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HomeMy WebLinkAboutEnvisio 20191 cc ENVISIO ENVISIO SOLUTIONS INC. MASTER SERVICES AGREEMENT ORIGINAL N�V - 8 2019 i CITY Cl_Et:K`i CFFICE PLEASE READ THIS MASTER SERVICE AGREEMENT ("AGREEMENT") CAREFULLY. THIS AGREEMENT APPLIES TO ENVISIO SOLUTIONS INC. ("ENVISIO") AND ANY CUSTOMER (THE "CUSTOMER") WHO UTILIZES ENVISIO'S SAAS STRATEGY IMPLEMENTATION SOFTWARE SERVICES DESCRIBED HEREIN (THE "SERVICE"), WHETHER OR NOTTHE CUSTOMER PAYS FOR THE SERVICE. ACCEPTING THE TERMS BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR BY EXECUTING AN ORDER OR QUOTATION FORM THAT REFERENCES THIS AGREEMENT, THE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE CUSTOMER 15 ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE CUSTOMER REPRESENT THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF THE CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR THE CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, THE CUSTOMER MUST NOT ACCEPTTHIS AGREEMENT AND MAY NOT USE THE SERVICES. The Customer and Envisio have an existing relationship through an agreement that expires on December 31, 2019, that provides substantially similar Service as described in this Agreement between the parties. 1 PURCHASED SERVICES 1.1 Provision of Purchased Services Envisio shall provide to the Customer the Service that is ordered by the Customer ("Purchased Services") on Envisio's invoice or quotation form (each an "Order Form") during a Subscription Term (as defined below). The Service is hosted on Envisio's service provider platform, "Heroku" (owned by Salesforce.com). Heroku's physical infrastructure is hosted and managed within Amazon's secure data centers and utilizes the Amazon Web Service ("AWS") technology. The Customer further acknowledges that the Customer Data (as defined below) resides on AWS' servers in the USA. The Customer may access the Service, but has no right to receive a copy of the object code or source code to the Service. The Customer must have high speed Internet connection, and compatible hardware and up to date 'browser' software to access the Service, none of which are Envisio's responsibility. 1.2 Subscription License Unless otherwise stated in the applicable Order Form, the Purchased Services are purchased as a subscription license (the "Subscription") and non-transferrable to a third party. Additional Users (as defined below) can be added to the Subscription during the Subscription Term at the same pricing as the underlying Subscription, prorated for the portion of that Subscription Term remaining, and any added Subscription will terminate on the same date as the underlying Subscriptions. 2 ENVISIO'S RESPONSIBILITIES 2.1 Provision of Service Envisio will use commercially reasonable efforts to make the Service available to the Customer 24 hours per day, 7 days per week, except for planned downtime of which Envisio shall provide at least 24 hours notice via the Service and scheduled to the extent practicable during the weekend hours between 6 pm Friday and 3 am Monday Pacific Time. Any unavailability Page 1 re ENVISIO caused by circumstances beyond Envisio's reasonable control including but not limited to: the malfunction of equipment, acts of God, act of government, flood, fire, earthquake, civil unrest, act of terror (collectively, "Force Majeure"), or the activities of third parties not under Company's control (including Internet and other service providers) is not the responsibility of Envisio. Envisio will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure. 2.2 Customer Data The Customer must provide all data for use in the Purchased Services (the "Customer Data") and Envisio is not obliged to modify or add to it. The Customer Data belongs to the Customer and they are solely responsible for the content and accuracy. The Customer grants to Envisio all necessary licenses in and to such Customer Data solely for Envisio to provide the Service to the Customer. Envisio will treat the Customer Data as confidential and will not disclose it to third parties unless as compelled by law or unless expressly permitted in writing by the Customer. Envisio will not access the Customer Data except as necessary to address service or technical issues, at the Customer's request. As part of Envisio's standard Service offering, Envisio will make daily backup copies of the Customer Data and maintain such data for a period of seven weeks. 2.3 Software Uptime Agreement Envisio endeavours to provide 99.9% uptime with respect to the Purchased Services in each calendar month during the Term, excluding: (a) any scheduled maintenance times; (b) factors outside Envisio's reasonable control; and (c) downtime related to the Customer's or third parry hardware, software or services. If in any calendar month this uptime commitment is not met by Envisio and the Customer was negatively impacted from a resulting disruption to the Purchase Services as determined in Envisio's sole discretion acting reasonably, Envisio shall provide, as the sole and exclusive remedy, a service credit equal to 25% of one month's fee for the use of the Service (the "Credit"). 