Professional Service Agreement with Innovative Interfaces Inc.
Extracted text (via pymupdf)
81952 characters
1
10/05/2023
C
PROFESSIONAL SERVICES AGREEMENT
(Not Construction Related)
Library Mobile Application
This Professional Services Agreement ("Agreement") is entered into and effective between CITY OF GLENDALE,
an Arizona municipal corporation ("City") and Innovative Interfaces Incorporated, a Foreign For-Profit (Business)
Corporation, authorized to do business in the State of Arizona, ("Consultant") as of the _____ day of
_________________, 2023 (“Effective Date”).
RECITALS
A.
City intends to undertake a project for the benefit of the public and with public funds that is more fully set
forth in Exhibit A, Project (the "Project");
B.
City desires to retain the professional services of Consultant to perform certain specific duties and produce
the specific work as set forth in the attached Exhibit B, Project Scope of Work (“Scope”);
C.
Consultant desires to provide City with professional services (“Services”) consistent with best consulting or
architectural practices and the standards set forth in this Agreement, in order to complete the Project; and
D.
City and Consultant desire to memorialize their agreement with this document.
AGREEMENT
The parties hereby agree as follows:
1.
Key Personnel; Other Consultants and Subcontractors.
1.1
Professional Services. Consultant will provide all Services necessary to assure the Project is
completed timely and efficiently consistent within Project requirements, including, but not limited
to, working in close interaction and interfacing with City and its designated employees, and working
closely with others, including other consultants or contractors, retained by City.
1.2
Project Team.
a.
Project Manager.
(1)
Consultant will designate an employee as Project Manager with sufficient training,
knowledge, and experience to, in the City's opinion, complete the project and handle
all aspects of the Project such that the work produced by Consultant is consistent
with applicable standards as detailed in this Agreement; and
(2)
The City must approve the designated Project Manager.
b.
Project Team.
(1)
The Project Manager and all other employees assigned to the Project by Consultant
will comprise the "Project Team."
(2)
Project Manager will have responsibility for and will supervise all other employees
assigned to the Project by Consultant.
c.
Discharge, Reassign, Replacement.
(1)
Consultant acknowledges the Project Team is comprised of the same persons and
roles for each as may have been identified in Exhibit A.
(2)
Consultant will not discharge, reassign, replace or diminish the responsibilities of
any of the employees assigned to the Project who have been approved by City
without City's prior written consent unless that person leaves the employment of
Consultant, in which event the substitute must first be approved in writing by City.
2
10/05/2023
(3)
Consultant will change any of the members of the Project Team at the City's request
if an employee's performance does not equal or exceed the level of competence that
the City may reasonably expect of a person performing those duties, or if the acts
or omissions of that person are detrimental to the development of the Project.
d.
Subcontractors.
(1)
Consultant may engage specific technical contractors (each a "Subcontractor") to furnish
certain service functions.
(2)
Consultant will remain fully responsible for Subcontractor's services.
(3)
Subcontractors must be approved by the City.
(4)
Consultant will certify by letter that all contracts with Subcontractors have been executed
incorporating requirements and standards as set forth in this Agreement
2.
Schedule. The Services will be undertaken in a manner that ensures the Project is completed timely and
efficiently in accordance with the Project.
3.
Consultant’s Work.
3.1
Standard. Consultant must perform Services in accordance with the standards of due diligence, care,
and quality prevailing among consultants having substantial experience with the successful furnishing
of Services for projects that are equivalent in size, scope, quality, and other criteria under the Project
and identified in this Agreement.
3.2
Licensing. Consultant warrants that:
a.
Consultant currently holds all appropriate and required licenses, registrations and other
approvals necessary for the lawful furnishing of Services ("Approvals"); and
b.
Neither Consultant nor any Subconsultant has been debarred or otherwise legally excluded
from contracting with any federal, state, or local governmental entity ("Debarment").
(1)
City is under no obligation to ascertain or confirm the existence or issuance of any
Approvals or Debarments, or to examine Consultant's contracting ability.
(2)
Consultant must notify City immediately if any Approvals or Debarment changes
during the Agreement's duration. The failure of the Consultant to notify City as
required will constitute a material default under the Agreement.
3.3
Compliance.
a.
Services will be furnished in compliance with applicable federal, state, county and local
statutes, rules, regulations, ordinances, building codes, life safety codes, and other standards
and criteria designated by City.
b.
Consultant 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. Consultant will require any Sub-contractor to be bound to the same
requirements as stated within this section. Consultant, and on behalf of any subcontractors,
warrants compliance with this section.
3.4
Work Product.
a.
Consultant warrants, and agrees to indemnify, hold harmless and defend City for, from and
against any claim that any Work Product infringes on third-party proprietary interests.
b.
Delivery. Consultant will deliver or make available to City copies of the preliminary and
completed Work Product promptly as they are prepared.
3
10/05/2023
4.
Compensation for the Project.
4.1
Compensation. Consultant's compensation for the Project, including those furnished by its
Subconsultants or Subcontractors will not exceed $112,781.78 as specifically detailed in Exhibit D
("Compensation").
4.2
Change in Scope of Project. The Compensation may be equitably adjusted if the originally
contemplated Scope as outlined in the Project is significantly modified.
a.
Adjustments to Compensation require a written amendment to this Agreement and may
require City Council approval.
b.
Additional services which are outside the Scope of the Project contained in this Agreement
may not be performed by the Consultant without prior written authorization from the City.
c.
Notwithstanding the incorporation of the Exhibits to this Agreement by reference, should
any conflict arise between the provisions of this Agreement and the provisions found in the
Exhibits and accompanying attachments, the provisions of this Agreement shall take priority
and govern the conduct of the parties.
4.3
Expenses. City will reimburse Consultant for certain out-of-pocket expenses necessarily incurred by
Consultant in connection with this Agreement, without mark-up (the “Reimbursable Expenses”),
including, but not limited to, document reproduction, materials for book preparation, postage,
courier and overnight delivery costs incurred with Federal Express or similar carriers, travel and car
mileage, subject to the following:
a.
Mileage, airfare, lodging and other travel expenses will be reimbursable only to the extent
these would, if incurred, be reimbursed to City of Glendale personnel under its policies and
procedures for business travel expense reimbursement made available to Consultant for
review prior to the Agreement’s execution, and which policies and procedures will be
furnished to Consultant;
b.
The Reimbursable Expenses in this section are approved in advance by City in writing; and
c.
The total of all Reimbursable Expenses paid to Consultant in connection with this
Agreement will not exceed the “not to exceed” amount identified for Reimbursable Services
in the Compensation.
5.
Billings and Payment.
5.1
Applications.
a.
Consultant will submit monthly invoices (each, a "Payment Application") to City's Project
Manager and City will remit payments based upon the Payment Application as stated below.
b.
The period covered by each Payment Application will be one calendar month ending on the
last day of the month.
5.2
Payment.
a.
After a full and complete Payment Application is received, City will process and remit
payment within 30 days.
b.
Payment may be subject to or conditioned upon City's receipt of:
(1)
Completed work generated by Consultant and its Subconsultants; and
(2)
Unconditional waivers and releases on final payment from all Subconsultants as City
may reasonably request to assure the Project will be free of claims arising from
required performances under this Agreement.
5.3
Review and Withholding. City's Project Manager will timely review and certify Payment Applications.
4
10/05/2023
a.
If the Payment Application is rejected, the Project Manager will issue a written listing of the
items not approved for payment.
b.
City may withhold an amount sufficient to pay expenses that City reasonably expects to incur
in correcting the deficiency or deficiencies rejected for payment.
6.
Termination.
6.1
For Cause. City may terminate this Agreement for cause if Consultant fails to cure any breach of this
Agreement within thirty days after receipt of written notice specifying the breach.
7.
Conflict. Consultant 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.
8.
