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18-0629 Siteimprove Inc. SITE • DocuSign Envelope ID:A8712FA9-1297-461C-8574-0B59E6B69F71 PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 29 day of June, 2018, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Siteimprove, Inc., a California corporation, (hereinafter referred to as "SITE" " or"Seller"). NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby mutually acknowledged,the parties hereto hereby agree as follows: 1. City shall purchase, and SITE shall provide the services described by Attachment A, attached hereto and made a part hereof. 2. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be the Circuit Court of Kane County, Illinois. SITE 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 SITE agrees that service by first class U.S. mail to Siteimprove, Inc., 7807 Creekridge Circle, Bloomington, MH 55439 shall constitute effective service with a copy to legal@siteimprove.com. Both parties hereto waive any rights to a jury. Notices to the City shall be to: City of Elgin, Legal Department, 150 Dexter Court, Elgin, Illinois 60120. 3. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 4. This agreement embodies the whole agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein, and this agreement shall supersede all previous communications, representations or agreements, either verbal, written or implied between the parties hereto. 5. Interest charged to the City due to late payments shall be limited to the maximum rate allowed by law. 6. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the reminder of this agreement shall remain in full force and effect. 7. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, SITE 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, SITE hereby certifies,represents and warrants to the City that all of SITE'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. SITE shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary • DocuSign Envelope ID:A8712FA9-1297-461C-8574-0B59E6B69F71 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 SITE to determine SITE'S compliance with the provisions of this section. In the event the City proceeds with such an audit, SITE shall make available to the City SITE'S relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 8. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of.any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either 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. 9. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A hereto, the terms and provisions of this purchase agreement shall control. 10. City shall pay the total sum of$3,330 within thirty (30) days of receipt of invoice. The City is an Illinois municipal corporation and is exempt from sales tax. The City shall provide its tax exemption form to SITE. 11. SITE shall implement the annual subscription agreement and standard support plan as provided for in Attachment A within three days of the date of this agreement. 12. In no event shall City be liable for any monetary damages in excess of the purchase price contemplated by this agreement. In no event shall City be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 13. Notwithstanding anything to the contrary provided herein, this Agreement shall terminate on July 1, 2019, and shall not automatically renew. 14. Notwithstanding anything to the contrary provided herein, in no event shall the City's good faith compliance with the disclosure requirements of the Illinois Freedom of Information Act(5 ILCS 140/1, et seq.) constitute or be construed as a breach of this agreement. 15. DEFINITIONS a. Interpretation. Capitalized terms used in these Terms and Conditions will have the meanings ascribed to them in the Agreement or as defined below. Terms other than those defined below will be given their plain English meaning and terms of art having specialized meanings in the software industry will be construed in accordance with industry standards. Unless the context otherwise requires, words importing the singular include the plural and words importing the masculine include the feminine and vice versa where the context so requires. 2 • DocuSign Envelope ID:A8712FA9-1297-461C-8574-0B59E6B69F71 b."Affiliate"means any entity directly or indirectly controlling or controlled by or in common control with a party,where"control" is defined in this context as the ownership of at least fifty percent(50%) or more of the voting stock or other interest entitled to vote on general decisions reserved to stockholders, partners, or other owners of such entity. An entity shall no longer be an Affiliate when through loss, divestment, dilution or other reduction of ownership, the requisite control no longer exists. c. "Confidential Information" means information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used that either party discloses on or after the Effective Date, to the other party or its parents, affiliates' employees, contractors, officers, directors, partners, agents, attorneys, accountants or advisors. Confidential Information includes: business processes, practices, methods, policies, plans, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, databases, records, financial information, results, accounting information, accounting records,'legal information, pricing information, credit information, payroll information, staffing information, internal controls, security procedures, sales information, revenue, costs, communications, original works of authorship, customer information, and customer lists. Confidential Information does not include information that: (a) was in the public domain prior or subsequent to the time such portion was communicated to the receiving party, through no fault of that party; (b) was rightfully in the receiving party's possession free of any obligation of confidence at or subsequent to the time such portion was communicated by the disclosing party; (c)was developed by the receiving party independently of and without reference to any information communicated by the disclosing party; (d) was communicated by the disclosing party to an unaffiliated third party free of any obligation of confidence; or (e) is approved by the disclosing party for release by the receiving party. 