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HomeMy WebLinkAbout23-0614 Ionwave June 14, 2023 Agenda Bid Item: #7 — TIPS Cooperative Agr Amendment #1 w/lonwave Technologies ($71,250) FIRST AMENDMENT AGREEMENT This First Amendment Agreement is hereby made and entered into this 14th day of ,rune , 2023, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "the City") and Ion Wave Technologies, Inc., a Missouri corporation (hereinafter referred to as"Ion Wave"). WHEREAS,the City has previously entered into a Master License and Services Agreement with Ion Wave dated October 15,2017 for license and support services of IWT software, attached hereto and made a part hereof as Attachment A("Original Agreement"); and WHEREAS,the parties hereto have each determined it to be in their best interests to extend the term of the Original Agreement; and WHEREAS,the changes to the Original Agreement provided for in this First Amendment Agreement are germane to the Original Agreement as signed and this First Amendment Agreement is in the best interest of the City of Elgin and authorized by law. 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 to amend the Original Agreement as follows: 1. The foregoing recitals are incorporated into this First Amendment Agreement in their entirety. 2. Paragraph 5 (FEES AND PAYMENT TERMS) and Paragraph 6 (TERM AND TERMINATION) of the Original Agreement are hereby amended to provide payment terms and a new term period effective January 1,2023 and terminating December 31,2027, as set forth in Exhibit A-1 ("Licensed Products"), attached hereto and made a part hereof. 3. All other terms and conditions shall remain the same as set forth in the Original Agreement. ION WAVE TECHNOLOGIES, INC. CIT ELGIN Darren C Henderson G Pri me Richard zal, City ana Att Signature ity le CEO Title Legal Dept\Agreement\Ion Wave Tech Agr-First Amendment 3-3-23.docx ATTACHMENT A TO FIRST AMENDMENT AGREEMENT 10fflA1AV-="0 technologies THIS MASTER LICENSE AND SERVICES AGREEMENT(the"Agreement"), is made and entered into as of this the day of October,2017("Effective Date"), by and between Ion Wave Technologies, Inc.,a Missouri corporation having its principal offices located at 3653 South Avenue,Springfield, Missouri 65807("IWT")and the City of Elgin, Illinois, a municipal corporation, having its principal offices located at 150 Dexter Court, Elgin, Illinois, 60120("City"). WHEREAS, IWT is engaged in the business of the development,marketing,and support of Internet based software of all types. NOW THEREFORE, in consideration of the premises, covenants, and mutual promises contained in this Agreement, and other good and valuable consideration,the sufficiency of which is hereby mutually acknowledged,the parties do hereby agree as follows: 1. Software Licensing and Use 1.1 License Grant. In accordance with and subject to the terms and conditions provided herein and in consideration of payment of the license fees set forth in any Exhibit A, IWT hereby grants to City and City accepts from IWT a non-exclusive, non- transferable license to use the IWT products specified in Exhibit A, attached hereto and made a part hereof, collectively or individually referred to as the"Licensed Products",solely for its internal business purposes.Any rights not granted herein are reserved to IWT. 1.2 Access. Access to and usage of the Licensed Products shall be limited to City's internal business purposes, specifically defined as the operation of City's purchasing department. Access to the Licensed Products shall be limited to the City end user community, as defined in Exhibit A. Unless specified in Exhibit A, City will not permit others, including but not limited to subsidiaries, affiliates, and contractors, to access or use the Licensed Products, nor will City use the Licensed Products on their behalf. 1.3 Use Limits. City is prohibited from performing any load testing against IWT's hosted production environments, without the prior express written permission of IWT. City is prohibited from reverse engineering, decompiling, and disassembling the Licensed Products. 1.4 Work Products. Any Work Products, as defined below, that are software, shall be subject to the same license limitations of this Agreement and any additional limitations as set forth in any Exhibit hereto. 1.5 Rent, Lease, and Sublicense Restrictions. City shall not rent, lease, sublicense, grant a security interest in, or otherwise transfer the City's right to use and possess the Licensed Products, in whole or part. 1.6 Copies and Proprietary Notices.Any Licensed Products,together with any accompanying technical or system documentation that is delivered to City pursuant to this Agreement shall not be copied,except that one(1)copy may be made for backup or archival purposes, provided any such copy is clearly marked as proprietary to IWT, licensed to City, and contains IWT's proprietary notices.City shall be permitted to make additional copies of documentation specifically designated for training of end users. City shall not remove any proprietary notices or labels on the Licensed Products or its documentation. 1.7 Violation.Violation of any provision of this Section 1 shall breach the Agreement and be the basis for immediate termination of this Agreement and the corresponding license grant to the Licensed Products with no refund to City of fees paid to IWT. 2. Maintenance and Support 2.1 Support Services. Subject to the payment of the applicable licensing and support fees as set forth in Exhibit A, IWT shall provide City with the maintenance and support services as set forth in Exhibit B of this Agreement,attached hereto and made a part hereof ("Support Services") for the Licensed Products. Exhibit B may be updated from time to time at IWT's sole discretion, provided said updates do not materially diminish the Support Services provided to City without City's consent. 