17-56 Resolution No. 17-56
RESOLUTION
AUTHORIZING EXECUTION OF A MASTER SERVICE
TERMS OF USE AGREEMENT WITH
MAPANYTHING, INC. FOR HOSTED APPLICATION
TO CLOUD-BASED SALESFORCE PLATFORM
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,be and is hereby authorized and directed to execute
a Master Service Terms of Use Agreement on behalf of the City of Elgin with MapAnything,Inc.for
hosted application to cloud-based Salesforce platform,a copy of which is attached hereto and made a
part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: April 26, 2017
Adopted: April 26, 2017
Omnibus Vote: Yeas: 7 Nays: 2
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
MapAnything
MAPANYTHING,INC.
MASTER SERVICE TERMS OF USE AGREEMENT
This MapAnything Master Service Terms of Use Agreement ("Agreement") is hereby made and entered into this
26 day of April , 2017, by and between the City of Elgin, Illinois, a municipal corporation
(hereinafter referred to as "CITY") and MapAnything, Inc., a Delaware corporation with its principal place of
business at 5200 77 Center Drive, Suite 400,Charlotte,NC 28217(hereinafter referred to as"MAPANYTHING").
MAPANYTHING and the City are collectively referred to herein as the "Parties", and each, individually, as a
"Party„
WHEREAS, MAPANYTHING is a hosted application inside of the Salesfore.com technology stack that
allows end users of Salesforce.com to inquire, view and sort any information more efficiently resulting in a Map-
Centric Salesforce experience; and
WHEREAS,MAPANYTHING allows end users of Salesforce to inquire and interact with Salesforce data in a
more intuitive and interactive way, with use cases including inside and outside sales representatives, marketing, field
service and technicians,as well as live time asset tracking for automobiles,trucks, rail cars,and tractor trailers through
the MAPANYTHING Live TM product offering;and
WHEREAS, MAPANYTHING is a dependent software application within the Salesforce technology stack
that can be readily deployed to the City. As such,MAPANYTHING does not store,house or otherwise rely upon City
Data that does not already exist within Salesforce;and
WHEREAS,the City seeks to engage MAPANYTHING to provide the Service Software;and
WHEREAS,MAPANYTHING desires to provide the Service Software to the City.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby mutually
acknowledged,the Parties hereto hereby agree as follows:
1. DEFINITIONS
"Acceptance Date"means the date of this Agreement.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common
control with the subject entity. "Control," for purposes of this definition, means direct or indirect
ownership or control of more than 50%of the voting interests of the subject entity.
"AppExchange" means the online directory of applications that interoperate with Web-based platform
services provided by SFDC, located at http://www.salesforce.com/appexchange or at any successor
websites.
"Authorized User" means all Persons authorized by the City to access and use the Service Software
through the City's account under this Agreement.
"City Data"means all electronic data or information submitted by the City to the Service Software.
"Derivative Works" mean a work consisting of any correction, modification, update, upgrade,
enhancement, improvement, translation, adaptation, release or other change relating to the Service
Software.
"Hosted Services"has the meaning set forth in Section 2(a)(i).
"Law" means any and all applicable laws, treaties, conventions, directives, regulations, ordinances, and
judicial decisions in courts and tribunals of competent jurisdiction that relate to the Service Software or a
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Party, including any subsequent amendments, modifications and revisions thereto, or subsequent versions
thereof.
"Malicious Code"means viruses,worms,time bombs,Trojan horses and other harmful or malicious code,
files,scripts,agents or programs.
"Person"means an individual, corporation, partnership, joint venture, limited liability company,
governmental authority,unincorporated organization,trust,association or other entity.
"Reseller"means the independent entity from which the City has purchased subscriptions to the Services.
"Service Order Form"has the meaning set forth in Section 2(b).
