HomeMy WebLinkAbout20-25 Resolution No. 20-25
RESOLUTION
AUTHORIZING EXECUTION OF A MASTER SUBSCRIPTION AGREEMENT WITH
OKTA, INC., FOR THE PURCHASE OF CLOUD-BASED USER IDENTIFICATION
SERVICES AND A PURCHASE AGREEMENT WITH SAYERS TECHNOLOGY, INC.,
FOR THE PURCHASE OF LICENSE SUBSCRIPTIONS AND SUPPORT SERVICES
FOR THE OKTA CLOUD USER IDENTITY MANAGEMENT SOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that
pursuant to Elgin Municipal Code Section 5.02.020B9 the City Council hereby finds that an
exception to the requirements of the procurement ordinance is necessary and in the best interests 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 execute a Master Subscription Agreement on behalf of the City of
Elgin with Okta, Inc., for the purchase of Okta cloud-based user identification services, a copy of
which is attached hereto and made a part hereof by reference; 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 execute a Purchase Agreement on behalf of the City of Elgin with
Sayers Technology, Inc., for the purchase of license subscriptions and support services for the Okta
Cloud User Identity Management Solution,a copy of which is attached hereto and made a part hereof
by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: February 26, 2020
Adopted: February 26, 2020
Omnibus Vote: Yeas: 7 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
DocuSign Envelope ID:D7D1BF24-DACD-4151-9F38-CCCOC68C29D2
PURCHASE AGREEMENT
THIS AGREEMENT is hereby made and entered into this 2 6 t h day of February
2020, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as
"City") and Sayers Technology, LLC, a Delaware limited liability company (hereinafter referred to
as "Sayers" or "Seller").
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto
hereby agree as follows:
1. PURCHASE. City shall purchase, and Sayers shall sell license subscriptions and support
services provided for herein pursuant to the terms and provisions described by Attachment A,
attached hereto and made a part hereof.
2. LAW/VENUE. This agreement is subject to and governed by the laws of the State of
Illinois. Venue for 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. Sayers 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 Sayers agrees that service by
first class U.S. mail to Sayers Technology, LLC, 825 Corporate Woods Parkway, Vernon Hills,
Illinois 60601 shall constitute effective service. Both parties hereto waive any rights to a jury.
3. NO MODIFICATION. There shall be no modification of this agreement, except in writing
and executed with the same formalities as the original.
4. MERGER. This agreement embodies the whole agreement of the parties. There are no
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.
5. INTEREST. Sayers hereby waives any and all claims 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 not limited to, pursuant to the Local
Government Prompt Payment Act (50 ILCS 505/1, et seq.), as amended, or the Illinois Interest Act
(815 ILCS 205/1, et seq.), as amended. The provisions of this paragraph shall survive any
expiration, completion and/or termination of this agreement.
6. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the
terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any
reason; the remainder of this agreement shall remain in full force and effect.
8. EXECUTION. 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
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shall be treated in all manners and respects as an original document. The signature of any party on
a copy of this agreement transmitted by fax machine or e-mail shall be considered for these
purposes as an original signature and shall have the same legal effect as an original signature. Any
such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal
effect as an original document. At the request of either party any fax or e-mail copy of this
agreement shall be re-executed by the parties in an original form. No party to this agreement shall
raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such
defense.
9. CONFLICT. 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
control.
10. PAYMENT. City shall pay the total sum of$58,484.00 as described by Attachment A and
shall be paid within thirty (30) days of delivery or city's receipt of invoice, whichever is later.
Notwithstanding anything to the contrary provided for herein all pricing, fees and amounts listed in
Attachment A shall be all-inclusive, and shall be inclusive of all freight, shipping and applicable
taxes.
11: DELIVERY. Sayers shall complete delivery of all goods on or before February 28, 2020.
12. TERMINATION. The following shall constitute events of default under this Agreement:
(a) any material misrepresentation made by Sayer to the City; or(b) any failure by Sayer to perform
any of its obligations under this Agreement including, but not limited to, any of the following: (i)
failure to commence performance of this Agreement at the time specified in this Agreement; (ii)
failure to perform this Agreement with sufficient personnel and equipment or to deliver product to
ensure the performance or completion of this Agreement within the specified time; (iii) failure to
perform this Agreement in a workmanlike manner reasonably satisfactory to the City; (iv) failure to
promptly re-perform within reasonable time the services that were rejected by the City as erroneous
or unsatisfactory; or (v) failure to comply with a material term of this Agreement. In the event of
such termination by the City, the City's liability to Sayer shall be limited to reasonable payment for
and goods and/or services already provided by Sayer pursuant to this Agreement.
13. 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.
