HomeMy WebLinkAbout2017-07-10-J01S PW Asset Managment_Subscription LicenseN►4 Waukee
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AGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: July 10, 2017
AGENDA ITEM: Consideration of approval of a resolution approving the Subscription
License and Services Agreement with Infor Public Sector, Inc.
FORMAT: Resolution
SYNOPSIS INCLUDING PRO & CON: Infor is an asset management software that will be
used to manage and optimize the purchase, deployment, maintenance as
well as prioritize infrastructure with public works and the City. This
software will help with life cycle costs, staffing needs, and capital project
prioritization of city infrastructure replacement. The ability to track
actual costs related to assets will ensure life cycle can be maximized.
FISCAL IMPACT INCLUDING COSTBENEFIT ANALYSIS: There is an annual recurring
fee of $31,944.00. The initial subscription term is 3 years from the
executed agreement date.
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT:
RECOMMENDATION: Approve the Resolution.
ATTACHMENTS: 1. Agreement
PREPARED BY: Beth Richardson/Rudy Koester pK
REVIEWED BY: John Gibson
PUBLIC NOTICE INFORMATION —
NAME OF PUBLICATION:
DATE OF PUBLICATION:
THE CITY OF WAUKEE, IOWA
RESOLUTION 17-
APPROVING SUBSCRIPTION LICENSE AND SERVICES AGREEMENT WITH
INFOR PUBLIC SECTOR, INC.
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WA UKEE, IOWA
WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized Municipal
Organization; AND,
WHEREAS, Infor Public Sector, Inc., has submitted a Subscription License and Services
Agreement for asset management software; AND,
WHEREAS, the software will be implemented by the City in order to manage and optimize the
purchase, deployment, and maintenance of City infrastructure; AND,
WHEREAS, the Waukee City Attorney has reviewed the proposed agreement and finds it
satisfactory.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee that the
Subscription License and Services Agreement with Infor Public Sector, Inc. is hereby approved.
Passed by the City Council of the City of Waukee, Iowa, and approved the IO`h day of July,
2017.
William F. Peard, Mayor
Attest:
Rebecca D. Schuett, City Clerk
ROLL CALL VOTE AYE NAY ABSENT ABSTAIN
Anna Bergman
R. Charles Bottenberg
Brian Harrison
Shelly Hughes
Larry R. Lyon
SaaS Order Form
This Order Form is subject to the terms of the Subscription License and Services Agreement between Infer Public Sector, Inc. ("Infor") and
City of Waukee ("Licensee") with an effective date of (the "Agreement'). All terms of the Agreement are
incorporated herein by reference. In the event of a conflict, the terms of this Order Form control over the terms of the Agreement.
Capitalized terms not defined in this Order Form are defined in the Agreement. In the event the capitalized terms in this Order Form differ
from the terminology used in the Agreement, references herein to: "Subscription Software" and "Component Systems" shall have the same
meaning, refer to the computer software programs identified this Order Form and may be referred to in the Agreement as Component Systems,
Products, Software Products, Subscription Software, Software, Standard Software, Programs or Licensed Programs; "Support" may be
referred to in the Agreement as Support, Maintenance and Support, Annual Support, Support Services, On -Going Support or One Point
Support; and "License Restriction' means any limitation on the use of the Subscription Software and may be referred to in the Agreement as
License Restriction or User Restriction.
Subscription Software
Part #
(if applicable)
Subscription Software
License Restriction*
Quantity Type
Support
Level**
1
EEN-S-CLDSUITE-FMPRO
Infer CloudSuite Facilities Management Professional User
12
NU
CXT
2
EEN-HOST-S-EAU
Infer EAM Enterprise Edition Advanced Reporting Author
Subscription
I
NU
CXT
3
EEN-HOST-S-EGIS
Infer EAM Enterprise Edition GIS Subscription
1
DA
CXT
For the purpose of the definitions below, Component System and Subscription Software may be used interchangeably.
* If specified in the User Restriction field:
"DA" = Data Center - Quantity represents the maximum number of separate data centers having the Component System installed on
machines located within it. Each separate data center requires a license. A Datacenter is the department in an enterprise that houses and
maintains back -end information technology systems and data stores. Typically, this department and all the systems reside in one physical
place or site.
"NU" = Named Users - Allows access to the Component System up to the stated maximum number of individual named users,
irrespective as to whether any such user is actively logged on to the Component Systems at a given point in time; The Licensee agrees to
assign to each Named User a unique identification profile, it being agreed that to the extent Licensee uses generic user profiles as a means
to access the Component System, each separate log -on accessing the Component System will be counted as a separate user.
**Support Level for Subscription Software:
CXT = Essential Support— During the Subscription Term, Licensee is eligible to receive the standard support that Infor makes generally
available to its subscription customers. No subscription options for support are included unless otherwise specified herein. Additional
information regarding Subscription Services support may be found at: http://www.infor.com/cloud/subscription/
It. Subscription Term and Subscription Fees
Annual Subscription Fee: $31,944.00
Initial Subscription Term: Order Form Date through 3 years from Order Form Date.
Fee for Initial Subscription Term : $95,832.00
Total Amount Due (before applicable taxes): $95,832.00
Unless otherwise specified all amounts are in United States Dollar
Currency: USD
Order Form SaaS (CPQ-English-US Dec 2016) OP-02155740 SQB047011_1 CS 1v1 5/1/2017 Page 1 of 8
Ill. Payment Terms:
Annual Payment Terms:
Licensee shall pay the Annual Subscription Fee, in advance, as invoiced by Infer. The first Annual Subscription Fee, plus applicable
taxes, will be invoiced promptly upon the Order Form Date. All other Annual Subscription Fees will be invoiced such that they are
due prior to the commencement of the portion of the Subscription Term to which the Annual Subscription Fee applies. Licensee shall
pay all invoices within 15 days of the date of the invoice.
Licensee Account ID:
100052122
Infor GL ID:
US06A
Account Executive Name:
Dale Wilkinson
Primary -use Address:
Invoice Address:
City Of Waukee
805 University Ave.
Waukee, IA 50263
USA
City Of Waukee
805 University Ave.
Waukee, IA 50263
USA
Contact Name: John Gibson
Contact Name: John Gibson
Contact Title: Public Works Director
Contact Title: Public Works Director
Contact Phone: 515-978-7920
Contact Phone: 515-978-7920
Contact email: jgibson@waukee.org
Contact email: jgibson@waukee.org
IV. Additional Terms
Exhibit I —Service Level Description is attached to and made a part of this Order Form.
Licensee's purchase of the licenses specified herein is not contingent or dependent upon the provision of any consulting services
Licensee may choose to purchase from Infor contemporaneously with this Order Form or in the future.
Mobile Software Supplement
The Mobile Software Supplement attached hereto and incorporated herein (the "Mobile Supplement"), sets forth additional terms and
conditions applicable to Licensee's access to and use of the Mobile Software described in this Order Form. The terms of the Agreement
are hereby amended by the Mobile Supplement as it relates to the Mobile Software. In the event of a conflict between the terms and
conditions of the Agreement and the provisions of the Mobile Supplement, the provisions of the Mobile Supplement shall govem and
control.
Google Third Party Products:
1) Google, Inc. ("Google") retains all ownership and intellectual property rights in any Google Third Party Products, including but not
limited to applicable "Google Content" licensed with or otherwise accessible via any Subscription Services, Subscription Software or
Component Systems provided or licensed hereunder. "Google Content" means any content provided by Google through any Google
Third Party Products or services (whether created by Google or its third party provider licensors), including map and terrain data,
photographic imagery, and traffic data; 2) Licensee is prohibited from publication of benchmark tests run on any Google Third Party
Products; 3) Google is a third party beneficiary to this Order Form and any agreements between Licensee and Infor, which govern this
Order Form; 4) In connection with the Google Third Party Products, Licensee shall at all times comply with the then current terms
located at the following URLs: (i) the Google Maps / Google Earth Additional Terms of Service at:
http://maps.googic.com/help/terms_maps.html; (ii) the Google Maps / Google Earth Legal Notices at:
http://maps.google.com/help/legatnotices_maps.html; and (iii) the Google Service's Acceptable Use Policy at:
https://www.google.com/work/earthmaps/legal/univenal aup.html.
