17-8 Resolution No. 17-8
RESOLUTION
AUTHORIZING EXECUTION OF A MASTER SOFTWARE SUBSCRIPTION
AGREEMENT WITH FONTEVA, INC. FOR CLOUD-BASED
SOFTWARE APPLICATIONS
BE IT 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 Software Subscription Agreement and related documents on behalf of the City of Elgin
with Fonteva, Inc. for cloud-based software applications, a copy of which is attached hereto and
made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: January 25, 2017
Adopted: January 25, 2017
Omnibus Vote: Yeas: 9 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
FONTEVA,INC.CUSTOMER ORDER FORM
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Primary Project Contact Representative: Billing Contact:
Company Name: City of Elgin Company Name: Same
Name: Jeff Massey Name:
Address: 150 Dexter Court Address:
City,State/Province: Elgin,IL City,State/Province
Country: US Country:
Zip/Mail Code 60120 Zip/Mail Code
Telephone: 847-931-5642 Telephone:
Email Address: massev j1 cityofelain.org Email Address:
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Description Quantity Monthly Price Annual Price
CitizenNation org wide $12,083.33 $145,000.00
AssembleEvents org wide included
Point of Sale Software,
Integration with CitizenNation org wide included
Utility Billing org wide included
*Payment Gateway 1 $20.00 FREE
Total Price $145,000.00
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Payment Terms: Upon Receipt
Initial Payment Due: $145,000.00
Contract Terms: See Below Notation
Renewal payments for the Software Services fees will be due 45days prior to the renewal date.
Subscription Terms: 3 year agreement that renews at City's option for additional 1 year increments thereafter.
There is no termination for convenience. Notice of non-renewal shall not be construed as constituting a termination
for convenience. The price of the current software services shall increase on the 3rd and 4th anniversary of the
agreement by the CPI-U for the surrounding Elgin,IL region. Any additional software services acquired by the City
of Elgin will be facilitated by a separate order form and incorporated into the existing term dates of the software
services.
• 1 payment gateway is included in initial CitizenNation Subscription activation. Additional payment gateways are
$240.00 annually
By signing this order form/contract you, an authorized representative of City of Elgin, accept the terms defined
above and represented against the Fonteva Master Software Subscription Agreement.
Executed by Customer: C of Elgin
Authorized Signature: 6:
y Date: January 25, 2017
Name: Richard G. Kozal Title: City Manager
Executed by Fonteva:
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MASTER SOFTWARE SUBSCRIPTION AGREEMENT
This Agreement is hereby made and entered into this First day of January, 2017,by and between
the City of Elgin, Illinois, a municipal corporation (hereinafter, "You" or "Your") and Fonteva,
Inc.,a Delaware corporation(hereinafter, "Us", "We"or"Our").
NOW, THEREFORE, 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:
THIS MASTER SOFTWARE SUBSCRIPTION AGREEMENT AND ADMINISTRATIVE
SUPPORT STATEMENT OF WORK ATTACHED HERETO AND MADE APART HEREOF
AS ATTACHMENT A ("AGREEMENT") GOVERNS YOUR ACQUISITION AND USE OF
OUR SOFTWARE SERVICES
You may not access the Software Services if You are Our direct competitor, except with Our
prior written consent. In addition, you may not access the Software Services if for purposes of
monitoring their availability, performance or functionality or for any other benchmarking or
competitive purposes.
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under
common control with 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.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or
malicious code,files,scripts,agents or programs.
"Non-Fonteva CitizenNation Applications" means online applications and offline software
products that are provided by entities or individuals other than Us and are clearly identified as
such,and that interoperate with the Services.
"Order Form" means the documents for placing orders hereunder, including addenda thereto,
that are entered into between You and Us or any of Our Affiliates from time to time, including
addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees
to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms
shall be deemed incorporated herein by reference.
"Purchased Services" or "Services" means Software Services that You or Your Affiliates
purchase under an Order Form and are made available by Us online via the customer login for
Fonteva CitizenNation.
"Users" means individuals who are authorized by You to use the Services, for whom
subscriptions to a Service have been ordered, and who have been supplied user identifications
and passwords by You (or by Us at Your request). Users may include but are not limited to Your
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employees, consultants, contractors and agents, and third parties with which You transact
business.
"We," "Us"or"Our" means Fonteva, Inc.or Fonteva CitizenNation.
"You" or "Your" means the company or other legal entity for which you are accepting this
Agreement,and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to the Purchased
Services.
