HomeMy WebLinkAboutECO Parking Technologies/ICS/$3,648/Addendum to SaaS_AgreementDocuSign Envelope ID: 441DFD7D-9EC8-4FOB-AEB2-941F1939EBAE
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ADDENDUM TO SERVICE AGREEMENT - - -
This Addendum is entered into by and between the City of Carmel, Indiana by and through its Board of
Public Works and Safety (the "City' and ECO Parking Technologies, a business entity authorized to do business in
the State of Indiana ("the Vendor").
The purpose of this Addendum is to add and clarify certain terms and conditions set forth in the attached Service
Agreement prepared by the Vendor (the "Agreement"). Any inconsistency, conflict, or ambiguity between this
Addendum and the Agreement shall be resolved by giving precedence and effect to this Addendum.
ACKNOWLEDGMENT, ACCEPTANCE:
Vendor acknowledges that it has read and understands this Addendum, and agrees that its execution of
same constitutes its acceptance of all of the Addendum's terms and conditions.
2. TIME AND PERFORMANCE:
This Addendum and the Agreement shall become effective as of the last date on which a party hereto
executes same ("Effective Date"), and both parties shall thereafter perform their obligations hereunder in a
timely manner or as specified in the Agreement. Time is of the essence of this Addendum and the
Agreement
3. LIENS:
Vendor shall not cause or permit the filing of any lien on any of City's property. In the event any such lien is
filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding,
City shall have the right to pay such lien or obtain such bond, all at Vendor's sole cost and expense.
4. NON-DISCRIMINATION:
Vendor represents and warrants that it and all of its officers, employees, agents, Vendors and sub -Vendors
shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against
any employee, applicant for employment or other person in the provision of any Goods and Services
provided under the Agreement with respect to their hire, tenure, terms, conditions and privileges of
employment and any other matter related to their employment or subcontracting, because of race, religion,
color, sex, handicap, national origin, ancestry, age, or disabled veteran status.
5. IRAN CERTIFICATION: Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this document,
it does not engage in investment activities within the Country of Iran.
6. E-VERIFY:
If Vendor has any employees in the United States of America, pursuant to I.C. § 22-5-1.7 et seq., as the
same may be amended from time to time, and as is incorporated herein by this reference (the Indiana E-
Verify Lawl, Vendor will be required to enroll in and verify the work eligibility status of its newly -hired
employees using the E-Verify program, affirming that it is enrolled and participating in the E-Verify program
and does not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City
with documentation indicating that it has enrolled and is participating in the E-Verify program. Should Vendor
subcontract for the performance of any work under and pursuant to this Agreement, it shall fully comply with
the Indiana E-Verify Law as regards each such sub -contractor. Should the Vendor or any sub -contractor
violate the Indiana E-Verify law, the City may require a cure of such violation and thereafter, if no timely cure
is performed, terminate this Agreement in accordance with either the provisions hereof or those set forth in
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the Indiana E-Verify Law. The requirements of this paragraph shall not apply should the E-Verify program
cease to exist.
7. PAYMENT TERMS:
Upon receipt of the invoice for the second year of service, as outlined in the Agreement the City shall pay
Vendor for such goods and services within thirty-five (35) days after the date of City's receipt of Vendor's
invoice detailing same, so long as and to the extent such goods and services are not disputed, are in
conformance with the specifications set forth in the Agreement and Vendor has otherwise performed and
satisfied all the terms and conditions of this Addendum and the Agreement All payment and any late
payments fees shall be pursuant to Indiana Prompt Payment Statute; Ind. Code 5-17-5- et al.
8. NON -APPROPRIATION:
In the event no funds are appropriated for the Agreement or its renewal in 2023 through 2024
budgets or any subsequent budgets by the City's legislative body, the City, upon providing written
notice to Vendor, has the right to terminate the Agreement at the end of each fiscal year without
penalties of any sort.
9. REQUIRED DISCLOSURE:
In addition to any exceptions to disclosing of confidential information referenced in the Agreement, the City,
upon consulting and providing notice to Vendor, may disclose such confidential information if such disclosure
is required by any federal or state law. The City shall not disclose any information that would be deemed
proprietary or constitute a trade secret unless ordered so by a court of competent jurisdiction.