14. TRANSFER OF TITLE/RISK. Transfer of title, and risk of loss shall pass to the City
upon delivery of the goods. All transportation and delivery shall be at Sayers's sole expense.
15. APPROPRIATION OF FUNDS. The fiscal year of the City is the 12 month period ending
December 31. The obligations of the City under any contract for any fiscal year are subject to and
contingent upon the appropriation of funds sufficient to discharge the obligations which accrue in
that fiscal year and authorization to spend such funds for the purposes of the contract.
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If, for any fiscal year the term of the Agreement, sufficient funds for the discharge of the City's
obligations under the contract are not appropriated and authorized, then the Agreement shall
terminate as of the last day of the preceding fiscal year, or when such appropriated and authorized
funds are exhausted, whichever is later, without liability to the City for damages, penalties or other
• charges on account of such termination.
SAYERS TECHNOLOGY, LLC LGIN
John Kasser fr r /
Print Name ichard G. Kozal, City anager
DDocuSigned by:
t&l. 6S9Ar
14F30F6E89C7483... Attest: .5ae4A
Signature City Clerk
chief operating officer
Title
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PREPARED BY PREPARED FOR QUOTE INFORMATION
Kevin Dunne City of Elgin Quote#: 011813
Account Executive 150 Dexter Court Version: 3
Elgin, Illinois 60120 Delivery Date: Feb 20, 2020
Mobile: (331)454-6727 Expiration Date: Feb 28, 2020
kdunne@sayers.com Jeff Massey Terms: Net 30
masseyj@cityofelgin.org
(847) 931-5642
PRICE PROTECTION. The pricing for the applicable Service for two (2) renewal Terms (as defined below) shall be the
same as in the initial Term. The foregoing increase restriction shall not apply if(i)the pricing provided to Reseller was
promotional, (ii) Reseller reduces the Renewal Term, or(iii) Reseller reduces its Users for any Service after the initial
Term, as designated on this Order Form.
SERVICE TERMS. The Service is purchased on a Price per Unit of Measurement (UOM) as defined below:
1.1 Users per Month is a per-User subscription basis and Customer may authorize no more than the number of Users
specified above. In addition, (i)the number of Users purchased may not be decreased during the Term, (ii) additional
Users may be added during the then-current Term at the same
pricing as that for the pre-existing Users there under, prorated for the remainder of the Term in effect at the time the
additional Users are added, and (iii)the added Users shall terminate on.the same date as the then current Term. User
subscriptions are for named Users only and cannot be shared or used by more than one User, but may be reassigned to
new Users replacing former Users who no longer require ongoing use of the Service.
1.2 Monthly Active Users(MAU) per Year are purchased on a per-Active User in a calendar month basis and Customer
may not exceed the number of Active Users specified above per annual Term. A Monthly Active User shall be calculated
as when a User authenticates with the Service, provided that if a unique User authenticates with the Service more than
one(1)time in a calendar month that will only be calculated as one (1)Active User. In addition, (i)the number of Monthly
Active Users purchased may not be decreased during the Term and (ii)the added Monthly Active Users shall terminate
on the same date as the then-current Term. In the event that Customer exceeds the specified Quantity of MAUs per Year
for any Platform Service, Customer will be subject to an overage fee that is calculated as two times the Price/UOM of the
relevant Service(s) as defined.
Okta - License Subscriptions & Support
DESCRIPTION PRICE QTY EXT. PRICE
P000020 IT Products -Adaptive MFA, Users per Month $26.64 900 $23,976.00
P000052 IT Products-Single Sign-On, Users per Month $8.88 900 $7,992.00
P000055 IT Products-Universal Directory, Users per Month $8.88 900 $7,992.00
P000009 Sandbox-Preview Sandbox $0.00 1 $0.00
P000103 Support-Premier Success Package $5,994.00 1 $5,994.00
Subtotal $45,954.00
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Okta - Professional Services & Training
DESCRIPTION PRICE QTY EXT. PRICE
P000100 Professional Services -SmartStart-Gold -Prepaid $12,500.00 1 $12,500.00
P000085 Training -Okta Essentials-Prepaid $0.00 1 $0.00
P000417 .Misc/Add-On -Oktane20(Early Bird) $0.00 2 $0.00
Subtotal $12,500.00
Quote Summary
DESCRIPTION AMOUNT•
Okta -License Subscriptions & Support $45,954.00
Okta -Professional Services &Training $12,500.00
Total $58,454.00
Terms&Conditions
• All pricing,fees,and amounts listed are exclusive of taxes,duties,shipping fees,and similar amounts,all of which are the Customer's
responsibility.
• We reserve the right to cancel orders arising from pricing or other errors.
