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HomeMy WebLinkAbout23-85 Resolution No. 23-85 RESOLUTION AUTHORIZING EXECUTION OF A MASTER AGREEMENT WITH FILEONQ, INC. FOR PROPERTY AND EVIDENCE SOFTWARE SOLUTION AND SUPPORT SERVICES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Master Agreement on behalf of the City of Elgin with FileOnQ,Inc.,for property and evidence software solution and support services,a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: April 26, 2023 Adopted: April 26, 2023 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk MASTER AGREEMENT FOR FILEONQ SOFTWARE SOLUTION AND SUPPORT SERVICES: FileOnQ Software Solution including the following: Software Subscription (Property & Evidence Platforni Solution),Peripheral Equipment, Training, Maintenance and Technical Support. THIS AGREEMENT is hereby made and entered into this 26th day of April 2023 (the "Effective Date") between the City of Elgin,an municipal corporation,hereinafter referred to 6s"CLIENT" and FileOnQ,Inc.,a Washington corporation,hereinafter referred to as"FILEONQ." WITNESSETH: WHEREAS,CLIENT desires to contact with FILEONQ,and FILEONQ hereby agrees to provide to the CLIENT a software solution subscription, peripheral equipment, installation, training, and maintenance services("Services")as set forth in this"Master Agreement for FileOnQ Software Solution and Support Services" ("Agreement"); WHEREAS FILEONQ is willing and qualified to provide said Services;and NOW, THEREFORE, in consideration of the mutual promises, covenants and agreement herein set forth, the sufficiency of which is hereby mutually acknowledged, the parties do hereby agree as follows: I. DUTIES OF FILEONQ FILEONQ shall provide the software,hardware,and services specified in Exhibits A,B,and C including the "Scope of Services&Support Service Level Policy,"and the"Software License Agreement",attached hereto and made a part hereof. II. DUTIES OF CLIENT The CLIENT shall assign a representative to represent the CLIENT in all matters pertaining to the services rendered pursuant to this Agreement and shall administer said Agreement on behalf of the CLIENT. This person shall hereinafter be referred to as the"CLIENT Representative." The CLIENT shall: A. Provide FILEONQ, or cause to be provided with, the following documents, services and site information,relative to the specific project at no charge to FILEONQ: 1. A Semer computer will) Microsoft SQ1. Server Database Sollware. 2. Virtual or physical access to ('HENT's facilities, related software, and hardware at limes and on days to be approved by 0 IIIAT. 3. C11LNT peisunnel, space and time ti,r systc►r► traini11b, installation and irnplctncnlanou perli,rmcd by I'll,l ONQ. 4. A CLIENT Representative woo ,iutholity to approve various III plcnicntattoll Plans. I III. COMPENSATION OF FILEONQ 1. Basis of Compensation: For the software subscription and related services to be provided by FILEONQ hereunder,CLIENT agrees to pay FILEONQ in accordance with the rate structure set forth hereunder and more fully detailed in Exhibit A. • For the CLIENT'S monthly subscription to EvidenceOnQ, including all modules, peripheral hardware,maintenance,and support-CLIENT shall pay FILEONQ a one-time implementation fee of$10,000.00 and then an on-going monthly subscription fee of$2,225.00 per month. • One-time implementation fee will be due thirty (30) days from the execution of this agreement. Monthly subscription payments will begin ninety(90) days from execution of this agreement and will not increase by more than 5% annually for the life of this agreement. Any increase will be applied starting in January of the fiscal year and CLIENT will be given 90 days prior notice of said increase. Method of Compensation: The CLIENT shall promptly review invoicing and notify FILEONQ of any objection thereto in writing within fifteen (15)business days of receipt of the invoice, and absent such objection, the invoice shall be deemed proper and acceptable. IV. INSURANCE A. WORKERS' COMPENSATION. During the term of this Agreement, FILEONQ shall fully comply with the terms of the law of the State of Washington concerning workers'compensation. Said compliance shall include,but not be limited to,maintaining in full force and effect one or more policies of insurance insuring against any liability FILEONQ may have for workers' compensation. Said policy shall also include employer's liability coverage no less than $1,000,000 per accident for bodily injury or disease. B. GENERAL LIABILITY INSURANCE. FILEONQ shall obtain at its sole cost and keep in full force and effect during the term of this agreement commercial general liability insurance in the amount of$ 1,000,000 per occurrence for bodily injury,personal injury, and property damage. Said insurance shall provide(1)that the CLIENT,its officers,agents,employees and volunteers shall be named as additional insureds under the policy. C. CERTIFICATES OF INSURAN CE.No cancellation,major change in coverage, expiration, or nonrenewal