HomeMy WebLinkAbout26-45 Resolution No. 26-45
RESOLUTION
AUTHORIZING EXECUTION OF A PURCHASE AGREEMENT WITH URBAN SDK
HOLDINGS, INC. FOR THE PURCHASE OF TRAFFIC MONITORING SOFTWARE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,
that pursuant to Elgin Municipal Code Section 5.02.020B9 the City Council hereby finds that an
exception to the requirements of the procurement ordinance is necessary and in the best interests
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 Purchase Agreement on behalf of the City of Elgin
with Urban SDK Holdings, Inc., for the purchase of traffic monitoring software, a copy of which
is attached hereto and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: March 25, 2026
Adopted: March 25, 2026
Omnibus Vote: Yeas: 9 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
•
PURCHASE AGREEMENT
THIS AGREEMENT is hereby made and entered into this 25th day of
March _ 2026, by and between the City of Elgin, Illinois, a municipal corporation
(hereinafter referred to as "City") and Urban SDK Holdings, Inc., a Delaware corporation
(hereinafter referred to as "Seller").
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
contained herein, the sufficiency of which is hereby mutually acknowledged, the Parties hereto
hereby agree as follows:
1. PURCHASE. City shall purchase and Seller shall sell and install the goods and/or
services to the City as described in the 26 page proposal,dated April 22,2025
attached hereto and made a part hereof as Attachment A.
2. TERMS. This Agreement shall be subject to the terms and conditions contained
herein and as provided by Attachment A, which is attached hereto and made a part hereof. In the
event of any conflict between any of the terms and provisions this Agreement and Attachment A,
the terms and provisions of this Agreement shall supersede and control.
3. LAW/VENUE. This Agreement is subject to and governed by the laws of the State
of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of
or in connection with this Agreement shall be the Circuit Court of Kane County, Illinois. Seller
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 Seller agrees that service by
first class U.S. mail to Urban SDK Holdings, Inc., do registered agent The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street,Wilmington, DE 19801 shall constitute
effective service. The Parties hereto waive any rights to a jury.
4. NO MODIFICATION. There shall be no modification of this Agreement, except
in a writing instrument executed by both Parties with the same formalities as the original
Agreement.
5. MERGER. This Agreement embodies the whole Agreement of the Parties. There
are no promises, terms, conditions or obligations other than those contained herein, and this
Agreement shall supersede all previous communications, representations or Agreements, either
verbal,written or implied between the Parties hereto.
6. INTEREST. Seller 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.
7. SEVERABILITY. The terms of this Agreement shall be severable. In the event
any of the terms or the provisions of this Agreement are deemed to be void or otherwise
unenforceable for any reason, the remainder of this Agreement shall remain in full force and
effect.
8. COMPLIANCE WITH LAW. Notwithstanding any other provision of this
Agreement, it is expressly agreed and understood that in connection with the performance of this
Agreement, Seller shall comply with all applicable federal, state, city and other requirements of
law, including, but not limited to, any applicable requirements regarding prevailing wages,
minimum wage, workplace safety, nondiscrimination and legal status of employees.
9. COUNTERPARTS AND 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. This Agreement may be executed electronically, and any signed copy of this
Agreement transmitted by facsimile machine, email, or other electronic means 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 facsimile machine, email, or other electronic means shall be considered
for these purposes an original signature and shall have the same legal effect as an original
signature.
10. PAYMENT. City shall pay the total sum of Thirty Two Thousand Nine Hundred
Fifty Dollars ($32,950.00) within thirty (30) days of delivery and installation or City's receipt of
invoice, whichever is later. The aforementioned total sum is inclusive of all freight and shipping
costs. The City of Elgin is a tax-exempt governmental entity.
11. LIMITATION OF DAMAGES. In no event shall City be liable for any monetary
damages in excess of the purchase price contemplated by this Agreement. In no event shall City
be liable for any consequential, special or punitive damages, or any damages resulting from loss
of profit.
12. TRANSFER OF TITLE/RISK. Transfer of title, and risk of loss shall pass to the
City upon delivery and installation of the goods.
13. INDEMNIFICATION. To the fullest extent permitted by law, Seller agrees to
and shall indemnify, and hold harmless the City, its officers, employees,boards and commissions
from and against any and all claims, suits,judgments, costs, attorney's fees, damages or any and
all other relief or liability arising out of or resulting from or through or alleged to arise out of any
acts or negligent acts or omissions of Seller or Seller's officers, employees, agents or
subcontractors in the performance of this Agreement, including but not limited to, all goods
delivered or services or work performed hereunder. In the event of any action against the City, its
officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify
and hold harmless, such action shall be defended by legal counsel of the City's choosing.
14. WARRANTY. All applicable warranties, including but not limited to any and all
applicable manufacturer's warranties, warranties of merchantability, and warranties of fitness for
2
a particular purpose, are included as part of this Agreement, and shall apply to all goods,
accessories, components, and services to the benefit of the City.
15. RELATIONSHIP BETWEEN THE PARTIES. This Agreement shall not be
construed so as to create a joint venture, partnership, employment or other agency relationship
between the Parties hereto.
16. WAIVER. Neither party hereto shall be responsible for any consequential,
indirect,punitive or incidental damages for any reason whatsoever.Any delay or failure to enforce
any rights by either party arising out of or pursuant to this Agreement shall not constitute,and shall
not be construed as, a waiver of any such lights.
17. LIMITATION OF ACTIONS. The Parties hereto agree that any action by the
Seller arising out of this Agreement must be filed within one year of the date the alleged cause of
action arose or the same will be time-barred.
18. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement.
