HomeMy WebLinkAbout26-63 Resolution No. 26-63
RESOLUTION
AUTHORIZING THE EXECUTION OF A PURCHASE AGREEMENT WITH
STATIONWISE, INC. FOR PERSONNEL SCHEDULING 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 Purchase Agreement on behalf of the City of Elgin
with Stationwise, Inc., for personnel scheduling 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 8, 2026
Adopted: April 8, 2026
Vote: Yeas: 8 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
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PURCHASE AGREEMENT
THIS AGREEMENT is hereby made and entered into this 8 day of
Apri 1 2026,by and between the City of Elgin, Illinois, a municipal corporation
(hereinafter referred to as "City")and Stationwise,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 eighteen(18)page proposal,dated March 26,2026,
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
I I I inois.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 Stationwise, Inc., do registered agent Resident Agents Inc., 8 The Green,
Suite R,Dover, DE 19901 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,
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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 Sixty-Eight Thousand Seven Hundred
Seventy Dollars($68,770.00)as indicated in and according to the payment schedule of Attachment
A or within thirty (30) days of delivery 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
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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,
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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 rights.
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.
CITY IN
STATIONWISE, INC.
Marcus Edwards
ar G. Koza , City Manag r
Print Name
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& rms fki/arc,S Attest:
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CEO
• Clerk
Title
Legal Dept\Agreement\Stationwise Purchase Agr-Scheduling Software-3-25-26.docx
3
Docusign Envelope ID:9E50EA32-A4EA-8F99-82D4-7988C1C8E3CE
Prepared for:
Elgin Fire Department
dip Stationwise Elgin, IL
Create Date:2026-03-26
Contract Start Date:April 1,2026
Contract End Date: December 31,2031
Required Items
Lite Tier Subscription (Prorated) Pnc. $14.950.00
For Period Between: 4/1/26 - 12/31/26 Discount 20
Details Multi-year Discount
Total $8,970.00
Lite Tier Subscription Price $14,950.00 per year
Discount 20 %
For Period Between: 1/1/27 - 12/31/31
Includes the following:
• Scheduling software designed for your unique union rules, including:
• Staffing lists for overtime hiring
• Certification requirements
• Min I max consecutive work hours
• Cloud-based web app with mobile and tablet friendly design
• Deploy for strike teams. TIFMAS, etc.
• Timecard management with employee e-signatures and custom .csv payroll
export
• Conversation and messaging system that tracks read receipts and can
send via SMS and/or email
• 24/7/365 customer support from real people who speak firefighter, with
response times of<1 hour.
• Hiring engine to automate filling vacancies and overtime hiring
• Core Integrations: 3rd party integrations, including:
Incident Reporting (Image Trend. ESO. FirstDue)
Payroll (any tool. custom .csv export only)
• Vacation and shift/position bidding for day and assignment auctions
Details Multi-year Discount
Contract term 5 year
Total $11,960.00 per year
Stationwise Inc. Questions? Contact me:
447 Sutter St.,Ste.405 PMB#682 Alissa Letkowski
San Francisco,CA 94108 alissa@stationwise.com
415-634-4351
Docusign Envelope ID:9E50EA32-A4EA-8F99-82D4-7988C1C8E3CE
Prepared for:
Elgin Fire Department
Stationwise Elgin, IL
Create Date:2026-03-26
Contract Start Date:April 1,2026
Contract End Date: December 31,2031
Lite Tier Implementation & Training Pricc $10,000 00
One-time cost covers Stationwise implementation and training Discount 100
Details Strategic Partnership Discount
Total $0.00
Payroll Analytics Price $7,500.00 per year
Payroll analytics functionality included for length of initial contract period (Strategic Discount 100
Partnership offering).
Details Strategic Partnership Discount
Contract term 5 year
Total $0.00 per year
Total Amount $68,770.00
One-time subtotal $8,970.00
Recurring subtotal $11,960.00
per year
Total Amount $68,770.00
Payment Schedule
Due at Signing $8,970
Due annually on Jan 1st (Jan 1,2027 -Jan 1,2031 $11,960
Stationwise Inc. Questions? Contact me:
447 Sutter St.,Ste.405 PMB#682 Alissa Letkowski
San Francisco,CA 94108 alissa@stationwise.com
Page 2 of 2 415-634-4351
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dip Stationwise
Software as a Service Terms and Conditions
These Software as a Service Terms and Conditions ("Terms") constitute a legal agreement
between Stationwise. Inc., a Delaware corporation ( Company"), and the customer identified on
each applicable SaaS Order Form ("Customer'). Company and Customer are herein referred to
individually as a "Party" and collectively as the "Parties". The Company is willing to make the
Subscription Services (as defined below) available to Customer only as set forth in these Terms
and each applicable SaaS Order Form. All terms with initial letters that are capitalized herein but
which are not otherwise defined herein shall have the meanings set forth in each applicable
SaaS Order Form. These Terms, its exhibits and attachments, and each applicable SaaS Order
Form are collectively referred to herein as the "Agreement".