• The items in this quote may be non-cancellable or non-returnable once ordered.
• The pricing and payment terms offered in this quote are subject to approved credit.
To accept this quote and place your order,please submit a Purchase order to your account executive referencing this quote number.
•
Quote#011813 v3 Privileged and Confidential Page 2 of 2
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OKTA,INC.
MASTER SUBSCRIPTION AGREEMENT
For Customers Purchasing Through a Reseller
This Okta, Inc. Master Subscription Agreement("Agreement") is made and entered into as of February 26, 2020 (the"Effective Date")
by and between Okta, Inc. ("Okta"), a Delaware corporation with its offices at 100 First Street, San Francisco, CA 94105 and City of
Elgin, Illinois,a municipal corporation ("Customer")with offices at 150 Dexter Court,Elgin,IL,60120. Customer and Okta hereby agree
as follows:
1. Definitions.
1.1. "Affiliate"means any entity that directly or indirectly controls, is controlled by,or is under common control with Okta or Customer
entity signing this Agreement. "Control,"for purposes of this definition,means direct or indirect ownership or control of more than 50%of the
voting interests of the subject entity.
1.2. "Free Trial Service"means any Okta service or functionality that may be made available by Okta to Customer to try at Customer's
option,at no additional charge,and which is clearly designated as"beta,""trial,""non-GA,""pilot,""developer preview.""non-production,"
"free trial,""evaluation,""early access,"or by a similar designation.
1.3. "Customer Data"means all electronic data submitted by or on behalf of Customer to the Service.
1.4. "Documentation"means Okta's user guides and other end user documentation for the applicable Service available on the online help
feature of the Service, as may be updated by Okta from time to time including without limitation the materials available at
https://support.okta.com,and the'trust and compliance' Documentation available at https://www.okta.com/trustandcompliance.
1.5. "Non-Okta Application"means a web-based,offline,mobile,or other software application functionality that is provided by Customer
or a third party and interoperates with a Service.
1.6. "Professional Services" means implementation and configuration services provided by Okta in connection with the Service, as
described more fully in a Statement of Work. Professional Services shall not include the Service.
1.7. "Reseller Order Form" means an ordering document pursuant to which Customer shall place orders to Reseller for the Service,
Training Services, Support Services, and/or Professional Services purchased, to be provided by Okta under this Agreement. Each Reseller
Order Form shall include the Service ordered,capacity licensed(i.e.the number of Users, log-ins,etc.),pricing,bill to,sold to,and the Term.
Reseller Order Forms shall be subject solely to and incorporate by reference the terms of this Agreement.
1.8. "Reseller"means the authorized Okta reseller identified on the Reseller Order Form.
1.9. "Service" means the products and services purchased by Customer and provided by Okta, as specified on an Order Form and as
described in the Documentation."Service"excludes the Professional Services.Free Trial Service,and Non-Okta Applications.
1.10. "Statement of Work"means a document that describes certain Professional Services purchased by Customer under this Agreement.
Each Statement of Work shall incorporate this Agreement by reference.
1.11. "Support Services" means the support services provided by Okta in accordance with Okta's then-current support policy and as
identified on a Reseller Order Form.
1.12. ''Training Services"means the education and training services provided by Okta as described more fully in an applicable Order Form.
1.13. "Term"has the meaning set forth in Section 11.1.
1.14. "Users" means individuals(including non-human devices, such as applications or services) who are authorized by Customer to use
the Service,for whom a subscription to the Service has been procured.Users may include,for example,Customer's and Customer's Affiliates'
employees,consultants,clients,external users,contractors,agents,and third parties with which Customer does business.
2. Free Trials,Service,Professional Services,and Training Services.
2.1. Free Trials. If Customer registers for a Free Trial Service on Okta's website, Okta will make such Free Trial Service available to
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Customer on a trial basis,free of charge,until the earlier of(a)the end of the free trial period for which Customer registered to use the applicable
Free Trial Service(s),or(b)the start date of any Service subscription purchased by Customer for such Service(s).Notwithstanding anything to
the contrary in this Agreement,during the free trial,the Free Trial Service is provided"as-is"without any representation or warranty.
2.2. Okta's Obligations. Okta shall make the Service available to Customer pursuant to this Agreement and all Reseller Order Forms
during the Term,and grants to Customer, through the Reseller, a limited, non-sublicensable,non-exclusive, non-transferable right during the
Term to allow its Users to access and use the Service in accordance with the Documentation,solely for Customer's business purposes.During
the Term, the overall functionality of the Service will not materially decrease. Customer agrees that its purchase of the Service or the
Professional Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written
public comments made by Okta with respect to future fiinctionality or features.