19. NONDISCRIMINATION.The Seller will not discriminate against any employee
or applicant for employment because of race, color, religion, sex, national origin, age, ancestry,
order of protection status, familial status, marital status, physical or mental disability, military
status,sexual orientation,or unfavorable discharge from military service which would not interfere
with the efficient performance of the job in question. The Seller will take affirmative action to
comply with the provisions of Elgin Municipal Code Section 5.02.040 and will require any
subcontractor to submit to the City a written commitment to comply with those provisions. The
Seller will distribute copies of this commitment to all persons who participate in recruitment,
screening,referral and selection of job applicants,prospective job applicants, and subcontractors.
The persons signing this Agreement certifies that s/he has been authorized by the Seller to commit
the Seller contractually and has been authorized to execute this Agreement on its behalf.
IN WITNESS WHEREOF, the Parties have hereto set their hands the day and year first above
written.
URBAN SDK HOLDINGS, INC. CI LGIN
'Micah,'Dickman
00 /6.
441 -2171
Print Name Richard G. Kozal, City Manager
Attest:
Signature
VP of'Revenue
Title ' Clerk
/mnt/efs/20260115T1655-MBQdSoti0M8zUncl.docx
3
URBRNSDK
City of Elgin, Illinois - Urban SDK License
City of Elgin, Illinois
,_.I II
I,
Scott Holmes
Comments from Caleb Newman
Urban SDK will provide The City of Elgin, IL with comprehensive Speed, Delay and Congestion,&
Volume data for every roadway.This includes:
1.Speed, Delay and Congestion Data:A 12-month data backfill starting from the month before the
contract signing,with ongoing monthly reports.
2.Volume Data: Refreshed annually to reflect updated traffic conditions.
3.Historical Data:Any historical data supplied by The City of Elgin,IL will be uploaded into the
platform,ensuring continuity and a robust dataset for analysis.
Contract Terms:
• Insights Plan
• Traffic Volumes
• Congestion Data
• Urban SDK User Seats-5
• Customer Support- Fee Waived
• Implementation - Fee Waived
• CPI7%
• Contract Dates:
o Start:01/O1/2026
a End:12/31/2027
• 1 Year Agreement
• Year 1 -$32,950
60 Day Free Trial for Workflow Modules
• The City of Elgin, IL to trial Workflows to help automate school zone speeding and weekly
zones for targeted enforcement
• Free trial starts after the first implementation call
Products&Services
Item&Description Quantity Unit Price Total
Insights Plan 1 $29,500.00 $29,500.00/year
Base plan for Urban SDK with 13 Months of Historical /year fo 1 year
Data Archive
License includes:
-Insights Analytics&Reporting
-Workspace Data Storage
-Studio Map Builder
-Dashboard Builder
-Public Portfolio to Share Dashboards and Maps
Monthly Traffic Conditions Data for Functional Road
Classes 1-5
-Average Speed
-85%Speed
-95%Speed
Traffic Volumes 1 $1,725.00/year $1,725.00/year
-AADT Range Estimates Functional Road Classes 1-5 for 1 year
-Updated Annually
-1 Year Data Archive
Traffic Delay and Congestion 1 $1,725.00/year $1,725.00/year
-Monthly Refresh Cycle lcr yea,
-Travel Time Delay Functional Classes 1-5
-Buffer Time Index Functional Classes 1-S
-Planning Time Index Functional Classes 1-5
Urban SDK User Seat 5 $1,250.00 $6,250.00
Urban SDK Administrative Access
Customer Support 1 $0.00/year $0.00/year
-Live Chat&Email Support `cr 1 year
-Knowledge Base How To Articles and Videos
-Online Training Webinars
Annual subtotal $32,950.00
One-time subtotal $6,250.00
5 Users Seats ($6,250.00)
Total $32,950.00
Terms and Conditions
Our agreement is effective as of the Effective Date set forth below,is entered into by and between the Buyer
identified as Customer below("Customer")and Urban SDK,Inc.,a Delaware corporation,with its principal
place of business located at 10151 Deerwood Park Boulevard,Building 100 Ste 100 Jacksonville,Florida 32256
("Urban SDK").The parties acknowledge and agree that they have read and understand this Agreement and,
upon execution,are legally bound by it.
This Agreement includes this"Signature"or any other ordering document referencing this Agreement,the
Terms and Conditions available a ,all statements of work entered into in connection
with this Agreement("Statement(s)of Work").
The terms of the agreement are attached below.
Signature
227 26
Sig ature Date
/)AJAM Ca 11 c y
Printed name
Countersignature
Clieeca%oackoruua 01/15/2026
Countersignature Date
Micah Dickman
Printed name
Terms and
Conditions
This website, www.urbansdk.com (the "site"), is owned and operated by
UrbanSDK, Inc. and our affiliates ("Urban SDK", "we" or "us"). By using the
site, services provided on the site, our proprietary software made available to
you via the site, or content we make available to you through the services
(collectively, "Services"), you agree to be bound by the following Terms and
Conditions, as updated from time to time (collectively, the "Terms").
1 . General
GENERAL. The following terms and conditions ("Terms and Conditions")
provide for terms that are common to this Agreement, including all Ordering
Documents and Schedules. In the event of a conflict between these Terms
and Conditions and any Ordering Document or Schedule, these Terms and ,
Conditions will control, unless expressly stated to the contrary in the Ordering
Document or Schedule. The Signature Page, any Statement of Work, and any
other ordering document incorporating these Terms and Conditions by
reference are individually and collectively referred to as "Ordering
Document(s)."
2. Services
2.1 General. All services provided by Urban SDK under this Agreement
("Services"), including the Software Services, will be provided to Customer
according to these Terms and Conditions, the Ordering Documents, and all
Urban SDK I Confidential
schedules, exhibits, or other attachments made a part of this Agreement.