1 . ACCESS RIGHTS; SUBSCRIPTION SERVICES;
OWNERSHIP
1 .1 . Right to Access
Subject to the terms of this Agreement and any limitations set forth within the Applications (as
defined below), Company grants to Customer a nonexclusive, nontransferable, revocable, non-
licensable limited right to access and use (the "Access Rights") its proprietary software as a
service offering for fire department scheduling, communications, budgeting. reporting, record
storage and related matters, as updated and modified from time to time (the "Subscription
'Services"), as set forth in each applicable SaaS Order Form, through certain downloadable
software applications or an online web portal as made available by Company from time to time
(collectively, the "Applications"), solely during the Term. Customer acknowledges and agrees
that Company offers certain access rights and certain features and functionality of the
Subscription Services to customers on a differentiated basis, and Company may offer from time-
to-time different subscription plans, levels, or packages with respect to such rights. features,
and functionality. for example with respect to Customer's available data storage or with respect
to the number and type of Customer's permitted Authorized Users. Customer's Access Rights
include only the features and functionality set forth in each applicable SaaS Order Form and
may be exercised only with respect to the number of Customer fire stations (each a "Battalion"
and collectively, the "Battalions") specified in each applicable SaaS Order Form.
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1 .2. Users
The Subscription Services may be used only by Customer's Authorized Users. As used herein,
an "Authorized User" is (a) an employee or contractor of Customer authorized by Customer to
access and use the Subscription Services; or (b) any other individual designated by Customer
as an Authorized User and authorized by Customer to access and use the Subscription
Services. Authorized Users will have different rights, features, and functionality within the
Subscription Services based on the role or type of each such Authorized User (each, a "User
Type"), and Customer is solely responsible for assigning and designating each Authorized User
to be the appropriate User Type within and as set forth in the Subscription Services. For the
avoidance of doubt. Company shall have no liability relating to or arising from the authorization
of any individual as an Authorized User or relating to or arising from the designation of any
Authorized User as a particular User Type. Customer acknowledges and agrees that it is
responsible for all fees incurred in connection with the designation or authorization of Authorized
Users by each Administrative User (as defined below), as set forth in each SaaS Order Form.
Customer will at all times be responsible for any breach of these Terms by any Authorized User.
regardless of whether such action was authorized by Customer or not and regardless of
whether or not any Authorized User has separately agreed to any end user license with
Company. Any action taken by an Authorized User in connection with the Subscription Services
shall be deemed to be an action taken by Customer for purposes of compliance with these
Terms.
1 .3. Administrative User(s)
Company will grant at least one (1) Authorized User administrative control over Customer's
account as provided by and through the administrative portal of the Subscription Services (each,
an "Administrative User"), which may include the ability to designate or un-designate individuals
to be Authorized Users, set permissions, revoke access, edit certain content uploaded via the
Subscription Services, and otherwise configure certain of Customer's settings within the
Subscription Services.
1 .4. Technical Requirements
Customer and its Authorized Users are responsible for procuring and operating all computer
systems, software, and telecommunications services required to meet the minimum technical
specifications necessary for Authorized Users to access and use the Subscription Services as
they exist from time to time, and Customer or any Authorized User may be unable to access or
utilize some or all aspects of the Subscription Services unless such minimum technical
specifications are met.
