HomeMy WebLinkAbout24-99 Resolution No. 24-99
RESOLUTION
AUTHORIZING EXECUTION OF A MASTER SOFTWARE AND SERVICES
AGREEMENT WITH VERSATERM PUBLIC SAFETY US, INC. FOR POLICE
DEPARTMENT CUSTOMER SERVICE SOFTWARE
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 Software and Services Agreement on behalf of
the City of Elgin with Versaterm Public Safety US, Inc., for police department customer service
software,a copy of which is attached hereto and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: April 10, 2024
Adopted: April 10,2024
Omnibus Vote: Yeas: 9 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
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MASTER SOFTWARE AND SERVICES AGREEMENT
This Master Software and Services Agreement("MSA" or"Agreement") is made effective as of the
date of the last signature set forth on the signature page hereto(the"Effective Date"):
BETWEEN:
The City of Elgin, IL, (hereafter referred to as"CUSTOMER".
-and-
Versaterm Public Safety US, Inc., a corporation incorporated under the laws of the State of
Delaware(hereafter referred to as"Versaterm")
Background
A. Versaterm(including its affiliates) develops,and licenses proprietary software related to
public safety agencies.
B. The parties contemplate that from time-to-time CUSTOMER will wish to obtain, and
Versaterm will provide, a license and associated services from Versaterm to permit
CUSTOMER to such software and related materials,all of which shall be governed by the
terms and conditions of this MSA.
NOW THEREFORE in consideration of the covenants contained in this MSA, and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Partial
agree as follows:
1. Definitions.
For the purposes of this MSA, each Service Schedule and each Statement of Work, these
terms will have the following meanings:
1.1 "Authorized User" means an employee, consultant, or contractor of CUSTOMER
authorized by CUSTOMER to access and use the Services on CUSTOMER's behalf.
1.2 "Confidential Information" means this Agreement, any Service Schedule, the
Software, CUSTOMER Data and all ideas, designs, business models, databases,
drawings, documents, diagrams, formulas, test data, marketing, financial or
personnel data, technology, products, sates information, trade services, know-how
CUSTOMER or supplier information, including information provided by such
CUSTOMERs or suppliers, or any other information already furnished or to be
furnished or made available by one Partyto the other,whether in oral,written,graphic
or electronic form including any such information exchanged during informational
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sessions designated as confidential, including, without limitation, information
concerning a Party's actual and potential CUSTOMERs and other Intellectual
Property Rights of such Party, provided, however,that Confidential Information shall
not include any data or information: (i)that, at the time of disclosure, is in or, after
disclosure, becomes part of the public domain,through no act or failure on the part
of the receiving Party, whether through breach of this Agreement or otherwise; (ii)
that, prior to disclosure by the disclosing Party,was already in the possession of the
receiving Party, as evidenced by written records kept by the receiving Party in the
ordinary course of its business, or as evidenced by proof of actual prior use by the
receiving Party; (iii) independently, custom developed by the receiving Party, by
Persons having no direct or indirect access to the disclosing Party's Confidential
Information provided that the receiving Party provides clear and convincing evidence
of such independent development;(iv)which,subsequent to disclosure, is obtained
from a third Person:(A)who is lawfully in possession of the such information;(B)who
is not in violation of any contractual, legal, or fiduciary obligation to either Party, as
applicable,with respect to such information; and (C) on a non-confidential basis; or
(v) is further disclosed with the prior written consent of the disclosing Party, but only
to the extent of such consent.
1.3 "CUSTOMER Data" means collectively any data, files, documentation, or other
information: (i) that CUSTOMER or any of its Authorized Users may upload to
Versaterm Platform when using the Services; and (ii) processed through the use of
the Services,excluding Third-Party Data and any Versaterm Data.
1.4 "Customizations" means all CUSTOMER-requested modifications made to the
Software or User Documentation by or for Versaterm in accordance with the terms of
a Service Schedule or Work Order,which shall be at CUSTOMER's expense.
1.5 "Enhancements" means any changes or additions to the Software, that improve
functions,add new functions, improve performance,or corrects errors by changes in
system design or coding, including but not limited to changes or additions that are
made to the Software to provide substantial additional value or utility.
1.6 "Fees"means the Subscription Fees,the License Fees,the Maintenance and Support
Fees, the Customization Fees and all other fees and charges charged by Versaterm
under this MSA,any Service Schedule,any SOW,or any other attachment.
1.7 "Go-Live Date"means the date on which the Software is available for production use,
as may be further defined in a Service Schedule or SOW.
1.8 "including" means "including without limitation" and is not to be construed to limit
any general statement which it follows to the specific or similar items or matters
immediately following it.
1.9 "Intellectual Property" means any property, tangible or intangible, that may be
subject to Intellectual Property Rights, including without limitation, ideas,formulae,
algorithms, concepts, techniques, processes, procedures, approaches,
methodologies, plans, systems, research, information, documentation, data, data
compilations, specifications, requirements, designs, diagrams, programs,
inventions, technologies, software (including its source code), tools, products
knowledge, know-how, including without limitation, trade secrets, and other
materials or things.
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1.10 "Intellectual Property Rights"means:(a)any and all proprietary rights anywhere in the
world provided under: (i) patent law; (ii) copyright law, including moral rights; (iii)
trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or
mask work law; (vi) trade secret law; (vii) privacy law; or (viii) any other statutory
provision or common law principal applicable to this Agreement which may provide
a right in either: (A) Intellectual Property; or (B) the expression or use of Intellectual
Property; and (b) any and all applications, registrations, licenses, sub-licenses,
franchises, agreements or any other evidence of a right in any of the foregoing.