2.3. Customer's Obligations.Customer is responsible for all activities conducted under its and its Users' logins on the Service.Customer
shall use the Service in compliance with this Agreement, the applicable Order Forms, Documentation, and applicable law and shall not: (i)
copy,rent,sell,lease,distribute,pledge,assign,or otherwise transfer,or encumber rights to the Service,or any part thereof,or make it available
to anyone other than its Users;(ii)send or store in the Service any personal health data,credit card data,personal financial data or other such
sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act,.Gramm-Leach-Bliley
Act,or the Payment Card Industry Data Security Standards;(iii)send or store infringing or unlawful material in connection with the Service;
(iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs to the
Service; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of,the Service or the data contained therein; (vi)
modify, copy or create derivative works based on the Service, or any portion thereof; (vii) access the Service for the purpose of building a
competitive product or service or copying its features or user interface; or(viii)delete,alter,add to or fail to reproduce in and on the Service
the name of Okta and any copyright or other notices appearing in or on the Service or which may be required by Okta at any time.
Any use of the Service in breach of this Agreement, Documentation or Order Forms,by Customer or Users that in Okta's judgment threatens
the security, integrity or availability of the Service, may result in Okta's immediate suspension of the Service; however, Okta will use
commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat
prior to such suspension.
2.4. Professional Services;Training Services.Customer and Okta may,through the Reseller,enter into Statements of Work that describe
the specific Professional Services to be performed by Okta. Okta shall provide any Training Services in accordance with Okta's then-current
Training Services terms.If applicable,while on Customer premises for Professional Services or Training Services,Okta personnel shall comply
with reasonable Customer rules and regulations regarding safety, security, and conduct made known to Okta,and will at Customer's request
promptly remove from the project any Okta personnel not following such rules and regulations. •
2.5. Customer Affiliates.Customer Affiliates may purchase and use Service subscriptions and Professional Services subject to the terms
of this Agreement by executing Reseller Order Forms or Statements of Work hereunder that incorporate by reference the terms of this
Agreement,and in each such case,all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes
of such Reseller Order Form(s)or Statement(s)of Work.
3. Security,and Support.
3.1. Security.Okta shall:(i)maintain appropriate administrative,physical,and technical safeguards to protect the security and integrity of
the Service and the Customer Data as described in the Documentation;(ii)protect the confidentiality of the Customer Data;and(iii)access and
use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement,and as otherwise expressly permitted
in this Agreement("Security Program"). Such Security Program will conform with the Okta security protocols which are further described in
Okta's most recently completed Service Organization Control 2 (SOC 2)audit reports or other similar independent third party annual audit
report("Audit Report"). Upon Customer's request,Okta shall provide Customer with a copy of Okta's then-current Audit Report. In no event
during the Term shall Okta materially diminish the protections provided by the controls set forth in Okta then-current Audit Report. Except
with respect to a Free Trial Service,to the extent that Okta processes any Personal Data(as defined in the DPA)contained in Customer Data,
on Customer's behalf,in the provision of the Service,the terms of the data processing addendum at https://www.okta.com/trustandcompliance
("DPA")as may be updated by Okta if required by applicable law,which are hereby incorporated by reference,shall apply and the parties agree
to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA,when and as applicable,Customer and
its applicable Affiliates are each the data exporter,and Customer's signing of this Agreement,and an applicable Affiliate's signing of an Order
Form,shall be treated as signing of the Standard Contractual Clauses and their Appendices.
3.2. Support Services. During the Term, Okta shall provide Support Services to Customer in accordance with Okta's then-current Okta
support policy, and as identified in an Order Form. In the event that the level of support is not identified in the Order Form, Customer shall
receive a"basic'.level of support that is included in the Service at no additional cost.
4. Confidentiality. Each party("Recipient")may,during the course of its provision and use of the Service or provision of Professional
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Services hereunder, receive, have access to, and acquire knowledge from discussions with the other party ('Discloser") which may not be
accessible or known to the general public,such as technical and business information concerning hardware, software, designs,specifications,
techniques,processes,procedures,research, development,projects, products or services,business plans or opportunities,business strategies,
finances,costs,vendors,penetration test results and other security information;defect and support information and metrics;and first and third
party audit reports and attestations ("Confidential Information"). Confidential Information shall not include, and shall cease to include, as
applicable, information or materials that (a) were generally known to the public on the Effective Date; (b) become generally known to the
public after the Effective Date,other than as a result of the act or omission of the Recipient;(c)were rightfully known to the Recipient prior to
its receipt thereof from the Discloser;(d)are or were disclosed by the Discloser generally without restriction on disclosure; (e) the Recipient
lawfully received from a third party without that third party's breach of agreement or obligation of trust;or(0 are independently developed by
the Recipient as shown by documents and other competent evidence in the Recipient's possession. The Recipient shall not: (i) use any
Confidential Information of the Discloser for any purpose outside the scope of this Agreement, except with the Discloser's prior written
permission,or(ii)disclose or make the Discloser's Confidential Information available to any party,except those of its employees,contractors,
and agents that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a
"need to know"in order to carry out the purpose of this Agreement or as may be required by law.Each party agrees to protect the confidentiality
of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential •
information of like kind,but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the
Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide the Discloser with prior notice of such
compelled disclosure(to the extent legally permitted)and reasonable assistance,at the other party's cost,if the other party wishes to contest the
disclosure. The obligations set forth in Section 3.1 and not this Section 4 apply to Customer Data. Notwithstanding anything to the contrary
provided herein,the City's good faith compliance with the Illinois Freedom of Information Act(5 ILCS 140/1,et seq.)shall not constitute and
shall not be construed as a breach of this Agreement.