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1 .5. Ownership
The Applications, the Subscription Services, including without limitation all software code related
to the foregoing, the Analytics (as defined below), the Documentation, Company Content, all
other content and materials that are not Customer Inputs (as defined below) or User Data (as
defined below) that appear in the Applications and in the Subscription Services, and all
improvements, modifications, derivative works or innovations made to each of the foregoing and
all intellectual property rights in each of the foregoing (including all rights associated with
particular information that are granted by law and that give the owner, independent of contract,
exclusive authority to control use or disclosure of the information, including enforceable privacy
rights and any rights in databases recognized by applicable law) are the exclusive property of
Company and its licensors, even if such improvements, modifications, derivative works or
innovations result from suggestions, enhancement requests, recommendations or other
feedback provided by Customer or any Authorized User. Except for the Access Rights expressly
granted herein, all rights in and to all of the foregoing are reserved by Company. These Terms
do not convey to Customer any rights of ownership or other intellectual property right in, to, or
under any Subscription Services. Nothing in these Terms will be deemed to grant to Customer
any right to receive a copy of any software underlying the Applications or Subscription Services,
in either object or source code form. Company shall own all intellectual property rights related to
any feedback, comments, or suggestions Customer or its Authorized Users provide to Company
with respect to the Subscription Services, and Customer hereby assigns all such intellectual
property rights to Company.
1 .6. Analytics
As used herein, "Analytics" means information, data. statistics. metadata. inferences,
interrelationships, and/or associations generated by or from the Subscription Services, or
regarding Customer's or its Authorized Users' use of the Subscription Services, including
without limitation performance metrics. Company may create, collect, use and disclose Analytics
for product improvement and other Company business purposes. Analytics will not identify
Customer or any Authorized User as the source of the information or include any Personal
Information.
1 .7. Suspension
Company may suspend Customer's or any Authorized User's Access Rights at any time in the
event that (a) any payment due to the Company from Customer is more than five (5) business
days past due; (b) a reasonable threat to the technical security or technical integrity of the
Subscription Services exists, provided that Company promptly recommences performance upon
the cessation of the threat; or (c) if Company reasonably determines that Customer or any
Authorized User has otherwise violated any of these Terms and provided the Customer with
notice thereof and at least ten (10) business days to cure such violation. For the avoidance of
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doubt, Customer's obligation to pay the Fees (as defined below) set forth in each applicable
SaaS Order Form shall continue in full force and effect during any suspension of access to the
Subscription Services under these Terms. Company shall not be liable to Customer, any
Authorized User or third party for any suspension of Access Rights under this Agreement.
2. CUSTOMER RESPONSIBILITIES
2.1 . Access Credentials
Customer will safeguard, and ensure that all Authorized Users safeguard, the devices,
computers, and networks used to access the Subscription Services and safeguard all login
information, passwords, identity and security protocols, and policies through which Authorized
Users access and use the Subscription Services ("Access Credentials"). Customer agrees to:
(1) keep its Access Credentials secure and confidential and not to allow any of Customer's
Authorized Users to provide their Access Credentials to anyone else; and (2) not permit any
individual who is not an Authorized User from using any Access Credentials. For the avoidance
of doubt, Customer may not allow, permit, or authorize the use of any Authorized User's Access
Credentials by more than one individual, and Customer shall ensure that each Authorized User
does not share or allow any other individual to utilize such Authorized User's Access
Credentials. Customer will notify Company and will ensure that Authorized Users notify the
Company immediately (within 48 hours) if Customer or any Authorized User learns of any
unauthorized use of any Access Credentials or any other known or suspected breach of security
relevant to the Subscription Services. Company reserves the right, in its sole discretion and
without liability to Customer or its Authorized Users, to take any action Company deems
necessary or reasonable to ensure the security of the Subscription Services and Customer's
Access Credentials and account, including suspending or terminating Customer's access or the
access of any of Customer's Authorized Users. changing passwords, or requesting additional
information to authorize activities related to Customer's account.
2.2. Representations
Customer represents and warrants that: (a) it has full power and authority to enter into each
applicable SaaS Order Form and perform its requirements and obligations set forth in this
Agreement; (b) the person signing each applicable SaaS Order Form on Customer's behalf has
been duly authorized and empowered to enter into it and to this Agreement; (c) it has a valid
and binding agreement with each Authorized User or with the legal entity that employs each
Authorized User, pursuant to which Customer can enforce the compliance of such Authorized
User with this Agreement; and (d) that it will perform its obligations and exercise its rights
hereunder in conformance with all applicable laws, rules, regulations and guidelines, including,
without limitation, those related to privacy and data security. Customer represents that all
information Customer or any Authorized User provides to Company through the Applications or
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otherwise as part of its account registration and at any other time during or after the account
registration will be true, accurate, complete, and current and that Customer and each
Authorized User will promptly update all such information as necessary such that it is, at all
times. true, accurate. complete, and current.