2. PURCHASED SERVICES
2.1. Provision of Purchased Services. We shall make the Purchased Services available to
Your pursuant to this Agreement and their relevant Order Forms during a subscription term.
You agree that Your purchases hereunder are neither contingent on the delivery of any future
functionality or features nor dependent on any oral or written public comments made by Us
regarding future functionality or features other than as specifically noted on the Order Form.
2.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i)
Services are purchased as User subscriptions and may be accessed by no more than the specified
number of Users, (ii) additional User subscriptions may be added during the applicable
subscription term at the same pricing as that for the pre-existing subscription thereunder,
prorated for the remainder of the subscription term in effect at the time the additional User
subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date
as the pre-existing subscriptions. User subscriptions are for designated Users only 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.
3. USE OF THE SERVICES
3.1. Our Responsibilities. We shall (i)provide Our basic support for the Purchased Services
to You at no additional CitizenNation, and/or upgraded support if purchased separately, (ii) use
commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days
a week,except for: (a) planned downtime (of which We shall give at least 6 hours notice via the
Purchased Services and which We shall schedule to the extent practicable during the weekend
hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time),or(b)any unavailability caused
by circumstances beyond our reasonable control, including without limitation, acts of God, acts
of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor
problems (other than those involving Our employees), Internet services provider failures or
delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance
with applicable laws and government regulations.
3.2. Our Protection of Your Data. We shall maintain appropriate administrative, physical,
and technical safeguards for protection of the security, confidentiality and integrity of Your Data.
We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in
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accordance with Section 7.3 (Compelled Disclosure) or as expressly permitted in writing by
You, or (c) access Your Data except to provide the Services and prevent or address service or
technical problems,or at Your request in connection with customer support matters.
3.3. Your Responsibilities. You shall (i) be responsible for Users' compliance with this
Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the
means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent
unauthorized access to or use of the Services, and notify Us 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. You 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. NON-FONTEVA CITIZENNATION PROVIDERS
4.1. Non-Fonteva CitizenNation Applications and Your Data. If You install or enable
Non-Fonteva CitizenNation Applications for use with Services, You acknowledge that We may
allow providers of those Non-Fonteva CitizenNation Applications to access Your Data as
required for the interoperation of such Non-Fonteva CitizenNation Applications with the
Services. We shall not be responsible for any disclosure, modification or deletion of Your Data
resulting from any such access by Non-Fonteva CitizenNation Application providers. The
Services shall allow You to restrict such access by restricting Users from installing or enabling
such Non-Fonteva CitizenNation Applications for use with the Services.
4.2, Integration with Non-Fonteva CitizenNation Services. The Services may contain
features designed to interoperate with Non-Fonteva CitizenNation Applications (e.g.,
Google, Facebook or Twitter applications). To use such features, You may be required to
obtain access to such Non-Fonteva CitizenNation Applications from their providers. If the
provider of any such Non-Fonteva CitizenNation Application ceases to make the Non-
Fonteva CitizenNation Application available for interoperation with the corresponding
Service features on reasonable terms, We may cease providing such Service features
without entitling You to any refund,credit or other compensation.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise
specified herein or in an Order Form, (i) fees are based on Services purchased and not actual
usage, (ii)payment obligations are non-cancelable and fees paid are non-refundable, and(iii)the
number of User subscriptions purchased cannot be decreased during the relevant subscription
term stated on the Order Form. User subscription fees are based on monthly periods that begin
on the subscription start date and each monthly anniversary thereof, therefore, fees for User
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subscriptions added in the middle of a monthly period will be charged for that full monthly
period and the monthly periods remaining in the subscription term.
5.2. Invoicing and Payment. You will provide Us with a valid purchase order or alternative
document reasonably acceptable to Us. We will invoice You in advance and otherwise in
accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced
charges are due net 30 days from the invoice date but no later than the date of your Business
Process Review. You are responsible for providing complete and accurate billing and contact
information to Us and notifying Us of any changes to such information.
5.3. Overdue Charges. If any charges are not received from You by the due date, then at
Our discretion, (a) such charges may accrue late interest at the rate of.5% of the outstanding
balance per month, or the maximum rate permitted by law, whichever is lower, from the date
such payment was due until the date paid, and/or (b) We may condition future subscription
renewals and Order Forms on payment terms shorter than those specified in Section 5.2
(Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by You under this or
any other agreement for Our services is 30 or more days overdue, We may without limiting Our
other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that
all such obligations become immediately due and payable,and suspend Our services to You until
such amounts are paid in full. We will give You at least 7 days'prior notice that Your amount is
overdue, in accordance with Section 13.2 (Manner of Giving Notice),before suspending services
to You.