Insurance. For the duration of the term of this Agreement, Consultant shall procure and maintain applicable
Industry Standard insurance coverage against claims for injuries to persons or damages to property which
may arise from or in connection with the performance of all tasks or work necessary to complete the Project
as herein defined. Such insurance shall cover Consultant, its agent(s), representative(s), employee(s) and any
subcontractors.
8.1
Minimum Scope and Limit of Insurance. Coverage must be at least as broad as:
a.
Commercial General Liability (CGL): Insurance Services Office Form CG 00 01, including
products and completed operations, with limits of no less than $1,000,000 per occurrence
for bodily injury, personal injury, and property damage. If a general aggregate limit applies,
either the general aggregate limit shall apply separately to this project/location or the general
aggregate limit shall be twice the required occurrence limit.
b.
Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1
(any auto), with limits no less than $1,000,000 per accident for bodily injury and property
damage.
c.
Professional Liability. Consultant must maintain a Professional Liability insurance covering
errors and omissions arising out of the work or services performed by Consultant, or anyone
employed by Consultant, or anyone for whose acts, mistakes, errors and omissions
Consultant is legally liability, with a liability insurance limit of $1,000,000 for each claim and
a $1,000,000 annual aggregate limit.
d.
Worker’s Compensation: Insurance as required by the State of Arizona, with Statutory
Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per
accident for bodily injury or disease.
9.
E-verify, Records and Audits. To the extent applicable under A.R.S. § 41-4401, the Consultant warrants
their compliance 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 Consultant breach of this warranty
shall be deemed a material 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 Consultant warrant to keep their respective papers and records open for random inspection during
normal business hours by the other party. The parties shall cooperate with the City’s random inspections,
including granting the inspecting party entry rights onto their respective properties to perform the random
inspections and waiving their respective rights to keep such papers and records confidential.
10.
No Boycott of Israel. To the extent A.R.S § 35-393 through § 35-393.03 are 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.
11.
Uyghur Forced Labor Prevention Act (UFLPA). Consultant certifies that it does not currently, and during
the term of this Agreement, will not use:
5
10/05/2023
a.
the forced labor of ethnic Uyghurs in the People’s Republic of China;
b.
any goods or services produced by the forced labor of ethnic Uyghurs in the People’s
Republic of China; and
c.
any contractors, subcontractors or suppliers that use the forced labor or any goods or
services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China.
12.
Attestation of PCI Compliance. When applicable, the Consultant will provide the City annually with a
Payment Card Industry Data Security Standard (PCI DSS) attestation of compliance certificate signed by an
officer of Consultant with oversight responsibility.
13.
Notices.
13.1
A notice, request or other communication that is required or permitted under this Agreement (each
a "Notice") will be effective only if:
a.
The Notice is in writing; and
b.
Delivered in person or by overnight courier service (delivery charges prepaid), certified or
registered mail (return receipt requested).
c.
Notice will be deemed to have been delivered to the person to whom it is addressed as of
the date of receipt, if:
(1)
Received on a business day before 5:00 p.m. at the address for Notices identified
for the Party in this Agreement by U.S. Mail, hand delivery, or overnight courier
service; or
(2)
As of the next business day after receipt, if received after 5:00 p.m.
d.
The burden of proof of the place and time of delivery is upon the Party giving the Notice.
e.
Digitalized signatures and copies of signatures will have the same effect as original signatures.
13.2
Representatives.
a.
Consultant. Consultant's representative (the "Consultant's Representative") authorized to
act on Consultant's behalf with respect to the Project, and his or her address for Notice
delivery is:
Tom McNamara
Clarivate/Innovative Interfaces, Inc.
8825 N. 23rd Avenue, Suite 100
Phoenix, AZ 85021
b.
City. City's representative ("City's Representative") authorized to act on City's behalf, and
his or her address for Notice delivery is:
City of Glendale
c/o Community Services Director and Chief Librarian
5959 W Brown St.
Glendale, Arizona 85301
With required copy to:
City Manager
City Attorney
City of Glendale
City of Glendale
5850 West Glendale Avenue
5850 West Glendale Avenue
Glendale, Arizona 85301
Glendale, Arizona 85301
6
10/05/2023
c.
Concurrent Notices.
(1)
All notices to City's representative must be given concurrently to City Manager and
City Attorney.
(2)
A notice will not be deemed to have been received by City's representative until the
time that it has also been received by the City Manager and the City Attorney.
(3)
City may appoint one or more designees for the purpose of receiving notice by
delivery of a written notice to Consultant identifying the designee(s) and their
respective addresses for notices.
d.
Changes. Consultant or City may change its representative or information on Notice, by
giving Notice of the change in accordance with this section at least ten days prior to the
change.
14.
Financing Assignment. City may assign this Agreement to any City-affiliated entity, including a non-profit
corporation or other entity whose primary purpose is to own or manage the Project.
15.
Entire Agreement; Survival; Counterparts; Signatures.
15.1
Integration. This Agreement contains, except as stated below, the entire agreement between City
and Consultant and supersedes all prior conversations and negotiations between the parties regarding
the Project or this Agreement.
a.
Neither Party has made any representations, warranties or agreements as to any matters
concerning the Agreement's subject matter.
b.
Representations, statements, conditions, or warranties not contained in this Agreement will
not be binding on the parties.
c.
The solicitation, any addendums and the response submitted by the Contractor are
incorporated into this Agreement as if attached hereto. Any Contractor response modifies
the original solicitation as stated. Inconsistencies between the solicitation, any addendums
and the response or any excerpts attached as Exhibit A and this Agreement will be resolved
by the terms and conditions stated in this Agreement.
15.2
Interpretation.
a.
The parties fairly negotiated the Agreement's provisions to the extent they believed necessary
and with the legal representation they deemed appropriate.
b.
The parties are of equal bargaining position and this Agreement must be construed equally
between the parties without consideration of which of the parties may have drafted this
Agreement.
c.
The Agreement will be interpreted in accordance with the laws of the State of Arizona.
15.3
Survival. Except as specifically provided otherwise in this Agreement, each warranty, representation,
indemnification and hold harmless provision, insurance requirement, and every other right, remedy
and responsibility of a Party, will survive completion of the Project, or the earlier termination of this
Agreement.
15.4
Amendment. No amendment to this Agreement will be binding unless in writing and executed by
the parties. Electronic signature blocks do not constitute execution for purposes of this Agreement.
Any amendment may be subject to City Council approval.
15.5
Remedies. All rights and remedies provided in this Agreement are cumulative and the exercise of
any one or more right or remedy will not affect any other rights or remedies under this Agreement
or applicable law.
7
10/05/2023
15.6
Severability. If any provision of this Agreement is voided or found unenforceable, that determination
will not affect the validity of the other provisions, and the voided or unenforceable provision will be
reformed to conform with applicable law.
15.7
Counterparts. This Agreement may be executed in counterparts, and all counterparts will together
comprise one instrument.
16.
Term.
16.1
Extensions. The term of this Agreement commences upon the effective date and continues for a
three (3) year initial period form the Software Go-Live Date. The City may, at its option and with the
approval of the Consultant, extend the term of this Agreement an additional three (3) years, on an
annual basis. Consultant will be notified in writing by the City of its intent to extend the Agreement
period at least thirty (30) calendar days prior to the expiration of the original or any extension period.
Price adjustments will only be reviewed prior to the City exercising its extension and may be a
determining factor for any extension. There are no automatic extensions or renewals of this
Agreement.
17.
Dispute Resolution. Any controversy 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.
18.
Cooperative Use of Contract. This agreement may be extended for use by other governmental agencies
and political subdivisions of the State. Any such usage by other entities must be in accord with the ordinances,
charter, rules and regulations of the respective entity and the approval of the Contractor and City. For a list
of SAVE members, click on the following link: http://www.mesaaz.gov/business/purchasing/save
19.
