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Home My WebLink About21-0524 Rosetta StonePURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 1� day of m l4 v 2021, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Rosetta Stone, Ltd., a Virginia limited liability company, (hereinafter referred to as "Rosetta Stone" 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 Rosetta Stone shall sell the goods and/or services described by Attachment A, attached hereto and made a part hereof. 2. TERM. This Agreement shall terminate on June 1, 2024. 3. TERMS. This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachment A. 4. 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. Rosetta Stone 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 Rosetta Stone agrees that service by first class U.S. mail to John Campbell, 1621 N. Kent St., Suite 1200, Arlington, VA 22209 shall constitute effective service. Both parties hereto waive any rights to a jury. 5. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 6. INTEREST. Rosetta Stone 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 seg.), 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. 8. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, Rosetta Stone 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, Rosetta Stone hereby certifies, represents and warrants to the City that all of Rosetta Stone 's employees and/or agents who will be providing products and/or services with respect to this agrecment shall be legally authorized to work in the United States. Rosetta Stone shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, 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 Rosetta Stone to detennine Rosetta Stone 's compliance with the provisions of this section. In the event the City proceeds with such an audit, Rosetta Stone shall make available to the City Rosetta Stone 's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 9. 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. 10. 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 supersede and control. 11. PAYMENT. City shall pay the total sum of $6,504.90 within thirty (30) days of delivery or city's receipt of invoice, whichever is later. The aforementioned total sum is inclusive of all freight, shipping and applicable taxes. 12. DELIVERY. Rosetta Stone shall complete delivery of all goods on or before June 1, 2021. 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 Rosetta Stone 's sole expense. 15. INDEMNIFICATION. To the fullest extent permitted by law, Rosetta Stone 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, costs, 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 Rosetta Stone or Rosetta Stone'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 2 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. 16. RELATIONSHIP BETWEEN THE PARTIES. This Agreement shall not be construed so as to create a joint venture, partnership, employment or other agency relationship between the parties hereto. 17. 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 constitute, and shall not be construed as, a waiver of any such rights. 18. LIMITATION OF ACTIONS. Rosetta Stone shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates, officers, employees, agents, attorneys, boards and commissions of any nature whatsoever and in whatsoever forum after two (2) years from the date of this Agreement. 19. NO OTHER AGREEMENTS. This Agreement is the only agreement between the parties hereto regarding the subject matter hereof. There are no other agreements, either oral, 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. IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above written. ROSETTA STONE, LTD, Paul Mishkin Print Name JAW+---45e- Signature CEO Title F:\Legal DepOAgreement\Rosella Stone Purchase Agr 5-5-21.docx CIT GIN Richard G. Kozal, City Manager Attest: City Clerk ATTACHMENT A SERVICE ORDER FORM January 20, 2021 Rosetta Stone Contact: Martha Teu Senior Account Manager Phone: (800) 788-0822 ext 7937 Email: mtcu@rosettastone_com Customer Shipping Address: Customer Billing Address: Jim Lalley Jim Lalley City of Elgin City of Elgin 151 Douglas Ave 151 Douglas Ave Elgin, IL 60120-5539 Elgin, IL 60120-5539 US US Contact Phone: (847) 289-2616 Billing Contact: Billing Contact Phone: Contact Email: lalleyj@cityofelgin.org Billing Contact Email: RosettaStone-A. - Rosetta Stone Ltd. 135 West Market Street Harrisonburg, Virginia 22801 (P) 800-788-0822 (F) 540-437-2843 www.rosettastone.com We are excited to present this quotation for products and services in the Rosetta Stone@ Language Learning Suite. Rosetta Stone Ltd. provides language learning software and services under its Rosetta Stone@ brand. Rosetta Stone language products and any related online services, training and user documentation are referred to collectively herein as "Rosetta Stone Product." ® PRODUCT DESCRIPTION1'Y EINCT PRICE TOTAL (Rosetta Stone(g) CatalystTM (Bronze) provides each Authorized End User with online access to the language learning solution, which encompasses learning tools for multiple skill levels, learner placement, and proficiency testing (please mote that proficiency testing is available for English language learning only). Solution also includes implementation help, and reporting tools. GSA Contract Number GS-35F-284AA 1 t) USD 650.49 USD 6,504.90 (Discount Amount 10 USD 0.00 USD 0.00 Sub Total USD 6,504.90 Total Sales Tax USD 0.00 Total Shipping Charges USD 0.00 [hand Total USD 6,504.90 Noun - GSA Contract Number: GS-35F-284AA Cage Code: I FVN5 DUNS Number: 799280128 Page I of 2 SOF NO-:01202021 GN00091051 INVOICING AND PAYMENT TERMS Rosetta Stone will invoice Customer for the total purchase price stated above upon execution of this Order Form. Invoices are payable on Net 60 day terms F.O.B. Destination. SPECIAL PROVISION Rosetta Stone anticipates that its products and solutions will evolve in the course of this multi -year contract and therefore reserves the right to upgrade or replace existing versions of the software being currently offered with a comparable language learning solution. page 2 of-2 st)F Nu.:012020216NOO(JA W 1