16. REPRESENTATIONS AND WARRANTIES a. For Siteimprove. Siteimprove represents and-warrants that: (i) it has the full power and authority to enter into and perform its obligations under this Agreement; (ii) this Agreement has been duly authorized, executed and delivered by it and constitutes the valid, legal and binding agreement of it and is enforceable against it; (iii) entering into and performing its obligations under this Agreement will not result in any breach of, or constitute a default under, any other agreement to which it is a party; and (iv) the Included Services will perform substantially as described in this Agreement, provided that it is used in accordance with the Agreement, including on the specified domains. These representations and warranties are only for the benefit of Customer. b. For City. City represents and warrants that: (i) it has the full power and authority to enter into and perform its obligations under this Agreement; (ii) this Agreement has been duly authorized, executed and delivered by it and constitutes the valid, legal and binding agreement of it and is enforceable against it; (iii)entering into and performing its obligations under this Agreement will not result in any breach of, or constitute a default under, any other agreement to which it is a party; (iv) it has full and legal right or authorization to display, disclose, transfer, assign or convey the information set forth 3 • • DocuSign Envelope ID:A8712FA9-1297-461C-8574-0B59E6B69F71 and accessible on the websites on which.the Included Services will be administered; and (v) it is aware that the Included Services are designed and developed to handle information that can be viewed on a public website and acknowledges that any data scanned through the Included Services on a Development Site will be processed and stored by Siteimprove just as data scanned on a public website. • c. Disclaimer. Except for the express representations and warranties listed in this Agreement, each party makes no representations or warranties of any kind, whether express or implied, and expressly disclaims all warranties of, title, non-infringement, merchantability, and fitness for a particular purpose. Unless set forth in this Agreement, no oral or written information or advice given by either party will create a representation or warranty. 17. FORCE MAJEURE No party will be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's("Impacted Party") reasonable control ("Force Majeure Events"). Force Majeure Events include: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e)actions, embargoes or blockades in effect on or after the date of this Agreement; (f)action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. A change in economic circumstances is not a Force Majeure Event. If a Force Majeure Event occurs,the Impacted Party will provide prompt notice to the other party, stating the period of time the failure or delay is estimated to last. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice, either party may terminate this Agreement upon five days' written notice. 18. LIMITATION OF LIABILITY In no event will either party or its agents, officers, directors, employees, successors, assigns, or Affiliates be liable to the other party or its agents, officers, directors, employees, successors, assigns, or Affiliates for any indirect, incidental, consequential, punitive, or other special damages. This limitation includes any loss of profits, business interruption, goodwill, loss of data/content or the restoration of any of those items. Furthermore, in no event shall a party's cumulative liability under this Agreement exceed the amount of the Fee. 19. ASSIGNABILITY This Agreement is binding upon and will inure to the benefit of the parties,their legal representatives, successors, and assigns. Except as otherwise expressly provided in this Agreement,neither party may assign, transfer, convey or encumber this Agreement or any rights granted in it, either voluntarily or by operation of law, without the prior written consent of the other party. Any attempt to do so is null and void. Notwithstanding the foregoing, a party shall have the right to assign this Agreement to its 4 DocuSign Envelope ID:A8712FA9-1297-461C-B574-01359E6B69F71 parent entity or affiliates or to a successor entity in the event of a merger, consolidation,transfer, sale, stock purchase,or public offering,provided the assignee is subject to all obligations of the Agreement. 20.NO WAIVER The delay or failure of either party to exercise any right, power, or privilege under this Agreement is not to be treated as a waiver of that right, power, or privilege. 