2.3. General Restrictions on Use
Customer and each Authorized User shall comply with all applicable laws in its use of the
Subscription Services and agrees not to act outside the scope of the rights that are expressly
granted by this Agreement. Customer will not, and shall ensure that the Authorized Users will
not. (a) make the Subscription Services available to anyone other than the Authorized Users; (b)
commercially exploit, sell, resell, license, sublicense, rent, lease, or distribute the Subscription
Services or include any Subscription Services or any derivative works thereof in a service
bureau or outsourcing offering except as expressly set forth in this Agreement; (c) copy,
photograph, or otherwise reproduce any part of the Subscription Services, including any
Platform Content, or modify or make derivative works based upon the Subscription Services,
including any Platform Content; (d) create internet "links" to the Subscription Services or "frame"
or "mirror" any portion of the Subscription Services on any other website, software application,
server, or device; (e) access the Subscription Services for purposes of monitoring its availability,
performance, or functionality, or for any other benchmarking or competitive purposes; (f)
decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the object
code or source code from which any software component underlying the Subscription Services
are compiled or interpreted; (g) interfere with or disrupt the integrity or performance of the
Subscription Services, the Applications. or the data contained therein or disrupt any servers or
networks connected to the Subscription Services, or disobey any requirements, procedures,
policies or regulations of networks connected to the Subscription Services; or (h) utilize the
Subscription Services in order to (i) send spam or otherwise duplicative or unsolicited messages
in violation of applicable law; (ii) send or store infringing, obscene, threatening, libelous, or
otherwise unlawful, unsafe, malicious, abusive, or tortious material, including material harmful to
children or violative of third party privacy rights; or (iii) send or store material containing software
viruses. worms, Trojan horses, or other harmful computer code, files, scripts. agents or
programs or plant malware on Company's computer systems, those systems of Company's third
party service providers or vendors, or otherwise use the Subscription Services to attempt to
upload and/or distribute malware. Customer shall be responsible for Authorized Users' use of
the Subscription Services, including their compliance with the requirements of this Section 2.3,
and any action or breach of this Agreement by an Authorized User shall be deemed an action or
breach hereof by Customer. Nothing in this Agreement shall be construed to grant Customer
any right to obtain or use such object code or source code. Compliance with the restrictions set
forth in this Section 2.3 is an essential basis of this Agreement, and Customer agrees to
reimburse Company for attorneys' fees and court costs incurred in connection with any lawsuit
brought by Company in which a court or arbitrator finds that Customer or any Authorized Users
have breached any provisions of this Section 2.3.
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3. PLATFORM CONTENT; CUSTOMER INPUTS; USER DATA
3.1 . Platform Content
Company may provide certain information, data, and other content on or through the
Applications or Subscription Services ("Company Content"). The Services may from time to
time include, feature, or link-to information, data, and other content or websites from third
parties (collectively, the "Third Party Content" and together with Company Content, the
"Platform Content"). IT SHALL BE CUSTOMER'S AND EACH AUTHORIZED USER'S
RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF THE SUBSCRIPTION
SERVICES AND ANY PLATFORM CONTENT FOR THE USE BY CUSTOMER AND EACH
SUCH AUTHORIZED USER. CUSTOMER IS RESPONSIBLE FOR DETERMINING WHETHER
ANY PLATFORM CONTENT IS RELEVANT, APPROPRIATE, OR SUFFICIENT FOR
CUSTOMER'S PURPOSES. ALL PLATFORM CONTENT IS PROVIDED "AS IS" AND "AS
AVAILABLE," AND COMPANY MAKES NO WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, AS TO THE PLATFORM CONTENT, INCLUDING WITHOUT LIMITATION WITH
RESPECT TO ITS COMPLETENESS, CORRECTNESS, ACCURACY, RELIABILITY, OR
OTHERWISE.
3.2. Customer Inputs; Customer Marks
The Subscription Services may include the ability for the Customer and Authorized Users to
upload and/or enter certain content, including without limitation data, text, writing, videos.
images, photos, audio clips, graphics information, software, code, and any other types of
content and including without limitation in connection with any messaging in or through the
Subscription Services (collectively, "Customer Inputs"). As between Customer and Company,
Customer owns all right, title, and interest in and to the Customer Inputs. Customer hereby
grants to Company a non-exclusive, royalty-free license, to access, use, and copy the Customer
Inputs as necessary to provide the Subscription Services, including without limitation for
troubleshooting purposes, and to create the Analytics. Customer also hereby grants Company a
non-exclusive, royalty-free to use and copy Customer's name, applicable trademarks, and other
branding within the Subscription Services and Applications solely in connection with Company's
provision of the Subscription Services to Customer's Authorized Users.