2.2 Payment and Term. Provided that this Agreement and the license for the applications which the Support Services are to be performed has not been terminated, IWT will provide Support Services as specified in Exhibit B of this Agreement for the support fees indicated in Exhibit A. In the event(i) IWT has not received payment for the next annual period's applicable license or support fees, prior to the last day of the current term; and/or(ii)this Agreement and/or the license is no longer in effect, Support Services shall be discontinued. 2.3 On-Site Services. Support Services do not include any on-site services. At City's request, IWT may provide technical, operational or other assistance or consulting in excess of the standard Support Services at IWT's standard hourly rate then in effect. 3 Professional Services 3.1 Professional Services. IWT shall provide City with professional consulting services as described in the Statements of Work ("SOW") to be attached as Exhibit C hereto ("Professional Services"), which SOW by its express terms shall amend this Agreement.Any additional services beyond those described in any Exhibit C,attached hereto and made a part hereof shall be at the mutual,written agreement of the parties. 3.2 City Obligations. In order to facilitate the provision of the Professional Services by IWT, City shall have installed the recommended hardware and software and will have completed the required preparatory work described in the Exhibit(s) attached hereto. Ion Wave Technologies,Inc. Confidential Master License&Services Agreement Page 1 0179 3.3 Contact Person. Each party will appoint in writing, in the applicable Exhibit, an employee or agent of such party to act as the "Contact Person"for all communications between the parties related to the Professional Services. Each party may change its Contact Person upon written notice to the other. 4 Proprietary Rights 4.1 Ownership. City acknowledges and agrees that, as between City and IWT, IWT is the sole and exclusive owner of all right, title and interest in and to the Licensed Products, as well as all alterations, modifications, additions, and derivative works made with respect to the Licensed Products and all work products produced from the Professional Services performed under the SOW("Work Products"). Except as expressly permitted or required hereby: (i)City shall have no right or license to the Licensed Products or Work Products; and (ii)City shall not use, reproduce, publish, or make available to others, modify,or create any derivative works of,all or any part of the Licensed Products or Work Products. 4.2 License Rights.Nothing in this Agreement or any Exhibit hereto shall in anyway enlarge or extend City's license rights in the Licensed Products,with respect to the materials that IWT delivers to City pursuant to any SOW. 4.3 City Data.Any City data and any materials or equipment furnished to IWT by City in connection with any of the Professional Services provided under an Exhibit shall be deemed proprietary to City. 4.4 Trademarks.All trademarks,service marks,trade names and logos of IWT appearing on or within the Licensed Products or Work Products used in connection with the Support Services or the Professional Services provided by IWT are the property of IWT and City shall not use them without IWT's prior written approval. 5 Fees and Payment Terms 5.1 Fees. City will pay IWT the fees as set forth in the Exhibits. Except for initial payments, which payments, unless provided otherwise,shall be due and payable upon the execution of this Agreement and any Exhibit hereto, IWT will submit to City an invoice for the amounts due. Unless provided otherwise, all invoices submitted by IWT shall be due and payable in full, without reduction for any offset,withholding or other claims,within thirty(30)days of the date thereof.Any amounts payable to IWT hereunder,which are not paid when due, shall thereafter bear interest at the rate of one and one-half percent(1.5%) per month or the maximum amount permitted by applicable law,whichever is less. 5.2 Taxes. Fees do not include any taxes.City shall be responsible for all applicable taxes, including VAT and regulatory fees of any kind imposed by any government on any deliverable provided under this Agreement, provided, however that IWT shall be responsible for all taxes based solely upon IWT's income. If City is exempt from the payment of any such taxes, upon execution of this Agreement, City must provide IWT with a valid tax exemption certificate (or documentation proving exemption acceptable to the taxing jurisdiction);otherwise,absent proof of City's direct payment of such tax amounts to the applicable taxing authority, IWT will invoice City for and City will pay to IWT all such tax amounts. City shall indemnify and hold IWT harmless in the event any taxing authority seeks to collect any tax, required to be paid by City pursuant to this section,from IWT. 5.3 Travel Expenses. Unless otherwise specified in the Exhibits, IWT shall be reimbursed by City for all reasonable travel and living expenses and travel time. IWT shall invoice City for such actual expenses monthly or on such other schedule at IWT's sole discretion. 5.4 Non-Payment. As opposed to exercising its right to terminate an Exhibit or this Agreement in its entirety, IWT may,at IWT's sole discretion,suspend performance of any obligations under the applicable Exhibit for nonpayment,but only until such time as payment is made. 5.5 Currency.All fees are stated in US dollars and are payable in US currency. 5.6 Invoices. All invoices to City shall be mailed or emailed to the following address, which may be changed from time to time, provided City provides IWT with written notice of such change: City of Elgin, Illinois Attn:Accounts Payable c/o Daina DeNye 150 Dexter Court Elgin, IL 60120 denve d(@cityofelgin.org 6 Term and Termination 6.1 Term and Termination. The term of this Agreement shall commence on the Effective Date and will run for the periods as indicated in the Exhibits. 