21. INCLUDED SERVICES Subject to the terms and conditions of this Agreement SITE will allow the City to access the Included Services. a. City acknowledges and agrees that SITE owns and shall remain the sole owner of all intellectual property rights vested in the Included Services created prior to or during the performance by the parties of this Agreement. This ownership right includes any inventions, patents,utility model rights,copyrights,design rights,mask works,trademark rights,or know- how, whether registered or not. b. Use. The right to access the Included Services is worldwide, non-transferable, non-assignable (except as permitted in this Agreement)and limited in time to access and use during the Initial and any Renewal Terms and solely for City's internal business purposes by City's authorized agents. City will have access to the Included Services only for those website domain(s) authorized pursuant to this Agreement. c. Restrictions. This right is not a perpetual right to use, and City has no right to retain or to use the Included Services after termination of the Initial or Renewal Term. City has no right to rent, lease, assign, transfer, sublicense, display or otherwise distribute or make the Included Services available to any third party. Without limiting the generality of any other provisions stated in this Agreement, the Included Services may not be.(a) used in the performance of services for or on behalf of any third party or as a.service bureau; (b) modified, incorporated into or combined with other software, or created as a derivative work of any part of the Included Services; (c) used to process any sensitive or personal information; or (d) used for any illegal purpose. City may not modify, disassemble, decompile or otherwise reverse engineer the Included Services nor permit any third party to do so except as expressly permitted by law. SITE reserves all rights in the Included Services not expressly granted to Customer under this Agreement. SITEIMPROVE, INC. CITY 0 a' GIN Ted Go]berg / Print Name DocuSigned by: Richard G. ozal, City Man ger , Attest: M0/1088DM141-116... Signature City Cl sales Director Title 5 • DocuSign Envelope ID:A8712FA9-1297-461C-8574-0B59E6B69F71 ATTACHMENT A Software-as-a-Service Subscription Agreement This Software-as-a-Service Subscription Agreement("Agreement")is by and between Siteimprove, Inc., a California corporation with a business address at 7807 Creekridge Circle, Bloomington, MN 55439, and its Affiliates(defined below) (collectively,"Siteimprove")and City of Elgin ("Customer"/"you"/"your")for Siteimprove services. This Agreement consists of the following: (A)this Software-as-a-Service Subscription Agreement document; (B) Exhibit A, "Website(s)"; and(C) Exhibit B, "Standard Support Plan". Below is a description of the modules that are included in the Agreement("Included Services"): Product Bundle: Education/Government/Non-Profit Basic Included Services Limits(the"Limits")* Quality Assurance 2,500 Pages Crawls website and identifies quality issues. Policy Allows Customer to set website parameters to ensure consistency in content. Accessibility Checks website against selected WCAG 2.0 accessibility standards and WAI-ARIA techniques.. SEO Details technical and content-related issues affecting search engine rankings and traffic to the website. Priority Allows Customer to set criteria for order in which issues and errors are reported. This service requires the implementation of a script on the website. Response 1 Response Check Monitors website's availability and performance. Points Standard Support Plan •The Limits consist of the following and their applicable definitions: Pages:A Page is an electronic document created with HTML and accessible with a browser. Response Check Points:Response Check Points are single URLs that are monitored for up-time and response time performance from a series of reliable servers across the globe. Yearly Page Views:Yearly Page Views are the total number of Page Views a website will generate over the course of 365 days A'Page View is a single view by a website user of a page on a website that is being tracked by the Siteimprove Analytics tracking code.If a user clicks reload after reaching the page,it is counted as an additional Page View.If a user navigates to a different page and then returns to the original page,an additional Page View is recorded. PDFs:Portable Document Format(PDF)is a file format that has captured all the elements of a printed document as an electronic image that you can view,navigate,print,or forward to someone else.To be included in this subscription a PDF must be hosted on one of the covered websites. Access to the services Please allow up to five business days for setup to the Included Services to be completed.The Included Services can be accessed at http://my.siteimprove.com.At that location, you can administer the logins'for your authorized users. The Included Services also include training and tech support pursuant to Exhibit B. 6 • DocuSign•Envelope ID:A8712FA9-1297-461 C-8574-0B59E6B69F71 Limitations The Included Services are subject to the following limitations: • Your use of the Included Services is subject to the Limits. If you exceed the Limits,we will notify you that continued use in excess of the Limits may subject you to additional charges which will be documented in a mutually-agreed change order. • Included Services may only be run on the website(s)listed in Exhibit A. • Websites can be added to the Included Services, subject to the approval of Siteimprove. • You must be the owner of the approved website(s). • You can only add websites—approved websites cannot be replaced with different websites. • Included