Exhibits. The following exhibits, with reference to the term in which they are first referenced, are
incorporated by this reference.
Exhibit A
Project
Exhibit B
Scope of Work
Exhibit C
Schedule
Exhibit D
Compensation
(Signatures appear on the following page.)
8
10/05/2023
The parties enter into this Agreement effective as of the date shown above.
City of Glendale,
an Arizona municipal corporation
_____________________________________
By: Kevin R. Phelps
Its: City Manager
ATTEST:
Julie K. Bower
(SEAL)
City Clerk
APPROVED AS TO FORM:
Michael D. Bailey
City Attorney
Innovative Interfaces, Inc.,
a Foreign For-Profit (Business) Corporation
_____________________________________
By: Jeff Anusbigian
Its: VP, Sales Operations
EXHIBIT A
Professional Services Agreement
PROJECT
Implementation of a mobile application for the Glendale Public Library and required annual Software-As-A-Service
Subscription.
configuring security access controls and change management, and for supplying updates to correct errors in support
of this Agreement; and (b) Client is responsible for properly implementing access and use controls and configuring
certain features and functionalities of the Platform and Application Services that Client may elect to use in the
manner that Client deems adequate to maintain appropriate security, protection, deletion, and backup of Client
Data.
Page 16 of 16
EXHIBIT B
Professional Services Agreement
SCOPE OF WORK
See STATEMENT OF WORK and SOFTWARE-AS-A-SERVICE (SAAS) SUBSCRIPTION AGREEMENTS
inserted here.
Statement of Work
This Statement of Work (the “SOW”) dated August 5, 2022 is entered into pursuant to the Master
Professional Services Agreement between Glendale Public Library (“Client”) and Innovative
Interfaces Incorporated (“Innovative”) effective as of November 17, 2016 (the “Agreement”).
Innovative and Client may each be referred to as “Party” from time to time or collectively as
“Parties”.
A. Purpose of this Statement of Work
The SOW provides an overview of the scope of the project and fees to complete the
engagement based on Innovative’s prior experience with similar projects and preliminary
discussions with Client. The Client hereby acknowledges that the SOW is not meant to capture
all detailed requirements but documents the high-level requirements and implementation
approach discussed and that additional detailed requirements discussions will be required to
outline the full scope of work between the Parties.
B. Project Scope of Services
The Scope of the project includes the following set of professional services:
1. Innovative Mobile App Implementation
Innovative Services Team (“Services Team”) will work with the Client to configure, install,
and test a customized Innovative Mobile application (“App”) for the Client.
NOTE: Some services specified in this Statement of Work will be performed by third party
vendor Solus (“Solus”), including creation of customized App for Client, and publishing of
App to specified online app stores.
Specified work includes:
a. Project management
b. Project kickoff between Services Team and Client
c. Creation and configuration of Client instance on Innovative Mobile Content
Management System (“CMS”) for a single production environment
d. Custom App development
e. Publishing of App to Apple and/or Google app stores
f.
Liaison with Solus
g. Post-implementation testing
h. Remediation of post-implementation issues found during testing
Services Team will work with the Client to deliver and configure RFID Beacons (“Beacons”) for
self-check as specified in the Contract.
Specified work includes:
a. Configuration of Innovative Mobile Content Management System to enable self-
checkout and self-checkin
b. Delivery of Beacons to Client
Page 1 of 4
c. Provisioning and configuration of Beacons
Services Team will work with the Client to deliver and configure RFID Beacons (“Beacons”) for
self-check as specified in the Contract.
Specified work includes:
a. Configuration of Innovative Mobile Content Management System to enable self-
checkout and self-checkin
b. Delivery of Beacons to Client
c. Provisioning and configuration of Beacons
C. Services Team
The Services Team will have the following resources available for this project:
1. Project Manager: Responsible for coordination of schedule and App delivery with the
Client, consultation on App configuration requirements, and consultation on available App
customization, and liaison with third party vendor Solus as necessary.
2. System Engineer: Responsible for creation of Client configuration in the Innovative Mobile
Content Management System (CMS), and configuration of the ILS as required.
D. Client Implementation Team
1. Technical Lead: Will be responsible for assisting with Client responsibilities related to the
installation and any other system level duties required by Client, and coordinating/providing
all Client responsibilities identified in Implementation Assumptions.
E. Implementation Assumptions
1. Client will have adequate resources available to ensure timely completion of any Client
tasks outlined in the project schedule.
2. Timeline for the completion of this project will be established, through joint planning
conversations between the Client and Innovative during the initial stage of the project.
3. Client shall be responsible for:
a. Participating in project kickoff, and assisting in establishing project schedule
b. Providing images for App customization
c. Applying for Apple Developer account, and providing app publishing credentials to
Innovative Services team
d. Providing Services Team with required profile and configuration information, in an
App configuration questionnaire and App configuration spreadsheet to be provided
by Services Team.
e. Testing App download from Apple and Google app stores, and testing App for
proper appearance, functionality, and configuration
f.
Physical installation of Beacons at Client facilities
g. Providing Services Team with required information on Client’s barcode
symbologies, necessary for configuration of Barcode Selfcheck in the App
Page 2 of 4
4.
Client must establish an Apple Developer Program account in order for Innovative to
publish app to Apple store. This account will be used by Innovative for publishing the
Client’s iOS app to the Apple store. This account must be maintained throughout the
duration of the Client’s Innovative Mobile contract. If Client does not establish an Apple
Developer Program account, Innovative will no longer be responsible for publishing the
app to the Apple store.
5.
Client Implementation will be determined to be live upon the earlier of acceptance or 2
weeks of the app in the test flight environment.
F.
Fees and Payment Terms
Fees for Services delivered under this SOW will be charged on a fixed price basis as set forth
in the Innovative Pricing Exhibit EST-INC12646 attached herewith and are made in good faith
based on the activities, approach, and assumptions contained within the SOW. Payment terms
for this SOW are as set forth in the Professional Services Agreement. Any additional Change
Requests will be performed at a blended rate of $200 per hour for all resources. Additionally,
Client is responsible for all reasonable out-of-pocket costs and expenses incurred during this
SOW. Pricing assumes that deliverables in this Statement of Work are completed within six
months or additional Services fees will apply.
IN WITNESS WHEREOF each party has caused this SOW to be executed by its duly authorized
representatives.
AGREED:
Client
Innovative
Glendale Public Library
By:
Innovative Interfaces Incorporated
By:
Name:
Name:
Title:
Title:
Date:
Date:
Page 3 of 4
Tami Miller
Administrative Librarian
Oct. 25, 2022
VP, Commercial Operations
Jeff Anusbigian
October 25, 2022
Innovative Interfaces Incorporated
3133 W. Frye Rd.
Suite 400
Chandler AZ 85226
United States
Pricing Exhibit
Date
8/30/2022
Quote #
EST-INC12646
Bill To
Glendale Public Library
5959 West Brown Street
Glendale AZ 85302
United States
Ship To
Glendale Public Library
5959 West Brown Street
Glendale AZ 85302
United States
Payment Terms
Net 30
Sales Rep
Tom McNamara
Technical Contact
CU5446 Maricopa County Library ...
Site Code
GLEN1733
Expires
11/30/2022
Currency
US Dollar
Item
Innovative Mobile
App
Implementation
Barcodes
Innovative Mobile
One Time
Implementation
RFID Self-Check
Implementation
Item Category
Services
Services
Services
Qty
1
4
4
Description
Innovative Mobile is a mobile library
application designed to extend the walls
of your library through advanced
capabilities such as discovery, patron
account access, and “Click and Collect”
which allows patrons to reserve items and
then be notified when it’s time to pick up.
Barcodes Innovative Mobile - one time
implementation
Checkout and checkin with RFID for
Innovative mobile app
Options
Original Rate
5,000
500.00000004
500.00000004
Unit Price
5,000.00
500.00
500.00
Amount
5,000.00
2,000.00
2,000.00
Total Fees
US$9,000.00
Page 4 of 4
INNOVATIVE INTERFACES INCORPORATED
SOFTWARE-AS-A-SERVICE (SAAS) SUBSCRIPTION AGREEMENT
This Software-as-a-Service (SaaS) Subscription Agreement (“SaaS Agreement”) is entered into by and
between Innovative Interfaces Incorporated, a California corporation (“Innovative”), and the party identified as Client
below (“Client”), as of the “Effective Date” also set forth below.
Client
Glendale Public Library
Address
5959 West Brown Street
Glendale, AZ 85302
Customer No.
CU5168
Effective Date
August 5, 2022
Initial Term
36 Months
1. Definitions.
“Go-Live Date” means the date of Client’s first access to the Application Services.
“GTCs” means the Innovative Interfaces Incorporated SaaS Agreement General Terms and Conditions in
Exhibit B.
“SLAs” means the Innovative Interfaces Incorporated Service Level Agreements in Exhibit C.
“Security Terms” means the Innovative Interfaces Incorporated Information Security Terms and Conditions in
Exhibit D.
2. General. Innovative and Client agree that this SaaS Agreement is a binding agreement between the parties
and is governed by the GTCs, SLAs, and the Security Terms, all of which are made a part hereof. This SaaS
Agreement, the GTCs, SLAs, Security Terms, and all other exhibits, schedules and terms and conditions referenced
by or in this SaaS Agreement, the GTCs, SLAs or Security Terms together constitute the “Agreement.” Client
acknowledges and agrees that it has had the opportunity to review the Agreement, including without limitation, the
GTCs, SLAs and Security Terms, prior to the execution of this Agreement. Unless otherwise specified, capitalized
terms in this Agreement have the same meaning as those in the GTCs. This Agreement is governed by and
interpreted in accordance with the internal substantive laws of the State of New York, without regard to any other
laws that would require the application of the laws of another jurisdiction. Application of the U.N. Convention on
Contracts for the International Sale of Goods is hereby excluded.
EXHIBITS TO SAAS AGREEMENT
A
PRICING EXHIBIT
B
GENERAL TERMS AND CONDITIONS
C
SERVICE LEVEL AGREEMENTS
D
INFORMATION SECURITY TERMS AND CONDITIONS
In witness whereof, the parties have executed this Agreement by their duly authorized representatives as
of the Effective Date.
Page 1 of 16
Client
Innovative
Glendale Public Library
By:
Innovative Interfaces Incorporated
By:
Name:
Name:
Title:
Title:
Date:
Date:
Page 2 of 16
Tami Miller
Administrative Librarian
Oct. 25, 2022
VP, Commercial Operations
Jeff Anusbigian
October 25, 2022
Exhibit A
Pricing Exhibit
[APPROVED APPLICATION SERVICES QUOTE FOLLOWS THIS PAGE]
Page 3 of 16
Innovative Interfaces Incorporated
3133 W. Frye Rd.
Suite 400
Chandler AZ 85226
United States
Pricing Exhibit
Date
8/30/2022
Quote #
EST-INC12645
Bill To
Glendale Public Library
5959 West Brown Street
Glendale AZ 85302
United States
Ship To
Glendale Public Library
5959 West Brown Street
Glendale AZ 85302
United States
Payment Terms
Net 30
Overall Contract Term (Months)
36
Contract Start Date
Contract End Date
Sales Rep
Tom McNamara
Site Code
GLEN1733
Expires
11/30/2022
Currency
US Dollar
Item
Innovative Mobile
App
Barcodes Annual
Subscription
RFID Annual
Subscription
Item Category
SaaS
SaaS
SaaS
Qty
1
4
4
Description
Innovative Mobile is a mobile library
application designed to extend the
walls of your library through advanced
capabilities such as discovery, patron
account access, and “Click and
Collect” which allows patrons to
reserve items and then be notified
when it’s time to pick up.
Checkout and checkin with barcode
Checkout and checkin with RFID for
Innovative mobile app
Options
Original Rate
21,500
249.999999...
500.000000...
Discounted Rate
19,350.00000004
224.99999996
450.00000004
Amount
19,350.00
900.00
1,800.00
Discount
10.0%
10.0%
10.0%
First Year Total
US$22,050.00
Page 4 of 16
Exhibit B
Innovative Interfaces Incorporated
SaaS Agreement General Terms and Conditions
Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in the SaaS
Agreement.
1.
Access to and Use of the Application Services.
a.
Subject to the terms and conditions of this Agreement, including without limitation Client's payment of all of
the Fees (defined below) due hereunder, Innovative will provide Client and its Authorized Users (defined below)
with subscription access and certain subscription services via an Innovative website or websites to its Integrated
Library System solution known as “Vega” or the “Platform,” including features identified as “SaaS” in the Pricing
Exhibit (collectively, the "Application Services"). Such Application Services will be for the duration of the Term of
this Agreement and will automatically expire upon the termination or expiration of this Agreement or as otherwise
specified in this Agreement.
b.
Client and, where applicable, its Authorized Users may access and use the Platform (including any Client
Configurations) (i) only for the management of the library and for servicing its patrons (including permitting
Authorized Users to search library catalogues), and not on an outsourced basis, as a service bureau, for resale, or
similarly on behalf of or for the direct or indirect benefit of third parties, and (ii) only in accordance with the other
terms of this Agreement. Client will be responsible for its Authorized Users' compliance with the terms hereof.
Without limiting the foregoing, Client agrees that it and its Authorized Users will: (i) comply with all applicable laws
regarding the transmission of data, including, without limitation, any applicable export control and data protection
laws; and (ii) not use the Application Services for illegal purposes.
c.
The Application Services may be used by the base number of Client's worldwide employees, third-party
auditors, agents and contractors ("Authorized Users") set forth in the Pricing Exhibit for such Application Services
and such additional Authorized Users as may be hereafter identified to Innovative by Client for which Client pays
the additional Fees referred to in Section 4(a) of this Agreement, provided that all such Authorized Users shall
assent to the on-line account verification terms on the Platform. An Authorized User is a single user of the
Application Services and their right to use the Platform may be transferred to another individual user. Such rights
may not be shared on a part time or concurrent user basis. For the avoidance of doubt, Client patrons do not fall
within the definition of Authorized Users. Client agrees that it and its Authorized Users will:
i. Not interfere with or disrupt the servers or networks used to provide the Application Services;
ii. Not transmit through the Platform junk mail, spam, chain letters, or unsolicited mass distribution of files;
iii. Not transmit viruses or otherwise malicious code or data;
iv. Not attempt to copy, modify, make derivative works of, reverse engineer, disassemble or decompile the
Platform or any Innovative system, network or software;
v. Comply with all applicable laws regarding the transmission of data, including, without limitation, any
applicable export control and data protection laws; and
vi. Not use the Application Services for illegal purposes.
d.
Innovative includes in the Fees rights to access and use all new scheduled major releases, service pack
releases, and hot fixes of the Platform offered generally by Innovative to its clients during the term of this Agreement
(collectively, "New Releases"). "New Releases" do not include new or additional modules, applications or other
software now or hereafter offered by Innovative, each of which require payment of additional fees. The term
“Application Services” will be deemed to include New Releases.
e.
Innovative offers support for the Application Services in accordance with the SLAs, the terms of which are
incorporated by reference herein.
2.
Acceptance. Following the execution of the Agreement by the parties, Innovative will deliver the login
credentials for the Client’s network administrator for the Client’s instance of the Platform, in its preconfigured format.
Client will be deemed to have accepted that the provisioned Platform has been delivered upon receipt of credentials.
3.
Ownership.
a.
Intellectual Property Rights. All Intellectual Property Rights (defined below) in the Platform and also
including, without limitation, all improvements, enhancements, modifications, Client-specific upgrades, or updates
to the Platform, developed by either party, solely or jointly (collectively, "Innovative Products"), will remain the
Page 5 of 16
exclusive, sole and absolute property of Innovative or the third parties from whom Innovative has obtained the right
to use the Innovative Products. Intellectual property created by Innovative pursuant to this Agreement, or any other
party at the request or direction of Innovative, will be owned by Innovative. "Intellectual Property Rights" means any
and all intellectual property rights existing from time to time under any law or regulation, including without limitation,
patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law,
unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any
and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and
effect worldwide. Client hereby assigns to Innovative all right, title and interest in any feedback and suggestions it
provides to Innovative regarding the Platform, Application Services or other products commercialized by Innovative
now or in the future. This Agreement does not convey to the Client any interest in or to the Innovative Products or
any associated Intellectual Property Rights, but only a limited right to use the Platform and Application Services to
the extent set forth in this Agreement, which right is terminable in accordance with the terms of this Agreement and
is otherwise subject to the limitations, restrictions, and requirements contained herein. If Client configures the
Platform using an API hereunder, Client will also have a right to use such configurations as part of the Platform on
the terms set forth in Section 1. Rights not expressly granted to the Client are hereby expressly reserved by
Innovative.
b.
Third-Party Proprietary Rights. For purpose of this Agreement, as between Innovative and Client, any
Intellectual Property Rights in the Innovative Products to the extent owned by any third party will be and remain the
exclusive property of such third party. The Platform may include third-party software and products, which are
described in the documentation and/or Specifications made available to Client by Innovative, and any third-party
pass-through terms relating to such third-party software and products are identified therein (or by other mode of
disclosure).
c.
Client Data. Except as expressly stated herein, Client will exclusively have and retain all right, title and
interest, including all associated Intellectual Property Rights, in and to data that Client enters into the Platform or
disclosed by Client to Innovative in its performance hereunder ("Client Data"), and, as between Client and
Innovative, such Client Data will remain the sole property of Client. Client hereby grants to Innovative a license to
use Client Data (i) to process the Client Data pursuant to Client's business requirements, (ii) for maintenance and
support of the Platform, (iii) to collect and use aggregate, non-identifying and anonymized data, and (iv) for research
and development purposes. Client acknowledges and agrees that it will have no rights in any products or services
created or sold by Innovative or its affiliates that use any of the Client Data in the manner set forth in (iii) or (iv) of
the preceding sentence. To the extent that applicable law requires any permissions or authorizations to have been
obtained prior to submission of Client Data to Innovative (including without limitation from individuals to whom the
data pertains), Client warrants and covenants that it (and its Authorized Users, as applicable) will have first obtained
the same permissions or authorizations prior to transmitting such data to Innovative. Client will defend, indemnify
and hold harmless Innovative in the event of any third-party claim arising from a breach of the aforesaid warranty
and covenant.
4. Fees; Expenses; Payment Terms.
a.
In consideration of receiving a limited right to access and use the Application Services, Client will pay the
fees set forth in the Pricing Exhibit (the “Fees”) on the terms set forth therein. Initial invoicing under this Agreement
will occur when the Platform is initially delivered to Client per Section 2; subsequent renewal invoices will be sent
to Client prior to the date such payment is due. Innovative will have the right to increase rates hereunder by up to
5% over the previous year. Innovative will have the right to revise Fees based on population, as set forth in the
Pricing Exhibit, after the Initial Term and periodically thereafter, but no more than once annually. Invoices for any
Renewal Terms may be provided to Client up to 90 days prior to the effective date of such Renewal Term. Client
will notify Innovative in writing if Client hereafter requires additional Authorized Users or additional Platform features
and will pay the fees for such additional Authorized Users or additional features in accordance with the terms set
forth on the invoice for such fees. The Platform may, from time to time, electronically transmit to Innovative reports
verifying the type and number of Authorized Users, and Innovative may utilize access keys or other reasonable
controls to enforce Authorized User limitations. Client will cooperate with Innovative in all such efforts.
b.
All Fees must be paid to Innovative within 30 days from the invoice date or as stated on the invoice if
different.
c.
Fees for additional third-party product, hardware and services are subject to change and will be quoted at
the then current rate.
d.
All Fees are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the
delivery and access and use of the Application Services, all of which Client will be responsible for and will pay in
Page 6 of 16
full, other than taxes based on Innovative’s net income. Client will provide Innovative its state issued Direct Pay
Exemption Certificate (or equivalent certificate), if applicable, upon execution of this Agreement. In the event an
applicable taxing authority, as a result of an audit or otherwise, assesses additional taxes for goods or services sold
under this Agreement at any time, Client and not Innovative will be solely responsible for payment of such additional
taxes and all costs associated with such assessment, including without limitation, interest, penalties and attorney’s
fees. Additionally, should Client be required under any applicable law or regulation, domestic or foreign, to withhold
or deduct any portion of the payments due to Innovative hereunder, then the sum due to Innovative will be increased
by the amount necessary to yield to Innovative an amount equal to the sum Innovative would have received had no
withholdings or deductions been made. Where this Agreement establishes a due date for a payment and/or a
recurring method for payment, payment will be due and payable on such due date and/or according to the method
specified. Other fees or expenses charged pursuant to this Agreement will be paid at the amounts set forth in the
invoice within 30 (thirty) days of the date of the invoice. All amounts stated herein and all Fees determined hereunder
are in U.S. Dollars, unless otherwise required by applicable law.
e.
Any invoices not paid when due will accrue interest at the rate of 1% per month or the maximum rate
permitted by law, whichever is greater.
5.
Limited Warranty.
a.
Innovative warrants, solely for the benefit of Client, that:
i. It has the corporate power and authority to enter into this Agreement for the provision of the Application
Services;
ii. It will provide access to the Platform in accordance with the SLAs. The exclusive remedy of Client under
the limited warranty set forth in this Section 5(a)(ii) is set forth in the SLA; and
iii. The Platform will conform in all material respects to the applicable technical documentation for the
Platform provided to Client by Innovative and expressly identified by Innovative as the specifications for
the Platform (collectively, the "Specifications").
b.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR (i) THE WARRANTIES
EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY WARRANTY, REPRESENTATION OR
CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW,
INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS MAKE NO
REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL
WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER
ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE
FOREGOING, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND
SUPPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY,
THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL
SATISFY CLIENT'S REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT-
FREE OR UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL
BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5(a), THE SOFTWARE,
INCLUDING ALL CONTENT, IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES
REGARDING
QUALITY,
PERFORMANCE,
SUITABILITY,
TIMELINESS,
SECURITY,
DURABILITY,
INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR
SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF, INCLUDING
ALL CONTENT GENERATED THROUGH USE THEREOF.
c.
As the exclusive remedy of Client for a breach of the limited warranties set forth in Section 5(a)(iii), for any
error or other defect for which Innovative is solely responsible, Innovative will, at its option, either (i) correct or repair
the Platform, or (ii) accept termination of this Agreement and refund the unused balance of any prepaid subscription
Fees, prorated for the period commencing on the date the error or defect was reported by Client to Innovative and
continuing throughout the balance of the period to which such Fees apply. None of the above warranties or remedies
in this Section 5 will apply with respect to any element of the Application Services that has been modified by any
party other than Innovative, or used in a manner for which the Application Services is not designed or intended.
6.
LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL,
INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER,
Page 7 of 16
EVEN IF INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE
OTHERWISE FORESEEABLE. INNOVATIVE’S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER
DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER
THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH
A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM
OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN
SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE
AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE
WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
7.
Indemnification.
a.
If a third party files a legal action in a court of competent jurisdiction against Client claiming the Application
Services, as delivered to Client by Innovative, directly infringes such third party’s U.S. copyright or U.S. patent,
Innovative will defend Client against such legal action, provided that Client promptly notifies Innovative in writing of
the legal action and fully cooperates with Innovative in the defense of such legal action. Innovative will also
indemnify Client from all damages and out-of-pocket costs (including reasonable attorneys’ fees) finally awarded
by a court of competent jurisdiction in connection with any such legal action, or agreed to by Innovative in a
settlement. Innovative will control all aspects of the defense and conduct the defense and any settlement
negotiations in any such third-party legal action. This indemnification is limited to the Platform in the form delivered
to Client and does not cover claims arising from (x) modifications thereto not made by Innovative, or, even if by
Innovative, at the request of Client; (y) use of the Platform in combination with other software or items not provided
by Innovative, or (z) third party modifications (including addition of source code) to the Platform.
b.
As the exclusive remedy of Client under the limited indemnity set forth in Section 7.a, if the use of the
Application Services by Client is enjoined, Innovative will, at its sole option: (i) obtain for Client the right to continue
to use the Application Services, (ii) modify the Application Services to remove the cause of the legal action, (iii)
replace the Application Services at no additional charge to Client with a substantially similar, non-infringing product,
which will then be subject to the provisions of this Agreement, or (iv) terminate this Agreement and refund to Client
that portion of the Fees allocable to the infringing component of the Application Services, prorated for the period
Client’s use of the Application Services is enjoined. None of the above warranties or remedies will apply with respect
to any element of the Application Services that has been modified by any party other than Innovative, or used in a
manner for which the Application Services is not designed or intended. This Section states Innovative’s entire
liability and Client’s exclusive remedies for infringement of intellectual property rights of any kind.
8. Confidentiality.
a.
Client acknowledges that all documentation, audit reports, technical information, software, Specifications
and other information pertaining to the Platform, Application Services, and/or Innovative's business interests or
activities, product pricing, financial information, methods of operation or customers that are disclosed by any party
to Client in the course of performing this Agreement or any ensuing business arrangement are the confidential and
proprietary information of Innovative. Innovative acknowledges that Client Data and other proprietary Client
materials are the confidential information of Client. The information and materials described in the preceding
sentences is referred to herein as "Confidential Information." Notwithstanding the foregoing, the term "Confidential
Information" does not include information pertaining to a party if (i) such information is generally known to the public
through no improper action or inaction by the other party, (ii) was, through no improper action or inaction by the
other party, in the possession of the other party prior to the Effective Date, or (iii) rightly disclosed to the other party
by a third party if such disclosure does not violate the terms of any confidentiality agreement or other restriction by
which such third party may be bound.
b.
All Confidential Information will be held in confidence and may not be copied, used or disclosed other than
as set forth in this Agreement. Each party must take all reasonable efforts to protect the confidentiality of and prevent
the unauthorized use of any such Confidential Information by any third party within such party's control. Each party
may disclose Confidential Information (i) to the receiving party's employees and contractors required to have access
to such Confidential Information for the purposes of performing this Agreement or using the Platform, provided each
party hereto notifies its employees and contractors accessing such Confidential Information of the confidentiality
obligations in this Section 8; or (ii) if such disclosure is in response to a valid order of any court, statute, or other
governmental body ("Order"), in which event, the disclosing party must use reasonable efforts to provide the other
party with prior notice of such Order, to the extent legally permitted to do so and in accordance with the Order.
Under no circumstances will Confidential Information received from Innovative be disclosed to any competitor of
Innovative without Innovative's advance written permission.
Page 8 of 16
c.
Recognizing any improper use or disclosure of any Confidential Information by either party may cause the
party whose Confidential Information is improperly used or disclosed irreparable damage for which other remedies
may be inadequate, a party whose Confidential Information is improperly used or disclosed will have the right to
petition for injunctive or other equitable relief from a court of competent jurisdiction as appropriate to prevent any
unauthorized use or disclosure of such Confidential Information.
d.
If the parties have previously executed a nondisclosure agreement ("NDA"), any Confidential Information
exchanged pursuant to such NDA will remain confidential, and will as of the date of the execution of this Agreement
be deemed Confidential Information within the meaning of this Agreement and also be governed by the terms
hereof.
9. Term; Termination.
a.
Term. Subject to the early termination provisions set forth below, this Agreement will be effective for an
initial term of three (3) years following the Go-Live date (the “Initial Term”). This Agreement will be automatically
renewed for additional one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”),
unless either party gives the other not less than ninety (90) days’ prior written notice of its intent to terminate this
Agreement effective as of the end of the then-current Term.
b.
Termination for Breach. If either party hereto fails to perform or comply with any material term or condition
of this Agreement, specifically including Client’s failure to pay any Fees (such party being the “Breaching Party”),
and such failure continues unremedied for 30 (thirty) days after receipt of written notice, the other party may
terminate this Agreement. Notwithstanding the foregoing, if the Breaching Party has in good faith commenced to
remedy such failure and such remedy cannot reasonably be completed within such 30-day period, then the
Breaching Party will have an additional 30 (thirty) days to complete such remedy, after which period the other party
may terminate this Agreement if such failure continues unremedied.
c.
Termination for Elimination of Budget. Client may terminate this Agreement at any time during the Initial
Term effective as of the date of the next annual anniversary of the Effective Date if Client’s budget (funding) is
eliminated and Client provides written evidence to Innovative of the elimination of Client’s budget (funding), such
evidence to be in the form and substance reasonably requested by Innovative.
d.
Except for a termination by Client pursuant to Section 9.b., and unless as otherwise set forth in this
Agreement, upon any termination of this Agreement, all prepaid Fees will be nonrefundable and Client will be
responsible for all Fees and expenses for the Application Services provided prior to and as of the date of termination.
Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the
terminating party may have under the terms of this Agreement. Upon termination of this Agreement, the rights and
duties of the parties will terminate, other than the obligation of the Client to pay Fees and costs in accordance
herewith, and the obligations of the parties pursuant to Section 1.c. (Access to and Use of the Application Services),
Section 3 (Ownership), Section 4 (Fees; Expenses; Payment Terms), Section 6 (Limitations on Liability), Section 7
(Indemnification), Section 8 (Confidentiality), Sections 9.d. and 9.e. (Termination), Section 11 (Client
Configurations) and Section 12 (General). Within 30 (thirty) days of receipt of a written request following a
termination of this Agreement, each party must return or destroy all Confidential Information of the other party, as
requested in writing by the other party. Notwithstanding the foregoing, a party will not be obligated to destroy data
containing Confidential Information of the other party when it would be commercially impracticable for the receiving
party to do so (for example, when Confidential Information is contained in e-mail stored on backup tapes or other
archival media), but for so long as such receiving party is in possession of such Confidential Information of the other
party, the terms of Section 8 (Confidentiality) hereof will continue to restrict the receiving party’s use or disclosure
of such Confidential Information. Neither party will be liable to the other for any termination or expiration of this
Agreement in accordance with its terms.
e.
Following termination of this Agreement, Innovative has no duty whatsoever to deliver to Client any parts
of its programming, data model, or any other information regarding which Innovative claims a proprietary or
Intellectual Property Right. To the extent that Innovative is requested to perform any services for Client in connection
with the termination of this Agreement (including without limitation providing Client with a copy of Client Data in a
commercially-standard format to be agreed upon by the Parties), such service will be performed pursuant to a
written statement of work under a separate professional services agreement and paid for by Client, applying
Innovative’s then-current rates for daily/hourly work, as the case may be.
10.
Third-Party Software. The Platform may contain third-party and/or “open source” code provided under
third-party license agreements. The terms and conditions of such third-party license agreements will apply to such
source code in lieu of these terms, where applicable, and Client is responsible for compliance therewith. A listing of
certain third-party and/or open source code contained in the Platform, the respective license terms applicable to
Page 9 of 16
such code, and certain related notices are included in the documentation and/or Specifications made available to
Client by Innovative. Except as required for the authorized use of the Platform as contemplated herein, Client may
not use any name or trademark of any supplier of third party or open source code without such party’s prior written
authorization.