"Service Software"means the license to use: (1) the MAPANYTHING software application or
applications that are installed into and interoperates with the Web-based platform services provided by
SFDC via http://www.salesforce.com and /or other designated websites as described in the SFDC User
Guide, that are ordered by the City, including free and open source software and any third-party or other
software; and(2) all new versions, updates, revisions, enhancements, improvements and modifications of
the foregoing,that MAPANYTHING provides remote access to and use of as part of the Services. Service
Software does not include project development or customization work performed by MAPANYTHING.
"SFDC" means either the company Salesforce.com or the Web-based platform services provided by
Salesforce.com via http://www.salesforce.com and/or other designated websites as described in the SFDC
User Guide.
"Specifications"means the specifications for the Service Software set forth in the applicable Service Order
Form.
"Term"has the meaning set forth in Section 11(a).
"Third-Party Applications" means online, Web-based applications and offline software products that are
provided by third parties, including but not limited to MAPANYTHING, interoperate with the Web-based
platform services provided by SFDC,including but not limited to those listed on the AppExchange.
"User Guide" means the online user guide for the Services, accessible via online help or
http://wiki.cloudbilt.com/mapanything/,as updated from time to time.
"Users"means individuals who are authorized by the City to use the Services,for whom subscriptions to a
Service have been purchased, and who have been supplied a license via the SFDC License application
utilized by MAPANYTHING, by the City (or by MAPANYTHING at the City's request). Users may
include but are not limited to employees, consultants, contractors and agents of the City, or third parties
with whom the City transacts business.
2. SERVICES
a. Services. Throughout the Term and at all times in connection with its actual or required performance
under this Agreement,MAPANYTHING shall, in accordance with all terms and conditions set forth in
this Agreement and each applicable Service Order Form,provide to the City and its Authorized Users
the following services("Services"):
i. the hosting, management and operation of the Service Software and other services for
remote electronic access and use by the City and its Authorized Users ("Hosted
Services") as described in one or more written, sequentially numbered, service order
forms specifically referencing this Agreement, including all Specifications set forth in
such service orders, which, upon their execution will be attached as part of a separate
Schedule to this Agreement and by this reference are incorporated in and made a part of
this Agreement(each,a"Service Order Form");
ii. service maintenance and support as set forth in Section 2(g) and in the Service Order
Form;and
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iii. such other services as may be specified in the applicable Service Order Form.
b. Service Order Form. For Services provided hereunder the City and MAPANYTHING shall complete
and execute the then applicable SOF which shall set forth the term of that SOF . Once executed by the
parties, each SOF along with this Agreement shall be deemed a separate agreement for the software
licenses and Services provided in the SOF. Should there be a conflict between the terms of the SOF
and this Agreement,the SOF shall govern. Nothing herein shall be construed or interpreted to obligate
either party to enter into any SOF with the other. An initial Service Order Form is attached hereto and
made a part hereof as Attachment A.
c. Customization Work. For the avoidance of doubt, to the extent MAPANYTHING provides
development and/or customization work to the City, this Agreement does not govern the terms and
conditions of any such prospective engagement. Should the City wish to engage MAPANYTHING to
perform such development and/or customization work, such work shall be governed under the terms
and conditions of a new Service Order Form.
d. Term and Termination of the SOF.The SOF shall be effective as of the date of the Acceptance Date
of the applicable SOF and shall continue until its expiration or termination in accordance with the
terms of the applicable SOF. Termination of any SOF shall not affect any other SOF then in effect
and the Agreement shall continue to govern such SOFs until they are terminated or performance
thereunder has been completed.
e. Payment of Services. The payment provisions for the license and/or Services provided are Net 30.