10. DEFAULT:
In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this
Addendum or the Agreement, including Vendor's warranties; (b) fails to provide the goods and services as
specified in this Addendum and the Agreement; (c) fails to make progress so as to endanger timely and
proper provision of the goods and services and does not correct such failure or breach within five (5)
business days (or such shorter period of time as is commercially reasonable under the circumstances) after
receipt of notice from the City specifying such failure or breach; or (d) becomes insolvent, is placed into
receivership, makes a general assignment for the benefit of creditors or dissolves, each such event
constituting an event of default hereunder, City shall have the right to (1) terminate all or any parts of the
Agreement and this Addendum, without liability to Vendor; and (2) exercise all other rights and remedies
available to City at law and/or in equity.
2
DocuSign Envelope ID: 441DFD7D-9EC8-4FOB-AEB2-941F1939EBAE
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA
by and through its Board of Public
Works and Safety
By:
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Date: 11/16/2022
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ECO Parking Technologies
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SOFTWARE AS A SERVICE AGREEMENT
PLEASE READ THIS AGREEMENT BEFORE USING
ECO'S SERVICES. BY ACCESSING OR USING ECO'S
SOFTWARE OR SERVICES OFFERING, YOU SIGNIFY
ACCEPTANCE OF AND AGREE TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT
AGREE TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, DO NOT ACCESS OR USE THE
SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED
AGREEMENT THAT EXPRESSLY GOVERNS ORDERS
FOR ECO'S SOFTWARE AS A SERVICE AGREEMENT,
SUCH AGREEMENT SHALL SUPERSEDE THIS
AGREEMENT.
This Software as a Service Agreement
(Agreement") is made between ECO Parking
Technologies and the City of Carmel ("Client"),
herein sometimes referred to as the Parties.
WHEREAS, Client selected ECO to provide certain
products and services set forth in the Investment
Summary, including providing Client with access to
ECO's proprietary software products, and ECO
desires to provide such products and services under
the terms of this Agreement;
NOW THEREFORE, in consideration of the foregoing
and of the mutual covenants and promises set forth
in this Agreement, ECO and Client agree as follows:
SECTION A — SAAS SERVICES
1. Rights Granted. We grant to you the non-
exclusive, non -assignable, royalty -free limited
right to use the SaaS Services solely for your
internal business purposes. The ECO Software
will be made available to you and you may use
the SaaS Services to access updates and
enhancements to the ECO Software, as further
described herein). You understand that this is a
services agreement and ECO will not be
delivering copies of or access to software to You
as part of this Agreement.
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2. SaaS Fees. You agree to pay us the SaaS Fees
per ECO defined invoicing and Payment terms.
The SaaS Fees are based upon the level of
services provided and we reserve the right to
charge you fees commensurate with that level
of Service.
3. Ownership.
3.1 We retain all ownership and intellectual
property rights to the SaaS Services, the
ECO Software, and anything developed by
us under this Agreement. You do not
acquire under this Agreement any license to
use the ECO Software in excess of the scope
and/or duration of the SaaS Services.
Subject to the limited licenses granted
herein, ECO shall own all right, title and
interest in and to the Software, services and
other deliverables provided under this SaaS
Agreement, including all modifications,
improvements, upgrades, derivative works
and feedback related thereto and
intellectual property rights therein. Client
agrees to assign all right, title and interest it
may have in the foregoing to ECO.
3.2 The Documentation is licensed to you and
may be used by your employees for
internal, non-commercial reference
purposes only.
4. Restrictions. You may not: (a) make the ECO
Software or Documentation resulting from the
SaaS Services available in any manner to any
third party for use in the third party's business
operations; (b) modify, make derivative works
of, disassemble, reverse compile, or reverse
engineer any part of the SaaS Services; (c)
access or use the SaaS Services in order to build
or support, and/or assist a third party in building
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or supporting, products or services competitive
to us; (d) copy or republish the SaaS Services or
ECO Software, (e) remove, modify or obscure
any copyright, trademark or other proprietary
notices contained in the ECO Software used to
provide the SaaS Services or (d) license, sell,
rent, lease, transfer, assign, distribute, display,
host, outsource, disclose, permit timesharing or
service bureau use, or otherwise commercially
exploit or make the SaaS Services, ECO
Software, or Documentation available to any
third party other than as expressly permitted by
this Agreement.