1.11 "License Fees" means the fees charged by Versaterm in respect of the provision of
Software to CUSTOMER on an on-premises basis, as further identified in a Service
Schedule.
1.12 "Licensed Materials" means collectively the Versaterm Platform, Software, and the
User Documentation.
1.13 "Maintenance and Support Fees" means the fees charged by Versaterm in respect of
maintenance and support services as further identified in a Service Schedule.
1.14 "Network Aggregator Provider" means a third-party service provider that offers
connectivity services to securely link separate networks.
1.15 "Open-Source Software Components" means software programs, libraries, or
distributable(commonly known as"public","open-source"or"free"software)made
publicly available by the copyright holders.
1.16 "Party" means either CUSTOMER or Versaterm and "Parties" means both.
1.17 "Person" means any individual, company, corporation, partnership, government or
government agency, authority or entity howsoever designated or constituted.
1.18 "Point of Access" means Versaterm's, or its subcontractor's, border router, which is
used to establish connectivity from the Versaterm Platform to Versaterm's, or its
subcontractor's, internet provider,or the public internet.
1.19 "Professional Services" all professional services purchased by CUSTOMER in
respect of the Subscription Services or use of Software (if installed on CUSTOMER's
premises), including implementation services, data migration, specialized support,
training services and any other services as further described in a Service Schedule or
Statement of Work.
1.20 "Service Schedule" means the applicable written document, signed by CUSTOMER
and Versaterm, which incorporates by reference the terms and conditions of this
MSA, the terms and conditions of Subscription Service or the terms and conditions
regarding use of the Software, any attached SOW, and any other relevant terms and
conditions with respect to Customizations, Professional Services, Implementation or
the provision of other technical services.
1.21 "Software" means the computer programs owned by Versaterm and which are
licensed to CUSTOMER under a Service Schedule, including: (a) all maintenance
modifications (updates and upgrades); (b) Enhancements; (c) Customizations, now
developed or to be developed by or for Versaterm during the Term; and (d) all
formulas, routines, subroutines, algorithms, concepts, techniques, know-how and
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ideas implemented or embodied in any of the foregoing, in any form. For the
avoidance of doubt,Software excludes Third-Party Components.
1.22 "Statement of Work or SOW" means the applicable written document, signed by
CUSTOMER and Versaterm or incorporated as part of Service Schedule, under which
Versaterm may provide CUSTOMER additional Professional Services related to the
Software, including training, specialized support and data migration,which shall be
attached to the applicable Service Schedule.
1.23 "Subscription Fee" means the fees charged by Versaterm in respect of the
Subscription Service as further identified in a Service Schedule.
1.24 "Subscription Service" means any combination of the following: (i) limited access
and use rights to the Versaterm Platform on a hosted basis, (ii) hosting services, (iii)
support services, and (iv) any other similar generally applicable services that
Versaterm provides to its CUSTOMERs in accordance with the User Documentation.
For the avoidance of doubt, Subscription Services do not include Professional
Services.
1.25 "Subscription Term" means, with respect to any use of Software or access to
Subscription Service, the subscription period specified on the applicable Service
Schedule or, if no explicit period is indicated in the applicable Service Schedule, a
period of one(1)year starting from the 1st of the month following the Effective Date;
together with, all renewals thereof effected in accordance with the terms of this
Agreement.
1.26 "Term" means the term set out in Section 3, paragraph (a).
1.27 "Third-Party Data" means any data owned by a third party that the CUSTOMER
accesses via the Software.
1.28 "Third-Party Component" means any components of the Subscription Services
provided by third parties, including Open-Source Software Components and third-
party proprietary software or services(e.g.Amazon Web Services(AWS)).
1.29 "Third-Party Supplier" means any party who provides products and/or services,
including Open-Source Software and Third-Party Components that contribute to the
overall Software provided to the CUSTOMER by Versaterm.
1.30 "User Documentation" means the user manuals, guides, and specifications with
respect to the operation,use,functions,and performance of the Software,as revised
from time to time, and any additional documentation for Customizations produced
by Versaterm, in written or online electronic form.
1.31 "Versaterm Platform" means the Software, Versaterm Server and such devices and
peripherals physically located with the Versaterm Server, including all computer
hardware, software, network elements, and electrical and telecommunications
infrastructure located behind the Point of Access.
1.32 "Versaterm Server" means that computer server located at Versaterm's premises, or
a third-party provider of hosting and/or network services,that houses the Software.
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2. Scope of Agreement
(a) It is the intention of Versaterm and CUSTOMER that,where Software and services are
to be provided by Versaterm under this MSA, particular details and terms will be
specified in a Service Schedule. If there is a conflict between a Service Schedule and
this MSA, the Service Schedule will prevail over the conflicting provisions of this MSA
to the extent of the inconsistency but only for the purposes of that Service Schedule.
Except for such conflicts,the provisions of this MSA will not be deemed to be amended,
cancelled,waived, or released by the execution of a Service Schedule.
(b) Each Service Schedule shall contain the following minimum information,to the extent
the same is applicable:
i. the express incorporation of this MSA by reference;
ii. a list and description of the applicable Software;
iii. Subscription Term;
iv. Customizations and custom application programming interfaces ("APIs") if any,to
the Software and the terms and conditions upon which same will be provided;
v. the Fees, including onboarding fees, escrow agreement fees and implementation
fees, as applicable;
vi. the License Fee or Subscription Fee for the Software;
vii. the Maintenance and Support Fee;
viii. the site(s)at which the Software are permitted to be installed if Software is installed
on CUSTOMER's premises;
ix. the project schedule(which may include project implementation dates,installation
dates,training session dates)for the Software;
x. training, if applicable;
xi. any other terms relating to the maintenance, enhancement or support of the
Software; and
xii. any special terms and conditions agreed upon by Versaterm and CUSTOMER.