Forms of Payment accepted are Credit Card, Purchase Order, Check, Electronic Funds Transfer,Wire
from the City or ACH draft.
f. Provision of Services. Subject to the City's payment of all applicable fees and its compliance with the
terms of this Agreement, MAPANYTHING shall make the Services available to the City pursuant to
this Agreement and the applicable SOF.
g. User Subscriptions. Services that are User subscription-based may be accessed by no more than the
number of Users specified in the applicable SOF. Additional User subscriptions may be added by
written request by the City and issuance of a new SOF. Any User subscriptions added during the
subscription term will be prorated for the remainder of the subscription term in effect at the time the
additional User subscriptions are added and the added User subscriptions shall terminate on the same
date as the pre-existing User subscriptions. User subscriptions are for designated Users and cannot be
shared or used by more than one User, but may be reassigned to new Users replacing former Users
who no longer require ongoing use of the Services by written notice provided to MAPANYTHING.
Services that are site licenses require that each active User of SFDC be issued a license. For the
purpose of the license, the number of active users is evaluated on an annual basis to coincide with the
City's subscription renewal. The number of issued licenses will adjust to cover all active SFDC users.
All licenses expire at the end of the subscription term.
h. MAPANYTHING Responsibilities. MAPANYTHING shall: (i)provide to the City basic support for
the Services and licenses provided in a SOF at no additional charge except in the case of services
specifically indicated to be unsupported. MAPANYTHING will use commercially reasonable efforts
to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime by
which will be communicated to the City prior to such downtime, or (b) any unavailability caused by
circumstances beyond MAPANYTHING's reasonable control, including without limitation, acts of
God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor
problems (other than those involving MAPANYTHING employees), or Internet service provider
failures or delays. MAPANYTHING will provide the Services in accordance with applicable laws and
government regulations.
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i. Upgrades and Enhancements. MAPANYTHING reserves the right, in its sole discretion, to
automatically apply certain upgrades or updates to the Software and push such upgrades or updates to
the City.
3. THE CITY RESPONSIBILITIES. The City shall (i) be responsible for Users' compliance with this
Agreement,(ii)be solely responsible for the accuracy,quality, integrity and legality of the City Data and of
the means by which it acquired the City Data, (iii) use commercially reasonable efforts to prevent
unauthorized access to or use of the Services, and notify MAPANYTHING promptly of any such
unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and
applicable laws and government regulations. The City shall not(a)make the Services available to anyone
other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit
infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation
of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or
disrupt the integrity or performance of the Services or third-party data contained therein, or(f) attempt to
gain unauthorized access to the Services or their related systems or networks.
4. THIRD-PARTY PROVIDERS
a. Third Party Services. Service Software features that interoperate with Google services depend on the
continuing availability of the respective application programming interface ("API") and program for
use with the Services. If either company ceases to make the API or program available on reasonable
terms for the Services, MAPANYTHING may cease providing such Service features without entitling
the City to any refund, credit, or other compensation and without any liability on the part of
MAPANYTHING to the City. MAPANYTHING has the right in its sole discretion to replace Google
services with equivalent services for the purposes of continuity of Services.
To the extent MAPANYTHING discontinues the Services under this section or fails to replace Google
services with an equivalent service in order to continue providing the Services,the City may terminate
this Agreement and any open SOFs without any further liability to MAPANYTHING except for any
fees owed by the City to MAPANYTHING for Services provided through the date of termination.
b. End User License Agreement. By accepting this Agreement, the the City also accepts all third party
end user license agreements of any component,API,application, source code utilized or packaged and
delivered by the Service provided MAPANYTHING provides the City with such third party end user
license agreements if requested to do so in writing.
5. SERVICE TERMS.If the City is in breach of this Agreement,which breach is not cured within thirty(30)
days of notice of such breach provided by MAPANYTHING to the City, MAPANYTHING may, without
limiting its other rights and remedies,suspend the City's access to the Services upon notice to the City and
MAPANYTHING shall have no liability to the City with respect to any such suspension. The City's total
liability to MAPANYTHING for any reason shall be limited to such suspension of service and any fees
owed by the City to MAPANYTHING for services actually provided through date of such suspension.