will be made during the term of this agreement, without thirty (30) days written notice to the Director of Finance prior to the effective date of such cancellation or change in coverage. V. INDEMNIFICATION AND HOLD HARMLESS INDEMNIFY AND HOLD HARMLESS. FILEONQ shall indemnify, defend, and hold harmless the CLIENT,its officers,agents,employees and volunteers from all claims,suits,or actions of every 2 name,kind and description,brought forth on account of injuries to or death of any person or damage to property arising from or connected with the willful misconduct, negligent acts, errors or omissions,ultra-hazardous activities,activities giving rise to strict liability,or defects in design by FILEONQ or any person directly or indirectly employed by or acting as agent for FILEONQ in the performance of this Agreement. VI. PATENT INFRINGEMENT FILEONQ shall indemnify and defend the CLIENT in any actions against the CLIENT to the extent that they are based on a claim of infringement for the use of Software related to this Agreement, provided that FILEONQ is notified in writing of such claim in a reasonably timely manner. FILEONQ shall have the right to control the defense of all such claims, lawsuits and other proceedings.CLIENT shall use its best efforts to aid FILEONQ in conducting any such defense. In no event shall the CLIENT settle any such claim,lawsuit or proceeding without FILEONQ's prior written approval. In case of a judgment adverse to the CLIENT or FILEONQ, FILEONQ shall make reasonable efforts to purchase the right to continued use of any infringing software on the CLIENT's behalf,or to modify the Software to make it non-infringing. VII. STANDARD OF PERFORMANCE FILEONQ shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which FILEONQ is engaged. All products of whatsoever nature shall be prepared in a substantial, first class, and workmanlike manner, and conform to the standards of quality normally observed by a person practicing in FILEONQ's profession. Judgment as to whether specifications have been met on software modifications and software maintenance services performed by FILEONQ shall be by mutual agreement except where otherwise assigned by the contract. In the event an agreement cannot be reached,the dispute shall be resolved in accordance with Section XIX Dispute Resolution. VIII. ASSIGNABILITY No party to this Agreement may assign any right or obligation pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. FILEONQ agrees to notify the CLIENT of any change in ownership of FILEONQ within thirty(30) days of such change. Any successor in interest to FILEONQ shall be bound by the terms and conditions of this Agreement. IX. SUBCONTRACTING None of the services covered by this Agreement shall be subcontracted without the prior consent of the CLIENT. 3 X. NOTICES All communications to either party by the other shall be deemed given when made in writing and delivered or mailed to such party at its respective address as follows: Elgin Police Department Ana Lalley Police Chief 151 Douglas Avenue Elgin,IL 60120 FileOnQ,Inc. Steve M.Englund President 832 Industry Drive Seattle,WA 98188 steveAfileonq.com Either party may change its address for purposes of receipt of notice by giving ten(10)business days'prior written notice to the other in the manner prescribed above. XI. FINANCIAL INTERESTS OF CLIENT AND FILEONQ No employee of the CLIENT shall have any direct financial interest in this Agreement. This agreement shall be voidable at the option of the CLIENT if this provision is violated. XII. INDEPENDENT CONTRACTOR At all times during the term of this Agreement, FILEONQ shall be an independent contractor and shall not be an employee of the CLIENT. CLIENT shall have the right to control FILEONQ only insofar as the results of FILEONQ's services rendered pursuant to this Agreement; however, the CLIENT shall not have the right to control the means by which FILEONQ accomplishes services rendered pursuant to this Agreement. XIII. CONSULTANT-NO AGENT Except as CLIENT may specify in writing,FILEONQ shall have no authority,express or implied, to act on behalf of the CLIENT in any capacity whatsoever as an agent. FILEONQ shall have no authority, express or implied, pursuant to this Agreement to bind CLIENT to any obligation whatsoever. XIV. CONSULTANT-NOT PUBLIC OFFICIAL FILEONQ is not a"public official" for purposes of Government Code §§87200 et seq. FILEONQ conducts research and arrives at conclusions with respect to his or her rendition of information, advice,recommendation,or counsel independent of the control and direction of the CLIENT or any CLIENT official, other than normal contract monitoring. In addition, FILEONQ possesses no 4 authority with respect to any CLIENT decision beyond the rendition of information, advice, recommendation,or counsel. XV. DISCLOSURE Any and all information connected to performance of services under this Agreement may be disclosed as per applicable laws.Exceptions are proprietary software and hardware and source codes