11.
Client Configurations. Client use of APIs (“Client Configuration”) is subject to the terms of use available
at https://www.iii.com/api-license. Innovative disclaims all representations and warranties, express or implied,
regarding Client Configurations and assumes no liability whatsoever with respect to Client Configurations. To the
extent permitted by law, Client agrees to indemnify and hold harmless Innovative from all damages and out-of-
pocket costs (including reasonable attorney fees) for any third-party action based on a claim that any Client
Configuration infringes a copyright or a patent, or constitutes an unlawful disclosure, use or misappropriation of
another party's trade secrets.
12.
General.
a.
No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the
other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent
enforcement of rights or subsequent actions in the event of future breaches.
b.
Independent Contractor. Client acknowledges that Innovative is at all times an independent contractor and
that Client’s relationship with Innovative is not one of principal and agent nor employer and employee. No Innovative
personnel will be entitled to participate in any compensation or benefits plan of Client.
c.
Force Majeure. Neither party will be liable or responsible for any delay or failure in performance if such
delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo,
government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions
of carriers, third-party local exchange and long distance carriers, utilities, Internet service providers, transmitters,
vandals, or hackers, or any other similar causes that may be beyond its control (a “Force Majeure Event”).
d.
Notice. Any notice or communication required to be given by either party must be in writing and made by
hand delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such
communication. Unless otherwise instructed in writing, such notice will be sent to the parties at the addresses set
forth on the first page of the Agreement. All communications pursuant to this Section will be deemed delivered as
follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service; or (b) when
electronically confirmed, if delivered by facsimile.
e.
Invalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will,
as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in
any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this
Agreement invalid, illegal, or unenforceable in any other jurisdiction.
f.
Counterparts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or
similar format for scanned copies of documents) or facsimile signature, each of which when so executed and
delivered will be deemed an original, but all such counterparts will together constitute but one and the same
instrument.
g.
Publicity. Except as provided in this Section, neither party will make any press release, public statement or
other disclosure regarding the terms of this Agreement without the prior written consent of the other party, which
consent will not be unreasonably withheld. Notwithstanding the foregoing, Innovative will have the right to issue
public statements pertaining to the existence of the business relationship between Innovative and Client, including
the right to limited use of Client’s name, logo and other reasonable non-confidential information in press releases,
web pages, advertisements, and other marketing materials.
h.
Assignment. Neither party has the power to assign, license, or sub-license any of its rights or obligations
hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any
assignment, license, or sub-license attempted without such consent will be void. Notwithstanding the foregoing, a
party may assign this Agreement without the other party’s consent (i) as part of a corporate reorganization,
consolidation, merger, or sale of substantially all of its assets or capital stock; or (ii) to an Affiliate of such party
provided that any such assignment will not release the assigning party from its obligations under this Agreement.
i.
Waiver of Jury Trial; Governing Language. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT
OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be conducted in the
Page 10 of 16
English language; any translation of this Agreement into another language will be for convenience only but will not
modify the meaning hereof. Only a written instrument duly executed by both parties may modify this Agreement.
j.
Entire Agreement. This Agreement contains the entire understanding of the parties, and supersedes all
prior agreements and understandings relating to the subject matter hereof, provided that nothing herein will diminish
or affect any separate services agreement or statement(s) of work issued thereunder. The parties represent that
they are sophisticated commercial entities, have had the opportunity to consult with their own counsel, and have
included in this Agreement all terms material to the parties’ rights and obligations with respect to the subject matter
hereof and intend this document to be the final expression of their contractual intent. The parties further represent
and acknowledge that communications exchanged between the parties during contract negotiation (including,
without limitation, requests for proposal (“RFPs”) and Innovative’s responses to such RFPs; questionnaires and
responses to same, quotes) do not constitute a part of this Agreement. Purchase orders, work orders or other such
documents submitted by Client will be for Client’s internal administrative purposes only and the terms and conditions
contained in any such purchase order, work order or other such document will have no force or effect and will not
amend or modify this Agreement. In the event of any inconsistencies or conflicts among the GTCs, the SaaS
Agreement or any other exhibits or schedules referenced by these GTCs, the following order of priority will control:
1. SaaS Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or referenced
by the Agreement.
Page 11 of 16
Exhibit C
Innovative Interfaces Incorporated
Service Level Agreement
This Service Level Agreement (“SLA”) between Client and Innovative for the Platform apply to the SaaS
Agreement and, except as otherwise set forth below, is provided at no additional cost to Client. Unless otherwise
specified, capitalized terms in this SLA have the same meaning as those in the GTCs. The terms set forth herein
supplement, but do not replace or modify, the GTCs.
1.
Error Response. Error descriptions (each an “Error”), the Error severity levels and corresponding targeted
response time per level are each described in the table below. The Targeted Response Times in the table below
identify the response times that Innovative will target for the corresponding Error, however, such Targeted
Response Times are not guaranteed.
Severity
Description
Target
Response Time
One - Site Down
The Application Service is not available
1 hour
Two – Critical
An inoperable production module
2 hours
Three - High
Lesser issues, questions, or items that minimally impact the work
flow or require a work around
2 business days;
excludes
holidays and
weekends
Four – Routine
Issues, questions, or items that don’t impact the work flow. Issues
that can easily be scheduled such as an upgrade or patch
4 business days;
excludes
holidays and
weekends
2.
Error Reporting and Diagnosis.
a.
Client must designate a representative as the contact that will report Errors to Innovative and be
Innovative’s primary contact for the implementation of this SLA (such representative is referred to herein as the
“Client Contact”). When a Client Contact reports an Error, Innovative will use commercially reasonable efforts to
diagnose the root cause of the Error (“Diagnosis”). Upon completing the Diagnosis, each Error will be classified as
either a “Warranty Error” or a “Non-Warranty Error” pursuant to Section 3.b. below. Innovative will use commercially
reasonable efforts to diagnose and repair both Warranty and Non-Warranty Errors as described below.
b.
“Warranty Errors” are all Errors that do not qualify as Non-Warranty Errors. “Non-Warranty Errors” are
Errors resulting from any of the following causes: (i) misuse, improper use, alteration or damage of the Platform; (ii)
operator error; (iii) incorrect data entry by Client; (iv) third-party software not part of the Platform; (v) errors and/or
limitations attributable to Client environment; (vi) Client’s failure to incorporate any New Release previously provided
to it by Innovative which corrects such Error; (vii) modification of the Platform performed by Client; and (viii) technical
consulting services provided by Innovative at Client’s request (e.g., change orders, integration development, or
configuration design and implementation), unless Client notifies Innovative of such technical consulting services
problem within the applicable warranty period set forth in the governing statement of work, change order or
agreement. Client acknowledges that the Platform is intended for use only with the software and hardware described
in the Specifications provided by Innovative from time to time, and Client will be solely responsible for its adherence
thereto.
3.
Complimentary and Chargeable Support. Innovative will respond to all reported Errors pursuant to
Section 2 above and will use commercially reasonable efforts to resolve Warranty Errors at no additional charge if
Client is current on its payments; however, Innovative may charge Client for such effort with respect to Non-
Warranty Errors according to the following process: (i) When the Client Contact reports any Error, prior to
Page 12 of 16
commencing the Diagnosis for the Error, Innovative will notify the Client Contact that the Diagnosis and repair effort
will be at no charge to Client unless the reported Error is determined to be a Non-Warranty Error, in which case
only the first two hours of Diagnosis will be at no charge; and (ii) Innovative will then commence the Diagnosis
unless instructed otherwise by the Client Contact. If more than two hours are required for the Diagnosis of Non-
Warranty Errors, then such additional Diagnosis hours will be charged to Client at Innovative’s then-current rate for
technical services. Once the Diagnosis is complete, the Client Contact will be given the option of having Innovative
proceed with repairing the Non-Warranty Error, and, if so requested, Innovative will provide an estimate of the total
cost for such effort. If agreed to by the Client Contact, Innovative will undertake to repair the Non-Warranty Error
and charge Client for the associated technical services performed.
