsibie for Your. Users' the terms of the Agreement. You may allow Your Users to use the compliance, with the Agrement. you. acIcnowle0ge that MO -AWARE, has no delivery obligation and Will not ship Copim Of the Rage 2 of 3 so4wott that ru►ip iv—k.t t-,.t WARE's Municipal, Adjudication'System to You as part of the Services You agree that You do hot acquire tinder tbo Agreement . right. to use the Municipal Adjudication System, beyond the scope or the duration of the Term of this Agreerneirt. Upon thc: eaO of the Term, Your right to access or use the Services shall terminate. C. Third Parq Agreements In the event You de*site to integrate NJO-AWARE's Municipal Asset Management system with third -party systems, it may be necessary for: You to enter into additional contracts with those third -party vendors in order to use some of NEO-AWARE's third -Party integration feattires. NEO-AWARE has .no control and is not liable with respect to the services provided to You by third:party vendors and any price increases from suciithird-parir vendors shall be Your responsibility. D. You. r Datn You retain all ownership in and to Your :Data. The term "Your Data' refers to all municipal asset data, documents, and photographs collected on belaalfof You with respect to the"Services, NEO-AWARE will undertake all reasonable measures to protect Your Data from unauthorized •access and will comply with the NEQ TARE Services Privacy Policy; which Can be found on NEO-AWARE's website. Upon termination of the. Agreement, NEO-AWARE will provide You an electronic copy of Your Data within sixty days after the effective date ofterminatibil, E. lotellectuat Property NEO-AWARE or i� licensors retain all ownership and intellectual" property rights to the Services and to its Municipal AssetMartagemeni System: NEO AWARS retains all ownership and intellectual property rights to anything delivered under the Agreement, including any future developments; regardless of whettter'You, or any of Your employees or agents, had any input or.in any way assisted in any such, new de'veiopment. You may not: • :Allow access to tlte. Services available in any manner to any third -party or For any purpose not authorized by this Agreement unless sucb access is expressly permitted by NEO-AWARE; • copy, reproduce; distribute; republish, download, display. post or transmit in any form or by any means, any` of the Program Materials, except. for the use of Your authorized Users; provided, however, that notwithstanding anything to the, contrary contained herein; the City°s good faith compliance with the provisions of the Illinois Freedom.of Information Act (S ILCS 140/1 et seq) ski€ill not constitute; and shall not be construed as a broach of this Agreement, and,: * modify; make derivative works of, disassemble, reverse compile, or reverse engineer any part of'the Services ("the foregoing prohibition includes but is not "limited to review of data structures or similar materials produced by programs); F. Pricing an& Billing. The Annual Subscription Fee pricing set forth in the Pricing Agreement will remain, fixed during the Initial Term. After the expiration of the Initial Term, NE(} -AWARE reserves the right to modify the Annual Subscription Fee pricing by providing Yma minimum of90 clays advanced written notice before such price charige goes into effect. You agree to remit full; payment ofNEO-AWARE's invoices within thirty (30) days of receipt; For any Partial year, during the Term, the Fee (including the minimum fee) shall be proratedbased on the number of days that the Services were provided fiat such year. NEO-AWARE may audit Your use of the Services. You agree to cooperate with NEO- AWARI's audit and provide reasonable assistance and access; to information. G. Termination After the initial terrrt, You shall have the right to terminate this Agreement for any reason (or no reason at all) by providing NEO-AWARE a nainirrium of90 days advanced written notice of the effective date oftlie termination of'Services. NEO-AWARE may immediately suspend Your password, account, and access to or use of the Services (i) if You W1 to pay any sums due NEOrAWARE. under the Agreement within ten days after written notice from NEO-AWARE of the. payment default, or (ii)'if You. violate any other tirovision of this Agreement and you. do not cure said default within thirty days