except as provided by law,including but not limited to the Illinois Freedom of Information Act(5 ILCS 140/1,et. seq.). At the termination of this Agreement all information marked as confidential shall be returned to the respective owners to the extent permitted by law. XVI. RIGHTS TO INFORMATION The ideas, concepts know-how or techniques developed during the course of this Agreement by FILEONQ or jointly by both parties can be used by either party in any way it may deem appropriate, consistent with the terms of this Agreement. FILEONQ may elect to develop materials that are competitive, irrespective of their similarity, to materials that might be supplied to the CLIENT hereunder. XVII. RECORDS FILEONQ shall maintain adequate records to permit inspection audit of FILEONQ's charges under this Agreement. FILEONQ shall provide CLIENT access to such records for approval,funding,or auditing the project, during normal business hours upon reasonable notice, the reasonable cost of which shall be borne by the CLIENT.Nothing herein shall convert such records into public records and they will be available only to the CLIENT for approval, funding, or audit functions. Such records shall be maintained by FILEONQ for three (3) years following completion of the work under this Agreement. XIII. DISPUTE RESOLUTION Any dispute concerning terms and conditions shall first be settled,by mutual desire of both parties, through amicable negotiations within a period of ninety(90)calendar days,by the parties hereto. XIX. TERM;CANCELLATION OF AGREEMENT 1. The term of this Agreement shall continue for a period of twelve (12) months after the date of this agreement. At the end of each twelve (12) month period, this Agreement shall automatically renew for an additional twelve (12) month period, up to a maximum of 5 years, provided neither party terminates the Agreement as specified herein. 2. This Agreement may be canceled at any time by CLIENT for its convenience upon written notification to FILEONQ. FILEONQ shall be entitled to receive full compensation payment for all work actually performed on the PROJECT to the date of receipt of written notice to cease work on the Project. Said compensation will be determined in accordance with Section III. FILEONQ shall 5 be entitled to no further compensation for work performed after the date of receipt of written notice to cease work on the Project. 3. Either Party may terminate this Agreement without cause by giving written notice not less than thirty(30)days prior to the effective date of termination,which date shall be included in said notice. In the event of such termination,FILEONQ shall be entitled to receive full compensation payment for all work on the Project to the date of receipt of written notice to cease work on the Project. Said compensation will be determined in accordance with Section III. FILEONQ shall be entitled to no further compensation for work performed after the date of receipt of written notice to cease work on the Project. 4.Nothing herein contained shall be deemed a limitation upon the right of either party to terminate this Agreement for cause,or otherwise to exercise such rights or pursue such remedies as may accrue hereunder. XX. GOVERNING LAW 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. FILEONQ 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 FILEONQ agrees that service by first class U.S.mail to 832 Industry Drive,Seattle,WA 98188 shall constitute effective service. Both parties hereto waive any rights to a jury. XXI. ENTIRE AGREEMENT;MODIFICATION; BINDING EFFECT This Agreement and its Exhibits set forth the entire understanding of the parties with respect to the subject matter herein. There are no other agreements,express or implied,oral or written,except as set forth herein. In the event of inconsistencies or conflicts in the terms and conditions of any portions of the entire agreement,the order of priority shall be:(1)this Master Agreement,(2)Exhibit A-the Scope of Services;Property&Evidence Platform Solution Overview and Functionalities,(3) Exhibit B-the Maintenance&Support Service Level Policy,and(4)Exhibit C-the Software License Agreement. XXII. SEVERABILITY Any provision of this Agreement which is prohibited or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. XXIII. 