HomeMy WebLinkAboutKnoxConnect Software Agreement OFD 2023
K noxConnect™ Software M aster A greem e nt
BY CLICKING THE "I ACCEPT" BUTTON BELOW, YOU ACCEPT EACH AND EVERY TERM IN THIS SOFTWARE MASTER AGREEMENT. THIS AGREEMENT IS EXPRESSLY
CONDITIONED UPON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS BELOW.
IF YOU DO NOT WISH TO COMPLY WITH ANY TERM OR CONDITION IN THIS AGREEMENT, YOU SHOULD NOT CLICK THE I ACCEPT' BUTTON.
THIS KNOXCONNECT" AGREEMENT (the "Agreement") Is entered into as of the date of your acceptance of this Agreement (the "Effective Date") between Knox
Company, an Arizona corporation, having an office at 1601 W. Deer Valley Road, Phoenix, AZ 85027 ('Ko") and the party entering Into this Agreement as
"Customer."
WHEREAS, Knox is in the business of providing to customers its "KnoxConnect" as a part of the KnoxLock" System and the Knox KeySecure 200 System, in the
form of a Software as a Service provider ("Saas"),
WHEREAS, the KnoxConnect" includes other ancillary programs and applications that may be downloaded or accessed by Customer in connection with the
services provided hereln; and
WHEREAS, Customer wishes to subscribe for and purchase certain services from Knox, Including the KnoxConnect, and Knox desires to provide the
KnoxConnectto Customer on the terms and conditions set forth herein, NOW, THEREFORE, the parties do hereby agree as follows:
1. Services. The speclfic services for the KnoxConnect" (the "Services") to be provided to the Customer by Knox shall be set forth In one or more registrations for
the Customer (each, a "Registratlon"). Such Registration(s) may be executed by the parties simultaneously herewith or at any time during the Term (as defined
below) and may Incorporate the terms of written proposals submitted by Knox to Customer with respect to the Services. Except to the extent otherwise provided In
any such Registration, all terms and conditions of this Agreement shall be applicable to all Registrations and deemed incorporated therein. Knox may, from time to
time, make modifications to the terms and conditions in this Agreement and/or related to the Services. Knox will provlde reasonable advance notice to Customer of
any changes. Customer's continued use of the Services or the KnoxConnect" following any such notice wIll constitute Customer's acceptance of the modification(s).
2. Term. The term of thls Agreement shall be twelve (12) months, commencing upon Activatlon (as defined below} (the 'initlal Term'). After the Initial Term, this
Agreement can be renewed by Customer by payment of the renewal invoice (Renewal Term). Either party may notify the other In writing of Its election not to
renew, which notice must be given no less than sixty (60) days prlor to the expiration of the Initial Term or Renewal Term, as the case may be. In no event,
however, shall the effective date of termination of this Agreement be earlier than the last day of the Initial Service Period specified in any Registration. For
purposes of this Agreement, the Initial Term and the Renewal Terms may be referred to as the "Term." The term "Activation" sh all mean the date upon which
Customer recelves the emall invitation from Knox to inltlate the Customer's KnoxConnect", as indicated by Knox's records.
3. Knox Fees. In consideration of the provision of the Services to be rendered by Knox, Customer shall pay to Knox the fees as listed in Knox's price quote in effect
as of the Effective Date of this Agreement. If applicable, any setup and development fees, as well as any other fees agreed to by the Customer, shall be paid In full
upon execution by the parties of the document memoriallzing such fees.
4. Force Majeure. Knox shall not be liable in any manner for any damage or loss sustained by Customer as a result of any act or event outslde the reasonable control
of Knox, including, but not limited to, any damage or loss arising out of (l]) acts or omissions of Customer or third parties or (Ii) any failure or delay in providing the
Services resulting from acts of God, power outages, failure of communication lines, Internet failure or similar occurrence.
5. Limitatlon of Llabllity. The liability of Knox in connection with any claim by Customer or any third party based upon this Agreement, the KnoxConnect" or the
Services shall not In any event exceed an amount equal to sums paid by Customer to Knox during the one [1) year perlod immediately preceding the act or event
allegedly giving rise to liability on the part of Knox, or the amount of the current subscription, whichever is less, regardless of whether such claim is based upon
breach of contract, negligence or other theory. Customer acknowledges that (l) the fees to be charged by Knox hereunder reflect the fact that the llabillty of Knox is
limited as set forth herein and {ii) In the absence of such limitation, such fees would be substantially higher,
IN NO EVENT SHALL KNOX BE LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM
CUSTOMER'S USE OF THE SERVICES, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN CONTRACT, IN TORT OR OTHERWISE. CUSTOMER MAY NOT ASSERT ANY
CLAIM AGAINST KNOX MORE THAN ONE (1) YEAR AFTER SUCH CLAIM ACCRUED.