3. Effective Dates.
(a) This MSA shall have an initial term of three (3)years from the Effective Date (the "Initial
Term"), referred to herein as the"Term". Notwithstanding any termination or expiration
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of this MSA,the MSA shall continue to be in effect until the termination or expiration of
the last effective Service Schedule.
(b) Each Service Schedule will be effective from the date set out in such Service Schedule
and for the term specified in that Service Schedule.
4. License
(a) CUSTOMER shall have the right to access and use or install and use the Licensed
Materials solely as expressly granted or otherwise set forth in this MSA and the applicable
Service Schedule.
(b) CUSTOMER shall not:
(i) use, reproduce, display, perform or otherwise exploit the Software except as
expressly authorized in this MSA or in a Service Schedule;
(ii) copy any of the Software or User Documentation except as reasonably necessary
to use the Software for its internal use as authorized herein or in a Service Schedule,
and in all cases subject to the confidentiality provisions hereof, and provided that all
copyright notices and any other proprietary notices are included;
(iii) assign this MSA or transfer,lease,export or grant a sublicence of the Software or
the license contained in this MSA to any Person except as expressly authorized herein
or in a Service Schedule;
(iv) decompile, disassemble, reverse engineer, or otherwise access or attempt to
gain access to the Software's source code;
(v) give any Person other than its employees,consultants,contractors and/or clients
of CUSTOMER or other individuals listed pursuant to a Service Schedule access to the
Software or;
(vi) rent or lend, with or without charge, any system which includes the Software to
any Person including clients and CUSTOMERs;
(vii)operate at any time on a regular or irregular basis an online or offline CUSTOMER
service bureau involving the Software;
(viii) permit (and CUSTOMER shall take all necessary precautions to prevent) third
parties (including,any parties affiliated or related to CUSTOMER)to use the Software
in any way that would constitute a breach of this MSA or any Service Schedule;
(ix) use any APIs,other than the APIs expressly authorized for use by Versaterm,with
the Software or use any authorized APIs in a manner that is not permitted or published
by Versaterm;
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(x) remove or modify any proprietary marking or restrictive legends placed on the
Licensed Materials;
(xi) use any device, software, or routine to interfere with the proper working of the
Software or to bypass any security features of the Software; or
(xii) introduce into the Versaterm Platform any viruses, worms, defects, trojan
horses, malware, or any items of a destructive nature,
(c) CUSTOMER shall be solely and exclusively responsible for the supervision,
management, and control of CUSTOMER's and each of its Authorized User's use of the
Licensed Materials and shall require each Authorized User to maintain all passwords and
other access credentials with respect thereto.
5. Customer's Obligations
(a) Where the Software will require access and use of the Versaterm Platform,Versaterm
shall operate and maintain the Versaterm Platform in accordance with the applicable
Service Schedule. Access to the Versaterm Platform may be through a secure
connection with the public internet or using a Network Aggregator Provider.
CUSTOMER acknowledges and agrees that Versaterm is not responsible or liable for
any communication over the public internet, or for the Network Aggregator Provider's
network or its operation or the Network Aggregator Provider's network's failure to
deliver communication to and from the Versaterm Platform on a timely basis.
(b) CSBP shall be fully responsible for the acts and omissions of all Persons that are
authorized or otherwise allowed,by CUSTOMER,to use or have access to the Software
and User Documentation.
(c) CSBP agrees to co-operate with and advise Versaterm of all information which would
be reasonably required to permit Versaterm to deliver and, if applicable, install the
Software. CUSTOMER shall respond promptly to any Versaterm request to provide
information, approvals, authorizations or decisions that are reasonably necessary for
Versaterm to provide the Software.
(d) Subject to the terms and conditions of this MSA, each Service Schedule, and if
applicable, each SOW, CUSTOMER shall provide Versaterm with all reasonable
access,which may include remote access,to CUSTOMER's systems and premises for
the purpose of Versaterm performing its obligations pursuant to this MSA, and the
failure of CUSTOMER to provide such access shall relieve Versaterm of its obligation
to perform such obligations.
(e) CUSTOMER shall notify Versaterm immediately of any actual or suspected
unauthorized use of its passwords or API keys for the Versaterm Platform.
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6. Ownership
(a) CUSTOMER acknowledges and agrees that all rights, title and interests in and to the
Licensed Materials, including all Intellectual Property embodied therein, are and shall
at all times remain the exclusive property of Versaterm and that, except as expressly
set forth herein, no rights, title or interests, including any license, is granted to
CUSTOMER hereunder by implication, estoppel, or otherwise of any kind whatsoever
in or to the Licensed Materials or any portion thereof,except,in each case,for the rights
and licenses expressly granted to CUSTOMER herein,. CUSTOMER further
acknowledges and agrees that all Third-Party Components are and shall at all times
remain the property of the applicable Third-Party Suppliers.
(b) CUSTOMER shalt not remove any Versaterm trademark, service mark or logo, or any
proprietary notices or labels (including any copyright or trademark notices) from the
Service.
(c) If CUSTOMER provides any feedback, comments, suggestions, ideas, descriptions of
processes,or other information to Versaterm about or in connection with any Licensed
Materials, including any ideas, concepts, know-how or techniques contained therein
(collectively, "Feedback"),then CUSTOMER hereby grants Versaterm and its affiliates
a worldwide, fully paid-up, royalty-free, non-exclusive, perpetual and irrevocable
license to use, copy, modify and otherwise exploit the Feedback for any purpose,
without any compensation to CUSTOMER or any restriction or obligation on account of
Intellectual Property Rights or otherwise. Without limiting the generality of the
foregoing, nothing in this MSA limits Versaterm's right to independently use, develop,
evaluate, or market products,whether incorporating Feedback or otherwise.