6.2 Termination for Breach.This Agreement may be terminated by either party upon a breach by the other party of any material term of the Agreement or its Exhibits,which breach is not cured(unless such breach is incapable of cure,such as breach of the restrictions on use and license grant described herein or of any confidentiality agreement between the parties hereto) within thirty (30) days of written notice of the breach. Upon termination for breach, all use and access to the Licensed Products shall cease and City shall immediately return to IWT or destroy all copies of the Licensed Products, together with all documentation and any other IWT proprietary information in its possession. Furthermore, City shall provide IWT a certification from an officer of City that all Licensed Products, documentation, and all copies thereof, have been returned to IWT or destroyed in accordance with this Agreement. 6.3 Effects of Termination.Upon termination or expiration of this Agreement for reasons other than the breach of this Agreement: (i)all use and access to products licensed on a term basis shall cease and City shall immediately return to IWT or destroy all copies of the term licensed products, together with all documentation and any other IWT proprietary information in its possession. City shall provide IWT a certification from an officer of City that all term licensed products and all associated documentation,have been returned to IWT or destroyed in accordance with this Agreement.(ii)all use and access to products licensed on a perpetual basis shall continue,subject to the terms of this Agreement and any Exhibits,including but not limited Ion Wave Technologies,Inc. Confidential Master License&Services Agreement Page 2 of 9 to, the provisions for access and use of the Licensed Products (Section 1), Proprietary Rights (Section 4), Warranties and Indemnification (Section 7), and Confidentiality (Section 8). Upon termination or expiration of this Agreement, all Support Services and Professional Services as discussed in this Agreement or any Exhibits will cease. 7 Warranties,Indemnity,and Limitations 7.1 Licensed Products Warranty. IWT warrants that it is the owner of the Licensed Products or otherwise has the right and authority to grant the licenses to City, which are provided for herein. IWT represents that for the entire term covered by the Support Services ("Warranty Period") that the Licensed Products will substantially perform in accordance with and as specified in the applicable documentation when operated in the designated environment. IWT does not represent that the functions contained in the Licensed Products will meet City's requirements or that the Licensed Products will operate uninterrupted or error free. In the event that City does not pay the required Support Services fees or this Agreement is terminated,City agrees that all warranty provisions and associated remedies shall be terminated. 7.2 Limitations of Warranty. IWT's warranties in this Section 7 shall only apply to the IWT Products developed by IWT or its affiliates. All other Licensed Products shall be provided by IWT "AS IS." Notwithstanding anything to the contrary in this Section 7.2, IWT shall assign to City any warranty granted by the supplying party for the Licensed Products,to the extent of IWT's right to do so. 7.3 Remedy. During the Warranty Period, IWT's entire liability and City's sole remedy for any reproducible, substantive error(s) in the unmodified IWT Application as reported in writing by City shall be that IWT, at its option, will use its reasonable good faith efforts to correct the error(s), or, upon return of the Licensed Product and accompanying documentation to IWT, terminate this Agreement or the applicable license to the Licensed Product, as the case may be, and refund to City a sum equal to a portion of the license fees paid, prorated on a monthly basis for the period in which the application was rendered unusable,for the Licensed Product for which the license is terminated. 7.4 Services Warranty. IWT represents and warrants that it is experienced in providing the Professional Services and Support Services described herein and further warrants that it will perform the Professional Services and Support Services in a good, workmanlike, and professional manner. City's remedy for breach of the foregoing warranties shall be the re-performance of the relevant Professional Services free of charge. 7.5 Disclaimer. In no event will either party hereto be liable for any loss of profits, loss of use,business interruption, loss of data, cost of cover, or indirect, special, incidental, or consequential damages of any kind in connection with or arising out of the furnishing, performance or use of the Licensed Products, Professional Services and/or Support Services provided to City under this Agreement as applicable, whether arising in contract or tortious conduct, or any other legal theory, including negligence, or whether arising from mistakes, omissions, interruptions deletion of files, errors, defects, viruses or other malicious code, delays in operation of transmission,or the use or performances of a Work Product,or the delay or failure of performance the Professional and/or Support Services provided under this Agreement, even if the other party hereto has been advised of the possibility of such damages. 7.6 City Responsibility. City acknowledges and agrees they bear all liability for their end users'activity on IWT's systems. City represents and warrants that any data loaded into IWT's systems by City's end users will not infringe the intellectual property rights of any third party. City acknowledges that IWT may, in appropriate circumstances and at its discretion, disable City's access or terminate this Agreement for violations of this provision. City will be solely responsible forbearing any and all costs of obtaining any required third party licenses for data loaded into IWT's systems by City's end users. 