Loading...
Agenda 01/24/2023 Item #16D3 (To enter into an agreement for library software maintenance, licensing and subscription services that will allow the critical operation of check in, checkout and reserving thousands of library materials each day)01/24/2023 EXECUTIVE SUMMARY Recommendation to approve Agreement No. 22-035-NS, “Integrated Library System Software Maintenance, Subscription & Phone Alert Services,” with Innovative Interfaces Incorporated in an amount not to exceed $200,000 per fiscal year, as budgeted through FY2028, and approve expenditures under the Agreement and approved Exemption. OBJECTIVE: To enter into an agreement for library software maintenance, licensing, and subscription services that will allow the critical operation of check-in, checkout, and reserving thousands of library materials each day. CONSIDERATIONS: The Board originally approved the award of Request for Proposal No. 05-3781 and the purchase of the Integrated Library System (“ILS”) from Innovative Interfaces, Inc. on July 2 6, 2005 (Agenda Item #16.D.12). Subsequently the Board approved the purchase of the Sierra upgrade at its October 11, 2011 Meeting (Agenda Item #16.D.2) to provide a more standard interface for staff use in providing library services. On January 28, 2014 (Agenda Item #16.D.3), the Board approved an annual maintenance agreement with Innovative Interfaces, Inc. Thereafter, the Board approved a subsequent exemption on December 14, 2021 (Agenda Item #16.D.5), which expired before Staff issued a new solicitation. Software and subscription services, as well as the new phone alert system, are critical enhancements and improvements to the current software providing unlimited functionality and support, diagnosis, and repair of any software issues, while also providing 24-hour service support. The proprietary hardware and software maintenance and licenses with Innovative Interfaces, Inc. are critical to the continuity of library operations. The inability to continue using the system will result in the Library’s inability to sustain mission-critical operations and the public’s ability to access core library services. Inherent to this are the compatible enhancements and upgrades to our current integrated library system software, unlimited functionality and hardware support, diagnoses and repair of software and hardware issues, help desk services, and access to online training. Sierra is the integrated library system software and cloud-hosting platform for the library catalog, which supports MARC records, collection management enhancement, and library circulation functionality. Decision Center is the reporting software for the Sierra ILS, delivering to the Library the ability to regularly monitor and analyze collection usage, patron trends, and other essential data necessary to ensure the division is maximizing returns on investment while meeting the changing needs of library users. By continuing the acquisition of the annual Hardware and Software Maintenance, licenses, and subscriptions with Innovative Interfaces, Inc., the Library is maintaining compatibility with the ILS currently in place as well as ensuring a continued, sustainable level of service which is both optimal and expected by our library user groups. Staff is requesting Board approval of Agreement No. 22-035-NS, “Integrated Library System Software Maintenance, Subscription & Phone Alert Services,” with Innovative Interfaces Incorporated. Staff researched the market and determined a conversion of ILS to another company takes a minimum of twelve to eighteen months for implementation in the current economic and supply chain climate. This time frame does not include the solicitation process through Board approval. Based on the market research Staff concluded that the proposed agreement represents a good stewardship approach, considering the current budget restraints should the County need to operate with two different platforms. Section 8, Exemptions to the Competitive Process, Subsection 9 of Collier County Procurement Ordinance No. 2013-69, as amended, provides that purchases of products or services necessary to maintain existing warranties and licenses or to maintain compatibility with existing Collier County systems may be eligible for an exemption to the competitive process based upon the determination of the County Manager or Procurement Services Director that approval of such an exemption waiver is in the best interest of the County. The required exemption form, approved by Procurement Services, is attached. FISCAL IMPACT: Funds, in an amount not to exceed $200,000, will be budgeted annually within Library General Fund (001) Cost Center 156100, Library Grant/Project Fund (129) Cost Center 156112 and Library Trust Fund (612) Cost Center 156113. 16.D.3 Packet Pg. 659 01/24/2023 LEGAL CONSIDERATIONS: This item is approved as to form and legality, and requires majority vote for Board approval. -SRT GROWTH MANAGEMENT IMPACT: No Growth Management impacts are associated with this item. RECOMMENDATION: To approve and authorize the Chairman to sign Agreement No. 22-035-NS, “Integrated Library System Software Maintenance, Subscription & Phone Alert Services,” with Innovative Interfaces Incorporated, approve expenditures under the Agreement, and approve the Exemption. Prepared By: Catherine Cowser, Interim Director, Library Division ATTACHMENT(S) 1. FY22 Exemption Request 149 - Innovative Interfaces(revised) (PDF) 2. [linked] 22-035-NS Agreement_Innovative Interfaces, Inc._VendorSigned (PDF) 3. 22-035-NS Innovative_COI (PDF) 16.D.3 Packet Pg. 660 01/24/2023 COLLIER COUNTY Board of County Commissioners Item Number: 16.D.3 Doc ID: 24197 Item Summary: Recommendation to approve Agreement No. 22-035-NS, “Integrated Library System Software Maintenance, Subscription & Phone Alert Services,” with Innovative Interfaces Incorporated in an amount not to exceed $200,000 per fiscal year, as budgeted through FY2028, and approve expenditures under the Agreement and approved Exemption. Meeting Date: 01/24/2023 Prepared by: Title: – Operations & Veteran Services Name: Jeff Newman 12/20/2022 8:26 AM Submitted by: Title: – Operations & Veteran Services Name: Jeff Newman 12/20/2022 8:26 AM Approved By: Review: Operations & Veteran Services Jeff Newman Additional Reviewer Completed 12/20/2022 8:27 AM Library Catherine Cowser Additional Reviewer Completed 12/20/2022 9:21 AM Procurement Services Ana Reynoso Level 1 Purchasing Gatekeeper Completed 12/20/2022 9:37 AM Procurement Services Sue Zimmerman Additional Reviewer Completed 12/26/2022 10:44 PM Procurement Services Sara Schneeberger Additional Reviewer Completed 12/28/2022 8:16 AM Procurement Services Sandra Herrera Additional Reviewer Completed 01/11/2023 1:59 PM Public Services Department Todd Henry PSD Level 1 Reviewer Completed 01/11/2023 3:16 PM Museum Todd Henry Additional Reviewer Skipped 01/06/2023 10:44 AM Public Services Department Tanya Williams PSD Department Head Review Completed 01/12/2023 8:40 AM County Attorney's Office Scott Teach Level 2 Attorney Review Completed 01/13/2023 8:52 AM Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 01/13/2023 8:54 AM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 01/13/2023 11:00 AM Community & Human Services Maggie Lopez Additional Reviewer Completed 01/17/2023 9:34 AM Office of Management and Budget Christopher Johnson Additional Reviewer Completed 01/17/2023 10:38 AM County Manager's Office Dan Rodriguez Level 4 County Manager Review Completed 01/18/2023 4:42 PM Board of County Commissioners Geoffrey Willig Meeting Pending 01/24/2023 9:00 AM 16.D.3 Packet Pg. 661 Exemptions from the Competitive Process Revised 06/17/2021 Start End Multi-Year Approval: One year approval One time approval For Procurement Use Only: Requester Name: Vendor Name: Division: Item / Service: Budget Year: Not to Exceed Amount: (Fiscal Year) One time purchase: Multiple purchases: Requested date range: Is there an agreement associated with this Exemption? Yes No 1.Government Agency/Non- Profit 2.Registrations/dues/ training 3.Subscriptions/periodicals/ printed materials 4.Advertisements 5.Utility services – subject to government control 6.Education/academic programs/trainers, speakers 7.Legal services 8.Purchases required by grants/gifts 9.Compatibility/proprietary with current systems 10.Shop estimates on disassembled equipment 11.Personnel/recruitment services 12.Works of art for public display 13.Direct purchases 14.Financial instruments 15.Entertainment services for County sponsored events 16.Management studies as directed by County Manager 17.Resolution/BCC direction (Indicate resolution number and approval date): Requester: Signature: Date: Division Director: Signature: Date: Procurement Strategist: Signature: Date: Procurement Director: Or designee Signature: Date: Instructions The following procurement categories may be eligible for exemption from the competitive process based upon the determination of the County manager or Designee that approval of such an exemption is in the best interest of the County. Purchases greater than $50,000 will require final approval by the Board of County Commissioners. Viviana Giarimoustas Innovative Interfaces, Inc. Library Maintenance & Subscription Services FY23-FY28 $200,000 1/1/2023-12/31/2028 Description of Purchase: Enter a description of the item(s) items that will be purchased under this exemption. Software maintenance and subscription and cloud based communication system. Purpose: Describe in detail, the purpose of the requested item(s). Continue to use these services with Innovative Interfaces to provide continuity of Library operations. The service, known as Sierra, is an integrated library system software with cloud-hosting that handles the library catalog, collection management, and library circulation. The cloud based communication system will enable constituents to receive key notices directly from the system. Viviana Giarimoustas Catherine Cowser Sara Schneeberger Catherine Bigelow 01/01/2023 12/31/2027 ✔✔ ✔ ✔ GiarimoustasVivian a Digitally signed by GiarimoustasViviana Date: 2022.07.22 11:59:31 -04'00' CowserCatherine Digitally signed by CowserCatherine Date: 2022.07.26 08:55:36 -04'00' SchneebergerSara Digitally signed by SchneebergerSara Date: 2022.08.24 15:42:23 -04'00' BigelowCatherine Digitally signed by BigelowCatherine Date: 2022.08.25 06:34:12 -04'00' 16.D.3.a Packet Pg. 662 Attachment: FY22 Exemption Request 149 - Innovative Interfaces(revised) (24197 : Agreement No. 22-035-NS "Integrated Library System" (ILS)) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2016 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY Willis Limited 51 Lime Street London, EC3M7DQ GBR Clarivate Analytics US LLC Innovative Interfaces, Inc. 3133 W Frye Road Suite 401 Chandler, AZ 85226 FOR INFORMATION PURPOSES ONLY 05/31/2022 1-877-945-7378 1-888-467-2378 certificates@willis.com Lloyds Syndicate 2987 C0978 W24945061 A Technology E&O Cyber Security & Privacy Liab Per Claim 50483P22 06/01/2022 06/01/2023 Per Claim Media Liability Per Claim 254418722649360SR ID:BATCH: $5,000,000 $5,000,000 $5,000,000 Willis Towers Watson Certificate Center Page 1 of 1 16.D.3.c Packet Pg. 663 Attachment: 22-035-NS Innovative_COI (24197 : Agreement No. 22-035-NS "Integrated Library System" (ILS)) COLLIER COUNTY NON-STANDARD AGREEMENT #22-035-NS FOR "INTEGRATED LIBRARY SYSTEM (ILS) SOFTWARE MAINTENANCE, SUBSCRIPTION 8e PHONE ALERT SYSTEM" BETWEEN COLLIER COUNTY AND INNOVATIVE INTERFACES INCORPORATED ATTACHED - MASTER PROFESSIONAL SERVICES LICENSE AGREEMENT Rc SOW (15-pages) SUBSCRIPTION LICENSE AGREEMENT CL $-Pages) PERPETUAL LICENSE AGREEMENT (19-pages) SOFTWARE -AS -A -SERVICE (SAAS) SUBSCRIPTION AGREEMENT (18-pages) Collier County Library Division 2385 Orange Blossom Dr. Naples, Florida 34109 CONTRACT ADMINISTRATOR: Vivian Giarimoustas, Contract Administration Specialist P: (239) 252-4915 Email: V' C"tu= 't sC � ll' t fl DIVISON POINT OF CONTACT: Kim Spina, Library Senior Supervisor P: (239)252-7379 Email: K' S (+7 11' t tl.aov U� INNOVATIVE INTERFACE3INCORPORATED MASTER PROFESSIONAL SERVICES AGREEMENT This Master Professional Services Agreement ("Services Agreement") is entered into by and between Innovative Interfaces Incorporated, a California corporation ("Innovative"), and [he party identified as Cllant below ("CI7anP' or "County"),apolitical subdivision of the State of Florida, (collectively, the "Parties"), as of the "EffecHva Date" also set forth below. Innovative Innovative Interfaces Incorporated Address 3'133 W. F e Rd., Suite 400, Chandler AZ 85226 Innovative Point of Contact Dennis Carter, Director 8 Sales Account Manager Phone: 734-5727340 Email: dennis.carter�clarivate:com Cllant Collier County Board of County Commissioners, FL for and on behalf of Collier County Public Libra Division Address 2385 Orange Blossom Dr. Naples FL 34'109 Cllant Technical Contact Name: Jared DeiRa, Applications Analyst Phone: 239 252-7333 / Email: Jeretl.Delre�colliercount fl. ov Effective Data License Agreement Date January 'I, 2023 �. Definitions. a. "GTCs" means the Innovative Intertaces Incorporated Master Professional Services Agreement General Terms and Conditions in Exhibit A. b. "SOW" means one or more Statements of Work attached as an exhibit hereto and executed by the parties hereto from time to time on or after the Effective Date. 2. General. Innovative and Client agree that this Services Agreement is a binding agreement between the parties and is governed by the GTCs, which are made a part hereof. This Services Agreement, the GTCs and all other exhibits, schedules and terms end conditions raf¢renced by or in this Services Agreement or the GTCs [oge[h¢r constitute the "Agreement." Client acknowledges and agrees that it has had the opportunity to review the Agreement, including without limitation, khe GTCs, prior to the execution of this Agreement. Innovative recommantls that Client print a copy of each component of this Agreement for Client's recortls. Vnless otherwise specified, capitalized terms in this Services Agreement have the sam¢ meaning as those in the GTCs. This Agreement is governed by and interpreted in accordance with the internal substantive laws of Florida, without regard to any other laws that would require the application of the laws of another jurisdiction. Application of the U.N. Convention on Contracts for the International Sale of Goods is hereby excluded. EXHIBITS TO SERVICES AGREEMENT A General Terms and Conditions B Statement(s) of Work C Pricing Exhibit [Signature page follows] Page 1 of 11 At In witness whereof, the parties have executed this Agreement by their duly authorized representatives as of the Effective Date. Client Innovative --- _ Collier County Board of County Commis-sioners Innovative interfaces Incorporated for and on behalf of Collier County Public Library Division I By: By: Name: Name: Title; � Title: Date: Date: M. ((o , ATTEST: Crystal K. Kinzel, Clerk of the Circuit Court And Comptroller By: .__ Dated: (SEAL) Approved as to Form and Legality: County Attorney Print Name INNOVATIVE WITNESSES: First Witness Type/Print Witness name l Seccondj, Witness Type/Print W ess name Page 2 of 11 Exhibit A Master Professional Services Agreement General Terms and Cond Hlons The parties agree that their contractual relationship with respect to the Services will be governed by the terms and conditions of (2) this Master Professional Services Agreement Ganaral Terms and Conditions ("GTCs"), (2) the applicable Innovative Interfaces Incorporated Master Professional Services Agreemant(s) (each, a "Services Agreement"), and (3) all other applicable exhibits, schedules and terms and conditions referenced by or In the GTCs and Services Agreement(s). Each Services Agreement, together with the terms and conditions of these GTCs and all applicable exhibits or schedules incorporated by reference or referencatl therein will constitute and ba construed as a separate agreement. Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in the Services Agreement. 2. Scope and Performance of Services. a. Each SOW will detail (i) the requirements for implementation of the Software (as defined below) or such other professional consulting services as the parties may mutually agree (the "Services"), and (ii) any tangible work product or other delivereblas to ba provided to Client by Innovative in conjunction with the Services ("Work Product"), each of which is subject to the terms end conditions set forth In this Agreement. Any such SOW, when executetl by the parties, will ba deemed incorporated Into this Agreement and made a part hereof for all purposes. Innovative will provide the Services on the [arms contained in this Agreement. The farm "Software" has the meaning assigned in that separate License Agreement between the parties dated as of the License Agreement Date identified in the Services Agreement. b. Client will be deemed to have accepted the Services as billed on a time and material basis unless otherwise specified in the applicable SOW. c. Innovative is permitted to, at its sole cost and expense, subcontract the performance of some or all of the Services provided that (i) Innovative's subcontractor agrees in writing to abide by the [arms of [his Agreement, and (li) Innovative remains fully rasponsi bla for the performance of such subcontractor in accordance with the terms hereof. In pertorming any Services at Client's site, Innovative's and its subcontractors' personnel (collectively, the "Consulting Personnel") must adhere to all reasonable personal conduct and security policies of Client provided in writing to Innovative in advance. Unless otherwise agreed to by both parties, the Consulting Personnel will observe the working hours and holiday schedules of Client while working on Client's premises. d. Although innovative will perform much of the Services at its offices with its equipment, in order to facilitate the pertormance of the Services, Client will make available in a timely manner, at no charge fo Innovative, all facilities, programs, files, equipment, documentation, test data, sample output, or other information and resources reasonably required by Innovative for the pertormance of the Services ("Client Resources"). Innovative and Its subcontractors are hereby granted a nonexclusive, non-transferrable, non -sub -licensable, fully paid -up license to use the Client Resources during the term of this Agreement for the sole purpose of parformin9 the Services. Innovative will not be liable for any damages related to delays caused by Client's failure to fulfill the foregoing obligations. 2. Change Orders. The parties may make changes to the Services specified in an SOW by executing a mutually agreeable "Change Ortler" that sets forth (i) a description of the change(s), and (il) [he price antl payment terms (if any) for the change(s). Once so approved, the Change Order will constitute a formal amendment to the applicable SOW, and will ba deemed incorporated Into this Agreement and made a part hereof for all purposes. 3. Proprietary Rights and Ownership. a. All Intellectual Property Rights (es tlefined below) in the Services and Work Product provided or made available to Client by Innovative hereunder (including all improvements, enhancements, modifications or updates) ("Innovative Products") will remain the exclusive, sole and absolute property of Innovative or the third parties from whom Innovative has obtained the right to use the Innovative Products. Intellectual property created by Innovative pursuant to this Agreement, or any other party at the request or direction of Innovative, will be owned by Innovative. "Intellectual Property Rights" means any and all intellectual property rights existing from time to time under any law or rag ulation, including without limitation, patent law, copyright law, semiconductor chip protection law, moral rights law, tratle secret law, trademark law, unfair competition law, publicity rights law, or Page 3 of li Av privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect worldwide. During She term of this Agreement, subject to the terms and conditions set forth herein, Client will have a personal, non -transferable, non-exclusive, right and license to use the Work Product solely for the Software and internal business purposes of Client. Client will at all times retain all intellectual property rights in all Client Data (as defined in the Llcansa Agreement) and any proprietary Information and materials provided by Client in connection with the Services p rovldetl hereunder. b. For purposes of this Agreement, as between Innovative and CIIanL any intaliactual property in the Innovative Products to the extent owned by any th irtl party will ba and remain the exclusive property of such third party. c. Client acknowledges that Innovative is engaged in the process of continuously Improving its products which provide software solutions to manage libraries for a wide variety of clients entl that Innovative will continue these activities. Nothing in this Agreement will be tleamed to preclude or limit Innovative from using intellectual property developed in the provision of the Services hereunder and/or developing any products, entl-user services, or other deliverable materials for itself or other clients, so long as such services and/or products do not incorporate Client's Confidential Information or Client Data. d. If, In the course of receiving the Services, Client Data is provided by Client or its vendors to Innovative, such Client Data will be managed in accordance with the License Agreement. 4. Fees; Expenses; Payment Terms. a. In consideration for the Services, Client agrees to pay the fees set forth In each applicable SOW or Pricing Exhibit (the "Fees'). Additionally, Client will be responsible for all reasonable actual out-of-pocket costs and expenses (e.g. travel, copying and courier services) incurred by Innovative in its performance of this Agreement. b. All Fees entl expanses will be billetl once monthly in arrears or as may otherwise be speciFed in the applicable SOW or Pricing Exhibit. All Feea, expanses and any other amounts owing under this Agreement are due and payable on the terms sat forth in the Pricing Exhibit and in compliance with Chapter 275, Fla. Stet., otherwise known as the "Local Government Prompt Payment Act.". All amounts stated herein and all Fees tleterminetl hereunder are in U.S. dollars. c. All Fees are exclusive of all taxes and similar fees now in fo rca or enacted in the future or imposed on the delivery of the Services, all of which Client will be responsible for and will pay in full, other than taxes based on Innovative's net Income. Client will provide Innovative its state -issued Direct Pay Exemption Certificate (or equivalent certificate), if applicable, upon execution of this Agreement. In the event an applicable taxing authority, as a result of an autlit or otherwise, assesses additional taxes for goods or services sold under this Agreement at any time, Client entl not Innovative, will be solely responsible for payment of such additional taxers and all costs associated with such assessment, Including without limitation, interest, penalties entl attorneys fees. Additionally, should Client be required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due So Innovative hereunder, than the sum due to Innovative will be increased by the amount necessary to yi¢Id to Innovative an amount equal to the sum Innovative would have received had no withholdings or d¢ductions been matla. Collier County, Floritla as a political subtlivision of the State of Florida, Is exempt from the payment of Florida sales tax to its Contractors under Chapter 212, Florida Statutes, Certificate of Exemption #85-8075985531 C-7. d. Any late Interest fees shall be pursuant to Section 278.74, Fla. Stet. 5. Limited Warranty. a. Innova[Iva warrants, solely for the benefit of Client, that all Services rendered pursuant to this Agreement will be pertormad in professional manner consistent with intlustry practices. Innovative agrees to re-pertorm any Services not in compliance with [his warranty brought to its attention within thirty (30) tlays after those Services are pertormed. b. Innovative warrants, solely for the benefit of Client that for a period of 30 (thirty) days after delivery, the Work Product delivered will perform in accordance with the specifications contained in the applicable SOW. Page 4 of 11 P Innovative agrees to correct any such Work Product not in compliance with this warranty brought to Its attention within the foregoing warranty pariotl. c. The exclusive remedy of Client under the Iimitetl warranties sat forth in Sections 5(a) and 5(b) are set forth in Sections 5(a) and 5(b), respectively. d. EXCEPT FOR (I) THE WARRANTIES EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY WARRANTY, REPRESENTATION OR CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INNOVATIVE AND ITS AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OR VNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON -INFRINGEMENT. WITHOVT LIMITING THE FOREGOING, INNOVATIVE AND ITS AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BV OR ON BEHALF OF INNOVATIVE WILL SATISFY CLIENT'S REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT -FREE OR V NINTER RUPTED OR AVAILABLE ON THE INTERN ET, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTIONS 5(a) AND 5(b), THE SERVICES AND WORK PRODUCT ARE PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY, INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF. 6. LIMITATIONS ON LIABILITY. IN NO EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER, EVEN IF INNOVATIVE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE OTHERWISE FORESEEABLE. INNOVATIVE'S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT VNDER THE APPLICABLE SOW UPON WHICH A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE, LESS AGGREGATE DAMAGES PREVIOUSLY PAID BY INNOVATIVE UNDER THIS AGREEMENT. INNOVATIVE WILL NOT 6E LIABLE FOR ANY CLAIM OR DEMAND AGAINST CLIENT BV ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT. 7. Indamnlflcation. Innovative will tlefantl Client in any legal action ttletl by a third party against Client claiming the Services or Work Product as delivered to Client by Innovative pursuant to Section 'I infringes a U.S. copyright or U.S. patent; provided in each case that Client promptly notifies Innovative In writing of such claim and fully cooperates with Innovative in the defense of such claim. Innovative will also indemnify end hold Client harmless from any and all damages and costs (including reasonable attorneys fees) finally awarded by a court of competent jurisdiction in connection with any such claim, or agreed by Innovative in a settlement of such claim. Innovative will conduct the defense and any settlement negotiations in any such third -party action arising as described herein. This Indemnification is limited to the Services and Work Product in the form delivered to Client and does not cover claims arising from (x) motlifications thereto not made by Innovative, or, even if by Innovative, at the request of Clienq (y) use of the Services and Work Protluct in combination with other software or items not provitled by Innovative; or (z) third -party source code included In the Services antl Work Protluct. If the use of the Services or Work Product by Client is enjoined, Innovative will, at its sole option: (i) obtain for Client the right to continue to use the Services or Work Product, (if) modify the Services antl Work Product to remove the cause of the claim, action or suit, (iii) replace the Services and Work Product at no adtlitional charge to Client with an equally suitable, non -infringing service or work product, which will then ba subject to the provisions of this Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees allocable [o the infringing component of the Services and Work Product, prorated for the periotl Client's use of [he Services and Work Product is enjoined. None of the above warranties or remedies will apply with respect to any element of the Services and Work Protluct that has been modified by any party other than Innovative, or used in a manner for which the Services and Work Product are not designed or intentlad. This section states Page 5 of 11 po Innovative's entire liability and Client's exclusive remedies for Infringement of intellectual property rights of any kind. 8. Confidentiality. a. Innovative acknowledges that any Client Resources or information, tlata, or documents disclosed by Client to Innovative in Its pertormanca hareuntler that are marketl as confidential and proprietary information of Client shall be treated as "Confidential Information" as defined below. Client acknowledges [hat all docu m¢ntation, technical information, Software and other information pertaining to the Services, and/or Innovative's business int¢rests or activities, methods of operation or customers that are marked and disclosed by any party to Client in She course of performing this Agreement shall be treated as the confidential and proprietary information of Innovative and, pursuant to Florida Statute § 815.045, will be regardetl as a Trade Secret. The Information and materials described in the two precetling sentences are referred to herein as "Confidential Information." Notwithstanding the foregoing, the term "Confidential Information" does not include Information pertaining to a party if such information: (i) is generally known to the public through no Improper action or inaction by the other party, (il) was, through no improper action or Inaction by the other party, in the possession of the other party prior to the Effective Date, (iii) was rightly tlisclosad to the other party by a third party if such disclosure does not violate the [arms of any confidentiality agreement or other restriction by which such third party may be bountl, or (iv) although falling under the definition of Confidential Information provided herein, the materials) is judicially determined not to be exempt under the Florida Public Records Act, Chapter 'I'19, Fla. Stet. b. All Confidential Information will be held in confidence antl will not be copied, used or tlisciosed other than as set forth In [his Agreement. Each party will take all reasonable efforts to protect the confidentiality of and prevent the unauthorized use of any such Confidential Information by any thirtl party within such party's control. Each party may disclose Confidential Information: (i) to the receiving parry's employees antl contractors required to have access to said Confidential Information for the purposes of pertorming this Agreement or using the Work Product, provided [hat such parties have entered Into anon-tl isclosura agreement offering similar protection as is provitlad under this Agreement; or (ii) if such disclosure is in response to a valitl order of any court or other governmental hotly ("Order"), in which event, the disclosing party will us¢ reasonable efforts to provide the other party with prior notice of such requiretl disclosure. In the event Innovative marks or designates any recortls as comprising Confid¢ntial Information, which the Client does no[ believe meets the definition, prior to providing such information untler a public record request it shall first notify Innovative that it has received a request for the records) and that it will release the recortl(s) as not confidential but will first allow Innovative an opportunity to seek a protective order as to those records. Confitlantia lily of information containetl in this agreement is subject to the requirements of the Florida Public Records ACY, Chapter f'19, Fla. Stet., the Florida Sunshine Law, Chapter 286, Fla. Stet. and Florida Statute § 8'15.045 in the protection of Trade Secrets c. Recognizing that any improper use or disclosure of any Confidential Information by either party may cause the party whose Confidential Information is improperly used or disclosed irreparable damage for which other remedies may be inadequate, a party whose Confidential Information is improperly used or disclosetl will have the right to p¢tition for injunctive or other equitable relief from a court of competent juristliction as appropriate to prevent any unauthorizetl use or disclosure of such Confidential Information. 