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 6 shall be re-executed by the parties in an original forni.No party to this agreement shall raise the use of fax machine or c-mail as a defense to this agreement and shall forever waive such defense. IN WFFNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. FILEONQ, INC. >&W, s-rE J€ �nj 44' 1> G Print Name Richard G. oz I, City Manager Attest Signature City CI �2 GSA �ccaJ'( Title Legal Dept\Agreement\FileOnQ Master Agr-Clean-2-16-23.docx 7 Exhibit A Scope of Services;Property&Evidence Platform Solution Overview and Functoonalities FILEONQ shall provide the Client, specifically, the Elgin Police Department,with a subscription to EvidenceOnQ software solution, including all modules, as set forth in more detail herein. The Client shall be permitted to have unlimited concurrent subscription users. Moreover, FILEONQ shall perform all implementation,maintenance, and support Services detailed in this section and the Exhibits to this Agreement.FILEONQ shall ensure that all solution functionalities and service obligations comport with all applicable standards and requirements set forth in this Agreement and its Exhibits. REFER TO FILEONQ'S PROPOSAL TO ELGIN POLICE DEPARTMENT(REF#: 202674) DATED JANUARY 10,2023 8 Exhibit B, Maintenance&Support Service Level Policy FileOnQ is committed to ensuring that you are completely satisfied with our product and our support. Unlimited maintenance,support,and training are provided with the purchase of your subscription platform.This includes: • Free in-version builds and major upgrades for life • Unlimited telephone and on line support • Unlimited training via telephone and web-conference • Peripheral hardware life-time replacement • Access to the FileOnQ customer portal website with training videos and tools Should a support need arise,you will appreciate our toll free support number and live on-line web support meeting center. Email: Support@fileonq.com Phone: 1-800-603-6802 select 4 from the menu 1. Purpose This is a statement of policy for customers of FileOnQ. FileOnQ strives to provide prompt,quality service for our customers the first time,every time,in a manner that ensures the customer's success with their FileOnQ product.This policy statement is not intended to be binding upon FileOnQ and is subject to change at the discretion of FileOnQ. The levels of service provided will be measured and monitored by the Director of Customer Services and Technical Support staff. 2. Definitions A.Help Desk-Customer's internal support resource who provides the first level of support for the software. B.Customer Contact-Person designated as the primary contact for Support calls. Only authorized Customer Contacts will be allowed to contact FileOnQ Technical Support. C.Technical Support-Staff and resources dedicated to level II support of all customer support issues. D.Level III Support--Members of engineering assigned to resolve complex customer issues. E.Customer-Users of FileOnQ software who have chosen a direct support relationship with FileOnQ,who have a valid maintenance contract,and are using a current version of software. F.Emergency Support-Issues at priority O or 1,as defined in section 4,requiring support outside of normal service hours.Telephone Support is defined in section 12. 9 3. Mission The mission of FileOnQ is to provide fast,friendly and professional service and to go beyond the minimum requirements to ensure the customer's satisfaction and success with our products. 4. Goals and Metrics FileOnQ strives to achieve at minimum the following response and escalation times: Priority Description Response Escalation Level Time Time 0 System down.Users unable to access or input records. 1 hour 1 hour 1 Significant problem. Multiple users are down,or key function is 1 hour 2 hours unavailable. 2 Minor problem. Some records not available or a feature is not 2 hours 1 day operating properly. 3 Intermittent. Problem may slow down data input or retrieval,or a 2 hours 1 month workaround is needed to use a feature. 4 Cosmetic. Does not affect ability to efficiently enter and retrieve 4 hours 6 months data or use all required features Response Time: The time between the customer contact notifying Technical Support of their need for support and the return call from Technical Support. Escalation Time: The time between the start of troubleshooting by Technical Support and the escalation of the issue to Level III Support or Support Management. FileOnQ will measure response and escalation times monthly and will conduct regular customer satisfaction surveys. 5. Services to be provided by FileOnQ Technical Support A. Customer telephone support B. Customer e-mail support C. Use of GoToAssist for troubleshooting assistance D. After-hours emergency support E. On-site support available at an hourly rate plus travel expenses F. Limited emergency hardware loaners G. Escalation to Level Ill support H. Escalations to third party supplier I. Unresolved Calls reporting 10 6. Service Levels For each of the services specified in section 5,a parameter,or set of parameters,which give a measure of the quality of the service, is specified. The target values for these parameters represent the service level that FileOnQ strives to provide. The FileOnQ Director of Customer Services may modify these parameters as needed.Modifications to this agreement will not commence until the customer has been given 30 days'notice. FileOnQ shall not be required to honor these commitments should the contract between FileOnQ and the customer be canceled. A. Customer telephone support Telephone support is provided on a call back basis. Once a message is left, a support analyst will return the call within the response time specified