HomeMy WebLinkAboutAgendaQuick Oshkosh Contract 06.01.2023 AGENDAQUICK SOFTWARE AS A SERVICE (SAAS) AGREEMENT
EFFECTIVE DATE: June 1, 2023
PARTIES:
1. Destiny Software Inc. ("Supplier"), of 873 Kalispell Dr., La Conner, Washington,
98257; Mailing address: PO Box 817, La Conner, WA 98257 and
2. The City of Oshkosh, WI (“Customer”) of 215 Church Avenue - P.O. Box 1130
Oshkosh, WI 54903-1130
BACKGROUND:
(A) The Supplier has developed certain software applications and platforms which it makes available to
subscribers via the internet on a pay-per-use basis for the purpose of agenda & minutes preparation,
public records requests, video integration and workflow & process management.
(B) The Customer wishes to use the Supplier's service in its business operations.
(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's service
subject to the terms and conditions of this agreement.
AGREED TERMS:
1. Definitions. In this Agreement the following words and phrases shall have the following respective
meanings, unless the context otherwise requires:
Authorized Users: those employees, agents and independent contractors of the Customer who are
authorized by the Customer to use the Services and the Documentation, as further described in clause
2.2(d).
Business Day: any day which is not a Saturday, Sunday or public holiday in the U.S.
Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all,
or substantially all, of the assets, of a party by another entity in a single transaction or a series of
transactions.
Confidential Information: information that is proprietary or confidential and is either clearly labeled as
such or identified as Confidential Information in clause 9.5.
Customer Data: the data inputted by the Customer, Authorized Users, or the Supplier on the Customer's
behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Documentation: the document made available to the Customer by the Supplier from time to time which
sets out a description of the Services and the user instructions for the Services.
Effective Date: the date of this agreement.
Initial Subscription Term: the initial term of this agreement as set out Schedule 2
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Meeting Type: any individual meeting type purchased by the Customer and created within the system for
the purpose of using the Services, pursuant to clause 7.1 and Schedule 1
Normal Business Hours: 8.00 am to 5.00 pm local PST time, each Business Day.
Optional Applications: software applications developed and made available by Supplier, in addition to
the software and services as set out in paragraph 1 of Schedule 1.
Renewal Period: the period described in clause 12.1.
Services: the subscription services provided by the Supplier, as set out in paragraph 1 of Schedule 1, to
the Customer under this agreement via the website assigned to the Customer by the Supplier, or any other
website notified to the Customer by the Supplier from time to time, as more particularly described in the
Documentation.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User
Subscriptions, as set out in paragraph 1 of Schedule 1.
Subscription Term: has the meaning given in clause 12.1.
Support Services Policy: the Supplier's policy for providing support in relation to the Services as made
available at the website assigned to the Customer by the Supplier, or such other website address as may
be notified to the Customer from time to time.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 7.1 which
entitle Authorized Users to access and use the Services and the Documentation in accordance with this
agreement.
Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or
otherwise adversely affect the operation of any computer software, hardware or network, any
telecommunications service, equipment or network or any other service or device; prevent, impair or
otherwise adversely affect access to or the operation of any program or data, including the reliability of
any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or
otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other
similar things or devices.
Written/Writing: any reference to writing or written includes faxes and e-mail.
2. MEETING TYPES & USER SUBSCRIPTIONS
2.1 Subject to the Customer purchasing the Meeting Types and User Subscriptions in accordance with clause
3.3 and clause 7.1, the restrictions set out in this clause 2 and the other terms and conditions of this
agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit
the Authorized Users to use the Services and the Documentation during the Subscription Term solely for
the Customer's internal business operations.