9. Term; Termination a. This Agreement will be effective as of the Effective Date and will remain In affect until terminated as permitted under this section. Client may terminate this Agreement or an SOW at any time without cause upon 30 (thirty) days prior notice. Client may terminate this Agreement at any time if Client's budget (funding) is eliminated antl Client provides written evidence to Innovative of the elimination of Client's budget (funding), such evidence to be in the form and substance reasonably requested by Innovative. Innovative may terminate this Agreement or an SOW for cause (i) if Client breaches any material term or condition of this Agreement or an SOW and such breach continues unremedied for 30 (thirty) tlays after delivery of written notice of such breach to Client, or (ii) if Client is declared bankrupt, admits its Inability to satisfy its debts, or enters Into any negotiation with its creditors for the settlement of its debts. Any notice of termination expressly purporting to terminate this Agreement in its entirety will also effectively terminate any and all SO Ws then outstanding. Contrarily, any notice of termination purporting only to terminate one or more SO Ws (but not purporting to terminate this Agreement or otherwise remaining silent as to the termination of this Agreement) will effectively terminate only such Identified SOW(s), in which event this Agreement antl all other outstanding SOWS will survive. Page 6 of 11 A b. Upon any termination of this Agreement, all paitl Fees will be nonrefundable and Client will ba responsible for all Fees and expenses for all Work Product provided or Services performed up to, and including, the date of termination. Otherwise, the rights and duties of the partlas will terminate other than the obligation of the Client to pay Fees and expenses in accordance herewith, and the obligations of [he parties pursuant to Section 3 (Ownership), Section 6 (Limitations on Liability), Section � (Indemnification), Section 8 (Confidentiality), and the governing law and venue provisions of this Agreement. Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the terminating party may have under the terms of this Agreement. Within 30 (thirty) days of a termination of [his Agreement, each party must return or destroy all Confidential Information of the other party, as requested by the other party. t0. Consulting Personnel. Innovative agrees to keep accurate and complete records of tasks and hours of the Consulting Personnel In performing the Services. Innovative will be solely responsible for, at its own cost, verifying the employment history, educational and professional credentials and licenses, and criminal history of each of the Consulting Personnel. In providing the Services, Innovative will not knowingly utilize Consulting Personnel who have bean convicted of fraud, theft, larceny, embezzlement or any other felony or other crime of moral turpitude. Innovative is solely responsible to ensure that all Consulting Personnel are in compliance with the Immigration Reform and Control Act of 1986 ("IRCA"). Specifically, Innovative will comply fully with the record keeping and other requirements of IRCA, including without limitation all I-9 requirements. Client is not responsible for sponsorship of any workers who pertorm Services for it at the request of Innovative. For Innovative employees working In the United States pursuant to this Agreement, Innovative will provide to Client only workers for whom Innovative has confirmed legal liability to pertorm services as employees In the Vnitad States, and for whom all required record keeping under IRCA has been pertormed and maintained. No Consulting Personnel will ba entitled to participate in any compensation or benefits plan of Client. Innovative will be solely responsible for the payment of wages and any employee benefits to or on behalf of the Consulting Personnel for work performed under this Agreement and for withholding of any end all federal, state and local income taxes, paying social security taxes, unemployment insurance in an amount and under such terms as required by fadaral, state, or local law. � �. Beek -Up Aetivltlas. Client has the sole responsibility for the maintenance and protection of all data provided by Client to Innovative for partormance of the Services, including, without limitation, the making, storing and security of back-up and archive espies of such data (collectively "Back -Up Activities"), and Client acknowledges Innovative will not pertorm any Back -Up Activities for or on behalf of Cllant. t2. G¢naral a. No Wa'var. The failure of either party to enforce any rights granted harau ndar or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the avant of future breaches. b. Indeoendant Contractor. Client acknowledges that Innovative is at all Limas an independent contractor and that Client's relationship with Innovative to not one of principal and agent nor employer and employee. No Consulting Personnel will ba entitled to participate in any compensation or benefits plan of Client. c. Force Maieure. Neither party will be liable or responsible for any delay or failure in pertormence if such delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo, government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omiss(ons of carriers, third party local exchange and long distance carriers, utilities, Internet service providers, transmitters, vandals, or hackers, or any other similar causes that may be beyond its control. d. Notice. Any notice or communication required to be given by either party must be in writing and made by hand delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such communication. Vnless otherwise Instructed in writing, such notice will be sent to the partlas at the adtlressas sat forth on the first page of the Service Agreement. Notice will ba deemed given on the date of receipt or first refusal by the recipient. All communications pursuant to this Section will be deemed delivered as follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service; or (b) when electronically confirmed, if delivered by facsimile. e. Invalitlity. Any provision of this Agraemant which is invalid, illegal, or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to She extant of such invalidity, illegality or unenforceability, without affecting Page 7 of 11 A in any way the remaining provisions hereof in such Jurisdiction or rendering that or any other provision of this Agreement Invalid, illegal, or unenforceable in any otherJurisdiction. f. Gounteroarts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or similar format for scanned copies of documents) or facsimile signature, each of which when so executed antl delivered will be an original, but all such counterparts together constitute but one and th¢ same instrument. g. Pu blicity. Except as provided In this Section, neither party will make any press release, public statement or other disclosure r¢garding the terms of this Agreement without [ha prior written consent of the other party, which consent will not ba unreasonably withheld. h. Assicnment. Neither party has the power to assign, Iicens¢, or sub -license any of its rights or obligations hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any assignment, license, or sub -license attempted without such consent will be void. Notwithstanding the foregoing, a party may assign this Agreement without the other party's consent (i) as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or capital stock; or (11) to an affiliate of such party provided that any such assignment will not release the assigning party from its obligations under this Agreement. i. Insurance. Innovative Is to provide Client proof of insurance as follows: 1. Technology Errors &Omission: $1,000,000 single limit; 2. Cyber Liability - $1,000,000 single limit. Collier County Board of County Commissioners shall be listed as the Certificate Holder. j. Govern'nc Law and Venue. This Agreement shall be interpreted under and its pertormance governed by the laws of the State of Florida. Any suit or action by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. k. Public Entity Crime. By execution of this Agreement, Innovative acknowledges to comply with the terms of Section 2B].133 of the Florida Statutes and inform the County of the conviction of a public entity crime. I. Public Records Comcliance. By executing and entering into this Agreement, Innovative is formally acknowledging without exception or stipulation that it agrees to comply, at Its own expense and in so tar as they are relevant [o Innovative's performance of its obligations under this Agreement, with all federal, state and local laws, codes, statutes, ordinances, rules, regulations and requirements applicable to this Agreement, including but not limited to those dealing with the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, ek seq. and regulations relating thereto, as either may ba amended, as well as the req uiraments set forth in Florida Statute, §448.095; taxation, workers' compensation, equal employment and safety (including but not limited to, the Florida Public Records Law 119), Including specifically those contractual requirements at F.S. § 119.0]01(2)(a)-(b) as stated as follows: IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 1'19, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT. CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT. Communications, Government &Public Affairs Division 3299 Tamlami Trail East, Suite 102 Naples, Floritla 34112-5]46 Telephone: (239)252-8999 Email: Public Record Rea uast(a7co11iarcountvfl.aov The Contractor must specifically comply with the Florida Public Records Law to: 1. Keep and maintain public records required by the public agency to perform the service. Page S of 11 CGAU 2. Upon request form the public agency's custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provitletl in this chapter or as otherwise providetl by law. 3. Ensure that public recortls that are exempt or confidential and exempt from public recortls disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Contractor tloas not transfer the records to the public agency. 4. Upon completion of the contract and upon request, transfer, at no cost, to the public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to perform the service. If the Contractor transfers all public records to the public agency upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosu ra requirements. If the Contractor keeps and maintains public r¢cortls upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be providetl to the public agency, upon req uast from the public agency's custodian of public records, in a format that is compatible with the information technology systems of the public agency. If Contractor observes that the Contract Documents are at variant¢ therewith, it shall promptly notify the County in writing. Failure by the Contractor to comply with the laws referencetl herein shall constitute a breach of this agreement and the County shall have the discretion to unilaterally terminate this agreement immetliately. m. D'soute Resolution. Prior to the initiation of any action or proceetling parmittetl by this Agreement to resolve disputes between the parties, the parties shall make gootl faith effort to resolve such disputes by negotiation. The negotiation shall be attended by representatives of Innovative with full decision -making authority and by Client's staff parson who make the presentation of any settlement reached during negotiations to Cllant for approval. Failing resolution, and prior to the commenc¢ment otdepositfons In any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed -upon Circuit Court Mediator certified by [he State of Floritla. The mediation shall be attended by representatives of Innovative with full decision -making authority and by Client's staff person who woultl make the presentation of any settlement reached at mediation to the Client's board for approval. Should either party fail to submit fo mediation as required hareuntler, the other party may obtain a court order requiring mediation under section 44.'102, Fla. Stet. n. Waiver of Jury Tr'aP Governinc Lanauaae. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SV BJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be contlucted in the English language; any translation of this Agreement into another language will be for convenience only but will not modify the meaning hereof. Only a written instrument duly executed by both parties may motliry this Agreement. o. Ent're Aereamant. This Agreement contains the entire understanding of the parties, and supersetles all prior agreements and undarstantlings relating Yo the subject matter hereof, provided that nothing herein will diminish or affect any separate confidentiality agreement, license agreement or other document issuetl thereunder. Tha parties represent that they are sophisticated commaroial entities, have had the opportunity to consult with their own counsel, and have included in [his Agreement all terms material to the parties' rights and obligations with respect to the subject matter hereof and Intend this document to be the final expression of their contractual intent. The parties further represent and acknowledge that communications axchangetl between the parties during contract negotiation (inclutling without limitation requests for proposals ("RFPs") and responses to such RFPs, questionnaires and responses to same) do not constitute a part of this Agreement. Purchase orders, work orders or other documents submitted by Client will be for Client's internal administrative purposes only and the terms and conditions contained in any such purchase order, work order or other document will have no foroa or effect antl will not amentl or modiy this Agreement. In the event of any inconsistencies or conFlicts among the GTCs, a Services Agreement or any other exhibits or schedules referenced by these GTCs, the following order of priority will control: 'I. Service Agreement, 2. GTCs and 3. Any other terms, agreements, exhibits or Schad ules included in, or referenced by the Agreement. Page 9 of 11 CAO Exhibit B Statement of Work [Statement of Work follows? Page 10 of 11 _ iii innovative Stet®ment of Work This Statement of Work (the "SOW') dated is entered Into pursuant to the Master Professional Services Agreement between Collier County Board of County Commissioners for and on behalf of Collier County Public Library ("Client" or "County") and Innovative Interfaces Incorporated ("Innovative") effective as of (the "Agreement"). Innovative and Client may each ba referred to as "Party" from time to time or collectively as "Parties". A. Purpose of thla Statement of WorK Tha SOW provides an overview of the scope of the project and fees to complete the engagement based on Innovative's prior experience with similar projects and preliminary discussions with Client. The Client hereby acknowledges that Yha SOW is not meant to capture all detailed requirements but documents the high level requirements and implementation approach discussed and that additional detailed requirements discussions will be required to outline the full scope of work between the Parties. B. Project Scope of Services The Scope of the project Includes the following professional services: Innovative will perform the installation and implementation of Innovative's Phone Alerts product (IPA) with "outbound" notification functionality for Client. All services detailed herein will be pertormed remotely by Innovative and will not require physical onsife access onto Cllant premises. Services to be pertormed Include: o Project management for the installation and configuration of IPA, including project scheduling, project risk management and mitigation, liaison with Client, provisioning and coordination of Innovative resouroes, and ensuring tracking and timely completion of project tasks. ' o Product profiling antl configuration, including consultation with Client on desired configuration points, and entry and verification of profile and configuration. o System engineering, including software Installation, ensuring corr¢ct integration with the Sierra integrated library system software, upgrade and reconfiguration of any installed Sierra components upon which the IPA product depends, and technical liaison with the Client. o Tasting of the IPA software, with the assistance of the Client, to ensure that It Ia functioning as dasig ned C. Innovative Services Team Tha Services Team will have the following resources available for this project: t. System Engineer: The System Engineers) shall work with the Client on software setup and configuration as well as installations, network connections, and Infrastructure confi9 uration. 2. Project Manager: The Project Manager is assign¢d to provide project management, resource management, risk mitigation and issue management. The Project Manager is the single point of contact throughout the implementation to coordinate work plans, schedules, and teams' work. The Project Manager will manage day-to-day operational aspects and ensure deliverables are met within a timely manner and according [o the mutually agreed project plan. srnremErcr or wonx- i,.,.ow�Ha in�enau. i�eeme..�.a CAO iii innovative D. Client Implementation Team 1. Libmrian Lsad —Works closely with Consultant to ensure requirements era complete and representative of the needs of the Library. Tha Librarian Lead will coordinate with key members of the team as required. 2. Technical Lead -Will be responsible for assisting with Client responsibilities related to system level duties required by Client. E. Implementation Assumptions 1. During and after implementation of IPA, the Client may identify software defects, or additional desired functional requirements. Client shall be responsible for working within Innovative's normal established support and enhancement request processes to report issues or provide input on additional desired functional requirements. 2. If the Client is not an existing Innovative Telaforms user, Innovative must install the mySOL TNS database on the Client's Sierra server. 3. Client must provide the IPA configuration and profiling information. Client will use settings which era closest to what they currently have in place with their existing notification system. The Innovative IPA outbound configuration and profiling Information can be summarized as: i. Which voice should be used for each IPA message: male or female voice? ii. What caller ID number should be used for phone calls? This must be an actual phone number that the Client has, but it does not need to be connected to a phone line. It is recommended that Client selects one of [he available phon¢ numbers that will be off¢retl for their area code rather than porting over any existing notification process phone number because of the time it will take to port the number and the downtime [his will cause for phone notices. The Client cannot use the phone number while porting is in progress. iii. What caller ID name should ba used for phone calls? This name will display along with the phone number when calling the patron (e.g., Innovative PL - 555-555-5555). Nofe: there is a 'I5-character limit including spaces for the Caller ID name. iv. Complete text for each IPA message that will be usetl. Up to t00 individual branch Hold Pickup messages may be configured within the scope of this SOW. Any branches adtled after completion of Services will ba subject to a new SOW. Changes to messages after configuration may incur additional charges. For example, "H PO: "This is your public library calling, our records Indicate a borrower at this number has materials which era now past due, please return them so that others may use them. Thank you. Repeating. This is your public library calling, our recortls indicate a borrower at this number has materials which are now past due, please return them so that others may use them. Thank you. Goodbye." v. Client must allow Internet access inbound to the Sierra App Sarver on TCP port '103'I from the following source IP adtlress ranges: �. 199.292.248.0/22 (primary protlucdon - NJ) Page 2 of 8 STATEMENT OF WORK —Innovative Intartacas Incorporated Page 3 of 6 2. '108.6'1.2'l.'145/26 (lab - NJ) 3. 66.63. f 67.16/28 (secondary production fail over -Chicago). vi. Any adtlitlonal Information necessary to complete installation and implementation srnremENr or woRx- i,,.,o.,a�,... �„�ene�: h�o rw-�� cno ova t i () F. Pees and Payment Terms Fees for Services delivered under this SOW will be charged on a fixed price basis as set forth in the Innovative Pricing Exhibit EST-INC15360 attached herewith and are made in good faith based on the activities, approach, and assumptions contained within the SOW. Payment terms for this SOW are as set forth in the Master Professional Services Agreement. Any additional Change Requests, as mutually accepted between the Parties through execution of a Change Order, will be performed at a blended rate of $200 per hour for all resources. Additionally, Client is responsible for all reasonable out-of-pocket costs and expenses incurred during this SOW with receipts and supporting documentation of such expenses provided by Innovative. Pricing assumes that deliverables in this Statement of Work are completed within six months or additional Services fees will apply. IN WITNESS WHEREOF each party has caused this SOW to be executed by its duly authorized representatives. AGREED: Client Innovative Collier County Board of County Commissioners for and on behalf of Collier Innovative interfaces incorporated County Public Library By: By: Name: Name: ,e'IK iAu t0 Title: Title: P -® Date: Date: l , , STATEMENT OF VJORK— Innovative interaces Incorporated Exhiblt C Pricln9 Exhiblt Additional T¢rms; t. Fees. Payments to Innovative are due upon receipt of a proper Invoice and In compliance with Chapter 298, Fla. Sta[s., otherwise known as the "Local Govern mant Prompt Payment Act." Any late fees shall be pursuant to Section 2t 8.74, Fla. Stet. [Approvetl Quota follows] Page 11 of 31 �,q� iii innovative Part of Clarivate Innovative Interfaces incorporafetl 3133 W. Frye Rtl. SUlte 400 cnantller o.z as2z6 Unitetl States B111 To Colllar County Public Library 2386 Orange Blossom Or. NaPlas FL 34109 United States Ship To Colllar County Public Library 2386 Oran9 Blosaom Or. Naples FL 34109 Untlatl States Pricing Exhibit Date B/26/2022 puete# EST-INCt5380 wy.n.n<r..,..a Selao Rep Tecbnleal Gontaet se. teas Exptree P^b o; y 2,6e0.009 n004 {aervuce¢). Lyon ^e—� _. _. ._ .. Net 30 Wendell audar CU0256 Cdller County Public Llbna... «pl t ratrzoaa QVrranpy VS Oo//ar �1,999.99999995 � �����2.000.Op -- 1- Total Fads US$2,000.00 CAO Innovative Innovative Intartacas Incorporated Address 3733 W. F a Rd., Suite 400, Chandler AZ 85226 Innovative Point of Contact Dennis Carter, Director 8. Sales Account Manager Phone: 734-5727340 Email: dennis.cartarCr�ciarivate.com Cllant Collier County Board of County Commisslonars, FL for and on behalf of Collier County Public Library Division Atldress 2385 Orange Blossom Dr. Na less FL 34709 Customer No. CU0256 Effective Date January 7, 2023 Initial Tarm BO Months INNOVATIVE INTERFACES INCORPORATED SUBSCRIPTION LICENSE AGREEMENT This Subscription License Agreement ("Licens¢ Agreement") is entered Into by and between Innovative I ntertacas Incorporated, a California corporation ("Innovative"), and the party Identified as Client below ("Client" or "County"),apolitical subdivision of the State of Florida, (collectively, the "Parties", as of the "Effective Date" also set forth below. 