2.4 Service Level Agreement There are several ways to get support for using Envisio, including technical support, consulting support, and community support options, listed in the Implementation and Services Guide. The guide may be updated from time to time and all services documented in the most current guide will be available to the Customer. The Customer Success Team technical and consulting support is available during our regular business hours on weekdays that are not legal Canadian holidays. Regular business hours are listed below for the time zone in which your organization is located: >> 9:00 am EST until 8:00 pm EST >> 8:00 am CST unti17:00 pm CST >> 7:00 am MST until 6:00 pm MST >> 6:00 am PST until 5:00 pm PST The following targets will be used for response to support requests: Severity Initial Response Resolution Updates Page 2 Critical 1 hour High 2 hours Medium 4 hours Low Following business day Severity indicators are defined as follows: re ENVISIO Work continuously As soon as possible As soon as possible Reasonable effort Every business day Every other business day Every other business day Weekly >> Critical - Envisio is down and no workaround is available. >> High - Use of Envisio is impaired but instances are up and running. No workaround is available. >> Medium - A function of Envisio has failed, but Envisio is still useable. Support is aware of the issue. >> Low- Envisio functionality is not impaired. This priority also includes feature, information, documentation, how-to, and enhancement requests. Updates will continue until the issue is resolved or there is a workaround in place. We aim to resolve all issues expeditiously, but when an issue is difficult to solve and takes longer than one business day, we will provide updates on our progress according to the schedule listed above. Canadian holidays observed in British Columbia include: New Year's Day (January 1), Family Day (third Monday in February), Good Friday (Friday before Easter), Easter Monday, Victoria Day (Monday before May 25), Canada Day (July 1), British Columbia Day (first Monday in August), Labour Day (first Monday in September), Thanksgiving (second Monday in October), Remembrance Day (November 11), and Christmas Day (December 25). Envisio offices close for the entire week for the Christmas holiday. 2.5 Credit Request In order to receive the Credit, the Customer must provide sufficient evidence to support the Credit and email info@envisio.com within 5 days of the end of the applicable calendar month. If the Customer is past due or in default with respect to any payments owed to Envisio under this Agreement, the Customer is not eligible to receive the Credit. 2.6 Provision of Professional Services Envisio's core hours are Monday through Friday, 8:30am to 5:00pm Pacific Time. Trainings and customer meetings are offered during extended hours between 6-8:30am Pacific Time and 5-7pm Pacific Time, contingent upon staff availability. 3 CUSTOMER'S USE OF THE SERVICE 3.1 Authorized Users The Customer agrees to maintain authorized users based on the number of accounts ("Accounts") purchased under the Subscription as stated in the Order Form. Only the Customer or persons or entities that have access to an Account through a username and password for the Account (each a "User" and collectively, the "Users") may use the Account. If the number of Users exceeds the Accounts purchased, Envisio will notify the Customer's Administrator (as defined in Section 3.2 below) via email of the overage and the Customer will have 5 business days following delivery of such email to make any changes necessary to address the overage. Following that 5 business day period, if the overage remains Envisio will Invoice the Customer for the additional Accounts required to address the overage at the same fee as the existing Accounts subscribed Page 3 ENVISIO for under the Subscription, prorated for the duration of the Subscription Term remaining and the Customer will pay the invoice according to the terms outlined in Section 5.4 below. 3.2 Email and Notices At the time of ordering the Service from Envisio, the Customer shall identify the administrator(s) responsible for the Accounts (each an "Administrator'). The Customer agrees to provide Envisio with the Administrator's contact information including e-mail address. By providing the Administrators e-mail address, the Customer agrees to receive all required notices electronically to the Administrators e-mail address. The Administrator shall be responsible on behalf of the Customer for managing the Accounts, maintaining all User information, and the Purchased Services used by the Customer. It is the Customers sole responsibility to notify Envisio if the Customer changes or intends to change its Administrator(s). 