4.
Ticket Management and Escalation. Innovative manages all reported issues using a ticket management
system, and provides an Internet portal for Clients to report issues. Clients may review the status of issues reported
online. When an Error is either unresolved or not resolved in a timely fashion, the Client should contact Innovative
representatives pursuant to Innovative’s escalation policy made available on Innovative’s Internet portal.
5.
Hosting Services. Innovative provides industry-leading security and monitoring at a SOC 1/SOC 2 Type
2/ISO 27001-audited datacenter by a top-tier cloud hosting provider (the “Hosting Provider”), with the flexibility to
meet clients’ data storage, data recovery, and information security policy requirements. To meet clients’ global
hosting needs, Innovative offers hosting options in datacenters located in the United States, Canada, United
Kingdom, Ireland, Australia and the Asia-Pacific region, however, Innovative reserves the right to increase,
decrease and/or relocate its datacenters at any time.
Feature
Standard
24x7 infrastructure monitoring
Dedicated production environment
99.5% uptime**
Dedicated public IP address and custom URL
Operating system installation and management
Library software installation and upgrades
Data backups
Daily
Archive data backup retention
30 days
6.
**The 99.5% uptime is subject to the following:
a.
Hours of Operation/Exclusive Remedy for Service Unavailability. During the Term, Innovative will use
commercially reasonable efforts to ensure that the Applications Services are available for access and use in
accordance with the Agreement of at least 99.5% Scheduled Up-Time, as measured over any calendar year..
Scheduled Up-Time means all of the time in a month that is not Scheduled Downtime or Third Party Unavailability.
In the event that Innovative fails to provide Client with 99.5% Scheduled Up-Time for three consecutive months,
Client will be entitled to receive a credit equal to the prorated amount of the Fees for the period in which Innovative
failed to provide such Scheduled Up-Time during such months upon receipt of written notice from Client. The
remedies set forth in this Paragraph (i) are the exclusive remedies of the Client for Innovative’s failure to provide
Client with 99.5% Scheduled Up-Time.
b.
Scheduled Downtime. Scheduled Downtime means the period of time which Innovative or the Hosting
Provider, conduct periodic scheduled system maintenance and release updates for which Innovative will provide
Page 13 of 16
the Client with advance notice. Innovative will make commercially reasonable efforts to provide Client notice of
scheduled system maintenance 48 hours in advance.
Page 14 of 16
Exhibit D
Innovative Interfaces Incorporated
Information Security Terms and Conditions
Unless otherwise specified, capitalized terms in these Information Security Terms and Conditions have the
same meaning as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the
GTCs.
1.
Use of Client Data. Except as set forth herein or otherwise agreed to by the Parties or authorized by Client,
Innovative will not use Client Data for any purpose other than the fulfillment of its obligations under the Agreement.
2.
Security Controls.
a.
Generally. Subject to the terms of the Agreement, Innovative implements industry-recognized security best
practices to prevent the unintended or malicious loss, destruction or alteration of Client’s data resident in the
Platform.
b.
Network Systems Audit Logging. All network logon activity and password changes are logged, monitored,
controlled and audited. All intrusion detection and firewall log monitoring is done through services provided by the
Hosting Provider. The pertinent log files and configuration files related to customer's hosted solution are retained
for seven days and can be made available upon request for audit and problem resolution, as may be required.
c.
Encryption. Encryption for data-in-transit is provided as a part of the Standard Plan.
d.
Network Monitoring. All network systems and servers are monitored 24/7/365. Innovative will monitor its
systems for security breaches, violations and suspicious activity. This includes suspicious external activity
(including, without limitation, unauthorized probes, scans or intrusion attempts) and suspicious internal activity
(including, without limitation, unauthorized system administrator access, unauthorized changes to its system or
network, system or network misuse or program information theft or mishandling). Innovative will notify Client as
soon as reasonably possible of any known security breaches or suspicious activities involving Client’s production
data or environment, including, without limitation, unauthorized access and service attacks, e.g., denial of service
attacks.
e.
Physical Security. The physical infrastructure used to support the Platform and Application Services for
Client (and other professional services purchased by Client from Innovative, as applicable), including the servers,
storage, switches, and firewalls, are provided by the Hosting Provider. Hosting Provider limits access to only
authorized personnel, and badge and/or biometric scanning controls access. Security cameras placed in the hosting
facilities provide video surveillance.
f.
Audit and Security Testing. Hosting Providers perform regular security audits and testing. Per Hosting
Provider policy, Client may not perform their own audits of Hosting Providers.
g.
Security Assessments. Client may perform vendor due diligence reviews of Innovative’s security best
practices. Innovative undergoes annual audits by independent firms and will share its security certifications, and
audit reports under Non-Disclosure, as requested by Client.
h.
Information Security Auditing/Compliance. Innovative’s hosting providers undergo SOC 1/SOC 2 Type
2/ISO 27001 audits each year by independent third-party audit firms. Innovative also holds the internationally-
recognized ISO 27001:2013 standard for its information security management system supporting the hosting
solutions. Innovative partners with Hosting Providers who are designed to satisfy requirements of most security
sensitive customers with constant monitoring, high automation, high availability, and highly accredited to global
security standards, including: PCI DSS Level 1, ISO 27001, FISMA Moderate, FedRAMP, HIPAA, and SOC 1
(formerly referred to as SAS 70 and/or SSAE 16) and SOC 2.
i.
Acknowledgement of Shared Responsibilities. The security of data and information that is accessed, stored,
shared, or otherwise processed via a multi-tenant cloud service are shared responsibilities between a cloud service
provider and its customers. As such, the Parties acknowledge that: (a) Innovative is responsible for the build and
implementation of the hosted Platform and Application Services, for monitoring performance and access, for
Page 15 of 16
EXHIBIT C
Professional Services Agreement
SCHEDULE
Implementation Start Date - 11/01/2023
Go Live Date - 09/29/2003
Year 1 SaaS Subscription Period - 10/01/2023 - 09/30/2024
Year 2 SaaS Subscription Period - 10/01/2024 - 09/30/2025
Year 3 SaaS Subscription Period - 10/01/2025 - 09/30/2026
Year 4 SaaS Subscription Period - 10/01/2026 - 09/30/2027
EXHIBIT D
Professional Services Agreement
COMPENSATION
METHOD AND AMOUNT OF COMPENSATION
Compensation for Implementation and Year 1 SaaS to be provided upon completion of implmentation (Go Live
Date). Subsequent annual renewals of SaaS Subscription to be paid upon the annual renewal date which shall be
one (1) year from the Go Live date and shall be renewable annually thereafter in accordance with the terms set forth
in section 16 herein .
NOT-TO-EXCEED AMOUNT
The total amount of compensation paid to Consultant for full completion of all work required by the Project during
the entire term of the Project must not exceed $112,781.78.
DETAILED PROJECT COMPENSATION
$9,000 - Initial Implementation
$22,050.00 - Year 1 SaaS Subscription (begins on Go Live date)
$2,028.60 - Year 1 SaaS Subscription
$23,152.50 - Year 2 Maximum SaaS Subscription (includes up to 5% increase per Section 4 of SaaS Agreement)
$2,130.03 - Year 2 Estimated Tax
$24,310.13 - Year 3 Maximum SaaS Subscription (includes up to 5% increase per Section 4 of SaaS Agreement)
$2,236.53 - Year 3 Estimated Tax
$25,525.63 - Year 4 Maximum SaaS Subscription (includes up to 5% increase per Section 4 of SaaS Agreement)
$2,348.36 - Year 4 Estimated Tax.