5.5. Payment Disputes. We shall not exercise Our rights under Section 5.3 (Overdue
Charges) or 5.4 (Suspension of Service and Acceleration) if You are disputing the applicable
charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.6. Taxes. Unless otherwise state,Our fees do not include any taxes, levies,duties or similar
governmental assessments of any nature including but not limited to value added, sales, use or
withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction
(collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases
hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible
under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You
provide us with valid tax exemption certificate authorized by the appropriate taxing authority.
For clarity, We are solely responsible for taxes assessable against it based on Our income,
property and employees.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights in Services. Subject to the limited rights expressly granted
hereunder, We reserve all rights, title and interest in and to the Services, including all related
intellectual property rights. No rights are granted to You hereunder other than as expressly set
forth herein.
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6.2. Restrictions. You shall not (i) permit any third party to access the Services except as
permitted herein or in an Order Form, (ii)create derivate works based on the Services except as
authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than
copying or framing on Your own intranets or otherwise for Your own internal business purposes,
(iv)reverse engineer the Services,or(v)functions or graphics of the Services.
6.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User
creates applications or program code using the Services, You authorize Us to host, copy,
transmit, display and adapt such applications and program code, solely as necessary for Us to
provide the Services in accordance with this Agreement. Subject to the above, We acquire no
right,title or interest from You or Your licensors under this Agreement in or to such applications
or program code, including any intellectual property rights therein.
6.4. Your Data. Subject to the limited rights granted to You hereunder, We acquire no right,
title or interest from You or Your licensors under this Agreement in or to Your Data, including
any intellectual property rights therein.
6.5. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to
use and incorporate into the Services any suggestions, enhancement requests, recommendations
or other feedback provided by You, including Users,relating to the operation of the Services.
6.6. Federal Government End Use Provisions. We provide the Services, 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 Us 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
7.1. Definition of Confidential Information. As used herein, "Confidential Information"
means all 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. Your Confidential Information shall include Your Data, Our
Confidential Information shall include the Services, and Confidential Information of each party
shall include the terms and conditions of this Agreement and all Order Forms,as well as business
and marketing plans, technology and technical information, product plans and designs, and
business processes disclosed by such party. However Confidential Information (other than Your
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
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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.
7.2. Protection of Confidential Information. The Receiving Party 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) (i) not to use any Confidential Information of the
Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as
otherwise authorized by the Disclosing Party in writing, to limit access to Confidential
Information of the Disclosing Party to those of it and its Affiliates' employees, contractors and
agents who need such access for purposes consistent with this Agreement and who have signed
confidentiality agreements with the Receiving Party containing protections no less stringent than
those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any
third party other than its Affiliates and their legal counsel and accountants without the other
party's written consent.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of
the Disclosing Party if it is compelled by law to do so. Receiving Party must use its best efforts
to provide notice of a request for Confidential Information to the non-disclosing party as soon as
possible.
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and
have the legal power to do so, (ii) the Services shall perform materially in accordance with the
User Guide, (iii) subject to Section 4.2 (Integration with Non-Fonteva CitizenNation Services),
the functionality of the Services will not be materially decreased during a subscription term,and
(iv) We will not transmit Malicious Code to You,provided it is not a breach of this subpart(v) if
You or a User uploads a file containing Malicious Code into the Services and later downloads
that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy
shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or
Payment upon Termination)below.
8.2. Your Warranties. You warrant that You have validly entered into this Agreement and
have the legal power to do so.
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY
MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW.
8.4. Non-GA Services. From time to time, We may invite You to try, at no charge, Our
products or services that are not generally available to Our Customers ("Non-GA Services").