6. PROPRIETARY RIGHTS
a. Reservation of Rights. Subject to the limited rights expressly granted hereunder, MAPANYTHING
reserves all rights, title and interest in and to the Service Software, including all related intellectual
property rights. No rights are granted to the City hereunder other than as expressly set forth herein.
b. Restrictions. the City shall not (i) permit any third party to access the Service Software except as
permitted herein or in a SOF, (ii) create Derivative Works based on the Service Software, (iii) copy,
frame or mirror any part or content of the Service Software, other than copying or framing on the
City's own intranets or otherwise for its own internal business purposes, (iv) reverse engineer the
Services, (v)access the Service Software in order to (a)build a competitive product or service, or(b)
copy any features, functions or graphics of the Services, (vi)remove or destroy any copyright notices
or other proprietary markings.
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c. Ownership of the City Data. As between MAPANYTHING and the City,the City exclusively owns
all rights,title and interest in and to all the City Data.
d. Ownership of Derivative Works. To the extent the City or its agents conceive or create Derivative
Works of the Service Software,the City acknowledges that such Derivative Works shall be solely and
exclusively owned by MAPANYTHING. The City will receive the same license rights in Derivative
Works as conveyed with regard to the Software Services pursuant to this Agreement. Otherwise, the
City shall have no right to use or otherwise exploit such Derivative Works.
e. Suggestions. MAPANYTHING shall have a royalty-free, worldwide, transferable, sub-licensable,
irrevocable, perpetual license to use or incorporate into the Service Software any suggestions,
enhancement requests, recommendations or other feedback provided by the City, including Users,
relating to the operation of the Service Software.
f. Federal Government End Use Provisions. MAPANYTHING provides the Service Software,
including related software and technology, for ultimate federal government end use solely in
accordance with the following: Government technical data and software rights related to the Services
include only those rights customarily provided to the public as defined in this Agreement. This
customary commercial license is provided in accordance with FAR 12.211 (Technical Data)and FAR
12.212 (Software)and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data
—Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer
Software Documentation). If a government agency has a need for rights not conveyed under these
terms, it must negotiate with MAPANYTHING to determine if there are acceptable terms for
transferring such rights, and a mutually acceptable written addendum specifically conveying such
rights must be included in any applicable contract or Agreement.
7. CONFIDENTIALITY
a. Definition of Confidential Information. As used herein, "Confidential Information" shall be
construed broadly and means all non-public, proprietary or confidential information disclosed by a
party("Disclosing Party")to the other party("Receiving Party"),whether orally or in writing, that is
designated as confidential or that reasonably should be understood to be confidential given the nature
of the information and the circumstances of disclosure. Confidential Information of the City shall
include the City Data related to City residents' personal information and/or attorney functions;
Confidential Information of MAPANYTHING shall include technical information, product plans and
designs, and business processes disclosed by MAPANYTHING. However, Confidential Information
(other than the City Data) shall not include any information that(i) is or becomes generally known to
the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the
Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed
to the Disclosing Party,(iii)is received from a third party without breach of any obligation owed to the
Disclosing Party, or(iv)was independently developed by the Receiving Party without reference to or
use of the Confidential Information of the Disclosing Party. Notwithstanding anything to the contrary
in this Agreement,the disclosure of any information by the City as may be required by law, including
but not limited to the Illinois Freedom of Information Act(5 ILCS 140/1 et seq.) shall not constitute a
breach of this Agreement.
b. Protection of Confidential Information. Except as otherwise permitted in writing by the City, (i)
MAPANYTHING shall use the same degree of care that it uses to protect the confidentiality of its own
confidential information of like kind(but in no event less than reasonable care) not to disclose or use
any Confidential Information of the City for any purpose outside the scope of this Agreement,and(ii)
MAPANYTHING shall not disclose Confidential Information of the City to any person or entity other
than its employees, contractors and agents who need access to such Confidential Information for
purposes consistent with this Agreement and who have signed confidentiality agreements with the City
containing protections no less stringent than those herein.
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c. Protection of City Data. MAPANYTHING shall maintain industry standard administrative,physical,
and technical safeguards for protection of the security, confidentiality and integrity of City Data.