3.3. User Data
The Subscription Services may include functionality that allows certain Authorized Users to
directly or indirectly upload and/or enter certain content, including without limitation data, text,
writing, videos, images, photos, audio clips, graphics information, software, code, and any other
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types of content (collectively, -User Data"). As between Customer and Company, Customer
owns all right, title, and interest in and to the User Data. Customer hereby grants to Company a
non-exclusive, royalty-free license, to access, use, and copy User Data as necessary to provide
the Subscription Services, including without limitation for troubleshooting purposes, and to
create the Analytics.
3.4. Customer Responsibility for Customer Inputs and User Data
As between Company and Customer, Customer is solely responsible for the accuracy and
quality of the Customer Inputs and User Data. Customer represents, warrants, and covenants
that it has, and will have as required under this Agreement, the legal right, title, interest and
authority to provide Company with access to, use of, and license to the Customer Inputs and
User Data and such access, use and license will not cause a breach of any third-party
agreement, violate any right of a third party, or any applicable law. Without limiting the
generality of the foregoing, Customer represents, warrants and covenants that at all times
during the Term, it will have provided all notices, and obtained all consents. reasonably
necessary for Company to access and use the Customer Inputs and User Data to provide the
Subscription Services, and that the Customer Inputs and User Data:
a) are provided to Company in accordance with all applicable laws, do not otherwise
violate any applicable law, and could not give rise to any civil liability;
b) will not and do not infringe any intellectual property rights;
c) will not and do not violate the privacy, publicity, or other rights of third parties or any
other law. statute, ordinance or regulation;
d) will not and do not misrepresent the source of the Customer Inputs or User Data;
e) will not and do not misrepresent Customer's identity in any way;
f) will not and do not contain any viruses. Trojan horses, spyware, malware, worms,
time bombs, cancelbots, or other disabling devices or other harmful components
intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate
any system, data or personal information;
g) will not violate, or encourage any conduct that would violate, any applicable law or
regulation or would give rise to civil liability.
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3.5. Monitoring
Company has no obligation to monitor any Customer Inputs or User Data. Company does,
however, reserve the right to monitor Customer Inputs and User Data and further reserves the
rights to remove or refuse to accept, store, post, or display any Customer Input or User Data; to
disclose Customer's name, contact information, and other information to any third party who
claims that any Customer Input or User Data violate any rights of a third party; and to terminate
or suspend Customer's or any Authorized User's access to all or part of the Subscription
Services.
3.6. Security of Customer Inputs and User Data
Company will implement and maintain physical, technical, and administrative safeguards that
are reasonably designed to protect the security, confidentiality, and integrity of the Customer
Inputs and User Data.
3.7. Privacy Policy
To the extent the Customer Inputs or User Data include any Personal Information, Company
and Customer will comply with their respective obligations set forth in the data processing
addendum attached as Attachment 1 (the "Data Processing Addendum"). As used herein,
"Personal Information" shall have the meaning given to such term in the Data Processing
Addendum.
4. FEES AND PAYMENT
4.1 . Fees
In consideration for the rights granted hereunder, Customer will pay to Company the fees (the
"Fees") as set forth in each applicable SaaS Order Form, and unless otherwise waived by
Company, third party vendor expenses and travel expenses that may be incurred during the
delivery of the Subscription Services will be charged separately at actual incurred cost
subject to Customer's approval. Unless otherwise specified in each applicable SaaS Order
Form, all invoices issued by Company will be due and payable net thirty (30) days after
Customer's receipt. All Fees are nonrefundable, except as expressly otherwise set forth herein,
and will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes.
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4.2. Taxes
Unless otherwise stated, the Fees do not include any applicable sales. use. or similar taxes,
assessable by any local, state, provincial, federal or foreign jurisdiction, but excluding taxes on
Company's income or assets (collectively, "Taxes"). Customer is responsible, and Company
shall have no liability, for paying all Taxes applicable to Customer's purchases hereunder. If
Company elects to pay or collect any such Taxes, the appropriate amount of such Taxes shall
be invoiced to and paid by Customer unless Customer provides Company with a valid tax
exemption certificate authorized by the appropriate taxing authority. Customer will make all
payments to Company free and clear of, and without reduction for, any Taxes.