5. Ownership,Feedback,and Aggregated Data.
5.1. Customer Data. As between Okta and Customer, Customer owns its Customer Data. Customer grants to Okta, its Affiliates and
applicable contractors a worldwide, limited-term license to host,copy,transmit and display Customer Data,as reasonably necessary for Okta
to provide the Service in accordance with this Agreement.Subject to the limited licenses granted herein,Okta acquires no right,title or interest
from Customer or Customer's licensors under this Agreement in or to any Customer Data. Customer shall be responsible for the accuracy,
quality and legality of Customer Data and the means by which Customer acquired Customer Data.
5.2. Okta Ownership of the Service. Except for the rights expressly granted under this Agreement,Okta and its licensors retain all right,
title, and interest in and to the Service, Documentation, the Professional Services, the Training Services materials, including all related
intellectual property rights inherent therein.If Customer purchases Professional Services,Okta grants to Customer a worldwide,non-exclusive,
non-transferable,non-sublicensable right to use the Professional Services solely for Customer's use with the Service. No rights are granted to
Customer hereunder other than as expressly set forth in this Agreement.
5.3: Feedback.Okta shall have a royalty-free,worldwide,transferable,sublicenseable,irrevocable,perpetual license to use or incorporate
into the Service any suggestions, ideas,enhancement requests,feedback, recommendations or other information provided by Customer or its
Users relating to the features,functionality or operation of the Service,the Professional Services,or the Training Services("Feedback").Okta
shall have no obligation to use Feedback,and Customer shall have no obligation to provide Feedback.
5.4. Statistical Usage Data. Okta owns the statistical usage data derived from the operation of the Service,including data regarding web
applications utilized in connection with the Service, configurations, log data, and the performance results for the Service ("Usage Data").
Nothing herein shall be construed as prohibiting Okta from utilizing the Usage Data to optimize and improve the Service or otherwise operate
Okta's business;provided that if Okta provides Usage Data to third parties,such Usage Data shall be de-identified and presented in the aggregate
so that it will not disclose the identity of Customer or any User(s)to any third party.
6. Fees,Expenses,and Taxes.
6.1. Fees. Customer shall pay the fees set forth in the applicable Reseller Order Form("Fees")to Reseller in accordance with the terms
and conditions set forth in the applicable Reseller Order Form. All fees are based on access rights acquired and not actual usage.All Fees are
due and payable by Customer to its Reseller and are nonrefundable by Okta to Customer unless expressly noted hereunder. All Fees are due
and payable by Customer to its Reseller and are nonrefundable by Okta to Customer unless otherwise expressly noted under. Any disputes
related to the Fees or invoicing shall be handled directly between Customer and the Reseller.
6.2. Expenses. Unless otherwise specified in the applicable Statement of Work, upon invoice from Okta,Customer will reimburse Okta
for all pre-approved, reasonable expenses incurred by Okta while performing the Professional Services, including without limitation,
transportation services,lodging,and meal and out-of-pocket expenses related to the provision of the Professional Services. Okta will include
reasonably detailed documentation of all such expenses with each related invoice.
