HomeMy WebLinkAbout21-0824 Monsido PURCHASE AGREEMENT
THIS AGREEMENT is hereby made and entered into this day of ►�`��,
2021, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as
"City") and Monsido, Inc.,a Florida corporation, (hereinafter referred to as "Monsido" 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 Monsido 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. 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. Monsido 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 Monsido agrees that service by
first class U.S. mail to Monsido 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. INTF.RF,ST. Monsido 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 50511, 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.
7. 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,
Monsido 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, Monsido
hereby certifies, represents and warrants to the City that all of Monsido'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. Monsido 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 Monsido to
determine Monsido's compliance with the provisions of this section. In the event the City proceeds
with such an audit, Monsido shall make available to the City Monsido's relevant records at no cost
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to the City. City shall pay any and all costs associated with any such audit.
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 Attachment A hereto, the terms and provisions of this purchase agreement shall
supersede and control.
10. PAYMENT. City shall pay the total sum of$6,400($3,200 per year for two(2)years)with the
first $3,200 payment being made on or before October 1, 2021 and the second $3,200 payment
being made on or before October 1, 2022. The aforementioned total sum is inclusive of all
applicable taxes.
11. 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. INDEMNIFICATION. To the fullest extent permitted by law, Monsido agrees to and shall
indemnify 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 Monsido or Monsido'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 up to the limits described at Section 6.2 of Attachment A. In the event of
any action against the City, its officers, employees, agents, boards or commissions covered by the
foregoing duty to indemnify and hold harmless, such action shall be defended by legal counsel of
the City's choosing.
13. 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.
14. 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.
15. LIMITATION OF ACTIONS. Monsido 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.
16. NO OTHER AGREEMENTS. This Agreement, together with the Attachment A hereto, 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.
Title
MONSIDO,INC. C LGIN
Ja.co6
t Name Richard G. Kozal,City Manager
Att t•
Signature
City
Clerk
FALegal Dept\Agreementuvlonsido Purchase Agr-Website Scanner Services 8-2-2Ldoc
ATTACHMENT
A
Customer:City of Elgin
'"nonsid0 5880Oberlin Dr.6th FI Suite Service Description
San Diego,CA 92121
Quote number:26709624
Offer valid through:August 10,2021 Prepared by: Ryan
Monsido Web Governance Watkins
Monsido is an online tool suite which scans your website once every 7 days or when you request an on-demand scan(up to the
specified number of on-demand scans included in your plan).After each scan,a status report about your website's condition will
be sent to you via email.Scan information can also be accessed in the Monsido dashboard.The intuitive dashboard contains
numerous tools which allow you and unlimited team members to find and solve issues and make improvements related to Quality
Assurance(QA),Accessibility,Search Engine Optimization (SEO)and Web Governance.
Some of Monsido's notable features include:
Weekly scan with report sent via email
On-demand scans when you need them
User-friendly intuitive dashboard
Unlimited users and ability to assign roles
Prioritized error reporting based on page views
Free live support and training
About Monsido
Monsido's goal is to help organizations of all types and sizes make website management and maintenance both easier and
more affordable by providing them with smart and easy-to-use solutions. Monsido has a global presence with offices in Australia,
Denmark,and the United States.
Service module descriptions
All modules may not be included in the selected plan.
Website Quality Assurance
The Monsido Quality Assurance module finds issues on your website which may affect user experience,such as misspellings,
broken links, readability issues and other inconsistencies. It also provides you with an overview of all files on your website
and allows you to track scripts to make sure they are correctly installed.
Document Scanning
The Document Scanning module checks your PDFs,Word, PowerPoint and RTF documents for broken links.With this module
enabled Content Policies also check the aforementioned document types.
Search Engine Optimization (SEO)
The SEO module automatically finds technical issues on web pages which may affect search engine rankings,such as missing
or duplicate title tags, heading tags,or alt text on images. It can also find content-related issues, such as content which is too
short.The SEO module not only alerts you to these errors and improvement possibilities,but also has in-tool suggestions on how
to fix the issues.
HTML Accessibility (WCAG 2.0/2.1 A, AA, AAA)
Make sure your website is in compliance with WCAG 2.0/2.1 A,AA,and AAA guidelines so everyone has a good
experience while on your website. Monsido will scan your website and locate accessibility issues.With our in-app fix
recommendations,accessibility issues are now easier to understand and fix to get your website up to standards.
PDF Accessibility Tracking
Monsido PDF Accessibility Tracking Tool lists all scanned PDF files linked from the scanned website(both internal PDFs and
PDFs linked to on external websites).This enables customers to review each PDF file in order to ensure compliance for the file
in question.With the Monsido PDF Accessibility Tracking Tool,customers can ensure that every listed file is thoroughly tested
and remediated without subjecting to the risks arising from incomplete compliance testing done by tools that are not able to test
all aspects of PDF accessibility.