6. Customer Obligations and Representations. Customer shall provide Knox, in a timely fashion, with all documents and Information reasonably requested by Knox
for use in the performance of the Services hereunder; shall otherwise cooperate with Knox In order to enable Knox to perform such Services; shall monitor and
control access to the Services by Its employees and agents; and shall insure that the Services are utilized in a manner which does not violate any federal, state or
local law, rule or regulation (hereinafter collectively referred to as "Applicable Law"). Customer shall also (a) have sole responsibility for the accuracy, quality,
integrity, legality, reliabllty and appropriateness of all Customer data, (b) maintain the confidentiality of passwords and account information required for access to
the Services, (c) prevent unauthorized access to, or use of the Services, and (d) notify Knox promptly of any unauthorized use or access of the Services. Customer
represents and warrants that no contractual obligations exist that would prevent Customer from entering Ito this Agreement and that it has requisite authority to
execute, deliver, and perform this Agreement.
7. Knox Obligations. Representations and Warranties. Knox warrants and represents that it has the right to provide the Services; that the Services will not
knowingly Infringe on any United States copyrights, trademarks or patents held by others; and that its employees will exercise due care and diligence in providing
the Services to Customer. Knox agrees to indemnify and hold Customer harmless from and against any liability, loss, damage, cost, penalty or expense of any kind
arising out of or in any way relating to (I) claims arising out of infringement of the Services of any United States copyright, trademark, patent or other intellectual
proper- ty right or (il) the violation by Knox of any Applicable Law in Its provision of the Service; provided however, that Knox is promptly advised of any such claim
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o r acti on an d has so le co n tro l of the defense o f any suc h ac tlo n an d all negotia tio n s for its settle m e nt o r com pr o m is e , an d th e liability o f Kno x under t his Sectlo n
shall be im ited In accor d ance wi th Se ction 5, If at any tim e use of the Service s are enjoined or di sc o n tinue d bec ause o f a se tt le m e nt, Kno x sh all have th e rig ht, at It s
sole option and exp en s e, to eith e r pr o cu re fo r Custom er th e righ t to conti nu e usin g th e Se rvice s, re p lac e o r m od ify th e Ser vi c e s so th at th ey be co m e n o n-infrin gin g
or g rant C u sto m e r a credit fo r the un used Se rvices. Kno x shall not h ave any liabllity to C ustom er If t h e infrin gem e n t o r other v io latio n of a th ird -p arty righ t is based
In any way upon the use of a Services In combination with Customer input or contributions, software not furnished by Knox, or any Services which have been
modfled or altered, or any use of the Services that are not in accordance with this Agreement.
THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY KNOX. KNOX DOES NOT MAKE, AND HEREBY EXPRESSLY
DISCLAIMS, ALL OTHER WARRANTIES, INCLUDING WARRANTIES Of MER- CHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Invoices; Payment. Upon receiving a Purchase Order from Customer, Knox wlll send Customer an invoice. Payment terms will be stipulated in each invoice. Any
Involce submitted by Knox shall be deemed correct unless Customer provides written notice to Knox within ten (10) days of the invoice date specifying In good faith
the nature and amount of the disagreement. In the event any invoice (except any portion so disputed) remains unpaid by Customer for forty five (45) days after the
Involce date, Knox may, without prejudice to any of Its other rights hereunder, suspend Customer's access to and use of the Services upon five (5) days written
notice to Customer.
9. Termination by Customer. Customer may terminate this Agreement In the event of a material breach by Knox that is not cured within sixty (60) days following
written notice to Knox stating, with particularlty and in reasonable detall, the nature of the claimed breach.
10. Termination by Knox. If Customer:
A. fails to pay any involce submitted by Knox [except any portion disputed pursuant to Section 8 hereof) within thirty (30} days of the involce date; or
B. breaches this Agreement In any material respect or otherwise defaults in any material respect in the performance of any obligations and fails to cure such
breach or default within thirty (30} days after notlce thereof is given to Customer by Knox; or
C. commits an act of bankruptcy, becomes insolvent or becomes the subject of any proceeding under the Bankruptcy Code, which proceeding is not dismissed
within thirty (30) days after It is filed; or
D. violates any Applicable Law in its utilization of the Services or of the Information obtained through such utilization; then, in any such event, Knox may, upon
written notice, terminate this Agreement.
11. Remedles; Return of Customer Data.
A. In the event of termination by Knox pursuant to Section 10, all amounts pald by Customer will be retained by Knox and Customer will not be entitled to any
refund.
B. Such amount shall be recoverable by Knox as liquidated damages and not as a penalty. Customer acknowledges and agrees that the damages that Knox would
sustain In the event of a default by Customer would be extremely difficult, if not impossible, to ascertain and that the foregohng measure of damages is reasonable
under the circumstances.
C. Remedies contained In this Section are cumulative and are in addition to the other rights and remedles available to Knox under this Agreement, by law , in equity
or otherwise.
D. For a perlod of sixty (60) days following expiration or termination of the Agreement (the "Grace Period"), Knox will allow Customer access to the Services in order
for Customer to copy or transport Customer data. During this perlod, no additional Customer data wIll be allowed to be uploaded onto the KnoxConnect site.
Approximately sixty ({60) days after the Grace Period, Knox will send Customer an audit file of Customer data contained on the KnoxConnect site. At such time, Knox
shall have no further obligation to maintaln or provide any Customer data and shall thereafter, unless legally prohibited, delete all Customer data in its systems or
otherwise in its possesslon or under its control and Customer shall no longer have any access to the KnoxConnect or the Services.
12. Taxes. Customer shall pay any sales, use, excise, value added, and other taxes and duties however designated that are levied by any taxing authority relating to
the Services. In no event shall Customer be responsible for taxes based upon the income of Knox.
13. Access to Services.
A. Procedures. Customer agrees to comply wi th any regulatory requirements applicable to Customer and with reasonable operatlng and access procedures for use
of the Services established by Knox and furnished from time to time to Customer.
B. Internet Access; Computers; Equipment. Customer shall, throughout the Term, arrange to obtain, at its cost, such inter- net access, computer terminals and
other equipment as shall at all times be sufficient or necessary to access the Services,
C. Unless provided otherwise in a Registration, the Services are for business use by Customer only. Customer will not permit any third party use of the Services or
allow access to the Services from sltes outside of Customer's business premises except as authorized in writing by Knox. The Services are to be used only for the
purposes specified in thls Agreement and the Registrations.
14. Ownership. Customer acknowledges (l) that this Agreement does not convey to Customer any license or other ownership right in the Services; {Ii) that all such
Services are and shall remain the sole and exclusive property of Knox; and {Ill) that the only right granted to Customer hereunder Is the right to obtain and use the
Services in accordance with this Agreement and in consideration of the fees provided for herein and subject to the other terms and conditions of this Agreement.
Further, Customer acknowledges and agrees that Knox shall have excluslve rights to the key codes associated with or related to any Devices (as defined below).
15. Ag grega te /A m on y mous Data. "Aggregate/Anonymous Data" means (i.) data generated by aggregating Customer data or Informatlon with other data so that
results are non-personally Identlflable with respect to Customer or its users and (Ii) anonymous learnings, logs and data regarding use of the Services. Customer
agrees that Knox will have the right to generate Aggregate/Anonymous Data. Notwithstanding anything to the contrary herein, the parties agree that
Aggregate/Anonymous Data is Knox property, which Knox may use for any business purpose during or after the Term of thls Agreement, Including, without
limitation, to develop and improve Knox's products and services and to create and distribute reports and other materials, Knox will not distribute
Aggregate/Anonymous Data In a manner that personally Identifies Customer or Its users.
16. Vendor M ana g eme n t; Audit Inf orm at io n
A. Knox will assist Customer in complying with its regulatory vendor/service provider management obligations by providing Customer, upon request, with (l) an
overview of Its securlty processes and hosting environment, and (i) its hosting provider's security-related audit reports, certificates of compliance or certificatlons
to the extent made avallable by such provider.
B. Knox will cooperate with Customer, at Customer's expense, in responding to requests relating to the Items listed in Section A above made by any federal or state
agency having jurisdiction over Customer.
C. Knox represents that It has established, and will maintaln throughout the Term, a business continuity/disaster recovery plan that applies to the Services.
D. All materials provided to Customer under this Section shall be considered Knox Information and shall be subject to the Confidentiality Provisions of Section 15 of
this Agreement.
E. Knox represents that the Service Is hosted, and that all data Is located, and will continue to be located throughout the Term, exclusively within the United States
of America.
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17. Recrultement of Employees. Each party agrees not to knowingly hire the other party's employees during the term of this Agreement and for a period of six [6)
months after expiratlon or termination, except with the prlor written consent of the other party.
1. General.
A. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the
parties. Nelther party has the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as expressly
provided In this Agreement. There are no third-party beneficiaries to this Agreement.
8. Binding Agreement. This Agreement is binding upon the parties and their respective successors and permitted assigns. Neither this Agreement nor any interest
hereln may be sold, assigned, transferred, pledged or otherwise disposed of by Customer, whether pursuant to change of control or otherwise, without the prior
written consent of Knox, which consent shall not be unreasonably withheld.
C. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties as to the subject matter hereof,
including confidentiality obligations of the parties, and supersedes all previous agreements with respect thereto. Modifications of this Agreement must be In writing
and signed by duly authorized representatives of the parties. Each party hereby acknowledges that it has not entered into this Agreement in reliance upon any
representations made by the other party that have not been embodied herein.
D. Severability. if any provision of this Agreement Is held to be unenforceable or invalid, the other provisions shall contlnue In full force and effect.
E. Governing juri s di cti o n and venue fo r a ny matte r arising out o f or pertainin g to th is A greem ent sh all b e proper o n ly in th e st ate a nd federa l cou rts lo cate d in t h e
Stat e of
Ar izona o r in the Un ited State s D istrict Court for th e State of Arizona.
F, N o tices. Any w ri tt en no tice requ ired or perm itted to be giv en hereunder shall be given; (i} b y Re gi ste re d o r C ert if le d M ail, R e tu rn Recei p t R e q ueste d, po sta ge
pre paid ; o r (ii) by co nfirm ed facsim ile ; or (lli) by natio n ally reco gnized o ver night courier servic e, in e a ch ca se dir e c te d to th e other p arty at the a ddr ess se t forth
her ein after o r to such o ther address as a par- ty m ay de signate In wr iting. All such notice s shall b e effective upo n rec eipt.
G . No W aiver . The 'allure of elth e r party to insist on strict pe rf o r m an c e of an y of the prov isions hereund er sh a ll no t be co n strue d as the waiver of any subsequent
default of a similar nature.
H. Survival. All rights and obligations of the parties under this Agreement that, by their nature, do not terminate with the expiration or termination of this
Agreement shall survive the expiratlon or termination of this Agreement.
Wisconsin Public Records 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,
Both parties recognize that their respective employees and agents, in the course of performance of this Agreement, may be exposed to Information that
is not disclosable under public records laws, Including without limitatlon, personal identifying informatlon (e.g., soclal security numbers) and trade
secrets, each as defined by applicable Wisconsin law. Each party agrees that It will not disclose any information that would not be disclosable under
the Public Records law and further agrees to take all reasonable and appropriate action to prevent such disclosure by its employees or agents.
The Client Is statutorily required to comply with the Wisconsin Public Records laws. In the event the Client's compliance with the Wisconsin Public Records
laws conflicts with any term of this Agreement, whether the term is explicitly stated, or referenced, or Inked, the Cllent shall notify Knox Company
of such conflict and Knox Company may take such action as It deems appropriate under paragraph (d) below.
(c) For purposes of clarification, but without limitation, the Cllent acknowledges the intellectual property and trade secrets rights of Knox Company, as
well as those of Knox Company's subsidiaries and affiliates. This section is not intended to IImlt those intellectual property or trade secret
rights. The Wisconsin Public Records laws prevent public release of trade secrets and certain other information, including, e.g.: 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) (financlal identifying information).
(d) In the event the Client recelves a Public Records request related to this Agreement, the Client will promptly notify Knox Company of the request and
allow Knox Compary, within the time allowed by the Wisconsin Public Records laws, the opportunity to respond to and/or contest the release of
such requested Information; and Client wIll otherwise perform the functlons required by applicable law.If Knox Company has contested the release
of the requested records and the Client disagrees wIth Knox Company's position, then Knox Company may take any lawful actlon It deems necessary
to protect its interests. Any resulting actions by Knox Company shall be taken at Knox Company's own risk and cost, regardless of the result of such
action.
(e) The confidentiality covenants contained herein will survive the termination or cancellation of this Agreement.
BY SIGNING BELOW AND ACCESSING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF
THIS AGREEMENT AND AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS HEREIN.Law. This Agreement shall be governed by the laws of the State of
Arizona, without reference to conflict of law principles. The Parties agree that
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In the Presence of: CONTRACTOR/CONSULTANT
By:
(Seal of Contractor if a Corporation)
CITY OF OSHKOSH
(Witness)
By:
Mark A. Rohloff, City Manager
And:
(Witness) 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.
City Attorney
City Comptroller
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