You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be
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clearly designated as beta, pilot, limited release, developer preview, non-production or by a
description of similar import. Non-GA Services are provided for evaluation purposes and not for
production use, are not supported, may contain bugs or errors, and may be subject to additional
terms. NON-GA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND
ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may
discontinue Non-GA Services at any time in Our sole discretion and may never make them
generally available.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or
proceeding made or brought against You by a third party alleging that the use of the Services as
permitted hereunder infringes or misappropriates the intellectual property rights of a third party
(a "Claim Against You") and shall indemnify You for any damages, attorney fees and costs
finally awarded against You as a result of, and for amounts paid by You under a court-approved
settlement of, a Claim Against You provided that You(a)promptly give Us written notice of the
Claim Against You(b) give Us sole control of the defense and settlement of the Claim Against
You (provided that We may not settle any Claim Against You unless the settlement
unconditionally releases You of all liability), and (c) provide to Us all reasonable assistance, at
Our expense. In the event of a Claim Against You,or if We reasonably believe the Services may
infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the
Services so that they no longer infringe or misappropriate without breaching Our warranties
under "Our Warranties" above, (ii) obtain a license for Your continued use of the Services in
accordance with this Agreement,or(iii)terminate Your User subscription for such Services upon
30 days' written notice and refund to You any prepaid fees covering the remainder of the term of
such User subscription after the effective date of termination.
9.2. Indemnification. You shall defend Us against any claim, demand, suit or proceeding
made or brought against Us by a third party alleging that Your Data or Your use of the Services
in breach of this Agreement infringes or misappropriates the intellectual property rights of a third
party or violates applicable law(a"Claim Against Us")and shall indemnify Us for any damages,
attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us
under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give
You written notice of the Claim Against Us (b) give You sole control of the defense and
settlement of the Claim Against Us (provided that You may not settle any Claim Against Us
unless the settlement unconditionally releases Us of all Iiability), and (c) provide to You all
reasonable assistance,at Your expense.
9.3. Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying
party's sole liability to,and the indemnifying party's exclusive remedy against,the other party for
any type of claims described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY
SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT
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(WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF
LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY
YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED
THAT IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT
OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR
UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID
BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT
OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENTS FOR PURCHASED
SERVICES).
10.2. 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.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement continues until all User subscriptions granted in
accordance with this Agreement have expired or been terminated, at which point this Agreement
shall terminate.
11.2. Term of Purchased User Subscription. User subscriptions purchased by You
commence on the start date specified in the applicable Order Form and continue for the
subscription term specified therein. Except as otherwise specified in the applicable Order
Form, all User subscriptions shall automatically renew for additional periods equal to one
year unless either party gives the other notice of non-renewal at least 45 days before the
end of the relevant subscription term. The per-unit pricing during any such renewal term
shall be the same as that during the prior term unless We have given You written notice of
a pricing increase at least 75 days before the end of such prior term, in which case the
pricing increase shall be effective upon renewal and thereafter.
11.3. Termination for Cause. A party may terminate this Agreement for cause (i) upon 30
days written notice to the other party of a material breach of such breach remains uncured at the
expiration of such period,or(ii)if the other party becomes the subject of a petition in bankruptcy
or any other proceedings relating to insolvency, receivership, liquidation or assignment for the
benefit of creditors.
11.4. Refund or Payment Upon Termination. Upon any termination for cause by You, We
shall refund You any prepaid fees covering the remainder of the term for all subscriptions after
the effective date of termination. Upon any termination for cause by Us, You shall pay any
unpaid fees covering the remainder of the term of all Order Forms after the effective date of
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termination. In no event shall any termination relieve You of the obligation to pay any fees
payable to Us for the period prior to the effective date of termination.
11.5. Return of Your Data. Upon request by You made within 30 days after the effective
date of termination of a Purchased Services subscription, We will make available to You for
download a file of Your Data in comma separated value (.csv) format along with attachments in
their native format. After such 30 day period, We shall have no obligation to maintain or
provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data
in Our systems or otherwise in Our possession or under Our control.
11.6. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), 6
(Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10
(Limitation of Liability), 11.4 (Refund or Payment Upon Termination), 11.5 (Return of Your
Data), 12 (Who You are Contracting With, Notices, Governing Law and Jurisdiction) and 13
(General Provisions)shall survive any termination or expiration of this Agreement.
12. WHO YOU ARE CONTRACTING WITH,NOTICES AND GOVERNING LAW
12.1. General. Notices pursuant to this Agreement shall be directed to:
FOR US: FOR YOU:
Fonteva, Inc. Jeff Massey, ITS Director
Controller City of Elgin
4420 North Fairfax Drive,Suite 500 150 Dexter Court
Arlington,VA 22203 Elgin, IL 60120
accounting@fonteva.com massey j @cityofelgin.org
12.2. Manner of Giving 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) U.S. Mail transmission, (ii)the fifth business day after mailing,or(iii)the first business
day after sending by e-mail (provided e-mail shall not be sufficient for notices of termination or
an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing
contact designated by You. All other notices to You shall be addressed to the relevant Services
system administrator designated by You.