3.3 Users: Passwords, Access and Notifications It Is the Customers responsibility to change and maintain its Users' records in Envisio to secure access to the Account. The Customer is also solely responsible for ensuring the confidentiality and secrecy of each Users login. The Customer agrees not to disclose its Users' login information to any third party and will prevent its employees and personnel from sharing Users login information amongst themselves, The Customer will be responsible for all electronic communications generated through the Service, including, but not limited to, Account registration and notices. The Customer is only entitled to access and use the Service and the Account for lawful purposes. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Envisio of such unauthorized access or loss/theft of any of its Users' login information. 3.4 Restrictions The Customer is responsible for all activities conducted under its User accounts and ensuring their Users' compliance with this Agreement. The Customer shall not: (a) permit concurrent use of a single User account, or time-sharing of the Service; (b) post or transmit any Customer Data that contains viruses, worms, time bombs, Trojan horses or any other contaminating, corrupting or destructive features, or use the Service in an irresponsible, or otherwise disturbing manner that interferes with the proper working and normal operation of the Service, or detrimentally interfere with personal information or property of another; (c) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to extract the source code or modify the Service in any manner or form; or (d) transfer, sell, lease, rent or assign, in any way, all or a portion of, the Account and/or the Service to any third party; 4 INTELLECTUAL PROPERTY The Customer acknowledges that Envisio retains all right, title and interest in and to the Service and all software, materials, formats, interfaces, information, data, content and Envisio's proprietary information and technology used by Provider or provided to Customer in connection with the Service (the "Envisio Technology"), and that the Envisio Technology is protected by intellectual property rights owned by or licensed to Envisio. Other than as expressly set forth in this Page 4 ENVISIO Agreement, no license or other rights in the Envisio Technology are granted to the Customer, and all such rights are hereby expressly reserved by Envisio. The Customer must not, without Envisio's express written consent, use any of Envislo's trademarks, service marks, copyrighted materials, or other intellectual property, The Customer acknowledges that Envisio may incorporate into its products any ideas, suggestions, concepts, processes or techniques that the Customer provides to Envisio related to the Service or Envisio's business (the "Feedback") without risk of claims from Client based on the use of the aforementioned within Envisio products and such shall not be deemed to confer any property rights to the Envisio products or services to the Client. However, while Envisio retains the right to incorporate into Its products Clients suggestions, ideas, enhancement requests, feedback, recommendation or other information provided by the Client, the Client retains the ownership and rights to its suggestions, ideas, enhancement requests, feedback, recommendations, or other information in the form prior to incorporation by Envisio without risk of claims from Envisio. 5 PURCHASED SERVICES AND PAYMENT 5.1 Term of Agreement This Agreement is effective between the Customer and Envisio on January 1, 2020. The term of this Agreement shall be three (3) years, until December 31, 2022, or as otherwise expires or terminates as described in this Agreement. 5.2 Term of Subscriptions and Renewal The term of each Subscription (the "Subscription Term") shall be as set out in the applicable Order Form or Quotation. Unless otherwise set out in the applicable Order Form or Quotation. There are no renewal periods. Subscriptions extending beyond the termination of this Agreement will be memorialized through a new agreement 5.3 Service Fees The Customer shall pay Envisio the fees specified on the Order Form (the "Fees"). Fees are based on Purchased Services comprising of subscription fees (based on the number of accounts) and professional fees (including implementation fees), and are non-refundable unless otherwise stated. The number of purchased Subscriptions cannot be decreased during the Subscription Term. 5.4 Invoicing and Payment Billing for the Purchased Services will be in advance on an annual (twelve months) basis. Unless otherwise stated in the Order Form, invoiced charges are due on receipt. The Customer is responsible for providing complete and accurate billing and contact information to Envisio and notifying Envisio of any changes to such information. Overdue invoices will incur a 2% per month interest charge. If the Customer fails to pay the invoice within the Due Date, Envisio may, at Its sole discretion, declare the Account delinquent (a "Delinquent Account). 5.5 Applicable Taxes Page 5 rt. ENVISIO Envisio shall charge the Customer, and the Customer shall pay to Envisio, all applicable taxes, including any retroactive taxes on past Fees or charges (whether already paid or not) in cases where Envisio is under a legal obligation to collect such tax from the Customer. The Customer shall be responsible for any and all other taxes that the Customer is under a legal obligation to pay. 5.6 30-Day Money Back Guarantee Within 30 days after the Customer has signed this Agreement, upon the Customer's written cancellation request, Envisio will refund all subscription fees paid by the Customer. Customer will still be liable for implementation fee and any professional fees in respect of professional services ordered. After 30 days, all Purchased Services are non-refundable and non -cancellable. 