7. Warranties and Disclaimer.
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7.1. Warranties.
a) Service.Okta warrants that during the Term:(i)the Service shall perform materially in accordance with the applicable Documentation,
(ii)Okta shall make commercially reasonable efforts to make the Service available to Customer 24 hours a day, 7 days a week,every day of
each year(except for any unavailability caused by a Force Majeure event);(iii)Okta will employ then-current,industry-standard measures to
test the Service to detect and remediate viruses,Trojan horses,worms,logic bombs,or other harmful code or programs designed to negatively
impact the operation or performance of the Service,and(iv)it owns or otherwise has sufficient rights in the Service to grant to Customer the
rights to use the Service granted herein.As Customer's sole and exclusive remedy and Okta's entire liability for a breach of the warranties set
forth in this Section 7.1(a), Okta shall use commercially reasonable efforts to correct the non-conforming Service at no additional charge to
Customer,and in the event Okta fails to successfully correct the Service within a reasonable time of receipt of written notice from Customer
detailing the breach,then Customer shall be entitled to terminate the applicable Service and receive an immediate refund of any prepaid,unused
Fees for the non-conforming Service. The warranties set forth in this subsection shall apply only if the applicable Service has been utilized in
accordance with the Documentation,this Agreement and applicable law.
b) Professional Services.Okta warrants that the Professional Services will be performed in a good and workmanlike manner consistent
with applicable industry standards.As Customer's sole and exclusive remedy and Okta's entire liability for any breach of the foregoing warranty
set forth in this Section 7.1(b) and only this Section 7.1(b), Okta will, at its sole option and expense, promptly re-perform any Professional
Services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming Professional Services.
7.2. Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 7.1,OKTA AND ITS SUPPLIERS
HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE
SERVICE, PROFESSIONAL SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF•THIRD PARTY RIGHTS, TITLE,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT
RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS
AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION 7.1. OKTA MAKES NO
WARRANTY REGARDING ANY NON-OKTA APPLICATION WITH WHICH THE SERVICE MAY INTEROPERATE.
8. Limitation of Liability.
8.1. IN NO EVENT WILL EITHER PARTY (OR OKTA'S THIRD PARTY LICENSORS) BE RESPONSIBLE OR LIABLE WITH
RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR
INACCURACY OR CORRUPTION OF DATA,(B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES,RIGHTS,
OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR (D) FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.
8.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES
ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS
AFFILIATES HEREUNDER FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE-MONTH PERIOD PRECEDING
THE FIRST INCIDENT OUT WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN
ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY,BUT WILL NOT LIMIT CUSTOMER'S
AND CUSTOMER'S AFFILIATES' PAYMENT OBLIGATIONS UNDER THE 'FEES' SECTION ABOVE.
9. Indemnification.
9.1. Okta Indemnification Obligation. Subject to Section 9.3, Okta will defend Customer from any and all claims, demands, suits or
proceedings brought against Customer by a third party alleging that the Service, as provided by Okta to Customer under this Agreement
infringes any patent,copyright,or trademark or misappropriates any trade secret of any third party(each,an"Infringement Claim").Okta will
indemnify Customer for all damages,costs,reasonable attorneys' fees finally awarded by a court of competent jurisdiction,or paid to a third
party in accordance with a settlement agreement signed by Okta, in connection with an Infringement Claim. In the event of any such
Infringement Claim, Okta may, at its option: (i)obtain the right to permit Customer to continue using the Service, (ii)modify or replace the
relevant portion(s)of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of
time,or(iii)terminate this Agreement as to the infringing Service and refund to Customer any prepaid,unused Fees for such infringing Service
hereunder.Notwithstanding the foregoing,Okta will have no liability for any Infringement Claim of any kind to the extent that it results from:
(1) modifications to the Service made by a party other than Okta, (2) the combination of the Service with other products, processes or
technologies(where the infringement would have been avoided but for such combination),or(3)Customer's use of the Service other than in
accordance with the Documentation and this Agreement. The indemnification obligations set forth in this Section 9.1 are Okta's sole and
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exclusive obligations.and Customer's sole and exclusive remedies,with respect to infringement or misappropriation of third party intellectual
property rights of any kind.
9.2. Customer Indemnification Obligation. Subject to Section 9.3,Customer will defend Okta from any and all claims,demands,suits or
proceedings brought against Okta by a third party alleging a violation of a third party's rights arising from Customer's provision of the Customer
Data.Customer will indemnify Okta for all damages,costs,reasonable attorneys' fees finally awarded by a court of competent jurisdiction,or
paid to a third party in accordance with a settlement agreement signed by Customer.
9.3. Indemnity Requirements.The party seeking indemnity under this Section 9("Indemnitee")must give the other party("Indemnitor")
the following: (a)prompt written notice of any claim for which the Indemnitee intends to seek indemnity,(b)all cooperation and assistance
reasonably requested by the Indemnitor in the defense of the claim,at the Indemnitor's sole expense,and(c)sole control over the defense and
settlement of the claim,provided that the Indemnitee may participate in the defense of the claim at its sole expense.
10. Customer Mention.Okta may,upon Customer's prior written consent,use Customer's name to identify Customer as an Okta customer
of the Service,including on Okta's public website.Okta agrees that any such use shall be subject to Okta complying with any written guidelines
that Customer may deliver to Okta regarding the use of its name and shall not be deemed Customer's endorsement of the Service.