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2.2 In relation to the number of Meeting Types and Authorized Users, the Customer undertakes that with the
exception of the purchase of Unlimited Meeting Types and Unlimited Users if identified in Schedule 1:
(a) the maximum number of Meeting Types and Authorized Users that it authorizes to access and use the
Services and the Documentation shall not exceed the number of Meeting Types and User Subscriptions it
has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorized User
unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior
Authorized User shall no longer have any right to access or use the Services and/or Documentation;
(c) each Authorized User shall keep a secure password for their use of the Services and Documentation and
that each Authorized User shall keep their password confidential;
(d) it shall maintain, within the security administration portion of the application, an up to date list of current
Authorized Users and promptly remove any unauthorized Users;
(e) it shall permit the Supplier to audit the Services in order to establish the number of Meeting Types and the
name and password of each Authorized User. Such audit may be conducted no more than once per
quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a
manner as not to substantially interfere with the Customer's normal conduct of business;
(f) if any of the audits referred to in clause 2.2(e) reveal that any password has been provided to any
individual who is not an Authorized User, then without prejudice to the Supplier's other rights, the
Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to
any such individual; and
(g) if any of the audits referred to in clause 2.2(e) reveal that the Customer has underpaid Subscription Fees
to the Supplier, the Customer shall pay to the Supplier an amount equal to such underpayment as
calculated in accordance with the prices set out in paragraph 1 of Schedule 1 within [10] Business Days of
the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Viruses or any material during the course
of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically
offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other
illegal activity; or
(f) causes damage or injury to any person or property;
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(g) and the Supplier reserves the right, without liability to the Customer, to disable the Customer’s access to
any material that breaches the provisions of this clause.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between
the parties:
(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate,
create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or
any portion of the Software in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form
all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which
competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 17.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise
commercially exploit, or otherwise make the Services and/or Documentation available to any third party
except the Authorized Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under
this clause 2; and
2.5 The Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the
Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly
notify the Supplier.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered
granted to any subsidiary or holding company of the Customer.
3. SERVICES
3.1 The Supplier shall, during the Subscription Term, provide the Services and make available the
Documentation to the Customer on and subject to the terms of this agreement.
3.2 The Supplier shall use commercially reasonable endeavors to make the Services available 24 hours a day,
seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10:00 pm to 2:00 am PST time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used
reasonable endeavors to give the Customer at least 6 Normal Business Hours’ notice in advance.
3.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer
with the Supplier’s standard customer support services during Normal Business Hours in accordance with
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the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier
may amend the Support Services Policy in its sole and absolute discretion from time to time. The
amended Support Services Policy shall apply to Customer after Supplier has provided 60 days' notice to
Customer. The Customer may purchase enhanced support services separately at the Supplier’s then
current rates.
4. CUSTOMER DATA
4.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole
responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 The Supplier shall follow its archiving procedures for Customer Data. In the event of any loss or damage
to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable
commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such
Customer Data maintained by the Supplier in accordance with the archiving procedure. The Supplier shall
not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third
party (except those third parties sub-contracted by the Supplier to perform services related to Customer
Data maintenance and back-up).
4.3 The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the
privacy and security of the Customer Data available at the website assigned to the Customer by the
Supplier, or such other website address as may be notified to the Customer from time to time, as such
document may be amended from time to time by the Supplier in its sole discretion.
4.4 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations
under this agreement, the parties record their intention that the Customer shall be the data controller and
the Supplier shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the
state where the Customer and the Authorized Users are located in order to carry out the Services and the
Supplier’s other obligations under this agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the
Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with
this agreement on the Customer's behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their
consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) the Supplier shall process the personal data only in accordance with the terms of this agreement and any
lawful instructions reasonably given by the Customer from time to time; and
(e) each party shall take appropriate technical and organizational measures against unAuthorized or unlawful
processing of the personal data or its accidental loss, destruction or damage.
5. SUPPLIER'S OBLIGATIONS
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5.1 The Supplier undertakes that the Services will be performed in accordance with the Documentation and
with reasonable skill and care.