Order Form SaaS (CPQ-English-US Dec 2016) OP-02155740 SQ8047011_1 CS 1v1 5/l/2017 Page 2 of 8
Effective date of this Order Form:
(the "Order Form Date"), to be completed by Infor upon countersignature.
THE PARTIES have executed this Order Form through the signatures of their respective authorized representatives.
for: Infor Public Sector, Inc. for: City of Waukee
(Licensee)
Signature
Typed or Printed Name
Title
Date
Signature
Typed or Printed Name
Title Date
Order Form SaaS (CPQ-English-US Dec 2016) OP-02155740 SQB047011_1 CS 1vl 5/1/2017 Page 3 of 8
Exhibit I to SaaS Order Form
Service Level Description
infrastructure- The services are supported by commercially reasonable redundant infrastructure including
• Power infrastructure that includes redundant sources (multiple power feeds, generators, battery backups), multiple power
distribution systems, and redundant power supplies;
• Environmental controls that include highly available precision HVAC systems, humidity controls, and water detection systems;
• Network infrastructure that includes multiple Internet Service Providers, redundant edge routers, firewalls, and switches;
• Hardware and software redundancy in support of virtualized and physical servers; and
• Storage solutions that provide redundant back end data storage.
Infor maintains a disaster recovery site where Licensee's data is replicated on a regular basis.
Technical Change Management — Infor maintains change management system to ensure review and controlled implementation of changes
that Infor may make from time to time in the support of the services. Changes require both a risk analysis and a peer review before being
implemented in Infor's infrastructure.
Cloud Storage - Infor Subscription Software solutions include two (2) terabytes of storage at no additional charge. This storage limitation is
for the Licensee's production environment only and applies to each Infor CloudSuite or Subscription Software product line, regardless of
whether they are subscribed for on a single Order Form or across multiple Order Forms.
Security & Privacy — Infor takes great care to protect non-public information provided to us by our customers. Infor may have access to
non-public information from multiple sources that include:
• Directly from use of one of Infor's hosted applications.
• Directly from a customer's designated service representative or indirectly via batch data transfers.
• In the course of transactional activities as information is updated or processed by an Infor hosted application, or through data
maintenance activities.
• Other sources as defined by one of our solutions.
Infor has implemented a defense -in-depth strategy to protect non-public information. This strategy is based upon best -practices designed to
comply with applicable laws and regulations and is based upon widely accepted industry standards. Our security management system is based
on the following:
• Security Policies: We require that all employees be responsible for the security of non-public information and follow the practices
defined within the Information Security Management System,
• Information Security Organization: Infor's management is committed to security and has established an organization responsible
for the security of non-public information.
• Asset Management: All assets are strictly controlled and all information is classified in order to determine the appropriate controls
required for access and handling.
• Human Resources Security Practices: In the US, Infor conducts a comprehensive background check and screening at the time each
employee is hired and requires that employees maintain familiarity and compliance with security responsibilities. When employees
leave Infor, a formal process is established to remove their physical and virtual access to the Infor infrastructure.
• Physical and Environmental Security: Infor places critical components in physically controlled spaces with best -practices in place
to secure infrastructure. Physical and environmental security measures include card and/or biometric access controls, and limited
access to secure locations based on job function.
• Access Control: All access to systems, networks, and applications is controlled down to the user and resource level with role -based
privilege techniques. This access is reviewed on a periodic basis to ensure that a change of personnel or a change of role has not
modified the access needs of the individual.
• Communication and Operations Management: Infor has implemented strong operational procedures to protect information. Our
controls surrounding system planning, protection from malicious code, backup processes, network security, media handling and
exchange of information are constantly being analyzed and monitored to insure they provide reasonable protection for your data.
Third party service providers with access to confidential information are required to adhere to security and privacy requirements
Order Form SaaS (CPQ-English-US Dec 2016) OP-02155740 SQB047011_1 CS 1v1 5/1/2017 Page 4 of 8
that are consistent with and at least as restrictive as Infor's own policies and procedures regarding the protection of confidential
information.
• System Development: Security requirements of all applications that handle confidential information are defined early in the
development stage. Appropriate data protection techniques are designed into the application while changes to developed software
must go through a mature change management process.
• Incident Management: In the unlikely event of an actual or reasonably suspected security incident, our teams immediately begin
work to identify the scope of impact, mitigate any exposure, determine the root cause of the incident and take appropriate corrective
action.
• Compliance: We are constantly analyzing the requirements of legal, regulatory, and contractual obligations to ensure we are abiding
by the requirements that apply to the handling of your data.
Scheduled Maintenance — The services shall be subject to a regularly scheduled weekly maintenance window. Infer makes commercially
reasonable efforts to establish maintenance windows during times that minimize impact to Licensee's users. While most of Infor's
maintenance can be completed during regularly scheduled maintenance windows, from time to time maintenance must be performed outside
of the scheduled maintenance windows to maintain the integrity and security of the services. In such cases, Infor will provide Licensee's
primary point of contact as much advance notice of the planned maintenance as is technically feasible. The regularly scheduled weekly
maintenance windows and any period of unavailability due to maintenance for which Licensee is given at least 24 hours advance notice is
considered "Scheduled Maintenance".
Availability — Infor's goal is to provide access to the services at Infor's Internet gateway(s) twenty-four hours per day, seven days a week,
except during Scheduled Maintenance. Infor's service level objective is 99.5% Availability measured on a monthly basis.
Availability for the Subscription Services is measured monthly as a percentage of Scheduled Available Minutes.
• "Scheduled Available Minutes" are the total minutes in a month less the number of Scheduled Maintenance minutes in the
applicable month.
• "Available Minutes" is the number of Scheduled Available Minutes in a month less the aggregate number of minutes the
Subscription Services were unavailable outside of Scheduled Maintenance.
• "Availability" is a percentage calculated as the Available Minutes in a month divided by the Scheduled Available Minutes in the
month.
For example, in a 30 day month with 4 weekly Scheduled Maintenance windows of 8 hours, there are 41,280 Scheduled Available Minutes
((60 min. x 24 brs. x 30 days)-(60 min. x 8 hrs. x 4 weeks) = 41,280). If the Subscription Services experienced an outage of two hours outside
of Schedule Maintenance, there were 41,160 Available Minutes in the month (41,280 Scheduled Available Minutes — 120 minutes of
unavailability). The resulting Availability percentage is 41,160 / 41,280 — 99.7%.
The following shall not be considered periods of unavailability for purposes of the Availability calculation:
• Outages due to factors outside of later's reasonable control (for example, a network or device failure at Licensee's site or between
Licensee and Infor's data centers);
• Delays in email or webmail transmission to or from the hosted application;
• Connectivity issues outside of Infor's direct control (e.g. DNS issues);
• Force Majeure events;
• Outages attributable to the acts or omissions of Licensee or Licensee's employees, agents, contractors, or vendors, or anyone
gaining access to the services means of UserlDs or equipment controlled by Licensee;
• Periods of Down Time at Licensee's request;
• Outages that result from Licensee's equipment, software, or other technology and/or third party equipment, software or other
technology (other than those which are under Infor's direct control); and
• Performance degradation due to Licensee's use of the services in excess of the scope of Licensee's license, usage restrictions, or
product limitations outlined in the applicable Agreement.