2.2 Third-Party Services. As set forth in an Ordering Document, the Services
may include Customer's utilization of certain third-party software and data
developed and owned by Urban SDK's third party licensors. This software and
data is neither sold nor distributed to Customer, and Customer may use it
solely as part of the Services and for no other purpose. Customer may not
transfer such third-party software outside the Services or to any other person
or entity. Except as otherwise provided for in an Ordering Document, Urban
SDK and Urban SDK's third-party software and data licensors are not
responsible for providing any support in connection with the Services or the
third-party software. Customer's use of any such third-party software and data
is governed by the third-party software or data licensor's terms as may be
referenced and incorporated into an applicable Ordering Document. Customer
covenants to comply with the terms of such third-party licensor's terms as if
Customer were the licensee.
2.3 Change Orders. If either party wishes to change the scope or
performance of the Services, it shall submit details of the requested change to
the other in writing. Urban SDK shall, within a reasonable time after such
request, provide a written estimate to Customer of: (a) the likely time required
to implement the change; (b) any necessary variations to the fees and other
charges for the Services arising from the change; (c) the likely effect of the
change on the Services; and (d) any other impact the change might have on •
the performance of this Agreement. Promptly after receipt of the written
estimate, the parties shall negotiate in good faith the terms of such change (if
and when mutually agreed in writing, a "Change Order"). Neither party shall
be bound by any Change Order unless mutually agreed upon in writing.
3. Software Services
3.1 Software Services. Urban SDK will provide Customer, and its authorized
employees, contractors and other personnel authorized by Customer ("End
Users") with access to the software products and related services provided by
Urban SDK via a web browser (or mobile application) and identified on the
applicable Ordering Document ("Software Services"). During the Term and
Urban SDK I Confidential
subject to Customer's compliance with this Agreement, Urban SDK grants
Customer the non-exclusive, nontransferable, non-assignable, and limited
right to allow End Users to remotely access the Software Services for
Customer's internal business purposes in accordance with the terms of this
Agreement.
3.2 Restrictions. Customer shall not lease, license, sell, sublicense or
otherwise transfer its access to or use of the Software Services. The Software
Services may only be used by Customer and End Users. In addition,
Customer shall not modify, create derivative works of, or attempt to decipher,
decompile, disassemble or reverse engineer the Software Services. Nothing
in this Agreement confers upon either party any right to use the other party's
Marks, except in Urban SDK's performance of the Services. All use of such
Marks by either party will inure to the benefit of the owner of such Marks, use
of which will be subject to specifications controlled by the owner.
4. Professional Services
4.1 Professional Services. Urban SDK may provide integration,
implementation, or other professional services (each to the extent identified as
professional services on a Statement of Work, "Professional Services") and
Deliverables to Customer as set forth in a Statement of Work. "Deliverables"
means all Creations that are delivered to Customer by or on behalf of Urban
SDK as a part of the Professional Services, together with any items identified
as such in a Statement of Work. "Creations" means any tangible or intangible
thing or information, in any language, format or medium now existing or
hereafter developed, and all tangible embodiments thereof, whether or not
such creation is or may in the future be protected under any intellectual
property right or considered Confidential Information, including ideas,
creations, inventions, discoveries, innovations, industrial models,
improvements, designs, methods, processes, formulae, works of authorship,
products, compositions, displays, models, prototypes, samples, findings,
documentation, specifications, abstracts, research and development
information, know-how, procedural knowledge, industrial property, utility
models, data, databases, metadata, industrial designs, mask works,
Urban SDK I Confidential
Confidential Information, content, lists, electronic data files, training materials
and manuals, user guides, drawings, techniques, computer software (in
object, source, interpreted or other code forms), modifications to software or
documentation, business information, business plans, technical knowledge,
technical information, maintenance information, brochures. labels, papers,
records, text, sound recordings, videos, pictures, photographs, audiovisual
works, pictorial reproductions, drawings, or other graphical representations,
and all other items with similar characteristics.
4.2 Acceptance. Any software constituting a Deliverable (each a "Software
Deliverable") shall be subject to acceptance by Customer to ensure that it
meets the specifications of this Agreement and the applicable Statement of
Work. If Customer does not reject any final Software Deliverable within 10
days of delivery, such Software Deliverable shall be deemed accepted. If any
final Software Deliverable does not materially meet the applicable
specifications, Customer shall notify Urban SDK of such nonconformities in
reasonable detail, and Urban SDK will, at no additional cost, use commercially
reasonable efforts to promptly correct such Software Deliverable so that it
conforms to the applicable specifications. If within 30 days of such Customer
notification, any final Software Deliverable still does not meet the
specifications, Customer may at any time thereafter, as its sole remedy,
terminate the applicable Statement of Work, return the Software Deliverable
and all copies thereof to Urban SDK, and receive a refund of any fees or
expenses paid in connection with such Software Deliverable.
4.3 Urban SDK Personnel. Urban SDK shall appoint an Urban SDK
employee to serve as a primary contact with respect to any Professional
Services (the "Urban SDK Contract Manager"). Urban SDK shall also appoint
Urban SDK Personnel, who shall be suitably skilled, experienced, and
qualified to perform the Professional Services. Additionally, Urban SDK may
subcontract parts of the Professional Services to affiliated companies or third
parties, provided that Urban SDK shall remain responsible for the
performance of the Professional Services. In the event that any Urban SDK's
Personnel does not perform to Customer's reasonable satisfaction, Urban
SDK shall remove such Urban SDK's Personnel and replace him or her with a
similarly qualified Urban SDK Personnel. Urban SDK is responsible for all
Urban SDK Personnel and for the payment of their compensation, including, if
Urban SDK I Confidential
applicable, withholding of income taxes, and the payment and withholding of
social security and other payroll taxes, unemployment insurance, workers'
compensation insurance payments, disability benefits, pensions, retirement
benefits, insurance, and other benefits.