7.7 Limited Warranty. THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY IWT. EXCEPT AS EXPRESSLY SET FORTH HEREIN, IWT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT, AND IWT HEREBY DISCLAIMS THE SAME. 7.8 Exception to Warranty. IWT'S WARRANTY OBLIGATIONS SHALL NOT APPLY IF THE LICENSED PRODUCTS OR SOFTWARE WORK PRODUCT'S FAILURE TO PERFORM IN ACCORDANCE WITH ITS FUNCTIONAL SPECIFICATIONS IS CAUSED BY:(1)THIRD PARTY SOFTWARE LICENSED BY CITY;(II)CITY'S USE OF OR ACCESS TO THE LICENSED PRODUCTS OTHER THAN AS INTENDED OR IN VIOLATION OF THIS AGREEMENT; OR (III) UNAUTHORIZED MODIFICATIONS MADE TO THE IWT LICENSED PRODUCTS OR SOFTWARE WORK PRODUCT BY CITY. 7.9 Indemnification. (a) By IWT. IWT shall indemnify, defend and hold harmless City against any loss, damage or expense incurred by City as a result of claims, actions, or proceedings brought by any third party alleging infringement by a IWT Licensed Product or a Work Product, of copyright, trademark, patent,or other proprietary rights, and against its reasonable attorneys'fees and any money damages or costs awarded in respect of any such claim(s)and any suit arising from any such claim(s); provided, however,that(i)City shall have given IWT prompt written notice of such claim,demand,suit or action;(ii) City shall cooperate with said defense by complying with IWT's reasonable instructions and requests to City in connection with said defense;and(iii)IWT shall have control of the defense of such claim,suit,demand,or action and the settlement or compromise thereof. Further, IWT shall have no liability for any infringement action or claim that is based upon or arising from the matters described in this paragraph if the applicable Licensed Product or Work Product is modified or altered by a party other than IWT or is used for a purpose other than that for which it is intended or as set forth in the appropriate documentation.If a temporary or permanent injunction is obtained against City's use of the Licensed Product or Work Product as a result of the matters described in this paragraph, IWT shall, at its option and expense,either procure for City the right to continue using the Licensed Product or Work Product or replace or modify the Licensed Product or Work Product or infringing portion thereof so that it no longer infringes the alleged proprietary right.In the event that IWT concludes,in its sole discretion, that such procurement, replacement or modification is not reasonably practical, IWT may terminate the applicable Exhibit and/or this Agreement without penalty and refund that portion of the Fees attributable to the infringing product, prorated on a monthly basis. City shall cease all use of a Licensed Product or Work Product for which a refund is given. This paragraph Ion Wave Technologies,Inc. Confidential Master License&Services Agreement Page 3 of 9 sets forth the exclusive remedy of City against IWT, and IWT's exclusive obligation, with respect to any action or claim described herein. (b) By City. City shall indemnify, defend and hold harmless IWT against any loss, damage or expense incurred by IWT as a result of claims, actions, or proceedings arising from any bodily harm or injury suffered by IWT's employees or agents in the performance of Services or maintenance at any of the City's facilities or the allegation of infringement or actual infringement by City of any copyright, patent,trademark,trade secret,or other proprietary right of any third party.City will indemnify IWT against its reasonable attomeys'fees incurred in connection with such claim(s),any money damages or costs awarded in respect of any such claim(s)and any suit arising from any such claim(s). City shall be entitled to have sole control over the defense of such claim, unless the claim involves or relates to an intellectual property right of IWT in which case IWT may elect to have sole control over the defense of such claim as described in the preceding paragraph, and such election by IWT shall have no effect upon City's obligations to indemnify and hold harmless hereunder. If City does not assume sole control over the defense of such claim as provided in this section, IWT may participate in such defense and IWT shall have the right to defend the claim in such manner,as it may deem appropriate, at the cost and expense of City. 7.10 Limitation of Liability. IN NO EVENT WILL IWT'S LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS RECEIVED BY IWT FROM CITY UNDER THE EXHIBIT GIVING RISE TO THE CLAIM.ADDITIONALLY, IN NO EVENT WILL IWT BE LIABLE FOR ANY CLAIM BROUGHT BY CITY MORE THAN ONE(1)YEAR AFTER THE CAUSE OF ACTION AROSE OR REASONABLY SHOULD HAVE BEEN DISCOVERED. 8 Confidentiality 8.1 Obligations. "Confidential Information"shall mean any proprietary information which is specifically marked as proprietary or confidential and which is disclosed by either party to the other in any form in connection with this Agreement. During the term of this Agreement and for a period of five(5)years after the date of termination of this Agreement or for a period of five(5) years after the termination of use of the Licensed Products, whichever period is longer, each party: (i) shall treat as confidential all Confidential Information provided by the other party;(ii)shall not use such Confidential Information except as expressly permitted under the terms of this Agreement or otherwise previously authorized in writing by the disclosing party; (iii) shall implement reasonable procedures to prohibit the disclosure, unauthorized duplication, reverse engineering, disassembly, decompiling, misuse or removal of such Confidential Information; and(iv)shall not disclose such Confidential Information to any third party.Without limiting the foregoing, each of the parties shall use at least the same procedures and degree of care to prevent the disclosure of Confidential Information as it uses to prevent the disclosure of its own confidential information of like importance, and shall in any event use no less than reasonable procedures and a reasonable degree of care. 8.2 Exceptions. Notwithstanding the above, neither party shall have liability to the other with regard to any Confidential Information that: (i)was generally available to the public at the time it was disclosed, or becomes generally available to the public through no fault of the receiver; (ii)was known to the receiving party