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CAG2024-354 - Original - Cerium Networks, Inc - Microcall Telemanagement Solution - 7/30/24
FOR CITY OF KENT OFFICIAL USE ONLY Sup/Mgr: Agreement Routing Form DirAsst: For Approvals,Signatures and Records Management Di r/Dep: KEN T This form combines&replaces the Request for Mayor's Signature and Contract Cover (optional) WA s H�N O T o N Sheet forms. (Print on pink or cherry colored paper) Originator: Department: Ikhra Mohamed IT Date Sent: Date Required: 0 07/18/2024 08/01/2024 CL Mayor or Designee to Sign. Date of Council Approval: CL Q Interlocal Agreement Uploaded to Website N/A Budciet-Account J�umbe[. Grant? Yes No v/ T20253 Budget? Yes❑No Type: N/A Vendor Name: Category: Cerium Networks, Inc. Contract Vendor Number: Sub-Category: 2426751 Original 0 Project Name: Microcall Telemanagement Solution L. Project Details: Initial procurement of Microcall Telemanagement Solution - supporting up to 1500 extensions and integrating with a Mitel and Teams phone system -at a total cost of$22,234.58 (3-year software C subscription + one-time implementation charges), including any applicable Washington State Sales Tax, under Mayor's signature authority. Initial 3-year term ends on 07/12/2027. C Basis for Selection of Contractor E : Agreement $22,234.58 Direct Negotiation � *Memo to Mayormust be attached L. Start Date: Upon Mayor's sign. Termination Date: 07/12/2027 G1 Q Local Business? Yes C NO* If meets req uiremen ts per KCC 3.70.100,please complete'Vendor Purchase-L ocal Exceptions"form on Cilyspace. Business License Verification: Yes Elin-Process ElExempt(KCC 5.01.045) 21Authorized Signer Verified Notice required prior to disclosure? Contract Number: F--]YesFv—]No CAG2024-354 Comments: <<Signature on attached contract (pg. 11/29) & quote (pg. 29/29)>> L a 0 Dana Ralph, Mayor c c 3 o0 Date: <<date on attached contract (pg. 11/29) & quote (pg. 29/29)>> a, a, loc Date Received:City Attorney 7/25/24 Date Routed:Mayor's Office. 7/29/24 City Clerk's Officq/29/24 adccw22373 1 20 Nk%_,Z�/, 't Doc uments.KentWA.gov to obtain copies of all agreements rev.20221201 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 KENT AGREEMENT FOR SOFTWARE AS A SERVICE W n S Hi w Gi Or This Software as a Service (SAAS) Agreement (Agreement) is between three parties: the City of Kent (City), a Washington Municipal Corporation located at 220 Fourth Avenue South, Kent, WA 98032; Cerium Networks (Cerium or Reseller) organized under the laws of the State of Washington, USA and headquartered in Spokane, WA; and Micro-Tel (OEM Vendor), organized under the laws of the State of Georgia, USA with its principal place of business at 3700 Holcomb Bridge Rd., Peachtree Corners, GA; and it is effective on the last date signed below. This Agreement is for the purchase of the subscription-based licensing and support services and also the provision of subscription-based licensing and support services in relation to the Microcall call accounting, call reporting, and telephony analytics software product provided by OEM Vendor. 1. Grant of License to Access and Use Service. For the term of this Agreement including any renewals, Vendor hereby grants to City, including to all its Authorized Users, a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use the Microcall call accounting, call reporting, and telephony analytics software (the "Service") for City's non-commercial government operations as further described in the attached and incorporated Exhibit A, Scope of Work. City shall refrain from taking any steps such as reverse assembly or reverse compilation, to derive a source code equivalent to the Services as further described in Section 9.3. 2. Term. The initial term of this Agreement shall be 3 years (Initial Term), ending on July 12, 2027. The parties may mutually agree to extend this Agreement in accordance with Section 16.11. Any reference in this Agreement to "days" shall mean "calendar days" unless a different meaning is expressly stated. 3. Subscription Fees/Taxes. 3.1 Subscription Fee. Subscription fees and payment terms for the Services are set forth in the attached and incorporated Exhibit B. The City will purchase the Services from Cerium, the Reseller. 3.2 Undisputed Fees. Undisputed invoices shall be due and payable within 30 days of invoice receipt. City shall notify Reseller in writing of any disputed amount within 15 business days of appropriate receipt of the applicable invoice. Portions of invoices that are subject to a good faith billing dispute shall not be considered delinquent for purposes of this Agreement. Disputed billings are subject to Section 16, Dispute Resolution. 3.3 Taxes. All contract amounts shall be inclusive of sales or other applicable taxes, and invoices shall include all tax obligations stated separately from the contract amounts. City shall pay all applicable sales, use, value added or similar taxes to Reseller and Reseller shall remit all such taxes, if imposed by local and/or state authorities on all software, and other taxable goods and services procured by the City under this Agreement. 