4.4 License and Consents. Urban SDK shall maintain all necessary licenses
and consents and comply with all laws applicable to the provision of the •
Professional Services.
4.5 Tools, Labor, Materials and Supplies. Unless otherwise provided in a
Statement of Work, Urban SDK shall provide, at its expense, all tools,
materials, supplies, labor, and equipment necessary to perform the
Professional Services.
5. Rights Reserved
Customer and its licensors are, and shall remain, the sole and exclusive
owner of all right, title and interest in and to the "Customer Materials" (as
defined in an applicable Statement of Work, if applicable), including all
intellectual property rights therein. Urban SDK shall have no right or license to
use any Customer Materials except during the Term to the extent necessary to
provide the Professional Services to Customer. All other rights in and to the
Customer Materials are expressly reserved by Customer. All right, title and
interest, including all intellectual and proprietary rights, in and to the Software
Services. Deliverables, and all Urban SDK service marks, trademarks, trade
names, logos, and any modifications to the foregoing ("Marks") (and all
suggestions, feedback, contributions, enhancements, improvements,
additions, modifications, or derivative works thereto and copies thereof) will
remain in possession of Urban SDK. Customer acknowledges that the
Software Services in source code form is the Confidential Information of Urban
SDK and that the source code is not licensed to Customer by this Agreement
or any Schedule and will not be provided by Urban SDK. No right or implied
license or right of any kind is granted to Customer regarding the Services,
including any right to use, reproduce, market, sell, translate, distribute,
transfer, adopt, disassemble, decompile, reverse engineer the Software
Services or the documentation thereof, or any portions thereof, or obtain
Urban SDK I Confidential
possession of any source code or other technical material relating to the
Software Services.
6. Fees and Payment Terms
6. 1 Services Fees. For the Services provided under this Agreement,
Customer will pay Urban SDK the fees in the amounts set forth on the
applicable Ordering Document. Unless otherwise set forth on the applicable
Ordering Document, applicable fees will be invoiced to Customer annually in
advance and payable (i) immediately upon invoice if Customer's payment
method is on file with Urban SDK, or (ii) if no payment method has been
provided to Urban SDK, within thirty (30) days of invoice. Fees are
non-cancelable and non-refundable. In the event of early termination of this
Agreement other than due to Urban SDK's breach, all amounts outstanding
that would have otherwise been due through the end of the then-current Term
shall automatically be due and payable by Customer upon termination.
6.2 Fee Changes. After the Initial Term, and at the beginning of each
Renewal Term thereafter, Urban SDK may adjust the fees applicable during
the upcoming Renewal Term upon written notice provided at least sixty (60)
days prior to the end of the Initial Term or applicable Renewal Term, as the
case may be. All fees paid and expenses reimbursed under this Agreement
will be in United States currency. Urban SDK may increase pricing and fees on
an annual basis by the greater of: (a) six percent (6%) per annum, or (b) the
percentage by which the then most-recently published Consumer Price Index
in the United States for all Urban Consumers (Index base: 1982/1984 = 100;
Index Components: All Items) ("CPI") exceeds the CPI as of the Effective Date
or, if later, the immediately preceding change in pricing. Additionally, Upon
written notice to Customer at least thirty (30) days prior to effectiveness,
Urban SDK may increase the amount of the fees in an Ordering Document
relating to, if applicable: (a) data storage and/or relational databases if the
applicable cloud data provider has increased the prices paid by Urban SDK for
such data storage and/or relational databases, and any such increase shall be
proportionate to the increase imposed upon Urban SDK by the applicable
utility provider; and (b) the cost of third party Services or services (including
software and datasets) performed or provided by a third party that comprise all
or some part of the Services including any increases to such costs.
Urban SDK I Confidential
6.3 Late Fees. Customer will pay a late fee of 1 .5% per month (not to exceed
the maximum allowed under state law) on all balances not paid when due.
Urban SDK, at its option, may suspend the Services, in whole or in part, if
Urban SDK does not receive all undisputed amounts due and owing under
this Agreement within thirty (30) days after delivery of notice to Customer of
the failure to pay such overdue balances.
6.4 Taxes. The fees and expenses due to Urban SDK as set forth in this
Agreement are net amounts to be received by Urban SDK, exclusive of all
sales, use, withholding, excise, value added, ad valorem taxes or duties
incurred by Customer or imposed on Urban SDK in the performance of this
Agreement or otherwise due as a result of this Agreement. This section will
not apply to taxes based solely on Urban SDK'S income.
6.5 Offset. Fees and expenses due from Customer under this Agreement
may not be withheld or offset by Customer against other amounts for any
reason.
7. Customer Acknowledgements.
7.1 Customer Requirements. Customer must have required equipment,
software, and Internet access to be able to use the Software Services.
Acquiring, installing, maintaining and operating equipment and Internet access
is solely Customer's responsibility. Urban SDK neither represents nor warrants
that the Software Services will be accessible through all web browser
releases. Customer shall take all steps necessary for Urban SDK to perform
the Services effectively, including with respect to (a) providing access to
Customer's resources or staff as needed to perform the Services; (b)
maintaining, testing, configuring, operating, and upgrading Customer's data,
applications, server hardware, operating system, environment, and facilities,
as applicable, related to the Services.