12.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable
governing law of the State of Illinois without regard to choice or conflicts of law rules. 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.
We hereby irrevocably consent 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 We agree that
service by first class U.S. mail to the entity and address provided for herein at Section 12.1 shall
constitute effective service.
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12.4. Waiver of Jury Trial. Each party herby waives any right to jury trial in connection with
any action or litigation in any way arising out of or related to this Agreement.
13. GENERAL PROVISIONS
13.1. Export Compliance. The Services, other technology We make available, and
derivatives thereof may be subject to export laws and regulations of the United States and other
jurisdictions. Each party represents that it is not named on any U.S. government denied-party
list. You shall not permit Users to access or use Services in a U.S.-embargoed country (currently
Cuba, Iran,North Korea,Sudan or Syria)or in violation of any U.S.export law or regulation.
13.2. 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.
13.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.4. Waiver. No failure or delay by either party in exercising any right under this Agreement
shall constitute a waiver of that right.
13.5. 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.
13.6. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other
costs incurred by Us to collect any fees or charges due Us under this Agreement following Your
breach of Section 5.2(Invoicing and Payment).
13.7. 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), without consent of 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 upon written notice to the
assigning party. In the event of such a termination, We shall refund to You any prepaid fees
covering the remainder of the term of all subscriptions after the effective date of termination.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their
respective successors and permitted assigns.
13.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all
Order Forms, constitutes the entire agreement between the parties and supersedes all prior and
contemporaneous agreements, proposals, or representations, written or oral, concerning its
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subject matter. No modification,amendment,or waiver of any provision of this Agreement shall
be effective unless in writing and either signed or accepted electronically 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 Fonteva Order Form, the terms of such exhibit, addendum or Fonteva
Order Form shall prevail.
14. INSURANCE
Fonteva shall, at its own expense,procure and maintain in full force and effect during the term of
this Agreement,policies of insurance,of the types and in the minimum amounts as follows,with
responsible insurance carriers duly qualified in those states(locations) where the Services are to
be performed, covering the operations of Fonteva, pursuant to this Agreement: commercial
general liability ($1,000,000 per occurrence, $2,000,000 aggregate); excess liability($2,000,000
per occurrence, $2,000,000 aggregate); workers' compensation (statutory limits) and employers'
liability ($500,000 per accident); and professional liability ($1,000,000 per occurrence,
$1,000,000 aggregate).
15. ELECTRONIC SIGNATURE
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 a-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 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.
16. 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, Fonteva 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, Fonteva hereby certifies, represents and
warrants to the City that all of Fonteva'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. Fonteva 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 Fonteva to determine Fonteva's
compliance with the provisions of this section. In the event the City proceeds with such an audit,
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Fonteva shall make available to the City Fonteva's relevant records at no cost to the City.
Fonteva shall pay any and all costs associated with any such audit up to$800.
IN WITNESS WHEREOF, for adequate consideration and intending to be legally bound, the
parties have caused this Agreement to be executed by their duly authorized representatives as set
forth below.
City of El' Fonteva,Inc.
By: L4L �(: By: —.411 Name: Richard G. Kozal Name: Douglas Holbrook
Title: City Manager Title: Controller
Date: January 25, 2017 Date: /,//O O77
ATTACHMENT A
ADMINISTRATIVE SUPPORT STATEMENT OF WORK
This STATEMENT OF WORK ("SOW") is entered into between Fonteva, Inc., a Delaware
corporation, located at 4420 N. Fairfax Drive, Suite 500, Arlington, VA 22203 ("Fonteva") and
City of Elgin, Illinois, a municipal corporation, located at 150 Dexter Court, Elgin, IL 60120
("Client") as of 1/1/2017 (the "SOW Effective Date") pursuant to the Master Software Services
Agreement ("MSSA")dated 1/1/2017 (the "Agreement")between the parties. Terms used herein
and not otherwise defined shall have the meanings as defined in the Agreement.
Pricing contained in this SOW will become effective on the lat of the month following the SOW
Effective Date.