6 TERMINATION AND SUSPENSION 6.1 Envisio's Right to Suspend the Account Envisio reserves the right to suspend the Customer's Account and access to and use of the Service under the following conditions: • the Account becomes a Delinquent Account; or • Envisio reasonably concludes that the Account is being used to engage in denial service attacks, spamming, or illegal activity, and/or use of the Account is causing immediate, material and ongoing harm to Envisio and others. In the extraordinary event that Envisio suspends the Customer's access to the Service, Envisio will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and resolve the issues causing the suspension of the Service. 6.2 Termination for Cause/Expiration Either party (the "Complaining Party") may immediately terminate this Agreement and all Order Forms issued hereunder in the event the other party (the "Breaching Party") commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non -breaching party. Such notice by the Complaining Party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the Breaching Party an opportunity to cure such alleged breach and shall be sent to the Breaching Party in accordance with the notice requirements set out in Section 11.9 below. Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, then Envisio shall be entitled to all of the Fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Envisio's breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any subscription fees paid by Customer to Envisio under this Agreement for the terminated portion of the Term. 6.3 Handling of Customer Data Upon Termination Effective upon cancellation of the Account, Envisio may deactivate the Account and be entitled to delete the Account and the Customer Data from the Service within 60 days after cancellation. Within this 60 day period and upon the Customer's request, Envisio will provide limited access to the Service for the sole purpose of allowing the Customer to retrieve the Customer Data, provided that the Customer has paid all good faith undisputed amounts owed to Envisio. The Customer Page 6 cc ENVISIO further agrees that Envisio shall not be liable to the Customer nor to any third party for any termination of the Customer's access to the Service or deletion of the Customer Data, provided that Envisio is in compliance with the terms of this Section 6.3. It is the responsibility of the Customer to obtain screen captures and download all necessary reports should the Customer wishes to keep the data. 6.4 Survival The following sections of this Agreement shall survive the cancellation or termination of this Agreement for any reason: Sections 3.4, 4, 5.3, 5.4, 5.5, 6.4, 9 and 10, as well as those sections that by their nature are intended to survive the termination or expiry of this Agreement. 7 PRICE AND SERVICE CHANGES 7.1 Software Subscription Fees Envisio reserves the right to amend the Fees and the nature of the Service offered to the Customer from time to time and in its sole discretion, provided however that Envisio shall not decrease the level of Service or increase the subscription fees by no more than 10% per annum per Subscription until the end of the Subscription Term in effect for the Customer. Envisio shall give the Customer notice of any such changes in the Fees and the Service 60 days in advance of the expiration of the relevant Subscription Term. If the change in Fees is not acceptable to the Customer, the Customer's sole and exclusive remedy shall be to cancel the applicable Subscription by providing Envisio with written notice of cancellation to info@envisio.com at least 30 days prior to the expiration of the relevant Subscription Term. Continuing to use the applicable Service after the end of the Subscription Term constitutes the Customer's acceptance of all changes in Fees. 7.2 Implementation Professional Services Fees Implementation Professional Services is quoted at a fixed cost and unless otherwise stated in the Envisio order form in the Implementation Professional Services line item all services are scheduled and offered to the Customer for a period of 3- months from the commencement of the Subscription Term. Envisio will make all reasonable efforts to deliver in full the agreed -upon implementation scope. Changes to the scope or timelines may be proposed by the Customer Project Team during Implementation. Change requests will be reviewed by Envisio and their impact on the initial scope, schedule, resourcing and/or budget will be evaluated. Where additional resourcing is required from the Envisio Implementation Team to meet the change request, Envisio reserves the right to amend the Implementation fixed cost by issuing anew quote/order form requiring the Customers signature as approval. 