7.2 Use of Software Services. Customer shall not and shall not permit others
in using the Software Services to: (i) defame, abuse, harass, stalk, threaten or
otherwise violate or infringe the legal rights (such as rights of privacy, publicity
and intellectual property) of others or Urban SDK; (ii) publish, ship, distribute
Urban SDK I Confidential
or disseminate any harmful, inappropriate, profane, vulgar, infringing,
obscene, false, fraudulent, tortuous, indecent, unlawful, immoral or otherwise
objectionable material or information (including any unsolicited commercial
communications); (iii) publish, ship, distribute or disseminate material or
information that encourages conduct that could constitute a criminal offense or
give rise to civil liability; (iv) engage in any conduct that could constitute a
criminal offense or give rise to civil liability for Urban SDK; (v) misrepresent or
in any other way falsely identify Customer's identity or affiliation, including
through impersonation or altering any technical information in communications
using the Software Services; (vi) transmit or upload any material through the
Software Services contains viruses, trojan horses, worms, time bombs,
cancelbots, or any other programs with the intent or effect of damaging,
destroying, disrupting or otherwise impairing Urban SDK', or any other
person's or entity's, network, computer system, or other equipment; (vii)
interfere with or disrupt the Software Services, networks or servers connected
to the Urban SDK systems or violate the regulations, policies or procedures of
such networks or servers, including unlawful or unauthorized altering any of
the information submitted through the Software Services; (viii) attempt to gain
unauthorized access to the Software Services, other Urban SDK customers'
computer systems or networks using the Software Services through any
means; or (ix) interfere with another party's use of the Software Services,
including any parties Customer has done business with or choose not to do
business with through the Software Services. Urban SDK has no obligation to
monitor Customer's use of the Software Services. However, Urban SDK may
at any time monitor, review, retain and disclose any information as necessary
to satisfy or cooperate with any applicable law, regulation, legal process or
governmental request. Customer shall use commercially reasonable efforts,
including reasonable security measures relating to administrator account
access details, to ensure that no unauthorized person may gain access to the
Services.
7.3 Compliance with Law. Customer agrees not to use (and will use its best
efforts not to allow its End Users to use) the Software Services for illegal
purposes or for the transmission of material that is unlawful, harassing,
libelous (untrue and damaging to others), invasive of another's privacy,
abusive, threatening, or obscene, or that infringes the rights of others.
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Customer is solely responsible for any and all improper use of the Software
Services that occurs as a direct or indirect result of any act or omission of
Customer. Customer will notify Urban SDK immediately of any unauthorized
use of the Software Services or any other breach of security that is known or
suspected by Customer.
7.4 Professional Services. With respect to any Professional Services,
Customer shall have the following obligations set forth in this Section 7.4.
a. Customer Contract Manager. Customer shall cooperate with Urban SDK in
all matters relating to the Professional Services and appoint a Customer
employee to serve as the primary contact with respect to this Agreement (the
"Customer Contract Manager").
b. Access and Assistance; Customer Materials. Customer shall provide such
access to Customer's premises, facilities, and computer systems and
networks as may reasonably be requested by Urban SDK for the purposes of
performing the Professional Services. Customer shall respond promptly to any
Urban SDK request to provide direction, information, approvals, authorizations
or decisions that are reasonably necessary for Urban SDK to perform the
Professional Services. Customer shall provide such Customer Materials as
set forth in the applicable Statement of Work or as Urban SDK may
reasonably request in order to carry out the Professional Services, in a timely
manner, and ensure that it is complete and accurate in all material respects.
c. Delay in Performance. If Urban SDK's performance of its obligations under
this Agreement is prevented or delayed by any act or omission of Customer or
its agents, subcontractors, consultants or employees, Urban SDK shall not be
deemed in breach of its obligations under this Agreement or otherwise liable
for any costs, charges or losses sustained or incurred by Customer, in each
case, to the extent arising directly or indirectly from such prevention or delay,
and Urban SDK's obligation to perform will be extended based on Urban
SDK's reasonable ability to reallocate resources to performing and such delay
may result in reasonable additional fees to the extent Urban SDK incurs
additional costs due to the delay.
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8. Non-disclosure and confidentiality.
8.1 Disclosure. Each party may disclose to the other party certain
Confidential Information of such party or of such party's associated
companies, distributors, licensors, suppliers, or customers. "Confidential
Information" means any information that is of value to its owner and is treated
as confidential, including trade secrets, technology, information pertaining to
business operations and strategies, and information pertaining to customers,
pricing, and marketing; "Disclosing Party" refers to the party disclosing
Confidential Information hereunder, whether such disclosure is directly from
Disclosing Party or through Disclosing Party's employees or agents; and
"Recipient" refers to the party receiving any Confidential Information
hereunder, whether such disclosure is received directly or through Recipient's
employees or agents.
8.2 Requirement of Confidentiality. The Recipient agrees: (a) not to disclose
or otherwise make available Confidential Information of the Disclosing Party to
any third party without the prior written consent of the Disclosing Party,
provided that the Recipient may disclose the Confidential Information of the
Disclosing Party to its, and its affiliates, officers, employees, consultants and
legal advisors who have a "need to know", who have been apprised of this
restriction and who are themselves bound by nondisclosure obligations at
least as restrictive as those set forth in this Section 8; (b) to use the
Confidential Information of the Disclosing Party only for the purposes of
performing its obligations or as otherwise authorized under the Agreement;
and (c) to promptly notify the Disclosing Party in the event it becomes aware
of any loss or disclosure of any of the Confidential Information of Disclosing
Party. Customer acknowledges that the Software Services and documentation
are the Confidential Information of Urban SDK. The obligations in this Section
8 shall survive termination and continue for so long as the applicable
information constitutes Confidential Information. Confidential Information shall
not include information that: (a) is already known to the Recipient without
restriction on use or disclosure prior to receipt of such information from the
Disclosing Party; (b) is or becomes generally known by the public other than
by breach of this Agreement by, or other wrongful act of, the Recipient; (c) is
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developed by the Recipient independently of, and without reference to, any
Confidential Information of the Disclosing Party; or (d) is received by the
Recipient from a third party who is not under any obligation to the Disclosing
Party to maintain the confidentiality of such information.