PRODUCT SUPPORT OVERVIEW
Support of the CitizenNation Product is included as part of standard support with Fonteva and
Product Support will not be charged to the Client's Administrative Support hours. Fonteva
Product Support includes addressing all product-related bugs or questions concerning Standard
Fonteva manage package functionality to include:
• Any product defects reported to Fonteva support,including:
o Time spent reproducing and identifying the cause of the product defect
o Time spent fixing product defect
• General questions about the product, answered and resolved within 15 minute timeframe
• First 30 minutes of Rough Order of Magnitude (ROM/LOE) support for one resource
(Typically a CSM and Developer will be assigned to provide the ROM/LOE)
• Documenting product suggestions
Reported problems will be categorized into the following severity levels:
• SEVERITY 1 — CRITICAL BUSINESS IMPACT: The impact of the reported
deficiency is such that the Client is unable to either use Products or reasonably continue
work using Products. The impact has stopped or otherwise made unusable a critical work
process such as the ability to receive or process financial transactions. Fonteva shall
commence work on resolving the deficiency within four (4) hours of notification and
shall engage staff outside business hours until an acceptable resolution is achieved.
• SEVERITY 2 — SIGNIFICANT BUSINESS IMPACT: Important features of Products
are not working and there are no acceptable, alternative solutions. While other areas of
the Products are not impacted, the reported deficiency has created a significant, negative
impact on the Client's productivity or service level. Fonteva shall commence work on
resolving the deficiency within one (1) business day of notification and shall engage staff
during business hours until an acceptable resolution is achieved.
• SEVERITY 3 — SOME BUSINESS IMPACT: Important features of the Products are
unavailable, but an alternative solution is available or nonessential features of the
Products are unavailable with no alternative solution. The customer impact,regardless of
product usage, is minimal loss of operational functionality or implementation resources.
Fonteva shall commence work on resolving the deficiency within three (3)business days
of notification and shall engage staff during business hours until an acceptable resolution
is achieved.
• SEVERITY 4 — MINIMAL BUSINESS IMPACT: The Client submits a Product
information request, software enhancement or documentation clarification which has no
operational impact. The implementation or use of the Products by the Client is
continuing and there is no negative impact on productivity. Fonteva shall provide an
initial response regarding the request within one (1)week.
ADMINISTRATIVE SUPPORT OVERVIEW
Additional requests outside of the Fonteva Member Nation managed package will be considered
Administrative Support and will be billed to "Client" on a monthly basis. Fonteva will notify
"Client" in the event that a case is billable,however,requests initiated by "Client" that fall within
the guidelines of billable work will be considered billable.
Additional details for billable support services covered by the Administrative Support
Engagements(ASE) are outlined in Exhibit I.
Examples of InScope Services for Administrative Support:
• Modification,changes or fixes to configuration
• Modification,changes or fixes to the data model
• Modification,changes or fixes to customizations
• User maintenance
• Security model management
• Modification of standard objects
• Modification of specialized features
• Analytics support
• Template support
• AppExchange package support
• Feature activation requests
• Salesforce.com Premier Support management
• Data services
• Desktop application support
• Google Apps
• Training
• Other including Google Apps,Chatter, Salesforce Mobile, and Outlook
Excluded Services for Administrative Support:
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New work that is estimated to take longer than 16 hours of work will be reviewed with the
customer and covered under an additional work order provided by Fonteva.
Additional Terms:
• No-show appointments or appointments cancelled with less than 4 hours notice will
deduct the greater of 1 hour or 50% of the cancelled scheduled appointment time from
the available support plan balance.
• These services are governed by our Master Software Services Agreement dated 1/1/2017.
Client may contact us for Administrative Support via the following contact methods:
• Web Case Logging(24 X 7 X 365)
• Email Support Logging(24 X 7 X 365)
• Phone Support(8:00 to 6:30 ET, business work days or based on the local business hours
of your assigned consultant)
Billable Administrative Support Fees
Based on the assumptions contained in Exhibit I, attached hereto, Fonteva shall provide the
Administrator Support Services outlined in Exhibit I and invoice CLIENT for billable work as
follows:
• The billable rate will be$210.00 per hour
• Services will be invoiced at the hourly rate for the resources assigned based on actual
hours of effort and invoiced no more than twice monthly as terms stipulated in the Master
Software Service Agreement dated 1/1/2017.
Project Related Expenses
Client shall reimburse the actual and reasonable out-of-pocket expenses of Fonteva associated
with travel related to the Services hereunder and such other actual and reasonable out-of-pocket
expenses approved in advance by Client. Mileage and tolls shall be invoiced at IRS-approved
rates. Out of town travel,airfare,hotel,ground transportation and meal expenses will be billed at
cost in accordance with Fonteva's Travel and Expense policy attached hereto as Exhibit II.
Fonteva's travel fee is$100/hour for travel time.