7. CUSTOMER Data and Hosting Provider
(a) CUSTOMER hereby grants to Versaterm a limited, non-exclusive, non-transferable,
royalty-free right to use, reproduce, manipulate, display, transmit and distribute the
CUSTOMER Data solely in connection with providing the Licensed Materials to
CUSTOMER, and improving and developing the Licensed Materials. In addition,
Versaterm may analyze CUSTOMER Data, and data of other CUSTOMERs, to create
aggregated or anonymized statistics or data that do not identify CUSTOMER or any
individual, and Versaterm may during and after the Term use and disclose such
statistics or data in its discretion. Except as specified otherwise in the Agreement,
CUSTOMER shall be solely responsible for providing, updating, uploading and
maintaining all CUSTOMER Data.
(b) CUSTOMER acknowledges and agrees that Versaterm: (i)will not be responsible for the
accuracy, completeness or adequacy of any CUSTOMER Data or the results generated
from any CUSTOMER Data uploaded to the Versaterm Platform and processed by the
Software;(ii)has no control over any CUSTOMER Data or the results therefrom;(iii)does
not purport to monitor CUSTOMER Data; and (iv) if Software is installed on CUSTOMER
premises, shall not be responsible to back up or maintain any back up of the
CUSTOMER Data or any portion thereof.
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(c) Versaterm may change its third-party hosting provider("Hosting Provider")at any time.
CUSTOMER's use of the Licensed Materials is subject to any applicable restrictions
imposed by the Hosting Provider. Notwithstanding any other provision of this MSA,
Versaterm shall not be liable for any problems, failures, defects or errors with the
Licensed Materials to the extent caused by the Hosting Provider. CUSTOMER
acknowledges that the Fees payable for the Licensed Materials reflect the fact that
Versaterm is not responsible for the acts and omissions of the Hosting Provider.
8. Fees and Payment Terms
(a) All Fees applicable to a Service Schedule will be specified therein. All amounts
invoiced and due in accordance with the payment terms of the applicable Service
Schedule shall be paid by CUSTOMER within thirty(30) days of the date of an invoice
for such amounts.
(b) Any additional services, such as Professional Services or Customizations, requested
by CUSTOMER shall be subject to additional Fees,unless otherwise agreed to in writing
by the Parties.
(c) All invoices under a Service Schedule will be in writing, reasonably substantiate the
charges set out therein and will be emailed by Versaterm to CUSTOMER at email
address specified in the applicable Service Schedule or may be submitted through an
alternative electronic platform as agreed to between the Parties (i.e.: CUSTOMER's
portal)as identified in the applicable Service Schedule.
(d) Versaterm hereby waives any and all claims or rights to interest on money claimed to
be due pursuant to this agreement, and waives any and all such rights to interest to
which it may otherwise be entitled pursuant to law, including, but not limited to,
pursuant to the Local Government Prompt Payment Act (50 ILCS 505/1, et seq.), as
amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The
provisions of this paragraph shall survive any expiration, completion and/or
termination of this agreement.
(e) In all cases, all undisputed amounts due under this Agreement will be paid by
CUSTOMER in full without any withholding,set-off, counterclaim or deduction.
(f) If, acting in good faith, CUSTOMER disputes any item within an invoice, it shall raise
such dispute by written notice to Versaterm prior to the date that payment on such
invoice is due, and the Parties shall negotiate in good faith to attempt to resolve the
dispute promptly. If the dispute is not resolved within thirty(30)days of the said notice
being given,the dispute shall be resolved in accordance with Section 33.Any amounts
not disputed in accordance with this section shall be deemed accepted and must be
paid by CUSTOMER in accordance with paragraph(a).
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9. Taxes.
In addition to all charges under a Service Schedule, CUSTOMER shall pay to Versaterm all
taxes, duties, and other such assessments or charges which may be assessed, levied, or
imposed with respect to any Software, services or products provided under a Service
Schedule, except taxes based on Versaterm's income and capital.The foregoing provision
includes sales, use, service, excise and personal property taxes, whether collected or
withheld by Versaterm or otherwise assessed, and any penalty and interest payments
related to the foregoing(which penalty and interest payments are not due to any fault on
the part of Versaterm) but does not include taxes for which CUSTOMER is exempt by law
and for which CUSTOMER has provided to Versaterm a bona fide tax exemption certificate
prior to such tax becoming due.CUSTOMER is a tax-exempt governmental body.
10. Confidentiality
(a) Each Party acknowledges that all Confidential Information consists of confidential and
proprietary information. Except as required by law, each Party shall hold Confidential
Information of the other Party in trust and confidence for and on behalf of such other
Party, and shall take commercially reasonable measures to maintain the
confidentiality of the Confidential Information, which measures shall in any event be
no less than what such Party would implement to protect its own Confidential
Information of a similar nature or value. Each Party agrees not to make use of
Confidential Information other than to the extent necessary for the exercise of rights or
the performance of obligations under this MSA or any Service Schedule, and not to
release,disclose,communicate or otherwise make it available to any third-party other
than officers, directors, employees, consultants and contractors of Versaterm or
CUSTOMER, as applicable, who reasonably need to know it in connection with the
exercise of rights or the performance of obligations under this MSA or any Service
Schedule.