5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by
use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by
any party other than the Supplier or the Supplier's duly Authorized contractors or agents. If the Services
do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable
commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an
alternative means of accomplishing the desired performance. However, to the extent the customer does
not approve of the correction or alternative means for any breach of the undertaking set out in clause 5.1,
the Customer may terminate the agreement without further obligation. Notwithstanding the foregoing, the
Supplier:
(a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; nor that the
Services, Documentation and/or the information obtained by the Customer through the Services will meet
the Customer's requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer
of data over communications networks and facilities, including the internet, and the Customer
acknowledges that the Services and Documentation may be subject to limitations, delays and other
problems inherent in the use of such communications facilities.
5.3 The Supplier warrants that it has and will maintain all necessary licenses, consents, and permissions
necessary for the performance of its obligations under this agreement, and
5.4 shall comply with all applicable laws and regulations with respect to its activities under this Agreement.
6. CUSTOMER'S OBLIGATIONS
6.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to render the Services, including but not limited to Customer Data, security access information
and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In
the event of any delays in the Customer's provision of such assistance as agreed by the parties, the
Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorized Users use the Services and the Documentation in accordance with the terms
and conditions of this agreement and shall be responsible for any Authorized User’s breach of this
agreement;
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(e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Supplier, its
contractors and agents to perform their obligations under this agreement, including without limitation the
Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from
time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications
links from its systems to the Supplier’s data centers, and all problems, conditions, delays, delivery failures
and all other loss or damage arising from or relating to the Customer's network connections or
telecommunications links or caused by the internet.
7. CHARGES AND PAYMENT
7.1 The Customer shall pay the Subscription Fees to the Supplier in accordance with this clause 7 and
Schedule 1.
7.2 The Customer shall on the Effective Date provide to the Supplier approved purchase order information
acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details
and, if the Customer provides:
(a) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 11.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription
Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
7.3 If the Supplier has not received payment within [30 days] after the due date, and without prejudice to any
other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, after 10 days' notice to Customer, disable the
Customer’s password, account and access to all or part of the Services and the Supplier shall be under no
obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on such due amounts at an annual rate equal to 10% commencing on the due date and
continuing until fully paid, whether before or after judgment.
7.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in U.S. dollars
(b) are, subject to clause 11.4(b), non-cancellable and non-refundable;
(c) are exclusive of state and local taxes (if applicable), which shall be added to the Supplier's invoice(s) at
the appropriate rate.
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7.5 If, at any time while using the Services, the Customer exceeds the amount of disk storage space specified
in Schedule 1, the Supplier shall charge the Customer, and the Customer shall pay the Supplier’s then
current excess data storage fees. The Supplier’s excess data storage fees current as at the Effective Date
are set out in Schedule 1.
7.6 The Supplier shall be entitled to modify the Subscription Fees, and/or the excess storage fees payable
pursuant to clause 8.5 at the start of each Renewal Period upon 90 days' prior notice to the Customer and
Schedule 1 shall be deemed to have been amended accordingly.
8. PROPRIETARY RIGHTS
8.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property
rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not
grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names,
trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services
or the Documentation.
8.2 The Supplier acknowledges and agrees that the Customer owns all property rights to the data, content and
the output resulting from the data and content provided by the Customer.
8.3 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are
necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this
agreement.
9. CONFIDENTIALITY
9.1 Each party may be given access to Confidential Information from the other party in order to perform its
obligations under this agreement. A party's Confidential Information shall not be deemed to include
information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by
written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or
administrative body.
9.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not
make the other's Confidential Information available to any third party, or use the other's Confidential
Information for any purpose other than the implementation of this agreement.
9.3 Each party shall take all reasonable steps to ensure that the other's Intellectual Property and Trade Secrets
to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of
this agreement.
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9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential
Information caused by any third party.
9.5 To the extent allowed by law, the Customer acknowledges that details of the Services, and the results of
any performance tests of the Services, constitute the Supplier's Confidential Information.
