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HomeMy WebLinkAbout23-0216 Essential PersonelPERSONNEL TECHNOLOGY, LLC (dba Essential Personnel) HOSTED APPLICATION SERVICES AGREEMENT THIS HOSTED APPLICATION SERVICES AGREEMENT (the "Agreement") is hereby made and entered into this / C day of x v2023 by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City" and PERSONNEL TECHNOLOGY, LLC, (dba Essential Personnel) a North Carolina limited liability company (hereinafter referred to as "EP"); WHEREAS, EP has developed and owns certain, proprietary software systems (each, an "Application" or the "Application Services"); and WHEREAS, City desires to subscribe to and access one or more Applications via the Internet, and EP desires to provide access to the Application(s), together with related maintenance and support services, all pursuant to the terms and subject to the conditions of this Agreement; NOW, THEREFORE, in consideration of the premises, of the mutual promises, agreements and covenants contained herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged by the parties, EP and City agree as follows: SECTION 1 License 1.1 Grant of License. Subject to the terms of this Agreement, EP hereby grants to City a non- exclusive, non -transferable right and license (the "License") to (a) access and use the Application(s) identified on Schedule B affiliated with the City (via the Internet, and (b) use any related user documentation or materials provided or disclosed to City by EP in the course of providing such access to the Application(s) (the 'Documentation"). BY THIS LICENSE, CITY IS GRANTED NO RIGHTS TO THE OBJECT OR SOURCE CODE OF THE APPLICATIONS OR ANY TRANSLATIONS OR DERIVATIVE WORKS THEREOF. CITY SHALL NOT EDIT, ALTER, ABRIDGE OR OTHERWISE CHANGE IN ANY MANNER THE CONTENT OF THE APPLICATION, INCLUDING, WITHOUT LIMITATION, ALL COPYRIGHT AND PROPRIETARY RIGHTS NOTICES. City may not, and may not permit others to: (a) Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Application; (b) Modify, translate, adapt, alter, or create derivative works from the Application; (c) Copy (other than one back-up copy), distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the Application; (d) Distribute, sublicense, rent, lease, loan, or grant any third party access to or use of the Application to any third party; (e) Use the Application in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance, or any rights of a third parry; (f) Use the Application in a manner that violates the Terms of Service or Privacy Policy, if applicable; or, (g) Use the Application if this Agreement has been terminated. 1.2 Scone of License. The License shall permit the number of users set forth on the Schedule B as amended by the parties hereto from time to time, to access the Application(s) from the personal computers or networks owned or leased by City, for City's internal business purposes only and otherwise in accordance with this Agreement. City shall be provided with an administrative username and password; such administrative user shall have the ability to add, modify or delete user accounts for access to the Application(s) by its employees and/or agents. City will ensure that such passwords are used only by the user assigned to the password and not by any other person. The total number of passwords issued will not exceed the number of users set forth on Schedule B. City shall be responsible for protecting the security of usernames and passwords, and shall promptly notify EP, upon suspicion that a username has been lost, stolen, compromised, or misused. SECTION 2 Equipment City shall be solely responsible for obtaining and maintaining all hardware, software and ancillary services which are necessary for it to access the Application(s) via the Internet, including, without limitation, all computers, supported web browsers, and internet services. The current version and the immediately prior released version of any of the following are supported browsers: Google Chrome, Edge, and Safari. EP may update this Section 2 information from time to time and shall inform City of such changes. SECTION 3 Services 3.1 Support. Maintenance and Training Services. EP shall provide to City, during the Term, support, maintenance and training services according to the parameters and specifications described in Schedule A attached hereto (the "Support Services"). EP shall use commercially reasonable efforts during the Term to correct any reproducible material error, malfunction or defect in the Application(s) that prevents the Application(s) from substantially and materially performing in accordance with the then -current Documentation, and shall commence such efforts within ten (10) business days after its receipt of a written request by City for such maintenance, which request shall include a detailed description of the error, malfunction or defect. EP WILL HAVE NO OBLIGATION WITH RESPECT TO ANY PURPORTED ERROR, MALFUNCTION OR DEFECT WHICH ARISES FROM CAUSES EXTERNAL TO THE APPLICATION(S) OR THE APPLICATION(S) REMOTE HOSTING ENVIRONMENT OR BY IMPROPER USE BY CITY OR ITS AGENTS. 3.2 Data Entry. The entry of City information and data required for City to utilize the Application(s) ("City Data") will be performed by City at City's sole expense. In the event that City Data is shared with the Application via any City or third -party database or software application, City shall be solely responsible for the transfer and sharing of such City Data, and City represents and warrants that it possesses all necessary rights to use and access such database or software application. SECTION 4 Fees 4.1 Fees. In consideration of the License and the Support Services, City shall pay the total annual sum of $10,500 for the fees described in and/or computed in accordance with the rates set forth in Schedule B (the "Fees"). The fees shall not increase more than three percent (3%) per year for a total payment not exceed $32,139.45 (a) The Fees shall be broken down into three annual payments each of which shall be invoiced to City via an invoice to be paid at least thirty (30) days prior to the start of the following year of service within the Term. (b) Each annual payment shall not increase more than three percent (3%) per year. (c) As set forth in Schedule B, fees shall be in accordance with the total number of users. 