Purchase Order
Client agrees to the following(select one):*
Yes: Client does require a purchase order(PO).
PLEASE ATTACHED DOCUMENTED EVIDENCE OF A PO (i.e. Copy of
Actual PO, Screenshot, etc.). If CLIENT requires PO numbers on invoices from
vendors, Fonteva will not begin to resource your project until we receive a
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hardcopy/electronic copy of the PO. If a hardcopy/electronic copy of the PO is
not available, an email from your Accounts Payable department with the PO
number will be sufficient. Therefore, to avoid any delays in scheduling resources
for your project,please request your internal PO as soon as possible and provide it
with your executed SOW.
No: Client does not require a purchase order.
If no choice is selected,Client agrees that no PO will be required.
Account Payable Contact Information
All invoices for reimbursable travel expenditures and for Services Fee shall be sent via email to:
Primary Project Contact Representative
Address
City, State/Province
Country
Zip/Mail Code
Telephone
Email Address
Accounts Payable Contact Same as Above
Address
City, State/Province
Country
Zip/Mail Code
Telephone
Email Address
Termination
Termination of this agreement shall be in accordance with terms contained in the Master
Software Service Agreement dated 1/1/2017.
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EXHIBIT I ADMINISTRATIVE SUPPORT SERVICES
FONTEVA ADMINISTRATIVE SUPPORT ENGAGEMENTS(ASE)
Whether you've just deployed or have been live with Fonteva solutions for some time, we
understand that to best leverage your investment in your people,processes and subscriptions,you
need cost-effective and skilled administrative support that can take care of your needs right now.
Our Administrative Support Engagements provide you added speed and confidence towards
achieving your goals.
Important Note: Fonteva Product Support is ALWAYS included at no additional charge.
Product Support includes addressing software bugs or questions concerning STANDARD
Fonteva application functionality.
• Estimated Cost Per Year (Time and Materials engagement) Fonteva recommends to
set aside a budgeted amount for yearly Fonteva CitizenNation Administrative Support.
• Hourly Rate 5210 — Work performed will be deducted from your hours balance at the
rate shown.
Billed in quarter-hour increments —Some requests can be handled in as few as 15-30
minutes by our Fonteva experts. Customers will ONLY be billed for hours used.
Service Modes(via web conference)
• Side-by-Side Coaching/Training — We are happy to roll-up our sleeves and schedule
time to walk you through any issues so we get it fixed and get you trained at the same
time!
• Reactive Response to Customer Logged Requests — You can log a case with us
through our support portal or send an email to our helpdesk(ask your Customer Success
Manager for login instructions). These options are available 24 hours a day, 7 days a
week, 365 days per year and will be immediately acknowledged with a case #. Our
Fonteva experts will work your request and confirm by email when it is resolved. You
can always log into our support portal and see the status of your request.
• Proactive Services— You may request that we spend a fixed amount of time each week or
month on proactive tasks such a monitoring data quality or looking for improved ways to
use Fonteva products. We will provide you with our findings and recommendations and
you can prioritize these items for us to work or you can handle them yourself
• On-Site Options Available--One of the reasons we can keep our rate so low is because
we minimized the waste of travel time (and it environmentally friendly). If you still feel
you need an on-site resource, we will be happy to provide this subject to (1) an 8-hour on-
site minimum which will be deducted from your engagement hours, (ii) client paying
travel costs and(iii)mutually convenient schedule.
Examples of In-Scope Services for Administrative Support
• User maintenance (additions and modifications, de-activating, password resets, role
management,profile management,public groups)
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•
• Security model management (record sharing, accessibility settings, passwords &
session settings, delegated administration)
• Modification to configuration (creation or modification of custom objects, record types,
fields, workflow, approval processes, page layouts, custom links and buttons, report
types, Apps, tabs, labels, validation rules, assignment rules, auto-response rules)
• Modification of Fonteva created specialized features (customizations, enhancements
and custom code)
• Modification of standard objects (Accounts, Contacts)
• Analytics support (creation, modification and management of views, reports and
dashboards)
• Template support (creation or modification of email templates, mail merge templates,
letterhead)
• AppExchange package support (installation, management or removal of AppExchange
packages)
• Feature activation requests (extended mail merge, multi-currency)
• Data services (import of records; export of records; mass transfer; mass delete services)
• Training(end-user and administrator)
• Integrations (existing Fonteva single sing-on[SSW]and integration support)
• Other including Google Apps,Chatter,Salesforce Mobile,Outlook Connector (other
support services as requested and agreed by Fonteva)
Excluded Services from Administrative Support
New work that is estimated to take Ionger than 16 hours of work will be reviewed with the
customer and covered under an additional work order provided by Fonteva.