PDF Accessibility Testing
The Monsido PDF Accessibility Testing Tool provided by Commonlook lists all scanned PDF files linked from the scanned
website(both internal PDFs and PDFs linked to on external websites)and enables the customer to queue them for testing for
WCAG 2.0 issues.
Uptime
The Uptime feature checks your website's response every 5 minutes and shows the result in graph form.The feature allows you
to set up real-time alerts for problems such as slow response or crashes.
Readability Testing
Monsido will test the Readability level for scanned pages and make the results available in the reports.Adjusting
readability levels for the target audience ensures that content is read and understood by the website's visitors.
Heatmaps
The Monsido Heatmaps feature provides detailed information about where website visitors spend time on your website"s
pages,shows visitor behavior and more.With Heatmaps, it is very easy to choose the page(s)to track through the Heatmaps
dashboard.
Analytics
The Monsido Analytics feature provides detailed information about the number of website visitors,visitor behavior,keywords,
popular web pages,and more. Monsido Analytics is very easy to use and understand through the intuitive dashboard.
Policies
The Monsido Policy feature allows you to set up policies for your site and search all crawled pages for violations and specific
content,such as words,strings of words,email addresses,or employee names.
PageAssist
The Monsido PageAssistTm feature allows you to add a personalization button to your website which allows your website visitors
to tailor the web page they're on to their individual needs.
PageCorrect
PageCorrectTm allows you to work efficiently by correcting quality assurance and accessibility errors directly via the
Monsido platform without having to login to your content management system.
Data Privacy Module
The Data Privacy module allows you to take control of the data on your website and demonstrate your efforts to be compliant
with existing data privacy standards.The easy-to-use module allows you to automate the management of your website's
personal data by scanning your domain in order to identify and categorize potential privacy issues.
Scans and Automated Reporting
Monsido will scan website pages which are publicly-accessible(up to the number of pages included in your plan and
available using web-crawling methods)every 7 days.Your plan also includes a specific number of on-demand scans which
can be performed as needed.After each scan,an automated report will be sent to you via email.
Support and Training
We offer premium support with white glove service on most of our service plans.Our goal is to respond to any support requests
within 24 business hours.On most plans,we also provide free user training for your entire team.Support can be reached
through our industry leading In-App chat,email,telephone or one-on-one webinar screen share.
Access to the Monsido Tool
The features and services described above can be accessed by logging in to Monsido at login.monsido.com with each user's
individual login.The customer admin can control access to Monsido by creating new users,deleting users,and editing
access privileges through the online interface.
Services Order Form
Customer name: City of Elgin Contact: Molly Center
Address: Phone:
Illinois,
United States Email:
Selected Service:
Web$Accessibility Compliance 2,500
Service Capacity: The Services Fee shall include
L Quality Assurance and On-page SEO audit
L Domain(s)scanned every for the duration of the term 7 days
LUp to domains scanned and authorized users 30 unlimited
LScanning of up to HTML pages(and documents if document scanning is selected)2,500
LScanning of documents for broken links(PDFs,Word, PowerPoint,and RTF files)
Limon-demand scans available per month
L Customer support
L Uptime monitor response check every minutes
L Policy compliance testing
LCollaboration features(Domain groups, User/Domain access, CMS integration)
LWeb-analytics(page views included per year) 10M
L Heatmaps
L HTML Accessibility checking (WCAG 2.0/2.1 -A,AA, AAA)
L PageAssist module for webpage personalization
PageCorrect module for quickly addressing issues on-the-spot from the Monsido platform
PDF Accessibility testing (WCAG 2.0)
Performance testing of up to HTML pages 3
Data Privacy testing of HTML pages
Service fees
The service fee for this agreement,subject to the terms of Section 4 of the Terms of Service, is:
For a 1-year Term: USD 3,200/year
x
For a 2-year Term: USD 3,200/year
For a 3-year Term: USD 3,200/year
(Please check the term length that applies)
Check this box to secure guaranteed US data hosting. Fee is 10%of the yearly service fee per year. (Example for
12-month term: ). USD 320
This offer is valid through August 10,2021.
Monsido,Inc.15880 Oberlin Dr.6th FI I San Diego,CA 92121 Quote#26709624-Page 5 of 10
Saas Services Agreement
This SOFTWARE AS A SERVICE AGREEMENT ("the Agreement") is entered into on this
day of , 20_, (the "Effective Date") between Monsido, Inc., a Florida corporation with a
principal place of business located at 5880 Oberlin Dr. 6th Fl, San Diego, CA 92121, ("Service
Provider"), and the Customer listed above ("Customer"). This Agreement includes and incorporates the
above Order Form, as well as the attached Terms of Service and Data Protection and Privacy Policy
Statement (located at https://bit.ly/315quOH) and contains, among other things, warranty disclaimers,
liability limitations and use limitations.