in section 4.Problems are handled immediately,and resolution is not to exceed the escalation time specified in section 4 before being escalated to Level III support.Telephone support coverage is defined in section 12. B. Customer e-mail support The response time for e-mail support is not to exceed 24 hours (excluding weekends and holidays), although it will typically be less than 4 hours.Problems are answered immediately when read unless the problem requires escalation. C. Use of GoToAssist for troubleshooting assistance FileOnQ Support Analysts may use our GoToAssist enabled website to access machines to assist in troubleshooting.GoToAssist will allow the analyst to see what the customer is seeing and control the customer's PC. This is available only to customers who have Internet access available to their machines. FileOnQ cannot access any machine without the customer's permission. D. After-hours emergency support FileOnQ offers emergency technical support during times not covered by normal support hours defined in section 12.The response time for emergency voice mail messages is not to exceed 2 hours. Problems are handled immediately; however, some company resources may not be available at the time of service,which may affect the overall resolution of the problem. E. On-site support FileOnQ provides on-site technical support for an hourly rate,plus travel expenses,should a problem be deemed unsolvable via the telephone. The Director of Customer Services will give authorization for on-site support. F. Limited Hardware Loaners FileOnQ provides a limited inventory of hardware loaners (such as barcode scanners), for any equipment purchased from FileOnQ that fails and requires service from the manufacturer. G. Escalation to Level III support Problems that cannot be resolved within a reasonable time after the initial contact will be escalated to level Ill support based on the escalation schedule defined in section 4. FileOnQ will direct all resources necessary to bring the problem to resolution. 11 H.Escalation to third party vendor In some instances, the customer may receive a higher level of service working directly with the vendor or manufacturer of one of the third party products supplied by FileOnQ. Technical Support may direct the customer to those resources as needed. I. Unresolved Calls reporting The FileOnQ Director of Customer Services will run an Unresolved Calls Report on a weekly basis in order to monitor quality. Results are reported to FileOnQ upper management and are discussed with appropriate staff members. 7. Scope and Limitations A. FlleOnQ will provide general support for software manufactured by FileOnQ and hardware sold by FileOnQ.This includes the following: 1. Installation and configuration support for the Server application 2. Installation and configuration support for the Client application 3.Peripheral Hardware configurations and troubleshooting 4.Defect maintenance 5.Database problems caused by a supported FileOnQ product B. Support will be provided either by email or telephone as the customer chooses. C. Support will only be provided to authorized Customer Contacts who are familiar with all of the FileOnQ products in use. The Customer Contact must also be familiar with the application being run. D.The following list details some of the issues that are not covered by a maintenance contract. This list should in no way be considered exhaustive. 1.Database Management 2.Maintenance or troubleshooting of the network a.Connections b.Operating System c.Infrastructure d.Etc. 3.Data or system security 12 4.Third party Software 5. Maintenance of the Server a. Operating System b. Hardware c. Etc. 8. Management Escalation Procedure All requests to escalate to management will be responded to by the Director of Customer Services within 2 hours. In the event the Director of Customer Services is unavailable, the backup team member will handle the problem and use all available resources to remedy the problem. 9. Defect Prioritization Defects discovered by Technical Support on shipping versions of software will be reported to the Engineering team.These defects will be prioritized with other issues. Customer priorities will be based on the following criteria: A. Number of customers potentially impacted by the defect B. Severity of the defect to the operation of the customer C. Impact to data integrity 10. Defect Resolution A. Defect resolution may take any one of the following forms at the discretion of the Defect Resolution Team (executive staff from Customer Support, Development and Quality Assurance). 1. Work around a. Redesign of the customer's application b.A change in the database c.A change in the customer's operational procedures d.Other 2. Installation of a software patch 3.Upgrade to a newer release of the version 11. Customer Responsibilities FileOnQ will support any hardware or software that we have provided to the customer. FileOnQ cannot take responsibility for managing or maintaining a customer's network or database. 