4.2 Fee Invoices. All fees shall be payable in accordance with the invoicing procedures set forth in Schedule B, as in annual payment invoices; and as otherwise provided herein. All fees shall be inclusive of all taxes. City is a tax-exempt governmental body 4.3 No Refunds. Except as expressly provided otherwise, all Fees are non-refundable. No Fees shall be refunded to the City upon the early termination of the Agreement pursuant to Sections 5 and 6 of this Agreement. SECTION 5 Term and Termination 5.1 Term. 3his Agreement shall terminate thirty-six months from the date of this Agreement"" 5.2 Termination. (a) This Agreement shall be terminated upon either of the following events: (i) EP reserves the right to terminate this Agreement immediately if the License and accompanying Support Services provided hereunder become illegal or contrary to any applicable law, rule, regulation, or public policy; or, (ii) EP or City may terminate this Agreement upon an uncured Event of Default as provided for in Section 6. (b) Upon termination of this Agreement, City shall immediately and permanently discontinue using, in any manner whatsoever, the Application(s). (c) Upon termination of this Agreement, EP shall: (i) Return all City Data in electronic format; and, (ii) Within thirty (30) days of the effective date of such termination and upon request by City, certify in writing to City that all actions required by this Section 5.2(c) have been complied with by EP. SECTION 6 Default and Remedies 6.1 Events of Default. Each of the following shall constitute an Event of Default under this Agreement: (a) City fails to pay any amount due hereunder within ten (10) days after receipt of written notice from EP that said payment is past due; and (b) Either party fails to perform or observe any obligation, covenant, term, condition or provision of this Agreement, and such failure is not remedied or cured by the defaulting party within thirty (30) days after receipt of written notice thereof by the other party hereto. 6.2 Remedies. If an Event of Default occurs, the non -defaulting parry may, at its option, pursue any remedy available to it at law or equity, suspend performance of its obligations under this Agreement for so long as the Event of Default continues unremedied, and/or terminate this Agreement or any portion hereof. SECTION 7 Representations and Warranties Each parry represents and warrants that it has the power and authority to enter into this Agreement. EP represents and warrants that (a) it will provide the Support Services in a manner consistent with generally accepted industry standards, and (b) the Application(s) shall perform substantially in accordance with the Documentation under normal use. City represents and warrants that it has the full right and license to use the City Data in connection with the Application(s) and that such use shall not infringe on any third party intellectual property rights. City is responsible for all activity occurring under City's user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with City's use of the Application(s), including those related to data privacy, international communications and the transmission of technical or personal data. By this Agreement, EP does not attain ownership in any City Data. City, not EP, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data, and EP shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data. EP shall use reasonable efforts to protect Client Data behind a secure firewall system, and to conduct data backups, as more fully set forth on Schedule A. SECTION 8 Disclaimer of Warranties; Limitation of Liability EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, THERE ARE NO OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, OR OTHER TERMS CONCERNING THE APPLICATION(S) OR THE SUPPORT SERVICES, AND EP AND ITS LICENSORS EXPRESSLY DISCLAIM ANY OTHER WARRANTIES WITH REGARD TO THE APPLICATION(S) OR THE SUPPORT SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON -INFRINGEMENT OF THIRD -PARTY RIGHTS. IN NO EVENT SHALL EP OR ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL, OR TORTIOUS CONDUCT RELATING TO, CAUSED BY, OR ARISING OUT OF ANY BREACH OF ITS OBLIGATIONS OR CITY' S USE OR INABILITY TO USE THE APPLICATION(S), EVEN IF CITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EP AND ITS LICENSORS ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY CLAIM BY CITY AGAINST EP. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. CITY WILL INDEMNIFY, DEFEND AND HOLD HARMLESS EP FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST EP RELATING TO ANY BREACH OF THIS AGREEMENT BY CITY. SECTION 9 Proprietary Rights and Confidentiality 9.1 Proprietary Rights. All trademarks, service marks, patents, copyrights, trade secrets and other intellectual property rights in the Application(s) (collectively, "Materials") are and will remain the exclusive property of EP or its licensors, whether or not specifically recognized or perfected under applicable local law. City will not create derivative works of, modify, assign, sublicense, sell, rent, reverse engineer, disassemble or decompile the Materials. Any rights not expressly granted herein are reserved to EP or its licensors. City will not take any action that jeopardizes EP's proprietary rights in the Materials or acquire any right in the Materials. The obligations of City under this Section 9.1 shall survive the expiration or earlier termination of this Agreement. 