5. Warranties.
5.1 Software Warranty. We warrant that the
ECO Software will perform without Defects
during the term of this Agreement. If the
ECO Software does not perform as
warranted, we will use all reasonable
efforts, consistent with industry standards,
to cure the Defect.
5.2 SaaS Warranty. ECO warrants that it will
provide the SaaS Services in a professional
manner consistent with general industry
standards. For any beach of a warranty,
Client's exclusive remedy shall be as
provided in Section F, Term and
Termination.
6. License from Client. Subject to the terms and
conditions of this SaaS Agreement, Client shall
grant to ECO a limited, non-exclusive and non-
transferable license, to copy, store, configure,
perform, display and transmit Client content
solely as necessary to provide the SaaS Services
to Client.
7. Unauthorized Use: False Information. Client
shall: (a) notify ECO immediately of any
unauthorized use of any password or user id or
any other known or suspected breach of
security, (b) report to ECO immediately and use
reasonable efforts to stop any unauthorized use
of the SaaS Services that is known or suspected
by Client and (c) not provide false identity
information to gain access to or use the SaaS
Services.
8. Suggestions. ECO shall have a royalty -free,
worldwide, irrevocable, perpetual license to use
and incorporate into the SaaS Services any
suggestions, enhancement requests,
recommendation or other feedback provided
by Client relating to the operation of the SaaS
Services.
9. SaaS Services.
9.1 Our SaaS Services are reviewed at least
yearly, and we will maintain compliance for
so long as you are timely paying for SaaS
Services.
9.2 We have fully redundant access, electrical
power, and the required hardware to
provide access to the ECO Software in the
event of a disaster or component failure. In
the event any of your Data has been lost or
damaged due to an act or omission of ECO
or its subcontractors or due to a defect in
ECO's software, we will use best
commercial efforts to restore all the Data
on servers in accordance with the
architectural design's capabilities and with
the goal of minimizing any Data loss to the
greatest extent commercially and
reasonably possible. Targeted recovery
point objective ("RPO") is twenty-four (24)
hours from declaration of disaster.
SECTION C— PROFESSIONAL SERVICES (Optional)
1. Optional Professional Services. Upon request
we will provide you with various SaaS-related
Professional Services per an itemized Scope and
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Statement of. Work. If additional work is
required, or if you request additional services,
we will provide you with an addendum or
change order, as applicable, outlining the costs
for the additional work, for your approval and
release.
2. Professional Services Fees. You agree to pay us
the professional and additional services fees in
the amounts setforth in the Statement of Work,
addendum or change order, and in accordance
with our Invoicing and Payment Terms.
3. Site Access and Requirements. At no cost to us,
you agree to provide us with full and free access
to your personnel, facilities, and equipment as
may be reasonably necessary for us to provide
implementation services.
4. Client Assistance. You acknowledge that the
implementation of the ECO Software is a
cooperative process requiring the time and
resources of your personnel. You agree to use
all reasonable efforts to cooperate with and
assist us as may be reasonably required to meet
the agreed upon project deadlines and other
milestones for implementation. We will not be
liable for failure to meet any deadlines and
milestones when such failure is due to Force
Majeure or to the failure by your personnel to
provide such cooperation and assistance (either
through action or omission).
5. Maintenance and Support. For so long as you
timely pay your SaaS Fees according to the
Invoicing and Payment Terms, then we will:
5.1 perform our maintenance and support
obligations in a professional, good, and
workmanlike manner, consistent with
industry standards, to resolve Defects in the
ECO Software
5.2 make available to you all major releases to
the ECO Software (including updates and
enhancements) that we make generally
available without additional charge to
customers who have such Maintenance and
Support Level Agreements in effect; and
We will use all reasonable efforts to perform
support services remotely. Therefore, you agree to
provide us with a login account and local
administrative privileges as we may reasonably
require to perform remote services. You agree to
provide us with full and free access to the ECO
Software, working space, adequate facilities within
a reasonable distance from the equipment, and use
of machines, attachments, features, or other
equipment reasonably necessary for us to provide
the maintenance and support services, all at no
charge to us.
For the avoidance of doubt, SaaS Fees do not
include the following services: (a) onsite support
(unless ECO cannot remotely correct a Defect in the
ECO Software, as set forth above); (b) application
design; (c) other consulting services; or (d) support
outside our normal business hours
SECTION D —THIRD PARTY PRODUCTS
1. Third Party Services. If you have purchased
Third Party Services, those services will be
provided independent of ECO by such third -
party at the rates set forth in accordance with
our Invoicing and Payment Terms.
SECTION E - INVOICING AND PAYMENT; INVOICE
DISPUTES
1. Invoicing and Payment. We will invoice you the
SaaS Fees on a pre -paid annual basis and will
invoice for other professional services monthly
if incurred. Except as expressly provided
otherwise, fees are non-refundable. All fees are
stated in United States Dollars and must be paid
by Client to ECO in United States Dollars.
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2. Expenses. Client will reimburse ECO for its
reasonable, out-of-pocket travel and related
expenses incurred in performing the SaaS
Services. ECO shall notify Client prior to
incurring any such expense. ECO shall comply
with Client's travel and expense policy if made
available to ECO prior to the required travel.
SECTION F — TERM AND TERMINATION
1. Term. The initial term of this Agreement is two
(2) years beginning September 1, 2022, the
month the system is first turned on. This is the
point of the project when configuration and
commissioning procedures begin, and also
when ECO begins incurring 3`d party cloud and
cellular expenses on behalf of the Client's
parking structure. Upon expiration of the initial
term, this Agreement will renew automatically
and perpetually for additional one (1) year
renewal terms at our then -current SaaS Fees
unless terminated in writing by either party at
least sixty (60) days prior to the end of each
twelve-month anniversary date. The then -
current SaaS Fees may exceed the fees paid by
you in the preceding year. Your right to access
or use the ECO Software and the SaaS Services
will terminate at the end of this Agreement.
2. Termination. This Agreement may be
terminated as set forth below. In the event of
termination, you will pay us for all undisputed
fees and expenses related to the software,
products, and/or services you have received, or
we have incurred or delivered, prior to the
effective date of termination. Disputed fees
and expenses in all terminations other than
your termination for cause must have been
submitted as invoice disputes.
2.1 For Cause. If you believe we have materially
breached this Agreement, you will invoke a
Dispute Resolution claim. You may
terminate this Agreement for cause in the
event we do not cure, or create a mutually
agreeable action plan to address, a material
breach of this Agreement within a thirty
(30) day windowfrom the filing date of your
claim.
2.2 Force Maieure. Either party has the right to
terminate this Agreement if a Force
Majeure event, or the acts or omissions of
the other party hereto, suspends
performance of the SaaS Services for a
period of forty-five (45) days or more.
2.3 For Convenience. Termination for
convenience can only occur at each
anniversary date of this agreement and if
requested in writing at least sixty (60) days
prior thereto.
3. Suspension for Non -Payment. ECO reserves the
right to suspend delivery of the SaaS Services if
Client fails to timely pay any undisputed
amounts due to ECO under this SaaS
Agreement, but only after ECO notifies Client of
such failure and such failure continues for
fifteen (15) days. Suspension of the SaaS
Services shall not release Client of its payment
obligations under this SaaS Agreement. Client
agrees that ECO shall not be liable to Client or
to any third party for any liabilities, claims or
expenses arising from or relating to suspension
of the SaaS Services resulting from Client's non-
payment.
4. Effect of Termination.
4.1 Upon termination of this SaaS Agreement
or expiration of the Term, ECO shall
immediately cease providing the SaaS
Services and all usage rights granted under
this SaaS Agreement shall terminate.
4.2 If ECO terminates this SaaS Agreement due
to a breach by Client, then Client shall
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immediately pay to ECO all amounts then
due under this SaaS Agreement and to
become due during the remaining term of
this SaaS Agreement, but for such
termination.
4.3 Upon termination of this SaaS Agreement
and upon subsequent written request by
the disclosing party, the receiving party of
tangible confidential information shall
immediately return such information or
destroy such information and provide
written certification of such destruction,
provided that the receiving party may
permit its legal counsel to retain one
archival copy of such information in the
event of a subsequent dispute between the
parties.
SECTION G — INDEMNIFICATION, LIMITATION OF
LIABILITY AND INSURANCE
1. Intellectual Property Infringement
Indemnification.
1.1 We will defend you against any third -party
claim(s) that the ECO Software or
Documentation infringes that third party's
patent, copyright, or trademark, or
misappropriates its trade secrets, and will
pay the amount of any resulting adverse
final judgment (or settlement to which we
consent). You must notify us promptly in
writing of the claim and give us sole control
over its defense or settlement. You agree
to provide us with reasonable assistance,
cooperation, and information in defending
the claim at our expense.
1.2 Our obligations under this Section G(1) will
not apply to the extent the claim or adverse
final judgment is based on your use of the
ECO Software in contradiction of this
Agreement, including with non -licensed
third parties, or your willful infringement or
misconduct. Our remedies under this
situation are not limited and all avenues to
recover will be undertaken.
2. General Indemnification.
2.1 Each Party will indemnify, defend and hold
harmless the other Party and its assignees,
agents, officials, and employees from and
against any and all third -party claims, suits,
proceedings, losses, liabilities, damages,
costs, and expenses (including reasonable
attorney's fees and costs) for (a) personal
injury or property damage to the extent
caused by its gross negligence or willful
misconduct; or (b) their violation of a law
applicable to your performance under this
Agreement. The offended Party will notify
the Other promptly in writing of the claim
and will give that Party sole control over its
defense or settlement. The Offended Party
agrees to provide the Other with
reasonable assistance, cooperation, and
information in defending the claim at the
Offender's expense.
3. DISCLAIMER. EXCEPT FOR THE EXPRESS
WARRANTIES PROVIDED IN THIS AGREEMENT
AND TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, WE HEREBY DISCLAIM
ALL OTHER WARRANTIES AND CONDITIONS,
WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES, DUTIES, OR
CONDITIONS OF MERCHANTABILITY OIL
FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, OUR LIABILITY FOR DAMAGES
ARISING OUT OF THIS AGREEMENT, WHETHER
BASED ON A THEORY OF CONTRACT OR TORT,
INCLUDING NEGLIGENCE AND STRICT
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LIABILITY, SHALL BE LIMITED TO YOUR ACTUAL
DIRECT DAMAGES, NOT TO EXCEED (A)
DURING THE INITIAL TERM, AS SET FORTH
HEREIN, TOTAL FEES PAID AS OF THE TIME OF
THE CLAIM; OR (B) DURING ANY RENEWAL
TERM, THE THEN -CURRENT ANNUAL SAAS
FEES PAYABLE IN THAT RENEWAL TERM. THE
PARTIES ACKNOWLEDGE AND AGREE THAT
THE PRICES SET FORTH IN THIS AGREEMENT
ARE SET IN RELIANCE UPON THIS LIMITATION
OF LIABILITY AND TO THE MAXIMUM EXTENT
ALLOWED UNDER APPLICABLE LAW, THE
EXCLUSION OF CERTAIN DAMAGES, AND EACH
SHALL APPLY REGARDLESS OF THE FAILURE OF
AN ESSENTIAL PURPOSE OF ANY REMEDY. THE
FOREGOING LIMITATION OF LIABILITY SHALL
NOT APPLY TO CLAIMS THAT ARE SUBJECT TO
SECTIONS G(1) AND G(2).
ECO DOES NOT GUARANTEE THAT THE SAAS
SERVICES WILL BE PERFORMED ERROR -FREE
OR UNINTERRUPTED, OR THAT ECO WILL
CORRECT ALL SAAS SERVICES ERRORS. CLIENT
ACKNOWLEDGES THAT ECO HOES NOT
CONTROL THE TRANSFER OF DATA OVER
COMMUNICATIONS FACILITIES, INCLUDING
THE INTERNET, AND THAT THE SAAS SERVICE
MAY BE SUBJECT TO LIMITATIONS, DELAYS,
AND OTHER PROBLEMS INHERENT IN THE USE
OF SUCH COMMUNICATIONS FACILITIES.
NEITHER ECO NOR ANY OF ITS LICENSORS OR
OTHER SUPPLIERS WARRANT OR GUARANTEE
THAT THE OPERATION OF THE SUBSCRIPTION
SERVICE WILL BE UNINTERRUPTED, VIRUS -
FREE OR ERROR -FREE, NOR SHALL ECO OR ANY
Of ITS SERVICE PROVIDERS BE LIABLE FOR
UNAUTHORIZED ALTERATION, THEFT OR
DESTRUCTION OF CLIENT'S DATA, FILES, OR
PROGRAMS.
S. EXCLUSION OF CERTAIN DAMAGES. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL WE BE
LIABLE FOR ANY SPECIAL, INCIDENTAL,
PUNITIVE, LIQUIDATED, INDIRECT, OR
CONSEQUENTIAL DAMAGES WHATSOEVER,
EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
SECTION H — GENERAL TERMS AND CONDITIONS
I. Additional Products and Services. You may
purchase additional products and services at
rates to be set forth for twelve (12) months
from the Effective Date by executing a mutually
agreed addendum. If no rate is provided, or
those twelve (12) months have expired, you
may purchase additional products and services
at our then -current list price, also by executing
a mutually agreed addendum. The terms of this
Agreement will control any such additional
purchase(s), unless otherwise specifically
provided in the addendum.
2. Dispute Resolution. You agree to provide us
with written notice within thirty (30) days of
becoming aware of a dispute. You agree to
cooperate with us in trying to reasonably
resolve all disputes, including, if requested by
either party, appointing a senior representative
to meet and engage in good faith negotiations
with our appointed senior representative.
Senior representatives will convene within
thirty (30) days of the written dispute notice,
unless otherwise agreed. All meetings and
discussions between senior representatives will
be deemed confidential settlement discussions.
If we fail to resolve the dispute, then the parties
shall participate in non -binding mediation in an
effort to resolve the dispute. If the dispute
remains unresolved after mediation, then any
dispute shall be resolved through binding
arbitration through the AAA or in litigation in a
state or federal court located in Marion County,
Indianapolis, Indiana, at the sole discretion of
ECO. Nothing in this section shall prevent you or
us from seeking necessary injunctive relief
during the dispute resolution procedures.
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3. Taxes. The fees in this Agreement do not
include any taxes, including, without limitation,
sales, use, or excise tax. If you are a tax-exempt
entity, you agree to provide us with a tax-
exempt certificate, otherwise you agree to pay
all applicable taxes and related fees.
4. Binding Effect; No Assignment. This Agreement
shall be binding on, and shall be for the benefit
of, either your or our successor(s) or permitted
assign(s). Neither parry may assign this
Agreement without the prior written consent of
the other party; provided, however, your
consent is not required for an assignment by us
as a result of a corporate reorganization,
merger, acquisition, or purchase of substantially
all of our assets.
5. Force Maieure. Except for your payment
obligations, neither party will be liable for
delays in performing its obligations under this
Agreement to the extent that the delay is
caused by Force Majeure; provided, however,
that within ten (10) business days of the Force
Majeure event, the party whose performance is
delayed provides the other party with written
notice explaining the cause and extent thereof,
as well as a request for a reasonable time
extension equal to the estimated duration of
the Force Majeure event.
6. No Intended Third -Party Beneficiaries. This
Agreement is entered into solely for the benefit
of you and us. No third party will be deemed a
beneficiary of this Agreement, and no third
party will have the right to make any claim or
assert any right under this Agreement. This
provision does not affect the rights of third
parties under any Third -Party Terms.
7. Entire Agreement; Amendment. This
Agreement represents the entire agreement
between you and us with respect to the subject
matter hereof, and supersedes any prior
agreements, understandings, and
representations, whether written, oral,
expressed, implied, or statutory. This
Agreement may only be modified by a written
amendment signed by an authorized
representative of each party.
8. Severability. If any term or provision of this
Agreement is held invalid or unenforceable, the
remainder of this Agreement will be considered
valid and enforceable to the fullest extent
permitted by law.
9. No Waiver. In the event that the terms and
conditions of this Agreement are not strictly
enforced by either party, such non-
enforcement will not act as or be deemed to act
as a waiver or modification of this Agreement,
nor will such non -enforcement prevent such
party from enforcing each and every term of
this Agreement thereafter.
10. Independent Contractor. We are an
independent contractor for all purposes under
this Agreement.
11. Notices. All notices or communications
required or permitted as a part of this
Agreement, must be in writing and will be
deemed delivered upon the earlier of the
following: (a) actual receipt by the receiving
party; (b) upon receipt by sender of a certified
mail, return receipt signed by an employee or
agent of the receiving party; (c) upon receipt by
sender of proof of email delivery; or (d) if not
actually received, five (5) days after deposit with
the United States Postal Service authorized mail
center with proper postage (certified mail,
return receipt requested) affixed and addressed
to the other party at the address set forth on the
signature page.
