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Home My WebLink About20-41Resolution No. 20-41 RESOLUTION AUTHORIZING EXECUTION OF AN END-USER LICENSE AGREEMENT AND SUPPORT SUBSCRIPTION WITH NETMOTION SOFTWARE, INC. FOR THE PURCHASE OF NETMOTION MOBILITY, DIAGNOSTICS, MOBILE IQ AND MOBILE IQ APP FOR SPLUNK 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 execute an End -User License Agreement and Support Subscription on behalf of the City of Elgin with Netmotion Software, Inc., for the purchase of Netmotion mobility, diagnostics, mobile IQ and mobile IQ app for Splunk, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: March 26, 2020 Adopted: March 26, 2020 Vote: Yeas: 9 Nays: 0 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk DocuSign Envelope ID: 4276D617-5217-4CDF-8C53-2A6249E7267F PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 27th day of March, 2020, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and NetMotion Software, Inc., a Washington corporation, (hereinafter referred to as "NetMotion" 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 NetMotion shall sell license subscriptions and support services provided for herein pursuant to the terms and provisions described by Attachments A and B, attached hereto and made a part hereof. 2. TERM. This Agreement shall commence on March 27, 2020 and shall terminate on March 26, 2023. 3. 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. NetMotion 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 NetMotion agrees that service by first class U.S. mail to Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater, WA 98501-0000 shall constitute effective service. Both parties hereto waive any rights to a jury. 4. NO MODIFICATION. 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 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. 6. INTEREST. NetMotion 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. 7. 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. DocuSign Envelope ID: 4276D617-5217-4CDF-8C53-2A6249E7267F 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 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 Attachments A or B hereto, the terms and provisions of this purchase agreement shall control. In the event of any conflict between the terms or provisions of Attachments A and B hereto, the terms and provisions of Attachment A shall control. 10. PAYMENT. City shall pay the total sum of $31,668 annually as described by Attachment B. All payments shall be made within 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 B shall be all-inclusive, and shall be inclusive of all freight, shipping and applicable taxes. 11. DELIVERY. NetMotion shall complete initial delivery of all goods on or before May 1, 2020. 12. TERMINATION. The following shall constitute events of default under this Agreement: (a) any material misrepresentation made by NetMotion to the City; or (b) any failure by NetMotion 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 NetMotion shall be limited to reasonable payment for and goods and/or services already provided by NetMotion pursuant to this Agreement. Nothwithstanding anything to the contrary provided for herein, City may terminate this Agreement without penalty upon sixty (60) days written notice for convenience. In the event of such early termination, City shall pay NetMotion for usage actually incurred on a pro rata basis. 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. 2 DocuSign Envelope ID: 4276D617-5217-4CDF-8C53-2A6249E7267F 14. 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. 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. IN WITNESS WHEREOF the parties have hereto set their hands the day and year first above written. NETMOTION SOFTWARE, INC. Dan Pagel Print Name DwuSigned by: VA, P!t� Signature chief Revenue Officer Title / LGIN L/ Ric ar G. Koza , City Manager Attestw/,/&/ha� City rk F:\Legal Dept\Agreement\NetMotion Software -Purchase Agreement 3-24-20.docx ATTACHMENT A Customer. Current license holder Account: City of Elgin Address: 150 Dexter Ct City, State Zip Code: Elgin, IL 60120 Contact Name: Mike Bayard Emalt: bayard_m@cityofelgin.org Phone Number. • Land: (847) 289-2574 Mobile: License Group#. Click or tap here to enter text Mobility Licenses: Perpetual Licenses to be converted to Subscription Licenses Product(s) Mobility No. of Devices 377 No of Add'l Servers: Unlimited Maintenance Period: 28 February 2020 Modules (Yes/No) Policy. ® NAC: 0 Analytics: 0 Diagnostic Licenses: Products) Diagnostics No. of Devices 160 Perpetual Licenses to be converted to Maintenance Period: 1 March 2020 Subscription Licenses Mobile IQ Licenses: Products) Mobile IQ No. of