For Customer:
Signature:
Print name:
Job Title:
To accept this agreement,please complete and return it before August 10,2021.Pricing and
conditions may be subject to change thereafter.
Accounts Payable Information
Invoices are sent via email to the email address you provide below.Please also enter your accounts
payable's name and phone number.
Name:
Email:
Phone number:
Term start date:
Customer information for use on invoice
Company name:
Street address:
City and State:
Zip code:
Purchase order number(NOT required)
TERMS OF SERVICE
SECTION I: DEFINITIONS
As used herein,the following terms shall have the following definitions:
a)References to"Customer"mean a registered User of the Services.
b)References to"Customer Website"mean those publicly-available pages of Customer's Website. c)
References to"Dispute"mean any claim,conflict,controversy,disagreement between the Parties arising
out of,or related in any way to,these Terms(or any Terms,supplement or amendment contemplated by
these Terms,)including,without limitation,any action in tort,contract or otherwise, at equity or at law,or
any alleged breach,including,without limitation,any matter with respect to the meaning,effect,validity,
performance,termination,interpretation or enforcement of these Terms or any Terms contemplated by the
Terms.
d)References to`Effective Date"mean the date first set forth above.
e) References to "Material Breach" mean any breach of these Terms upon the occurrence of which a
reasonable person in the position of the non-breaching Party would wish to immediately terminate
these Terms because of that breach.
f)References to an"Order Form"mean an Order Form attached to these Terms of Service and signed by
a Customer.
g) References to the "Services"mean any and all services offered by Service Provider, including but not
limited to those Web governance and Web page crawling services provided to Service Provider's
Customers and any add-on services as set forth on the Order Form.
h)References to the"Terms"and/or"Agreement,"mean this,these Terms of Service as set forth herein. i)
References to"Service Provider"and/or"Monsido,"mean Monsido,Inc.,and its subsidiaries,parents
and affiliates.
j) References to the "Web site" mean the Web sites bearing the URL http://www.monsido.com and
app.monsido.com as well as any other Web site owned and/or operated by Service Provider related to
the Services.
SECTION I1: GENERAL PROVISIONS
2.1. About the Services. Service Provider provides an online tool suite and optional add-on services to
scan the Customer's Web site once every seven(7)days,or more frequently,if requested and included in
Customer's plan as set forth on the Order Form. Each scan shall produce a status report via email,which
is thereafter accessible via the online dashboard available via the Web site. Via this same dashboard,
Customer can also grant access to an unlimited number of permitted users within its own organization
(each an "Authorized User,") to find and solve issues and make improvements related to Quality
Assurance ("QA,") Search Engine Optimization ("SEO") and Web Governance. A current list of the
Services provided via the tool suite can be found online at http://monsido.com/features/and is subject to
change from time-to-time, without notice, and pursuant to Service Provider's sole and exclusive
discretion. Notwithstanding the foregoing,in the event that such features are downgraded,Customer shall
have the option to terminate this Agreement without penalty. In addition to the tool suite,Customer may
purchase additional add-on tools, including but not limited to the PageAssist software widget and the
PageCorrect feature.
2.2. Reliance on the Services: Assumption of the Risk. Customer acknowledges that the Services are
provided for general information only and should not be relied upon or used as the sole basis for making
decisions without consulting primary, more accurate, more complete or more timely sources of
information. Customer acknowledges further that any reliance on the Services is at Customer's own risk.
2.3.Restrictions and Responsibilities.In addition to the other restrictions on use set forth herein,
Customer will not,directly or indirectly:reverse engineer,decompile,disassemble or otherwise attempt
to discover the source code,object code or underlying structure,ideas,know-how or algorithms relevant
to the Services or any software,documentation or data related to the Services("Software");modify,
translate,or create derivative works based on the Services or any Software(except to the extent expressly
permitted by Service Provider or authorized within the Services);or use the Services or any Software for
timesharing or service bureau purposes or otherwise for the benefit of a third party.Further,Customer
may not remove or export from the United States or any other authorized territory or allow the export or
re-export of the Services, Software or anything related thereto,or any direct product thereof in violation
of any restrictions,laws or regulations of the United States Department of Commerce,the United States
Department of Treasury Office of Foreign Assets Control, the EU embargoed countries list set forth by
the E.U. Common Foreign and Security Policy,or any other United States or European Union or foreign
agency or authority.As defined in FAR section 2.101, the Software and documentation are"commercial
items"and according to DFAR section 252.227 7014(a)(1)and(5)are deemed to be"commercial
computer software"and"commercial computer software documentation."Consistent with DFAR section
227.7202 and FAR section 12.212,any use modification,reproduction,release,performance,display,or
disclosure of such commercial software or commercial software documentation by the U.S.Government
will be governed solely by the terms of this Agreement and will be prohibited except to the extent
expressly permitted by the terms of this Agreement. Customer represents,covenants,and warrants that
Customer will use the Services only in compliance with all applicable laws and regulations. Customer
shall be responsible for obtaining and maintaining any equipment and ancillary services needed to
connect to,access or otherwise use the Services,including,without limitation,modems,hardware,
servers,software,operating systems, networking,web servers and the like(collectively,"Equipment").