after written notice from NEO: AWARE. Regardless of the reason for the termination. of this Agreement, you agree to pay all 'fees due NEO-AWARE which accrueorare incurred prior to :the termination of the.Agreement ors a pro rata ad valorem basis. H. Limitation of Liability NEO-AWARE DOES. NOT CIUAR ANTES THAT THE SERVICES WILL 13I; PERFgRMED ERROR -FREE OR UNINTERRUPTED, OR THAT NEO-AWARE,WILL CORRECT ALL SERVICE ERRORS. YOU ACKNOI&FLEDGE THAT NEO-AWARE DOES NOT CONTROL THE TRANSFER OF DATA OVER. COMMUNICATIONS PACILItIES, INCLUDING THE INTOINET, AND THAT [ HE Sl RVICE MAY BE SIJI3JECTTO"LIMITATIONS, DELAYS, AND O'I`HER PROBLEMS INHERENT TN THE USE DI SUCH COMMUNICATIONS FACILITIES. NEO-AWARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM $UCH PROBLEMS. IN THE EVENT THERE IS A SERVICE INTERRUPTION WHICH LASTS MORE THAN 24'HOURS DUETO THE FAULT OF NEO-AWARE, NT O-AWARE WILL REMIT A SERVICES FEE CREDIT 10 YOU CALCULATED Q N A P R O It A T'E D B A S I S OF NET MONTHLY USAGE FEE FOR TIME MONTH. IN WHICH THE BREACH OCCURRED- TITS REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND NEQ=AWAlt1„'S SOLE LIABILITY, FOR ANY BREACHES .OF`TiiIS AGREEMENT: TO THE EXTENT NOT PROHIBITED BY LAW,; `.THERE ARE NO .EXPRESS OR IMPLIED WARRANTIES FOR MERCHANTABILITY, SATISFACTORY QUALITY ANlS FIIIVESS FORA PATLTICLJLARPiJRPOSE,NEITH:ER PARTY SHALL BE L,IAB.LE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNI Nt, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS ':OF REVENUE OR PROl~11 S, N>a0-AWAttE':S Page 3 of 3. MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS, A SERVICE AGREEMENT, WHETHER. IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVEN`C.EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS; ACTUALLY PAID TO NEO-AWARE F.OR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PREaDING THE, EVENT GIVING RISE TO SUCH rCLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST NEO-AWARE SHALL BE REDUCER BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER WE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILfTY., Other I. Nothing contained in this Agreement shall be construed as creating a joint Venture; partnership, or employment relationship between the parties, nor shall either party have the right; power, or authority to create any obligation or duty, express or implied,;on behalf of the other; 2. NEO-AWAR8 mayassign'this Agreement by providing written notice of theassigneewho will assumeNEO-AWARE obligations under.this Agreement; You may not assign this Agreement without NE(;-AWARE's prior written consent. 3. You shall obtain at Your sole expense. any .rights and consents from third -parties necessary for NEO-AWARE :and its subcontractors to perform the Services Wider the Agreement. 4. Except for actions for nonpayment or breach of NEO-AWARE's proprietary rights, no action, regardless of form,. axising out of or relating to the Agreement may be brought by either patty more than two years'afterthe cause of action has accrued, S. Neither of us shall be responsible for failure or delay of performance i f caused by: an act ofwar, hostility; or sabotage; aetof God; electrical, internet, or telecommunication outage that is not caused by the obligated parity`, government restrictions (including the denial or cancellation of any, export. or other license); .other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitig$te the effect of a force majeure event. If such event continues for more than 30 days, either of us May cancel unperfarmod Services upon written notice. This section does not excuse either party's obligation to take reasonable steps to follow:its normal disastier recovery procedures or Your of?ligation to pay for'Services already provided:. You agree.that NEO-AWARE may identify You as a.recipient ofour Services. 7. This Agreement may be executed in two or snore counterparts, each of which shall be deemed to be an originat, and each of which together shall constitute a single instrument. Copies of this Agreement (as well as any documents related to this Agreement) signedand transmitted by a party by electronic transmission shall' be deemed for all purposes as eontaining the original signature of the transmitting party and legally binding upon such transmitting party. F:1L,ega1 Dept\AgreewentlNeo=AWAre MAM Saa$ Subscription Agr-Attachment A -Cleats 1.0-22-2040cx: