Agreement

C22-1316

p ROM | U M www.promium.com
1.877,.PROMIUM

Element LIMS® Maintenance Agreement

This Maintenance Agreement (the "Agreement") is a legal agreement between the customer listed on the
Promium Order document ("you" or "Customer") and Promium, LLC (“Promium”) for maintenance and support
services for the Element LIMS® software and related software applications (the "Software”). Maintenance and
support are provided by Promium for the term of this Agreement. For license purchase customers, an initial one-
year term is included as part of the Software license purchase. Thereafter, this Agreement shall automatically
renew for subsequent one-year periods until terminated as described below unless otherwise specified. For lease
customers, a Maintenance Agreement is in effect for the duration of the lease term.

Services not explicitly described in this document are not covered by the Maintenance Agreement or provided by
Promium unless otherwise specified. Suchitems include conflicts that may cause Software failure due to firmware
or device drivers or micro code problems introduced by the manufacturer or other parties; issues arising from
software programs from other vendors; computer equipment, network equipment, database software, or any
other product that may malfunction unless the malfunction is directly caused by the Software.

1. Technical Support Services:
a. Scope: Technical support services under this Agreement are limited to the two most recent major versions of

the covered Software products and are available to customers who have a valid Maintenance Agreement.

b. Services: Unless otherwise communicated, telephone support is available Monday through Friday, 5:00am to
5:00pm Pacific Time, not including holidays recognized by Promium. At othertimes, a telephone or email message
may be left and Promium personnel will respond within one business day. Emergency technical assistance
provided outside of normal business hours may incur additional charges if specified in the contract. Online
documentation and other support materials are available at www.promium.com/support or accessible directly
through the product. Promium website is available twenty-four hours per day, seven days per week unless
undergoing maintenance or repair.

Each Element LIMS customer requiring support must designate at least one primary contact person to manage
technical support requests.

Support requests should be directed to:

Promium Customer Support (Help Desk)

425.286.9200 phone

425.286.9201 fax

support@promium.com

Promium, LLC Element LIMS* Maintenance Agreement 1010422 1

p ROMI| UM Www. promium.com
i 1.877.PROMIUM
2. Software Updates:

Software updates to the core system, including Software revisions, are provided at no additional charge to
customers who have a valid Maintenance Agreement. Updated system components such as executables, libraries,
controls, Basic report formats and supporting files for the covered Software products and its companion
applications are available from the Promium downloads section of the web site at www.promium.com/support. No
additional tangible goods will be provided with the renewal of the maintenance subscription. Updates to Standard
and customized Electronic Data Deliverables (EDDs) and reports are available at an additional charge.

3. Custom Programming Services

Promium may offer certain features, functions, reports, and other input or output which are not considered part of
core Software or services by Promium. These items are considered custom work. Deliverables including but not
limited to, custom programming, custom reports, proprietary electronic deliverable programs, other special
program functions on behalf of the user, and other custom services, outside the original purchase agreement, may
incur additional charges as quoted by Promium.

4. Services Not included

Promium reserves the right to charge for support or progra mming services that are unrelated to the direct
Operation of its Software products. This includes conflicts that may cause Software failure due to firmware or
device drivers or micro code problems introduced by the manufacturer or other parties. This also includes other
Software programs that may interfere with its Software products.

5. Term & Renewal

This Agreement is effective for one year for license purchase customers. The effective (service start) date is within
thirty (30) days of shipment of software unless otherwise specified. Upon the expiration of the initial one-year
term {and unless otherwise terminated), this Agreement shall automatically renew for successive one-year periods
unless either party gives written notice of its intent to terminate the Agreement before the then-current term
expires, unless autorenewal is prohibited by statute. For lease customers, this Agreement is effective for the
period of the lease, and it shall continue automatically provided that lease payments are timely received by
Promium.