at the time of disclosure as shown by written records in existence at the time of disclosure;(iii)was developed independently by the receiving party prior to the disclosure, as shown by written records in existence prior to the disclosure;(iv)is disclosed with the prior written approval of the disclosing party;(v)becomes known to the receiving party from a source other than the disclosing party without breach of this Agreement by the receiving party and in a manner which is otherwise not in violation of the disclosing party's rights;or(vi)is disclosed pursuant to the order or requirement of a court, administrative agency, other governmental body, or the provisions of the Illinois Freedom of Information Act(5 ILCS 140/1,et seq),provided that the receiving party shall provide reasonable advance notice to enable the disclosing party to seek a protective order or otherwise prevent such disclosure and further provided that any such disclosure shall not destroy or diminish the confidential status of such Confidential Information;provided, however, that in the event of any disclosure made pursuant to the requirements of the Illinois Freedom of Information Act,the City shall use its best efforts to defend the City's lawful application of any cited exemptions,in the event IWT does not seek a protective order. 9 Miscellaneous 9.1 Force Majeure. Neither party shall be liable to the other by reason of any failure of performance hereunder(except failure to pay)if such failure arises out of causes beyond such party's reasonable control, despite the reasonable efforts and without the fault or negligence of such party.Without limiting the generality of the foregoing, IWT shall not be liable to City in any way for any failure or delay in the performance of its obligations hereunder which failure is caused, directly or indirectly, by the failure of any matter for which City is responsible under this Agreement or which is a suspension of services for City's failure to pay. 9.2 Assignment. Neither party may assign this Agreement without the prior written consent of the other, which consent will not be unreasonably withheld.Notwithstanding the foregoing,IWT may assign this Agreement to any entity acquiring substantially all of its stock or assets or the assets to which this Agreement or any Exhibit relates. 9.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to conflicts of law principles. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this Agreement shall be in the applicable federal or state courts located within the State of Illinois. 9.4 Exhibits. Each Exhibit to this Agreement shall incorporate the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Exhibit,the terms of this Agreement shall control unless an Exhibit expressly provides otherwise. Additional Exhibits added to this Agreement from time to time by the mutual written agreement of the parties shall be numbered sequentially under the letters of the respective Exhibit title(e.g. Exhibit A Licensed Products shall be A-1,A-2, etc.)and each shall be in addition to the previous Exhibit. 9.5 Records&Audits. IWT, its agents or representatives, shall have the right to conduct a technical audit of City's records,for the express purpose of determining whether City is in compliance with the terms of this Agreement.Should IWT find that City is not in compliance, City shall pay the additional damages as may be due plus a five percent(5%)penalty. Ion Wave Technologies,Inc. Confidential Master License&Services Agreement Page 4 of 9 9.6 Independent Contractor. IWT is an independent contractor and, except as specifically contemplated in any Exhibit to this Agreement, is not an agent or employee of, and has no authority to bind, City by contract or otherwise. IWT will perform the Services under the general direction of City,but IWT will determine,in IWT's sole discretion,the manner and means by which the Services are accomplished. City has no right or authority to control the manner or means by which the Services are accomplished. 9.7 Waiver. No delay or omission by either party to exercise any right or power unless in writing and signed by the party waiving rights it has under this Agreement shall impair or be construed as a waiver of such right or power.A waiver by either party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant. 9.8 Notices. Any notice required to be sent to a party under this Agreement will be in writing, shall be sent by: facsimile; first- class mail return receipt requested; personal delivery; or overnight courier to the Address for Notices given for that party below, and shall be considered delivered upon proof of such delivery. Either party may change its notice address by giving written notice to the other party. If to IWT: If to City: Ion Wave Technologies, Inc. City of Elgin, Illinois 3653 South Avenue Attn: Purchasing Springfield, Missouri 65807 150 Dexter Court Phone:417-823-7773 Elgin, IL 60120 Fax:417-823-7778 Phone:847-931-5604 Fax:847-931-5689 9.9 Severability.If any provision of this Agreement is held to be unenforceable,then both parties shall be relieved of all obligations arising under such provision,but only to the extent that such provision is unenforceable,and this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it enforceable while preserving its intent or, if that is not possible, by substituting another provision that is enforceable and achieves the same objective and economic result. It is expressly understood and agreed that each provision of this Agreement that provides for a limitation of liability,disclaimer of warranties, indemnification or exclusion or damages or other remedies are intended to be enforced as such. Further, it is expressly understood and agreed that in the event any remedy under this Agreement is determined to have failed its essential purpose, all limitations of liability and exclusions of damages or other remedies shall remain in effect. 9.10 Survival. Payment obligations and any other provisions, which by their terms or their nature are intended to survive, shall survive the expiration or termination of this Agreement. 