MAPANYTHING shall not(a)disclose City Data except as compelled by law in accordance with the
"Compelled Disclosure" section below or as expressly permitted in writing by City, or (b) access or
otherwise use City Data except to provide the Services and prevent or address service or technical
problems,or at the City's request in connection with City support matters.
8. WARRANTIES,EXCLUSIVE REMEDIES AND DISCLAIMERS
a. MAPANYTHING Warranties. MAPANYTHING warrants that (i) the Services shall perform
materially in accordance with the User Guide, and (ii) subject to the "Third Party Services" section
above,the functionality of the Services will not be materially decreased during a subscription term.
b. Mutual Warranties. Each Party represents and warrants that:
i. it is a duly organized, validly existing and in good standing as a corporation or other
entity under the Laws of the jurisdiction of its incorporation or other organization;
ii. it will not transmit to the other Party any Malicious Code (except for Malicious Code
previously transmitted to the warranting party by the other party);
iii. the execution of this Agreement by its representative whose signature is set forth at the
end of this Agreement has been duly authorized by all necessary corporate or
organizational action of such Party;and
iv. when executed and delivered by both Parties, this Agreement will constitute the legal,
valid and binding obligation of such Party, enforceable against such Party in accordance
with its terms.
c. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8,
MAPANYTHING MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES PROVIDED
HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,AND ANY IMPLIED
WARRANTIES ARISING FROM THE COURSE OF DEALING OR COURSE OF
PERFORMANCE, AND MAPANYTHING HEREBY DISCLAIMS THE SAME. WITHOUT
LIMITING THE FOREGOING, MAPANYTHING DISCLAIMS ANY WARRANTY THAT
THE SERVICES MEET THE CITY'S REQUIREMENTS OR THAT SERVICES WILL BE
PROVIDED OR OPERATE UNINTERRUPTED OR ERROR-FREE.
9. MUTUAL INDEMNIFICATION
a. MAPANYTHING Indemnification. MAPANYTHING shall, at its own expense, indemnify, defend
and hold the City harmless from any claim, demand, cause of action,debt, liability or suit(i)alleging
that the Services as delivered by MAPANYTHING infringe any registered United States copyright,or
that MAPANYTHING has knowingly misappropriated any trade secret or other intellectual property
right of any other entity, including any losses, damages, or expenses arising from any such claim or
suit, or (ii) arising out of or relating to any breach of this Agreement by MAPANYTHING or any
wrongful act or omission or willful misconduct or violation of law by MAPANYTHING in connection
with this Agreement. the City shall provide MAPANYTHING with authority to proceed as
contemplated herein and reasonable assistance to settle and/or defend any such claim or suit,provided
that the City shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any
cooperation requested by MAPANYTHING.
b. City Indemnification.
i. The City shall, at its own expense, indemnify, defend and hold MAPANYTHING
harmless from any claim, demand, cause of action, debt, liability, allegation or suit
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arising out of or relating to the misuse or misappropriation of, or any use in violation of
this Agreement, of the Services by the City, including any losses, damages or expenses
arising from any such claim or suit. MAPANYTHING agrees to cooperate with the City
in the defense or settlement of any such claim or suit, provided that MAPANYTHING
shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any
cooperation requested by the City.
ii. The City agrees to indemnify,defend,and hold harmless MAPANYTHING,its directors,
officers, employees and agents, and defend any action brought against same with respect
to any claim,demand, cause of action,debt, liability,allegation or suit including without
limitation, reasonable attorneys' fees,to the extent that such action is based upon a claim
that any of the the City Data to be provided by the City hereunder infringes or violates
any rights of third parties, including without limitation, rights of publicity, rights of
privacy,patents,copyrights,trademarks,trade secrets,and/or licenses.