7. Definitions. "Go -Live Date" means [ha Client's first use of the Software in a production environment. "GTCS maana the Innovative Intertaces Incorporated Subscription License Agreement General Terms and Conditions in Exhibit B. "Support Terms" means the Innovative Intartacas Incorporated Maintenance antl Support Terms and Conditions In Exhibit C. "Hosting Terms" means the Innovative Intertaees Incorporated Hosting Terms and Conditions in Exhibit D. 2. General. Innovative and Client agree that this License Agreement is a binding agreement between the parties and is govarnatl by the GTCs, Support Terms and, if the attached Pricing Exhibit intlicates that Client has purchasetl hosting services, then the Hosting Terms, all of which are matle a part hereof. This License Agreement, the GTCs, Support Terms, Hosting Terms, if applicable, and all other exhibits, schedules and terms and conditions referenced by or in this License Agreement, the GTCs, Support Terms or Hosting Terms together constitute the "Agreement." Client acknowledges and agr¢as that it has had the opportunity to review the Agreement, including without limitation, the GTCs, Support Terms and Hosting Terms, prior to the execution of this License Agreement. Unless otherwise specified, capitalized [arms in this License Agreement have the same meaning as those in the GTCs. This Agreement is governed by and interpreted in accordance with the internal substantive laws of the States of Florida, without regard to any other laws that would require the application of the laws of another Jurisdiction. Application of the U.N. Convention on Contracts for the International Sale of Gootls is hereby excluded. In consideration of Innovative's continued grant to Client of subscription licenses to the Software as described within Exhibit A, Client acknowletlgas, and the parties agree, that all other existing software subscription agreements and associated purchase ortlars between the parties for the software identified in Exhibit A ("Prior Subscription Agreements)"), will be tleemed to be immediately terminated by the parties' mutual written agreement and all such software subscriptions under the Prior Subscription Agreement(s), and as Identified in Exhibit A, will be tleamed Software (as defined in the GTCs) licensed and supported under the terms of this License Agreement. To the extant Cllant remains in possession of any proprietary Innovative documentation or materials subject to [he Prior Agreements Cllant agrees that it shall continue to keep such documentation and materials confidential pu reuant to the terms of the Agreement. EXH161T5 TO LICENSE AGREEMENT Page 1 of 17 �<�.a.o A PRICING EXHIBIT 6 GENERAL TERMS AND CONDITIONS C MAINTENANCE AND SUPPORT TERMS AND CONDITIONS D HOSTING SERVICES TERMS AND CONDITIONS [SIGNATURE PAGE TO FO LLOWj Page 2 of 17 Cqp In witness whereof, the parties have executed this Agreement by their duly authorized representatives as of the Effective Date. Client _ _ VCollier County Board of County Commissioners Innovative Innovative Interlaces incorporated for an on behalf of Collier County Public Library s: By: � (� _ Name: --- —� Name: r- -- i C„Ji Title: Title. - Date: Date: ATTEST: Crystal K. Kinzel, Clerk of the Circuit Court And Comptroller Dated: (SEAL) Approved as to Form and Legality: County Attorney Print Name INNOVATIVE WITNESSES: X First Witness Type/Print Witness name a - - Second Witness TypelPrint Witnus name Page 3 of 17 ExM1ibit A Pricing ExM1iblt f. Fees. Payments to Innovative ere tlue upon receipt of a proper invoice and incompliance with Chapter 2'18, Fla. Stets., otherwise known as the "Local Government Prompt Payment Act." Any late fees shall be pursuant to Section 2'18.74, Fla. Stet. 2. Term. Subject to the early termination provlslons set forth in [he GTCs, this Agreement will be effective far an initial term of five (5) years following the Effective Date (the "Initial Term"). This Agreement may be renewed for an additional one-year term (being a "Renewal Term" and, together with the Initial Term, the '•Term') upon the Client providing written notice to Innovative of no[ less than ninety (90) days' prior to [he and of the Initial Term. Subscription fees through the Initial Term are those as set out hereunder, which for [he avoitlanca of doubt inclutle an annual Increment of 2 %over the previous year. If renewed antl commencing year six (8) and thereafter Innovative will have the right to increase rates hereunder by a maximum percentage equivalent to 5% over the previous year. [APPROVED SOFTWARE LICENSE QUOTE FOLLOWS THIS PAGE] Page 4 of 17 cnc> ._. . 111 innovative Part of Clarivata Innovative Interlaced Incorporetetl 3133 W. Frye Rtl. Sulta 400 Chantllar AZ 85226 Unitetl $tBt05 BIII To Collier County Boartl of County Commisaionara Ann: Accounts Pa able 3299 Tamiami Trl Ste. TOO Napples FL 34112-5�49 Unitatl Stat¢s unl'n; tea Licenses Slarra Cloutl Hosting cat`riaon Subscrlptlon L tense - Ta... License - Ta... License - Ta... Ship To Collier County Public Library 2385 Orang Blossom Or. Na les FL 34109 t,nPatl stataa 1 U limilaa SIP2 Licenses Renewal Quote Ouote # a0-INC33061 Tarme Nct 3p Po # Renewal 8[aN pate l/1/2023 Renewal End pate 1231/2p23 sea coca eel 1 Slarra CI tl Hosan9 Incluaae Cloud Hosting Itb Standard Backup Tor Slarra proaucllon only t oipuiionin inPPt�r la a a pipaaa:van a cisl%t:,s abbout wllecttony� nagamant entl library MIII nlnlum.lEnablas stanM10 aarus[ spaend and r I a to matcM1 patron aUlvl� Be Sre 1 t ands. Kay capabilities Include: uloma[atl r siam reammmenaauonsNessaa on manes, I��-apaclne tnrasboias, automanc data uptlaY s every 24 bouts. Vaar t of 8: t January 2(Y23 - 31 Cecambar 2023 Yaar 2: $63.324.9� Yaar 3: $84,981.48 Yaar 4: $86.681.31 Yaar 5: $88,425.t3 B INFORMATION 16 CONFIOENrIpL BETWEEN TXE PARTY IOENTIFIEO AS'aILL TO'ABOVE MIO INNOVATIVE MTERFACE9 2. Tameara no�lnclu�in ua aglu�oteU p�iluim�Il ePPlluYle. may Es eFe�e�Ewyl noreYm e�[l eropdn[ar6nwlGneetle maxb�Np eaM1wara. Currency US Oo//ar 39.054219 Yeas � ��39.p54.22 22,Y81.a30... Yes 22.T81.83 1 s,ass.2sa... I v 6 I 1s,assao Total US$82,692.t5 AO Exhibit B Innovativ¢ Int¢rtaces Incorporat¢d Su bscrlptlon License Agreement Gen¢ral Terms and Conditions Unless otherwise specifietl, capitalized terms in these GTCs have the same meaning as those in the License Agreement. f. Software License. a. Subject to the terms and conditions of this Agreement, including without limitation Client's payment of ail of the Fees (defined below) due hereunder, Innovative M1eraby grants to Client a limited, nonexclusive, non-sub- Ilcensable, nontransferable license to use the components of its software applications, modules, and other protlucts that are listed in the Pricing Exhibit to the License Agreement (collectively, the •'Software"). The license granted in the preceding sentence will ba for the duration of the term of this Agreement and will automatically expire upon the termination or expiration of this Agreement or as otherwise specified in this Agreement. b. Client and, where applicable, Its Authorized Users (defined below) may use the Software (including any Client Configurations) (i) only for the management of the library and for servicing its patrons (including permitting Authorized Users [o search library catalogues), and not on an outsourced basis, as a service bureau, for resale, or similarly on behalf of or for the dir¢ct or indirect benefit of third parties, and (ii) only in accordance with the other terms of this Agreement. Client will be responsible for Its Authorized Users' compliance with the terms hereof. Without limiting the foregoing, Client agrees that it and its Authorized Vsers will: (i) comply with all applicable laws regarding the transmission of data, including. without limitation, any applicable export control and data protection laws; and (ti) not use the Software for illegal purposes. c. Subject ko Section � � (Client Configurations), other than Innovative, no one is permitted to copy, modify, reverse engineer, dacompile, or disassemble the Software, create derivative works thereof, or separate the Software into its component files. All rights to the Software that era granted to Client In this Agreement are limited to [ha object code versions of the Software antl in no event will Client be deemed to have any right, title or interest in the source code of the Software. d. The Software may be usetl by the base number of Client's worldwide employees, third -party autl{tors, agents end contractors ("Authorized Users") set forth in the Pricing Exhtbit to the License Agreement for such Software and such additional Authorized Users as may be hereafter Identified to Innovative by Client for which Client pays the additional Faes referred to in Section 4(a) of this Agreement. Each Authorized User license is allocable to a single full-time user of the Software antl may be transferred to another user only on a full-time basis. Authorized User licanse(s) may not be shared on a part time or concurrent user basis. For the avoitlanca of doubt, Client patrons do not fall within the restrictions of Authorizetl Users. e. The license granted to Client pursuant to this Agreement will include, at no additional cost, a license to use all new scheduled major releases, service pack releases, antl hot fixes of the Software offered generally by Innovative to its clients during the term of this Agreement (collectively, "New Releases"). "New Releases" do not Include new or additional modules, applications or other software now or hereafter offered by Innovative, each of which require a separate license antl payment of additional license fees. The term "Software" will ba deemed to include New Releases. Except to the extent that Client purchases Innovative's hosting service, additional fees at Innovative's than -prevailing professional service rates will apply for implementation of New Releases. f. Innovative offers support for the Software in accordance with the Support Terms, the terms of which are Incorporated by reference herein. g. Tha license granted hereunder grants Client the right to use a single production instance (copy) of the Software and up to two (2) additional instances (copies) of the Software for non -production use at no additional charge. All copies of the Software are subject to the terms of this Agreement. Non -production use includes [raining, development, tasting. quality assurance, staging or preproduction providatl that the copies of the Software are not used in a production environment or as a backup to production. Except to the extent expressly set forth in a License Agreement, this license grant tloes not provide Client with any rights to hosting services. Page 5 of 17 <n r� h. It, during the Tarm of this Agreement, Innovative discontinues any Software, Shan Innovative will deliver to Client notice to such effect no less than twelve ('12) months prior to the discontinuation of such Software and Client's annual Fees will be decreased apro-rated amount equal to the annual line item Fees for that Software starting in the next years' annual invoice. 2. Acceptance. Following the execution of the Agreement by [he parties, Innovative will deliver the Software, in its preconfigured, out -of -the box format, to Client (i) via the Internet, if Client has purchased hosting services from Innovative pursuant to the Hosting Terms or (Ii) by making it available to Client to downloatl via an FTP site or other mutually agreed upon method, if Client has not purchasetl hosting services from Innovative pursuant to the Hosting Terms. Client will ba deemed to have acceptetl that the out -of -the box Software has been delivered upon initial download or receipt. 3. Ownership. a. All Intellectual Property Rights (defined below) in the Software and also including, without limitation, all Improvements, enhancements, modifications, Client -specific upgrades, or updates to the Software, developed by either party, solely or jointly <collectively, "Innovative Products"), will ramaln the exclusive, sole and absolute property of Innovative or the third parties from whom Innovative has obtained the right to use the Innovative Products. Intellectual property creatatl by Innovative pursuant to this Agreement, or any other party at the request or direction of Innovative, will be owned by Innovative. "Intellectual Property Rights" means any and all intellectual property rights existing from lima to time under any law or regulation, Including without limitation, patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and affect worldwide. Client hereby assigns to Innovative ell right, title and interest in any feedback and suggestions it provides to Innovative regarding the Software or other protlucts commarcializ¢d by Innovative now or In the future. This Agreement does not convey to the Client any interest in or to the Innovative Products or any associated Intellectual Property Rights, but only a limited right to use the Software to the extant set forth in this Agreement, which right is terminable in accordance with the terms of this Agreement and is otherwise subject to the limitations, restrictions, antl requirements contained herein. IF Client configures or otherwise modifies the Software using an API licensed hereunder, Client will also have a license to use such configurations or modifications as part of the Software on the terms set forth in Section 'I. Rights not expressly granted to the Client are hereby expressly reserved by Innovative. b. For purpose of this Agreement, as between Innovative and Client, any Intellectual Property Rights fn the Innovative Products to the extant owned by any third party will ba and remain the exclusive property of such third party. The Software may include third -party software and protlucts, which are described in the documentation antl/or Specifications made available to Client by Innovative, and any thlrtl-party pass -through terms relating to such third- par[y software and products are tdentitied therein (or by other mod¢ of disclosure). c. Except as expressly stated herein, Client will exclusively have and retain all right, title and interest, including all associated Intellectual Property Rights, in and to data thak Client enters into the Software or disclosed by Client to Innovative in its pertormance hereunder ("Cllant Data"), and, as between Client and Innovative, such Client Data will remain the sole property of Client. Client hereby grants to Innovative a license to use Client Data (I) to process the Client Data pursuant to Client's business raquiramants, (ii) for maintenance and support of the Software, (iil) to collect and use aggregate, non-identifyfn9 and anonymized data, and (iv) for research and development purposes. Client acknowledges end agrees that it will have no rights in any protlucts or services created or sold by Innovative or its affiliates that use any of the Cllant Data in the manner set forth in (iii) or (iv) of the preceding sentence. To the axteni that appllcabla law requires any permissions or authorizations to have been obtained prior to submission of Client Data to Innovative (including without limitation from individuals to whom the data pertains), Client warrants and covenants that it (and its Authorized Users, as applicable) will have first obtained the same permissions or authorizations prior to transmitting such data to Innovative. As limited by Client's sovereign immunity set forth in Florida Statutes, Section 768.28, Client will defend, indemnity and hold harmless Innovative in the ¢vent of any third -party claim arising from a breach of the aforesaid warranty and covenant. 4. Fees; Expanses; Payment Terms. a. In consideration of receiving a limited license to use the Software, Client will pay the fees set forth in the Pricing Exhibit to the License Agreement (She "Peas") on the terms set forth therein and in compliance with Chapter Page 6 of 17 CAO 2'18, Fla. Stet., otherwise known as the "Local Government Prompt Payment Act.". Initial invoicing under this Agreement will occur when the Software is initially delivered to Client per Sectign 2; subsequent renewal Invoices will be sent to Client prior to the data such payment Is due. Invoices for any Ranawal Terms may be provided to Client up to 90 days prior to the effective date of such Renewal Term. Client will notify Innovative in writing if Clint hereafter requires additional Authorized Users or additional Software modules, and will pay the fees for such additional Authorized Users or additional Software modules in accordance with the terms set forth on the Invoice for such fees. The Software may, from time to time, electronically transmit to Innovative reports verifying the type and number of Authorized Users, and Innovative may utilize license keys or other reasonable controls to enforce Authorized User license limitations. Cllen[ will cooperate with Innovative in all such efforts. b. Fees for additional Third -Party Software, hardware and services are subject to change and will ba quoted at the then current rate. c. All Fees are exclusive of all taxes and similar fees now in force or enacted in the future or Imposed on the delivery and license of the Software, all of which Client will be responsible for and will pay In full, other than taxes based on Innovative's net income. Client will provide Innovative its state issued Direct Pay Exemption Certificate (or equivalent cartiflca[e), if applicable, upon execution of this Agra¢mant. In the event an applicable taxing authority, as a result of an audit or otherwise, assesses additional taxes for gootls or services sold under this agreement at any time, Client and not Innovative will be solely responsible for payment of such additional Faxes and all costs associated with such assessment, including without limitation, interest, penalties and attornay's fees. Additionally, should Client be required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Innovative hereunder, then the sum due to Innovative will ba increased by the amount necessary to yield to Innovative an amount equal to the sum Innovative would have received had no withholdings or dad uctions bean made. Collier County, Florida as a political subdivision of the States of Florida, is exempt from the payment of Flroida sales tax to its Contractors under Chapter 2'12, Florida Statutes, Certificate of Exemption lL85-80'1596653'1 C-'I d. Whara this Agreement establish¢s a due data fora payment and/or a recurring method for payment, payment will be due and payable on such due date and upon receipt of a proper invoice and in compliance with the Local Government Prompt Payment AM. All amounts stated herein and all Fees determined hereunder are in U.S. Dollars, unless otherwise required by applicable law. e. Any invoices not paid when due will accrue interest at [he rate set forth in Floritla Statutes, Section 2'1 H.74. 5. Limited Warranty. a. Innovative warrants, solely for the benefit of Cllant, that: i. It has the corporate power and authority to enter into this Agreement and to grant Client the license to the Software hereunder: and ii. The Software will conform in all material respects to the applicable technical docu menfation for the Software provided to Client by Innovative and expressly identified by Innovative as the specifications for the Software (collectively, the "Specifications"). b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR (i) THE WARRANTIES EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY WARRANTY, REPRESENTATION OR CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SV BCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON -INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SVBCONTRACTORS AND SUPPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL SATISFY CLIENT'S REQUIREMENTS OR THAT THEIR VSE OR OPERATION WILL BE ERROR OR DEFECT - Page 7 of 17 ArJ FREE OR UNINTERRUPTED OR AVAILABLE ON THE INTERN ET, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5(a), THE SOFTWARE, INCLUDING ALL CONTENT, IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES REGARDING QUALITY, PERFORMANCE, SVITABI LITY, TIMELINESS, SECURITY, DV RABILITY, INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR SELECTION, USE, QUALITY, PERFORMANCE, SUITABI LITV AND RESULTS OF USE THEREOF, INCLUDING ALL CONTENT GENERATED THROUGH USE THEREOF. c. As the exclusive remedy of Client for a breach of the limited warranties set forth in Section 5, for any error or other defect for which Innovative is solely responsible, Innovative will, a[ Its option, either (i) correct or repair the Software, or (il) accept termination of this Agreement and refund the unused balance of any prepaid Fees for the Software, prorated for the period commencing on the date the error or defect was reported by Client to Innovative and continuing throughout the balance of the period to which such Feas apply. Nona of the above warranties or remedies in this Section 5 will apply with respect to any Software that has been damaged or modified by any party other than Innovative, or used in a manner for which the Software is not desig nad or intended. 6. LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER, EVEN IF INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEV WERE OTHERWISE FORESEEABLE. INNOVATIVE'S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE WILL SURVIVE FAILURE OF ANY EXCLVSIVE REMEDIES PROVIDED IN THIS AGREEMENT. Indemnlfieation. a. If a third party files a legal action in a court of competent jurisdiction against Client claiming the Software, as delivered to Client by Innovative, directly infringes such third party's U.S. copyright or U.S. patent, Innovative will defend Client against such legal action, provided that Client promptly notifies Innovative in writing of the legal action and fully cooperates with Innovative in the defense of such legal action. Innovative will also indemnify Client from all damages and out-of-pocket costs (including reasonable attorneys' fees) finally awarded by a court of competent Juristliction in connection with any such legal action, or agreed to by Innovative in a settlement. Innovative will control all aspects of the defense and conduct the defense and any settlement negotiations in any such third -party legal action. This indemnification is limited to the Software in the form delivered to Clian[ and do¢s not cover claims arising from (x) modifications thereto not made by Innovative, or, even if by Innovative, at the request of Client; (y) use of the Software In combination with other software or items not provided by Innovative, or (z) third party modifications (including addition of source coda) to the Software. b. As the exclusive remetly of Client under the limited Indemnity sat forth in Section 7.a, if the use of the Software by Client is enjoined, Innova[Ive will, at Its sole option: (i) obtain for Client the right to continua to use the Software, (ii) modify the Software to remove the cause of the legal action, (iii) replace the Software at no additional charge to Client with a substantially similar, non -Infringing product, which will then be subject to the provisions of this Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees allocable to the infringing component of the Software, prorated for the period Client's use of the Software is enjoined. Nona of the above warranties or remedies will apply with respect to any element of the Softwar¢ that has been modified by any party other than Innovative, or used In a manner for which the Software is not designed or intended. This Section states In novativa's entire liability and Client's exclusive remedies for infringement of intellectual property rights of any kind. 8. Confidentiality. a. Client acknowledges that all documentation, audit reports, technical information, software, Specifications and other information pertaining to the Software, and/or Innovative's business interests or activities, financial Page 8 of 17 information, methods of operation or customers that are marked and disclosed by any party to Client in the course of partorming this Agreement or any ensuing business arrangement shall be treated as the confidential and proprietary Information of Innovative and, pursuant [o Florida Statute § 675.045, will be regarded as a Trade Secret. Innovative acknowledges that Client Data and other proprietary Client materials marketl as confidential shall be the Confidential Information of Client. The Information and materials described in the preceding sentences is referred to herein as "Confidential Information." Notwithstanding the foregoing, the farm "Confidential Information" does not Include information pertaining to a party if: (i) such information is generally known to the pu bite through no Improper action or inaction by the other party, (II) was, through no Improper action or Inaction by the other party, in the possession of the other party prior to the Effective Date, (iii) rightly disclosed to the other party by a third party if such dfaclosure does not violate the terms of any confidentiality agreement or other restriction by which such third party may be bound, or (iv) although falling untler the definition of Confidential Information provided herein, the material Is judicially determined not to be exempt under the Florida Public Records Ac[, Chapter 7 79, Fla. Stet. b. All Confidential Information will ba held in confidence and may not be copied, used or tlisclosatl other than as set forth in this Agreement. Each party must take all reasonable efforts to protect the confidentiality of and prevent [he unauthorized use of any such Confidential Information by any third party within such party's control. Each party may disclose Confidential Information (I) to the receiving party's employees and contractors required to have access to such Confidential Information for the purposes of performing this Agreement or using the Software, provided each party hereto notifies Its employees and contractors accessing such Confidential Information of the confidentiality obligations in this Section 8; or (ii) iF such disclosure is in response to a valid order of any court, statute, or other governmental hotly ("Ortlar"), in which avant, the disclosing party must use reasonable efforts to provide the other party with prior notice of such Order, to the extent legally permittetl to tlo so and in accordance with the Order. Excerpt as provided herein, In the event Innovative marks or designates any records as comprising Confidential Information, which the Client does not believe meets the definition, prior to providing such information untler a public record request it shall first notify Innovative that it has received a request for the records) and that it will release the records) as not confidential but will First allow Innovative an opportunity to seek a protective order as to those records. Confidentiality of Information contained in this agreement Is subject to the requirements of the Florida Public Records Ac[, Chapter t t9, Fla. Stet., the Florida Sunshine Law, Chapter 286, Fla. Scat and Florida Statute § 875.045 in the protection of Trade Secrets. c. Recognizing any improper use or disclosure of any Confidential Information by either party may cause the party whose Confidential Information is improperly used or disclosed irreparable damage for which other remedies may be inadequate, a party whose Confidential Information is improperly used or disclosed will have the right fo petition for injunctive or other equitable relief from a court of competent Jurisdiction as appropriate to prevent any unauthorized use or disclosure of such Confidential Information. d. If the parties have previously executetl a nontlisclosure agreement ("N DA"), any Confidential Information exchanged pursuant to such NDA will remain confidential, and will as of the date of the execution of this Agreement be tleametl Confidential Information within the meaning of this Agreement and also be governed by the terms hereof. 9. Term; Tarm lnatfon. a. The term of the Agreement is set forth in the Pricing Exhibit to the Licansa Agreement b. If either party hereto fails to perform or comply with any material term or condition of this Agreement, specifically Including Client's failure to pay any Fees (such party being the "Breaching Party"), and such failure continues unrametlied for 30 (thirty) days after receipt of written notice, the other party may terminate this Agreement. Notwithstantling the foregoing, if the Breaching Party has in gootl faith commenced to remedy such failure and such remedy cannot reasonably be completed within such 30-day period, than the Breaching Party will have an additional 30 (thirty) days [o complete such remedy, after which period the other party may terminate this Agreement if such failure continues unremetlied. c. Client may terminate this Agreement at any time during the Initial Term effective as of the data of She next annual anniversary of the Effective Date if Client's budges (funding) is eliminatetl and Client provitles written evidence to Innovative of the elimination of Client's budget (funding. Page 9 of 1'] d. Except fora termination by Client pursuant to Section 9. b., and unless as otherwise set forth in this Agreement, upon any termination of this Agreement, all prepaid Fees will ba nonrefu ntlable and Client will ba responsible for all Fees and expenses for the Software provided prior to and as of the date of termination. Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the terminating party may have under the terms of this Agreement. Upon termination of this Agreement, the rights and duties of the parties will terminate, other than the obligation of the Client to pay Faes and costs in accordance herewith, and the obligations of the parties pursuant to Section t.c. (Software License), Section 3 (Ownership), Section 4 (Fees; Expenses; Payment Terms), Section 6 (Limitations on Llablliry), Section 7 (Indemnification), Section 8 (Confidentiality), Sections 9. tl. and 9.e. (Termination), Section t t (Client Configurations) and Section t 3 (General). within 30 (thirty) days of receipt of a written request following a termination of this Agreement, each party must return or destroy all Confidential Information of [he other party, as requested in writing by the other party. Notwithstanding the foregoing, a party will not be obligated to destroy tlata containing Confidential Information of the other party when it would ba commercially impracticable for the receiving party to do so (for example, when Confidential Information is eontainetl in a -mall stored on backup tapes or other archival media), but for so long as such receiving party is in possession of such Confidential Information of the other party, the terms of Section 8 (Confidentiality) hereof will continue to restrict the receiving party's use or disclosure of such Confidential Information. Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms. ¢. Following termination of this Agreement, Innovative has no duty whatsoever to deliver to Cllant any parts of Its programming, data motlel, or any other information regarding which Innovative claims a proprietary or Intellectual Property Right. To the extent that Innovative is request¢tl to perform any services for Client In connection with the termination of this Agreement (inclutling without limitation providing Client with a copy of Client Data in a commercially-stantlartl format to be agreed upon by the Parties), such service will be performed pursuant to a written statement of work under a separate professional services agreement and paid Tor by Client, applying Innovative's then -current rates for daily/hourly work, as the case may be. '10. Third Party Software. The Software may contain thirtl-party and/or "open source" code provided under third -party license agreements. The terms antl conditions of such third -party license agreements will apply to such source cotle in lieu of these terms, where applicable, and Client is responsible for compliance therewith. A listing of certain third -party and/or open source code containetl in the Software, the respective license [arms applicable to such code, antl certain rela[etl notices are included in the documentation and/or Specifications made available to Client by Innovative. Except as required for the authorized use of the Software as contemplated herein, Client may not use any name or trademark of any supplier of third party or open source coda without such party's prior written authorization. t �. Client Configurations. Client will be permitted to use one or more application programming intertaces (APIs) matle available by Innovative to configure the Software hareuntler in accordance with the Specifications (such configurations or other motlifications, "Client Configurations"). Client will not use any other API to modify or configure the Software. No API may be used to create any Client Configuration that, in whole or in part, mimics any material fu nctlonaliry of any software or service developed or marketed by Innovative or that would reasonably ba deemed competitive to any software or service developed or marketed by Innovative if the Client Configuration ware to be released to the public market. Innovative disclaims all representations antl warranties, express or Implietl, regarding Client Configurations and assumes no Ilabiliry whatsoever with respect to Client Configurations. As limited by Client's sovereign Immunity set forth in Florida Statutes, Section 768.28, Client agrees to indemnify and holtl harmless Innovative from all damages and out-of-pocket costs for any thirtl-party action based on a claim that any Client ConFg uration Infringes a copyright or a patent, or constitutes an unlawful disclosure, use or misappropriation of another party's trade secrets. t2. Back -Up Activities. Except to the extent that Client purchases Innovative's hosting service or back-up services, Client has the sole responsibility for the maintenance and protection of all data input into the Software, Including, without limitation, the making, storing antl security of back-up and archive copies of such tlata and the Software (collectively "Back -Up Activities"), and Client acknowledges Innovative will not perform any Back -Up Activities for or on behalf of Client. t3. Data Privacy. Innovative follows Industry standard privacy practices, available at /vnw "i co / Page 10 of 17 C'A(1 14. Security. Innovative holds the internationally -recognized ISO 2700'1:20'13 standard for its information security management system. Security and compliance Is a shared responsibility between Innovative and the Client. Innovative operates, manages and controls the components from the host opera[Ing system layer to the networking layer, if Hosting is identified in the Pricing Exhibit. All physical security is managed by Innovative's hosting partner. The Client assumes shared responsibility and management of the Software. Client should take into consideration the Client Configurations and any third -party application they choose and their responsibility depending on any applicable laws antl ragulaiions. Innovative takes reasonable and appropriate administrative, technical and physical measures to protect the confidentiality, Integrity and availability of Client's sensitive information. 15. General. a. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party In the event of any breach hereunder will not ba deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. b. Intlaoendent Contractor. Client acknowledges that Innovative is at all times an independent contractor and that Client's relationship with Innovative is not one of principal antl agent nor employer and employee. No Innovative personnel will ba entitled to participate in any compensation or benefits plan of Client. c. Force Maleura. Neither party will ba liable or responsible for any delay or failure in performance if such delay or failure is caused in whole or in part by fire, flootl, explosion, power outage, war, strtka, embargo, government regulation, civil or military authority, hurrica n¢s, severe wind, rain, other acts of God, acts or omissions of carriers, third -party local exchange and long distance carriers, utilities, Internet service providers, transmitters, vandals, or hackers, or any other similar causes that may be beyond its control (a "Force Majaura Event"). d. Notice. Any notice or communication required to ba given by either party must be in writing antl made by hand delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such communication. Unless otherv.�ise Instructed in writing, such notice will be sent to the parties at the addresses set forth on the first page of the License Agreement. All communications pursuant to this Section will be deemed delivered as follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service; or (b) when electronically confirmed, if delivered by facsimile. e. Invalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will, as to thatjurisdiction, be ineffective to the aMant of such invalidity, Illegality or unenforcea bility, without affecting In any way She remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. f. Countaroarts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or similar format for scanned copies of documents) or facsimile slg nature, each of which when so executetl antl dellveretl will ba tl¢¢metl an original, but all such counterparts will together constitute but one antl the same Instrument. g. Publicity. Except as provitlad In this Section, Walther party will make any press release, public statement or other disclosure regarding the terms of this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld. h. Assignment. Neither party has the power to assign, license, or sub -license any of Its rights or obligations hereuntlar without the prior written consent of the other party, which will not be unreasonably withheld. Any assignment, license, or sub -license attempted without such consent will be void. Notwithstantling the foregoing, a party may assign this Agreement without the other party's consent (i) as part of a corporate reorganization, consolidation, merger, or sale of substantially all of Its assets or capital stock; or (ii) to an Affiliate of such party provided that any such assignment will not release the assigning party from its obligations under this Agreement. i. Insurance. Innovative is to provide Client proof of insurance as follows: �. Technology Errors ffi Omission: $'I,000,000 single limit; 2. Cyber Liability - $'I,000,000 single limit. Page 11 of 17 CAp Collier County Board of County Commissioners shall be listed as the Certificate Holder. j. Goveminn Law and Venue. ThYs Agreement shall be interpreted under and its performance governed by the laws of the State of Florida. Any suit or action by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. k. Public Entity Crime. By execution of this Agreement, Innovative acknowledges to comply with the terms of Section 287.133 of the Florida Statutes and inform the County of [he conviction of a public entity crime. I. Public Records Compliance. By executing and entering into this Agreement, Innovative is formally acknowledging without exception or stipulation that It agrees to comply, at its own expense and in so far as they are relevant to Innova[iva's pertormance of its obligations under this Agreement, with all federal, state and local laws, codas, statutes, ordinances, rules, regulations and requirements applicable to this Agreement, including but not limited to those dealing with the Immigration Reform and Control Ac[ of 1986 as located at 8 V.S.C. 1324, ai seq. and regulations relating thereto, as either may be amended, as well as the req uiraments set forth in Florida Statutes, §448.095; taxation, workers' compensation, equal employment and safety (including but no[ limited to, the Florida Public Records Law 119), including specifically those contractual requirements at F.S. § 119.0701(2)(a)-(b) as stated as follows: IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 1'19, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: Communications, Government S Public Affairs Division 3299 Tamlami Trail East, Suite t02 Naples, Florida 34112-5749 Telephone: (239) 252-8999 Email: Public Record Rea userra)colllercountvfl.aov The Contractor must specifically comply with the Florida Public Records Law to: 1. Keep and maintain public records required by the public agency to partorm the service. 2. Upon request form the public agency's custodian of public records, provide the public agency with a copy of the requested records or allow the records [o ba inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. 3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements era not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Contractor does not transfer the records to the public agency. 4. Upon completion of the contract and upon request, transfer, at no cost, to the public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to partorm the service. If the Contractor transfers all public records to the public agency upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency's custodian of public records, in a format that is compatible with the Information technology systems of the public agency. If Contractor observes that the Contract Documents are at variance therewith, it shall promptly notary the County in writing. Failure by the Contractor to comply with [ha laws referenced herein shall constitute a breach of this agreement and [he County shall have the discretion to unilaterally terminate this agreement immediately m. Disoute Resolution. Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between [he parties, the parties shall make good faith effort to resolve such disputes by negotiation. The negotiation shall be attended by r¢pr¢sentatives of Innovative with full decision -making Page 12 of 17 C.tZJ authority antl by Clian['s staff person who make the presentation of any settlement reached during negotiations to Client for approval. Faliing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve th¢ tlispute through Mediation before an agreed -upon Circuit Court Matliator cartifled by the State of Florida. The mediation shall be attendetl by representatives of Innovative with full tlacision-making authority and by Client's staff person who would make the presentation of any settlement reached at metlfation to the Client's board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under section 44.702, Fla. Stet. n. Waiver of Jury Trial: Governing Lanauaae. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JVRY TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hareuntlar will be conducted in the English languag¢: any translation of this Agreement Into another la nguaga will be for convenience only but will not modiry the meaning hereof. Only a written instrument duly executed by both parties may modiry this Agreement. o. Entire Agreement. This Agreement contains the entire understanding of the parties, and supersedes all prior agreements antl understandings relating to the subject matter hereof, provided that nothing herein will diminish or affect any separate services agreement or statements) of work issued thereunder. The parties represent that they are sophisticated commercial entities, have had the opportunity to consult with [heir awn counsel, and have included in this Agreement all terms material to the parties' rights and obligations with respect to the subject matkar hereof and intentl this document to be the final expression of their contractual intent. The parties further represent antl acknowledge that communications exchanged between the parties during contract negotiation (including, without limitation, requests for proposal ("RFPs'") and Innovative's responses to such RFPs; quastionnalras and responses to same, quotes) do not constitute a part of this Agreement. Purchase orders, work orders or other such documents submitted by Client will be for Client's internal admintstrativa purposes only antl the terms and conditions contained in any such purohase order, work order or other such document will have no force or effect and will no[ amend or modiry this Agreement. In the event of any inconsistencies or conflicts among the GTCs, a Licansa Agreement or any other exhibits or schedules referencetl by these GTCs, the fallowing order of priority will control: 7. License Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or referenced by the Agreement. PaF3e 13 of 17 c.y: ' Exhibit C Innovative Interfaces Incorporated Maintenance and Support Terms and Conditions These Maintenance and Support Terms and Conditions ("Support Terms") apply to the License Agreement. Unless otherwise specified, capitalized terms in these Support Terms have the same meaning as those in the GTCs. The terms sat forth herein supplement, but do not replace or modify, the GTCs. 1. Maintenance and Support. Innovative will offer maintenance and support on the terms set forth herein ("Maintenance and Support") for the latest generally available version of the Software and for certain earlier versions in accordance with Innovative's support policy. Standard Maintananc¢ and Support is included with the price for the annual license set forth in the License Agreement. 2. Error Response. Error descriptions (each an "Error"), the Error s¢verity levels and corresponding targeted response time per I¢vel are each described in the table below. The Ta rgetad Response Times in the table below identity the response times that Innovative will target for the corresponding Error, however, such Targeted Response Times are not guaranteed. 3. Error Reporting and Diagnosis. a. Client must designate a representative as the contact that will report Errors to Innovative and be Innovative's primary contact for the provision of Maintenance and Support pursuant [o the farms of this Agreement (such representative is referred to herein as [he "Client Contact"). When a Client Contact reports an Error, Innovative will use commercially reasonable efforts to diagnose the root cause of the Error ("Diagnosis"). Upon completing the Diagnosis, each Error will be classified as either a "Warranty Error" or a "Non -Warranty Error" pursuant to Section 3. b. below. Innovative will use commercially reasonable efforts to diagnose and repair both Warranty and Non - Warranty Errors as described below. b. "Warcanty Errors" are all Errors that do not qualify as Non -Warranty Errors. "Non -Warranty Errors" are Errors resulting from any of the following causes: (i) misuse, Improper use, alteration or damage of the Software; (ii) operator error; (lii) Incorrect data entry by Client; (iv) third -party software not part of the Software; (v) errors and/or limitations attributable to Client anviron ment; (vi) Client's failure to incorporate any New Release previously provided to it by Innovative which corrects such Error; (vii) modification of the Software partormetl by Client; and (viii) technical consulting services provided by Innovative ai Client's request (a. g., change orders, Integration Page 14 of 17 Gtp Severity Description Target Ras Dose Tima One -Site Down A major component of the software is in anon -responsive state t hour and severely affects library productivity or operations. A high Impact problem that affects the entire library system. Widespread s stem availabilit roduction s stem is down Two —Critical Any component failure or loss of functionality not covered in 2 hours Severity 1 that is hindering operations, such as, but not limited to: excessively slow response time, functionality degradation; error messages; backup problems; or issues affecting the use of the module or the data Three -High Lesser issues, questions, or Items that minimally impact the work 2 business days; flow or require a work around excludes holidays and weekends Four —Routine Issues, questions, or items that don't impact the work flow. Issues 4 business days; that can easily ba scheduled such as an upgrade or patch excludes holidays and weekends tlevelopment, or configuration design and implementation), unless Cllant notifies Innovative of such technical consulting services problem within the applicable warranty period set forth in the governing statement of work, change order or ag reament. Client acknowledges that the Software is intended for use only with the software and hardware described in the Specifications provided by Innovative from time to time, and Client will be solely responsible for Its adherence thereto. c. If [ha Client is hosting their Software, th¢ Client must provide direct network internat access to the Software, including any firewalls. Innovative requires such access to correct Software bugs and carry out modifications of the Software for the purpose of maintaining the Software. 4. Complimentary and Chargeable Support. Innovative will respond to all reported Errors pursuant to Section 2 above and will use commercially reasonable efforts to resolve Warranty Errors at no additional charge If Client has purchased and is current on its paymenk for Maintenance and Support; however, Innovative may charge Cllant for such effort with respect to Non -Warranty Errors according to the following process: (i) Whan the Client Contact reports any Error, prior to commencing the Diagnosis for the Error, Innovative will notify the Client Contact that the Diagnosis and repair effort will be at no charge to Client unless the reported Error is determined to be a Non -Warranty Error, in which case only the first two hours of Diagnosis will be at no charge; and (ii) Innovative will then commence the Diagnosis unless Instructed otherwise by the Client Contact. If more than two hours are required for the Diagnosis of Non -Warranty Errors, then such additional Diagnosis hours will ba charged to Client at Innovative's then -currant rate for technical services. Once the Diagnosis is complete, the Client Contact will be given the option of having Innovative proceed with repairing the Non -Warranty Error, and, if so requested, In novaHva will provide an estimate of the total cost for such effort. If agreed to by the Cllant Contact, Innovative will undertake to repair the Non -Warranty Error and charge Client for the associated technical services pertormed. 5. Tlckat Management and Escalation. Innovative manages all reported issues using a ticket management system, and provides an Internet portal for Clients to report issues. Clients may review the status of issues reported online. When an Error is either unresolved or not resolved in a timely fashion, the Client should contact Innovative representatives pursuant to Innovative's ascalatlon policy made available on Innovative's Internet portal. Page 15 of 17 L>> Exhibit D Innovative lntertaces Incorporated Hosting Services Terms and Conditions These Hosting Services Terms and Conditlons ("Hosting Terms") apply to the License Agreement if, and only to the extent that, Hosting Services era identified on the Pricing Exhibit to the Llcensa Agreement as a purchased service. Unless otherwise specified, capitalized terms In these Hosting Terms have the same meaning as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs. 1. Hosting Services. The following terms apply for all pu rposas [o Client's license to and use of the Software under the Agreement. 2. Hosting Solution. Innovative offers clients a standard cloud -based hosting option (the "Standard Plan"). Tha table below sets forth the features of the Standard Plan. This option provides industry -leading security and monitoring at a SOC t/SOC 2 Typa 2/ISO 2700t-audited datacenter by a top -tier cloud hosting provider (the "Hosting Provider'), with the flexibility to meat clients' data storage, data recovery, and information security policy requirements. To meet clients' global hosting needs, Innovative offers hosting options in datacenters located in the United States, Canada, Vnitetl Kingdom, Ireland, Australia and the Asia -Pacific region, however, Innovative reserves the right to Increase, decrease and/or relocate its tlataceniers at anytime. 3. Hosting Solution System Configuration. Tha hosting systems are configured to meat the solution requirements as per The Hosting Terms set forth on the PNcing Exhibit to the License Agreement. 4. Security Controls. a. Generally. Subject to the terms of the Agreement, Innovative implements industry -recognized best practices to prevent the unintended or malicious loss, destruction or alteration of Client's data resident In the Software. b. Network Systems Audit Loee'ne. All firewall logon activity and password changes are logged, monitored, controlled and audited. All intrusion detection and firewall log monitoring is done through services provided by Innovative and those pertinent l09 files and configuration flies are retained for ninety (90) days and can be made available upon request for audit and problem resolution, as may be required. c. Network Monitoring. All network systems and servers era monitored 24/7/365. Innovative will monitor its systems for security breaches, violations and suspicious (q uastionable) activity. This includes suspicious external activity (including, without limitation, unauthorized probes, scans or break-in attempts) and suspicious internal activity (including, without limitation, unauthorized system administrator access, unauthorized changes to its system or network, system or network misuse or program information theft or mishandling). Innovative will notify Client as soon as reasonably possible of any known security breaches or suspicious activities involving Client's production data or environment, including, without limitation, unauthorized access and service attacks, e.g., denial of service attacks. Page 16 of 17 �'AU Feature Standard 24x7 infrastructure monitoring ✓ Dedicated production environment ✓ 99.9 % guaranteed infrastructure up[ime" ✓ Dedicated public IP address and custom URL ✓ Operating system installation and management ✓ Library software installation end upgrades ✓ Data backups Daily Archive data backup retention 30 days tl. Aud'[ and Security Tasting. Hosting Providers perform regular security audits and testing. Client's may not pertorm own audits of hosting providers. a. Information Security Auditing/Comolianee. Innovative's hosting providers undergo SOC t/SOC 2 Type 2/ISO 2700'I audits each year by independent third -party audit firms. f. "'The 99.9 % guaranteed infrastructure uptime is subject to the following Service Level Agreement (SLA): 1. He of o eratio exclu ive re med for serv' 'la bil' .Innovative offers a monthly Infrastructure uptime target of 99.9% of Scheduled Up -Time to Cllant. Scheduled Vp-Time means all of the time in a month that is not Scheduled Downtime or Third Party Unavailability. In the event that Innovative fails [o provide Client with 99.9 % infrastructure uptime for three consecutive months, Client will ba entitled to recelva a credit equal to the prorated amount of the Fees for the period in which Innovative failed [o provide such infrastructure uptime during such months upon recalpt of written notice from Client. The remedies set forth in this Paragraph (i) are the exclusive remedies of the Client for Innovative's failure to provide Client with 99.9 infrastructure uptime. Il. Scheduled Downtime. Scheduled Downtime means the pariotl of time which Innovative or the Hosting Provider, conduct periodic scheduled system maintenance and release updates for which Innovative will provide the Client with advance notice. Innovative will make commercially reasonable efforts to provide Client notice of ached uletl system maintenance 48 hours in advance and notice of release uptlatas three weeks in advance. Page 17 of 17 c'n a.. INNOVATIVE INTERFACES INCORPORATED PERPETUAL LICENSE AGREEMENT This Perpetual License Agreement is entered Into by and between Innovative Intartacas Incorporated, a California corporation ("Innovative"), and the party identified as Client below ("Client" or "County"), a political subdivision of the State of Florida, (collectively the "Parties"), es of the "Effective Data" also set forth below. Innovative Innovative Intartacas Incor orated Address '1900 Powell ST, Suite 400, Emeryville, CA 94608 Innovetiva Point of Contact Dennis Carter, Director &Sales Aeeount Manager Phone: 734-5727340 Email: dannis.carter�ciarivate.eem Cllsnt Collier County Board of County Commissioners, FL for and on behalf of Collier County Public Llbrery Division Address 2385 Orange Blossom Dr. Naples FL 34'109 Cllsnt Technical Contact: Name: Jared DeIRe, Applications Analyst Phone: 239-252-7333/ Email: Jared Delre2�coll'ercounbfl eov Effective Date January t, 2023 Customer No. CU0256 f. Deff nitions. "GTCs" means the Innovative Intartacas Incorporated Perpetual License Agreement General Terms and Conditions in effect as of She time of execution of this License Agreement, a copy of which can be found in Exhibit B. "Support Terms" means the Innovative Intertacas Incorporated Maintenance and Support Terms and Conditions, as may be amended from time to time by Innovative, a copy of which can be found in Exhibit C. "Hosting Terms" means the Innovative Intartaces Incorporated Hosting Terms and Conditions, as mey be amended from time to time by Innovative, a copy of which can be found In Exhibit D. 2. General. Innovative and Client agree that this Perpetual License Agreement ("License Agreement") is a binding agreement between [he parties and is governed by (i) the GTCs, (ii) Yo the extent that the attached Pricing Exhibit indicates that Client has purchased maintenance and support, than the Support Terms and (fii) to the extent that the attachetl Pricing Exhibit Indicates that Cllsnt has purchased hosting services, then the Hosting Terms, all of which era made a part hereof. This License Agreement, the GTCs, the Support Terms and Hosting Terms, to the extent specified in the Pricing Exhibit, and all other exhibits, schedules and terms and wnditions referenced by or In this License Agreement, the GTCs, Support Terms or Hosting Terms together constitute the "Agreement." Client acknowledges and agrees that It has had the