3.4 Card Payment Proaram. The Reseller may elect to participate in automated credit card payments provided for by the City and its financial institution. This Program is provided as an alternative to payment by check and is available for the convenience of the Vendor. If the Reseller voluntarily participates in this Program, the Reseller will be solely responsible for any fees imposed by financial institutions or credit card companies. The Reseller shall not charge those fees back to the City. AGREEMENT FOR SOFTWARE AS A SERVICE Page 1 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 4. System Availability and Support Services. Services shall be available to City along with support services as described in the attached and incorporated Exhibit C. S. Representation and Warranties. 5.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, and shall have obtained and maintain all licenses, permits and certifications required for such Party in connection with the performance of such Services; (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. 5.2 Vendor Warranties and Representations. Vendor represents and warrants that the Services will be performed in a professional and workmanlike manner, consistent with applicable industry standards and the corresponding specifications set forth in the applicable Statement of Work and Service Level commitments. a. Deliverables. Vendor represents and warrants that each deliverable shall meet and conform to its applicable specifications as provided herein following its acceptance and during the Term. Vendor also represents and warrants that the Service, in whole and in part, shall operate in accordance with the applicable approved configuration documentation, and this Agreement. b. Services. Vendor represents and warrants that (a) it shall perform all Services required pursuant to this Agreement in a professional manner, with high quality, (b) it shall give due priority to the performance of the Services, and (c) time shall be of the essence in connection with performance of the Services. C. Title Warranty and Warranty against Infringement. Vendor hereby warrants and represents that Vendor is the owner of the Services and the SAAS licensed hereunder or otherwise has the right to grant to the City, the licensed rights to Vendor's Services and SAAS provided by Vendor through this Agreement without violating any rights of any third party worldwide. Vendor represents and warrants that (i) Vendor is not aware of any claim, investigation, litigation, action, suit or administrative orjudicial proceeding pending or threatened based on claims that Vendor's Services or SAAS infringe or misappropriate any patents, copyrights, trade secrets or other intellectual property rights of any third party, and (ii) Vendor's Services and SAAS do not knowingly infringe upon or misappropriate any patents, copyrights, trade secrets or any other intellectual property rights of any third party. d. Maintenance Services Warranty. Vendor warrants that, in performing the services under the Agreement, Vendor shall substantially and materially comply with the descriptions and representations as to the services, including performing capabilities, accuracy, completeness, characteristics, Statement of Work, configurations, standards, function and requirements, which appear in this Agreement. Errors or omissions committed by Vendor in the course of providing the SAAS and Services shall be remedied as set forth herein. e. Warranty of Compliance with Applicable Law. Vendor warrants the SAAS and Services shall comply with all applicable federal, State and local laws, regulations, codes and ordinances to which it is subject. Vendor warrants that, throughout the Term of this Agreement, including any renewals, the SAAS, and Services, shall comply with changes to and new applicable federal, state, and local laws, regulations, codes, and ordinances to which it is subject. Vendor represents and warrants that it shall comply with all applicable local, state, and federal licensing, accreditation, and registration requirements and standards necessary in the performance of the Services. AGREEMENT FOR SOFTWARE AS A SERVICE Page 2 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 f. Warranty of SAAS and Services. General Responsibilities. Vendor warrants the SAAS and Services for the term of this Agreement. Vendor shall provide Warranty Services as described in this Agreement at no additional cost to correct deficiencies in the SAAS and Services and to repair and maintain the SAAS and Services in accordance with the specifications, subject to the Service Level Agreement. Vendor's Warranty Service responsibilities shall include, but not be limited to the following: i Vendor shall promptly and diligently perform and reperform Services which are not in compliance with documentation/specifications, representations and warranties at no additional cost to the City; ii Maintain the SAAS and Services in accordance with the Specifications terms of this Agreement and meet all availability and system performance service levels as specified in the Statement of Work and/or Service Level Agreement (SLA). In the event the Service requires failover activities, then Vendor shall be responsible for continuance of the SAAS and the City shall not be subject to additional costs unless otherwise specified in this Agreement. iii Promptly coordinate with the City all tasks related to correcting problems and deficiencies connected with the Software. iv Not disable any City software. v If Vendor and/or City reasonably determines that Vendor is unable to remedy such deficiencies, Vendor or City may terminate the Agreement and Vendor shall refund to City the Fees previously paid by City to Vendor for the unused term of this Agreement and Fees for the time for which said deficiency(ies) existed. 