Customer shall also be responsible for maintaining the security of the Equipment,Customer account,
passwords(including but not limited to administrative and user passwords)and files,and for all uses of
Customer account or the Equipment with or without Customer's knowledge or consent.
2.4. Restriction on Pages and Information Scanned. The Services are intended to be used to scan only
Customer's public-facing web pages. For the avoidance of doubt, in no event shall Customer utilize the
Services to scan private areas of Customer's Web sites, such as those areas that are password protected or
contain private information about Customer and/or its users, employees, contractors, officers, directors,
and/or other agents. In the event Customer so utilizes the Services in such a manner,Customer agrees and
acknowledges that Monsido shall not be held liable for any damages arising from or related to the same,
including but not limited to damages that may arise related to the failure to comply with data protection
rules and regulations. Customer shall utilize the Software to scan only those URLs and domains belonging
to Customer and/or for which Customer has a license to operate and manage the same. In no event shall
the Software be used to scan URLs and domains outside of Customer's control or otherwise in bad faith.
2.5. System Updates. The Services will include all updates and new versions of the Software for no
additional price increases through the duration of the Term. In the event Service Provider releases new
services, products or modules, which were not a part of Customer's original service plan,Customer may
elect to add such services,products or modules to its plan upon the payment of additional fees.
2.6. Technical Sort, Service Provider will provide Technical Support to Customer via both telephone
and electronic mail on weekdays during the hours of 7:00 am through 5:00 pm U.S.Pacific time,with the
exclusion of U.S. Federal Holidays ("Support Hours.") Customer may initiate a helpdesk ticket during
Support Hours by calling +1 858-281-2185 (United States Customer,) +44 20 3808 5496 (European
Customer,) or +45 89 88 19 15 (Scandinavian Customer,) via email at infoaa..monsido.com or via chat
support available online at https://monsido.com/services/help-center. Customer may also send us a
message at any time via our support ticket system on Customer's Account dashboards or via the form
available at htti)://monsido.com/contact/. Service Provider will use commercially reasonable efforts to
respond to all Helpdesk tickets within one (1) business day. We further provide technical support and
product training as well as help center support. For more information see
http://monsido.com/services/t)roduct-traininp-/and http:Hmonsido.com/services/help-center/.respectively.
SECTION III:ACCOUNTS,USE OF THE SERVICES
3.1. Online Accounts. Customer shall be given the opportunity to register via an online registration form
to create an account, (hereinafter Customer's "Account,") that will allow Customer and Customer's
Authorized Users to receive information from Service Provider and/or to participate in certain features of
the Services. Service Provider will use the information Customer provides in accordance with Service
Provider's Data Protection and Privacy Policy Statement, attached hereto. Customer represents and
warrants that all information Customer provides on the registration form is current,complete and accurate
to the best of Customer's knowledge. Customer agrees to maintain and promptly update Customer's
registration information so that it remains current,complete and accurate.During the registration process,
Customer may be required to choose a password. Customer acknowledges and agrees that Service
Provider may rely on this password to identify Customer. Customer is responsible for all use of
Customer's Account as well as any action taken thereunder by an Authorized User,regardless of whether
Customer authorized such access or use, and for ensuring that all use of Customer's Account complies
fully with the provisions of these Terms of Service.
3.2.M ul ' le Accounts Transfer Prohibited.Customer shall not have more than one(1)Account and shall
not sell,trade or transfer that Account to any other person or entity.
3.3.Right to Monitor.Service Provider shall have the right to monitor Customer's Account in Service
Provider's sole and exclusive discretion.
3.4. Customer Responsibilities. Customer shall ensure that any of Customer's Web sites are compatible
with the Service Provider's tools. If Customer is using an AJAX application,the AJAX application must
be designed to allow a crawler to access its content. Customer must use a current version of a major
internet browser (e.g. Firefox, Chrome, Safari, Internet Explorer, Edge or some similar, well-known
browser.)