Services may only be run on public websites that do not contain sensitive or personal information. Term The first date for this Agreement(the"Effective Date")is the date of your signature below.This Agreement will remain in force for a period of 1 year following the Effective'Date(the"Initial Term"). Subscription Fees The annual subscription fee(excluding applicable taxes)for the Included Services is: $3,300(the"Fee"). Invoices & Payments All invoices are sent to the email address listed in the Billing Information section. If an email address is not listed,your invoice will be sent to the most current email address that Siteimprove has on file. • You will be invoiced as follows: • On the date of your signature below, you will be invoiced for the Fee. All invoices must be paid pursuant to the terms set forth in Section 10 of the Agreement. Customer Information (Required) You may be subject to sales tax(or equivalent). Sales tax is determined based on the below-entered service location. Sales tax is not included in the Fee. Service Address Name: Address: • Email: Phone: 7 DocuSign Envelope ID:A8712FA9-1297-461C-8574-0B59E6B69F71 • Billing Address(only complete if different from Service Address) Name: Address: Email: Phone: You may be subject to sales tax(or equivalent)unless you can provide proof of exemption.Are you exempt from sales tax? • ❑ Yes, please attach exemption form. • ❑ No. Is a Purchase Order Number("PO") required? ❑ Yes, please provide Purchase Order Number: ❑ No • If a PO is required,will you be providing a new PO for each invoice? ❑ Yes ❑ No,the provided PO number can be used for the initial invoice and all subsequent invoices • 8 DocuSign Envelope ID:A8712FA9-1297-461C-6574-0B59E6B69F71 Exhibit A: Website(s) • The Included Services may be run on the following website(s): • www.cityofelgin.org/ 9 DocuSign Envelope ID:A8712FA9-1297-461C-8574-0B59E6B69F71 Exhibit B - Standard Support Plan 1.SELF-HELP RESOURCES. Customers can take full advantage of Siteimprove self-help tools, available online via our Help Center(https://support.siteimprove.com/). From that page, Customers can find links to technical documentation and knowledge base articles,discuss issues with other users in our community forums, review what's new, read technical notes, and access free webinars. 2. PRODUCT SUPPORT AND TRAINING. Customers can contact Siteimprove for product support, training,and additional services by visiting our Help Center(https://support.siteimprove.com/).At that location, Customers can submit a support ticket 24x7 every day of the year. Service Levels: Siteimprove will utilize commercially reasonable efforts to promptly respond to all requests. Siteimprove aspires to review and respond to at least ninety percent(90%)of all tickets and requests within three(3) Business Days. "Business Days"are defined as the days on which Customer's regional support center is open for business(see Section 3). Besides general questions and technical issues, services covered by these tickets and requests include: • Custom CMS deep-link setup • Custom event-tracking setup(setup of three events) • Custom setup of internal search tracking • Setup of Development website crawls Severity Levels:When submitting a support ticket, Customers are asked to specify a severity level. The severity level is a measure of the relative impact of the reported issue on the Customer's systems or business. Accurately defining the severity ensures a timely response and helps Siteimprove to better understand the nature of the issue. Cosmetic-Minor problem not impacting service functionality; Feature requests or missing or erroneous documentation; Question/information request that does not affect delivery of service. Minor-Service is operational but partially degraded for some or all users, and an acceptable workaround or solution exists;The problem is with a non-critical feature or functionality. Major-Service is operational, but performance is highly degraded to the point of major impact on usage; Important features are unavailable,with no acceptable workaround, however, operations can continue in a restricted fashion; Access to a particular third-party application or service provider deemed noncritical is impacted. Critical-Service is down or unavailable; Critical features or functionality is unavailable or inaccessible, resulting in total disruption of work or critical business impact; Service crashes or hangs indefinitely causing unacceptable delays for resources or response; Data is corrupted or lost and must be restored. Any critical error encountered will be worked on by Siteimprove during EMEA business hours until resolved. 3.SUPPORT AVAILABILITY. Siteimprove has regional support centers servicing the Americas, EMEA and APAC. Open hours for these regional support centers are as follows. • Americas Support Center-Minneapolis, MN, USA Weekdays 8:00 a.m.to 5:00 p.m. —Central Standard Time(CST/CDT)-0600 UTC excluding the following holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, Christmas Day, Day after Christmas, New Year's Eve • EMEA Support Center-Copenhagen, Denmark Weekdays 8:00 a.m.to 5:00 p.m. —Central European Time(CET/CEST)+0100 UTC excluding Danish public holidays • APAC Support Center-Sydney, NSW, Australia Weekdays 8:00 a.m. to 5:00 p.m.—Australian Eastern Standard Time(AEST/AEDT)+1000 UTC excluding New South Wales national and regional public holidays 4.SUPPORT CHANGES. Siteimprove has the sole discretion to change the terms and conditions of the Standard Support Plan. • • 10