6. City Data/Vendor Obligations. 6.1 Ownership. City owns all of the information and materials that it submits, uploads or transfers, or causes to be submitted, uploaded, or transferred to the SAAS or Services (City's Data). 6.2 [Intentionally omitted]. 6.3 Data Restrictions. Vendor shall restrict access to City Data to Vendor employees, affiliates' employees, or others who need to know that information to provide services to City. City Data shall be stored and hosted within the United States of America. Vendor will use City Data for the purposes described in this Agreement. Vendor will not sell, license, transmit or disclose this information outside of Vendor's business unless: (1) City expressly authorizes Vendor to do so; (2) it is necessary to allow Vendor's Licensors to perform services under this Agreement; (3) in order to provide Vendor's products or services to City; (4) otherwise as Vendor is required by law after written notice to City of such requirement. Notwithstanding the foregoing, Vendor is responsible for any disclosures of City Data by Vendor's Licensors made contrary to the terms of this Agreement. 6.4 Data Backup. The Microcall software will operate on and within the scope of the City's computing assets as a City-managed virtual machine and is not provided as a cloud-based service. As such, backup regiments and the maintenance thereof are solely and explicitly the responsibility of the City to maintain. 7. Intellectual Property Ownership. Vendor (and its Licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the SAAS and Service, the Content, the Software, and in its Technology. This Agreement does not convey to City AGREEMENT FOR SOFTWARE AS A SERVICE Page 3 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 any rights of ownership in or to the Vendor's Service, Technology, Software, or its Intellectual Property Rights owned by Vendor and its Licensors, where applicable. This Agreement does not contemplate custom development of software for technology on behalf of the City. 8. Non-Disclosure of Confidential Information. The Parties' obligations regarding non- disclosure of Confidential Information are contained in the attached and incorporated Exhibit D. All Confidential Information is and shall remain the property of its owner to the extent consistent with applicable law. The disclosure of Confidential Information to the other party does not grant to it any express or implied right to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. 9. City Obligations. 9.1 Hardware Obligations. City shall be responsible for (a) obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access and operate the Service, and (b) paying all third-party access charges incurred while using the Service. 9.2 Anti-Virus Obligations. City will use commercially reasonable efforts to safeguard against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively "Viruses") that may reasonably affect Vendor's SAAS. Services. 9.3 Restricted Uses. City will not: a. knowingly upload or distribute any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service, b. modify, disassemble, decompile or reverse engineer the Service or pre-release hardware devises or software disclosed, C. copy, reproduce, resell or commercially exploit the Service, d. without authority, access or use any other clients' or their users' data through the Service, e. maliciously reduce or impair the accessibility of the Service, f. reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed. 10. Indemnification Obligations. 10.1 City Indemnification Obligations. Subject to Section 10.3 below, City shall defend, indemnify, and hold Vendor and its parent organizations, subsidiaries, Affiliates, officers, directors and employees harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (i) a third party claim alleging that the use of City Data infringes the rights of, or has caused harm to, a third party; (ii) a third party claim alleging a breach of any of City's representations and warranties; or (iii) a third party claim alleging City's use of Confidential Information or Intellectual Property Rights of Vendor or its Licensors is in violation of this Agreement; (iv) third party claim of injury or death to person or damage to property arising from City's negligence. 10.2 Vendor Indemnification Obligations. Subject to Section 10.3 below, Vendor shall defend, indemnify, and hold City and its elected officials, officers, employees, agents and attorneys AGREEMENT FOR SOFTWARE AS A SERVICE Page 4 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (i) a third party claim alleging that the Vendor Service, Content, Software, or Technology infringes or misappropriates the rights of, or has caused harm to, a third party; (ii) a third-party claim alleging a breach of any Vendor representations and warranties in this Agreement; (iii) a third-party claim alleging Vendor's use of City Data is in violation of this Agreement; or (iv) a third party claim alleging a breach of Vendor's confidentiality or data security obligations, that infringes the rights of, or has caused harm to, a third party, (v) third party claim of injury or death to person or damage to property arising from Vendor's negligence. 