(b) Each Party agrees that any breach of this Section 10("Confidentiality")may give rise to
irreparable damage to the other Party, the injury to the other Party from any such
breach would be difficult to calculate,and that money damages would therefore be an
inadequate remedy for such breach. Each Party agrees that the other Party will be
entitled,in addition to all other remedies that the other Party may have under this MSA,
at law or in equity,and without showing or proving any actual damage sustained by it,
to a permanent or temporary injunction or other order to restrain any breach,
threatened breach or the continuation of any breach of this Section 10.
(c) Upon the termination or expiration of each Service Schedule, each Party will return to
the other Party all Confidential Information with respect to such Service Schedule
which is then in its possession or control.Upon the termination of this MSA,each Party
will return to the other Party all Confidential Information of such other Party which is
then in its possession or control.
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(d) Notwithstanding the above,Versaterm reserves the right to retain CUSTOMER Data on
audit logs and server system logs and in support tickets, support requests, and direct
communications with Versaterm, saved as part of routine back-ups or as otherwise
may be required by law.
11. Representations and Warranties of Versaterm.
Versaterm represents and warrants as follows:
(a) Versaterm has the power and the capacity to enter into, and to perform its obligations
under this MSA. This MSA and each of the agreements, contracts and instruments
required by this MSA to be delivered by Versaterm have been duly authorized by
Versaterm.This MSA has been duly executed and delivered by Versaterm and is a valid
and binding obligation of Versaterm,enforceable in accordance with its terms;
(b) neither the entering into of this MSA, nor the performance by Versaterm of any of its
obligations under this MSA will contravene, breach, or result in any default under any
organizational documents of Versaterm or under any agreement to which Versaterm is
a party or by which Versaterm is otherwise bound; and
(c) Versaterm will use commercially reasonable efforts to ensure that all Software
delivered to CUSTOMER is, at the time of shipment, free of any known computer
software viruses.
12. Representations and Warranties of CUSTOMER. CUSTOMER represents, warrants, and
covenants, as follows:
(a) CUSTOMER has the corporate power and the capacity to enter into, and to perform its
obligations under this MSA. This MSA and each of the agreements, contracts and
instruments required by this MSA to be delivered by CUSTOMER have been duly
authorized by CUSTOMER. This MSA has been duly executed and delivered by the
CUSTOMER and is a valid and binding obligation of the CUSTOMER, enforceable in
accordance with its terms;and
(b) neither the entering into of this MSA, nor the performance by CUSTOMER of any of its
obligations under this MSA will contravene, breach, or result in a default under the
articles, by-laws, constating documents or other organizational documents of
CUSTOMER or under an agreement to which the CUSTOMER is a party or by which
CUSTOMER is otherwise bound.
13. Versaterm's Indemnity
(a) Versaterm will defend at its own expense any claim, proceeding or suit (for purposes
of this Section 13, a "Claim") brought against CUSTOMER to the extent such Claim
alleges that any Licensed Materials provided under a Service Schedule infringes a
proprietary right of a third-party which is enforceable within Canada or the United
States, and will indemnify and pay all damages finally awarded against CUSTOMER by
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courts of competent jurisdiction on account of such infringement together with all
reasonable costs and expenses (including reasonable legal fees as determined by
courts of competent jurisdiction) incurred by CUSTOMER as a direct result of such
Claim, provided Versaterm is given: (i) prompt written notice, however, no later than
ten(10)days,of the Claim; (ii)all reasonable information and assistance which it may
require to defend the Claim; (iii) sole control of the defense of the Claim, and all
negotiations for its settlement or compromise; and provided further: (iv) that the
alleged infringement does not result from any alterations, modifications or
enhancements to the Software or Documentation made by CUSTOMER or on its behalf
by a third-party, or the use or operation of the Licensed Materials in combination with
other software, products, data,apparatus or equipment not provided by Versaterm.
(b) Notwithstanding anything to the contrary in this MSA or any Service Schedule,
Versaterm shall not be responsible for any cost, expense or compromise incurred or
made by CUSTOMER in respect of a Claim without Versaterm's express prior written
consent.
(c) If any Claim has occurred, or in Versaterm's opinion is likely to occur,Versaterm may,
at its option and expense:
(i) procure for CUSTOMER the right to continue using the applicable Licensed
Materials;
(ii) replace or modify the same so that it becomes non-infringing without loss of
material functionality;or
(iii) if none of the foregoing alternatives is reasonably available, or available on
commercially reasonable terms, at Versaterm's discretion, discontinue the
Service and use of the Software and refund to CUSTOMER any pre-paid and
unused portion of the Fees paid by CUSTOMER in respect of use of the Software
for the remainder of the then-current portion of the Term.
(d) Notwithstanding the above Versaterm shall have no obligation for any Claim based
upon Third-Party Components,which are warranted solely by the individual Third-Party
Supplier.
(e) This Section 13 states the entire obligations of Versaterm with respect to any
infringement of any Intellectual Property Rights of any third party.
14. CUSTOMER's Indemnity
CUSTOMER shall indemnify and hold harmless Versaterm and its directors, officers,
employees, agents and providers ("Versaterm Indemnified Parties")from and against any
Claims to the extent based on any claim that the CUSTOMER Data infringes any third party
intellectual property or proprietary right(excluding patents); provided, however,that in no
event shall CUSTOMER be liable for attorney's fees.