5. CONFIDENTIALITY
5.1 . Confidential Information
"Confidential Information" means all information and materials disclosed by or on behalf of a
Party (the 'Disclosing Party") to the other Party (the "Receiving Party"), whether orally or in
writing, that are designated as confidential, either marked in writing where possible, or identified
as such and confirmed in writing, or that reasonably should be understood to be confidential
given the nature of the information and the circumstances of disclosure. Confidential
Information of each Party shall include business and marketing plans, technology and technical
information, product plans and designs, and business processes disclosed by such Party. For
the avoidance of doubt, the Subscription Services, the Platform Content. the Analytics, and the
Fees constitute Confidential Information of Company. and the Customer Inputs and User Data
constitute Confidential Information of Customer. For purposes of this Section 5. disclosure of
Confidential Information by or to any Authorized Users shall be deemed disclosure of
Confidential Information by or to Customer, as applicable.
5.2. Protection of Confidential Information
The Receiving Party will not use any Confidential Information of the Disclosing Party for any
purpose not permitted by this Agreement. and will disclose the Confidential Information of the
Disclosing Party only to the service providers of the Receiving Party (or if the Receiving Party is
Customer, only to the service providers or Authorized Users of Customer) who have a need to
know such Confidential Information in connection with this Agreement or the use or operation of
the Subscription Services and who are under a duty of confidentiality no less restrictive than the
Receiving Party's duty hereunder. The Receiving Party will protect the Disclosing Party's
Confidential Information from unauthorized use, access, or disclosure in the same manner as
the Receiving Party protects its own confidential or proprietary information of a similar nature
and with no less than reasonable care. Both Parties acknowledge and agree that the Disclosing
Party may be irreparably harmed by any violation of this Section 5 and that the use of the
Confidential Information for any purpose other than that stated herein may, among other things,
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enable the Receiving Party or other third parties receiving such Confidential Information to
compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened
breach, the Disclosing Party shall be entitled, in addition to all other rights and remedies
available at law or in equity, to seek (a) an injunction restraining such breach; or (b) a decree for
specific performance of the applicable provision of this Agreement. Notwithstanding the
termination or expiration of this Agreement, the obligations of the Receiving Party, with respect
to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (i)
in the case of any information or materials that constitute a trade secret within the meaning of
applicable law. for as long as such information and materials remain as a trade secret, or (ii) in
the case of any other information or materials, during the Term and for five (5) years following
the termination or expiration of the Term. Customer shall ensure that all Authorized Users
adhere to the provisions of this Section 5 and maintain the confidentiality of Company's
Confidential Information. Customer shall be liable for any breach of this Section 5 by an
Authorized User.
5.3. Exceptions
The Receiving Party's obligations under this Section 5 will not apply to any portion of the
Disclosing Party's Confidential Information if such information: (a) was already lawfully known to
the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the
Receiving Party by a third party who was not subject to an obligation of confidentiality; (c) is, or
through no fault of the Receiving Party has become, generally available to the public; or (d) was
independently developed by the Receiving Party without use of or reference to the Disclosing
Party's Confidential Information. In addition, the Receiving Party will be allowed to disclose
Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved
in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights
under this Agreement in connection with a legal proceeding; or (iii) required by law or by the
order of a court or similar judicial or administrative body, provided that the Receiving Party, as
permitted by applicable law, rules and regulations, notifies the Disclosing Party of such required
disclosure in writing promptly, and cooperates with the Disclosing Party, at the Disclosing
Party's reasonable request and expense, in any lawful action to contest or limit the scope of
such required disclosure.
6. DISCLAIMER OF WARRANTIES
6.1 . Disclaimer of Warranties
COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER,
EXPRESS, IMPLIED. OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING
THE SUBSCRIPTION SERVICES, OR OTHERWISE WITH RESPECT TO THE SUBJECT
MATTER OF THESE TERMS AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES
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OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-
INFRINGEMENT OF THIRD PARTY RIGHTS AS WELL AS ANY WARRANTY ARISING FROM
COURSE OF DEALING OR USAGE OF TRADE. Company shall not be responsible for
ensuring and does not represent or warrant that: (i) the Subscription Services will meet
Customer's business requirements; (ii) the Subscription Services will be error-free or
uninterrupted or that the results obtained from its use will be accurate or reliable; or (iii) all
deficiencies in the Subscription Services can be found or corrected. Company will not be
responsible for loss or corruption of data, in each case caused by acts within the control of
Customer or any Authorized User or otherwise outside of the control of Company.