10.3 As an express condition of the foregoing indemnification obligations, the parties hereby agree that: a. the indemnified party shall promptly notify the indemnifying party in writing for any claim for which indemnification is sought; b. the indemnified party shall cooperate with all reasonable requests of the indemnifying party (at the indemnifying party's expense) in defending or settling such claim; C. the indemnifying party shall be allowed to control the defense and settlement of such claim; d. the indemnifying party may not settle any claim that includes an admission of liability, fault, negligence or wrongdoing on the part of the indemnified party unless the indemnified party provides prior written consent; e. the indemnified party shall have the right, at its option and expense, to participate in the defense of any action, suit or proceeding relating to such a claim through counsel of its own choosing; and f. each indemnified party will undertake commercially reasonable efforts to mitigate any loss or liability resulting from an indemnification claim related to or arising out of this Agreement. 11. Limitation of Liability 11.1 EXCEPT FOR CLAIMS ARISING FROM EITHER PARTY'S INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY AND SECURITY OBLIGATIONS, REPRESENTATIONS AND WARRANTIES, AND INTELLECTUAL PROPERTY INFRINGEMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY WITH RESPECT TO ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE PARTY'S STATED INSURANCE LIABILITY CAP. 11.2 NEITHER PARTY WILL BE LIABLE FOR BREACH-OF-CONTRACT DAMAGES SUFFERED BY THE OTHER PARTY THAT ARE REMOTE OR SPECULATIVE, OR THAT COULD NOT HAVE REASONABLY BEEN FORESEEN ON ENTRY INTO THIS AGREEMENT. 11.3 THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. 12. Insurance. Vendor shall maintain insurance that is sufficient to protect its business against all applicable risks, at a minimum as set forth in the attached and incorporated Exhibit E, "Insurance Requirements." Vendor shall promptly provide City with certificates of insurance to evidence Vendor's continued compliance with Exhibit E. 13. Termination of Agreement. AGREEMENT FOR SOFTWARE AS A SERVICE Page 5 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 13.1 Termination for Convenience. Notwithstanding termination reasons outlined in subsection 13.2 below, Termination for Convenience is not permitted except under the following conditions. a. A 30-day advance written notice shall be required. — AND — b. The City has pre-paid the entire subscription term (3 years). — OR — C. The City agrees to remit payment for the remaining subscription term under NET 30 payment terms. 13.2 Termination by City for Cause. In addition to any other rights granted to City in this Agreement or under law, City has the right to terminate this Agreement upon written notice due to: a. a material breach of a term, representation, or warranty under this Agreement (including a material breach under an Attachment, Addendum and/or Exhibit to this Agreement) by Vendor of any of its subcontractors or licensors of services if such material breach is not remedied within 30 days following receipt of written notice from City; or b. a third party's claim that Vendor's Services, Content, Data Infrastructure, Professional Services, Technology, Software, SAAS or any other services and products provided by Vendor or its subcontractors or Licensors or other third parties and the Intellectual Property Rights associated therewith, infringes upon such third party's Intellectual Property Rights. C. City Council fails to appropriate funds for contract payments. d. Vendor files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within 60 days of the filing thereof. 13.3 Termination By Vendor for Cause. In addition to any other rights granted to Vendor in this Agreement or under law, Vendor reserves the right, upon written notice to City, to terminate this Agreement due to: a. any undisputed amounts City owes that are delinquent greater than 30 days; or b. a material breach of the terms of this Agreement, other than a payment obligation, by City or its users if such breach is not remedied within 30 days following receipt of written notice of such breach from Vendor to City; or C. a third party's claim that City's Data, and/or Intellectual Property infringes upon such third party's rights. 