6. Payment

For license purchase customers, annual maintenance payments shall be paid in advance. Costs for each renewal
term are generally invoiced to you 45 days prior to the expiration of the renewal term and are due net 30 days
from invoice date. Prices are subject to change. Payment not received on or before the Payment Deadline shall be
subject to a one-and-one-half percent (1%%) monthly late fee. In the event that Customer fails to make timely
payment under this Agreement, Promium reserves the right to terminate this Agreement and/or suspend the
provision of services under it by providing Customer written notice of its election to do so. Maintenance for lease
customers shall be paid in advance as provided in the Promium Software Lease Agreement.

7. Billing

Any services not covered under this Agreement will be billed at a rate set by Promium in its course of business.
Payment for services billed shall be made within thirty (30) days of the date of invoicing or shall be subject to a
one-and-one-half percent (1%%) monthly late fee.

Promium, LLC Element LIMS” Maintenance Agreement 1010422 2

P ROM | U M www. promium.com
1.877,.PROMIUM
8. Warranty Disclaimer and Limitation of Liability

a. THE PROMIUM MAINTENANCE SERVICES ARE PROVIDED "AS IS" AND PROMIUM MAKES NO ADDITIONAL
REPRESENTATIONS OR WARRANTIES OF ANY KIND. PROMIUM HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES,
CONDITIONS, AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, THAT MAY ARISE
EITHER BY THE PARTIES' AGREEMENTS OR BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
PROMIUM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES INCLUDING, WITHOUT LIMITATION,
REPRESENTATIONS OR WARRANTIES THAT (A) THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (B) THE
OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR (C) ANY DEFECTS IN THE SOFTWARE
WILL BE CORRECTED. This disclaimer shall not apply to the extent that it is prohibited by applicable law.

b. We will not be liable for any loss or damage caused by delay in furnishing the Software or any other
performance under this Agreement.

c. Our entire liability and your exclusive remedies for our liability of any kind (including liability for negligence
except liability for personal injury caused solely by our negligence) for the Software covered by this Agreement and
all other performance or nonperformance by us under or related to this Agreement are limited to the remedies
specified by this Agreement. REGARDLESS OF WHETHER ANY REMEDY IN THIS AGREEMENT FAILS OF ITS
ESSENTIAL PURPOSE, THE LIABILITY OF PROMIUM SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE
AMOUNT OF THE LICENSE FEES PAID TO PROMIUM FOR THE SOFTWARE MAINTENANCE SERVICES DURING THE
TWELVE (12) MONTHS PRIOR TO THE DATE OF THE CLAIM. IN NO EVENT SHALL PROMIUM BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING PUNITIVE DAMAGES AND LOST PROFITS,
RELATED TO THE SOFTWARE OR ANY ASSOCIATED SERVICES THAT PROMIUM MAY PROVIDE, EVEN IF PROMIUM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

d. Some states or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for
consequential or incidental damages, so the above exclusion may not apply to you. In such situations, Promium's
liability shall be limited to the extent permitted by law. This warranty gives you specific legal rights, and you may
also have other rights which vary from state to state.

9. General

a. If Customer breaches any of the terms of this Agreement, Promium, in addition to any other legal remedy it
may have, may cancel this Agreement effective upon written notice to Customer. This Agreement or other proof
thereof must be presented by Customer as valid Maintenance coverage upon request.

b. In any suit, proceeding or action to enforce this Agreement, the substantially prevailing party shall be entitled to
recover from the other party reasonable attorneys' fees and costs and expenses in connection with such suit,
proceeding or action, including appeal. This Agreement shall be governed by and construed under the laws of the
State of Washington without regard to its conflict of laws principles. The jurisdiction and venue for any suit or
action between the parties shall be the state and federal courts of King County, Washington.

c. Failure to enforce any rights granted herein shall not be deemed a waiver as to subsequent enforcement of such
rights. !f any part of this Agreement is found void and unenforceable, it shall be modified in such manner as to be
valid and enforceable but so as to most nearly retain the intent of the parties; and if such modification is not
possible, it shall be deemed severed from this Agreement and shall not affect the validity and enforceability of the
balance of the Agreement.

Promium, LLC Element LIMS" Maintenance Agreement r010422 3

i R O M UM www.promium.com
1,.877.PROMIUM
d. This Agreement is not assignable and the licenses granted hereunder may not be sublicensed, assigned or

transferred in any manner without the prior written consent of Promium. Any such attempted sublicense,
assignment or transfer shall be void.

@. This Agreement, together with its accompanying Price quotation, Order, Maintenance Agreement and Payment
Terms and Conditions, constitute the entire understanding and agreement of the parties with respect to its subject
matter, and any and all prior agreements, understandings or representations with respect to its subject matter are
merged herein. The terms and conditions of this Agreement prevail over the terms and conditions of any other
order (such as a purchase order) submitted by Customer for maintenance services. This Agreement may be
amended only by written instrument signed by both parties subsequent to the date hereof. Any terms of this
Agreement which by their nature extend beyond the Agreement termination or expiration shall remain in effect
until fulfilled. These include Sections 6, 8 and 9.

Master: 010422 Customer Revision:

*#e84869*2**The section below is only required if the previous agreement has already expired. ******9+842%

Annuai Maintenance Coverage Effective Date: 4/1/2023 ~ 12/31/2025

City of Glendale prirhensl:t c

Organization Name Organization Name
eri

Ron Serio LL Cer GAMA
Authorized Agent Name (print) Authorized Agent Name (print)

Water Services Director Cc EO)
Title E-SIGNED by Ron Serio Title

on 2022-12-19 12:50:16 MST
Signature Signature

- ; 12fee/- 22—

Date Date ot
Promium, LLC Element LIMS* Maintenance Agreement 1010422 4

-————S

ADDENDUM to Element LIMS Maintenance_(“Agreement”)

The City of Glendale, Arizona (“City”) and Promium, LLC (“Contractor”) further agree as
follows:

L Conflicts. Contractor acknowledges this Agreement is subject to A.R.S. § 38-511,
which allows for cancellation of this Agreement in the event any person who is significantly
involved in initiating, negotiating, securing, drafting, or creating the Agreement on City's
behalf is also an employee, agent, or consultant of any other party to this Agreement.

Il. Lack of Appropriations. Nothing in this Agreement guarantees that some or all of
the funds necessary to comply with all of the City’s obligations under this Agreement will be
appropriated or otherwise be available. The City agrees to seek such appropriations in good
faith from the City Council and agrees not to use the lack of appropriation as a substitute for
termination for convenience. If sufficient funds are not appropriated or otherwise available,
the City may unilaterally terminate this Agreement after providing thirty (30) days written
notice. In the event the City provides such notice, the City will not be entitled to a refund ot
offset of any amounts previously paid but will not pay any amounts that become due after
providing such notice.

Ill. E-verify, Records and Audits. To the extent applicable under A.R.S. § 41-4401, the
Contractor warrant their compliance and that of its subcontractor with all federal
immigration laws and regulations that relate to their employees and compliance with the E-
verify requirements under A.R.S. § 23-214(A). ‘The Contractor or subcontractor’s breach of
this warranty shall be deemed a matetial breach of the Agreement and may result in the
termination of the Agreement by the City under the terms of this Agreement. The City
retains the legal right to randomly inspect the papers and records of the other party to ensure
that the other party is complying with the above-mentioned warranty. The Contractor and
subcontractor warrant to keep their respective papers and records open for random
inspection during notmal business hours by the other party. The parties shall cooperate with
the City’s random inspections, including granting the inspecting party entry tights onto their
respective properties to perform the random inspections and waiving their respective rights
to keep such papers and records confidential.

IV. Attestation of PCI Compliance. The Conttactor will provide the City annually
with a Payment Card Industry Data Security Standard (PCI DSS) attestation of compliance
cettificate signed by an officer of Contractor with oversight responsibility.

V. No Boycott of Israel. To the extent ARS § 35-393 through § 35-393.03 ate
applicable, the parties hereby certify that they are not currently engaged in, and agree for the
duration of the Agreement to not engage in, a boycott of goods or services from Israel, as
that term is defined in A.R.S § 35-393.

VI. Dispute Resolution. Any conttovetsy or claim arising out of or relating to this
contract, or the breach thereof, shall be settled by arbitration administered according to the
American Arbitration Association’s Commercial Arbitration Rules, and judgment on the
award rendered by the arbitrator may be entered in any court having jurisdiction thereof,

1 4/29/2021

VH. Non-Disctimination. Contractor must not discriminate against any employee or
applicant for employment on the basis of race, color, religion, sex, national origin, age,
marital status, sexual orientation, gender identity or expression, genetic characteristics,
familial status, U.S. military veteran status or any disability. Contractor will requite any Sub-
contractor to be bound to the same requirements as stated within this section. Contractor,
and on behalf of any subcontractors, wartants compliance with this section.

VII. Governing Law and Venue. This Agreement and Addendum shall be governed by
and enforced using the law of the State of Arizona. The parties agree that any judicial action
brought to enforce the terms and conditions of this Agreement shall be brought in a court of
competent jurisdiction in Maricopa County, Arizona.

TX. Addendum and Agreement Conflict. In the result of any conflict between the
Agreement and this Addendum, the terms of this Addendum shall prevail.

CITY OF GLENDALE: CONTRACTOR:
E-SIGNED by Ron Serio
on 2022-12-19 12:50:23 MST
By: Ron Serio, P.E, By:
Its: Water Services Director Its: Authorized Representative
'(2(@/22-
Date Date
ATTEST:

E-SIGNED by Julie K. Bower
on 2022-12-20 09:42:28 MST

Julie K. Bower
City Clerk

APPROVED AS TO FORM:

E-SIGNED by Michael D. Bailey
on 2022-12-20 09:10:01 MST
Michael D. Bailey
City Attorney

2 4/29/2021

PROMIUM RENEWAL QUOTATION

3350 Monte Villa Parkway #220 Bothell, WA 98021 1.877,PROMIUM

City of Glendale Order #
5850 W Glendale Ave Suite 302 Prepared by: Lindsey Pfuhl
Glendale AZ

85301

623-930-3885 Rvorbeck@glendaleaz.com
Element LIMS® version 6 Currency: USD Effective: 11/1/2022
ANNUAL MAINTENANCE RENEWAL Users Price Per Total
Annua! Maintenance Renewal 8 $ 999 $ 7,992

Renewal Term: 1/1/2023 to 12/31/2023

Annual Maintenance Renewal 8 $ 1,039 $ 8312

Renewal Term: 1/1/2024 to 12/31/2024

Annual Maintenance Renewal 8 $ 1,081 $ 8,644

Renewal Term: 1/1/2025 to 12/31/2025
Total Maintenance - For Budgeting Purposes $ 24,948

Terms & Conditions This proposal expires after: 30 Days
Payment is due net 30 days uniess otherwise specifed in the contract.
Delay in payments can result in discontinuation of services. Late payments may be subject to a 1 1/2% monthly late fee.

TAXES: Even if we do not collect sales tax from you, your state may still fequire you to pay tax. Promium collects sales tax in WA, AZ, CA, FL, Hi, IL, IN, MD, MI,
NM, MO, NJ, NY, PA, Ri, TN, TX, Wi. A sales tax is not collected if we have your tax exemption certificate on file,

Customer agrees to the renewal of the existing subscription to Promium software, as described in this order form. This order is an addendum
to an existing hosted services contract with Promium. The order, and the Promium software and services covered by it, shall be subject to
Promium's end-user license agreement, and relevant payment terms & conditions of the original contract unless otherwise specifically stated
above. Copies of relevant documents have been provided to customer with the prior contract. By signing below, customer acknowledges that
it has received a copy of such documents and agrees to be bound by all of their terms & conditions. The person signing below warrants that
he or she is authorized to execute this document on behalf of customer.

CITY OF GLENDALE _

“Oraanization Name Signature

Authorized Agent Name [print or type] Today's Date

Title Purchase Order # and/or Work Authorization if required (attached)
Rev: AMLO92822

2023 City of Glendale 8 user Element LIMS Maintenance Renewal.xisx