13 A.Customer must utilize their internal Help Desk for assistance before calling FileOnQ Technical Support. B. Caller must be an authorized Customer contact,who is familiar 11ith the client and server portions of the software. C.Caller must be an authorized Customer contact,who is familiar with the application and their own data management. D.IT resources may be required for some issues. E.Customer must be using current versions of FileOnQ software. 12. Operational Procedures A. Contact information 1.Email: Support@fileonq.com 2.Phone: 1-800-603-6802 selection 4 from the menu 3.Emergency Support: 1-800-603-6802 selection 5 from the menu B. Service Hours 1.Monday through Friday 8:00 a.m.to 8:00 p.m.eastern time,excluding holidays. 2.After hours support covering evenings,weekends,and holidays after business hours as an option. C. Call Tracking 1. Customer records will be maintained in a Customer Support Call Tracking system. All communications between the customer and Technical Support will be logged under the customer record to maintain a history of the customer's system and issues to allow for personalized service and support. 2.FileOnQ will utilize this system to maintain control of all incoming and open issues to provide the highest level of service and follow-up. D. Prioritization Most calls will be handled on a first come first served basis;however,situations of a critical nature may be taken out of turn.Customers must communicate the level of priority when contacting FileOnQ based on the chart in section 4. 14 Exhibit C,the Software License Agreement Patent Protected,Patents 7,599,942 Bl&8,176,093 B2 FileOnQ, Inc., a Washington corporation doing business as FileOnQ ("FileOnQ") whose address is 832 Industry Drive,Seattle,WA 98188,USA has entered into a"Master Agreement for FileOnQ Software Solution and Support Services,"effective as of the Effective Date provided therein,with the Elgin Police Department ("Client")under which FileOnQ agrees to provide software and related services to Client("Agreement"). THIS EXHIBIT C - SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN FILEONQ AND CLIENT FOR THE FILEONQ SOFTWARE PRODUCT(S) SET FORTH IN THE AGREEMENT, INCLUDING COMPUTER SOFTWARE TO BE INSTALLED ON CLIENT'S SYSTEMS (INSTALLED SOFTWARE),SOFTWARE PROVIDED AS A HOSTED SERVICE BY FILEONQ(ONLINE SOFTWARE SERVICES), AND ACCOMPANYING PRINTED MATERIALS AND USER MANUAL (DOCUMENTATION") (INSTALLED SOFTWARE, ONLINE SOFTWARE SERVICES, AND DOCUMENTATION COLLECTIVELY,"SOFTWARE"). IF CLIENT DOES NOT AGREE TO THESE TERMS, CLIENT SHALL (I) STOP USING THE ONLINE SOFTWARE SERVICES AND DOCUMENTATION AND,(n)WITHIN THIRTY(30)DAYS OF PURCHASE, RETURN THE UNUSED INSTALLED SOFTWARE TO THE VENDOR FROM WHOM IT WAS PURCHASED FOR A REFUND, SUBJECT TO A RESTOCKING FEE. 1. GRANT OF LICENSE This License grants Client the following rights,subject to the terms and conditions of the Agreement: 1. 1 Installed Software and Documentation License Grant. Subject to and conditioned on Client's payment of applicable fees and compliance with all other terms and conditions of this Agreement, FileOnQ hereby grants to Client a limited, non-exclusive, non-sublicensable, and non- transferable license to use the Installed Software and Documentation solely as set forth in the Agreement during the Term. 1.2 Software License Limitations. Except as set forth herein, Client may use the Software only for the benefit and management of the purchasing entity and the management of the purchasing entities own items, records, documents, data and processes. Client use is limited to the number of entities, agencies, organizations, servers, web servers, modules, databases, concurrent client seats/database connections,and related utilities as identified in the Agreement.Client may not use the Software for the purpose of servicing third party entities,agencies or organizations unless specifically identified by name in the Agreement. However, Client's subscription shall include unlimited concurrent users within its own organization. 1.3 Storage/Network Use. Client may store or install a copy of the Installed Software on a storage device, such as a network server, used only to install or run the Installed Software over an internal network; however,Client must acquire sufficient concurrent client licenses so as to maintain one license for each simultaneous user during peak demand. 1.4 Transfer.Client may not transfer the Software(or Client's Account/access thereto)to any third party,except as set forth in the Agreement. 2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. 15 2.1 Reverse Engineering. Client may not modify, translate, reverse engineer, decompile, disassemble(except to the extent applicable laws specifically prohibit such restrictions)or create derivative works based on the Software,or any portion thereof. 