13.4 No Suspension of Service. Provided City continues to timely make all undisputed payments, Vendor warrants that during the term of this Agreement, Vendor will not withhold Services provided herein, for any reason, including but not limited to a dispute between the parties arising under this Agreement, except as may be specifically authorized herein. AGREEMENT FOR SOFTWARE AS A SERVICE Page 6 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 13.5 Effect of Termination. a. If City terminates for cause or Vendor terminates without cause, City will only be obligated to pay the amounts then due for services provided meeting Vendor's contractual commitments as calculated up to the date of termination and, if applicable, City will be reimbursed a prorated amount of unused, prepaid fees. b. If Vendor terminates for cause that City does not dispute and a balance is still due on City's account, then City agrees that Vendor may bill City for such unpaid fees due up to the date of termination. C. If the City terminates without cause, the City shall be obligated to remit payment for the remaining contracted subscription term under NET 30 payment terms. d. In the event this Agreement terminates for any reason, Vendor shall provide the City a file of City's Data in a format acceptable (and at no cost) to City within 30 days of the effective date of termination. City shall have 60 days following termination to notify Vendor if litigation, laws, regulations, or other lawful process requires Vendor retain City's data on its SAAS beyond the termination of this Agreement. City will thereafter promptly notify Vendor when such litigation, laws, regulations, or other lawful process no longer requires Vendor maintain the City's data on its SAAS. Vendor may, iR a seEHFe RqaRReF, dispose of City's data at Vendor's expense as permitted by law 61 days after termination, if City provides no notice otherwise; or after City notifies Vendor there are no laws, regulations, litigation, etc. requiring further retention. Retained data is subject to the confidentiality provisions of the Agreement. 14. Remedies. Termination of this Agreement shall not affect any right of action of either party prior to the termination being affected. All remedies shall be cumulative and may be exercised concurrently, or separately, which shall not be deemed to constitute an election of any one remedy to the exclusion of any other. In addition to any other remedy provided for herein, or at law or equity, City shall have the right to recover from Vendor all damages reasonably caused by default of any representation or warranty. This paragraph shall not limit City's right to pursue any other remedy available to it in law, at equity or pursuant to this Agreement. 15. Non-Discrimination. In the hiring of employees for the performance of work under this Agreement or any subcontract, the Vendor, the Reseller, its subcontractors, or any person acting on behalf of the Vendor, Reseller or subcontractor shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. The Vendor and Reseller shall execute the City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the Compliance Statement, all attached and incorporated as Exhibit F. 16. General Provisions. 16.1 Governing Law and Venue. The Agreement will be governed by the laws of Washington and its choice of law rules. Vendor irrevocably consents to the exclusive personal jurisdiction and venue of the federal and state courts located in King County, Washington, with respect to any dispute arising out of or in connection with the Agreement and agrees not to commence or prosecute any action or proceeding arising out of or in connection with the Agreement other than in the aforementioned courts. 16.2 Disoute Resolution. The parties desire, if possible, to resolve disputes, controversies and claims (Disputes) arising out of this Agreement without litigation. To that end, upon written notification of dispute by a party to the other, each party shall appoint a knowledgeable, responsible AGREEMENT FOR SOFTWARE AS A SERVICE Page 7 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 management representative to meet and negotiate in good faith to resolve any Dispute arising under this Agreement. If the parties are unable to settle any Dispute, the exclusive means of resolving that Dispute shall only be by filing suit as provided for under Section 16.1, unless the parties agree in writing to an alternative dispute resolution process. 16.3 Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provision will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. 16.4. Nonwaiver. Any failure by any party to enforce strict performance of any provision of the Agreement will not constitute a waiver of the its right to subsequently enforce such provision or any other provision of the Agreement. 16.5 No Assignment. Any party may assign this Agreement and all of its rights and obligations hereunder as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets so long as said assignee accepts all of the respective Agreements rights and obligations of its predecessor as provided in this Agreement without limitation. Except as expressly stated in this Agreement, no party may otherwise assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other parties, and any attempted assignment or delegation without such consent will be void. 16.6 Notices. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. Either party may change its address by giving written notice of such change to the other party. 16.7 Legal Fees. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit either party's right to indemnification under Section 10 of this Agreement. 