Order Form SaaS (CPQ-English-US Dec 2016) OP-02155740 SQB047011_1 CS tv1 5/1/2017 Page 5 of 8
MOBILE APPLICATION SUPPLEMENT
In connection with Licensee's license to the Mobile Application Subscription Software (the "Mobile Application") as specified in the
Order Form to which this Mobile Application Supplement (`Supplement") is attached, INFOR will provide Licensee with an
environment to enable use of certain Infor-licensed Software (the "Software") on the Mobile Application through certain Apple or
Android devices. The Mobile Application may be used on either an Apple device or an Android device, as specified by Apple or Google.
If Licensee elects to use the Mobile Application on an Apple device, the Mobile Application is separately distributed exclusively by
Apple through the App Store pursuant to the Apple Terms of Use. If Licensee elects to use the Mobile Application on an Android device,
the Mobile Application is separately distributed exclusively by Google through Google Play pursuant to the Google Terms of Service.
In order to use the Mobile Application on an Apple device, Licensee Users must separately agree to the Apple Terms. of Use prior to
downloading the Mobile Application, and in order to use the Mobile Application on an Android device, Licensee users must separately
agree to the Google Terms of Service. If Licensee Users do not agree to these separate terms, then use of the Mobile Application will
not be permitted on the respective. Apple -supported or Google-supported device. At the time of download of the Mobile Application
from the App Store or Google Play, as applicable, either Licensee Users will be prompted to agree to the Apple Terms of Use or the
Google Terms of Service by checking a box displayed at the end of these terms or by clicking an "Agree" or similar button where this
option is provided, or Licensee Users will be deemed to have accepted such terms by using the Mobile Application. Notwithstanding
the foregoing, the Agreement to which this Supplement is attached is deemed amended by this Supplement with respect to the Mobile
Application, as provided for below and as otherwise set forth in the Apple Terms of Use or the Google Terms of Service, as applicable.
Any conflict between the terns of the Agreement and the terms of this Supplement will be resolved in favor of this Supplement.
1. Additional Definitions.
"Apple" refers to Apple, Inc. and its majority -owned affiliates.
"Apple Terms of Use" refers to the then -current additional terms and conditions of Apple (including the App Store Terms of Service
and Apple Usage Rules set forth in the Apple App Store) and the EULA that Licensee Users must accept and agree to prior to using the
Mobile Application on an Apple device.
"App Store" means the electronic store branded, owned and/or controlled by Apple.
"INFOR" refers to the rNFOR contracting entity set forth in the Agreement, for and on behalf of itself and its subsidiaries and affiliates,
including Infor (US), Inc.
"EULA" means additional terms of use of INFOR applicable to the Mobile Application that Licensee Users must accept and agree to
prior to use of the Mobile Application. Neither Apple nor Google is a party to the EULA.
"Google" refers to Google Inc.
"Google Play" means the electronic store branded, owned and/or controlled by Google.
"Google Terms of Service" refers to the then -current additional terms and conditions of Google (including the Google Play Terms of
Service) and the EULA that Licensee Users must accept and agree to prior to using the Mobile Application on an Android device.
"Licensee Users" refers to the individuals affiliated with and authorized by Licensee to use the Mobile Application in connection with
the Software, subject to the Agreement, including the applicable User Restrictions set forth in the Order Form, and to agree to the Apple
Terms of Use or the Google Terms of Service, as applicable.
2. Supported Devices. The Mobile Application supports certain Apple and Android mobile devices, and data networks such as 3G,
EDGE and WiFi, and enables Licensee Users to access the Software through such Apple and Android mobile devices. Notwithstanding
the foregoing, INFOR shall have no obligation to offer technical support (including without limitation any wireless network connectivity
support) in connection with any Apple or Android mobile device and shall have no liability with respect to the compatibility or
performance of any Apple or Android mobile device in connection with the Mobile Application or the Software.
3. License. Subject to the terms and conditions of the Agreement (including any applicable User Restrictions set forth in the Order
Form), the Apple Terms of Use and the Google Terms of Service, INFOR grants Licensee a non-exclusive, non -transferable, non-
sublicensable, revocable license to run the Mobile Application on designated Apple or Android mobile devices owned or controlled by
Licensee, solely for Licensee Users to access the Software for Licensee's own internal computing operations. Each Licensee User may
Order Form SaaS (CPQ-English-US Dec 2016) OP-02155740 SQB047011 _1 CS 1vl 5/1/2017 Page 6 of 8
use the Mobile Application only on a Licensee -owned and controlled Apple or Android mobile device that Licensee assigns to the
specified Licensee User. Licensee and Licensee Users are not permitted to use the Mobile Application for any purpose except in
connection with Licensee's separate license to the Software, consistent with the INFOR-provided applicable documentation and only as
permitted under the Agreement and the Apple Terms of Use and the Google Terms of Service, as applicable. If any Licensee User ceases
to be affiliated with and otherwise authorized by Licensee to use the Mobile Application or Software for any reason, Licensee will
immediately terminate all access by such Licensee User to the Mobile Application and the Software. INFOR may audit Licensee's use
of the Software and the Mobile Application and its compliance with the terms of the Agreement and the Apple Terms of Use and the
Google Terms of Service, as applicable. Any rights not expressly granted in this Supplement are expressly reserved.
4. Intellectual Property. INFOR retains all ownership and intellectual property rights in the Mobile Application. Licensee and Licensee
Users may not: (a) modify the Mobile Application; (b) provide or make the Mobile Application available to any third party; (c) use the
Mobile Application to provide third party training for INFOR products; (d) assign the Agreement or the EULA or transfer the Mobile
Application or any interest thereto to any other individual or entity; (d) decompile, disassemble or reverse engineer (except to the extent
permitted by applicable law) the Mobile Application; (f) create derivative works based on the Mobile Application; or (g) use any INFOR
name, trademark or logo.
5. Warranty. THE MOBILE APPLICATION IS LICENSED "AS IS," WITHOUT ANY WARRANTY WHATSOEVER. INFOR
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE MOBILE APPLICATION, IN WHOLE OR IN
PART, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT. INFOR EXPLICITLY DISCLAIMS ALL
WARRANTIES OF NON-INFRINGEM ENT, MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. INFOR
EXPRESSLY DOES NOT WARRANT THAT THE MOBILE APPLICATION, IN WHOLE OR IN PART, WILL BE ERROR FREE,
WILL OPERATE WITHOUT INTERRUPTION, WILL BE COMPATIBLE WITH ANY HARDWARE OR SYSTEMS SOFTWARE
CONFIGURATION, OR WILL MEET LICENSEE'S OR LICENSEE USERS' REQUIREMENTS. LICENSEE AND LICENSEE
USERS ASSUME ALL RISKS ASSOCIATED WITH THE USE OF THE MOBILE APPLICATION, INCLUDING WITHOUT
LIMITATION RISKS RELATING TO QUALITY, AVAILABILITY, PERFORMANCE, DATA LOSS, SECURITY AND USE IN A
PRODUCTION ENVIRONMENT. LICENSEE AND LICENSEE USERS EXPRESSLY ACKNOWLEDGE AND AGREE THAT
AVAILABILITY OF THE MOBILE APPLICATION IS SUBJECT TO APPLE'S SOLE DISCRETION AS THE OPERATOR OF
THE APPLE APP STORE, AND GOOGLE'S SOLE DISCRETION AS THE OPERATOR OF THE GOOGLE PLAY STORE (AS
APPLICABLE) AND INFOR RESERVES THE RIGHT TO CHANGE, SUSPEND, LIMIT, REMOVE OR DISABLE ACCESS TO
THE MOBILE APPLICATION AND ITS FEATURES AND FUNCTIONS AT ANY TIME WITHOUT NOTICE. NEITHER APPLE
NOR GOOGLE HAS ANY WARRANTY OBLIGATION WITH RESPECT TO THE SOFTWARE AND THE MOBILE
APPLICATION.
6. Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL INFOR BE LIABLE TO LICENSEE,
LICENSEE USERS OR TO ANY THIRD PARTY FOR ANY DAMAGES ARISING IN CONNECTION WITH USE OR INABILITY
TO USE THE MOBILE APPLICATION OR IN CONNECTION WITH INFOR'S PROVISION OF OR FAILURE TO PROVIDE
SERVICES PERTAINING TO THE MOBILE APPLICATION, OR AS A RESULT OF ANY DEFECT IN THE MOBILE
APPLICATION, OR AS A RESULT OF ANY CHANGE, SUSPENSION, REMOVAL OR DISABLING OF ACCESS TO THE
MOBILE APPLICATION. THIS DISCLAIMER OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION
THAT MAY BE BROUGHT AGAINST INFOR, WHETHER IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION
ANY ACTION FOR NEGLIGENCE, PRODUCT LIABILITY, FAILURE OF THE MOBILE APPLICATION TO CONFORM TO
ANY LEGAL OR REGULATORY REQUIREMENT OR CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR
LEGISLATION. LICENSEE'S AND LICENSEE USER'S SOLE REMEDY FOR BREACH OF THIS SUPPLEMENT BY INFOR
OR FOR ANY OTHER CLAIM RELATED TO THE MOBILE APPLICATION OR THIS SUPPLEMENT SHALL BE
TERMINATION OF THIS SUPPLEMENT AND THE EULA. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN,
UNDER NO CIRCUMSTANCES SHALL INFOR AND ITS LICENSORS BE LIABLE TO LICENSEE, LICENSEE USERS OR
ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, LOSS
OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION,
ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES.
7. Indemnification. INFOR will defend, indemnify and hold Licensee harmless from and against any loss, cost and expense that
Licensee incur because of a third party claim that use of the Mobile Application as permitted under this Agreement and the Apple Terms
of Use and the Google Terms of Service (as applicable) infringes any copyright of others. INFOR's obligations under this
indemnification are expressly conditioned on the following: (i) Licensee must promptly notify INFOR of any such claim; (ii) Licensee
must in writing grant INFOR sole control of the defense of any such claim and of all negotiations for its settlement or compromise (if
Licensee chooses to represent its own interests in any such action, Licensee may do so at its own expense, but such representation must
not prejudice INFOR's right to control the defense of the claim and negotiate its settlement or compromise); (iii) Licensee must cooperate
Order Form SaaS (CPQ-English-US Dec 2016) OP-02155740 SQB047011_1 CS 1v1 5/1/2017 Page 7 of 8
with INFOR to facilitate the settlement or defense of the claim. INFOR will not have any liability hereunder to the extent the claim
arises from (a) any modification of the Mobile Application or the Software; (b) the use or combination of the Mobile Application or
Software with any computer, computer platform, operating system and/or data base management system not provided or approved in
writing by INFOR; (c) if the claim would have been avoided by Licensee's use of the most recent version of the Mobile Application or
Software; or (d) any improper use of the Software or Mobile Application. THE FOREGOING SETS FORTH INFOR'S EXCLUSIVE
OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Neither
Apple nor Google has any indemnity obligation for the Software or the Mobile Application.
& Export. U.S. export control laws and other applicable export and import laws govern use of the Mobile Application. Licensee and
each Licensee User each represents and warrants that: (i) it is not a citizen, national or resident of, and is not located in nor under the
control of, any government or country to which the U.S. government has prohibited export, that is subject to a U.S. government embargo,
or that has been designated by the U.S. government as a terrorist- supporting country; (ii) it is not listed on any U.S. government list of
prohibited or restricted parties; and (iii) it will neither export or re-export, directly or indirectly, the Mobile Application in violation of
such laws, or use the Mobile Application for any purpose prohibited by such laws.
9. Support. INFOR does not offer support for the Mobile Application other than provision of updates, patches, bug fixes and new
versions of the Mobile Application via the Apple App Store or Google Play, to be determined in INFOR's sole discretion. Neither Apple
nor Google has any obligation to provide maintenance and support for the Mobile Application.
10. Term and Termination. INFOR may terminate the EULA and use of the Mobile Application by Licensee and Licensee Users if
Licensee or any Licensee User fails to comply with any terms of this Agreement or the Apple Terms of Use or the Google Terms of
Service, as applicable. As applicable, the EULA will terminate automatically upon the termination of the Agreement or upon termination
of any Licensee User's affiliation with or authorized use by Licensee. Apple or Google (as applicable) and INFOR may terminate access
to and/or use of the Mobile Application by Licensee and Licensee Users at any time. Upon termination of the Agreement or the Apple
Terms of Use or the Google Terms of Service (as applicable), in whole or in part, Licensee and each Licensee User will discontinue
further use of the Mobile Application and delete all copies of the Mobile Application on the applicable Apple or Android mobile devices.
11. Third Party Product License Terms. Licensee and Licensee Users will comply with applicable third party terms of any third party
agreement when using the Mobile Application.
12. Miscellaneous. Licensee acknowledges and agrees that this Supplement, as subject to the Agreement, is between INFOR and
Licensee, for itself and on behalf of Licensee Users, and that neither Apple nor Google is a party to the Agreement or the EULA; (b)
INFOR is solely responsible for the Software, Mobile Application and the INFOR-provided content thereof, (c) Apple and Apple
subsidiaries are third party beneficiaries of the Apple Terms of Use, and Google and Google subsidiaries are third party beneficiaries of
the Google Terms of Service; (d) Apple has the right (and will be deemed to have accepted the right) to enforce the terns of this
Supplement and the Apple Terns of Use against Licensee and Licensee Users as a third party beneficiary thereof but only if Licensee
has accepted these terms and/or each Licensee User has accepted the Apple Terms of Use as outlined above, and Google has the right
(and will be deemed to have accepted the right) to enforce the terms of this Supplement and the Google Terms of Service against
Licensee and Licensee Users as a third party beneficiary thereof but only if Licensee has accepted these terms and/or each Licensee
User has accepted the Google Terms of Service as outlined above. INFOR's failure to enforce its rights with respect to any breach of
this Supplement or the EULA will not act as a waiver of the right of INFOR to later enforce any such rights or to enforce any other
breach. Licensee will ensure compliance by Licensee Users and fully indemnify and hold harmless INFOR for any breach by Licensee
Users of the terns of the Agreement and the Apple Terns of Use and the Google Terms of Service, as applicable.
13. Changes. Apple may at anytime modify the Apple Terms of Use and Google may at anytime modify the Google Terms of Service,
and Apple and Google may each impose new or additional terms and conditions on INFOR, Licensee and Licensee Users relating to the
Mobile Application. Any such changes will be effective immediately and be deemed incorporated into this Supplement and the Apple
Terms of Use and the Google Terms of Service, as applicable. Continued use of the Mobile Application by Licensee and Licensee
Users will constitute acceptance of these changes.
INFOR is a trademark of Infor (US), Inc. or its affiliates, registered in the U.S. and other countries. All rights reserved. Apple and App Store
are trademarks of Apple Inc., registered in the U.S. and other countries. Android is a trademark of Google Inc. Any other trademarks identified
herein are the property of their respective owners.
Order Form SaaS (CPQ-English-US Dec 2016) OP-02155740 SQB047011_1 CS 1vl 5/1/2017 Page 8 of 8
SUBSCRIPTION LICENSE AND SERVICES AGREEMENT
AGREEMENT NUMBER:
THIS SUBSCRIPTION LICENSE AND SERVICES AGREEMENT (the "Agreement") is between Infor Public Sector, Inc. ("Infor")
and City of Waukee ("Licensee") as of the Effective Date. The parties agree as follows:
1. Definitions.
(a) "Affiliate" means any entity, directly or indirectly,
controlling, controlled by, or under common control with, Infor.
(b) "Authorized Users" means: (i) Licensee's employees; and
(ii) contractors authorized by Licensee to access the Subscription
Software who, prior to obtaining access to the Subscription Software,
have executed a non -disclosure agreement that protects later's
Confidential Information to the same extent as this Agreement, in
each case registered in the database with a unique UserID and a
unique password.
(c) "Confidential Information" means non-public information
that is identified as or would be reasonably understood to be
confidential and/or proprietary. Confidential Information of Infer
includes, without limitation, the Documentation and the Subscription
Software, including any software code and all algorithms, methods,
techniques, and processes revealed or utilized therein. Confidential
Information of Licensee includes Licensee Data. Confidential
Information does not include information that: (i) is or becomes
known to the public without fault or breach of the Recipient; (ii) the
Discloser regularly discloses to third parties without restriction on
disclosure; (iii) the Recipient obtains from a third party without
restriction on disclosure and without breach of a non -disclosure
obligation known to Recipient; or (iv) is independently developed by
the Recipient without use of Confidential Information.
(d) "Customizations" means any components deployed in the
hosted environment for the Subscription Software other than the
generally available Subscription Software or components that
Licensee may deploy via the standard user interface or tools included
in the generally available Subscription Software. Customizations
may include, without limitation, code, databases or third party
extensions that are not included in the generally available
Subscription Software.
(e) "Discloser" means the party providing Confidential
Information to the Recipient.
(f) "Documentation" means the then -current Infor-provided
documentation relating to the features, functions, and use of the
Subscription Software.
(g) "Documented Defect" means a material deviation between
the then -current, general release version of the Subscription Software
and its Documentation.
(h) "Effective Date" means the date identified on the signature
page of this Agreement as the Effective Date.
(i) "Initial Subscription Term" means the initial subscription
period set forth on the applicable. Order Form.
Q) "Intellectual Property Rights" means any and all rights in
patents, copyrights, trademarks and service marks.
(k) "Licensee Data" means information provided, entered or
uploaded for use by or with the Subscription Software by the
Licensee or its Authorized Users.
(1) "License Restriction" means any limitation on the use of the
Subscription Software identified in an Order Form (e.g., number of
Authorized Users, locations, connections).
(m) "Order Form" means each order form between the parties
incorporating the terms of this Agreement which shall contain,
without limitation, a list of the Subscription Software and associated
quantity and License Restriction, a description of the Subscription
Services, Subscription Fees, and payment terms.
(n) "Personal Information" means information provided to
Infor by or at the direction of Licensee, or to which access was
provided to Infer in the course of Infor's performance under this
Agreement that: (i) identifies or can be used to identify an individual
(including, without limitation, names, signatures, addresses,
telephone numbers, e-mail addresses and other unique identifiers); or
(ii) can be used to authenticate an individual (including, without
limitation, employee identification numbers, government -issued
identification numbers, passwords or PINS, financial account
numbers, credit report information, biometric or health data, answers
to security questions and other personal identifiers). Personal
Information shall include any non-public personal information
regarding any individual that is subject to applicable national, state,
regional, and/or local laws and regulations governing the privacy,
security, confidentiality and protection of non-public personal
information.
(o) "Recipient" means the party receiving Confidential
Information of the Discloser.
(p) "Renewal Term" means any renewal or extension of
Licensee's license to use the Subscription Software following the
expiration of the Initial Subscription Term.
(q) "Residual Knowledge" shall mean ideas, concepts, know-
how or techniques related to the Discloser's technology and
Confidential Information that are retained in the unaided memories
of the Recipient who had rightful access to Confidential Information.
(r) "Service Level Description" means the Service Level
Description document applicable to the Subscription Services and
attached as an exhibit to an Order Form.
(s) "Subscription Fees" means the fees for the Subscription
Services set forth on the applicable Order Form.
Subscription License and Services Agreement (US September 2016) Page 1 of 7
it) "Subscription Services" means the Subscription Software -
related application hosting services and Support (as defined in
Section 3(b)) that Infor provides Licensee under this Agreement.
(u) 'Subscription Software" means collectively or individually
the computer software programs identified in the applicable Order
Form for which Infor is providing the Subscription Services.
(v) `Subscription Term" means the Initial Subscription Termer
any Renewal Term, as applicable.
(w) "Third Party Licensor" means a third party whose software
products ("Third Party Products") have been made available to
Infor for distribution and licensing under the terms of its agreement
with Infor (a "Third Party Agreement").
(x) "Updates" means generally available updates,
enhancements or modifications to the then -current, general release
version of the Subscription Software that are not separately priced or
licensed as new products.
(y) "UserlD" means a unique user identification credential
used in combination with a unique password to access the
Subscription Services.
2. License. Subject to the terms and conditions of this
Agreement and the applicable Order Form, Infor hereby grants to
Licensee a non-exclusive, non -transferable, limited license (without
the right to sublease or sublicense) to access and use the Subscription
Software and the Subscription Services, during the Subscription
Term, in an operating environment hosted by Infor, for Licensee's
own internal use. Any rights not expressly granted in this Agreement
are expressly reserved.
(a) Documentation. Licensee may make a reasonable number of
copies of the Documentation for the Subscription Software for its
internal use in accordance with the terms of this Agreement.
(b) License Restriction. Licensee's use of the Subscription
Software and Subscription Services is subject to any License
Restriction specified in the applicable Order Form.
(c) Additional Restrictions on Use of the Subscription Software
and Subscription Services. In no event shall Licensee access the
Subscription Software on any environment outside the hosted
environment selected by Infor as part of the Subscription Services.
In no event shall Licensee or its Authorized Users possess or control
the Subscription Software or any related software code. Licensee is
prohibited from causing or permitting the reverse engineering,
disassembly or de -compilation of the Subscription Software. Except
as expressly provided by this Agreement, Licensee is prohibited from
using the Subscription Software to provide service bureau services to
third parties. Licensee will not allow the Subscription Software to be
used by, or disclose all or any part of the Subscription Software to,
any person except Authorized Users. Licensee acknowledges and
agrees that U.S. export control laws and other applicable export and
import laws govern its use of the Subscription Software and Licensee
will neither export or re-export, directly or indirectly, the
Subscription Software, nor any direct product thereof in violation of
such laws, or use the Subscription Software for any purpose
prohibited by such laws.
(d) Intellectual Property Rights Notices. Licensee is prohibited
from removing or altering any of the Intellectual Property Rights
notice(s) embedded in the Subscription Software or that Infor
otherwise provides with the Subscription Services. Licensee must
reproduce the unaltered Intellectual Property Rights notice(s) in any
full or partial copies that Licensee makes of the Documentation.
(e) Ownership. Use of the Subscription Software and
Subscription Services does not grant any ownership rights in or to the
Subscription Software, the Subscription Services, or the
Documentation. Licensee Data shall be the sole property of Licensee;
however, Infer may aggregate anonymous statistical data regarding
use and functioning of its system by its various licensees, and all such
data (none of which shall be considered Licensee Data), will be the
sole property of Infor.
3. Subscription Services.
(a) Hosted Environment. Infor will provide the application
hosting environment, including the hardware, equipment, and
systems software configuration on which Infor supports use of the
Subscription Software and Subscription Services, on servers located
at a facility selected by Infor.
(b) Support. Infor shall (a) provide Licensee with access (via the
internet, telephone or other means established by Infor) to Infor's
support helpline, (b) install, when and if generally available, Updates;
and (c) use reasonable efforts to correct or circumvent any material
deviation between the then -current, general release version of the
Subscription Software and its Documentation (the foregoing referred
to collectively as "Support"). Support is included in the Subscription
Fee.
(c) User Accounts. Licensee is responsible for maintaining its
own Authorized User UserlDs and passwords which can be managed
through the Subscription Software interface. Licensee is responsible
for maintaining the confidentiality of Licensee's UserlDs and
passwords and shall cause its Authorized Users to maintain the
confidentiality of their UserlDs and Passwords. Licensee is
responsible for all uses of and activities undertaken with UserlDs
registered on Licensee's account. Licensee agrees to immediately
notify Infor of any unauthorized use of Licensee's UserlDs of which
Licensee becomes aware.
(d) Connectivity. Infor will be responsible for maintaining
connectivity from its network to the Internet which is capable of
servicing the relevant Internet traffic to and from the hosted
environment. Licensee is responsible for providing connectivity to
the Internet for itself and its Authorized Users. Licensee shall also be
responsible for ensuring that latency and available bandwidth from
the user's desktop to Infor's hosted routers is adequate to meet
Licensee's desired level of performance. If Licensee requires a VPN
or private network connection to the Subscription Services, Licensee
is responsible for all costs associated with any specialized network
connectivity required by Licensee.
(e) Restrictions. Infer shall have no obligation to correct a
problem caused by Licensee's negligence, Licensee's equipment
malfunction or other causes beyond the control of Infor.
(f) Customizations. Customizations are not permitted absent
Infor's prior written consent. If permitted, Customizations may only
be created and deployed by Infor, and shall be documented in a
separate agreement between Infor and Licensee. Support or other
services for Customizations are not available under this Agreement
or included as part of the Subscription Fees and may only be
purchased pursuant to a separate agreement between Infor and
Licensee.
Subscription License and Services Agreement (US September 2016) Page 2 of 7
4. Payment and Taxes.
(a) Payment. Licensee shall pay Infor the Subscription Fees set
forth on the Order Form. Subscription Fees are payable in advance
and Infor will invoice Licensee for Subscription Fees prior to the
commencement of the portion of the Subscription Term to which
such fees apply. After the Initial Subscription Term, the Subscription
Fees shall be subject to annual adjustment. Except as otherwise set
forth in this Agreement, Subscription Fees are non-refundable.
Licensee will pay each Infor invoice in accordance with the payment
terms set forth on the Order Form. Late payments are subject to a
late charge equal to the lesser of. (i) one and one-half percent (1'/�%)
per month; and (ii) the highest rate permitted by applicable law.
Notwithstanding anything to the contrary in this Agreement, Infor
reserves the right to suspend access to the Subscription Services in
the event of any past due Subscription Fees.
(b) Taxes. Licensee is responsible for paying all taxes relating to
this Agreement (except for taxes based on Inf rr's net income or
capital stock). Applicable tax amounts (if any) are not included in
the Subscription Fees set forth on any Order Form. Infor will invoice
Licensee for applicable tax amounts and such invoices are payable in
accordance with Section 4(a) and the Order Form.
5. Limited Warranties. Disclaimer of Warranties. and
Remedies.
(a) Right to Grant License. Infor warrants that that it owns all
right, title and interest in and to the Subscription Software or has
obtained rights in such Subscription Software sufficient to grant the
licenses granted to Licensee under this Agreement. Licensee's
exclusive remedy, and Infor's exclusive obligation, for a breach of
this warranty is set forth in Section 7 (Indemnity).
(b) Limited Subscription Software Warranty by Infor and.
Remedy For Breach. Infor warrants that the Subscription Software
licensed to Licensee will operate without a Documented Defect for a
period of ninety (90) days from the applicable Subscription Service
Ready Date or Order Form Date defined in the applicable Order Form
and as applicable to such Order Form. Infor's sole obligation with
respect to a breach of the foregoing warranty shall be to repair or
replace the Subscription Software giving rise to the breach of
warranty. If Infor is unable to repair or replace such Subscription
Software within a reasonable period of time, then, subject to the
limitations set forth in Section 14 of this Agreement, Licensee may
pursue its remedies at law to recover direct damages resulting from
the breach of this warranty. The remedies in this Section 5(b) are
exclusive and in lieu of all other remedies, and represent Infor's sole
obligations, for a breach of the foregoing warranty. Licensee must
provide notice to Infor of any warranty claim within the warranty
period. For clarity, Licensee's entitlement to Support (as defined in
Section 3(b)) in connection with any Documented Defect shall
continue throughout the Subscription Term.
(c) Malicious Code. Infor represents that it has used commercially
reasonable best efforts utilizing generally accepted industry tools and
practices to provide Subscription Software that does not contain any
"time bombs," "worms," `'viruses," "Trojan horses," "protect codes,"
"data destruct keys," or other programming devices that are intended
to access, modify, delete, damage, deactivate or disable the
Subscription Services ("Malicious Code"). As Licensee's sole
remedy for breach of this representation, Infor shall take action
immediately to investigate, identify and remove such Malicious Code
from the Subscription Software.
(d) Limited Services Warranty and Remedy For Breach. Infor
warrants to Licensee that, Infor will render the Subscription Services
with commercially reasonable care and skill. Infor further warrants
that the hosted environment will be available at all times throughout
the Subscription Term, subject to the exceptions and allowances
described in the Availability section of the applicable Service Level
Description. The level of unavailability shall not exceed one half of
one percent (0.5%) per month, excluding Scheduled Maintenance as
described in the applicable Service Level Description (the "Down
Time Warranty"). In the event of a breach of the foregoing warranty
Infer shall apply service level credits based on the actual availability
measure for the applicable period as follows:
Availability
Service Level Credit
99.500% or greater
No Service Level Credit
99.499% - 99.000%
5% of the monthly prorated
subscription fee
98.999%- 98.500%
15% of the monthly prorated
subscription fee
98.499% - 95.000%
25% of the monthly prorated
subscription fee
Below 95.000%
35% of the monthly prorated
subscription fee
Service level credits for Subscription Fees paid on an annual basis
shall be based on a monthly equivalent fee. For example, a 5%
service level credit on an annual subscription fee shall be 5% of
1/12 of the annual fee. Service level credits shall be applied to
Licensee's next invoice or, if Licensee has paid the final invoice
under this Agreement, service level credits shall be paid to Licensee
within thirty (30) calendar days following the determination that the
credit is due. The service level credit is the exclusive remedy and
is in lieu of all other remedies for breach of the Down Time
Warranty.
(e) Disclaimer of Warranties. The limited warranties in this
Section 5 are made to Licensee exclusively and are in lieu of all other
warranties. INFOR MAKES NO OTHER WARRANTIES
WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD
TO THE SUBSCRIPTION SOFTWARE AND SUBSCRIPTION
SERVICES PROVIDED UNDER THIS AGREEMENT
AND/OR ANY ORDER FORM, IN WHOLE OR IN PART.
INFOR EXPLICITLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY AND OF FITNESS FOR A
PARTICULAR PURPOSE. INFOR EXPRESSLY DOES NOT
WARRANT THAT THE SUBSCRIPTION SOFTWARE OR
SUBSCRIPTION SERVICES, IN WHOLE OR IN PART, WILL
BE ERROR FREE, OPERATE WITHOUT INTERRUPTION
OR MEET LICENSEE'S REQUIREMENTS.
(f) Abrogation of Limited Warranty. Infor will have no
obligation under this Section 5 to the extent that any alleged breach
of warranty is caused by any modification of the Subscription
Software not performed by or on behalf of Infor. To the extent that
an alleged breach of warranty concerns a Third Party Product that is
subject to a more limited warranty under a Third Party Agreement
than specified in Section 5 above, Infor's obligations hereunder will
be further limited accordingly.
(g) FAILURE OF ESSENTIAL PURPOSE. THE PARTIES
HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN
SECTIONS 5 AND 14 WILL SURVIVE AND APPLY EVEN IF
ANY REMEDY SPECIFIED IN THIS AGREEMENT IS
FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE,
AND REGARDLESS OF WHETHER LICENSEE HAS
Subscription License and Services Agreement (US September 2016) Page 3 of 7
ACCEPTED ANY SUBSCRIPTION SOFTWARE OR
SUBSCRIPTION SERVICE UNDER THIS AGREEMENT.
(h) HIGH RISK ACTIVITIES. THE SUSBSCRIPTION
SOFTWARE IS NOT FAULT -TOLERANT AND IS NOT
DESIGNED, MANUFACTURED OR INTENDED FOR USE AS
ON-LINE CONTROL EQUIPMENT IN HAZARDOUS
ENVIRONMENTS REQUIRING FAIL-SAFE
PERFORMANCE, SUCH AS IN THE OPERATION OF
NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
AIRCRAFT COMMUNICATION SYSTEMS, MASS
TRANSIT, AIR TRAFFIC CONTROL, DIRECT LIFE
SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN
WHICH THE FAILURE OF THE SUBSCRIPTION
SOFTWARE COULD LEAD DIRECTLY TO DEATH,
PERSONAL INJURY, OR SEVERE PHYSICAL OR
ENVIRONMENTAL DAMAGE ("HIGH RISK
ACTIVITIES"). ACCORDINGLY, INFOR DISCLAIMS ANY
EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR
HIGH RISK ACTIVITIES. LICENSEE AGREES THAT
INFOR SHALL NOT BE LIABLE FOR ANY CLAIMS OR
DAMAGES ARISING FROM OR RELATED TO THE USE OF
THE SUBSCRIPTION SOFTWARE IN SUCH
APPLICATIONS.
6. Confidential Information.
(a) Confidentiality. The Confidential Information disclosed under
this Agreement may be used, disclosed or reproduced only to the
extent necessary to further and fulfill the purposes of this Agreement.
Except as otherwise permitted under this Agreement, the Recipient
will not knowingly disclose to any third party, or make any use of the
Discloser's Confidential Information. The Recipient will use at least
the same standard of care to maintain the confidentiality of the
Discloser's Confidential Information that it uses to maintain the
confidentiality of its own Confidential Information, but in no event
less than reasonable care. The non -disclosure and non-use
obligations of this Agreement will remain in full force with respect
to each item of Confidential Information for a period of ten (10) years
after Recipient's receipt of that item; provided, however, that
Licensee's obligations to maintain the Subscription Software and
Documentation as confidential will survive in perpetuity. Each of
Licensee and Infor shall be shall be responsible for the breach of the
confidentiality terms contained in this Section 6 by any of its
directors, officers, employees, Authorized Users, agents, accountants
and advisors. Notwithstanding the foregoing, this Section is not
intended to prevent (a) a Recipient from using Residual Knowledge,
subject to any Intellectual Property Rights of the Discloser, or (b)
Infor from using aggregated data regarding the use of the
Subscription Services to provide reports or analytics to Licensee or
to improve the performance of Infor's products, provided such data
does not contain any Personal Information regarding Licensee, its
employees, customers or Authorized Users. If the Recipient should
receive any legal request or process in any form seeking disclosure
of Discloser's Confidential Information, or if the Recipient should be
advised by counsel of any obligation to disclose such Confidential
Information, the Recipient shall (if allowed by law) provide the
Discloser with prompt notice of such request or advice so that the
Discloser may seek a protective order or pursue other appropriate
assurance of the confidential treatment of the Confidential
Information. Regardless of whether or not a protective order or other
assurance is obtained, the Recipient shall famish only that portion of
the Discloser's Confidential Information which is legally required to
be furnished and to use reasonable efforts to assure that the
information is maintained in confidence by the party to whom it is
furnished.
(b) Security Policies and Safeguards. Infer shall establish and
maintain administrative, technical, and physical safeguards designed
to protect against the destruction, loss, unauthorized access or
alteration of Licensee Data and Personal Information in the
possession or under the control of Infer or to which Infor has access,
which are: (i) no less rigorous than those maintained by Infor for its
own information of a similar nature; (ii) no less rigorous than
generally accepted industry standards; and (iii) required by
applicable laws. The security procedures and safeguards
implemented and maintained by Infer pursuant to this Section 6(b)
shall include, without limitation:
(i) User identification and access controls designed to limit
access to Licensee's Data to authorized users;
(ii) the use of appropriate procedures and technical controls
regulating data entering Infor's network from any external
source;
(iii) the use of encryption techniques when Licensee's Data is
transmitted or transferred into or out of the hosted
environment;
(iv) physical security measures, including without limitation
securing Licensee's Data within a secure facility where
only authorized personnel and agents will have physical
access to Licensee Data;
(v) operational measures, including without limitation IT
Service Management (ITSM) processes designed to ensure
the correct and secure operations of information processing
activities;
(v) periodic employee training regarding the security programs
referenced in this Section; and
(vi) periodic testing of the systems and procedures outlined in
this Section.
(c) Review of Controls. Once in each 12 month period during the
Subscription Term, Infer shall, at its cost and expense, engage a duly
qualified independent auditor to conduct a review of the design and
operating effectiveness of Infor's defined control objectives and
control activities in connection with the Subscription Services. Infor
shall cause such auditor to prepare a report in accordance with the
American Institute of Certified Public Accountants Statement on
Standards for Attestation Engagements No. 16 (SSAE 16) or an
equivalent standard, which may include ISAE 3402 (the "Audit
Report"). Licensee shall have the right to request and receive a copy
of the Audit Report and Licensee may share a copy of such Audit
Report with its auditors and regulators, provided that, such Audit
Report shall be Infor's Confidential Information (as defined in this
Agreement).
(d) Security Incident Response. In the event that Infor becomes
aware that the security of any Licensee Data or Personal Information
has been compromised, or that such Licensee Data or Personal
Information has been or is reasonably expected to be subject to a use
or disclosure not authorized by this Agreement (an "Information
Security Incident"), Infer shall: (i) promptly (and in any event within
24 hours of becoming aware of such Information Security Incident),
notify Licensee, in writing, of the occurrence of such Information
Security Incident; (ii) investigate such Information Security Incident
and conduct a reasonable analysis of the cause(s) of such Information
Security Incident; (iii) provide periodic updates of any ongoing
investigation to Licensee; (iv) develop and implement an appropriate
plan to remediate the cause of such Information Security Incident to
the extent such cause is within Infor's control; and (v) cooperate with
Licensee's reasonable investigation or Licensee's efforts to comply
Subscription License and Services Agreement (US September 2016) Page 4 of 7
with any notification or other regulatory requirements applicable to
such Information Security Incident.
7. Indemnity by Infor. Infor will defend, indemnify and hold
Licensee harmless from and against any loss, cost and expense to the
extent arising from a third party claim against Licensee that the
Subscription Software infringes any Intellectual Property Rights of
others. Infor's obligations under this indemnification are expressly
conditioned on the following: (i) Licensee must promptly notify
Infor of any such claim; (ii) Licensee must, in writing, grant Infor
sole control of the defense of any such claim and of all negotiations
for its settlement or compromise so long as such settlement or
compromise does not result in payment of money by Licensee or an
admission of guilt by Licensee (if Licensee chooses to represent its
own interests in any such action, Licensee may do so at its own
expense, but such representation must not prejudice Infor's right to
control the defense of the claim and negotiate its settlement or
compromise); (iii) Licensee must reasonably cooperate with Infor to
facilitate the settlement or defense of the claim. Infor will not have
any liability hereunder to the extent the claim arises from (a) any
modification of the Subscription Software by, on behalf of, or at the
request of Licensee; or (b) the use or combination of the Subscription
Software with any computer, computer platform, operating system
and/or data base management system other than provided by Infor.
If any Subscription Software is, or in Infor's opinion is likely to
become, the subject of an Intellectual Property Rights infringement
claim, then Infor, at its sole option and expense, will either: (A)
obtain for Licensee the right to continue using the Subscription
Software under the terms of this Agreement; (B) replace the
Subscription Software with products that are substantially equivalent
in function, or modify the Subscription Software so that it becomes
non -infringing and substantially equivalent in function; or (C) refund
to Licensee the un-used portion of the Subscription Services fee, if
any, paid to Infor for the Subscription Software giving rise to the
infringement claim, and discontinue Licensee's use of such
Subscription Software. THE FOREGOING SETS FORTH
INFOR'S EXCLUSIVE OBLIGATION AND LIABILITY
WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS.
8. Term and Termination.
(a) Term. With respect to the Subscription Software, the Initial
Subscription Term shall be as set forth on the applicable Order Form.
After the Initial Subscription Term, the Subscription Term shall
automatically renew for successive one-year Renewal Terms, unless
either party provides written notice of non -renewal to the other party
at least ninety (90) days prior to expiration of the Initial Subscription
Term or then current Renewal Term, as the case may be. Except as
set forth in Section 8(b), the Subscription Term cannot be terminated
prior to its expiration date.
(b) Right of Termination. If either party breaches any material
obligation in this Agreement or an Order Form (including, without
limitation, any obligation to pay Subscription Fees), and fails to
remedy such breach (if such breach can be remedied) within thirty
(30) days of receipt of written notice of such breach, the other party
may terminate this Agreement (including all Order Forms
hereunder). Notwithstanding the foregoing, to the extent such
material breach cannot be remedied through efforts of the breaching
party, the other party has the right to terminate this Agreement
(including all Order Forms hereunder) on less than thirty days'
written notice.
(c) Effect of Termination. Upon termination of this Agreement
by either party, Licensee's license to access and use the Subscription
Software and Subscription Services shall immediately terminate as
of the effective date of such termination. Termination of this
Agreement will not release either party from making payments which
may be owing to the other party under the terms of this Agreement
through the effective date of such termination. Termination of this
Agreement will be without prejudice to the terminating party's other
rights and remedies pursuant to this Agreement, unless otherwise
expressly stated herein.
(d) Return of Licensee Data. Upon termination or expiration of
this Agreement, Infor shall promptly make all Licensee Data
available to Licensee as a native database export provided through
Infor's FTP server. In the event that Licensee requires the return of
Licensee Data in an alternate format or requires any other termination
assistance services, Infor and Licensee shall mutually agree upon the
scope of such termination assistance services and the fees and
expenses payable for such termination assistance services.
(e) Survival of Obligations. All obligations relating to non-use
and non -disclosure of Confidential Information, limitation of
liability, and such other terms which by their nature survive
termination, will survive termination or expiration of this Agreement.
9. Notices. All notices and other communications required or
permitted under this Agreement must be in writing and will be
deemed given when: delivered personally; sent by registered or
certified mail, return receipt requested; transmitted by facsimile
confirmed by first class mail; or sent by overnight courier. Notices
must be sent to a party at its address shown on the signature page of
this Agreement, or to such other place as the party may subsequently
designate for its receipt of notices in accordance with this Section.
Licensee must promptly send copies of any notice of material breach
and/or termination of the Agreement to Infor, Attention: General
Counsel, 40 General Warren Blvd Suite # 110, Malvern, PA 19355,
USA, FAX number 678-319-8949, or to such other place as Infor
may subsequently designate for its receipt of notices.
10. Force Maieure. Except with respect to the payment of fees
hereunder, neither party will be liable to the other for any failure or
delay in performance under this Agreement due to circumstances
beyond its reasonable control, including, without limitation, Acts of
God, war, terrorist acts, accident, labor disruption, acts, omissions
and defaults of third parties and official, governmental and judicial
action not the fault of the party failing or delaying in performance, or
the threat of any of the foregoing.
11. Assignment. Licensee may not assign or transfer any of its
rights or obligations under this Agreement without the prior written
consent of Infor, whether by operation of law or otherwise, including
in connection with a change in control, merger, acquisition,
consolidation, asset sale or other reorganization, and any attempt at
such assignment or transfer will be void.
12. No Waiver. A parry's failure to enforce its rights with respect
to any single or continuing breach of this Agreement will not act as a
waiver of the right of that party to later enforce any such rights or to
enforce any other or any subsequent breach.
13. Choice of Law; Severability. This Agreement shall be
governed by and interpreted in accordance with the laws of the State
of New York, without application of any conflict of laws provisions
thereof, and all claims relating to or arising out of this Agreement, or
the breach thereof, whether sounding in contract, tort or otherwise,
shall likewise be governed by the laws of the State of New York,
without application of any conflict of laws provisions thereof This
Agreement is originally written in the English language and the
English language version shall control over any translations. If any
provision of this Agreement is illegal or unenforceable, it will be
deemed stricken from the Agreement and the remaining provisions
Subscription License and Services Agreement (US September 2016) Page 5 of 7
of the Agreement will remain in full force and effect. The United
Nations Convention on the International Sale of Goods (CISG) shall
not apply to the interpretation or enforcement of this Agreement,
14. LIMITATIONS OF LIABILITY.
(a) LIMITED LIABILITY OF INFOR. EXCEPT WITH
RESPECT TO INTELLECTUAL PROPERTY
INDEMNIFICATION OBLIGATIONS UNDER SECTION 7,
THE TOTAL LIABILITY OF INFOR, ITS AFFILIATES AND
THIRD PARTY LICENSORS IN CONNECTION WITH OR
RELATED TO THE SUBSCRIPTION SOFTWARE, THE
SUBSCRIPTION SERVICES, OR ANY OTHER MATTER
RELATING TO THIS AGREEMENT (WHATEVER THE
BASIS FOR THE CAUSE OF ACTION) WILL NOT EXCEED
THE SUBSCRIPTION FEES PAID OR PAYABLE TO INFOR
HEREUNDER FOR THE TWELVE-MONTH PERIOD IN
WHICH SUCH LIABILITY FIRST AROSE.
(b) EXCLUSION OF DAMAGES. IN NO EVENT WILL
INFOR, ITS AFFILIATES OR THIRD PARTY LICENSORS
BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES OR
DAMAGES FOR LOST PROFITS, WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE,
AND REGARDLESS OF WHETHER INFOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF
ITS ESSENTIAL PURPOSE.
15. Audit Rights. Infor (including any third party auditor
retained by Infor) may audit the records and systems of Licensee to
ensure compliance with the terms of this Agreement and each
applicable Order Form. Infor will notify Licensee in writing at least
ten (10) business days prior to any such audit. Any such audit will
be conducted during regular business hours and will not interfere
unreasonably with Licensee's business activities. Infor may audit
Licensee no more than once in any twelve (12) month period. If an
audit reveals that Licensee is using the Subscription Software or
Subscription Services beyond the scope of the license granted herein
(for example, in excess of the License Restriction), then, in addition
to any other remedies available to Infor, Licensee will promptly pay
Infor the underpaid Subscription Fees associated therewith based on
Infor's then -current list rates, as well as any applicable late charges.
16. Comnliance with Laws. Licensee will comply with all laws,
rules and regulations applicable to the use of the Subscription
Software and the Subscription Services including, without limitation,
by not submitting any Licensee Data that is illegal, defamatory, or
that infringes any third party proprietary rights.
17. Entire Agreement. This Agreement contains the entire
an understding of the parties with respect to its subject matter, and
supersedes and extinguishes all prior oral and written
communications between the parties about its subject matter. Any
purchase order or similar document, which may be issued by
Licensee in connection with this Agreement, does not modify,
supplement or add terms to this Agreement. No modification of this
Agreement will be effective unless it is in writing, is signed by each
party, and expressly provides that it amends this Agreement. This
Agreement and any signed agreement or instrument entered into in
connection herewith or contemplated hereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of
digital imaging, electronic mail or a facsimile machine, shall be
treated in all manner and respects as an original agreement or
instrument and shalt be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in
person. This Agreement and all Order Forms may be signed in
counterparts.
[Signature Page Follows]
Subscription License and Services Agreement (US September 2016) Page 6 of 7
THE PARTIES have executed this Subscription License and Services Agreement through the signatures of their respective authorized
representatives.
Effective Date:
Infor Public Sector, Inc.
Signature:
Printed Name:
Title:
Address:
Address:
Signature Date:
Licensee: City of Waukee
Signature:
Printed Name:
Title:
Address: 805 University Ave.
Address: Waukee, IA, 50263
Signature Date:
Subscription License and Services Agreement (US September 2016) Page 7 of 7