9.11 Entire Agreement and Amendment. This Agreement, with all Exhibits, is the entire agreement between the parties with respect to its subject matter,and supersedes and replaces any prior agreement between the parties whether oral,written or implied,with respect to said subject matter and there are no other representations, understandings or agreements between the parties relative to such subject matter.Amendments or waivers of any provision of this Agreement or its Exhibits shall be valid only as clearly identified as such, in writing and signed by the parties. No purchase order submitted by City, even if accepted by IWT, shall be deemed to modify any terms of this Agreement, unless IWT has expressly stated in writing its intent to do so. 9.12 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. 9.13 Jurisdiction. IWT hereby irrevocably consents to the jurisdiction of the circuit courts of the State of Illinois or of the federal district courts of the State of 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 IWT agrees that service by first-class U.S. mail to the entity and address provided for herein shall constitute effective service. IN WITNESS WHEREOF,each party hereto has caused this Agreement to be executed by its duly authorized representative. IWT-Ion Wave Technologies, Inc. City—City of Elgin, Illinois Signed: Signed: Printed Name:Darren C Henderson Printed Name: Printed Title: CEO Printed Title: Ion Wave Technologies,Inc. Confidential Master License&Services Agreement Page 5 of 9 Exhibit A Licensed Products 1. License Grant. IWT Grants to City, in accordance with and subject to the terms and conditions set forth in this Agreement, a license to the IWT products as specified below: (i) IWT Sourcing • The license grant shall be for a five (5) year period starting upon the execution of this Agreement, with usage limited to five(5)City employee users. • The IWT Sourcing license shall include the Electronic Bidding (eRFx) and Supplier Management / Registration Modules. The Reverse Auction module, the Bid Evaluation Scoring module, the Contract Management module, and any future modules released by IWT are specifically excluded. City may purchase additional modules and incorporate an additional Exhibit into this agreement. • The cost of the license shall be paid annually as outlined in the payment section below. 2. Support Services. IWT will provide Support Services to the City,in accordance with and subject to the terms and conditions set forth in this Agreement,as specified below: (i) Support and Maintenance: • IWT will provide Support Services as detailed in Exhibit B for the products listed above for a five (5) year period beginning upon the execution of this Agreement at no additional cost to City. 3. Payment.Payment for the license fees shall be due as follows: (i) $ 4,063 due upon execution of this Agreement for the service period 10/15/2017 to 12/31/2017 (ii) $12,500 Annual License Fees due January 1,2018 for the service period 01/01/2018 to 12/31/2018. (ii) $12,750 Annual License Fees due January 1,2019 for the service period 01/01/2019 to 12/31/2019. (iii) $13,000 Annual License Fees due January 1,2020 for the service period 01/01/2020 to 12/31/2020. (iv) $13,250 Annual License Fees due January 1, 2021 for the service period 01/01/2021 to 12/31/2021. (v) $13,500 Annual License Fees due January 1, 2022 for the service period 01/01/2022 to 12/31/2022. 4. Non Appropriation. City intends to remit to IWT all payments for the full term if funds are legally available. In the event City is not granted an appropriation of funds at any time during the term for the funds and are not otherwise available to City to pay IWT payments due and to become due under this Agreement, and there is no other available funds by which payment can be made to IWT, City shall have the right to terminate this Agreement on the last day of the fiscal period for which appropriations were received without penalty or expense to City, except as to the portion of the payments for which funds shall have been appropriated and budgeted. In the event of any such termination due to non-appropriation, no further services shall be provided and no further payment liability shall accrue. At least ninety(90)days prior to the end of City's fiscal period, City's Business Services Executive Director shall certify in writing that(a)funds have not been appropriated for the next fiscal period; and (b) City has exhausted all funds legally available to pay IWT. If City terminates this Agreement because of non-appropriation of funds, City may not purchase or lease during the subsequent fiscal period, software and/or service performing the same function as, or functions taking the place of those performed by the software and/or service provided by IWT; provided, however, that these restrictions shall not be applicable if or to the extent that the application of these restrictions would affect the validity of this Agreement. 5. Cooperative Contract. Cooperative Contract.This purchase is made in accordance with TIPS cooperative contract number 3071615. Ion Wave Technologies,Inc. Confidential Master License&Services Agreement Page 6 of 9 Exhibit B Support Services 1. IWT shall (a)use commercially reasonable efforts to provide City with maintenance and support services("Support Services") via telephone,facsimile,electronic mail,or other electronic means, at IWT's discretion,from the hours of 8:00 a.m.to 6:00 p.m. Central Time Monday through Friday (excluding IWT Holidays, which typically consist of New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the Friday immediately following Thanksgiving, Christmas Eve, and Christmas Day),and 24x7 access for reporting Level 1 (as defined below)situations,to a designated,authorized,qualified,and trained user of the IWT Products("City Contact")and to one(1)designated, authorized, qualified, and trained user of the IWT Products designated as City Contact's backup("Backup City Contact")(collectively referred to as"City Support Contact");and (b) use commercially reasonable efforts to correct reproducible errors or malfunctions to enable the IWT Products to substantially perform in accordance with and as specified in the accompanying documentation. 