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15-0911 WEBQA Inc.of g VIA E-MAIL Date: To: Kimberly A. Dewis, City Clerk From: Michael R. Gehrman, Assistant Corporation Counsel Subject: WebQA Services Agreement Memorandum Attached per our discussions please find an agreement from WebQA which l have negotiated and had signed by WebQA. Noted that this agreement provides for payment of the City's delinquency and a waiver and release from WebQA within 30 days of payment, in addition to the other terms providing for future WebQA software service. You should be sure to obtain the waiver and release within 30 days of the payment of the arrearage. If you are unable to obtain the aforementioned release, please be sure to let me know. 104— MRG ksb Attachment cc: Christopher J. Beek (via e-mail w/attachment) Approved: William A. Cogley WEBQA SERVICES AGREEMENT This Agreement (die "Agreement") is hereby made and entered into this //W? day of Sept, 2015, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as the "Customer") and WEBQA Inc., an Illinois corporation (hereinafter referred to as "WEBQA'D. NOW, THEREFORE, in consideration of the mutual promises and covenants provided for herein, the sufficiency of which is mutually acknowledged, the parties hereto hereby agree as follows: 1. WEBQA DELIVERY OF SERVICES. WEBQA grants Customer a non-exclusive, non -transferable, limited license to access and use the WEBQA Services on the Authorized Website(s) identified in the attached Schedule A which is attached hereto and made a part hereof in consideration of the fees and terms described in Schedule A. This Agreement will also govern all additional Schedules for Services. 2. CUSTOMER RESPONSIBILITIES. Customer acknowledges it is receiving only a limited license to use the Services and related documentation, if any, and shall obtain no title, ownership nor any other rights in or to the Services and related documentation, all of which title and rights shall remain with WEBQA. However, Customer will retain ownership of all its data in the system. Customer agrees that (1) this license is limited to applications for its own use and may not lease or rent the Service(s) nor offer its use for others; (2) WebQA is not responsible for content placed into the system; and, (3) that it will maintain the Authorized Website(s) identified in Schedule A, provide WEBQA with all information reasonably necessary to setup or establish the Service(s) on Customer's behalf, and allow a "Powered by GovQA" logo with a hyperlink to WcbQA's website home page on the Authorized Website. 3. SERVICES LEVELS. WEBQA will use commercially reasonable efforts to backup and keep the Services and Authorized Website(s) in operation consistent with applicable industry standards and will respond to Customers' requests for support during normal business hours. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE SERVICES IS AT ITS OWN RISK. WEBQA DOES NOT WARRANT THAI' THE SERVICES WILL BE UNIN'T'ERRUPTED OR ERROR -FREE OR UNAFFECTED BY FORCE MAJEURE EVENTS. 4. WARRANTY AND LIABILITY. WEBQA MAKES NO REPRESENTATION OR WARRANTY AS TO FITNESS FOR A PARTICULAR PURPOSE EXCEPT AS OTHERWISE STATED HEREIN OF THE SERVICE(S) AND SHALL HAVE NO LIABILITY FOR ANY CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, DATA LOSS AND BUSINESS INTERRUPTION, AND THE PARTIES AGREE THAT THE ONLY REMEDIES THAT SHALL BE AVAILABLE TO CUSTOMER UNDER THIS AGREEMENT SHALL BE THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. WEBQA'S AND CUSTOMER'S LIABILITY UNDER ALL CIRCUMSTANCES INVOLVED HEREIN IS EXPRESSLY LIMIITED TO TIIE AMOUNT RECEIVED UNDER THIS AGREEMENT. 5. TERMINATION. Either party may terminate this Agreement without cause if the terminating party gives the other party sixty (60) days written notice prior to termination without penalty or additional costs. In the event of such termination, WEBQA shall be entitled to payment for any Services actually provided on a pro rata basis. WEBQA may terminate Services if payments are not received by WEBQA as specified in Schedule A. Upon any termination, WEBQA will discontinue Services under this Agreement; WEBQA will provide Customer will an electronic copy of all of Customer's data, if requested and for a cost of no more than $2,500; and, provisions of this Agreement regarding Ownership, Liability, Confidentiality and Miscellaneous will continue to survive. Unless otherwise terminated as provided above, this Agreement shall terminate July 31, 2020. b. INDEMNIFICATION. Each party hereto shall bold harmless and indemnify the other party from and against any and all claims for damages, suits, causes of action or any and all other liability of whatsoever nature and in whatsoever foram, excluding attorneys' fees, arising out of or in connection with the indemnifying party's negligent acts or omissions. Additionally, Customer shall indemnify WEBQA and its employees from any and all claims for damages, suits; causes of action or any and all other liability arising from the release of any data or documents not permissible under the IL Freedom of Information Act, including but not limited to unredacted private information as defined by the Act. 7, ACCPETA 3LE USE. Customer represents and warrants that the Services will only be used for lawful purposes, in a manner allowed by law, and in accordance with reasonable operating rules, policies, terms and procedures. WEBQA may, upon misuse of the Services, request Customer to terminate access to any individual and Customer agrees to promptly comply with such request unless such misuse is corrected. 