9.2 Confidential Information of Ci (a) EP may receive from City, or otherwise acquire, certain confidential, proprietary, and/or valuable information of City, its affiliates, predecessors, successors or permitted assigns and/or business collaborators, including without limitation the City Data (any such information shall hereinafter be referred to as the "Confidential Information"). All Confidential Information shall remain the sole and exclusive property of City, its affiliates, predecessors, successors or permitted assigns and/or business collaborators as the case may be. EP hereby covenants, represents and warrants that EP shall treat confidentially and maintain in strict confidence all of the Confidential Information and shall not disclose, in whole or in part, directly or indirectly, any Confidential Information to any person or entity other than to its employees who have a need to know such information for the benefit of City to further this Agreement and/or the Support Services; provided, however, that EP nor any of its employees shall directly access the Confidential Information without the prior written consent of the City. (b) Upon termination or expiration of this Agreement, EP shall return to City any and all of the Confidential Information (in accordance with Section 5.2(c)). (c) EP shall cause its employees to comply with the obligations in this Section 9 and shall advise its employees of the obligations hereunder. The obligations set forth in this Section 9 shall survive the expiration or earlier termination of this Agreement. (d) City understands and acknowledges that the technical processing and transmission of the Applications, including City Data, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks, devices or services. (e) In the event that EP is requested, pursuant to subpoena or other legal process, to disclose any of the Confidential Information, EP shall provide the City with immediate notice so that City may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained or that EP waives compliance with the provisions of this Agreement, EP (or such other person) shall furnish only that portion of the Confidential Information which is legally required. (0 In the event of any act, error or omission, negligence, misconduct, or breach that compromises or is suspected to compromise the security, confidentiality, or integrity of City Data EP shall notify City as soon as practicable but no later than twenty-four (24) hours of becoming aware of such occurrence. SECTION 10 Miscellaneous 10.1 Notices. All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally or sent via electronic mail on the parry to whom notice is to be given, or on the third (3rd) day after mailing if mailed to the party to whom notice is to be given, by certified mail, return receipt requested, first class postage prepaid, or other nationally -recognized express courier service and properly addressed to the postal address or electronic mail address set forth in the signature blocks of this agreement. 10.2 Benefit of Agreement. The terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 10.3 Entire Agreement; Modification. This Agreement and attached schedules or exhibits (the "City Documents") contain the entire agreement between the parties with respect to the subject matter hereof; all representations, promises, proposals and prior or contemporaneous understandings between the parties with respect to this subject matter hereof are merged into and expressed in the City Documents; and any and all prior or contemporaneous agreements between the parties with respect to the subject matter hereof are hereby canceled. Except as otherwise provided herein, this Agreement may not be changed or modified, except by agreement in writing, signed by all of the parties hereto. 10.4 Headin-zs. Section headings in this Agreement are for convenience of reference only and shall not govern the interpretation of any provision hereof. 10.5 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. 10.6 IncorRoration by Reference. All Schedules and Recitals hereto are incorporated herein by this reference. 10.7 Assienment. This Agreement may not be assigned, sublicensed or transferred in any way by City without EP's prior written consent. 10.8 No Joint Venture. Nothing in this Agreement shall be construed to constitute a joint venture, partnership, agency, representative or employment relationship between the parties. 10.9 Force Maieure. If the performance of this Agreement, or any obligation hereunder (except the making of payments) is prevented. Restricted, or interfered with by fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labor disputes, inability to procure or obtain delivery of parts, supplies, power, telecommunication services, or other services from suppliers, war or other violence; any law, order, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder as quickly as reasonably possible when such causes are removed. 10.10 Non -Waiver. Neither the waiver of any breach nor the failure to enforce any term or condition of this Agreement shall operate as a waiver or release of any such term or condition, nor constitute nor be deemed a waiver or release of any other rights, in law or at equity, or claims which either party may have against the other party for any matter arising out of, or connected with, or based upon this Agreement. No waiver shall be enforceable against any party hereto unless set forth in a written instrument or agreement signed by such party. 