Regardless of the Web browser or coding language used,Customer shall ensure that the Service
Provider's crawler is not blocked by any of the Customer's technology.
3.5. Data Confidentiality. Each party (the "Receiving Party") understands that the other party (the
"Disclosing Party") has disclosed or may disclose business,technical or financial information relating to
the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing
Party). Proprietary Information of Service Provider includes non-public information regarding features,
functionality and performance of the Service. Proprietary Information of Customer includes non-public
data provided by Customer to Service Provider to enable the provision of the Services("Customer Data").
The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information,
and (ii)not to use(except in performance or development of the Services or as otherwise permitted herein
or in the Service Provider's Data Protection and Privacy Policy Statement,attached hereto)or divulge to
any third person any such Proprietary Information, unless required by law. The Disclosing Party agrees
that the foregoing shall not apply with respect to any information after five (5) years following the
disclosure thereof or any information that the Receiving Party can document(a)is or becomes generally
available to the public, or(b)was in its possession or known by it prior to receipt from the Disclosing
Party, or (c) was rightfully disclosed to it without restriction by a third party, or(d)was independently
developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be
disclosed by law. Customer shall own all right, title and interest in and to the Customer Data. Service
Provider shall own and retain all right, title and interest in and to (a) the Services and Software, all
improvements, enhancements or modifications thereto,(b)any software,applications,inventions or other
technology developed in connection with the Services, Customer feedback or technical support, except
for any pre-existing intellectual property rights owned by Customer and(c)all intellectual property rights
related to any of the foregoing.Nothing in this provision shall be read to require Customer to provide any
feedback. Notwithstanding anything to the contrary, Service Provider shall have the right to collect and
analyze data and other information relating to the provision,use and performance of various aspects of
the Services and related systems and technologies(including,without limitation,information concerning
Customer Data and data derived therefrom), and Service Provider will be free(during and after the term
hereof)to use such information and data to improve and enhance the Services and for other development,
diagnostic and corrective purposes in connection with the Services and other Service Provider offerings.
No rights or licenses are granted except as expressly set forth herein.Notwithstanding anything to the
contrary herein, the City's good faith compliance with the provisions of the Illinois Freedom of
Information Act(5 ILCS 140/1,et seq.)shall not be construed as,and shall not constitute a breach of this
Agreement.
Section 3.6. Service Levels. The Services shall be available Ninety-Nine Percent (99.0%) of the time,
measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests
maintenance during these hours, any uptime or downtime calculation will exclude periods affected by
such maintenance. Further, any downtime resulting from outages of third party connections or utilities or
other reasons beyond Service Provider's control will also be excluded from any such calculation.
Customer's sole and exclusive remedy, and Service Provider's entire liability,in connection with Service
availability shall be that for each period of downtime lasting longer than one hour, Service Provider will
credit Customer Five Percent (5%) of the service fees for each period of sixty (60)or more consecutive
minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall
begin to accrue as soon as Customer(with notice to Service Provider)recognizes that downtime is taking
place, and continues until the availability of the Services is restored.In order to receive downtime credit,
Customer must notify Service Provider in writing within three (3) business days from the time of
downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such
credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1)
week of service fees in any one(1)calendar month in any event. Service Provider will only apply a credit
to the month in which the incident occurred. Service Provider's blocking of data communications or
other Service in accordance with its policies shall not be deemed to be a failure of Service Provider to
provide adequate service levels under this Agreement.
SECTION IV:FEES;TERMS OF PAYMENT;REFUNDS
4.1. Service Fee. Subject to the terms of the Order Form together with any trial offer set forth thereon,
Customer must pay the service fee and any additional add-on service fee each year during the Term in
advance. Payment of the first (1st) service fee shall be due and owing as set forth in Section 4.3 of this
Agreement. Service Provider reserves the right to change the service fee,or any other applicable fees and
charges and to institute new charges and service fees at the end of the Initial Term or then current renewal
term,upon thirty(30)calendar days'prior notice to Customer(which may be sent by email).
4.2.Invoicing.All service fees as set forth herein shall be pre-paid,in full,on a monthly,annual or per
Term basis,(the"Billing Cycle,")as set forth on the Order Form,on the first(1st)day of the Billing
Cycle, where the first(1st)day of the first(1st)Billing Cycle shall be the Effective Date set forth in the
Software as a Service Agreement entered into by and between the parties.Payment shall be due and
owing,in full, within thirty(30)calendar days of the Billing Date.
4.3.Form of Payment.Payment shall be made by Automated Clearing House("ACH")or wire transfer,
check,or reoccurring credit/debit card payment.A W9 form is available upon request.