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15. Exclusion of Other Warranties and Conditions
(a) EXCEPT AS EXPRESSLY STATED IN THIS MSA,ANY SERVICE SCHEDULE,OR ANY SOW,
THE LICENSED MATERIALS, THIRD-PARTY COMPONENTS OR ANY SERVICES
PROVIDED HEREUNDER,ANY SERVICE SCHEDULE OR ANY SOW ARE PROVIDED ON
AN "AS IS", "WHERE-IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF
ANY KIND. THE REPRESENTATIONS AND WARRANTIES GIVEN BY VERSATERM IN
SECTION 11 ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES OR
CONDITIONS, WHETHER EXPRESS OR IMPLIED, IN RELATION TO ANY LICENSED
MATERIALS,THIRD-PARTY COMPONENTS OR SERVICES PROVIDED UNDER THIS MSA,
ANY SERVICE SCHEDULE OR ANY SOW, INCLUDING ANY IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE OR NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN
LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. VERSATERM HEREBY
DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY
COMPONENTS OR THE ACTS OR OMISSIONS (INCLUDING WITH RESPECT TO THE
PROVISION OF ANY SERVICES)OF ANY THIRD-PARTY SUPPLIER.
(b) CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE AND
OPERATION OF ANY SOFTWARE OR THIRD-PARTY COMPONENTS,AND THE RESULTS
OBTAINED FROM SUCH USE AND OPERATION, ARE AT THE SOLE AND EXCLUSIVE
RISK OF CUSTOMER AND THAT VERSATERM ASSUMES NO LIABILITY OR
RESPONSIBILITY WITH RESPECT TO ANY RELIANCE UPON THE RESULTS OBTAINED
BY CUSTOMER OR ANY THIRD-PARTY.
16. Exclusion of Indirect Damages.
UNDER NO CIRCUMSTANCES WILL VERSATERM BE LIABLE FOR ANY OF THE FOLLOWING
UNDER THIS AGREEMENT FOR ANY REASON: (A) SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITH
RESPECT TO LOSS OF PROFITS, REVENUES, CUSTOMERS OR CONTRACTS, LOSS OF USE
OF EQUIPMENT, LOSS OF OR DAMAGE TO DATA OR CUSTOMER RECORDS,
REPUTATIONAL HARM, OPERATIONAL OR SERVICE INTERUPTIONS, BUSINESS
INTERRUPTION, OR LACK OF AVAILABILITY OF CUSTOMER MATERIALS OR FACILITIES,
INCLUDING CUSTOMER'S COMPUTER RESOURCES, SOFTWARE AND ANY STORED DATA
(INCLUDING CUSTOMER DATA)OR RECORDS;OR(B)ANY THIRD-PARTY CLAIMS AGAINST
CUSTOMER FOR LOSSES OR DAMAGES (EXCEPT AS EXPRESSLY PROVIDED IN SECTION
13), IN EACH CASE, EVEN IF ADVISED OF THE POSSIBILITY OF SAME OR EVEN IF SAME
WERE REASONABLY FORESEEABLE.
17. Limitation of Direct Damages.
THE TOTAL AGGREGATE LIABILITY OF VERSATERM UNDER THIS AGREEMENT IN ANY
CIRCUMSTANCES IS LIMITED TO THE AMOUNT CUSTOMER PAID VERSATERM UNDER THE
SERVICE SCHEDULE PURSUANT TO WHICH SUCH LIABILITY AROSE OR IS ASSOCIATED
DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON
WHICH THE CLAIM GIVING RISE TO THE LIABILITY AROSE. NOTWITHSTANING THE
January 2024—v310124 Page 13 of 20
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FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT
APPLY TO DAMAGES ARISING FROM VERSATERM'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
18. Insurance.
Versaterm shall secure and maintain insurance coverage throughout the MSA and any
Service Schedule in amounts that it deems reasonable in its sole discretion.
19. Termination.
In addition to any other rights or remedies hereunder:
(a) Versaterm reserves the right to terminate this MSA or any Service Schedule for
convenience by providing thirty(30)days written notice to the CUSTOMER;
(b) Versaterm may terminate this MSA and/or any Service Schedule at any time on giving
CUSTOMER notice in writing if: (i) CUSTOMER infringes any copyright or other
Intellectual Property Right or other industrial or proprietary right of Versaterm; (ii) in
Versaterm's reasonable judgment, CUSTOMER's use of the Software poses a security
risk to the Software or any third party; (iii) CUSTOMER fails to pay in full any sum owed
by it under this MSA or Service Schedule within thirty(30)days of the due date therefor;
or(iv)CUSTOMER fails to observe or perform any other material obligation or covenant
required to be observed or performed by it under this MSA or Service Schedule, and
solely in the case of (iv) above, such failure continues for a period of thirty (30) days
after delivery of written notice by Versaterm to CUSTOMER requiring CUSTOMER to
cure such failure.
(c) In the event CUSTOMER becomes unable to pay future amounts due under any Service
Schedule or SOW due to a material reduction in or cancellation of public funding,
CUSTOMER may terminate the applicable Service Schedule or SOW upon thirty (30)
days' written notice to Versaterm, and Versaterm shall be entitled to retain any
advance payments made by CUSTOMER to Versaterm.
(d) Subject to applicable law, CUSTOMER may terminate this MSA immediately upon
giving written notice to Versaterm if Versaterm: (i) makes any general assignment for
the benefit of creditors or otherwise enters into any composition or arrangement with
its creditors; (ii) is unable to pay its debts as they mature; (iii) has a receiver and/or
manager appointed over its assets or an application is made to do so; (iv) becomes
bankrupt or insolvent or commits an act of bankruptcy or(v)Versaterm fails to observe
or perform any other material obligation or covenant required to be observed or
performed by it under this MSA or Service Schedule,and solely in the case of(v)above,
such failure continues for a period of thirty(30) days after delivery of written notice by
Versaterm to CUSTOMER requiring CUSTOMER to cure such failure.
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20. Orderly Termination
(a) Upon any termination or other expiration of a Service Schedule or SOW or this MSA,
each Party shall forthwith return to the other Party all Confidential Information,
documentation, papers, material, and other property of the other Party in its
possession or control.