Additional Terms
No-show appointments or appointments canceled with less than 4 hours notice will deduct the
greater of 1 hour or 50% of the canceled scheduled appointment time from the available support
plan balance.
Administrative Support Contact Methods
• Web-Case Logging (24 x 7x 365)
• Email Support Logging(24 x 7 x 365)
• Phone Support (8:00am to 6:30pm ET, weekdays or based on the local business hours of
your assigned customer success manager)
Assigned Customer Success Manager
All Fonteva ASE customers will have a primary consultant assigned who will be your advocate.
Requests and questions logged under the support plans may be worked by your consultant or a
member of our expert Fonteva support team under the supervision of your customer success
manager.
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Service Level Agreement
Fonteva identifies each work request according to the following schedule:
• SEVERITY 1: Total outage to all users—worked continually until resolved
• SEVERITY 2: Partial outage or multiple user impact--worked behind P1 cases
• SEVERITY 3: Single user impact—worked behind P1/P2 cases
• SEVERITY 4: Question/admin request—worked behind Pl-P3 cases
Within one hour of your question/request that comes through our support portal,you will receive
an email acknowledgment including a case #and other details.
Support/Admin Services Available
The following services are available under your plan: new feature implementation, support
Fonteva developed custom enhancements, modifications, custom code maintenance, profile
management, security model management, custom object configuration, accounts and contacts
configuration, reports, views, dashboards, multi-currency, validation rules, record types, custom
fields, workflows, approval process,product management, assignment rules, auto-response rules,
mail merge templates, email-templates, custom letterheads, data import and manipulation not
requiring a 3" party tool, salesforce-to-salesforce, Fonteva portal customization and
maintenance, product training,end-user training and other services mutually agreed.
These services are governed by Fonteva's MSSA (Master Software Service Agreement) that
was signed when customer was implemented
EXHIBIT II FONTEVA TRAVEL EXPENSE POLICY
Fonteva employees should always review the SOW for specific Client policies and requirements
before incurring travel expenses. If written approval is required by Client, employee should
obtain approval before incurring travel expenses. Fonteva employees should always attempt to
use corporate discount numbers whenever possible.
All expenses must be submitted within 14 days of the date that they are incurred. Employee
must include detailed receipts required for all expenses over USD 10.
Air Travel
Domestic and international airline reservations should be made at the least expensive coach class
airfare available(even if it is not your preferred airline)which satisfies the business requirements
of the trip. If the Client approves in writing Business Class Travel for international travel, you
must comply with the Client's travel policy. Travel time will be calculated based on the time
from the departure airport to Client location or hotel,whichever is appropriate.
Foreign Currency
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All expenses incurred in a foreign currency must be converted to home currency before they are
submitted on the expense report form. Proper documentation of the exchange rate used for the
conversion must be submitted with the receipts. All international travel expenses should be
charged to a credit card whenever possible.
Lodging
Client will reimburse Fonteva for the cost of reasonable accommodations when an employee is
required to be away from home overnight on company business. When booking travel
accommodations, Fonteva employees will:
• Attempt to find nightly room rates no more than USD 150,exclusive of tax
• Present a detailed hotel/motel statement to Client for reimbursement
• Hotel charges other than lodging and the associated taxes (i.e., Meal-Traveling,
Telephone-Local)MUST be listed as separate expenses when they are submitted
• Reimbursable incidentals are limited to reasonable amounts as approved by the Client
• Movies in hotel rooms are not reimbursable
Car Rental
• Rental cars should be paid with a credit card
• The rental care standard is midsize;,full size may be rented when business needs dictate
• Care must be refueled before returning to airport. Do not accept refuel option.
• Rental Company refueling charges will only be reimbursed in extreme cases. Be sure to
document reason on expense report.
• Do not accept insurance.
Meals and Entertainment
• Reimbursement costs are limited to reasonable amounts, but should not exceed USD 50
per person per day without written Client approval
• Credit card and detailed receipts are required from all establishments that accept credit
cards
• Detailed receipts are required for meals paid in cash
• Tips should be paid fairly in conjunction with the service you have received
• Tips included with qualified business meals are reimbursable up to a 20%maximum
Phone Usage
Client shall not be required to reimburse Fonteva for any personal, cellular or air phone usage
unless employee received prior approval in writing from Client.
S