8.3 Compelled Disclosure. If the Recipient becomes legally compelled to
disclose any Confidential Information, the Recipient shall provide: (a) prompt
written notice of such requirement so that the Disclosing Party may seek, at its
sole cost and expense, a protective order or other remedy; and (b) reasonable
assistance, at the Disclosing Party's sole cost and expense, in opposing such
disclosure or seeking a protective order or other limitations on disclosure. If,
after providing such notice and assistance as required herein, the Recipient
remains required by law to disclose any Confidential Information, the Recipient
shall disclose no more than that portion of the Confidential Information which,
on the advice of the Recipient's legal counsel, the Recipient is legally required
to disclose and, upon the Disclosing Party's request, shall use commercially
reasonable efforts to obtain assurances from the applicable court or agency
that such Confidential Information will be afforded confidential treatment.
8.4 Customer Data; Data Use. "Customer Data" means information, data and
other content, in any form or medium, that is collected, downloaded or
otherwise received, directly or indirectly from Customer or an End User by or
through the Services, but does not include any data collected, downloaded or
otherwise received, directly or indirectly from any other user of the Services.
Customer hereby grants to Urban SDK a non-exclusive license to copy,
reproduce, store, distribute, publish, export, adapt, edit and translate
Customer Data to the extent reasonably required for the performance of
Urban SDK's obligations and the exercise of Urban SDK's rights under this
Agreement. Customer warrants to Urban SDK that Customer has the right to
provide such Customer Data to Urban SDK in accordance with this
Agreement. Additionally, Customer agrees that data derived by Urban SDK
from Urban SDK's performance of the Services or input by or feedback from
Customer may be used for the purposes of analysis, including statistical
analysis, trend analysis, creation of data models, and creation of statistical
rules. The results of such analysis ("De-identified Data") may be used by
Urban SDK for any lawful purpose both during and following the Term.
De-identified Data shall not contain any information that identifies or can be
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reasonably used to identify an individual person or Customer.
9. Limited Warranty; Disclaimers.
Urban SDK represents and warrants that it will provide the Services in a
manner consistent with general industry standards reasonably applicable to
the provision thereof and that the Software Services will perform substantially
in accordance with the documentation under normal use and circumstances.
Each party represents and warrants that it has the legal power and authority to
enter into this Agreement. OTHER THAN AS EXPRESSLY SET FORTH IN
THIS SECTION 9, EACH PARTY DISCLAIMS ALL WARRANTIES,
CONDITIONS, OR REPRESENTATIONS TO THE OTHER PARTY
REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN,
EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE
FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF
MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT,
THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A
PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF
DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND
DISCLAIMED BY Urban SDK. NO WARRANTY IS MADE THAT USE OF THE
SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY
ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR
THAT THE SERVICES FUNCTIONALITY WILL MEET CUSTOMER'S
REQUIREMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES
THAT URBAN SDK MAKES NO REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, AS TO ANY THIRD-PARTY HARDWARE,
SOFTWARE, PRODUCT OR SERVICE INCLUDED WITH ANY OF THE
SERVICES.
10. Limitation of Liability
10.1 Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN
SECTION 10.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE
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DAMAGES,
INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER
ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH
DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION
10.3, IN NO EVENT WILL EITHER PARTY'S LIABILITY ARISING OUT OF
OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR
RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR
PAYABLE TO Urban SDK PURSUANT TO THIS AGREEMENT DURING THE
TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO
THE CLAIM.
10.3 Exceptions. The exclusions and limitations in Section 10.1 and Section
10.2 shall not apply to: (a) damages or other liabilities arising out of or relating
to a party's failure to comply with its obligations under Section 8
(Non-Disclosure and Confidentiality); or (b) a party's obligations under Section
11 (Indemnification).
11 . Indemnification
11.1 Urban SDK Indemnification. Urban SDK shall defend Customer and its
officers, directors, employees, agents, successors and permitted assigns
against any third party claim, suit, action or proceeding (each, an "Action")
based on a claim that Customer's receipt or use of the Services in accordance
with this Agreement infringes any intellectual property right or misappropriates
any trade secret of a third party, and shall pay all settlements entered into and
damages awarded against Customer to the extent based on such an Action;
provided, however, that Urban SDK shall have no obligations under this
Section 11 .1 with respect to claims to the extent arising out of: (a) any
instruction, information, designs, specifications or other materials provided by
Customer to Urban SDK; (b) use of the Services in combination with any
materials or equipment not supplied to Customer or specified by Urban SDK in
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writing; or (c) any modifications or changes made to the Services by or on
behalf of any person or entity other than Urban SDK. If the Services, or any
part thereof, become, or in the opinion of Urban SDK may become, the
subject of a claim of infringement or misappropriation, Urban SDK may, at its
option: (i) procure for Customer the right to use such Services free of any
liability; (ii) replace or modify the Services to make them non-infringing; or (iii)
terminate this Agreement and refund to Customer any portion of the fees
prepaid by Customer for the infringing Services.
11.2 Customer Indemnification. Customer shall defend Urban SDK and its
officers, directors, employees, agents, affiliates, successors and permitted
assigns against all Actions based on a claim that any information or materials
provided by Customer (including Customer Data), or Urban SDK's receipt or
use thereof, infringes any intellectual property right or misappropriates any
trade secret of a third party, and shall pay all settlements entered into and
damages awarded against Urban SDK to the extent based on such an Action.