9.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
9.7 This clause 9 shall survive termination of this agreement, however arising.
9.8 Wisconsin Public Records Law and Other Laws. Notwithstanding any other term of this
Agreement, whether identified before or after this paragraph, and including other terms
referenced or linked to this Agreement,
(a) The City of Oshkosh is statutorily required to comply with the Wisconsin Public Records laws as
well as other laws. Nothing in this Agreement shall prevent or prohibit the City of Oshkosh from
complying with Wisconsin Public Records or other laws. In the event the City of Oshkosh's
compliance Wisconsin Public Records laws, or compliance with other laws, conflicts with any
term of this Agreement, whether the term is explicitly stated, or referenced, or linked, the City of
Oshkosh will comply with the applicable law and such compliance shall not be considered a
breach, default, waiver, or other violation of any term of this Agreement.
(b) For purposes of clarification, but without limitation, the City of Oshkosh acknowledges the
intellectual property and trade secrets rights of Supplier, as well as those of Supplier's
subsidiaries and affiliates. This section is not intended to limit the aforementioned intellectual
property or trade secret rights as may be otherwise described herein.
(c) For purposes of clarification, but without limitation, the parties note that this Agreement includes
various terms which may be similar, and used together, but which are not legally
interchangeable. It is acknowledged that intellectual property, proprietary information,
confidential information, and information subject to privacy laws may seem in some sense to be
the same, but each are different in nature and are subject to different legal protections. It is the
intent of the parties to interpret each term according to each term's unique characteristics. The
Wisconsin Public Records laws prevents public release of some of the aforementioned type of
information, including: Wis. Stat 19.35(1)(records, such as intellectual property, subject to
protection by other federal or state laws); Wis Stat 19.36(4)(computer programs); Wis Stat
19.36(5)(trade secrets); and; Wis Stat 19.36(13)(financial identifying information). Wisconsin
Public Records laws do not prevent public disclosure and use of information that entities may
believe are proprietary or confidential, unless that information is explicitly protected by one of
the previously mentioned laws.
(d) For purposes of clarification, but without limitation, the City of Oshkosh notes that computer
programs and software is protected from public disclosure, as noted above. However, Wis. Stat.
19.36(4) explicitly states that all material used for input into the computer program, and all
material produced as a product of the computer program is subject to public examination and
copying unless otherwise explicitly protected by law from inspection and copying. Therefore,
regardless of any notations of confidentiality placed on any input to the computer program, or
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output from the computer program, such records will be considered records available for public
inspection, copying, and use unless information is otherwise protected from public disclosure by
law. The City of Oshkosh acknowledges that in the event certain personally identifiable
information may be provided to Supplier, the City believes that such personally identifiable
information may be protected from disclosure using the balancing test analysis as allowed by
Wisconsin law. The City agrees to use such analysis when warranted. However, in cases where
warranted, the City agrees to use the balancing test analysis. However, the City notes that in all
cases the law and not this Agreement will determine which records are made publicly available.
Similarly, this Agreement, communications related to this Agreement, and pricing related to this
Agreement are considered subject to public inspection and copying, and public use without
restriction.
(e) In the event the City of Oshkosh receives a Public Records request seeking records other than
this Agreement, pricing, communications related to this Agreement, or reports, analysis, or other
material produced by the subject software, the City will notify Supplier of the request. In the case
of records requests that may include personal information received from riders by Supplier, the
City agrees to notify Supplier, promptly, to allow Supplier, the ability to take steps it deems
necessary to protect such information. If it is the City's position that the requested records are
subject to public inspection and copying according to Wisconsin Public Records laws, and if
Supplier, disagrees with the City's conclusion, then Supplier may take any lawful action it deems
necessary to protect its interests provided such action does not interfere with the City of
Oshkosh's obligations to respond to the request as soon as practicable and without delay.
However, any resulting actions by Supplier, shall be taken at Supplier's own risk and cost,
regardless of the result of such action.