16.8. Force Majeure. No party shall be liable to the other for breach due to delay or failure in performance resulting from acts of God, acts of war or of the public enemy, riots, pandemic, fire, flood, or other natural disaster or acts of government ("force majeure event"). Performance that is prevented or delayed due to a force majeure event shall not result in liability to the delayed party. If any future performance is prevented or delayed by a force majeure event, the party whose performance is prevented or delayed shall promptly notify the other party of the existence and nature of the force majeure event causing the prevention or delay in performance. Any excuse from liability shall be effective only to the extent and duration of the force majeure event causing the prevention or delay in performance and, provided, that the party prevented or delayed has not caused such event to occur and continues to use diligent, good faith efforts to avoid the effects of such event and to perform the obligation. Notwithstanding other provisions of this section, the Vendor shall not be entitled to, and the City shall not be liable for, the payment of any part of the contract price during a force majeure event, or any costs, losses, expenses, damages, or delay costs incurred by the Vendor due to a force majeure event. Performance that is more costly due to a force majeure event is not included within the scope of this Force Majeure provision. AGREEMENT FOR SOFTWARE AS A SERVICE Page 8 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 If a force majeure event occurs, the City may direct the Vendor to restart any work or performance that may have ceased, to change the work, or to take other action to secure the work or the project site during the force majeure event. The cost to restart, change, or secure the work or project site arising from a direction by the City under this clause will be dealt with as a change order, except to the extent that the loss or damage has been caused or exacerbated by the failure of the Vendor to fulfill its obligations under this Agreement. Except as expressly contemplated by this section, all other costs will be borne by the Vendor. 16.9 Independent Contractor. City and Vendor intend that an independent Contractor relationship be created with this Agreement. Vendor shall not be considered an agent or employee of City for any purpose and the employees of Vendor are not entitled to any of the benefits that City provides for its employees. Nor shall this Agreement be evidence of a joint venture between Vendor and City. 16.10 Problem Notification. Each party will promptly notify the other in writing of any events or circumstances that will affect the performance of its obligations under this Agreement including the delivery of any deliverable or delay in completion of any of its obligations. Vendor shall notify City in writing of all material defects in the SAAS and/or Services, whether discovered by other parties or by Vendor within five (5) business days of their discovery and fix or replace the effected software within a commercially reasonable time. A defect is considered material if it has the potential to delay or inhibit the primary functionality of the SAAS or Service or if said defect has the potential to corrupt City data. 16.11 Entire Agreement/Modification. This Agreement, together with all exhibits comprise the entire agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein. This Agreement may be amended, modified, or added to only by written instrument properly signed by both parties hereto. 16.12 Public Records Act. The Vendor acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents, notes, emails, and other records prepared or gathered by the Vendor in its performance of this Agreement may be subject to public review and disclosure, even if those records are not produced to or possessed by the City of Kent. As such, the Vendor agrees to cooperate fully with the City in satisfying the City's duties and obligations under the Public Records Act. 16.13 City Business License Required. Prior to commencing the Services provided for under this Agreement, Vendor and Reseller agree to provide proof of a current city of Kent business license, if applicable, pursuant to Chapter 5.01 of the Kent City Code. AGREEMENT FOR SOFTWARE AS A SERVICE Page 9 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 16.14 Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. All acts consistent with the authority of this Agreement and prior to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed to have applied. RESELLER: CITY: Cer' -Pfethrorks CITY OF KENT (AWGlA ,�ltil�ct,VtMIE;,V' By: 7By: QX_V� William Junkermier Print Name: Print Name: Dana Ralph Its VP Its Mayor 7/12/2024 DATE: DATE: 07/29/2024 VENDOR: NOTICES TO BE SENT TO: Micr ep�Tel IT Administration ( ,__ City of Kent By: 'is 220 Fourth Avenue South Chris Koeneman Kent, WA 98032 Print Name: itaCa)kentwa.aov Its CEO 7/13/2024 DATE: NOTICES TO BE SENT TO: Cerium Contact: Accounting 1636 W 1st Ave. Microcall/Micro-Tel Contact: Spokane, WA 99201 Janine Hayes 1(509) 536-8610 Micro-Tel accounting@cerium networks.com 3700 Holcomb Bridge Rd. Peachtree Corners, GA 30092 1(800) 622-2285 (telephone) 1(770) 263-0602 (facsimile) APPROVED AS TO FORM: oAk Kent Law Department ATTEST:L41 6MA Kent City Clerk AGREEMENT FOR SOFTWARE AS A SERVICE Page 10 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 EXHIBIT A SCOPE OF WORK The software solution, Microcall, a software package provided by the