2.2 Copying. Client may make copies of the Installed Software for the purposes of backup and archival.All copies must remain in the possession of Client and do not constitute legal copies for the purpose of additional installations. Documentation may be copied or printed from disk as needed to distribute to all authorized uses within the Client's organization as needed so long as all material remains unaltered. 2.3 Separation of Components. The Software is licensed as a single product. Client may not separate the Software's component parts for use on more than one computer. 2.4 Rental.Client may not rent or lease the Software or Documentation. 2.5 Proprietary Notices. Client may not remove any proprietary notices, labels or marks on the Software or Documentation. 2.6 Upgrades. If the Software is an upgrade from another product,this upgrade License supersedes any previous License.Client may use the Software only in conjunction with the upgraded product,or Client must destroy the upgraded product. 2.7 Use of FileOnQ's Name.Client may not use FileOnQ's or FileOnQ's suppliers'name,logos,or trademarks in any manner including, without limitation, in Client's advertising or marketing materials, except as is necessary to affix the appropriate copyright notices as required herein. 3. TITLE Title,ownership rights,and intellectual property rights in and to the Software shall remain in FileOnQ.The Software is protected by the copyright laws of the United States and international copyright treaties. As between Client and FileOnQ, FileOnQ is and shall remain the sole owner of all right,title and interest in and to the Software, and all intellectual property rights associated with the Software.Except as expressly granted in this Agreement,Client will not have or acquire any rights or interest in or to the Software.Client agrees not to directly or indirectly: (i)reverse engineer, decompile, disassemble or otherwise attempt to discover the Software; (ii) modify, translate, or create derivative works based on the Services or Software; (iii)copy, rent, lease, distribute,pledge, assign, or otherwise transfer or encumber rights to the Software; or(iv) use or access the Software to build or support, and/or assist a third party in building or supporting,products or services competitive to the Software. 4. DATA As between the parties,Client owns all Client Data and FileOnQ owns all FileOnQ Data. "FileOnQ Data"means all electronic data or information provided by FileOnQ in connection with the Software. "Client Data" means all electronic data or information submitted to or stored in the Software. FileOnQ may use aggregate, non-personally identifiable information it obtains in connection with providing the Software and services to Client to improve its or others' use of the Software and services, or for other purposes associated with FileOnQ's business. Client acknowledges and agrees that it is solely Client's responsibility to back up Client Data and that FileOnQ shall have no liability for loss of or damage to Client Data. Following termination or expiration of this Agreement, FileOnQ shall have no obligation to maintain or provide any of the Client Data and may delete all of the Client Data in FileOnQ's systems or otherwise in FileOnQ's possession or under FileOnQ's control. 5. TERMINATION The License is in effect until expiration or termination consistent with the applicable provisions of the Master Agreement for FileOnQ Software Solution and Support Services.The License will terminate automatically if Client fails to comply with the limitations described herein.On termination,Client must destroy all copies of the Software and Documentation. Termination of the Agreement shall automatically and immediately terminate the licenses granted hereunder. 6. EXPORT CONTROLS This Software is subject to the export control laws of the United States. Client may not export or re-export the Software without the appropriate United States and foreign government licenses.Client shall otherwise comply with all applicable export control laws and shall defend,indemnify and hold FileOnQ and all FileOnQ suppliers harmless from any claims arising out of Client's violation of such export control laws. Without limiting the foregoing, (i) Client represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Client shall not permit Users to access or use the Installed Software Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Client shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. 7. MISCELLANEOUS 7. 1 This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. 7 .2 This Agreement may be amended only in writing executed by both parties. 7 .3 If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remainder of this Agreement shall nonetheless remain in full force and effect.This Agreement shall be governed by and construed under Illinois State law. 8. U.S. GOVERNMENT END-USERS The Software is a "commercial item,' as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software"and"commercial computer software documentation,"as such terms are used in 48 C.F.R. 12.212(SEPT 1995), and is provided to the U.S. Government only as a commercial end item. Government end users acquire the Software under the following terms: (a) for acquisition by or on behalf of civilian agencies,consistent with the terms set forth in 48 C.F.R. 12.212(SEPT 1995);or (b) for acquisition by or on behalf of units of the Department of Defense,consistent with the terms set forth in 48 C.F.R.227.7202-1 through 227.72024(JUNE 1995). 