11. Term,Termination,and Effect of Termination.
11.1. Term. The term of this Agreement commences on the Effective Date and continues until the stated term in all Reseller Order Forms
have expired or have otherwise been terminated. Subscriptions to the Service commence on the date, and are for a period,as set forth-in the
applicable Reseller Order Form ("Term"). Upon expiration of the Term, unless otherwise stated on an applicable Reseller Order Form, the
Service will automatically renew for additional terms equal in duration to the initial Term (each a"Renewal Tenn"), unless and until either
party gives the other notice of non-renewal at least thirty(30)days prior to the end of the then-current Term or Renewal Term.
11.2. Termination. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party
materially breaches this Agreement and-does not cure such breach within thirty(30)days of such notice, or(ii)immediately in the event the
other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or
assignment for the benefit of creditors. Upon any termination for cause by Customer pursuant to this Section 11.2,Okta will refund Customer
a pro-rata portion of any prepaid Fees that cover the remainder of the applicable Reseller Order Form Term or Renewal Term after the effective
date of termination and a pro-rata portion of any prepaid Professional Services Fees that cover Professional Services that have not been delivered
as of the effective date of termination.
11.3. Effect of Termination.Upon termination of this Agreement for any reason,all rights and subscriptions granted to Customer including
all Order Forms will immediately terminate and Customer will cease using the Service (except as otherwise permitted in the "Retrieval of
Customer Data" section of the 'trust and compliance' Documentation)and Okta Confidential Information. Termination for any reason other
than termination for cause by Customer pursuant to Section 11.2(i)shall not relieve Customer of the obligation to pay all future amounts due
under all Order Forms. The sections titled "Definitions," "Confidentiality," "Ownership; Aggregated Data," "Fees, Expenses and Taxes,"
"Warranty Disclaimer," "Limitation of Liability," "Indemnification," "Term, Termination, and Effect of Termination," and"General" shall
survive any termination or expiration of this Agreement.
12. General
12.1. Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or Okta
without the other party's prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or
transfer shall be void and without effect.Notwithstanding the foregoing,either party may freely assign this Agreement in its entirety(including
all Reseller Order Forms), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition,
corporate reorganization,or sale of all or substantially all of its assets,provided that all fees owed and due have been paid.
12.2. Controlling Law.Attorneys' Fees and Severability.This Agreement and any disputes arising out of or related hereto shall be governed
by and construed in accordance with the laws of the State of Illinois,without giving effect to its conflicts of laws rules or the United Nations
Convention on the International Sale of Goods. In any action to enforce this Agreement the prevailing party will be entitled to costs and
attorneys' fees.In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to
be unenforceable,such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain
in full force and effect and enforceable.
12.3. Notices. All legal notices hereunder shall be in writing and given upon (i)personal delivery, in which case notice shall be deemed
given on the day of such hand delivery, or(ii) by overnight courier, in which case notice shall be deemed given one(1) business day after
deposit with a recognized courier for U.S.deliveries(or three(3)business days for international deliveries).
12.4. Force Majeure. If the performance of this Agreement or any obligation hereunder(other than obligations of payment)is prevented or
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restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks,hacking,or acts of terrorism
(a"Force Majeure Event"), the party so affected shall be excused from such performance and liability to the extent of such prevention or
restriction.
12.5. Equitable Relief. Due to the unique nature of the parties' Confidential Information disclosed hereunder, there can be no adequate
remedy at law for a party's breach of its obligations hereunder,and any such breach may result in irreparable harm to the non-breaching party.
Therefore,upon any such breach or threat thereof,the party alleging breach shall be entitled to seek injunctive and other appropriate equitable
relief in addition to any other remedies available to it,without the requirement of posting a bond.
12.6. Independent Contractors.The parties shall be independent contractors under this Agreement,and nothing herein shall constitute either
party as the employer,employee,agent,or representative of the other party,or both parties as joint venturers or partners for any purpose.There
are no third-party beneficiaries under this Agreement.
12.7. Export Compliance. Each party represents that it is not named on any U.S. government list of persons or entities with which U.S.
persons are prohibited from transacting,nor owned or controlled by or acting on behalf of any such persons or entities,and Customer will not
access or use the Service in any manner that would cause any party to violate any U.S. or international embargo, export control law, or
prohibition.
12.8. Government End User. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal
Acquisition Regulations(FAR),Customer acknowledges that elements of the Service constitute software and documentation and are provided
as"Commercial Items`as defined in 48 C.F.R.2.101 and are being licensed to U.S.government Customer as commercial computer software
subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department
of Defense("DOD"),the U.S.Government acquires this commercial computer software and/or commercial computer software documentation
subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement("DFARS")and its successors.This
U.S. Government End User.Section 12.8 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses
government rights in computer software or technical data.