11.3 Indemnification Procedures. The party seeking indemnification
hereunder shall promptly notify the indemnifying party in writing of any Action
and cooperate with the indemnifying party at the indemnifying party's sole cost
and expense. The indemnifying party shall immediately take control of the
defense and investigation of such Action and shall employ counsel of its
choice to handle and defend the same, at the indemnifying party's sole cost
and expense. The indemnifying party shall not settle any Action in a manner
that adversely affects the rights of the indemnified party without the
•
indemnified party's prior written consent, which shall not be unreasonably
withheld or delayed. The indemnified party's failure to perform any obligations
under this Section 11 .1 shall not relieve the indemnifying party of its
obligations under this Section 11 .1 except to the extent that the indemnifying
party can demonstrate that it has been materially prejudiced as a result of
such failure. The indemnified party may participate in and observe the
proceedings at its own cost and expense.
12. TERM AND TERMINATION.
12.1 Initial Term. This Agreement shall commence on the Effective Date and
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shall continue in full force and effect for the initial term set forth on the
applicable Ordering Document ("Initial Term"), unless earlier terminated as
provided for below. Renewal of this agreement shall be effective if both parties
provide written notice of renewal.
12.2 Termination. Without prejudice to any other remedies and in addition to
any other termination rights herein, the parties shall have the right to terminate
this Agreement as provided below:
a. By either party if the other party commits a material breach of this
Agreement and such breach remains uncured 30 days after written notice of
such breach is delivered to such other party including the failure to pay any
fees due to Urban SDK; or
b. By either party if the other party makes an assignment for the benefit of
creditors, or commences or has commenced against it any proceeding in
bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of
debtor's moratorium or similar laws.
12.3 Termination of Statement of Work. Either party may terminate any
outstanding Statement of Work without terminating the entire Agreement if the
other party commits a material breach of such Statement of Work and such
breach remains uncured 30 days after written notice thereof is delivered to the
other party.
12.4 Effect. Upon termination of this Agreement for any reason, all rights and
licenses granted by Urban SDK hereunder to Customer will immediately
cease. Customer must retrieve all of its data from the Software Services within
thirty (30) days of the termination or expiration of this Agreement, at which
time Urban SDK reserves the right to delete all data. Accept as provided by
the Florida Public Records Act.
12.5 Survival. Termination of this Agreement or any Schedule will not affect
the provisions regarding Urban SDK's or Customer's treatment of Confidential
Information, provisions relating to the payments of amounts due,
indemnification provisions, provisions limiting or disclaiming Urban SDK's
liability, or any other terms which by their nature should survive, which
provisions will survive such termination.
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13. GENERAL
13.1 Conflicting Terms. Notwithstanding the content of any Customer
purchase order or any other document or record, whether in writing or
electronic, relating to the subject matter of this Agreement, the terms of this
Agreement shall govern and any conflicting, inconsistent, or additional terms
contained in such documents shall be null and void.
13.2 Notice. All communications required or otherwise provided under this
Agreement shall be in writing and shall be deemed given when delivered (i) by
hand, (ii) by registered or certified mail, postage prepaid, return receipt
requested; or (iii) by a nationally recognized overnight courier service; to the
address set forth on the applicable Ordering Document, as may be amended
by the parties by written notice to the other party in accordance with this
Section 13.3.
13.3 Assignment. Neither party may assign, transfer or delegate any or all of
its rights or obligations under this Agreement, without the prior written consent
of the other party, which consent shall not be unreasonably withheld or
delayed; provided that upon prior written notice to the other party, either party
may assign the Agreement to an affiliate of such party or to a successor of all
or substantially all of the assets of such party through merger, reorganization,
consolidation or acquisition. No assignment shall relieve the assigning party of
any of its obligations hereunder. Any attempted assignment, transfer or other
conveyance in violation of the foregoing shall be null and void. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
13.4 Interpretation. For purposes of this Agreement, (a) the words "include,"
"includes" and "including" shall be deemed to be followed by the words
"without limitation"; (b) the word "or" is not exclusive; and (c) the words
"herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement
as a whole. Should any provision of this Agreement require judicial
interpretation, the parties agree that the court interpreting or construing the
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same shall not apply a presumption that the terms of this Agreement shall be
more strictly construed against one party than against another.
13.5 Severability. In case any one or more of the provisions of this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
13.6 Entire Agreement. This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes all
written or oral prior agreements or understandings with respect thereto.
13.7 Amendment; Waiver. This Agreement may only be amended, modified
or supplemented by an agreement in writing signed by each party hereto. No
waiver by any party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and signed by the party so waiving. Except as
otherwise set forth in this Agreement, no failure to exercise, or delay in
exercising, any rights, remedy, power or privilege arising from this Agreement
shall operate or be construed as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
13.8 Force Majeure. Neither party shall be liable for delay or failure in
performing any of its obligations hereunder due to causes beyond its
reasonable control, including an act of nature, war, natural disaster,
governmental regulations, terrorism, communication or utility failures or
casualties or the failures or acts of third parties.
13.9 Equitable Relief. Each party acknowledges that a breach by a party of
Section 3.2 (Restrictions) or Section 8 (Non-Disclosure and Confidentiality)
may cause the non-breaching party irreparable damages, for which an award
of damages would not be adequate compensation and agrees that, in the
event of such breach or threatened breach, the non-breaching party will be
entitled to seek equitable relief, including a restraining order, injunctive relief,
specific performance and any other relief that may be available from any
court, in addition to any other remedy to which the non-breaching party may
be entitled at law or in equity. Such remedies shall not be deemed to be
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exclusive but shall be in addition to all other remedies available at law or in
equity, subject to any express exclusions or limitations in this Agreement to
the contrary.