8 WARRANTIES 8.1 Our Warranties Envisio warrants that (a) the Service will achieve in all material respects the functionality described in the applicable technical documentation for the Service that is provided from time to time by Envisio to the Customer (the "Help Documentation"), and (b) Envisio will not materially decrease the functionality of the Service subscribed for under a Subscription during the applicable Subscription Term. The Customer's sole and exclusive remedy for Envisio's breach of this warranty shall be that Envisio be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality as described in the Help Documentation and, if Envisio is unable to restore such functionality, the Customer shall be entitled to terminate this Agreement and receive a pro-rata refund of the subscription fees paid under this Agreement for the Subscription for the terminated portion of the Subscription Term. Page 7 ENVISIO 8.2 Disclaimer of Warranty THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY ENVISIO TO THE CUSTOMER ARE PROVIDED "AS IS", "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND EXCEPT AS EXPRESSLY SET OUT HEREIN. ENVISIO HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON -INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PROVIDER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER'S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. FOR THE PURPOSES OF THIS SECTION 8.2, "ENVISIO" INCLUDES ENVISIO'S DIVISIONS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, PARENT COMPANIES AND THEIR (INCLUDING ENVISIO'S) EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, AFFILIATES, RESELLERS, THIRD PARTY PROVIDERS, MERCHANTS, LICENSORS AND THE LIKE. 9 LIMITATION AND EXCLUSION OF LIABILITY 9.1 Limitation of Liability (A) IN NO EVENT SHALL ENVISIO BE LIABLE TO OTHER PARTY FOR ANY (1) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (111) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. (B) IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY THE CUSTOMER TO ENVISIO IN THE 12 MONTHS PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. (C) THE PROVISIONS OF SECTION 9.1(A) AND 9.1(B) SHALL NOT APPLY TO THE EXTENT THAT THE CAUSE OF ACTION GIVING RISE TO THE CLAIM ARISES FROM: A BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; OR II. CLAIMS FOR FEES OWED TO ENVISIO UNDER THIS AGREEMENT AND ANY COST, EXPENSE OR FEES INCURRED IN THEIR COLLECTION. THE CUSTOMER SHALL MAKE NO CLAIM, COMPLAINT, OR PROCEEDING AGAINST ENVISIO FOR ANY OR ALL PORTIONS OF THE SERVICES THAT MAY REQUIRE THE DOWNLOADING OF WEB SITE COOKIES FOR THE CUSTOMER TO ACCESS SUCH PORTIONS OF THE ACCOUNT. FOR THE PURPOSES OF THIS SECTION 9.1, "ENVISIO" INCLUDES ENVISIO'S DIVISIONS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, PARENT COMPANIES AND THEIR (INCLUDING ENVISIO'S) EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, AFFILIATES, RESELLERS, THIRD PARTY PROVIDERS, MERCHANTS, LICENSORS AND THE LIKE. Page 8 ENVISIO 10 GENERAL 10.1 Interpretation of this Agreement The term "including," wherever used in any provision of this Agreement, means "including but without limiting the generality of any description preceding or succeeding such term." Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the construction or interpretation of this Agreement. The division of this Agreement Into sections/paragraphs, and the insertion of headings/captions, are for the convenience of reference only and shall not affect the construction or Interpretation of this Agreement or be deemed a part of this Agreement. 10.2 Inurement The rights and liabilities of both the Customer and Envisio (collectively, the "Parties") under this Agreement shall bind and inure to the benefit of the Parties' respective successors, executors, and administrators, as the case may be. 10.3 Assignment Neither party may assign this Agreement without written consent of the other, except that Envisio may assign without consent to a related entity or the successor of all or substantially all of the assignor's business or assets to which this Agreement relates. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although Envisio reserves the right to name Customer as a user of the Service. 10.4 Governing Law This Agreement and any other agreement for the Services shall be governed by and construed in accordance with the laws of the State of Wisconsin and the federal laws of Wisconsin applicable therein, without regard to conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 10.5 Severability If any provision or portion of this Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. 10.6 Arbitration Except for any dispute related to the intellectual property rights of a party, any dispute or claim arising out of or relating to this Agreement shall be referred to and finally resolved by binding arbitration before a single arbitrator under the International Commercial Arbitration Rules of Procedure of, and administered by, the American Arbitration Association. The appointing authority shall be the American Arbitration Association. 