9. LIMITED WARRANTY FileOnQ warrants that the media containing the Installed Software,if provided by FileOnQ, is free from defects in material and workmanship and will so remain for thirty (30) days from the date Installed Software is acquired. FileOnQ's sole liability, and Client's sole remedy, for any breach of this warranty shall be, in FileOnQ's sole discretion: (a) to replace defective media;or (b) if the above remedy is impracticable,to refund the License fee paid for the Installed Software. Replaced Installed Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software,or if longer,for thirty(30)days after the date of shipment of the replaced Software. Only if Client informs FileOnQ of a problem with the Installed Software during the applicable warranty period and provides evidence of the date Client acquired the Installed Software will FileOnQ be obligated to honor this warranty. FileOnQ will use reasonable commercial efforts to replace or refund pursuant to the foregoing 17 warranty within thirty (30) days of being so notified. THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY FILEONQ. FILEONQ MAKES NO OTHER WARRANTY, REPRESENTATION, OR CONDITION, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,NONINFRINGEMENT OF THIRD PARTY RIGHTS,LOSS OF DATA OR QUALITY.FILEONQ MAKES NO REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE, OR THE RESULTS CLIENT MAY OBTAIN BY USING THE SOFTWARE,OR THE PRESERVATION OF DATA SUBMITTED TO THE SOFTWARE.WITHOUT LIMITING THE GENERALITY OF THE FOREGOING FILEONQ DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE,OR THAT THE QUALITY OF THE SOFTWARE WILL MEET CLIENT'S REQUIREMENTS. CLIENT ACKNOWLEDGES THAT FILEONQ DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE ONLINE SOFTWARE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS RELATED TO THE USE OF SUCH COMMUNICATIONS FACILITIES AND THAT FILEONQ WILL NOT BE LIABLE FOR ANY SUCH LIMITATION, DELAY OR PROBLEM. THE DURATION OF IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, IS LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD; SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS, SO LIMITATIONS MAY NOT APPLY IN THOSE JURISDICTIONS. NO FILEONQ AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS,EXTENSIONS,OR ADDITIONS TO THIS WARRANTY. If any modifications are made to the Software by Client during the warranty period;if the media is subjected to accident, abuse, or improper use; or if Client violates the terms of this Agreement, then this warranty shall immediately be terminated.This warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the Software was designed to be used as described in the Documentation. THIS WARRANTY GIVES CLIENT SPECIFIC LEGAL RIGHTS,AND CLIENT MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION. 10. LIMITATION OF LIABILITY UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY,TORT,CONTRACT,OR OTHERWISE, SHALL EITHER PARTY HERETO OR THEIR SUPPLIERS OR RESELLERS, OFFICIALS, AGENTS OR ASSIGNS BE LIABLE TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING,WITHOUT LIMITATION,DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF FILEONQ'S LIST PRICE FOR A LICENSE TO THE SOFTWARE,EVEN IF THE PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES,OR FOR ANY CLAIM BY ANY OTHER PARTY. 11. SUSPENSION FOR ONGOING HARM FileOnQ may with reasonably contemporaneous telephonic notice to Client suspend Client's access to the Online Software Services if FileOnQ reasonably concludes that Client's Online Software Services are being used to engage in denial of service attacks,spamming,or illegal activity,and/or use of Client's Online Software Services are causing 18 immediate,material and ongoing harm to FileOnQ or others.In the event that FileOnQ suspends access to the Online Software Services,FileOnQ will use commercially reasonable efforts to limit the suspension to the offending portion of the Online Software Services and work with Client to resolve the issues causing the suspension of the Online Software Services.Client agrees that FileOnQ shall not be liable to Client nor to any third party for any suspension of the Online Software Services under such circumstances as described in this section. Any suspension under this section shall not excuse Client from Client's obligation to make payments under this Agreement. 12. FEEDBACK Client grants FileOnQ, its suppliers, and its third party vendors a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Software (without attribution, payment or consideration of any kind)any suggestions,enhancement requests,recommendations,proposals,correction or other feedback or information provided by Client related to the operation or functionality of the Software. 19