c. Indemnification Procedures. An indemnifying Party's indemnification obligations under this Section
9 are subject to the indemnified Party's(ies)' compliance with the following procedures: (1) the
indemnified Party(ies)must provide the indemnifying party with prompt written notice of such claim
or action, provided, however, that the indemnifying Party's obligations under this Section shall
continue even if the indemnified Party(ies)does not give the indemnifying Party such prompt notice of
any such liability, cost, damage, claim or allegation so long as such failure does not materially
prejudice the indemnifying Party;(2)the indemnifying Party shall have the right to control the defense
and negotiation of all claims or allegations; provided, however, that the indemnifying Party may not
settle any claim or allegation without the consent of the indemnified Party(ies) if such settlement
admits liability on the part of the indemnified Party(ies)or imposes any liability or obligation upon the
indemnified Party(ies), in each instance without the indemnified Party's(ies') prior written consent
(which consent shall not be unreasonably withheld or delayed); (3)the indemnified Party(ies)may, at
its/their expense, retain counsel to assist and observe the indemnifying Party's defense of such claim;
and (4) all indemnified Parties shall cooperate fully with the indemnifying Party in connection with
such claim, demand, cause of action, debt, liability, allegation or suit at the indemnifying Party's
expense.
d. Exclusive Remedy. This "Mutual Indemnification" section states the indemnifying Party's sole
liability to,and the indemnified Party's exclusive remedy against,the other Party for any type of claim
described in this Section.
10. LIMITATION OF LIABILITY
a. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY
HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES
OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR
PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER
ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER
SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW OR FOR
LIABILITY ARISING FROM A PARTY'S BREACH OF ITS OBLIGATIONS UNDER SECTION 9
(MUTUAL INDEMNIFICATION).
11. TERM AND TERMINATION
a. Term of Agreement. This Agreement shall terminate December 31, 2020; provided, however, that
the City shall have two (2) one-year options to extend this Agreement for a fourth and/or fifth year;
further provided, however, that this Agreement shall continue until all User subscriptions or licenses
granted in accordance with an applicable SOF have expired or been terminated.
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b. Term of User Subscriptions. User subscriptions commence on the start date specified in the City's
SOF to MAPANYTHING for such subscriptions and continue for the subscription term specified
therein.
c. Termination for Cause. A party may terminate this Agreement and any open SOF's for cause (i)
upon thirty(30)days'prior written notice to the other party of a material breach if such breach remains
uncured at the expiration of such 30-day period, or (ii) if the other party becomes the subject of a
petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or
assignment for the benefit of creditors.
d. Surviving Provisions. The following sections shall survive any termination or expiration of this
Agreement: Section 6 ("Proprietary Rights"), Section 7 ("Confidentiality"), Section 8
("Warranties, Exclusive Remedies and Disclaimers"), Section 9 ("Mutual Indemnification"),
Section 10 ("Limitation of Liability"), Section II(d) ("Surviving Provisions"), and Section 13
("General Provisions").
12. PAYMENT PROVISIONS
a. Payment Terms. Annual charges for each applicable SOF are due within thirty(30)days following
the full execution of the applicable SOF.
b. Interest on Late Payment.MAPANYTHING 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, pursuant to the Local Government Prompt
Payment Act,as amended(50 ILCS 50511, et seq.),or the Illinois Interest Act,as amended(815 ILCS
205/1,et seq.).
13. GENERAL PROVISIONS
a. Export Compliance. Each Party shall comply with the export laws and regulations of the United
States and other applicable jurisdictions in providing and using the Services. Without limiting the
foregoing, (i) each of MAPANYTHING and the City represents that it is not named on any U.S.
government list of persons or entities prohibited from receiving exports, and (ii) the City shall not
permit Users to access or use Services in violation of any U.S. export embargo, prohibition or
restriction.
b. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create
a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the
parties.
c. Further Assurances.Upon a Party's reasonable request,the other party shall,at the requesting Party's
sole cost and expense, execute and deliver all such documents and instruments, and take all such
further actions,necessary to give full effect to this Agreement.
d. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
e. Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals
hereunder shall be in writing and shall be deemed to have been given upon: (i)personal delivery, (ii)
the second business day after mailing, (iii) the second business day after sending by confirmed
facsimile, or(iv), except for notices of termination or an indemnifiable claim ("Legal Notices"), the
first business day after sending by email. Notices to MAPANYTHING shall be addressed to the
attention of its Chief Executive Officer with a copy to its General Counsel at the address listed at the
beginning of this Agreement. All notices to the City shall be addressed to Jeff Massey, 150 Dexter
Court,Elgin,Illinois 60120.
f. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under
this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the
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remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law
or in equity.
g. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be
contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish
the objectives of the original provision to the fullest extent permitted by law, and the remaining
provisions of this Agreement shall remain in effect.
h. Interpretation. Each Party acknowledges and agrees that this Agreement: (1)resulted from an"arms'
length"negotiation,and(2)will not be construed in favor of or against a Party by reason of the identity
of the drafter or the extent to which any party or its advisors participated in its preparation. Section
headings, and cross-document section references within and among the SOF, are provided for
convenience only and are not to be used to definitively construe or interpret this Agreement. The term
"including" as used in this Agreement means "including, but not limited to."References to(a) a time
period or to a point in time will be to the local jurisdiction where the Service Software is provided,(b)
words or defined terms in the singular include the plural case, and vice versa, and(c) a dollar amount
or currency will be such amount in United States Dollars unless stated otherwise in such reference.
i. Assignment. Neither party may assign any of its rights or obligations hereunder,whether by operation
of law or otherwise, without the prior written consent of the other party (not to be unreasonably
withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety
(including all Order Forms),by providing reasonable written notice to the other party,to its Affiliate or
in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of
its assets not involving a direct competitor of the other party. A party's sole remedy for any purported
assignment by the other party in breach of this paragraph shall be,at the non-assigning party's election,
termination of this Agreement and any open SOF upon written notice to the assigning party. Subject to
the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective
successors and permitted assigns.
j. Governing Law. This Agreement,and any disputes arising out of or related hereto,shall be governed
exclusively by the internal laws of the State of Illinois, without regard to its conflicts of laws rules or
the United Nations Convention on the International Sale of Goods.
k. Venue; Waiver of Jury Trial. Venue for the resolution of any disputes or the enforcement of any
rights arising out of or in connection with this Agreement shall be in the Circuit Court of Kane County,
Illinois,without jury. MAPANYTHING 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
MAPANYTHING agrees that service by first class U.S. mail to the entity and address provided for
herein shall constitute effective service.
1. Entire Agreement. This Agreement constitutes the entire agreement between MAPANYTHING and
the City and supersedes all prior and contemporaneous agreements, proposals or representations,
written or oral, concerning its subject matter between MAPANYTHING and the City. No
modification, amendment, or waiver of any provision of this Agreement shall be effective unless in
writing and signed by the party against whom the modification,amendment or waiver is to be asserted.
However, to the extent of any conflict or inconsistency between the provisions in the body of this
Agreement and any exhibit or addendum hereto or any SOF, the terms of such exhibit, addendum or
SOF shall prevail. Notwithstanding any language to the contrary therein,no terms or conditions stated
in the City order documentation (excluding SOF) shall be incorporated into or form any part of this
Agreement,and all such terms or conditions shall be null and void.
14. 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
9
MapAnything'
respects as an original document. The signature of any party on a copy of this Agreement transmitted by
fax machine or e-mail shall be considered for these purposes as an original signature and shall have the
same legal effect as an original signature. Any such faxed or e-mailed copy of this Agreement shall be
considered to have the same binding legal effect as an original document. At the request of either party any
fax or e-mail copy of this Agreement shall be re-executed by the parties in an original form. No party to
this Agreement shall raise the use of fax machine or e-mail as a defense to this Agreement and shall forever
waive such defense.