4.4. Taxes. Customer is not responsible to collect or withhold any such taxes, including income tax
withholding and social security contributions, for Service Provider as a result of Customer's payment of
any and all fees.Any and all taxes,interest,or penalties,including any federal, state,or local withholding
or employment taxes, imposed, assessed, or levied as a result of these Terms shall be paid or withheld by
Service Provider. Monsido is solely responsible for taxes based upon Monsido's net income, assets,
payroll, property,and employees. Customer is a tax exempt governmental entity.
4.5. Suapension of Services. In the event a balance remains unpaid by Customer thirty-one(31)calendar
days following the first(1st) day of the Billing Cycle for the Fees set forth above, Customer agrees and
acknowledges that the Services shall be automatically suspended,without notice,until such payments are
made, in arrears. Unpaid amounts are subject to a finance charge of One-and-a-Half Percent (1.5%) per
month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all
expenses of collection and may result in immediate termination of Service.
4.6. Refunds. Due to the electronic nature of the Services,in no event other than material breach of these
Terms by Service Provider shall a refund be granted, in whole or in part, for any reason or no reason
whatsoever,including but not limited to Customer's cancellation of the Services prior the end of the Term,
Customer's failure to utilize the Services, or Service Provider's failure to meet any Service Level as set
forth herein unless such failure is intentional or malicious.
SECTION V:TERM AND TERMINATION
5.1. Term and Termination; Renewals. These Terms are legally binding as of the Effective Date and shall
continue for a term as set forth in the Order Form or until otherwise terminated as provided for herein,
(the "Initial Term.") Following the Initial Term and unless otherwise terminated as provided for herein
the Term shall automatically renew for successive terms, (each, a "Renewal Term,") with the Service
Fees due under this Renewal Term shall be (i) the Service Provider's then-current Service Fees for the
Services;or(ii)the Service Fee of the previous Term or Renewal Term plus three percent(3%);provided,
however, that: (a) such notice be given no fewer than thirty(30)calendar days prior to the last day of the
then-current term; and, (b)any such termination shall be effective as of the date that would have been the
first day of the next Renewal Term.Without limiting the right of a party to terminate these Terms,a party
may terminate this Agreement for convenience upon prior written notice to the other party with no fewer
than thirty (30) calendar days prior written notice. Further, without limiting the right of a party to
immediately terminate these Terms for cause as provided for in this Agreement,if either party materially
breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is
not diligently pursuing a cure to the non-breaching parry's sole satisfaction, within thirty (30) calendar
days after written notice of the breach,the non-breaching party may terminate these Terms for cause as of
a date specified in such notice. The Initial Term may be modified by agreement of the parties via the
Order Form in which case the Term set forth on the Order Form shall control.
5.2. Payments upon Termination. In the event that Customer terminates use of the Services,except for in
instances of Service Provider's material breach of these Terms,prior to the end of the Term,the remainder
of the service fees and other fees shall not apply if the cancellation occurs prior to October 1,2022, except
for any discount offered to Customer in exchange for a multi-year commitment,which shall be remitted to
Service Provider. In no event shall any fees paid be refunded, in whole or in part, for any reason or no
reason whatsoever, where Customer terminates use of the Services prior the end of the Term, Customer
failures to utilize the Services, or Service Provider fails to meet any Service Level as set forth herein
unless such failure is due to Service Provider negligence or material breach of this of this Agreement.
SECTION VI:DISCLAIMERS;LIMITATIONS OF LIABILITY
6.1. DISCLAIMER OF WARRANTY. Service Provider shall use reasonable efforts consistent with
prevailing industry standards to maintain the Services in a manner which minimizes errors and
interruptions in the Services and shall perform the Services in a professional and workmanlike manner.
Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency
maintenance, either by Service Provider or by third-party providers, or because of other causes beyond
Service Provider's reasonable control, but Service Provider shall use reasonable efforts to provide
advance notice in writingor e-mail of an scheduled service disruption. HOWEVERSERVICE
y y ,
PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR
ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE
OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION, THE SERVICES ARE PROVIDED "AS IS" AND SERVICE PROVIDER DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
NON INFRINGEMENT PROVIDED THE SAME IS NOT MALICIOUS OR WILLFUL.
6.2. LIMITATION OF LIABILITY. SUBJECT TO THE LAST SENTENCE OF SECTION 6.1 ABOVE,
(A) CUSTOMER AGREES THAT USE OF THE SERVICES (INCLUDING ANY RELATED
SOFTWARE PRODUCT PROVIDED BY SERVICE PROVIDER PURSUANT TO THESE TERMS OF
SERVICE) IS AT CUSTOMER SOLE RISK. NEITHER SERVICE PROVIDER NOR SERVICE
PROVIDER'S AFFILIATES NOR ANY RESPECTIVE EMPLOYEES, AGENTS, THIRD-PARTY
CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE USE OF THE SERVICES SHALL
BE UNINTERRUPTED OR ERROR FREE; NOR DOES SERVICE PROVIDER MAKE ANY
WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES
OR AS TO THE ACCURACY,RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED.