opportunity to review the Agraamant, including without limitation, the GTCs, Support Terms and Hosting Terms, prior to the execution of this License Agreement. Innovative recommends that Client print a copy of each component of this Agraamant for Client's records. Unless otherwise specifletl, capitalized terms in this License Agreement have the same meaning as those in the GTCs. This Agreement is 9ovarned by and Interpreted In accordance with the internal substantive laws of Florida, without regard to any other laws that would require the application of the laws of another Jurisdiction. Application of the U.N. Convention on Contracts for the International Sale of Goods is hereby excluded. In consitleration of Innovative's continued grant to Client of licenses to the Software as described within Exhibit A, Client acknowledges, and the parties agree, that all other exisifng software agreements and associated purchase ortlers between the parties for the software idantifietl in Exhibit A, including but not exclusive of the 2005 Millennium contract and eny subsequent agreement with respect to the license and maintenance of Innovative's Sierra software ("Prior Agreements)"), will be deemed to be immediately terminated by the parties' mutual written agreement and all such software under the Prior Agreement(s), antl as identified in Exhibit A, will be deemed Software (as defined in the GTCs) licensed and supported under the terms of this License Agreement. To the extent Client remains in possession of eny proprietary Innovative documentation or materials Page 1 of 17 A PRICING EXHIBIT B GENERAL TERMS AND CONDITIONS C MAINTENANCE AND SUPPORT TERMS AND CONDITIONS D HOSTING TERMS AND CONDITIONS subject to the Prior Agreements Client agrees that it shall continue to keep such documentation antl materials confidential pursuant to the terms of the Agreement. EXHIBITS TO LICENSE AGREEMENT [Signature page to follow] Page 2 of 17 cne� In witness whereof, the parties have executed this Agreement by their duly authorized representatives as of the Effective Date. _ Client j Innovative_ _ ' Collier County Board of County Commissioners innovative Interfaces incorporated for an on behalf of Collier County Public Library 1 By: By; Name: Name: Title: Title: _ Date. - ATTEST: Crystal K. Kinzel, Clerk of the Circuit Court And Comptroller By: Dated: (SEAL) Approved as to Form and Legality: County Attorney Print Name INNOVATIVE WITNESSES: First Witness Type/Print Witness name Page 3 of 17 Exhibit A Pricing Exhibit �. Fees. Pay menu to Innovative era due upon receipt of a proper invoice and in compliance with Chapter 2'I8, Fla. Stets., otherwise known as the "Local Government Prompt Payment Act." Any late fees shall be pursuant to Section 2'18.74, Fla. Stet 2. Term. This Agreement will continue in effect until amended or terminated in accordance with the GTCs. Sub ect to th¢ early termination provisions set forth therein, the Support Terms and the Hosting Terms will con>'in ue in affect for an initial term of five (5) years (the "Initial Term') and may be renewed for an additional one-year term (being a "Renewal Term" and, together with the Initial Term, the "Term"), upon the Client providing written notice to Innovative of not less than ninety (g0) days' prior to the end of the Initial Term of its intent to terminate the Support Terms and/or the Hosting Terms effective as of the and of the then - current Term therefor. Maintenance fe¢s through the Initial Tarm are those as set out hereunder, which for the avoidance of doubt include an annual increment of 2% over the previous year. If renewed and commencing upon year six (5) and thereafter, Innovative will have the right tc increase rates for services being renewed by a maximum parcentag¢ equivalent to 5% over the previous year. [APPROVED SOFTWARE LICENSE QUOTE FOLLOWS THIS PAGE] Page 4 of 17 111 innovative Part of Clarivate InnoyatlVa Intertaces Incorporated 3t33 W. Frye Rtl. Sulte 400 Chandler AZ 85226 Vnitad SIaIBs Renewal Quote Page t of 2 puata p SO-INC33059 Tarma Ne130 POM Renewal Star! pab tH2O23 Renewal End pa4 12/3t2023 sl[e coda ccPl BIII To Shlp To Collier County Board of Cplller County Public Llbrery County CommisslYYpnars 236pp5 Orang9e Blossom Or. 3299 Tamoleml Trl 09 Sael]00 Vnitetl Statest Na lea FL 341t2-6]49 LlnPad 3tatea Sierra Core I M tenance t Sierra Cora Buntlla Malntananca Bllntlle Maintananc a Staff User Maintenance 125 Staff Usar Licenses Llcanaea Malntananca Rasaguanca Malntsnence 1 Rasequance ettacbetl recortla by locatlon attactls by loccatlon C Malntananca 1 Synchronize blbllogrepM1lc locations blbllcbronM1 Ipcetona Wab OPAG Malntananca 1 Wab OPAC Manua (Languages) (Languages) OCa`CYlya Malntananca 1 OCLC In[aracllva Vla Iba Nalwork Nalwhc�k WabBrltlga Malntananca 1 WabBrldga OPAC Export Malntananca 1 OPAC Export Malnlanance 1 Slave Homebountl PaKan / Remola Patron Ho abountl Retmota Patron Malnf. Electronic Malnlanance 1 Electronic Serials Inwlcing 3aHels lnvadng Malntananca 1 SISAC Cnackin CtM1ackln AIrPAC Malntananca 1 AIrPAC Wab Access Malntananca 1 Wab Access Management Management Year t of 5: 1 January 2023 - 31 Oecambar 2023 Vaar 2: $]0.4t 2.99 Year 3: $]1.821.25 that 5: $]9,]22.83 cpr us. �� �68,493.294... Yas O.00 Vas 0.00 Yas O.00 Yea Languages: D.00 Yes Spanish 0.00 Yaa O.00 Vas o.oD vas O.00 Ves O.00 Yas O.00 Vas 0.00 Yas 539.049999... Yaa ency >ofrar ���89.493?'. o.al O.OI O.OI o.Dl O.OI O.OI O.OI O.OI O.00 a.00 O.00 539.05 _ I __ _. _. �O_. iii innovative Part of Clarivat® Renewal Quote Pages 2 of 2 Ouate # 50-INC33O64 Innovative Inlartacas Incorporated 3133 W. Frye Rd. SWta 400 Chandler AZ 85226 United S[atas �IHrot=: I u � Y?3` he. u�l•tiv.in .A� ,_ Total Noi¢sINF w oFNTInL Be�WFENTHE Mary �oENTIFIEn FS'#ILLTO'l,90VE aNO INNQ�ATIVe INTEFFFCES 2. Tema ere wt IntluCo�ln tI,¢IQluolaC WK'e4au1 It appllwbla. may ba ene�gaePOY Innmenve a� M1e�0eln1 eI luwldngtla b onleuna eomYaa. , � a(, US$59,032.34 CAQ Exhibit B Innovative Interfaces Incorporated Perpetual License Agreement General Terms and Conditions The parties agree that their contractual relationship with respect to the Software will be governed by the terms and conditions of (t) this Perpetual License Agreement General Terms and Conditions ("GTCs"), (2) the applicable Innovative Interfaces Incorporatetl Perpetual License A,greement(s) (each, a "License Agreement"), (3) the Innovative Interaces Incorporated Maintenance and Support Terms ("Support Terms"), if applicable, (4) the Innovative Interaces Incorporatetl Hosting Terms (`Hosting Terms"), if applicable, and (5) all other applicable exhibits, schedules and terms and conditions referenced by or in the GTCs, License Agreement(s), Support Terms and Hosting Terms. Each License Agreement, togeth¢r with the terms and conditions of this GTC, Support Terms and Hosting Terms and all applicable exhf bits or schedules Incorporated by reference or referenced therein will constitute antl be construed as a separate agreement. Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in [he License Agreement. f. Software Llcanae. a. Subject to the terms and conditions of this Agreement, Including without limitation Client's payment of all of the Fees (tlefined below) due hereunder, Innovative hereby grants to Client a limited, nonexclusive, non -sub - licensable, nontransferable license to use the components of its software applications, modules, and other products that are listed in the Pricing Exhlbtt to She Licenses Agreement (collectively, the "Software"). The license grantetl in the preceding sentence will be perpetual, subject to termination only as expressly specified herauntler. b. Client and, where applicable, its Authorizetl Vsers (defined below) may use [he Software (including any Client Configurations) (i) only for the management of the library and for servicing its patrons (including permitting Authorized Users to search library catalogues), and not on an outsourced basis, as a service bureau, for resale, or similarly on behalf of or for the tlirect or Indirect benefit of third parties, and (II) only in accortlanc¢ with the other terms of this Agreement. Client will be responsible for Its Authorized Users' compliance with the [arms hereof. Withoui limiting the foregoing, Client agrees that it and its Authorized Users will: (I) comply with all epplica ble laws ragartling the transmission of data, including, without limitation, any applicable export control and data protection laws; and (ii) not use th¢ Software for illegal purposes. c. SubJect to Section 'I t (Client Configurations), other than Innovative, no one is permittetl to copy, modify, reverse engineer, tlecompile, or disassemble the Software, create tlerivative works thereof, or separate the Software Into its component files. All rights to the Software that are grantetl to Client In this Agreement are limited to the object cotle versions of the Software and in no avant will Cllant be deemed to have any right, title or interest in the source coda of the Software. Despite the perpetual nature of the limltatl license to the Software granted hereu ntler, Client acknowletlges that all copies of [ha Software antl associated Innovative documentation and materials shall be returnatl [o Innovative upon termination of the Agreement for any reason. d. The Software may be used by the base number of Client's worldwide employees, thhd-party auditors, agents and contractors ("Authorized Users") set forth in the Pricing Exhibit to the License Agreement for such Software and such additional Authorizetl Users as may be hereafter identified [o Innovative by Client for which Client pays the additional Fees raferretl to in Section 4(a) of this Agreement. Each Authorizetl User license is allocable to a singl¢ full-time user of the Software antl may be transferred to another user only on a full-time basis. Authorized User licenses) may not be sharetl on a part time or concurrent user basis. e. Except to the extent sat forth In the Support Terms, the license granted to Client pursuant to this Agreement does not include license to use all new scheduled major releases, service pack releases, and hot fixes of the Software offered generally by Innovative to its clients during the term of this AgreemenC (coll¢ctively, "New Releases"). Evan if N¢w Releases are provided to Client pursuant to active Support Terms, "New Releases" do not include new or additional modules, applications or other software now or hereafter offeratl by Innovative, each of which require a separate license antl payment of additional license fees. The term "Software" will be tleemed to include New Releases that have bean provided to Client pursuant to ac[Ive Support Terms. Atlditional fees at Innovative's then -prevailing professional service rates will apply for implementation of Naw Releases. Page 5 of 17 Gro f. Innovative offers maintenance and support for the Software for an additional fee pursuant to the Support Terms. g. The license granted hereunder grants Client the right to use a single production Instance (copy) of the licensed Software and up to two (2) additional instances (copies) of the Software for non -production use at no additional charge. All copies of the Software are subject to [he terms of this Agreement. Non -production use includes training, development, tasting, quality assurance, staging or preproduction provided that the copies of the Software are not used in a production environment or as a backup to production. Except to the extant expressly set forth in a License Agreement, this license grant does not provide Client with any rights to hosting services. 2. Acceptance. Following the execution of the Agreement by the parties, Innovative will d¢liver the Software, in its preconfigured, out -of -the box format, to Client (i) via the Internet, it Client has purchasetl hosting services from Innovative pursuant to the Hosting Terms or (iI) by making it available to Client to download via an FTP site, if Ctiant has not purchased hosting services from Innovative pursuank to the Hosting Terms. Client will ba tleemed to have accepted the Software upon initial delivery. 3. Ownarehlp. a. All Intellectual Property Rights (defined below) in the Software antl also including, without limitation, all Improvements, enhancements, motlifications, Client -specific upgrades, or updates to the Software, developed by either party, solely or Jointly (collectively, "Innovative Products"), will remain the exclusive, sole antl absolute property of Innovative or the third parties from whom Innovative has obtained the right to use the Innovative Products. Intellectual property created by Innovative pursuant to [his Agreement, or any other party at the request or direction of Innovative, will ba owned by Innovative. "I ntallectual Property Rights" means any and all intellectual property rights existing from time to time under any law or regulation, including without limitation, patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, tratlemark law, unfair competition law, publicity rights law, or privacy rights law, and any antl all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of th¢ foregoing, now or hereafter in force and effect worldwide. Client hereby assigns to Innovative all right, title antl Interest In any feedback antl suggestions It provides to Innovative regarding the Software or other prod ue[s commercialized by Innovative now or in the future. This Agreement does not convey to the Ctiant any interest in or to the Innovative Products or any associated Intellectual Property Rights, but only a limited right to use the Software to the extant set forth in this Agreement, which right is subject to the limitations, restrictions, and requirements contained herein. If Client config ur¢s or otherwise modifies the Software using an API licensed hereunder, Client will also have a license to use such configurations or modifications as part of the Software on the terms set forth in Section �. Rig his not expressly granted to the Client era hereby expressly reserved by Innovative. b. For purpose of Yhis Agreement, as between Innovative and Client, any Intellectual Property Rights in the Innovative Products to the extent owned by any third party will be and remain the exclusive property of such third party. The Software may include third -party software antl products, which are described in the documentation antl/or Specifications made available to Client by In novativa, and any thirtl-party pass -through terms relating to such third -party software and products are ItlantiFed therein (or by other mode of disclosure). c. Except as expressly stated herein, Client will exclusively have and retain all right, title and interest, including all associatetl Intellectual Property Rights, in and to data that Cllant enters into the Software or tlisclosad by Client to Innovative in its performance hereunder ("Client Data"), and, as between Client and Innovative, such Client Data will remain the sole property of Client. Client hereby grants to Innovative a license to use Client Data (i) to process the Client Data pursuant to Client's business requirements, (ii) for maintenance and support of the Software, (iii) to collect and use aggregate, non -identifying and anonymizetl data, and (iv) for research and development purposes. Client acknowledges and agrees that it will have no rights in any products or services created or sold by Innovative or its affiliates that use any of the Client Data in the manner set forth in (iii) or (iv) of the precetling sentence. To the extant that applicable law requires any permissions or authorizations to have bean obtained prior to submission of Client Data to Innovative (Including without limitation from Individuals to whom the tlata pertains), Client warrants and covenants that it (and its Authorized Users, as applicable) will have first obtained the same permissions or authorizations prior to transmitting such data Yo Innovative. As Ilmitetl by Client's sovereign immunity set forth in Florida Statutes, Section 766.2B, Client will defend, Indemnify and hold harmless Innovative in the event of any third -party claim arising from a breach of the aforesaid warranty and covenenf. Page 6 of 17 4. Fees; Expanses; Payment Terms. a. In consideration of receiving a limited license to use the Software and to the extent that Clian[ has purchased maintanancs and support services and/or hosting services, Client will pay the fees se[ forth in the Pricing Exhibit to the License Agreement (the "Fees") on the terms set forth therein and in compliance with Chapter 2'I 8, Fla. Stet., otherwise known as the "Local Government Prompt Payment Act.". Initial invoicing under this Agreement will occur when the Software is made available to Client; subsequent renewal Invoices for maintenance and support services and/or hosting services will be sent to Client prior to the data such payment is due. Invoices for any Renewal Terms may be provided to Client up to 90 days prior to the effective date of such Ranawal Term. Client will notify Innovative in writing if Client hereafter requires additional Authorized Users or additional Software modules, and will pay the fees for such additional Authorized Users or additional Software modules in accordance with [he terms set forth on the invoice for such fees. The Software may, from time to time, electronically transmit to Innovative reports verifying the type and number of Authorized Vsars, and Innovatfva may utilize license keys or other reasonable controls to enforce Authorized User license limitations. Client will cooperate with Innovative in all such efforts. b. All Fees era exclusive of all taxes and similar fees now in force or enact¢d in the future or Imposetl on th¢ delivery and license of the Software, all of which Client will be responsible for and will pay in full, other than taxes based on In novative's nei Income. Client will provide Innovative its state issued Direct Pey Exemption Certificate (or equivalent certificate), iF applicable, upon execution of this Agreement. In the event an applicable taxing authority, as a result of an audit or otherwise, assesses additional texas for goods or services sold under this Agreement at any time, Client and not Innovative will be solely responsible for payment of such additional taxes and all costs associated with such assessment, including without limitation, interest, penalties and atlorney's fees. Additionally, should Client ba required under any applicable law or regulation, domestic or foreign, to withhold or tladuet any portion of iha payments due to Innovative hereunder, than the sum due to Innovative will ba increased by the amount necessary to yield to Innovative an amount equal to the sum Innovatfva would have raceivetl had no withholdings or deductions bean made. Collier County, Florida as a political subdivision of the State of Florida, is exempt from the payment of Florida sales tax to Its Contractors under Chapter 2t2, Florida Statutes, Certificate of Exemption Tk85-80'1596653'I C-'I. c. Where this Agreement establishes a due date fora payment and/or a recurring method for payment, payment will ba du¢ and payable on such due data and upon r¢ceipt of a proper invoice and in compliance with Chapter 2'I 8, Fla. Stets. Other fees or expenses charged pursuant to this Agreement will ba paid at the amounts set forth in the invoice in compliant¢ with Chapter 2'I B, Florida Statutes, otherwise known as the "Local Government Prompt Payment Act.". All amounts stated herein and all Fees determined hereunder are in U.S. Dollars, unless otherwise required by applicable law. d. Any late interest fees shall be pursuant to Section 218.74, Fla. Sta[. 5. Limited Warranty. a. Innovative warrants, solely for the benefit of Client, that: i. It has the corporate power and authority to enter into this Agreement and to grant Client the license to the Software hereunder; and ii. The Software will conform in all material respects to the applicable technical docu mantation for the Software provided to Client by Innovative and expressly Identified by Innovative as the speeifica[lons for the Software (collecHvaly, the "Specifications"). b. EXCEPT FOR (i) THE WARRANTIES EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY WARRANTY, REPRESENTATION OR CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COV RSE OF PERFORMANCE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANV IMPLIED Page 7 of 17 WARRANTIES OF MERCHANTABI LITV, FITNESS FOR A PARTICVLAR PURPOSE, TITLE OR NON - INFRINGEMENT. WITHOVT LIMITING THE FOREGOING, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SV PPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL SATISFY CLIENT'S REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT -FREE OR UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5(a), THE SOFTWARE, INCLUDING ALL CONTENT, IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES REGARDING QVALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY, INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR SELECTION, VSE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF VSE THEREOF, INCLUDING ALL CONTENT GENERATED THROUGH USE THEREOF. c. As the exclusive remedy of Client for a breach of the limitetl wartanties set forth in Section 5, for any error or other defect for which Innovative is solely responsible, Innovative will, at its option, either (i) correct or repair the Software, or (ii) accept termination of this Agreement and refund the unused balance of any prepaid Fees for the maintenance and support services, prorated for the period commencing on the date the error or defect was reported by Client to Innovative and continuing throughout the balance of the period to which such Faes apply. All license Fees shall be nonrefundable. None of the above warranties or remedies in this Section 5 will apply with respect to any Software that has been damagetl or modified by any party other than Innovative, or used in a manner for which the Software is not designed or intended. 6. LIMITATION3 ON LIABILITY. IN NO EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PV NITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER, EVEN IF INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE OTHERWISE FORESEEABLE. INNOVATIVE'S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER DAMAGES WILL NOT EXCEED THE TOTAL AMOV NT OF ALL FEES PAID TO INNOVATIVE BV CLIENT UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE WILL SURVIVE FAILURE OF ANY EXCLVSIVE REMEDIES PROVIDED IN THIS AGREEMENT. 7. Indamnlficatlon. a. If a third party files a legal action in a court of competent jurisdiction against Client claiming the Software, as deliveretl [o Client by Innovative, directly infringes such third party's U.S. copyright or U.S. patent, Innovative will detentl Client against such legal action, provitletl that Client promptly notifies Innovative in writing of the legal action and fully cooperates with Innovative in the defense of such legal action. Innovative will also indemnify Client from all damages and out-of-pocket costs (includin8 reasonable attorneys' fees) finally awarded by a court of competent ju rladiction in connection with any such legal action, or agreed to by Innovative in a settlement. Innovative will control all aspects of the defense and conduct the defense and any settlement negotiations in any such third -party legal action. This Indemnification is limited to the Software in the Form delivered to Client and does not cover claims arising from (x) motlifications thereto not made by Innovative, or, even if by Innovative, at the request of Cltant; (y) use of the Software in combination with other software or items not provided by Innovative, or (z) third party modifications (including addition of source code) to the Software. b. As the exclusive remedy of Client under the limited intlemnity sat forth in Section 7.a, If [ha use of the Software by Client is enjoined, Innovative will, at its sole option: (I) obtain for Client the right to continue to use the Software, (ii) modify the Software to remove the cause of the legal action, (iii) replace the Sottwara at no atltlitional charge to Cllant with a substantially similar, non -infringing product, which will than be subject to the provisions of this Agreement, or (iv) terminate this Agreement antl refund to Client the unused Fees for maintenance and support, prorated for the period Client's use of the Software is enjoined. None of the above warranties or remedies will apply with respect to any element of the Software that has been modified by any party other than Innovative, or used In a manner for which the Software is not designed or intended. This Section states Innovative's entire liability antl Client's exclusive remetlies for infringement of intellectual property rights of any kind. Page 8 of 17 Gw<?� s. confiaentlallty. a. Client acknowledges that all tlocu mantation, audit reports, technical information, software, Specifications and other information pertaining to the Software, and/or Innovative's business interests or activities, financial information, methods of operation or customers that are marked and disclosed by any party to Client in the course of performing this Agreement or any ensuing business arrangement shall be treated as the confidential and proprietary Information of Innovative antl, pursuant to Florida Statute § 8'15.045, will be regarded as a Trade Secret. Innovative acknowledges that Client Data antl other proprietary Client materials marketl as confidential shall b¢ the Confitlential Information of Client. The Information end materials described in the precetling sentences is referretl to herein as "Confidential Information." Notwithstanding the foregoing, the term "Confidential Information" does not Include information pertaining to a party if: (I) such Information is generally known to the public through no improper action or inaction by the other party, (ii) was, through no improper action or inaction by the other party, in the possession of the other party prior to [he Effective Data, (iii) rightly disclosed to the other party by a third party if such disclosure tloes not violate the terms of any confidentiality agreement or other restriction by which such third party may be bound, or (iv) although falling under the tlefin ition of Confidential Information providetl herein, the material Is judicially determined not to be exempt under the Floritla Public Records Act, Chapter 1 t 9, Fla. Stet. b. All Confidential Information will be held in confitlence and may not be copied, used or disclosed other than as set forth in this Agreement. Each party must take all reasonable efforts to protect the confidentiality of and prevent the unauthorized use of any such Confidential Information by any third party within such party's control. Each party may disclose Confidential Information (I) to the receiving partes employees antl contractors required to have access to such Confitlential Information for the purposes of performing this Agreement or using the Software, providetl each party hereto notifies its employees and contractors accessing such Confidential Information of the confidentiality obligations in this Section 8; or (ii) if such disclosure is in response to a valid order of any court, statute, or other governmental body ("Order"), In which avant, the disclosing party must use reasonable efforts to p rovitle the other party with prior notice of such Order, to the extent legally permitted to do so and In accordance with the Order. Except as provided herein, In [he event Innovative marks or designates any records as comprising Confidential Information, which the Client does not believe meets the definition, prior to providing such information under a public record request it shall first notify Innovative that it has raceivetl a request for the recortl(s) antl that It will release the records) as not confidentiel but will first allow Innovative an opportunity to seek a protective ortler as to those records. Confidentiality of Information contained In this agreement is subject to the requirements of the Florida Public Records Act, Chapter 779, Fla. Stet., the Florida Sunshine Law, Chapter 286, Fla. Stet and Florida Statute § 8'15.045 in the protection of Trade Secrets. c. Recognizing any improper use or disclosure of any Contidential Information by either party may cause the party whose Confitlential Information Is improperly used or disclosed irreparable tlamage for which other remedies may be inatlequate, a party whose Confidential Information is Improperly used or disclos¢d will have the right to petition for Injunctive or other equitable relief from a court of comp tent jurisdiction as appropriate to prevent any unauthorizetl use or disclosure of such Confidential Information. d. If the parties have previously executed a nontlisclosu re agreement ("N DA"), any Confidential Information exchanged pursuant to such NDA will remain confidential, and will as of the data of the execution of Yhis Agreement be deemed Confitlential Information within the meaning of this Agreement and also ba governed by the terms hereof. 9. Tarmi Term lnatlon. a. Tha license granted in this Agreement to use [he Software is perpetual, but subject to termination as specified hereunder. The term of any maintenance and support services antl/or hosting services describetl in Exhibit A to the Licansa Agreement is set forth in the License Agreement. b. If either party hereto fails to perform or comply with any material [arm or condition of this Agreement, specifically including Cllant's failure to pay any Fees (such party being the "Breaching Party"), and such failure contin ue5 unremetlied for 30 (thirty) days after receipt of written notice, the other party may ierminata this Agreement. Notwithstanding the foregoing, if the Breaching Party has in good faith commenced to remedy such failure antl such remetly cannot reasonably be completed within such 30-tlay period, then the Breaching Party will Page 9 of 17 CAO have an additional 30 (thirty) days to complete such remedy, after which period the other party may terminate this Agreement if such failure continues unramedied. c. Gllent may terminate the maintenance and support services and/or hosting services purchased under this Agreement at any time during the Initial Term effective as of the date of the next annual anniversary of the Effective Data if Client's butlget (funding) is eliminated and Client provides written evidence to Innovative of the elimination of Client's budget (funding), such evidence to ba in the form and substance reasonably requested by Innovative. d. Except fora termination by Client pursuant to Section 9.6., and unless as otherwise set forth in this Agreement, upon any termination of this Agreement, all prepaitl Feas will ba nonrefundable antl Client will be responsible for all Fees and expenses for the Software, maintenance and support services and hosting services provided prior to and as of the date of termination. Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the terminating party may have untler the terms of this Agreement. Upon termination of this Agreement, the rights and duties of the parties will terminate, other than the obligation of the Client [o pay Feas and costa In accordance herewith, end the obligations of the parties pursuant to Section 1.c. (Software License), Section 3 (Ownership), Section 4 (Fees; Expenses; Payment Terms), Section 6 (Limitations on Liability), Section � (Indemnification), Section 8 (Confidentiality), Sections 9.d. and 9. e. (Termination), Section 11 (Client Configurations) and Section 13 (Ganarap. Within 30 (thirty) tlays of receipt of a written request following a termination of this Agreement, each party must return or destroy all Confidential Information of the other party, as requested In writing by [he other parry. Notwithstantling the foregoing, a party will not be obligated to destroy data containing Confidential Information of the other party when it would ba commercially impracticable for the receiving party to do so (for example, when Confidential Information is contained in a -mail stored on backup tapes or other archival matlia), but for so long as such receiving party is in possession of such Confidential Information of the other party, the terms of Section 8 CContitl entiality) hereof will continue to restrict the receiving party's use or disclosure of such Confidential Information_ Client shall ratu rn all copies of the Software and associated Innovative documentation and materials upon termination of [ha Agreement for any reason. Neither party will be liable [o [he other for any termination or expiration of this Agreement in accordance with its terms. e. Following termination of this Agreement, Innovative has no duty whatsoever to deliver to Client any parts of its programming, data model, or any other Information regarding which Innovative claims a proprietary or I ntallactual Property Right. To the extent that In novativa is requested to perform any services for Client in connection with the termination of this Agreement (Inclutling without limitation providing Client with a copy of Client Data in a commercially -standard format to be agreed upon by the Parties), such service will be partormed pursuant to a written statement of work under a separate professional services agreement and paid for by Client, applying Innovative's then -current rates for daily/hourly work, as the case may be. 1 O. Third Party Software. The Software may contain th lyd-party and/or "open source" code provltled under third -party license agreements. The terms and conditions of such third -party license agreements will apply to such source code in lieu of these terms, where applicable, and Client is responsible for compliance therewith. A listing of certain th lyd-party and/or open source cotle contained in the Software, the respective license [arms applicable to such coda, and certain related notices are included to She tlocumen[atlon and/or Specifications made available to Client by Innovative. Except as required for the authorized use of the Software as contemplated herein, Client may not use any Hama or trademark of any supplier of third party or open source cotle without such party's prior written authorization. 11. Cllant Configurations. Client will be permitted to use one or more application programming interfaces (APIs) made available by Innovative to configure the Software hereunder in accordance with the Specifications (such configurations or other motlifications, "Client Configurations"). Client will not use any other API to modify or configure the Software. No API may be used [o create any Gllent Configuration that, in whole or in part, mimics any material functionality of any software or service devalopetl or marketed by Innovative or that would reasonably be deemed competitive to any software or service developed or marketed by Innovative if the Client Configuration were to be released to the public market. In novafive disclaims all raprasantatfons and warranties, express or Implied, regarding Client Configurations and assumes no liability whatsoever with respect to Client Configurations. As limited by Client's sovereign immunity sat forth in Floritla Statutes, Section 768.28, Client agrees to intlemnify and hold harmless Innovative from all damages and out-of-pocket costs for any third -party action based on a claim that any Client Configuration infringes a copyright or a patent, or constitutes an unlawful disclosure, use or misappropriation of another perty's tratle secrets. Page 30 of 17 AO 12. Back-Vp Activities. Except to the extent that Client purchases Innovative's hosting service or bacK-up services, Client has the sole responsibillry for the maintenance and protection of ell data input into the Software, including, without limitation, the making, storing and security of back-up and archive copies of such data and the Software (collectively "Back-Vp Activities"), and Client acknowledges Innovative will not perform any Back -Up Activities for or on behalf of Client. '13. Genera 1. a. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsaq uent actions in the event of futu ra breaches. b. Indaoendant Contractor. Client acknowledges that Innovative is at all times an indapantl¢nt contractor and that Client's relationship with Innovative is not one of principal and agent nor employer and employee. No Innovative personnel will be entitled to participate in any compensation or benefits plan of Client. c. Foma Maiaura. Neither party will be liable or responsible far any delay or failure in pertormanca if such delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo, government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions of carriers, third -party local exchange and long distance carriers, utilities, Internet service providers, transmitters, vandals, or hackers, or any other si miler causes that may ba bayontl its control (a "Force Majeure Event"). d. Notice. Any notice or communication required to be given by either party must be in writing and made by hand delivery, express tlaliv¢ry service, overnight courier, electronic mail, or fax, to [he parry receiving such communication. Unless otherwise instructed in writing, such notice will ba sent to the parties at the addresses set forth on [ha first page of the License Agreement. All communications pursuant [o this Section will be tleamad delivered as follows: (a) upon receipt, If delivered personally or by a recognized express delivery or courier service; or (b) when elactronicelly confirmed, if delivered by facsimile. e. Jnvalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will, as to that jurisdiction, ba ineffective to the extent of such Invalidity, illegality or unenforceability, without affecting In any way the remaining provisions hereof in such jurisdiction or rendering [hat or any other provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. f. Counte roarts. This Agreement may be executatl by the parties in separate counterparts by original, .ptlf (or similar format for scanned copies of documents) or facsimile signature, each of which when so executed antl delivered will ba deam¢tl an original, but all such counterparts will together constitute but one and the same insVument. g. Publicity. Except as provided in this Sactlon, neither party will make any press release, public statement or other disclosure regarding the farms of this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Innovative will have the right to issue public statements pertaining to the existence of the business relationship between Innovative and Client, including the right to limited use of Client's name, logo and other reasonable non-confldantial information in press releases, web pages, advertisements, and other marketing materials. h. Assignment. Neither party has the power to assign, license, or sub -license any of its rights or obligations hereunder wlthouS the prior written consent of the other party, which will not ba unreasonably withheld. Any assignment, license, or sub -license attempted without such consent will be void. Notwithstanding the foregoing, a party may assign this Agreement without the other party's consent (I) as pert of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or capital stock; or (il) to an Affiliate of such party provided that any such assignment will not release the assigning party from its obligations under this Agreement. I. Insurance. Innovative is to provide Client proof of Insurance as follows: f. Technology Errors &Omission: $'I,000,000 single limit; 2. Cyber Liability - $'1,000,000 single limit. Page 11 of 17 CAO Collier County Board of County Commissioners shall be listed as the Certificate Holder. J. Governine Law and Vanua. This Agreement shall be interpreted under and its performance governed by the laws of the State of Florida. Any suit or action by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, whicM1 courts have sole and exclusive jurisdiction on all such matters. k. Public Entity Crime. By execution of this Agreement, Innovative acknowledges to comply with the terms of Section 287.'133 of the Floritla Statutes and inform the County of the conviction of a public ¢nifty crime. I. Public Records Comollance. By executing and entering into this Agreement, Innovative is formally acKnowledging without exception or stipulation that it agrees to comply, at its own expense and in so far as they are relevant to Innovative's performance of Its obligations under this Agreement, with all federal, state and local laws, codas, statutes, ord inancas, rules, regulations and requirements applicable to this Agreement, including but not limited to those dealing with the Immigration Reform and Control Act of '1986 as located at 8 U.S.C. '1324, et seq. and regulations relating thereto, as either may ba amended, as well as the requirements set forth in Florida Statutes, §448.095; taxation, workers' compensation, equal employment and safety (Including but not limited to, the Florida Public Records Law 'I t9), including specifically [hose contractual requirements at F.S. § �'19.070'I (2)(a)-(b) as stated as follows: IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 719, FLO RIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: Communications, Government 8 Public Affairs Division 3299 Tamiaml Troll East, Suite 902 Naples, Florida 34'1'12-5746 Telephone: (239) 252-8999 Emell: Public Raco rd Reauestrre�colliareou ntvfl.aov The Contractor must specifically comply with the Florida Public Records Law to: f . Keep end maintain public records required by the public agency to pertorm the service. 2. Upon request form the public agency's custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable lima at a cost that does not exceed [he cost provided in this chapter or as otherwise provided by law. 3. Ensure that public records that era exempt or confidential and exempt form public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract If the Contractor does not transfer the recortls fo the pu bllc agency. 4. Vpon completion of the contract and upon request, transfer, at no cost, [o [he public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to perform the service. If [ha Contractor transfers all public records to the public agency upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or eonfidantial and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public records. All records stared electronically must be provided to the public agency, upon request from the public agency's custodian of public records, in a format that is compatible with the information technology systems of the publle agency. If Contractor observes that [ha Contract Documents are at variance therewith, it shall promptly notify the County in writing. Failure by the Contractor to comply with the laws referenced herein shall constitute a breach of this agreement and the County shall have the discretion to unilaterally terminate this agreement Immediately. m. Disoute Resolution_ Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, The parties shall mek¢ good faitM1 effort to resolve such disputes by negotiation. The negotiation shall be attended by representatives of Innovative with full decision -making authority and by Client's staff person who make the presentation of any settlement reached during negotiations to Client forapproval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Page 12 of 17 Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed -upon Circutt Court Mediator certified by the State of Floritla. The mediation shall be attended by representatives of Innovative with full decision -making authority and by Cllant's staff parson who would make the presentation of any settlement reached at mediation to the Client's board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under section 44.'IO2, Fla. Stet. n. Disoute Resolution. Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, the parties shall make good faith effort to resolve such disputes by negotiation. The negotiation shall ba attended by representatives of Innovative with full decision -making authority and by Client's staff person who make the presentation of any settlement reached tluring negotiations to Client for approval. Failing resolution, and prior to the commencement of tl¢positions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed -upon Circuit Court Mediator certified by the State of Florida. Tha mediation shall ba attandetl by representatives of Innovative with full decision -making authority and by Client's staff person who would mak¢ the presentation of any settlement reached a[ mediation to the Client's board for approval. 5houltl either party fall to submit to matliation as required hereunder, the other party may obtain a court order requiring mediation under section 44.'I 02, Fla. Stet. o. Wa'ver of Jury Tr'al� Governinc Lancuage. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings harau nder will ba conducted in the English language; any translation of this Agreement into another language will be for convenience only but will not modify the meaning hereof. Only a written instrument duly executed by both parties may modify this Agreement. p. Entire Agreement. This Agreement contains the entire untlerstanding of the parties, and supersedes all prior agreements and untleretandings relating to [he subject matter hereof, provided that nothing herein will diminish or affect any separate services agreement or statament(s) of work issued thereunder. The parties represent that Shay are sophisticated commercial entities, have had the opportunity [o consult with their own counsel, and have Included in this Agreement all terms material to the parties' rights and obligations with respaci to the subject matter hereof and intend this tlocu ment to be the final expression of their contractual intent. The parties further represent and acknowledge that communications exchanged beiween the parties during contract negotiation (including, without limitation, requests for proposal ("RFPs") and Innovative's responses to such RFPs; questionnaires and responses to same, quotes) do not constitute a part of this Agreement. Purchase orders, work orders or other such tlocu ments submittetl by Client will be for Client's Internal administrative purposes only and the terms antl conditions contained in any such purchase order, work order or other such document will have no force or effect and will not amentl or modify this Agreement. In the event of any inconsistencies or conflicts among the GTCs, a License Agreement or any other exhiblia or schetlulas rafarencatl by these GTCs, the following order of priority will control: f. License Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or referenced by the Agreement. Page 13 of 37 Exhibit C Innovative Intertaces Incorporatetl P¢rp¢tual License Agreement Maintenance and Support Terms and Condltlons These Maintenance and Support Terms and Conditions ("Support Terms") apply to the License Agreement if, and only to the extent that, Maintenance and Support era identified on the Pricing Exhibit to the License Agreement as a purchased service and Client is current on its payment for such service. Unless otherwise specified, capitalized terms in these Support Terms have the same meaning as those in [he GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs. 1. Maintenance and Support. To the extent Maintenance and Support Is identified on the Pricing Exhibit to the License Agreement as a purchased service, Innovative will offer maintenance and support on the terms set forth herein ("Maintenance and Support") for the latest generally available version of the Software and for certain earlier versions in accordance with Innovative's support policy, at the price sat forth in the corresponding Pricing Exhibit. New Releases will be made available to Client during the Term of the Maintenance and Support set forth in the License Agreement, so long as Client is currant on its payment for such service. Client may discontinue Maintenance and Support at the and of the Initial Term or any Renewal Term in accordance with the termination notice provisions sat forth In the License Agreement, but must pay Maintenance and Support Fees for any discontinued Term in order to renew Maintenance and Support. 2. Error Response. Error descriptions (each an "Error"), the Error severity levels and corresponding targeted response time par level are each described in the table below. The Targeted Response Times in the table below identify the response times that Innovative will target for the corresponding Error, however, such Targeted Response Times are not guaranteed. 3everlty Description Target Res onse Time One - Sita Down A major component of the software is in anon -responsive state 'I hour and severely affects library productivity or operations. A high Impact problem that affects the entire library system. Widespread s stem availabilit reductions stem Is down Two —Critical Any component failure or loss of functionality not covered in 2 business Severity 'I that is hindering operations, such as, but not limited to: hours excessively slow response time, functionality degradation; error messages; backup problems; or issues affecting the use of the module or the data Three - Hi9h Lesser Issues, questions, or items that minimally impact the work 2 business days; flow or require a work around excludes noudaya and weekends Four— Routine Issues, questions, or items that don't impact the work flow. Issues 4 business days; that can easily be scheduled such as an upgrade or patch excludes holidays and weekends 3. Error Reporting and Diagnosis. a. Clfant must designate a representative as the contact that will report Errors to Innovative and ba Innovativa's primary contact for the provision of Maintenance and Support pursuant to lha terms of this Agreement (such representative is referred to herein as [ha "Client Contact"). When a Client Contact reports an Error, Innovative will use commercially reasonable efforts to diagnose the root cause of the Error ("Diagnosis"). Upon completing the Diagnosis, each Error will be classified as either a "Warranty Error" or a "Non -Warranty Error" pursuant to Section 3. b. below. Innovative will use commercially reasonable efforts to tliagnosa and repair both Warranty and Non -Warranty Errors as described below. Page 14 of 17 b. "Warranty Errors" are all Errors that do not qualify as Non -Warranty Errors. "Non -Warranty Errors" are Errors resulting from any of the following causes: (I) misuse, Improper use, alteration or damage of the Software; (ii) operator error; (iii) incorrect data entry by Client; (iv) third -party software not part of the Software; (v) errors and/or Ilmitatfons attributable to Client environment; (vi) Client's failure to Incorporate any New Release previously provided to it by Innovative which corrects such Error; (vii) modification of the Software performed by Client; and (viii) technical consulting services provided by Innovative at Client's request (e.g., change orders, int¢gration development, or configuration design and implementation), unless Client notifies Innovative of such technical consulting services problem within the applicable warranty period set forth in the governing statement of work, change order or agreement. Client acknowledges that the Software is intended for use only with the soflwar¢ and hardware described in the Sp¢cifications provided by Innovativ¢ from time to time, and Client will be solely responsible for its adherence thereto. 4. Complimentary and Chargeable Support. Innovative will respond to all reported Errors pursuant to Section 2 above and will use commercially reasonable efforts to resolve Warranty Errors at no additional charge if Client has purchased and is currant on Its payment for Maintenance and Support; however, Innovative may charge Client for such effort with respect to Non -Warranty Errors according to the following process: (I) When the Clint Contact reports any Error, prior to commencing the Diagnosis for the Error, Innovative will notify the Client Contact that [he Diagnosis and repair effort will be a[ no charge to Client unless the reported Error is determined to be a Non -Warranty Error, in which case only the first two hours of Diagnosis will be at no charge; and (fl) Innovative will then commence the Diagnosis unless Instructed otherwise by the Client Contact. If more than two hours are raq wired for the Diagnosis of Non -Warranty Errors, then such additional Diagnosis hours will be charged to Client at Innovativa's then -currant rate for technical services. Once the Diagnosis is complete, the Client Contact will ba g lven the option of having Innovative proceed with repairing the Non -Warranty Error, and, If so req wasted, Innovative will provide an estimate of the total cost for such effort. If agreed to by the Client Contact, Innovative will undertake to repair the Non -Warranty Error and charge Client for the associated technical services pertormed. 5. Ticket Management and Escalation. Innovative manages all reported Issues using a ticket management system, and provid¢s an Internet portal for Clients to report issues. Clients may review the status of issues reported online. When an Error is either unresolved or not resolved in a timely fashion, the Client should contact Innovative representatives pursuant to Innovative's escalation policy made available on Innovative's Internet portal. Page 35 of 17 Exhibit D Innovative Int¢rfaeas Incorporated Hosting Services Terms and Conditions These Hosting Services Terms and Conditions ("Hosting Terms") apply to the License Agreement if, and only to the extent that, Hosting Services are identified on the Pricing Exhibit to the License Agreement as a purchasatl service. Unless otherwise specified, capitalized terms in these Hosting Terms have the same meaning as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs. �. Hosting Services. The following terms apply for all purposes to Client's license to and use of the Software under the Agreement. 2. Hosting Solution. Innovative offers clients a standard cloud -based hosting option (the "Standard Plan"). The table below sets forth the features of the Standard Plan. This option provides industry -leading security and monitoring at a SOC t/SOC 2 Type 2/150 2700t-audited datacenter by a top -Liar cloud hosting provider (the "Hosting Provider"), with the flexibility to meat clients' data storage, data recovery, and information security policy requirements. To meet clients' global hosting neetls, Innovative offers hosting options in datacentars located In the United States, Canada, United Kingdom, Ireland, Australia and the Asia -Pacific region, however, Innovative reserves the rlghi to increase, decrease and/or relocate its datacantars at anytime. Feature Standard 24x7 infrastructure monitoring ✓ Dedicated production environment ✓ 99.9 % guarant¢ad infrastructure uptima" ✓ Dedicated public IP address and custom URL ✓ Operating system installation and management ✓ Library software instailation and upgrades ✓ Data backups Deily Archive data backup retention 30 days 3. Hosting Solution System Configuration. The hosting systems are configured to meat the solution requirements as per the Hosting Terms sat forth on the Pricing Exhibit to the License Agreement. 