7. INDEMNIFICATION
Customer shall defend, indemnify and hold Company and its affiliates and their respective
employees, officers, directors, and independent contractors (each a "Company Indemnitee")
harmless from and against all liabilities, losses and damages incurred in connection with claims,
suits, or proceedings (each, a "Claim") (i) made or brought against each such Company
Indemnitee by a third party alleging that the Customer Inputs or User Data infringe the
intellectual property rights of, or have otherwise damaged, a third party; (ii) Customer's or any
Authorized User's access to or use of the Subscription Services; or (iii) based on any failure or
alleged failure of the Customer or an Authorized User to comply with this Agreement or any
applicable law, rule or regulation in connection with its use of the Subscription Services.
7.2.
The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying
the Customer promptly in writing of such Claim, (b) reasonably cooperating and assisting in
such defense at the Customer's expense, and (c) giving sole control of the defense and any
related settlement negotiations to Customer with the understanding that Customer may not
settle any Claim in a manner that admits guilt on the part of the indemnified party, requires any
non-indemnified payment by the indemnified party, or otherwise materially prejudices the
indemnified party, without the indemnified party's prior written consent.
8. LIMITATION OF LIABILITY
8.1 . Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS
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AGREEMENT OR PROVIDING THE SUBSCRIPTION SERVICES, WHETHER ARISING
UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY,
EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER AS FEES FOR THE
SUBSCRIPTION SERVICES UNDER THE APPLICABLE SAAS ORDER FORM UNDER
WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON
WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS
ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-
BREACHING PARTY'S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL
PURPOSE.
8.2. Exclusion of Consequential and Related Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY
FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF,
DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED,
WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE
WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES. The foregoing
limitations shall not apply to a Party's liability arising from confidentiality obligations in Section 5
or the indemnification obligations in Section 7.
9. TERMINATION
9.1 . Term
This Agreement becomes effective between the Company and Customer upon the date of the
last signature to each applicable SaaS Order Form (the "Effective Date"). Unless otherwise set
forth in an applicable SaaS Order Form, the term of this Agreement will be for 5 '/4
years commencing on the Effective Date and as indicated in the applicable SaaS Order Form,
9.2. Early Termination
This Agreement may be terminated:
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a) by Company if Customer fails to timely make any payment due hereunder and fails to cure
such default within ten (10) business days after receiving notice in writing from Company of
such failure;
b) by either Party (the "Non-breaching Party") upon written notice containing an explanation
of an alleged material breach to the other Party (the "Breaching Party"), if the Breaching Party
materially breaches this Agreement and does not cure the material breach within thirty (30)
days after receiving written notice thereof from the Non-breaching Party;
c) by either Party for convenience upon thirty (30) days' prior written notice.
9.3. Termination Upon Bankruptcy or Insolvency
Either Party may, at its option, terminate this Agreement immediately upon written notice to the
other, in the event (a) that the other Party becomes insolvent or unable to pay its debts when
due; (b) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if
filed against such other Party, such petition is not removed within ninety (90) days after such
filing: (c) the other Party discontinues its business: or (d) a receiver is appointed or there is an
assignment for the benefit of the other Party's creditors.
9.4. Destruction of Customer Inputs and User Data
Company may destroy any Customer Inputs and User Data in its possession or control at any
time after termination or expiration of this Agreement. Customer further agrees that Company
shall not be liable to Customer nor to any third party for any such destruction.
9.5. Effect of Termination; Survival
Customer's and each Authorized User's right to access and use the Subscription Services shall
terminate immediately upon the expiration or termination of this Agreement. Termination of this
Agreement will not relieve Customer of the obligation to pay any Fees accrued or payable to
Company prior to the effective date of termination. Sections 1.6 (Ownership), 1.7 (Analytics), 5
(Confidentiality), 6 (Disclaimer of Warranties), 7 (Indemnification), 8 (Limitation of Liability), 9
(Termination), and 10 (General) shall survive any termination or expiration of this Agreement.
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10. GENERAL
10.1 . Marketing
Company may issue a press release after the Effective Date regarding Customer's use of the
Subscription Services. Customer consents to Company publicly referring to Customer as a
customer of Company, including on Company's website and in sales presentations, and
Company's use of Customer's logo for such purposes.