10. INDEMNITY
10.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions,
proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable
legal fees) caused by Customer's use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defense and settlement of such
claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim,
(d) excepting to the extent such proceedings, losses, damages, expenses and costs are the result of Supplier’s
negligence or willful conduct.
10.2 The Supplier shall, subject to clause 10.5, defend the Customer, its officers, directors and employees
against any claim that the Services or Documentation infringes any United States patent effective as of the
Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the
Customer for any amounts awarded against the Customer in judgment or settlement of such claims,
provided that:
(a) the Supplier is given prompt notice of any such claim;
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(b) the Customer provides reasonable co-operation to the Supplier in the defense and settlement of
such claim, at the Supplier's expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
10.3 In the defense or settlement of any claim, the Supplier may procure the right for the Customer to continue
using the Services, replace or modify the Services so that they become non-infringing or, if such remedies
are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer
without any additional liability or obligation to pay liquidated damages or other additional costs to the
Customer.
10.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the
extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than the Supplier; or
(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the
Customer by the Supplier; or
(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement
from the Supplier or any appropriate authority.
10.5 The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's (including
the Supplier’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement
of any patent, copyright, trade mark, database right or right of confidentiality.
11. LIMITATION OF LIABILITY
11.1 Subject to the provisions of clause 10 this clause 11 sets out the entire financial liability of the Supplier
(including any liability for the acts or omissions of its employees, agents and sub-contractors) to the
Customer in respect of:
(a) any breach of this agreement;
(b) any use made by the Customer of the Services and Documentation or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in
connection with this agreement.
11.2 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the
Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no
liability for any damage caused by errors or omissions in any information, instructions or scripts provided
to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at
the Customer's direction;
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(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or
common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services and the Documentation are provided to the Customer on an "as is" basis.
11.3 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
11.4 Subject to clause 11.2 and clause 11.3:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty),
contract, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or
similar losses or loss or corruption of data or information, or pure economic loss, or for any special,
indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement;
and
(b) the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty),
restitution or otherwise, arising in connection with the performance or contemplated performance of this
agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12
months immediately preceding the date on which the claim arose.
12. TERM AND TERMINATION
12.1 This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the
Effective Date and shall continue for the Initial Subscription Term unless:
(a) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the
Subscription Term.
12.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may
terminate this agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is
remediable) fails to remedy that breach within 30 days of that party being notified in writing of the
breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise
which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party;
or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of
the other party, or documents are filed with a court of competent jurisdiction for the appointment of an
administrator of the other party, or notice of intention to appoint an administrator is given by the other
party or its directors; or
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(d) a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which
entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party,
or if any other person takes possession of or sells the other party's assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a
court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) there is a change of control of the other party; or
(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt;
or
(i) upon 30 days written notice by either party, with or without cause.
12.3 On termination of this agreement for any reason:
(a) all licenses granted under this agreement shall immediately terminate;
(b) each party shall make no further use of any equipment, property, Documentation and other items (and all
copies of them) belonging to the other party;
(c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the
Supplier receives, no later than 30 days after the effective date of the termination of this agreement, a
written request for the delivery to the Customer of the then most recent back-up of the Customer Data.
The Supplier shall use reasonable commercial endeavors to deliver the back-up to the Customer within 30
days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and
charges outstanding at and resulting from termination (whether or not due at the date of termination). The
Customer shall pay the lesser of either the reasonable expenses or actual expenses incurred by the
Supplier in returning or disposing of Customer Data; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision
expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced; and
(e) subject to mutual agreement, customer shall be entitled to a prorated refund of any prepayments.
13. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or
delayed in performing its obligations under this agreement, or from carrying on its business, by acts,
events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-
outs or other industrial disputes (whether involving the workforce of the Supplier or any other party),
failure of a utility service or transport or telecommunications network, act of God, war, riot, civil
commotion, malicious damage, compliance with any law or governmental order, rule, regulation or
direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-
contractors, provided that the Customer is notified of such an event and its expected duration.