12. Client Lists. You agree that we may identify you
DocuSign Envelope ID: 441DFD7D-9EC8-4FOB-AEB2-941F1939EBAE
omp�rkin
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ENOLOGIES
by name in client lists, marketing presentations,
and promotional materials.
13. Publicity. ECO may include Client's name and
logo in its customer lists and on its website.
Upon signing, ECO may issue a high-level press
release announcing the relationship and the
manner in which Client will use the ECO
solution.
14. No Third -Party Beneficiaries. This SaaS
Agreement is an agreement between the
parties, and confers no rights upon either
party's employees, agents, contractors,
partners of customers or upon any other person
or entity.
15. Confidentiality. Both parties recognize that
their respective employees and agents, in the
course of performance of this Agreement, may
be exposed to confidential information and that
disclosure of such information could violate
rights to private individuals and entities,
including the parties. Confidential information
is nonpublic information that a reasonable
person would believe to be confidential. Each
party agrees that it will not disclose any
confidential information of the other party and
further agrees to take all reasonable and
appropriate action to prevent such disclosure
by its employees or agents. The confidentiality
covenants contained herein will survive the
termination or cancellation of this Agreement.
Without limiting the foregoing, each party shall
use at least the same degree of care, but not
less than a reasonable degree of care, it uses to
prevent the disclosure of its own confidential
information to prevent the disclosure of
Confidential Information of the other party.
Each party shall promptly notify the other party
of any actual or suspected misuse or
unauthorized disclosure of the other party's
Confidential Information. Neither party shall
reverse engineer, disassemble ordecompile any
prototypes, software or other tangible objects
which embody the other party's Confidential
Information, and which are provided to the
party hereunder. Each party may disclose
Confidential Information of the other party on a
need -to -know basis to its contractors who are
subject to confidentiality agreements requiring
them to maintain such information in
confidence and use it only to facilitate the
performance of their services on behalf of the
receiving party. This obligation of confidentiality
will not apply to information that:
(a) is in the public domain, either at the
time of disclosure or afterwards, except
by breach of this Agreement by a party
or its employees or agents;
(b) a party can establish by reasonable
proof was in that party's possession at
the time of initial disclosure;
(c) a party receives from a third party who
has a right to disclose it to the receiving
party; or
(d) is the subject of a legitimate disclosure
request under the open records laws or
similar applicable public disclosure laws
governing this Agreement.
16. Governing Law. This Agreement will be
governed by and construed in accordance with
the laws of the state of Indiana, Marion County.
17. Signatures. This SaaS Agreement may be
executed in multiple counterparts, each of
which when executed will be an original, and all
of which, when taken together, will constitute
one agreement. Delivery of an executed
counterpart of a signature page of this SaaS
Agreement by facsimile or other electronic
transmission (including via pdf) will be effective
as delivery of a manually executed counterpart.
DocuSign Envelope ID: 441DFD7D-9EC8-4FOB-AEB2-941F1939EBAE
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Llarkin
TECHNOLOGIES
IN WITNESS WHEREOF, a duly authorized representative of each party has executed this Agreement as of the
date(s) set forth below.
CITY OF CARMEL, INDIANA
by and through Its Board of Public
Works and Safety
By:
Jak' Presiding {Nicer
F ar"M6ij' M Myer
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DaW 11/16/2022
ATTEST,
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Address for Notices:
ECO Parking Technologies
8001 Castleway Drive
Indianapolis, IN 46250
Attention: Dave Packard, COO
ECO Parking Technologies
Authorized Signature _
Printed Name�-
Cry
Title
FID/TIN:
R9
Date:
11/ 71zz—
Address for Notices:
City of Carmel
1 Civic Square
Carmel, IN 46032
Attention Office of Corporation Counsel
DocuSign Envelope ID: 441DFD7D-9EC8-4F06-AE62-941F1939EBAE
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@TECHNOLOGIES
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Exhibit A
Invoicing and Payment Policy
We will provide you with the software and services set forth in this Agreement. Capitalized terms not
otherwise defined will have the meaning assigned to such terms in the Agreement.
Invoicing: We will invoice you for the applicable software and services as set forth below. Your rights to
dispute any invoice are set forth in the Agreement.
1. SaaS Fees. SaaS fees are invoiced on an annual basis beginning on the commencement of the initial
term as setforth in Section F (1) of this Agreement, which is September 1, 2022. Upon expiration of
the initial term and subsequent twelve (12) month terms, annual SaaS fees will be at our then -current
rates, invoiced prior to the respective anniversary date.
1.1 Included in this agreement is ECO's Falcon SaaS Service, ECO's Falcon LPR SaaS Service and ECO's
Falcon NVR SaaS Service are not included.
1.2 Falcon SaaS Service includes: (i) Client access to cloud -based dashboards, (ii) help desk support
between 8:30am and 5:00pm EST, (ill) software defect remediation, and (iv) ECO installation of
software patches and free enhancements.
1.3 The rate for the first twelve-month period in the initial two-year term is $0.00.
1.4 The rate for the second twelve-month period in the initial two-year term is $3,648.00.
2. Other ECO Software and Services.
2.1 Implementation and Initial Training: Implementation and initial training are included at no charge
as part of this contract.
2.2 Other Services: Except as otherwise provided, other services added to the Agreement are invoiced
upon complete delivery of the service.
3. Expenses. Service rates for Other Services in section 2.2 above do not include travel expenses.
Expenses for ECO delivered services will be billed as incurred plus 10%. Copies of receipts will be
provided upon request; Receipts for miscellaneous items less than twenty-five dollars and mileage logs
are not available.
Payment. Payment for undisputed invoices is due within twenty (20) days of the invoice date. We prefer to
receive payments electronically. Our electronic payment information is:
Bank: Fifth Third Bank
ABA: 074908594
Account: 7925304599
Beneficiary: ECO Parking Technologies LLC
DocuSign Envelope ID: 441DFD7D-9EC8-4FOB-AEB2-941F1939EBAE - City
INDIANA RETAIL TAX EXEMPT Page 1 of 1
of Carmichl CERTIFICATE NO. 003120155 002 0 PURCHASEORDER NUMBER
FEDERAL EXCISE TAX EXEMPT 106935
ONE CIVIC SQUARE 35-6000972 THIS NUMBER MUST APPEAR ON INVOICES, AIP
CARMEL, INDIANA 46032-2584 VOUCHER, DELIVERY MEMO, PACKING SLIPS,
SHIPPING LABELS AND ANY CORRESPONDENCE
FORM APPROVED BY STATE BOARD OF ACCOUNTS FOR CITY OF CARMEL - 1997
;RASE ORDER DATE DATE REQUIRED I REQUISITION NO.
10/27/2022
VENDOR NO. DESCRIPTION J
376841 Parking technologies SaaS agreement
ECO PARKING TECHNOLOGIES LLC ICS
VENDOR 8001 CASTLEWAY DRIVE SHIP 31 1st Avenue N.W.
TO Carmel, IN 46032-
INDIANAPOLIS, IN 46250 - Timothy Renick (317) 571-2576
PURCHASE ID BLANKET CONTRACT PAYMENT TERMS FREIGHT
70141
QUANTITY UNIT OF MEASURE I DESCRIPTION UNIT PRICE EXTENSION
Department: 1115 Fund: 101 General Fund
Account: 43-556.00
1 Each Parking technologies SaaS agreement
Send Invoice To:
ICS
Timothy Renick
31 1st Avenue N.W.
Carmel, IN 46032-
(317) 571-2576
_................
DEPARTMENT
OF CA-p�
$3,648.00 $3,648.00
Sub Total $3,648.00
PLEASE INVOICE IN DUPLICATE
ACCOUNT PROJECT PROJECT ACCOUNT AMOUNT
PAYMENT $3,648.00
SHIPPING INSTRUCTIONS ' AIP VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O. NUMBER IS MADE A
PART OF THE VOUCHER AND EVERY INVOICE AND VOUCHER HAS THE PROPER SWORN
'SHIP PREPAID. AFFIDAVIT ATTACHED. I HEREBY CERTIFY THAT THERE IS AN UNOBLIGATED BALANCE IN
`C.O.D. SHIPMENT CANNOT BE ACCEPTED. THIS APPROPRIATION SUFFICIENT TO PAY FOR THE ABOVE ORDER.
'PURCHASE ORDER NUMBER MUST APPEAR ON ALL SHIPPING LABEL
'THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99, ACTS 1945'
AND ACTS AMENDATORY THEREOF AND SUPPLEMENT THERETO. ORDERED BY - - ------ -- -- - -- _ _ _ __
Timothy Renick
TITLE Director
CONTROL NO. 106935 CONTROLLER