OEM Vendor (Micro-Tel) will be locally installed as a virtual machine upon an adequately provisioned computer server which will be owned and maintained by the City. Server sizing information has been provided to the Reseller (Cerium) and will be made available to the City, if it has not already been relayed by the Reseller. As scoped, the Microcall subscription addresses up to 1,500 users, extensions, hunt-groups, call queues, or other addressable telephone numbers on Microsoft Teams Phone System and up to three (3) Audiocodes Session Border Controllers (SBCs). City Responsibilities: • Provide an adequately sized computer server, hypervisor, and Microsoft Windows operating system on which OEM Vendor will install the software. • Database Server: The software requires a Microsoft SQL Server database and OEM Vendor will offer a Microsoft SQL Express server at no cost to the City, OR the City may opt to use an existing Microsoft SQL Enterprise server, at its discretion. • Open https://update.micro-tel.com (TCP 443/IP 50.168.193.4) for communication both ways on the Microcall server. • Document server name and any authentication settings for the SMTP mail server (required for report email distribution configuration). • Decide how Employee Data (Extension, Employee Name, Department, etc.) will be populated (if at all). If interfacing with Active Directory, City can specify which Active Directory fields should be imported. This is NOT required, but it does simplify departmental reporting. • Determine desired Microcall Reports and/or Call Alerts to be configured / scheduled. Micro-Tel Responsibilities for Microcall Installation/Implementation: Microcall Remotes Services includes: • Remote Microcall installation via virtual meeting access (MS Teams, Webex, Zoom, etc.). OEM Vendor will install and configure the Microcall system remotely with the help of a local City contact. • Configure / Assist with Company Directory Imports (if used). • Monitor and Test Data Collection — ensure data is being received from all scoped platforms to confirm that it is collected and processed correctly. • Configure Data Collection Alarms — notification/alerts if the connection between the SBC's and Microcall is down. The notifications will be sent out via email. • Configure, Test, & Schedule Automated Reports. • Configure Toll Fraud Conditions / Call Alerts / Emergency 911 Alerts. • Verify that Automatic Backup is configured. • Microcall Support Services Group (OEM Vendor) will work with City technical administrators as required to set up the reports/alerts/Dashboards. • Perform end-user training. OEM Vendor will train all the administrators of the Microcall system AND the remote managers that will be accessing reports. End-user training sessions will be scheduled and performed via virtual meetings (MS Teams, Webex, Zoom, etc.). AGREEMENT FOR SOFTWARE AS A SERVICE Page 11 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 EXHIBIT B SUBSCRIPTION FEES AND PAYMENT PROCESS The subscription as described is structured as a three-year (36 mo.) license and support subscription which shall be billed by the OEM Vendor (Micro-Tel) through to Reseller (Cerium Networks) and thereon to the City in three annual installments. Installment #1 includes the license subscription for the first annual period in addition to one-time fees to address initial software installation, configuration, and integration to the City's scoped systems and platforms. Installments #2 and #3 will comprise only the annual subscription fee as presented by the Reseller Vendor to the City unless modifications resulting in a net increase to the total subscription and contract value are requested by the City. Payment for the subscription and service components governed by this agreement shall be due according to the terms identified between the City and the Reseller Vendor. The OEM Vendor maintains a NET 30 payment expectation between the OEM Vendor and the Reseller Vendor. The subscription date of initiation (start of term) shall be governed by the date of receipt of the purchase order submitted by the Reseller Vendor to the OEM Vendor. During the active subscription period the City: • May use the software in accordance with the terms of this agreement and the OEM Vendor's EULA, attached as Exhibit G. o Installation and use of the OEM Vendor's software constitutes acceptance of the EULA. • May engage with Micro-Tel support services to address software issues, technical challenges, configuration requests, or general questions pertaining to the use of the software. • May request or receive upgrades to the installed software version at no additional charge. AGREEMENT FOR SOFTWARE AS A SERVICE Page 12 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 EXHIBIT C SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES A. SERVICE LEVEL AGREEMENT The software is provided as a locally installed and City-managed application and will reside on the City's computer infrastructure. OEM Vendor (Micro-Tel) provides support services and access to technical resolution should the software malfunction or assistance from the City be required. No SAAS SLA is provided as the software is not offered as a cloud-native SAAS solution. The software, as offered, is not provided as a cloud native SAAS solution. Instead, it operates as a City-managed application residing on City-managed resources. 