10.11 Severability. In the event any term, provision or restriction of this Agreement shall be held to be illegal, invalid or unenforceable by any court of competent jurisdiction, such holding shall in no way affect the legality, validity or enforceability of the remaining provisions of this Agreement, all of which shall continue unaffected and unimpaired thereby. The parties agree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its enforcement to the maximum extent permitted by applicable law. 10.12 Governine Law and 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. EP 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 EP agrees that service by first class U.S. mail to 1608 Queen Street, Wilmington, NC 28041 shall constitute effective service. Both parties hereto waive any rights to a jury. 10.13 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 during the term of the this 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. COMPANY NAME Scott L. Monroe Print Name �'1 42MV4 13 Feb 2023 Signature CEO & Co-founder Title CIGIN �Ric4hardG. Koza , City Manager Attest: Legal DeptlAgreementlPurchase Agr-Personnel Technology 2-8-23-Clean.docx /A.[ 1� -JW Schedule A Support, Maintenance, and Training Services The following is a description of services to be performed: • Install on third party hosting environment servers, and provide remote access to, the Application • Access to the Application(s), and transmittal of all data, login and password information between the client and the server will be encrypted using Transport Layer Security (TLS). • All Customer Data will be stored in a separate, logical database within a shared physical server. All Customer Data is handled by the Application(s) in isolation from the data of other customers. • The hardware, software and network will be monitored and maintained and will normally be accessible, in accordance with industry standards, except for scheduled maintenance and required repairs. • Customer will be notified in advance, usually no less than one week, by email and/or an announcement within the Application, of any scheduled maintenance and/or expected downtime. • If a system outage occurs, EP will promptly commence remedial activities and use reasonable efforts to resolve any such outage within a reasonable amount of time. • Customer data will be backed up on a daily and weekly basis • Provide up to 2 hours of administrator training and 2 hours of user training (without regard to the number of users) every 12 months during the term of this Agreement. Training services are available only upon request and must be scheduled at mutually agreed upon times by both parties. Additional training may be provided upon request and for a fee to be agreed on in writing by the parties. • The customer is expected to make a reasonable effort to reduce the file size of attachments before uploading them to EP (For example, converting .tiff file to .jpeg). In the unlikely event that the average size of attachments, across all incidents, exceeds 1 MB EP may contact the agency to assist in implementing a strategy to reduce file sizes. a Any single attachment will be limited to 10MB in size Schedule B Essential Personnel: Software -as -a -Service Essential Personnel (EP) is a holistic performance development and safety/wellness software. The cloud - based application supports organizations with their "People Data" to enable leaders to build strong teams. The list of capabilities includes: Team Builder section: o Organization Chart module ■ Drag & drop capability to create users and/or operational units o Roster module - Quickly filter/sort by: ■ Certifications / Qualifications ■ Rank ■ Special teams / Committees ■ Operational assignment (echelon on Org Chart) ■ Education o Special Teams & Committees module: ■ Create customizable special teams or committees ■ Manage members assigned o Assignment Requests module: Create and manage assignment requests to: ■ Operational echelon (Org Chart) ■ Special Teams & Committees ■ Training Event - Ability to create events like a training class or conference and then manage requests to attend Performance section 0 360 Reviews - Quick and easy feedback tool that can be submitted by anyone, on anyone o Score Reports - EP's version of the `Performance evaluation'. ■ Our unique methodology solves for supervisor bias ■ Customizable attributes ■ Identifies personality traits and leadership attributes o Awards - Custom awards templates with routing/approval workflows ■ Custom release dates to automate the process o Documents of Record - Commendatory/derogatory document storage with routing/approval workflows o Leader's Notes - Journal for keeping notes on employees with ability to create structured templates (i.e. Field Training, Instructor Review). Notes can remain completely private or selectively be shared for feedback purposes. Safety & Wellness section o Personnel Directory ■ Load customizable internal/external support personnel's bios, contact info, etc... o Resources Library ■ Load customizable content related to safety/wellness including documents, videos, blogs, etc... o Incidents. Customizable incident management tool designed for safety/wellness related incidents including but not limited to: ■ Injury ■ Exposure ■ Critical incident (child fatality, mass casualty, etc...) o Wellness profiles o Statistics and Early Intervention page ■ Built-in analytics and reports page Profile Page: Comprehensive view of the various data points listed above including: o Profile picture o Key data o Special teams and/or committees o Awards o Education o Certifications o Qualifications o Commendatory/Derogatory documents of record o Scheduling data (via integration) 0 360 reviews o Logistics data (customizable) o Personal data (customizable) o Training data (customizable) lication Services Agreement Pricin I Description Total Annual Recurring Cost Non -Recurring Users for The Term* Cost f 1. Software Subscription License 140 $10 500 2. Training 0 3. Tax _ 0 Annual Invoiced Cost: $10.500 *This will be the amount invoiced each year of the three-year Term to the Customer as referenced in section 4 of the Personnel Technology, LLC (dba Essential Personnel) Hosted Application Services Agreement AND will be billed based on the total number of users. The total amount to be paid shall not exceed $32,139.45