(B) SUBJECT TO THE LAST SENTENCE OF SECTION 6.1,ANY DOWNLOADABLE SOFTWARE,
PRODUCTS OR OTHER MATERIALS, WITHOUT LIMITATION, IS PROVIDED ON AN "AS IS"
BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,INCLUDING,
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS
FOR A PARTICULAR PURPOSE AGAINST INFRINGEMENT, PROVIDED THE SAME IS NOT
MALICIOUS OR WILLFUL, OR THE RESULT OF NEGLIGENCE OR BREACH OF THIS
AGREEMENT OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND
INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS
APPLICABLE TO THESE TERMS OF USE. (C) ALTHOUGH ALL INFORMATION AND
MATERIALS PROVIDED VIA THE SERVICES ARE BELIEVED TO BE RELIABLE, SERVICE
PROVIDER MAKES NO REPRESENTATIONS,NEITHER EXPRESSLY NOR IlVIPLIEDLY, AS TO
THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE SERVICES. (D)
EXCEPT WHERE THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 6.2 ARE
PROHIBITED BY LAW, IN NO EVENT SHALL SERVICE PROVIDER, SERVICE PROVIDER'S
EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT
PROVIDERS, VENDORS, OR THEIR RESPECTIVE DIRECTORS, OFFICERS,OR MEMBERS,BE
LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER,
INCLUDING BUT NOT LIMITED TO ANY DIRECT (EXCEPT FOR INSTANCES OF SERVICE
PROVIDER'S SOLE NEGLIGENCE), INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO EXEMPLARY,
RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, PERSONAL INJURY OR
DEATH, PROPERTY DAMAGE, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR
DATA, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE
SERVICES. (E) SERVICE PROVIDER DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND
FOR ANY UNAUTHORIZED ACCESS TO OR USE OF CUSTOMER'S CUSTOMER DATA
INFORMATION EXCEPT FOR INSTANCES OF SERVICE PROVIDER'S SOLE NEGLIGENCE AS
TO NON-CONFORMITY WITH INDUSTRY DATA PROTECTION STANDARDS. BY UTILIZING
THE SERVICES CUSTOMER ACKNOWLEDGES AND AGREES TO SERVICE PROVIDER'S
DISCLAIMER OF ANY SUCH LIABILITY. (F) EXCEPT WHERE THE LIMITATIONS OF
LIABILITY SET FORTH IN THIS SECTION 6.2 ARE PROHIBITED BY LAW, SERVICE
PROVIDER'S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF SERVICE PROVIDER'S
SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO CUSTOMER OR
ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE
AMOUNT OF FEES CUSTOMER PAYS TO SERVICE PROVIDER IN THE TWELVE(12)MONTHS
PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR(B)ONE THOUSAND U.S.DOLLARS
AND NO/CENTS ($1,000.00,) WHICHEVER IS GREATER.(G)FOR THE AVOIDANCE OF DOUBT,
THE FORGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTY SHALL
APPLY TO ANY AND ALL ADDITIONAL SOFTWARE PRODUCTS, TOOLS, OR WIDGETS
("OPTIONAL SOFTWARE PRODUCTS.") BY PURCHASING THE SAME, CUSTOMER AGREES
AND ACKNOWLEDGES THAT THE MISUSE OF SUCH OPTIONAL SOFTWARE PRODUCTS
MAY POSE SIGNIFICANT RISK TO CUSTOMER AND CUSTOMER'S END-USERS, AND
CUSTOMER HEREBY ACCEPTS FULL LIABILITY FOR THE SAME, SUBJECT TO THIS
SECTION 6.2. SOME JURISDICTIONS DO NOT ALLOW THE LMMATION OR EXCLUSION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE
LIMITATIONS MAY NOT APPLY TO CERTAIN CUSTOMERS. The above limitations shall survive
these Terms and inure to the benefit of Service Provider and Service Provider's employees,subsidiaries,
parents, agents, partners, third-party content providers, vendors and their respective directors, officers,
and members.