14. WAIVER
DocuSign Envelope ID: 93D67B65-AB1B-4CB0-BFF8-7B98F44D8957
14.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the
party to whom the waiver is addressed and to the circumstances for which it is given.
14.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not
exclude rights provided by law.
15. SEVERANCE
15.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of
competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it
were deleted, the provision shall apply with whatever modification is necessary to give effect to the
commercial intention of the parties.
16. ENTIRE AGREEMENT
16.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties
and supersede any previous arrangement, understanding or agreement between them relating to the
subject matter they cover. For clarification, the parties agree that the conditions of use identified on
Supplier’s website are not applicable to this agreement
16.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any
undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing
or not) of any person (whether party to this agreement or not) relating to the subject matter of this
agreement, other than as expressly set out in this agreement.
17. ASSIGNMENT
17.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-
contract or deal in any other manner with all or any of its rights or obligations under this agreement.
17.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or
any of its rights or obligations under this agreement.
18. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or
authorize either party to act as agent for the other, and neither party shall have the authority to act in the
name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making
of any representation or warranty, the assumption of any obligation or liability and the exercise of any
right or power).
19. THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement
and, where applicable, their successors and permitted assigns).
20. NOTICES
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20.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or
sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this
agreement, or such other address as may have been notified by that party for such purposes, or sent by fax
to the other party's fax number as set out in this agreement.
20.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in
business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by
pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at
which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to
have been received at the time of transmission (as shown by the timed printout obtained by the sender).
21. GOVERNING LAW AND JURISDICTION
21.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or
formation (including non-contractual disputes or claims) are governed by, and construed in accordance
with the laws of the State of Wisconsin.
21.2 This agreement, including its payment obligation, is performable in Winnebago County, WI and venue
for all actions in connection with this Agreement shall lie exclusively in Winnebago County, WI.
This agreement has been entered into on the date stated at the beginning of it.
DESTINY SOFTWARE INC.
PER:
Dean Dickinson, Vice President
CITY OF OSHKOSH
By: _______________________________
Mark A. Rohloff, City Manager
And: _______________________________
Diane Bartlett, City Clerk
APPROVED: I hereby certify that the necessary
provisions have been made to pay
the liability which will accrue under
this contract
_____________________________
Lynn Lorenson, City Attorney
______________________________
Russ Van Gompel, City Comptroller
DocuSign Envelope ID: 93D67B65-AB1B-4CB0-BFF8-7B98F44D8957
Schedule 1 - Subscription Fees
Software Application and Platform – AgendaQuick SaaS
1. SUBSCRIPTION FEES – UNLIMITED MEETING TYPES/UNLIMITED USERS
Initial Subscription: Billed for remainder of 2023 from effective date of June 1, 2023
Subscription Fees shall amount to a total of $6,700 for 2024
Subsequent years may be adjusted based on the average usage of the previous 2 years, data storage, third-
party licensing fees and number of Meeting Types.
2. SETUP, IMPLEMENTATION & TRAINING
Setup, Implementation &Training fees shall amount to a total one-time charge of $2,750. Initial
Administration and User training is provided online.
3. DISK STORAGE ALLOCATION
The amount of disk storage allocated to Customer during the term of this agreement is 10GB. (Customer
disk storage is estimated to be less than 1GB annually)
4. EXCESS STORAGE FEES
Disk storage in excess of 10GB will be subject to supplier’s excess storage fees in effect at that time.
Current fees are: $35/YEAR for each additional 1GB over the 10GB limit.
5. OPTIONAL MODULES AND SERVICES
Optional applications developed and provided by Supplier may, upon mutual agreement of Supplier and
Customer, be added to Schedule 1 after the effective date.
Schedule 2 – Subscription Term
Software Application and Platform – AgendaQuick SaaS
1. Initial Subscription Term: Remainder of 2023 from effective date with automatic annual renewals on
January 1, unless terminated by either party per agreement terms.
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