12.9. Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe,kickback,payment,gift,or
thing of value from any of Okta employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the
ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction,Customer will use
reasonable efforts to promptly notify Okta.
12.10. Entire Agreement. This Agreement together with the Reseller Order Form(s) constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof,and any and all prior or contemporaneous written or oral agreements existing between the parties
hereto, including any non-disclosure agreement(s),and related to the subject matter hereof are expressly canceled. The parties agree that any
term or condition stated in Customer's purchase order or in any other of Customer's order documentation(excluding Reseller Order Forms)is
void.In the event of any conflict or inconsistency among the following documents,the order of precedence shall be:(1)the applicable Reseller
Order Form,(2)this Agreement,and(3)the Documentation. No modification,amendment or waiver of any provision of this Agreement will
be effective unless in writing and signed by both parties hereto. Any failure to enforce any provision of this Agreement shall not constitute a
waiver thereof or of any other provision.
Authorization
The Parties hereto have executed this Agreement by their respective authorized signatories.
DocuS ned by:
CUSTOMER AUT ZrA ION OKTA AUTHO�t ZATI
9asc. t
Accepted By: Accepted By: \--7F98n13e23206429...
Print Name: Richard G. Kozal Print Name Jose Vi 1 ar
Title: City Manager Title: Director of Revenue operations
1/21/2020
Date Signed: February26,2020 Date Signed:
ATT T
K berly A.Dewis, rdi Clerk
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City of Elgin Memorandum
y'b
R4TEDtt6
VIA E-MAIL
Date: February 21, 2020
To: Mayor and Members ofthe City Council
Richard G. Kozal, City Manager
From: William A. Cogley, Corporation Counsel
Subject: Disclosure with Respect to Proposed Agreements with Sayers Technology, LLC
and Okta, Inc.
The city council is scheduled to consider at the city council meeting on February 26, 2020, the
approval of proposed agreements with Sayers Technology, LLC and Okta, Inc. The agreement
with Sayers Technology is for the purchase of certain Okta, Inc. identity management products
including license subscriptions and support and for certain professional services and training
relating thereto. The related agreement with Okta, Inc. is a proposed master subscription
agreement for customers purchasing through a reseller.
The purpose of this memorandum is to disclose the fact that members of my immediate family
(my wife and daughter) and I own in our individual names stock of Okta, Inc. The stock
ownership interest in Okta, Inc. held by the members of my immediate family and I is an interest
of less than 1% in Okta, Inc. and Okta, Inc. stock is traded on a nationally recognized securities
market. Such a circumstance falls within one of the statutory enumerated permitted exceptions
to interests in a city contract. If my family and I held this interest in Okta, Inc. stock not in our
individual names but through a mutual fund or an exchange traded fund, no disclosure would be
required. However, in the circumstance where the stock is held in our individual names and not
through a mutual fund or an exchange traded fund, a public disclosure of such circumstance is
required.
To ensure that this disclosure is a public disclosure, by copy of this memorandum I am asking
the city clerk to place this memorandum on file in the city clerk's office and to make this
memorandum and disclosure available for public inspection. I will also be including this
memoranda and disclosure with the proposed resolution and contract documents for the agenda
item on these proposed agreements, so as to include this memorandum and disclosure as part of
the public city council agenda materials.
For your information, I did not participate in the identification or selection of the proposed
products, companies or in any negotiations with the companies of the terms of the proposed
agreements with the city. My only involvement with this matter has been to assign to Assistant
Corporation Counsel Michael Gehrman a request from the city's IT department to review the
form of the proposed agreements and to sign off on a transmittal memorandum by Mr. Gehrman.
Mayor and Members of the City Council - 2 - February 21, 2020
Richard G. Kozal
I informed Mr. Gehrman of this disclosure and in the legal vernacular placed a wall between Mr.
Gehrman and I with respect to the review of the form of the proposed agreements being
conducted by Mr. Gehrman. I instructed Mr. Gehrman to review the form of the proposed
agreements independently of me and not to communicate with me with respect to the proposed
agreements. I also have and will refrain from evaluating, recommending, approving, deliberating
or otherwise participating in the negotiation, approval, or both, of the contracts, work or business
with respect to the proposed agreements with Sayers Technology, LLC and Okta, Inc.
Please contact me if you have any questions or require any additional information on this matter.
Yv
ksb s/WAC
cc: Michael R. Gehrman (via email)
Christopher J. Beck(via email)
Kim Dewis (via email)
Jeff Massey(via email)