SECTION VII:INTELLECTUAL PROPERTY
7.1. Ownership. All proprietary software, third party licensed software, software libraries, services,
methodologies, techniques, algorithms, tools, materials, products, ideas, designs, and know-how used by
Service Provider in providing the Services (including all reports and their copies, enhancements,
modifications, revisions, and derivative works of any of the foregoing) and deliverables (whether oral or
written) are, and shall remain, the sole and exclusive property of Service Provider. Nothing herein shall
cause or imply any sale, license, or other transfer of proprietary rights of or in any third party software or
products from Service Provider to Customer.
7.2. Grant of License by Customer. Service Provider reserves the right to reference Customer on public
customer lists and to use Customer's name and logo on the Service Provider's Web site for marketing
purposes. Additionally, Service Provider may request the use of Customer's name and/or logo in press
releases, advertising material and other promotional material. Any such intent for use of Customer marks
will be presented to the Customer in advance.
7.3. Grant of License by Service Provider. In consideration of the payment of the service fee, subject to
the terms and conditions hereof and for the duration of the Term, Service Provider grants to Customer a
limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the
software and Services.
7.4. Restriction on Grant of License. Section 7.3, supra, shall only apply to the extent that Customer is
using the Services for legitimate business use as intended by the purpose of the Services and not for the
purpose of comparing the Services to a competitor or similar product of Monsido. Customer hereby
warrants and affirms its purpose in accessing or otherwise using the Services is for their intended purpose
only,and understands and agrees that any other use shall be considered fraud.
SECTION VIII: THIRD-PARTY ADVERTISEMENTS,PROMOTIONS, AND LINKS
8.1. Use of Third-Party Tools, Services, and Products. We may provide you with access or refer you to
Third-Party tools, services, and products over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to or refer you to such tools"as is"and"as available"
without any warranties, representations, or conditions of any kind and without any endorsement.We shall
have no liability whatsoever arising from or relating to your use of optional Third-Party tools,services or
products. Any use by you of optional tools, products, or services offered through the Services or
otherwise referred to you by us is entirely at your own risk and discretion,and you should ensure that you
are familiar with and approve of the terms on which tools, services, and products are provided by the
relevant Third Party provider(s).
SECTION IX:MISCELLANEOUS
9.19.1.Authority.Each Party represents and warrants to the other that it has full power and authority to enter
into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
9.2. Waiver. Any waiver of a right under these Terms of Service shall only be effective if agreed or
declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a
waiver and shall not prevent a Party from exercising that right in the future. The rights and remedies
herein provided are cumulative and not exclusive of any rights and remedies provided by law.
9.3.Force Majeure. Service Provider shall not be bound to meet any obligation if prevented from doing so
as a consequence of acts of God or force majeure,including but not limited to measures taken or imposed
by any government or public authority or in case of any other event beyond our control,including but not
limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist
activities, pandemics, states of emergency, government sanctions, embargos, nationalizations, strikes and
breakdowns of public utilities (such as of electricity or telecommunication services). Service Provider
shall use all reasonable efforts to notify Customer of the circumstances causing the delay and to resume
performance as soon as possible,both without undue delay.
9.4.Assi ent. Service Provider shall have the right to assign and/or transfer these Terms of Service and
Service Provider's rights and obligations hereunder to any wholly-owned subsidiary, parent company, or
affiliate after notifying Customer as provided for herein.Notwithstanding the forgoing,Services Provider
shall not assign and/or transfer these Terms of Service and Service Provider's rights and obligations
hereunder to any other third party except for as referenced above without providing thirty (30) calendar
days' written notice to Customer who shall have the option to terminate the Agreement at its option. In the
event Customer divests all or any part of its businesses to a third party (whether direct or indirect or by
sale, merger,consolidation,or otherwise)or reorganizes its businesses, Customer may assign or duplicate
its rights and obligations under this Agreement so as to retain the benefits of this Agreement for both
Customer and such third party.
9.5.Rights of Third Parties.These Terms do not give any right to any Third Party unless explicitly stated
herein.
9.6. Relationship of the Parties. The Parties are independent contractors under these Terms, and nothing
herein shall be construed to create a partnership, joint venture or agency relationship between them.
Neither Party has authority to enter into Terms of any kind in the name of the other Party.
9.7. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable
law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable
provision that most closely matches the intent of the original provision and the remainder of this
Agreement will continue in effect.
9.8.Notices.Except as explicitly stated otherwise,any notices shall be given by postal mail to the address
first set forth above,as amended from time-to-time.
Ent
ire
9.9. t e Agreement.This Agreement,together with the Order Form,Appendices,and Software as a
Service Agreement represents the complete and exclusive statement of the Agreement between the Parties
as to the subject matter hereof.No other Agreements, covenants,representations or warranties,express or
implied,oral or written,have been made by the Parties concerning this Agreement.
FALegal Dept\Agreement\Monsido Purchase Agr-Terms of Services-Clean 8-2-21.docx