Devices 377 Perpetual Licenses to be converted to Maintenance Period: 1 March 2021 Subscription Licenses r mationsoftvvare.t rs� 1 +t W262.7626 +C 2017 NetMotion )Qftware, Iry Alt rrytx; w1wfv wt. DocuSign Envelope ID: 21364BAE-7036-4F92-848F-CDD44DC3EB1C Customer agrees to discontinue use of the Perpetual Based Software and to transition licenses of the Perpetual '.',.,; Based Software to a Subscription License of NetMotion COMPLETE. License term will commence starting and ending on , (the "Term-), paid annually. Customer agrees that all 377 licenses will be renewed on or before 2/28/2020 at the $84 per year, per license rate and that rate of $84 per year, per device will be locked in for the 377 licenses until 2/27/2023. Future subscription orders above 377 licenses will be offered at $84 per year, per device for the duration of the contract with a minimum order quantity of 25 licenses. All software and licenses will be converted from Perpetual to Subscription thirty (30) days from effective date. By signing this document, Customer agrees to all terms and conditions as outlined in the appropriate End User License Agreement that can be found at htWs://www.netm-otionsoftware.com/leaal-and-coWriaht/ Returned signed form to: customerservice@netmotionsoftware.com $*VTvot*rnoftw»rex*m I �t 866.2623626 �0 2017 NetMatlun Softs are, Im, All ug1t;; ieserced Printed N + ff47 "itlIe: Customer Signatureii�J77-: Signature auti. Signature 1 - 4&MAd G,M-4 Returned signed form to: customerservice@netmotionsoftware.com $*VTvot*rnoftw»rex*m I �t 866.2623626 �0 2017 NetMatlun Softs are, Im, All ug1t;; ieserced Printed N + ff47 "itlIe: NetMotion Approval Signature auti. Signature Date: ClU18 6io4o enter a date. Returned signed form to: customerservice@netmotionsoftware.com $*VTvot*rnoftw»rex*m I �t 866.2623626 �0 2017 NetMatlun Softs are, Im, All ug1t;; ieserced Ship To: Mike Bayard City of Elgin 150 Dexter Ct Elgin, IL 60120-5555 (847) 289-2574 bayard_m@cityofelgin.org Dear Mike, This quote is valid until March 30, 2020. ATTACHMENT B March 25, 2020 Quote #: Territory: Account lD: Q-166851-6 Mid -Central - Corporate 00100000005bsrs I will follow up with you to answer any questions. Until then, please do not hesitate to contact me. Tyler Burgess Inside Sales Representative tyler.burgess@netmotionsoftware.com Phone: Above prices are quoted in the currency shown. Certain local, state, and/or national tax may be applicable. Tax -exempted customers must provide official documentation in compliance with applicable law to avoid sales tax charges. Please note the pricing in this quote is subject to change if additional licenses or software features are requested. Maintenance renewals are based on the then -current software list prices at the time of renewal and will include the total quantity of licenses, servers, and features in use at the time of renewal. This pricing quote is confidential and may not be redistributed without the prior written permission of NetMotion. NetMotion Software, Inc. 11505 Westlake Ave N, Suite 500 1 Seattle, WA 98109 1 Tel. +1.206.691.5500 Page 1 of 1 SKU Quantity Unit List Extended Discount" City of Product Description Price List Price Elgin Price The full suite of NetMotion capabilities, including all of the functionality NMS - COMPLETE 377 USD USD USD USD 31,668.00 available in Core plus the ability to gather and analyze data on your - SUBS 10.00/mo. 45,240.00 13,572.00 mobile fleet in clean, real-time dashboards. Complete also features powerful policy controls, extending your security perimeter and further enhancing the user experience. (Effective from 3/27/2020 through 3126/2021) USD USD USD 31,668.00 Subtotal 45,240.00 13,572.00 USD USD USD 31,668.00 Total 45,240.00 13,572.00 I will follow up with you to answer any questions. Until then, please do not hesitate to contact me. Tyler Burgess Inside Sales Representative tyler.burgess@netmotionsoftware.com Phone: Above prices are quoted in the currency shown. Certain local, state, and/or national tax may be applicable. Tax -exempted customers must provide official documentation in compliance with applicable law to avoid sales tax charges. Please note the pricing in this quote is subject to change if additional licenses or software features are requested. Maintenance renewals are based on the then -current software list prices at the time of renewal and will include the total quantity of licenses, servers, and features in use at the time of renewal. This pricing quote is confidential and may not be redistributed without the prior written permission of NetMotion. NetMotion Software, Inc. 11505 Westlake Ave N, Suite 500 1 Seattle, WA 98109 1 Tel. +1.206.691.5500 Page 1 of 1