8. CONFIDENTIALITY. Each party hereby agrees to maintain the confidentiality of the other party s proprietary materials and information, including but not limited to, all information, knowledge or data not generally available to the public which is acquired in connection with this Agreement, unless disclosure is required by law. Each party hereby agrees not to copy, duplicate, or transcribe any confidential documents of the other party except as required in connection with their performance under this Agreement. Customer acknowledges that the Services contain valuable trade secrets, which are the sole property of WEBQA, and Customer agrees to use its best efforts to prevent other parties from learning of these trade secrets or have unauthorized access to the Services. WEBQA will use reasonable efforts to insure that any WEBQA contractors maintain the confidentiality of proprietary materials and information. 4. MISCELLANEOUS PROVISIONS. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes for the enforcement of any rights arising out of or in connection with this Agreement shall be in the Circuit Court of Kane County, Illinois. WEBQA may not assign its rights and obligations under this Agreement, in whole or part, without prior written consent of Customer, which consent will not be unreasonably withheld. 10. COMPLIANCE ATM LAWS. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement, WEBQA 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 and legal status of employees. Without limiting the foregoing, WEBQA hereby certifies, represents and warrants to Customer that all of WEBQA's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legally authorized to work in the United States. WEBQA shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. 11. 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. 12. LOCAL GOVERNMENT PROMPT PAYMENT ACTRN'TEREST. WEBQA hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, er seg.). 13. EXECUTION. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same Agreement. For the purposes of executing this Agreement, any signed copy of this Agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this Agreement shall be considered to have the same binding legal effect as an original document. At the request of either patty any fax or e-mail copy of this Agreement shall be re -executed by the parties in an original form. No party to this Agreement shall mise the use of fax machine or e-mail as a defense to this Agreement and shall forever waive such defense. K MERGER. This Agreement is the only Agreement between the parties hereto - regarding the subject matter hereof. There are no other agreements, either written, oral or implied between the parties hereto regarding the subject matter hereof. Additionally, this Agreement shall supersede and replace any and all prior or contemporariness agreements which may exist between the parties hereto regarding the subject matter hereof. 15. ACCEPTANCE. Authorized representatives of Customer and WEBQA have read the foregoing and all documents incorporated therein and agree and accept such terms effective as of the date first written above. CITYOF Ir,,//,,IN By: �f Sean Stegall, City Man r Art st: City Clerk Date: FALegal DepaAgrewnM WEBQA Master Services Agr-ckwi 9.11.15.dmx A. Services Descriptions: SCHEDULE A Subscribed Services GovQA FOIA. Service FOIA Request Service platform that captures all requests received via letter, website, email, fax, or walk-in. Includes the ability to post completed FOIA requests to the web for searching via the FOIA Public Archive portal. GovQA F61 PPublic Portal Web Portal to capture FOIA requests and provides re uestors with updates and history of previous requests. B. Training and Ongoing Support: (a) Ongoing support through system videos and knowledgebase (b) Periodic webinars to train and update customers on new features (c) Optional ^0_ additional hours of online end-user training at $125/hr (d) Optional �U_ days of On -Site Training ($1,800 per day plus expense) (e) Customer will log ALL ISSUES into WEBQA SUPPORT PORTAL at www.sgpl2ortaa.com to receive service; provided, however, that if it is impracticable to do so, Customer may utilize other reasonable means to communicate needs for service. C. Fees: 2015 - 2016 Yearly Fee $11,520.00 2016-2017 Yearly Fee $11,940.00 2017-2018 Yearly Fee $12,420.00 2018-2019 Yearly Fee $12,900.00 2019-2020 Yearly Fee $13,380.00 Data: Customer data is owned by Customer. All document attachment storage is via an Amazon S3 standard storage account provisioned by WEBQA, 100GB of storage is included with every additional 1006B of storage being assessed a fee of $20/month. Additionally, 500GB per month of document attachment retrieval is included. Every 50OGB over the allotted 50OGGB of document retrievals per mouth should be assessed at $25 fee per month. D. Billing: All fees are inclusive of taxes, and are due within thirty (30) days of receipt of invoice; provided, however, that invoices shall not exceed the amounts listed above in any twelve (12) month period. This secures site, servers and resources necessary to being project. If payment is not received by start of the Billable Term. WEBQA has the right to suspend all services. E. Remittance: All payments should be made directly to` WEBQA. WEBQA mailing address for all payments is: WEBQA Accounts Receivable Department 900 S. Frontage Road, Suite 110 Woodridge, IL 60517 F. Prior Service Fees: In addition to the amounts provided for herein, the Customer shall pay to WEBQA the sum of $19,020.00 on or before December 31, 2015. The payment of such sum shall constitute good and valuable consideration for WEBQA's waiver and release of any and all claims to any payments by the Customer to WE13QA which WEBQA may have asserted as being due from the Customer pursuant to any Services previously provided by WEBQA as of the date of the signing of this Agreement. WEBQA shall provide such a waiver and release within 30 days of payment of the aforementioned sum.