4. Security Controls. a. Generally. Subject to the terms of the Agr¢emant, Innovative implements industry -recognized best practices to prevent the unintended or malicious loss, destruction or alteration of Client's data resident in the Software. b. Access Control. Highly available redundant firewall and edge routers are configured to control access to hosted systems e. Network Systems Audit Loeeine. All network logon activity and passwortl changes are logged, monitored, controlled and audited. All Intrusion detection and firewall log monitoring is done through services provided by the Hosting Provider. The pertinent log files antl configuration files related to customer's hosted solution are retained for seven days and can ba made available upon request for audit antl problem resolution, as may ba required. d. Encryption. Encryption for data -in -transit is providetl as a part of the Standard Plan. e. Network Monitorinc. All network systems and servers era monitored 24/7/365. Innovative will monitor its systems for security breaches, violations and suspicious (questionable) activity. This includes suspicious external activity (Including, without limitation, unauthorized probes, scans or break-in attempts) and Page 16 of 17 CAr> suspicious internal activity (including, without limitation, unauthorized system administrator access, unauthorized changes to its system or network, system or network misuse or program Information theft or misha ntlling). Innovative will notify Client as soon as reasonably possible of any known security breaches or suspicious activities involving Client's protluction data or environment, including, without limitation, unauthorized access and service attacks, a.g., denial of service attacks. f. Physical Security. Tha Software resides in systems configured for the customer out of Innovative's hosting location. The physical infrastructure usetl to support Software licensed [o Client (and services purchased by Client from Innovative, as applicable), including the servers, storage, switches, and firewalis, are either provided by the Hosting Provider or owned by Innovative. Innovative partners with datacantar providers whc are designed to satisfy requirements of most security sensitive customers with constant monitoring high automation, high availability, and highly accredited to global security standards, Including: PCI DSS Level 1, ISO 2700'I, FISMA Moderate, Fed RAMP, HIPAA, and SOC 'I (formerly referred to as SAS 70 and/or SSAE '16) and SOC 2. g. Security Audits. Client may perform audits of Innovative's security best practices. Innovative will share various security audit r¢ports as requested by Client. h. Information Security Au ditlnc/Comol'ance. Innovative's hosting providers undergo SOC �/SOC 2 Type 2/ISO 2700'I audits each year by independent third -party audit firma. Innovative also holds the internationally -recognized ISO 2700'1:20t3 standartl for its information security management system supporting the hosting solutions. i. "The 99.9 % guaranteed infrastructure uptime is subject to the following Service Level Agreement (SLA): 1. Hours of ooerat'on/exclusive remedy for serv'ce unayailabillN. Innovative offers a monthly infrastructure uptime target of 99.9 % of Scheduled Up -Time to Client. Scheduled Up -Time means all of the time in a month that is not Schetl uletl Downtime or Third Party Unavailability. In the event that Innovative fails to provide Client with 99.9 %infrastructure uptime for three consecutive months, Cllant will ba entitled to receive a credit equal to [ha prorated amount of the Fads for the period in which Innovative tailed to provide such infrastructure uptime during such months upon receipt of written notice from Client. Tha remedies set forth in this Paragraph (i) are the exclusive remedies of the Client for Innovative's failure to provide Client with 99.9 Infrastructure uptime. ii. Scheduled Downtime. Scheduled Downtime mans the period of time which Innovative or the Hosting Provider, conduct periodic scheduled system maintenance for which Innovative will provitle the Client with advance notice. Innovative will make commercially reasonable efforts to provide Cllant notice of Schad uletl system maintenance 48 hours to advance. Page 17 of 17 cn INNOVATIVE INTERFACES INCORPORATED E VICE SAAS SUBSCRIPTION AGREEMENT This Software -as -a -Service (Sae S) Subscription Agreement ("Baas Agreement") is entered Into by and between Innovative Intertaces Incorporated, a California corporation ("Innovative"), antl the party identified as Client below ("Client" or "County"), a political subdivision of the State of Floritla (collectively the "Parties"), as of the "Effective Date' also set forth below. Innovative Innovative Intertaces Incorporated Addresa t 900 Pow¢II ST, Suite 400, Emeryvill¢, CA 94608 Innovative Point of Contact Dennis Carter, Director 8 Sales Account Manager Phon¢: 734-5727340 Email: dannis.carter�clarivat¢.com Cllant Collier County Board of County Commissioners, FL for an on behalf of Collier County Public Library Atldress 2385 Orange Blossom Dr., Naples FL 34t09 Customer No. CV0256 Effective Data Initial Tarm 60 Months 1. Definitions. "Go -Live Dale" means the date of Client's firs[ access to the Application Services. "GTCs" means the Innovative Interfaces Incorporated SaaS Agreement General Terms and Conditions In Exhibit B. "S LAs" means the Innovative Intertaces Incorporated Service Leval Agreements in Exhibit C. "Security Terms' means the Innovative Intertaces Incorporatetl Information Security Terms and Conditions in Exhibit D. 2. General. Innovative and Client agree that this SaaS Agreement is a binding agreement between the parties and is governed by the GTCs, SLAB, and the Security Terms, all of which err¢ made a part hereof. This SaaS Agreement, the GTCs, SLAB, Security Terms, and all other exhibits, sehetlules and terms and conditions referenced by or In this SaaS Agreement, the GTCs, SLAB or Security Terms together constitute the "Agreement." Client acknowledges and agrees that it has M1ad the opportunity to review the Agreement, including without limitation, the GTCs, SLAB and Security Terms, prior to the execution of this Agreement. Unl¢ss otherwise specified, capitalized terms in this Agreement have the same maanin9 as those in the GTCs. This Agreement Is governed by and Interpreted In accordance with the internal substantive laws of the States of Florida, without regard to any other laws that would require the application of the laws of anotherjurisdictlon. Application of the U.N. Convention on Contracts for [ha Interna[lonal Sals of Goods is hereby excluded. 3. Additional Termer. a) Annual Su bserl ption Term. Client's annual subscription term is January t through December 3'I (the "Annual Subscription Tarm"). Innovative will prorate the su bscriptfon of the products as detailetl in Exhibit A to run coterminous with the Annual Subscription Term. b) IPA Reference. If requested by Innovative, Client agrees to act as a reference for other potential Innovative Phones Alerts (IPA) customers. Page 1 of 17 C'ArJ A PRICING EXHIBIT B GENERAL TERMS AND CONDITIONS C SERVICE LEVEL AGREEMENTS D INFORMATION SECV RITY TERMS AND CONDITIONS EXHIBITS TO SAAS AGREEMENT [Signature page to follow] Page 2 of 17 \_' In witness whereof, the parties have executed this Agreement by their duty authorized representatives as of the Effective Date. Client Cofiler County Board of County Commissioners,, FL for and on behalf of Collier County Public Innovative Interfaces Incorporated Library Division By: B: Name: Name: Title: - Date: - c 1 Date: ATTEST: Crystal K. Kinzel, Clerk of the Circuit Court And Comptroller By: ____ Dated: (SEAL) Approved as to Form and Legality: County Attorney Print Name INNOVATIVE WITNESSES: First Witness Type/Print Witness name Page 3 of 17 Exhibit A Pricing Exhibit [APPROVED APPLICATION SERVICES QUOTE FOLLOWS THIS PAGE] wage a of 17 Cno iii innovative Part of Clarivate Innovative Interfaces Incorporated 3'133 W. Frye Rd. Sulta 400 Chandler AZ 86226 Uni[ad Sta[as Bill To Ship To Colplier County Public Library ColpPlier Coug3nty Public Library BOlo9ssom Dr. ad gO9ssom Dr. Unit States United States Pricing Exhibit Data vzT/zozz Quoea p EST-INC14620 Payment Termv Ns\30 •all C m (Montb.) 36 co�uam s�a.<o.e. ceao-aaa Ena pea. s.m. nap wenaan amlae sit. ceaa aapl Explmv l/9L2029 1 ba na ana omp as a clans-b as ta.eoo Communlca6on lattorm-Outboun0 eo bm helps Ilbretlea to aMclen[ly i Alerts�ra unlcata key noOcas dbadly wl[M1 pp I [M1alr pabon. lnbountl ¢ys\em allow¢ t2.000s� CtHls/Mo Prnrmatlan anaalg.airannant to library ennauncemenl'asten putbounE Celle Pridng la based m number at calla Volume: beaetl on ettaalbusaagluslnnw IIva11Y Cu rent the rIBM1t to Invaeea pricing Inbountl Ih �mberiar calls quot¢tl by ma a Wlume: elan 160% 8000 Currency us Oo//ar First Year Total US$'10,800.00 fit Exhibit B Innovative Intertacas Incorporated SaaS Agreement General Terms and Conditions Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in the SaaS Agreement. 'I. Access to and Use of the Application Services. a. Subject to the terms and conditions of this Agreement, including without limitation Client's payment of all of [he Fees (defined below) due hereunder, Innovative will provide Client and its Authorized Users (defined below) with subscription access and certain subscription services via an Innovative websita or websites to its Integrated Library System solution known as "Vega" or the "Platform," including features identified as "Saa S" in the Pricing Exhibit (collectively, the "Application Services"). Such Application Services will be for the duration of the Term of this Agreement and will automatically expire upon the termination or expiration of this Agreement or as otherwise speci£etl in this Agreement. b. Client and, where applicable, its Authorized Users may access and use the Platform (Including any Client Configurations) (i) only for the management of the library and for servicing its patrons (including permitting Authorized Users to search library catalogues), and not on an outsouroed basis, as a service bureau, for resale, or similarly on behalf of or for the direct or indirect benefit of third parties, and (ii) only in accordance with the other terms of this Agreement. Client will be responsible for its Authorized Users' compliance with the terms hereof. Without limiting the foregoing, Client agrees that It and its Authorized Users will: (i) comply with all applicable laws regarding the transmission of data, including, without limitation, any applicable export control and data protection laws; and (ii) not use the Application Services for illegal purposes. c. The Application Services may be used by the base number of Client's worldwide employees, third -party auditors, agents and contractors ("Authorized Users") sat forth in the Pricing Exhibit for such Application Services and such additional Authorized Users as may ba hereafter identifietl to Innovative by Client for which Client pays the additional Fees referred to In Section 4(a) of this Agreement, provided that all such Authorized Users shall assent to the on-line account verification terms on the Platform. An Authorized Vser is a single user of the Application Services and their right to use the Platform may be transferred to another individual user. Such rights may not ba shared on a part time or concurrent user basis. For the avoidance of doubt, Client patrons do not fall within the definition of Authorized Users. Client agrees that it and its Authorized Users will: Not intertere with or disrupt the servers or networks used to provide the Application Services; Not transmit through the Platform junk mail, spam, chain letters, or unsolicited mass distribution of flies lit. Not transmit viruses or otherwise malicious code or data; iv. Not attempt to copy, modify, make derivative works of, reverse engineer, disassemble or decompile the Platform or any Innovative system, nelworK or software; v. Comply with all applicable laws regarding the transmission of data, including, without limitation, any applicable export control antl data protection laws; and vi. Not use the Application Services for illegal purposes. d. Innovative includes in th¢ F¢as rights to access and use all new scheduled major releases, service pack releases, and hot fixes of the Platform offered generally by Innovative to Its clients during the term of this Agreement (collectively, "N aw Releases"). "New Releases" do not include new or additional modules, applications or other software now or hereafter offered by Innovative, eacM1 of which require payment of additional fees. Tha term "Application Services" will be deemed to Include Naw Releases. e. Innovative offers support for [he Application Services in accordance with the SLAB, the terms of which are incorporatetl by reference herein. 2. Acceptance. Following the execution of the Agreement by the parties, Innovative will deliver the login credentials for [he Client's network administrator for the Client's Instance of the Platform, in its preconfigured format. Client will be deemed to have acceptetl that the provisioned Platform has been delivered upon receipt of credentials. 3. Ownership. a. Intellectual Prooartv Riehts. All Intellectual Property Rights (defined below) {n the Platform and also including, without limitation, all Improvements, enhancements, motlifications, Client -specific upgrades, or updates Page 5 of 17 C,tU to the Platform, developetl by either party, solely or jointly (collectively, "Innovative Products"), will remain the exclusive, sole and absolute property of Innovativa or the thirtl parties from whom Innovative has obtained the right to use the Innovative Products. Intellectual property created by Innovative pursuant to this Agreement, or any other party at the request or direction of Innovative, will be gwnetl by Innovative. "Intellectual Property Rights" means any antl all intellectual property rights existing from time to time under any law or regulation, including without limitation, patent law, copyright law, semiconductor chip protection law, moral rights law, tratla secret law, trademark law, unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extanslona and restorations of any of the foregoing, now or hereafter in force and affect worldwide. Client hereby assigns to Innovative all right, title and into rest in any feedback and suggestions it provides to Innovative regarding the Platform, Application Services or other products commercializetl by Innovative now or In the future. This Agreement does not convey to the Client any interest in or to the Innovative Products or any associated Intellectual Property Rights, but only a Ilmited right to use the Platform and Application Services to the extent set forth in this Agreement, which right is terminable in accordance with the terms of this Agreement and is otherwise subject to the limitations, restrictions, and requirements containetl herein. If Client configures the Platform using an API hereunder, Client will also have a right to use such configurations as part of the Platform on the terms set forth in Section �. Rights not expressly grantetl to the Client are hereby expressly reserved by Innovative. b. Thirtl-Party Proorietary Ria hts. For purpose of this Agreement, as between Innovative and Client, any I ntelleetual Property Rights in [he Innovative Protl ucts to the extent owned by any third parry will ba antl remain the exclusive property of such third party. The Platform may Include third -party software and products, which era described in the documentation end/or Specifications made available to Client by Innovative, and any third -party pass -through terms relating to such third -party software and products are identified therein (or by other mod¢ of disclosure). c. Client Data. Except as expressly stated herein, Client will exclusively have and retain all right, title antl interest, including all associaletl Intellectual Property Rights, in and to data that Client enters into the Platform or disclosed by Client to Innovative in Its pertormanca hereuntlar ('•Client Data"), and, as between Client and Innovative, such Client Data will remain the sole property of Client. Client hereby grants to Innovative a license to use Client Data (i) to process the Cllant Data pursuant to Client's business requirements, (II) for maintenance antl support of the Platform, (iii) to collect and use aggregate, non -identifying and anonymized data, and (iv) for research and development purposes. Client acknowledges and agrees that it will have no rights in any products or services created or sold by Innovative or its affiliates that use any of the Client Data In the manner set forth in (iii) or (iv) of the preceding sentence. To the extent that applicable law requires any permissions or authorizations to have been obtained prior to submission of Client Data to Innovative (including without limitation from Individuals to whom the data pertains), Glienf warrants antl covenants that it (and Its Authorized Users, as applicable) will have first obtained the same permissions or authorizations prior to transmitting such tlata to Innovative. As Ilmited by Client's sovereign immunity sat forth in Floritla Statutes, Section 768.28, Client will defend, Indemnify and hold harmless Innovative in the event of any third -party claim arising from a breach of [he aforesaid warranty and covenant. 4. Fees; Expenses; Payment Terms. a. In consideration of receiving a limited right to access and use the Application Services, Client will pay the fees set forth in the Pricing Exhibit (the "Fees") on the terms sat forth therein antl in compliance with Chapter 2'18, Fla. Stet., otherwise known as the "Local Government Prompt Payment Act.". Initial invoicing under this Agreement will occur when the Platform is initially delivered to Client per Section 2; subseq u¢nt renewal invoices will be sent to Client prior to the date such payment is due. Through the Initial Term as identified herein, Innovative will have the right to increase rates hereunder by up to 2 % over the previous year. If r¢newed and commencing on [he first annual renewal following the expiry of the Initial Term, antl annually thereafter, Innovative will have the right to Increase rates hereunder by up to SYO over the previous year. Innovative will have the right to revise Fees basetl on population, as set forth In the Pricing Exhibit, after the Initial Term and periodically thereafter, but no more than once annually. Invoic¢s for any Renewal Terms may be providatl to Client up to 90 days prior to the effective date of such Renewal Term. Client will notify Innovative in writing if Client hereafter requires atltlitional Authorizetl Users or additional Platform features and will pay the fees for such etltlitional Authorized Users or additional features in accordance with the terms sat forth on the invoice for such fees. The Platform may, from time to time, electronically transmit to Innovative reports verifying the type antl number of Authorized Users, and Innovative may utilize access k¢ys or other reasonable controls to enforce Authorizetl User limitations. Client will cooperate with Innovativa In all such efforts. b. All Faes must be paid to Innovative in compliance with Chapter 2'18, Fla. Stet., otherwise known as the "Local Government Prompt Payment Act.". Page 6 of 17 cno c. Fees for additional third -party product, hardware and services are subject to change and will be quoted at the then currant rate. d. All Faes are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the delivery and access and use of the Application Services, all of which Client will be responsible for and will pay in full, other than taxes based on Innovative's net Income. Client will provide Innovative its state issued Direct Pay Exemption Certificate (or equivalent certificate), if applicable, upon execution of this Agreement. In the evens an applicable taxing authority, as a result of an audit or otherwise, assesses additional taxes for goods or services sold under this Agreement at any time, Client and not Innovative will be solely responsible for payment of such additional taxes and all costs associated with such assessment, including without limitation, interest, penalYles antl attornay's f¢es. Adtlitionally, should Client ba required under any applicable law or regulation, tlomestic or foreign, to withhold or deduct any portion of the payments due to Innovative hareu nder, then the sum due to Innovative will ba incr¢ased by [he amount necessary to yield to Innovative an amount equal to the sum Innovative woultl have received had no withholdings or deductions been made. Where this Agreement establishes a due data for a payment and/or a recurring method for payment, payment will be due and payable on such due date and/or according to the method specified. Oth¢r fees or expenses charged pursuant to this Agreement will be paid at the amounts set forth in the Invoice within 30 (thirty) days of the date of the Invoice. All amounts stated herein and all Faes determined hereuntlar are in U.S. Dollars, unless otherwise required by applicable law. Collier County, Florida as a political su bdlvision of the State of Florida, is exempt from the payment of Florida sales tax to its Contractors under Chapter 2'12, Floritla Statutes, Certificate of Exemption #85-H O'15966531 C-'1. e. Any late Interest fees shall ba pursuant to Section 218.74, Fla. Stet 5. Limited Warranty. a. Innovative warrants, solely for the benefit of Client, that: i. It has the corporate power and authority to enter into this Agreement for the provision of the Application Services; ii. It will provide access to the Platform in accordance with [he SLAB. The exclusive remedy of Client under the limited warranty set forth in this Section 5(a)(ii) is set forth in the SLA; and iii. The Platform will conform in all material respects to the applicable technical documentation for the Platform provided to Client by Innovative antl expressly identified by Innovative as the specifications for the Platform (cellectively, the "Specificatlona"). b. TO THE MAXIMVM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR (i) THE WARRANTIES EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY WARRANTY, REPRESENTATION OR CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON -INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SVBCONTRACTORS AND SV PPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BV OR ON BEHALF OF INNOVATIVE WILL SATISFY CLIENT'S REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT - FREE OR UNINTERRUPTED OR AVAILABLE ON THE INTERN ET, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5(a), THE SOFTWARE, INCLUDING ALL CONTENT, IS PROVIDED "AS IS;' WITH ALL FAVLTS AND WITHOUT ANV GUARANTEES REGARDING DUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY, INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR SELECTION, USE, QUALITY, PERFORMANCE, SVITABILITY AND RESULTS OF USE THEREOF, INCLUDING ALL CONTENT GENERATED THROUGH USE THEREOF. c. As the exclusive ramatly of Client for a breach of the limited warranties set forth in Section 5(a)(lii), for any error or other defect for which Innovative is solely responsible, Innovative will, at Its option, either (i) correct or repair the Platform, or (il) accept termination of this Agreement antl refund the unusetl balance of any prepaid subscription Feces, prorated for the period commancln9 on the date the error or defect was reported by Client to Innovative and continuing throughout the balance of the period to which such Fees apply. None of the above warranties or remetlias Page 7 of 17 CAV in this Section 5 will apply with respect to any element of the Application Services that has bean motlified by any party other than Innovative, or usetl in a manner for which the Appllcation Services is not tlasigned or intentlatl. 6. LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BV APPLICABLE LAW, IN NO EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PV NITIVE DAMAGES UN DER ANV CIRCUMSTANCES WHATSOEVER, EVEN IF INNOVATIVE HAS 6EEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE OTHERWISE FORESEEABLE. INNOVATIVE'S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT. 7. Indamniflcation. a. If a thirtl party files a legal action in a court of competent jurisdiction against Client claiming the Appllcation Services, as delivered to Client by Innovative, directly infringes such third party's U.S. copyright or V.S. patent, Innovative will defend Client against such Is9a1 action, provided that Client promptly notifies Innovative in writing of the legal action and fully cooperates with Innovative In the tlefanse of such legal action. Innovative will also indemnify Client from all damages antl out-of-pocket costs (including raasonabla attorneys' fees) finally awardetl by a court of competent jurisdiction In connection with any such legal action, or agreed [o by Innovative in a settlement. Innovative will control all aspects of the defense and conduct the defense and any settlement negotiations in any such third -party legal action. This indemnification is limited to the Platform In the form tlelivaretl to Client and does not cover claims arising from (x) modifications thereto not made by Innovative, or, even If by Innovative, at the request of Client; (Y) use of the Platform in combination with other software or items not providatl by Innovative, or (z) third party modifications (including addition of source coda) to the Platform. b. As the exclusive remedy of Client under the limited Indemnity set forth in Section 7.a, if the use of the Application Services by Client is enjoined, Innovative will, et its sole option: (i) obtain for Client the right to continue to use the Application Services, (II) modify the Application Sarvtces to remove the cause of the legal action, (iil) replace the Application Services at no atltlitional charge to Client with a substantially similar, non -infringing product, which will than be subject to the provisions of (his Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees allocable to the infringing component of the Application Services, prorated for the period Client's use of the Application Services is enjoined. None of the above warranties or remedies will apply with respect fo any element of the Application Services that has been modified by any party other than Innovative, or used In a manner for which the Application Services is no[ designed or intended. This Section states Innovativa's entire liability and Client's exclusive remedies for infringement of intallactual property rights of any kintl. 8. Confidentiality. a. Client acknowledges that all docu mantation, audit reports, technical information, software, Specifications and other information pertaining to the Software, antl/or Innovative's business interests or activities, financial information, methods of operation or customers that are marked and disclosed by any party to Client in the course of partorming this Agreement or any ensuing business arrangement shall be treated as the confldantlal and proprietary Information of In novativa and, pursuant to Florida Statute § 8t 5.048, will be regarded as a Tratla Secret. Innovative acknowledges that Client Data and other proprietary Client materials marked as confidential shall ba the Confidential Information of Client. Tha Information end materials described in the preceding sentences is referred to herein as "Confitlential Information." Notwithstanding [he foregoing. the term "Confidential Information" does not include information pertaining to a party if: (I) such information is generally known to the public through no improper action or inaction by the other party, (ii) was, through no Improper action or inaction by the other party, in [he possession of the other party prior to the Effective Date, (iii) rightly disclosed to the other party by a third party if such disclosure does not violate the terms of any confidentiality agreement or other restriction by which such third party may be bound, or (iv) although falling under the definition of Confidential Information provided heroin, [ha material is jutlicially tleterminad not to be exempt untler the Florida Public Reeortls Act, Chapter � � 9, Fla. Slat. b. All Confitlential Information will ba held in confidence and may not be copied, used or disclosed other than as sat forth in this Agreement. Each party must take all raasonabla efforts to protect the confidentiality of and prevent the unauthorizetl use of any such Confidential Information by any third party within such party's control. Each party may disclose Confldantfal Information (i) to the receiving party's employees and contractors required to have access Page 8 of v [o such Confldantial Information for the purposes of partorming this Agreement or using the Software, provided each party harato notifies its employees and contraeto rs accessing such Confidential Information of the confidentiality obligatfona in this Section 8; or (ii) if such disclosure is in response to a valid order of any court, statute, or other governmental hotly ("Order"), in which event, the disclosing party must use reasonable efforts to provide the other party with prior notice of such Order, to the extent legally permitted to do so and in accordance with the Order. Except as providetl herein, In the event Innovative marks or designates any records as comprising Confidential Information, which the Client does not believe meats the definition, prior to providing such information under a public record request it shall Frst notify Innovative that it has received a request for the records) and that it will release the records) as not confidential but will first allow Innovative an opportunity to seek a protective order as to those records. Confidentiality of Information contained in this agreement is subject to the req ufremants of the Florida Public Records Act, Chapter 'I '19, Fla. Stet., the Florida Sunshine Law, Chapter 286, Fla. Stet and Floritla Statute § 815.045 in the protection of Tretla Secrets. c. Recognizing any improper use or disclosure of any Confidential Information by either party may cause the party whose Confldantial Information is improperly usetl or disclosed irreparable damage for which other remedies may ba inadequate, a party whose Confidential Information is improperly used or disclosed will have the right to petition for injunctive or other equitable relief from a court of competent jurisdiction as appropriate to prevent any u nauthorizad use or disclosure of such Confidential Informatlon. tl. If the parties have previously executed a nondisclosure agreement ("N DA"), any Confidential Information exchanged pursuant to such NDA will remain confidential, and will as of the tlata of the execution of this Agreement be deemed Confidential Informatlon within the meaning of this Agreement and also be governed by the terms hereof. 