13.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of
the parties hereto and their respective successors and permitted assigns and
nothing herein, express or implied, is intended to or shall confer upon any
other person or entity any legal or equitable right, benefit or remedy of any
nature whatsoever, under or by reason of this Agreement.
13.11 Relationship of Parties. Nothing in this Agreement shall constitute or
be deemed to constitute a partnership between the parties hereto or constitute
or be deemed to constitute one party as agent of the other, for any purpose
whatsoever, and neither party shall have the authority or power to bind the
other, or to contract in the name of or create a liability against the other, in any
way or for any purpose.
13.12 Publicity. While this Agreement is in effect, Customer grants Urban
SDK the right to use Customer's logo and name on Urban SDK's website and
promotional materials. Customer shall have the right to require Urban SDK to
terminate any such uses at any time by written notice to Urban SDK.
13.13 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall be
deemed to be one and the same agreement. A signed copy of this Agreement
delivered by facsimile, e-mail or other means of electronic transmission shall
be deemed to have the same legal effect as delivery of an original signed
copy of this Agreement
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Support Services Schedule
Support Service Responsibilities
Urban SDK shall provide support services (collectively, "Support Services") for
the Software Services in accordance with the provisions of this Schedule. The
Support Services are included in the Software Services, and Urban SDK shall
not assess any additional fees, costs or charges for such Support Services.
Urban SDK shall use commercially reasonable efforts to:
1. correct all failures of any Software Services to be available or otherwise
perform in accordance with this Agreement ("Service Errors") in
accordance with the Support Service Level Requirements, including by
providing defect repair, programming corrections and remedial
programming;
2. provide unlimited telephone support during the hours of 8 a.m. to 6 p.m.
Eastern Time on business days;
3. provide unlimited online ticket support outside business hours and on
weekends;
4. Provide online access to technical support bulletins and other user
support information and forums, to the full extent Urban SDK makes
such resources available to its other customers; and
5. Respond to and resolve Support Requests.
Service Monitoring and Management
Urban SDK shall use commercially reasonable efforts to continuously monitor
and manage the Software Services to enable Availability that meets or
exceeds the Availability Requirement.
Service Maintenance
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Urban SDK shall use commercially reasonable efforts to maintain the
Software Services in order to enable Availability that meets or exceeds the
Availability Requirement. Such maintenance services shall include using
commercially reasonable efforts to provide to Customer:
1 . all updates, bug fixes, enhancements, new releases, new versions and
other improvements to the Software Services, that Urban SDK provides at
no additional charge to its other similarly situated customers; and
2. all such services and repairs as are required to maintain the Software
Services or are ancillary, necessary or otherwise related to Customer's or
its End Users' access to or use of the Software Services, so that the
Software Services operate properly in accordance with this Agreement.
Support Requests
Customer shall submit its requests for Service Error corrections and they
will be classified in accordance with the descriptions set forth in the chart
below (each a "Support Request"). Customer shall notify Urban SDK of
Support Requests by email, telephone or such other means as the parties
may hereafter agree to in writing.
Support Request Classification
Description:
Any Service Error Comprising or Causing any of the Following Events or
Effects
Critical Service Error
• Issue affecting entire system or single critical production function;
• System down or operating in materially degraded state; or •
Widespread access interruptions.
High Service Error
• Primary component failure that materially impairs its performance; or
• Data entry or access is materially impaired on a limited basis.
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Medium Service Error
• Software Services are operating with minor issues that can be
addressed with a work around.
Low Service Error
• Request for assistance, information, services that are routine in nature,
or updates that are desired but do not impair system operation or
functionality.
Escalation
With respect to any Critical Service Error Support Request, until such Support
Request is resolved, Urban SDK shall escalate that Support Request within
sixty (60) minutes of the receipt of such Support Request by the appropriate
Urban SDK support personnel.
Corrective Action Plan
If two (2) or more Critical Service Errors occur in any thirty (30) day period
during (a) the Term or (b) any additional periods during which Urban SDK
does or is required to perform any Software Services, Urban SDK shall
promptly investigate the root causes of these Service Errors and provide to
Customer within five (5) business days of its receipt of notice of the second
such Support Request an analysis of such root causes and a proposed written r
corrective action plan for Customer's review, comment and approval, which,
subject to and upon Customer's written approval, shall be a part of, and by
this reference is incorporated in, this Agreement as the parties' corrective
action plan (the "Corrective Action Plan"). The Corrective Action Plan shall
include, at a minimum: (x) Urban SDK's commitment to Customer to devote
the appropriate time, skilled personnel, systems support and equipment and
other resources necessary to resolve and prevent any further occurrences of
the Service Errors giving rise to such Support Requests; (y) a strategy for
developing any programming, software updates, fixes, patches, etc.
necessary to remedy, and prevent any further occurrences of, such Service
Errors; and (z) time frames for implementing the Corrective Action Plan. There
will be no additional charge for Urban SDK's preparation or implementation of
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the Corrective Action Plan in the time frames and manner set forth therein.
Termination Rights
If (i) four (4) or more Critical Service Errors occur during a single thirty (30)
day period, (ii) eight (8) or more High Service Errors or Critical Service Hours
(combined in any combination) occur during a single thirty (30) day period, (iii)
eight (8) or more Critical Service Errors occur during a six (6) month period, or
sixteen (16) or more High Service Errors or Critical Service Hours (combined
in any combination) occur during a six (6) month period, in addition to all other
remedies available to Customer, Customer may terminate this Agreement on
written notice to Urban SDK with no liability, obligation or penalty to Customer
by reason of such termination.
Changelog
• Revision published September 9, 2022
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