15. COMPLIANCE WITH LAWS. Notwithstanding any other provision of this Agreement, it is expressly
agreed and understood that in connection with the performance of this Agreement,MAPANYTHING 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, MAPANYTHING hereby certifies,represents and warrants
to the City that all of MAPANYTHING'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.
MAPANYTHING 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. The City shall have the right to audit any records in
the possession or control of MAPANYTHING to determine MAPANYTHING's compliance with the
provisions of this section. In the event the City proceeds with such an audit,MAPANYTHING shall make
available to the City MAPANYTHING's relevant records at no cost to the City. The City shall pay any
and all costs associated with any such audit.
CITY O MAPANYTHING,INC.
By: By:
Print Name: Richard G. Kozal Print Name: Richard J. Holmes
Title: City Manager Title: General Counsel and Corp.Secretary
Date: April 26, 2017
Date: March 30,2017
10
® ATTACHMENT A
MapAnything� Quote
Quote Number 00005061 Created Date 3/28/2017
Company Address 5200 77 Center Drive.#400 Expiration Date 4/28/2017
Charlotte.NC 28217
US
Prepared By Noah Parrish Contact Name Jeff Massey
Phone (704)248-6640 Phone (847)931-5642
Email nparrish @mapanything.com Email massey-j@cityofelgin.org
Bill To Name City of Elgin Billing Contact Jeff Massey
Bill To 150 Dexter Ct. Billing Contact (847)931-5642
Elgin,IL 60120 Phone
US Billing Contact EmailmasseyJ @cityofelgin.org
Billing Terms Annual
Monthly List Monthly Discounte. Monthly Total
Product Date Quantity Discount
Price Price Price,
MapAnything For Communities-View Only 5/1/2017 USD 875.00 1.00 USD 875.00 USD 875.00
MapAnything Live Connect-JBUS-
LMU4230 5/1/2017 USD 39.95 38.00 22.35% USD 31.02 USD 1,178.80
LMU423
MapAnything Live Connect-JBUS-
LMU4230 6/1/2017 USD 39.95 19.00 22.35% USD 31.02 USD 589.40
MapAnything Live Connect-OBD2- 5/1/2017 USD 29.95 112.00 25.81% USD 22.22!, USD 2,488.63
LMU3030
One-time Service: $6,500.00 Fee Outlined on Page 2
First Year Total:$40,464.46+$6,500.00 in Custom Development
Second Year Total:$61,581.36
Third Year Total:$61,581.36
Contract Term 32 Months+two consecutive 12-month city options.
Terms&Conditions
Special Terms ****3 year agreement with option to extend in years 4 and 5****
****Year 1 is prorated*****
***5%Price Increase Option in Years 4&5****
mapanything.com 1866.547.8016 15200 77 Center Drive#400 Charlotte,NC 28217
4)
MapAnything' Quote
Quote Number 00005061 Created Date 3/28/2017
Company Address 5200 77 Center Drive.#400 Expiration Date 4/28/2017
Charlotte.NC 28217
US
Prepared By Noah Parrish Contact Name Jeff Massey
Phone (704)248-6640
Email nparrish @mapanything.com
Bill To Name City of Elgin Billing Contact Jeff Massey
Bill To 150 Dexter Ct. Billing Contact (847)931-5642
Elgin.IL 60120 Phone
US
Billing Contact EmailmasseyJ @cityofelgin.org
Billing Terms Upon Completion
Product Subtotal
Custom Development for Saleforce Communities USD 6,500.00
Total Price USD 6.500.00
mapanything.com 1866.547.8016 5200 77 Center Drive#400 Charlotte,NC 28217
MapAnything� Quote
Signature
Customer _-
MapAnything, Inc.
Name _
Name Richard J. Holmes
Title
Title General Counsel and Corp. Secretary
Date
Date March 30, 2017
Authorized Signature
Authorized Signature
mapanything.com 866.547.8016 5200 77 Center Drive#400 Charlotte,NC 28217