9. Term; Termination. a. Term. Subject to the early termination provisions set forth below, this Agreement will ba effective for an initial term of five (5) years following the Go -Live date (the "Initial Term"). This Agreement may be renewed for an additional one-year term (being a "Renewal Term' and, together with the Initial Term, the "Term"), upon the Client providing written notice to Innovative of not lass than ninety (g0) days' prior to [ha and of the Initial Term. b. Termination for Breach. If either party harato fails to pertorm or comply with any material term or condition of this Agreement, specifically inclutling Client's failure to pay any Faes (such party being the "Breaching Party"), and such failure continual unremetlied for 30 (thirty) days after receipt of written notice, the other party may terminate this Agreement. Notwithstanding the foregoing, if the Breaching Party has in good faith commenced to remedy such failure and such remedy cannot reasonably be completetl within such 30-day periotl, then the Breaching Party will have an additional 30 (thirty) days to complete such remedy, after which period the other party may terminate this Agreement if such failure continues unramedied. c. Termination for Elimination of Budget. Client may terminate this Agreement at any time during the Initial Term affective as of the date of the next annual anniversary of the Effective Date if Client's budget (funding) is eliminated and Client provitles written evidence to Innovative of the elimination of Client's budget (funding), such evidence to ba in the form and substance reasonably requested by Innovative. d. Except for a termination by Client pursuant to Section 9. b., antl unless as otherwise set forth in this Agreement, upon any termination of this Agreement, all prapaitl Fees will ba nonrafu ndabla and Client will be responsible for all Fees and expenses for the Application Services provided prior to and as of the date of termination. Any termination of this Agreement will not waive or otherwise ativersaly affect any other rights or remedies the terminating party may have under the terms of this Agreement. Upon termination of this Agreement, the rights and duties of [he parties will terminate, other than the obligation of the Client to pay Feas and costs in accordance herewith, and the obligations of the parties pursuant to Section 'I .c. (Access to and Use of the Application Services), Seciion 3 (Ownership), Section 4 (Fees; Expenses; Payment Terms), Section 6 (Limitations on Liability), Sac[lon 7 (Indemnification), Section 8 (Confidentiality) Sections 9. d. and 9.e. (Termination), Section 'I'I (Client Configurations) and Section '12 (Generap. Within 30 (thirty) days of receipt of a written request following a termination of this Agreement, each party must return or destroy all Confidential Informatlon of the other party, as requested in writing by the other party. Notwithstanding the foregoing, a party will not be obligatetl to tlastroy data containing Confidential Information of the other party when it would be commercially Impracticable for the receiving party to do so (for example, when Confidential Information is contained In a -mall stored on backup tapes or other archival matlia), but for so long as such receiving party is in possession of such Confidential Information of the other party, the terms of Section 8 (Confitlantiality) hereof will continue to restrict the receiving party's use or disclosure of such Confidential Informatlon. Neither party will ba liable to the other for any termination or expiration of this Agreement in accordance with its terms. Page 9 of 17 CAt> e. Following termination of this Agreement, Innovative has no duty whatsoever to deliver to Client any parts of its programming, data motlel, or any other information regarding which Innovative claims a proprietary or Intellectual Property Right. To the extant that Innovative is requested to partorm any services for Client in connection with the termination of this Agreement (including without limitation providing Client with a copy of Client Data in a commercially -standard format to be agreed upon by the Parties), such service will be performed pursuant to a written statement of worK under a separate professional services agreement and paid for by Client, applying inngvative's then -current rates for daily/hourly work, as the case may ba. 10. Third -Party Software. The Platform may contain third -party and/or "open source" code provided under third -party license agreements. The terms and conditions of such third -party license agreements will apply to such source cotle in lieu of these terms, where appilcabl¢, and Client is responsible for compliance therewith. A listing of certain third -party and/or open source coda contained in the Platform, the respective license terms applicable to such coda, and certain related notices are included in the documentation and/or Specifications made available to Client by Innovative. Except as required for the authorized use of [ha Platform as contemplated herein, Client may not use any name or trademark of any supplier of third party or open source coda without such party's prior written authorization. 11. Client Configurations. Client use of APIs ("Client Configuration") is subject to the terms of use available at hops://www.iii.com/api-license. Innovative disclaims all representations and warrantless, express or implied, regarding Client Configurations antl assumes no liability whatsoever with respect to Client Configurations. To the extent permitted by law, Client agrees to Indemnify end hold harmless Innovative from all damages and out-of- pocket costs (including reasonable attorney fans) for any third -party action based on a claim that any Client Configuration Infringes a copyright or a patent, or constitutes an unlawful tlisclosu re, use or misappropriation of another party's trade secrets. 12. General. a. No Waiver. The failure of either party to enforce any rights grantatl hereunder or to take action against the other party in the event of any breach hereunder will not ba deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. b. Indeoentlant Contractor. Client acknowletl9as that Innovative is at all times an indepentlent contractor and that Client's relationship with Innovative is not one of principal and agent nor employer and employee. No Innovative personnel will be entitled to participate in any compensation or benefits plan of Client. c. Force Maieure. Neither party will be liable or responsible for any tlalay or failure in performance if such delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo, government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions of carriers, third -party local exchange and long distance carriers, utilities, Internet service providers, transmitters, vandals, or hackers, or any other similar causes that may ba beyond its control (a "Force Majeure Event"). tl. Notice. Any notice or communication required to be given by either party must be in writing antl made by hand delivery, express delivery service, overnight courier, electronic mall, or fax, to the party receiving such communication. Unless otherwise instructed In writing, such notice will be sent to the parties at the addresses set forth on the first page of the Agreement. All communica[lons pursuant to this Section will be deemetl delivered as follows: (a) upon receipt, if d¢liv¢ratl personally or by a recognized express delivery or courier service; or (b) when electronically confirmed, if delivered by facsimile. a. Invalidity. Any provision of ih is Agreement which is Invalid, illegal, or unenforceable in any jurisdiction will, as to that jurisdiction, be Ineffective to the extant of such invalidity, illegality or unentorceabllity, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. f. Counleroarts. This Agreement may be executed by lha parties in separate counterparts by original, .pdf (or similar format for scann¢tl copies of documents) or facsimile signature, each of which when so executed and delivered will ba deemetl an original, but all such counterparts will together constitute but one and the same Instrument. g. Publicity. Except as provided in this Section, neither party will make any press release, public statement or other disclosure regarding the terms of this Agreement without [he prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Innovative will have the right to issue public statements pertaining to the existence of the business relationship between Innovative and Client, Including Page 10 of 17 c/ th¢ right to limited use of Client's name, logo and other reasonable nonconfitlential information in press releases, web pages, advertisements, and ocher marketing materials. h. Assienment. Neither party has the power to assign, license, or sub -license any of its rights or obligations hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any assignment, license, or sub -license attempted without such consent will be void. Notwithstanding the foregoing, a party may assign this Agreement without the other party's consent (i) as part of a corpora[¢ reorganization, consolidation, merger, or sale of su bstantiaiiy all of its assets or capital stock; or (ii) to an Affiliate of such party provided that any such assignment will not release the assigning party from its obligations under this Agreement. i. Insurance. Innovative Is to provide Client proof of insurance as follows: t. Technology Errors S Omission: $'1,000,000 single limit; 2. Cyber Liability - $1,000,000 single limit. Collier County Board of County Commissioners shall ba listed as the Certificate Holtler. j. Govarnino Law antl Venue. This Agreement shall ba interpr¢ted under and its pertormanee governed by the laws of the State of Florida. Any suit or action by either party to this Agreement against the other party relating to or arising out of this Agreement must ba brought in the appropriate fetleral or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. k. Public Entity Crime. By execution of this Agreement, Innovative acknowledges to comply with the terms of Section 287.'133 of the Florida Statutes and inform the County of the conviction of a public entity crime. 1. Public Records Comoliance. By executing and entering Into this Agreement, Innovative is formally acknowledging without exception or stipulation that it agrees to comply, at its own expense and in so far as they are relevant to Innovative's partormance of Its obligations under this Agreement, with all federal, state and local laws, codes, statutes, ordinances, rules, regulations and requirements applicable to this Agreement, including but not limited to those dealing with the Immigration Reform and Control Act of '1986 as located at 8 U.S.C. '1324, et seq. and regulations relating thereto, as either may be amended, as well as the requirements sat forth in Florida Statutes, §448.095; taxation, workers' compensation, equal employment and safety (including but not limited to, the Florida Public Records Law � f 9), including specifically those contractual requirements at F.S. § 'I'19.070'I (2)(a)-(b) as statetl as follows: IF THE CONTRACTOR HA3 QUESTIONS REGARDING THE APPLICATION OF CHAPTER t19, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTV TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CV STODIAN OF PUBLIC RECORDS AT: Communications, Government G Public Affairs Division 3299 Tamiaml Trail East, Suite 102 Naples, Florida 34'I'12-5746 Telephone: (239) 252-8999 Email: PublicR a as collier o fl. ov The Contractor must specifically comply with the Florida Public Records Law to: t. Keep and maintain public records requiretl by the public agency to pertorm the service. 2. Upon request form the public ag¢ncy's custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise providetl by law. 3. Ensure that public r¢cortls that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Contractor does not transfer the records to the public agency. 4. Vpon completion of the contract and upon request, transfer, at no cost, to She public agency all public records in poss¢ssion of the Contractor or keep and maintain public records required by the public agency to pertorm the service. If the Contractor transfers all public racortls to the public agency upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public Page 11 of 17 CAU records. All records stored electronically must be provided to the public agency, upon request from the public agency's custodian of public recortls, in a format that is compatible with the informefion technology systems of the public agency. If Contractor observes that the Contract Documents are at variants therewith, it shall promptly notify the County in writing. Failu ra by the Contractor to comply with the laws referenced herein shall cona[Itute a breach of this agreement and the County shall have the tliscretion to unilaterally terminate this agreement immediately. m. Disoute Resolution. Prior to the initiation of any action or proceeding permit[etl by this Agreement to resolve disputes between the parties, the parties shall maKe gootl faith effort to resolve such disputes by negotiation. The negotiation shall be attended by representatives of Innovative with full decision -making authority and by Client's staff person who make the presentation of any settlement reached during negotiations to Client for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Metliation before an agreed -upon Circuit Court Mediator certiiatl by the States of Florida. The metliation shall ba attended by representatives of Innovative with full decision -making authority and by Client's staff parson who woultl make the presentation of any settlement reached at mediation to the Client's board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring metliation under section 44.'102, Fla. Stet. n. Waiver of Jury Trial: Governing Lancuaca. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURV TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be contluctetl in the English language; any translation of this Agreement Into another language will be for convenience only but will not motliry the meaning hereof. Only a written instrument duly executed by both parties may modify this Agreement. o. Entire Aoreemen[. This Agreement contains the entire understanding of the parties, and supersetles all prior agreements and untlarstantlings relating to the subject matter hereof, provided that nothing herein will diminish or affect any separate services agreement or statamant(s) of work issued thereunder. The partlas represent that they era sophisticated commercial entiti¢s, have had the opportunity to consult with their own counsel, and have included in this Agreement all terms material to the partlas' rights antl obligations with respect to the subject matter hereof and intantl this tlocu ment to ba the £nal expression of their contractual intent. The partlas further represent and acknowledge that communications axchangetl between the parties during contract negotiation (inclutling, without limitation, requests for proposal ("RFPs') and Innovative's responses tc such RFPs; questionnaires and responses to same, quotas) do not constitute a part of this Agreement. Purchase orders, work orders or other such documents submitted by Client will ba for Client's internal administrative purposes only and the terms antl conditions contained in any such purchase ortler, work order or other such tlocument will have no force or effect and will not amend or motliry this Agreement. In the event of any inconsistencies or conflicts among the GTCs, the SaaS Agreement or any other exhibits or schedules referenced by these GTCs, the following order of pAori[y will control: t. SaaS Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or referenced by the Agreement. Page 12 of 17 (�i Exhibit C Innovative Intartaces Incorporatetl Service Level Agreement This Service Level Agreement ("SLA") betwe¢n Client and Innovative for the Platform apply to the SaaS Agreement and, except as othenvisa sat forth below, is provided at no additional cost to Client. Unless otherwise specified, capitalized terms in this SLA have the same m¢aning as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs. �. Erwr Response. Error descriptions (each an "Error"), the Error severity levels and corresponding targ¢ted responae Lima par level are each described in the table below. The Targeted Response Timers in the table below identify the response times that Innovative will target for the corresponding Error, however, such Targeted Response Times are not guarant¢ed. 2_ Error Reporting and Diagnosis. a. Client must tlesignate a representative es the contact that will report Errors to Innovative and be Innovative's primary contact for the implementation of this SLA (such reprasantetive is referred to herein as the 'Client Contact"). When a Client Contact reports an Error, Innovative will use commercially reasonable efforts to tl iagnose the root cause of the Error ("Diagnosis"). Upon completing the Diagnosis, each Error will be classified as either a "Warranty Error" or a "Non -Warranty Error" pursuant to Section 3. b. below. Innovative will use commercially reasonable efforts to diagnose and repair both Warranty and Non -Warranty Errors as d¢scribed below. b. "Warranty Errors" are all Errors that do not qualify as Non -Warranty Errors. "Non -Warranty Errors" are Errors resulting from any of the following causes: (i) misuse, improper use, alteration or tlamage of the Platform; (ii) operator error; (lii) incorrect data entry by Client; (iv) third -party software not part of the Platform; (v) errors and/or limitations attributable to Client environment; (vi) Client's failure to incorporat¢ any New Release previously provided to it by Innovative which corrects such Error; (vii) modification of the Platform partormed by Client; and (viii) technical consulting services provided by Innovative at Client's req uast (e.9�. change orders, integration development, or configuration design and implementation), unless Client notifies Innovative of such technical consulting services problem within the applicable warranty period sat forth in the governing statement of work, change order or agreement. Client acknowledges that the Platform Is Intended for use only with the software and hardware tlascribed in the Specifications provided by Innovative from time to time, and Client will be solely responsible for its adherence thereto. 3. Complimentary and Chargeable Support. Innovative will respond to all reported Errors pursuant to Section 2 above and will use commercially reasonable efforts to resolve Warranty Errors at no additional charge if Client is currant on its payments; however, Innovative may charge Client for such effort with respect to Non - Page 13 of 17 ��L Severity Description Target Response Timer One -Site Down Tha Application Service is not available '1 hour Two —Critical An inoperable production motlule 2 hours Three -High Lasser issues, questions, or items that minimally impact the work 2 business days; flow or require a work arountl excludes holidays and weekends Four— Routine Issues, questions, or items that don't impact the work flow. Issues 4 business days; Yhat can easily be scheduled such as an upgrade or patch excludes holidays and weekends Warranty Errors according to the following process: (I) Whan the Client Contact reports any Error, prior to commencing the Diagnosis for the Error, Innovative will notify the Client Contact that the Diagnosis and repair effort will be at no charge to Client unless [he reported Error is determined to be allon-Warranty Error, in which case only the Trst two hours of Diagnosis will be at ne charge; and (I I) Innovative will then commence the Diagnosis unless instructed otherwise by She Client Contact. If more than lwo hours are required for the Diagnosis of Non - Warranty Errors, then such additional Diagnosis hours will be chargetl to Client at Innovative's than -current rate for technical services. Once the Diagnosis is complete, the Client Contact will ba given the option of having Innovative proceed with repairing the Non -Warranty Error, and, if so requested, Innovative will provide an estimate of the total cost for such effort. If agreed to by the Cllant Contact, Innovative will undertake to repair the Non -Warranty Error and charge Client for the associat¢tl technical services pertormad. 4. Tlckat Management and Escalation. Innovative manages all reported issues using a ticket management system, and provides an Internet portal for Clients to report issues. Clients may review the status of Issues reported online. When an Error is either unresolved or no[ resolved in a timely fashion, the Client should contact Innovative representatives pursuant to Innovative's escalation policy made available on Innovative's Internet portal. 5. Hosting Services. Innovative provid¢s Industry -leading security and monitoring at a SOC '1/SOC 2 Type 2/ISO 27�D'I -audited datacenter by a top -tier cloud hosting provid¢r (the "Hosting Provider'), with the flexibility to meat clients' date storage, data recovery, and information security policy requirements. To meek clients' global hosting needs, Innovative offers hosting options in datacentera located in the United States, Canada, United Kingdom, Ireland, Australia and the Asia -Pacific region, however, Innovative reserves the right to increase, decrease and/or relocate its datacanters at any time. 6 '•The 99.5 % uptima Is subject to the following: a. Ho rs of O /Exclusive Re a rvice Unavaila During the Term, Innovative will use commercially reasonable efforts to ensure that the Applications Services are available for access and use In accordance with the Agreement of at least 99.5% Schaduletl Up -Time, as measured over any calantlar year.. Scheduletl Up -Time means all of the [Ime in a month that is not Schetluletl Downtime or Third Party Unavailability. In the event that Innovative fails to provide Client with 99.5% Scheduled Up -Time for three consecutive months, Client will be entitled to receive a credit equal to the proratatl amount of the Feas for the period in which Innovative failed to provide such Scheduled Up -Time during such months upon receipt of written notice from Client. The remedies set forth in this Paragraph (i) are the exclusive remedies of the Client for Innovative's failu ra to provide Client with 99.5% Scheduled Up -Time. Page 14 of 1] I�.P�, Feature Standard 24x7 Infrastructure monitoring ✓ Dedicated protl uction environment ✓ 99.5% uptime" ✓ Datlicated public IP addr¢ss and custom URL ✓ Operating system installation and management ✓ Library software Installation and upgrades ✓ Data backups Daily Archive data backup retention 30 days b. Scheduled Downtime. Schad uled Downtime means the period of time which Innovative or the Hosting Provider, conduct periotlic ached uled system maintenance and release updates for which Innovative will provide the Client with advance notice. Innovative will make commarcielly reasonable efforts to provide Client notice of scheduled system maintenance 48 hours in advance. Page 15 of 17 C.!`��' Exhibit D Innovative Interfaces Incorporated Information Security Termer antl Conditions Unless othervvise specified, capitalized terms in these Information Security Terms and Conditions have the same meaning as those in the GTCs. Ths terms set forth herein supplement, but do not replace or modify, [ha GTCs. �. User of Client Data. Except as set forth herein or otherwise agreed to by the Parties or authorized by Clfant, Innovative will not use Client Data for any purpose other than the fulfillment of its obligations under the Agreement. 2. Sacurity Controls. a. Generally. Subject to the terms of the Agreement, Innovative implements Industry -recognized security best practices to prevent the unintended or malicious loss, destruction or alteration of Client's data resident in the Platform. b. Network Svstams Audit Loeeina. All network logon activity and password changes era logged, monitored, controlled and audited. All intrusion detection and firewall log monitoring Is done through services provided by the Hosting Provider. Tha pertinent log files and configuration files related to customer's hosted solution are retained for seven days and can ba made available upon request for audit antl problem resolution, as may be required. c. Encryption. Encryption for data -in -transit is provided as a part of the Standard Plan. d. Network Monitor'nc. All network systems and servers are monitored 24/7/365. Innovative will monitor Its systems for security breaches, violations and suspicious activity. This includes suspicious external activity (including, without Iimitatlon, unauthorized probes, scans or intrusion attempts) and suspicious internal activity (including, without limitation, unauthorized system administrator access, unauthorized changes to its system or network, system or network misuse or program information theft or mishantlling). Innovative will notify Client as soon as reasonably possible of any known security breaches or suspicious activities Involving Cllant's production data or environment, including, without limitation, unauthorized access and service attacks, e.g., denial of service attacks. ¢. Physical Sacurity. The physical Infrastructure used to support the Platform and Application Services for Client (and other professional services purchased by CII¢nt from Innovative, as applicable), including the servers, storage, switches, and firewalls, are provided by the Hosting Provider. Hosting Provider limits access to only authorized person n¢I, and badge and/or biometric scanning controls access. Security cameras placed in the hosting facilities provide video surveillance. f. Audit and Sacurity Testing. Hosting Provitl¢rs perform regular security audits and testing. Per Hosting P rovid¢r policy, Client may not pertorm their own autllts of Hosting Providers. g. Security Assessments. Client may pertorm ventlor due diligence reviews of Innova[ive's security best practices. Innovative undergoes annual audits by Independent firms and will share its security certifications, antl audit reports under Non -Disclosure, as requested by Client. h. Information Security Auditino/Compliance. Innovative's hosting providers undergo SOC 'I/SOG 2 Type 2/ISO 2700t audits each year by Independent third -party audit firms. Innovative also holds the internetionally- recognized ISO 2700'1:20t3 standard for Its Information security management system supporting the hosting solutions. Innovative partners with Hosting Providers who are designed to satisfy requirements of most security sensitive customers with constant monitoring, high automation, high availability, and highly accredltetl to global security standards, including: PCI DSS Leval t, ISO 27DOt, FISMA Motlerate, FedRAMP, HIPAA, and SOC t (formerly referred [o as SAS 70 and/or SSAE t6) antl SOC 2. i. A k I tl t f Sh d R ib'1'[ .The security of data and information that Is accessetl, stored, shared, or otherwise proceasetl via amulti-tenant cloud service are shared responsibilities between a cloutl service provider antl its customers. As such, the Parties acknowledge that: (a) Innovative Is responsible for the builtl antl Page 16 of 17 I\ As�, implementation of the hosted Platform and Application Services, for monitoring performance and access, for configuring security access controls and change management, and for supplying updates to correct errors in support of this Agreement; and (b) Client is responsible for properly implementing access and use controls and configuring certain features and functionalities of the Platform and Application Services that Client may elect to use in the mann¢r that Client deems adequate tc maintain appropriate security, protection, deletion, and backup of Client Data. Page 17 of 17 �1 Gl�`,r