10.2. Severability
If any provision or portion of this Agreement is, for any reason, held to be invalid or
unenforceable, the other provisions and portions of this Agreement will remain enforceable and
the invalid or unenforceable provision or portion will be deemed modified so that it is valid and
enforceable to the maximum extent permitted by law.
10.3. Waiver; Remedies
Any waiver or failure to enforce this Agreement on one occasion will not be deemed a waiver of
any other provision or of such provision on any other occasion. Other than as expressly stated
herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies
of a Party at law or in equity.
10.4. Notices
All notices under this Agreement shall be in writing and given to the other Party at the notice
address set forth in each applicable SaaS Order Form. All notices shall be given (i) by delivery
in person (ii) by a nationally recognized next day courier service (e.g., FedEx, etc.), (iii) by first
class, registered or certified mail, postage prepaid, return receipt requested (iv) by facsimile
provided that there is confirmation of receipt, or (v) by electronic mail, provided that there is
confirmation of receipt. All notices shall be effective upon receipt by the Party to which notice is
given. Each Party may change its address for receipt of notice by giving notice of such change
to the other Party.
10.5. Entire Agreement
To the maximum extent permitted by applicable law, this Agreement constitutes the entire
agreement between the Parties as to its subject matter, and supersedes all previous and
contemporaneous agreements, proposals and representations, written or oral, concerning the
subject matter of this Agreement. No representation, undertaking or promise shall be taken to
have been given or be implied from anything said or written in negotiations between the Parties
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prior to the effectiveness of this Agreement except as expressly stated in this Agreement.
Customer acknowledges and agrees that its agreement hereunder is not contingent upon the
delivery of any future functionality or features not specified this Agreement or dependent upon
any oral or written, public or private comments made by Company with respect to future
functionality or features for the Subscription Services. In the event of any conflict between the
provisions in these Terms and each applicable SaaS Order Form, these Terms shall prevail
unless the applicable SaaS Order Form expressly states that it is intended to amend or modify
these Terms.
10.6. No Assignment
Customer may not assign, subcontract, delegate, or otherwise transfer this Agreement, or
Customer's rights and obligations herein, without obtaining the prior written consent of
Company. and any attempted assignment, subcontract, delegation, or transfer in violation of the
foregoing will be null and void. This Agreement will be binding upon the Parties and their
respective successors and permitted assigns.
10.7. Force Majeure
Any delay in the performance of any duties or obligations of either Party (except the payment of
money owed) will not be considered a breach of this Agreement if such delay is caused by a
labor dispute, shortage of materials. fire, earthquake. flood, epidemic, pandemic, or any other
event beyond the control of such Party (any of which, a "Force Majeure"). provided that such
Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of
such delay and to resume performance as soon as possible.
10.8. Independent Contractors
Company's relationship to Customer is that of an independent contractor, and neither Party is
an agent or partner of the other. Neither Party will have, and will not represent to any third party
that it has, any authority to act on behalf of the other.
10.9. No Third-Party Beneficiaries
Except as provided in this Agreement, this Agreement is for the sole benefit of the Parties
hereto and their respective successors and permitted assigns, and nothing in this Agreement,
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.
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10.10. Counterparts; Electronic Signatures
This Agreement may be executed in one or more counterparts, each of which will be deemed an
original and all of which will be taken together and deemed to be one instrument. A manually or
electronically 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 the Agreement.
10.11 . Construction
The titles of the sections of this Agreement are for convenience of reference only and are not to
be considered in construing this Agreement. Unless the context of this Agreement clearly
requires otherwise: (i) references to the plural include the singular, the singular the plural, and
the part the whole, (ii) "or" has the inclusive meaning frequently identified with the phrase
"and/or," (iii) "including" has the inclusive meaning frequently identified with the phrase
"including but not limited to" or "including without limitation," and (iv) references to "hereunder,"
"herein" or "hereof' relate to this Agreement as a whole. Any reference in this Agreement to
any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include
such statute, rule, regulation or agreement as it may be modified, varied, amended or
supplemented from time to time. The Parties agree that this Agreement shall be fairly
interpreted in accordance with its terms without any strict construction in favor of or against
either Party and that ambiguities shall not be interpreted against the drafting Party.
Legal DeptlAgreement\Stationwise Purchase Agr-Scheduling Software-Terms and Conditions-Redlined-3-25-26.docx