10.7 Independent Contractors Nothing in this Agreement shall be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between the parties. Each parry will be deemed an independent contractor at all times and shall have no right or authority to assume or create any obligation on behalf of the other party, except as may be expressly provided herein. Page 9 ENVISIO The Customer must not, in any way, misrepresent the Customer's relationship with Envisio, attempt to pass itself off as Envisio, or claim that the Customer is Envisio. 10.8 Injunction The Customer acknowledges and agrees that money damages are not an adequate remedy for any breach or threatened breach related to Envisio's rights or the Customer's use of the Service beyond the rights granted to Customer in this Agreement. The Customer therefore agrees that in addition to other remedies available hereunder, by law or otherwise, Envisio shall be entitled to an injunction against any such breach by the Customer. 10.9 Notices Notice to Customer Any notice to the Customer from Envisio will be sent to the e-mail address of the Administrator, or provided in writing, registered postal service (postage prepaid), or by pre -paid commercial courier delivered to the Customer at the mailing address specified on their Account, but does not include notification of parties by way of the Web Site as permitted by this Agreement. Notice to Company Any and all notices to Envisio from the Customer must be given by in writing, e-mail, first class postal service (postage prepaid), or by pre -paid commercial courier delivered to Envisio at: Envisio Solutions Inc. 250-13777 Commerce Parkway Richmond, BC V6V 2X3 Tel: 888-371-4800 email: info@envisio.com 10.10 Public Records The Client is a governmental entity subject to the Wisconsin Public records law. No term in this Agreement is intended to conflict with public records laws or to prevent the released of public records otherwise subject to disclosure pursuant to public records law. In the event there is an actual or perceived conflict between this Agreement and public records law, then such term shall be interpreted records, then Envisio may take actions it deems appropriate to prevent the disclosure of public records. However, all such actions by Envisio shall be at its own risk and expense. 10.11 Complete Agreement This Agreement constitutes the complete understanding and agreement between the Customer and Envisio. Except when expressly agreed to the contrary in signed writing by an authorized representative of Envisio, this Agreement supersede any other written (including digitized/computerized) agreement, oral agreement, and/or agreement by conduct. This Agreement or any other specific agreement for the Service between Envisio and the Customer shall each be exclusively between Envisio and the Customer only and shall not confer any rights in any third party. Page 10 IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed by their respective proper officers and affixed their corporate seals hereto as of the day and year first above written. CONSULTANT (Name/Title) Envisio Solutisokinc. f� Madison Dias Senior Account Executive CITY OF OSHKOSH ]SIARK A. • •4PLA CITYMANAGER M �t APPROVED BY: I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract { •E• _G6MYfL CITYATTORNEY FINANCE DIRECTOR Q)ENVISIO 250-IMICommerce.Parkway, _Richmond, B V6V2)3Canada. Bill To Name City of Oshkosh, WI Bill To 215 Church Ave Oshkosh, Wisconsin 54901 United States Contact Name Kortney Jenks Quote Number 1700292 Created Date 02/10/2019 Expiration Date 31/10/2019 Prepared By Rob Hines Email rhines@envisio.com Envisio Plans, PD, PA: 3-year combined subscription, billed annually at $11,223 for year 1 (pro -rated 137 day USD USD credit for existing PA contract) and $12,799.50 for year 2 & 3, starting Jan 1 2020. Includes software 1.00 11,223.00 11,223SD licensing, full platform management and support. (3-year contract value: $36,820) .00 Discounted price on Envisio Plans and Public Dashboard of $0 to bridge the end of the existing contract 1.00 USD 0.00 . USD 0.00 #00000545 ending on December 13 2019 to. the beginning of the new proposed contract on January 1 2020. Quote Accepted By: Name:...._ Signature: Terms and Conditions Subtotal USD 11,223.00 Total Price USD 11,223.00 Date: _.... _.... _.... 1. Prices set forth in this quote are valid for the period stated. All prices are quoted in US Dollars. 2. Invoice for the full amount will be issued upon acceptance of this quote. 3. Work on the project commences after acceptance of the latest quotation according to the services agreed with the customer. 4. In the event of cancellation within the cancellation period, the reimbursed funds will be, unless otherwise agreed, the sum of the costs until termination plus any loss incurred by Envisio Solutions Inc.. 5. Acceptance of this quotation is acceptance of the accompanying Envisio Master Services Agreement (MSA). 6. Travel, accommodation, meals and other reasonable costs related to workshops or other onsite service delivery will be separately documented and invoiced to the customer. A best estimate of these costs may be provided in this quotation if applicable.