2. IWT shall use commercially reasonable efforts to deliver a solution or action plan to correct reported errors that IWT categorizes as: (i)"Level 1 Catastrophic"within eight(8)business hours of receipt of the reported error. "Level 1 Catastrophic" is defined as a condition in which the IWT Products are partially or totally inoperative, including but not limited to,total system failure,data loss,data corruption,or a processing of functions and processes so slow as to render the application unusable,or any Level 2 error where a reasonable alternative work process cannot be established;(ii)"Level 2 High Impact"within the next scheduled production release of the IWT Products or within one hundred-twenty (120)days from the date error was logged with IWT, whichever shall first occur."Level 2 High Impact"is defined as any error that results in the usability of the product being restricted and for which a reasonable alternative work process can be established;(iii)"Level 3 Non-Critical,"which errors IWT shall use commercially reasonable efforts to correct within the next scheduled production release of the IWT Products. "Level 3 Non- Critical"is defined as any error wherein one or more functions do not operate optimally,but where impact on functionality and/or usability is agreed by City and IWT to be minor and result in a mutually acceptable disruption to City's workflow process; and (iv) "Level 4 Cosmetic," which errors IWT shall use commercially reasonable efforts to correct within the next scheduled production release of the IWT Application, at IWT's sole discretion. "Level 4 Cosmetic' is defined as any error that cannot be categorized as belonging to any higher severity level, including but not limited to a cosmetic or documentation error. 3. IWT shall provide all extensions, enhancements, and other changes,which are logical improvements to a IWT Product and to which IWT makes generally available on a commercial basis, without charge, to any other licensee of the IWT Product ("Updates'). Updates do not include any new software products that are then made generally available on a commercial basis as separate, price-listed options or additions to an IWT Product nor do they include any Professional Services Fees that may be required for implementation. 4. IWT shall have no obligation to provide Support Services except to City Support Contact and only with respect to the unmodified Supported Releases. When an IWT Product is deployed in conjunction with other software products, including but not limited to web servers, browsers, databases, and operating systems, IWT is not responsible for providing Support Services for these other products,or for ensuring correct interoperation with these products. 5. City shall use commercially reasonable efforts to assist IWT in reproducing the specific situation in which a IWT Product, standing alone, demonstrates a failure to substantially conform in all material respects to the functional specifications set forth in its accompanying documentation ("Defect"). City Support Contact shall conduct reasonable and adequate research with respect to a Defect or related issue prior to contacting IWT for assistance. Hosting Services 1. IWT shall use commercially reasonable efforts to make all hosted IWT Products available to City for at least ninety-nine percent (99%)of the time(determined monthly),seven(7)days a week,twenty-four(24)hours per day, not including any unavailability that; (i) lasts less than fifteen (15) minutes; (ii) results from regularly scheduled IWT maintenance; (iii) results from failure of City's hardware or software; (iv)results from the failure of a communication service or other outside service or equipment not within the control of IWT;or(v)is beyond the reasonable control of IWT("Service Availability'). 2. Data Backup. In recognition that IWT's provision of the hosted IWT Products may be interrupted as a result of an act of God, events beyond the reasonable control of IWT, errors by IWT's staff,or a defect in the IWT Products, IWT agrees to maintain a commercially reasonable backup plan for the IWT Hosted Products and City's data, whereby IWT can execute a recovery of the hosted IWT Products and City's data as a result of such interruption. Ion Wave Technologies,Inc. Confidential Master License&Services Agreement Page 7 of 9 Exhibit C Statement of Work ("SOW") 1. Introduction City seeks to implement the IWT Enterprise Sourcing and Contract Management applications(the"Solution").The primary objective of the project is to configure and implement the Solution for the City.This will be done in a way that utilizes the standard features of the Solution and is based on the Solution standard configurations. This SOW describes the scope of services and the services investment necessary to complete the Solution implementation project. IWT Professional Services will use commercially reasonable efforts in a manner consistent with software industry standard guidelines and as outlined in this SOW to provide the guidance and expertise necessary to help City successfully implement the Solution. 2. Summary of IWT Responsibilities The following major activities are included in the scope of this project and will be performed by IWT: (i) Coordinate and lead all meetings,workshops, and training sessions. (ii) Provide up to three web-based training sessions to City's full-time employees. (iii) Provide project management, including coordination and management activities, issue tracking, and weekly status reporting to City. (iv) Coordinate City acceptance testing. (v) Provide configuration guides to the City offering configuration choices, including IWT's standard commodity code structure. (vi) After initial training is completed, prepare the Solution for go-live. (vii) Provide issue resolution according to the severity levels and response times as outlined in the Agreement. 