(b) In addition to the obligations in Section 20(a) above, upon termination of a Service
Schedule or upon expiration of the License Term for Software which is not renewed in
accordance with the Service Schedule,CUSTOMER shall:
(i) immediately discontinue use of the Licensed Materials;
(ii) ensure that all Persons using the Licensed Materials pursuant to this MSA cease
all use thereof;
(iii) promptly(and in any event within five (5) days) return to Versaterm all copies of
the Licensed Materials in its(or any Authorized Users'or other Persons'to whom
it provided access to any Licensed Materials) possession or control;
(iv) permanently erase all Licensed Materials, in whole or in part,from all computer
systems, storage devices and other electronic recording systems in
CUSTOMER's possession or control and cause each Authorized User and each
other Person to whom it provided access to any Licensed Materials to do the
same;
(v) deliver within thirty (30) calendar days of such termination or expiration a
certificate certifying that CUSTOMER and all such Persons to whom CUSTOMER
has provided access to any Licensed Materials have complied with the terms of
this Section 20(b), as applicable; and
(vi) pay Versaterm the full amount of any charges outstanding, including for any
Professional Services performed, as of the date of termination, if any, whether
invoiced or not (including any amounts due as late payment charges), and all
other monies owing to Versaterm.
21. Suspension
If CUSTOMER has materially violated the MSA or any Service Schedule, including failure to
pay any Fees or any portion thereof when due (other than invoiced amounts disputed in
good faith pursuant to Section 8(f)), Versaterm may immediately suspend CUSTOMER's
and each of its Authorized Users' right to access or use any Licensed Materials (including
access to the Versaterm Platform)or receive any Services.
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22. Relationship
This MSA and each Service Schedule and SOW are agreements between separate legal
entities and neither Party is the agent, employee, or partner of the other for any purpose
whatsoever. The Parties do not intend to create a partnership or joint venture between
themselves. Neither Party shall have the right to bind the other to any Service Schedule with
a third-party or to incur any obligation or liability on behalf of the other Party.
23. Notices.
Unless specified otherwise in a Service Schedule,all notices,requests,demands and other
communications under this MSA and each Service Schedule shall be in writing and shall
only be duly given:
(a) on the date of sending if sent by email to the email address indicated in Section 23(b);
or
(b) on the three business day after posting if sent, during normal postal conditions, by
registered or certified mail to the Party for which it is intended and addressed as
follows:
To Versaterm at: To customer at:
Versaterm Public Safety U.S. Inc. City of Elgin
1 North MacDonald,Suite 500 150 Dexter Court
Mesa,Arizona, USA Elgin, IL 60120
85201
Attention: Legal Department Attention: Rick Kozal-City Manager
E-mail: legalPversatgrm,com E-mail: Kozal_r@cityofelgin.org
With copy to:
Versaterm Public Safety Inc.
1331 Clyde Avenue, Suite 400
Ottawa, Ontario,Canada
K2C 3G4
24. Waiver.
Any waiver of, or consent to depart from,the requirements of any provision of this MSA or a
Service Schedule or SOW shall be effective only if it is in writing and signed by the Party
giving it, and only in the specific instance and for the specific purpose for which it has been
given. No failure on the part of any Party to exercise, and no delay in exercising, any right
under this MSA shall operate as a waiver of such right. No single or partial exercise of any
such right shall preclude any other or further exercise of such right or the exercise of any
January 2024—v310124 Page 16 of 20
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other right. No amendment or variation to this MSA shall be effective unless signed in
writing by both Parties.
25. Assignment.
CUSTOMER may not assign any rights or benefits under this MSA (including any Service
Schedules or SOWs), in whole or in part, to any Person without the express prior written
consent of Versaterm. Versaterm may assign its rights and benefits under this this MSA
(including any Service Schedules or SOWs)to any Person by providing written notice to the
CUSTOMER and may contract with any other Person to perform its obligations under this
MSA(including any Service Schedules or SOWs)without obtaining CUSTOMER's consent to
any such contract. Notwithstanding the foregoing, Versaterm may assign its rights and
benefits under this MSA(including any Service Schedules or SOWs)to any Person without
providing written notice to the CUSTOMER if such assignment is due to a corporate
restructure, merger, or acquisition.
26. Force Majeure.
Except as expressly provided otherwise in a Service Schedule, dates and times by which
Versaterm or CUSTOMER is required to render performance(other than dates and times for
payment of money) under a Service Schedule or SOW shall be postponed automatically to
the extent and for the period of time that Versaterm or CUSTOMER, as the case may be, is
prevented from meeting them by reason of any causes beyond its reasonable control,
provided the Party prevented from rendering performance notifies the other Party promptly
and in detail of the commencement and nature of such a cause, and provided further that
such Party uses its commercially reasonable efforts to render performance in a timely
manner utilizing to such end all resources reasonably required in the circumstances,
including obtaining supplies or services from other sources if same are reasonably
available.
27. Severability.
If any provision of this MSA or any Service Schedule or SOW is determined to be invalid or
unenforceable by a court of competent jurisdiction from which no further appeal lies or is
taken,that provision shall be deemed to be severed herefrom,and the remaining provisions
of this MSA, Service Schedule or SOW shall not be affected thereby and shall remain valid
and enforceable.
28. Survival.
All obligations accrued to the date of termination as well as the Sections of this MSA listed
below shall survive the termination of this MSA and any Service Schedule or SOW made
pursuant to this MSA for as long as necessary to permit their full discharge: 1, 4(b), 6, 8,9,
10, 13, 14, 15, 16, 17, 20, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37,38, 39,41
and 42.