3. Summary of City Responsibilities City agrees to undertake at its sole expense,the following responsibilities: (i) Assignment of an internal dedicated project manager to manage the Solution and its implementation. (ii) Coordinate internal participation in project related meetings. (iii) Provide materials and facilities for project related activities, including Internet-capable machines for training sessions. (iv) Purchase, install, and validate any third-party software required. (v) Develop and implement test scripts for acceptance of the Solution. (vi) Plan,coordinate,and participate in training sessions and complete all training assignments. (vii) Plan and direct the production deployment(Go-live). 4. Technical Requirements City will be responsible for procurement, installation, and operational verification of all software, software licenses,equipment,and hardware required to support the Solution in the production deployment. This includes: (i) Web Browsers. City will be responsible for procurement, installation, and operational verification of all web browser licenses. IWT will provide its minimum browser requirements during the Workshops. (ii) Commodity Code. City will be responsible for procurement and licensing of any desired proprietary commodity code structure(s). (iii) Network Performance.City is responsible for maintaining the satisfactory network performance needed to conduct the deployment of the production system. (iv) IWT may modify any of the above hardware and software requirements from time to time,upon ninety(90)days written notice to City. 5. Project Organization and Operating Procedures (i) Project Organization. City and IWT agree to assign dedicated staff to perform their respective project activities. (ii) Change Control Process. IWT projects follow a standard change control process. If during the course of a project, a scope change is identified,then the IWT project manager will document the change and associated cost or schedule impacts on a change authorization form. Once documented, the IWT project manager reviews the change with the City project manager.Scope changes are defined as any modification to the agreed scope of a project, including but not limited to requirements, software modules, configuration changes, project delays and enhancements or modifications to the product. Scope changes can require modification to cost, schedule, quality or other project deliverables and therefore require sign-off from the City project manager.No work on scope changes will be conducted Ion Wave Technologies,Inc. Confidential Master License&Services Agreement Page 8 of 9 until sign off is obtained. Changes that impact scope require approval from the IWT project manager and the City project manager. (iii) Acceptance Process. City will review any Work Product requiring explicit acceptance within five(5)business days of delivery and will document required adjustments. If IWT does not receive notice within the defined five-day period, each Work Product will be considered accepted. Within five(5)days, IWT will provide a revised Work Product that incorporates the agreed adjustments.In the event that City does not accept the revised Work Product,the parties may agree to repeat this review and acceptance process one additional time. If disputes remain after repeating the acceptance process,the project team will refer these to IWT's and the City's executive teams for resolution. (iv) Work Location. Unless otherwise specified, City and IWT will perform all work at their respective locations. 6. Project Investment Project Payment Schedule Payment Item Amount Payment Schedule Mobilization Fee $0 Remitted to IWT upon the start of the project. Go-Live Fee $0 Remitted to IWT upon the preparation of the system for Go-Live following training and configuration. Total Services $0 Travel and Administrative Expenses Estimate -0- No travel is expected for this engagement. Ion Wave Technologies,Inc. Confidential Master License&Services Agreement Page 9 of 9 Exhibit A-1 Licensed Products 1. License Grant. IWT Grants to Client in accordance with and subject to the terms and conditions set forth in this Agreement, a license to the IWT products as specified below: (i) IWT Sourcing subject to the following terms and restrictions: • The license grant shall be extended for a five(5)year-period with usage limited to five(5)Client employees. • The IWT Sourcing license shall include the Electronic Bidding(eRFx)and the Supplier Management 1 Registration Modules. • The Bid Evaluation Scoring module, the Contract Management module, the Reverse Auction module. the Col laboration/Workflow module, the Contract Execution/Signatures module. IWT's Single-Sign On module, and any future modules released by IWT are specifically excluded. Client may purchase additional modules and incorporate an additional Exhibit into this agreement. • The cost of the license shall be paid annually as outlined in the payment section below. 2. Support Services. IWT will provide Support Services to the Client, in accordance with and subject to the terms and conditions set forth in this Agreement as specified below: (i) Support and Maintenance: • IWT will provide Support Services as detailed in Exhibit B for the products listed above during the license period at no additional cost to Client. 3. Payment.Payment for the license fees shall be due as follows: (i) $13.750 Annual License Fees due January 1,2023 for the service period 01/01/2023 to 12/31/2023. (ii) $14,000 Annual License Fees due January 1,2024 for the service period 01/01/2024 to 12/31/2024. (iii) $14,250 Annual License Fees due January 1,2025 for the service period 01/01/2025 to 12/31/2025 (iv) $14,500 Annual License Fees due January 1,2026 for the service period 01/01/2026 to 12/31/2026. (iv) $14.750 Annual License Fees due January 1,2027 for the service period 01/01/2027 to 12/31/2027. 4. t �C Exhibit A, Section 4 remains applicable 5. Cooperative Contract. This purchase is made in accordance with TIPS cooperative contract number 210101.