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29. Headings
Section headings used in this MSA or any Service Schedules or SOWs are for convenience
of reference only and shall not be construed as defining, limiting, or describing the scope
or intent of this MSA or of the Service Schedule or SOW,as applicable.
30. Currency
Unless otherwise specified,all references to monetary amounts, including the symbol"$",
are in respect of United States Dollars.
31. Benefits
This MSA and any Service Schedule or SOW made pursuant to this MSA shall be binding
upon and enure to the benefit of the Parties and their respective successors and permitted
assigns.
32. Interpretation
In this MSA and each Service Schedule,words in the singular number include the plural and
vice versa;words in the masculine gender include the feminine and neutral genders.
33. Good Faith Discussions
Priorto the commencement of any legal proceeding under this MSA or any Service Schedule
or SOW, all claims must be raised for good faith discussion between authorized
representatives of both Parties with authority to resolve the dispute.Should the claims not
be resolved within thirty(30)days of the date of the first request such discussion,each Party
shall be free to pursue its legal remedies pursuant to the terms of this MSA.
34. Amendments.
None of this MSA, and Service Schedule or any SOW shall be changed or amended except
in writing by an amendment executed by authorized representatives of each Party.
35. Governing Law and Venue.
This MSA,each Service Schedule and each SOW as well as any matters relating to this MSA,
any Service Schedule or any SOW, shall be construed and governed by and in accordance
with the laws of the State of Illinois and the applicable federal laws of the United States
(excluding any conflict of laws rule or principals that might refer such construction to the
laws of another jurisdiction).).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. Versaterm 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.
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36. Entire Agreement.
(a) This MSA, together with each Service Schedule and SOW and all schedules,
attachments and exhibits hereto and thereto, constitutes the entire agreement
between the Parties with respect to the subject matter hereof. All prior agreements,
negotiations, undertakings, and discussions, whether oral or written, are superseded
by this MSA and there are no warranties, representations, or covenants between the
Parties in connection with this MSA,except as specifically set forth or referred to in this
MSA.
(b) Each Party acknowledges that it has not been induced to enter into this MSA or any
Service Schedule by any representations,warranties or covenants not expressly stated
herein or therein.
(c) The Parties agree that any terms or conditions set forth in a purchase order,
acknowledgement or any other document or response issued by CUSTOMER shall not
apply to this MSA or any Service Schedule or SOW shall be deemed automatically
rejected by Versaterm without need of any further or additional notice of rejection and
void and of no effect.
37. Consultants and Agents.
CUSTOMER shall ensure that its employees, consultants, contractors and agents comply
with the terms and conditions of this MSA and any Service Schedule or SOW to the extent
that such Persons are entitled or obligated under the terms hereof or thereof to exercise
any rights or perform any obligations hereunder or thereunder. CUSTOMER shall be
responsible for the actions of all such employees, consultants, contractors and agents.
38. Hosting Provider. Versaterm may change its third-party hosting provider("Hosting Provider")
at any time. CUSTOMER's use of the Licensed Materials is subject to any applicable
restrictions imposed by the Hosting Provider. Notwithstanding any other provision of this
MSA, Versaterm shall not be liable for any problems, failures, defects or errors with the
Licensed Materials to the extent caused by the Hosting Provider. CUSTOMER
acknowledges that the Fees payable for the Licensed Materials reflect the fact that
Versaterm is not responsible for the acts and omissions of the Hosting Provider.
39. Language.
The Parties have expressly required that this MSA and all documents and notices relating
hereto be drafted in English. Les parties aux presentes ont expressOment exige que la
presente convention et tous les documents et avis qui y sont afferents soient rediges en
anglais.
40. Publicity/Press Releases.
Versaterm may reference the existence of this MSA and the business relationship between
the Parties for the purposes of: (a) issuing press releases to announce the beginning or
January 2024—v310124 Page 19 of 20
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continuation, as applicable, of the business relationship between the Parties; or (b)
referencing CUSTOMER as a CUSTOMER of Versaterm including in Versaterm's CUSTOMER
list and other marketing materials.
41. Counterparts.
This MSA,any Service Schedule and any SOW or part thereof or attachment thereto may be
executed in any number of counterparts and by exchange of signature pages by electronic
mail or by any other electronic means. Each executed counterpart will be deemed to be an
original. All executed counterparts taken together will constitute one agreement. The
execution of this MSA, any Service Schedule or SOW by electronic mail or by any other
electronic means shall be deemed to constitute effective execution of this Agreement as to
the parties hereto. Such electronic signatures may be used by the parties in lieu of the
original signature page[s] of this MSA, any Service Schedule or SOW for any and all
purposes.
42. United Nations.
Pursuant to Article 6 of the United Nations convention on contracts for the International
Sale of Goods ("UN Convention"),the Parties agree that the UN Convention shall not apply
to this MSA.
43. Extending pricing
Subject to Versaterm's discretion, CUSTOMER may extend pricing,terms and conditions of
this Agreement to other governmental entities that have signed an intergovernmental
agreement with the CUSTOMER to be system users.
The Parties,through their duly authorized representatives, hereby agree to this Agreement as
of the Effective Date set forth on the first page.
City of Elgin, IL Versaterm Public Safety US, Inc.
I
DocuS. r. by:
By(Signature)
By(Signature): L�
oFee2c5aseo6eas
Printed Name: Richard G.Kozal Printed Name: Adam Schwartz
Title: City Manager Title: _Chief Revenue Officer_
April 10,2024 April 1, 2024
Date: PDate:
<7:1
City Clerk
January 2024—v3I0I24 I'age 20 of 20