1. Scheduled System Maintenance. Vendor may take the Service off line for scheduled maintenances of which City has received prior written notice of the planned maintenance schedule. B. SUPPORT SERVICES 1. Services Support entitles the City to the following: 1.1 Telephone or electronic support to help the City locate and correct problems with the software solution. 1.2 Bug fixes and code corrections to correct Software malfunctions to bring the Service into substantial conformity with the operating specifications. 1.3 All extensions, enhancements and other changes that Vendor makes or adds to the Service and which the Vendor offers, without charge, to all other Subscribers of the Service. 1.4 Up to five (5) dedicated contacts designated by the City in writing that will have access to support services. Should more than five contacts be required, contact OEM Vendor to request additional access. 2. Response and Resolution Goals Regarding the severities outlined below, the OEM Vendor shall be responsible only for the resolution of issues within its software and the integrations established by the software. No responsibility to resolve is accepted or assumed for infrastructure components supporting or connected to the OEM Vendor software such as: • Operating Systems • Databases • Computer Hardware • Network or network Hardware • Security policy, hardware, or software • Platforms and systems integrated into the OEM Vendor software 2.1 Severity 1: The Production system/application is down, seriously impacted and there is no reasonable work around currently available. Once Vendor receives notice, the Vendor will begin continuous work on the issue, and a customer resource must be available at any time to assist with problem determination. AGREEMENT FOR SOFTWARE AS A SERVICE Page 13 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 Once the issue is reproducible or once vendor has identified the Software defect, Vendor will provide reasonable efforts for workaround or solution within 24 hours. 2.2 Severity 2: The system or application is seriously affected. The issue is not critical and does not comply with the Severity 1 conditions. There is no workaround currently available or the workaround is cumbersome to use. The Vendor will work during normal business hours to provide reasonable effort for workaround or solution within 3 days, once the issue is reproducible. 2.3 Severity 3: The system or application is moderately affected. The issue is not critical and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround. The Company will work during normal business hours to provide reasonable effort for workaround or solution within 5 business days, once the issue is reproducible. 2.4 Severity 4: Non-critical issues. The Company will seek during normal business hours to provide a solution in future releases of the Service. AGREEMENT FOR SOFTWARE AS A SERVICE Page 14 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 EXHIBIT D NON-DISCLOSURE OF CONFIDENTIAL INFORMATION 1. Scope of Confidentiality Obligation in a SAAS Agreement. 1.1 Limitations. The Parties recognize that in a SAAS Agreement, the City is placing its information, including Confidential Information, on the Vendor's hosted software application. In providing this hosted service, the Vendor is not disclosing or providing City with its confidential information such as its source code or other proprietary or intellectual property technology. City therefore cannot modify, reverse engineer or otherwise decompile Vendor's technology and City has committed to not doing so in this Agreement. Thus, this Addendum describes Vendor's obligations with respect to City's confidential information provided to Vendor. OEM Vendor is providing its software for the City to utilize as a direct software download and expects the City will operate the software as a locally installed, City-managed instance and will reside on City-provided computer assets. OEM Vendor is NOT hosting the solution as described. 2. Definition of Confidential Information and Exclusions. 2.1 "Confidential Information" means non-public information on Vendor's SAAS that City designates as being confidential or which, under the circumstances surrounding disclosure, Vendor ought to treat as confidential, including but not limited to information in tangible or intangible form relating to and/or including City data, computer programs, code, algorithms, formulas, processes, inventions, schematics and other technical, business , financial and product development plans, forecasts, strategies and proprietary or intellectual property whether or not it is owned by City and information received from others that City is obligated to treat as confidential. Except as otherwise indicated in this Agreement, the term "Vendor" also includes all its Affiliates. An "Affiliate" means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, controls, are controlled by, or are under common control with a party. 2.2 Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without Vendor's breach of any obligation owed City; (ii) became known to Vendor prior to City's disclosure of such information to Vendor pursuant to the terms of this Agreement; (iii) became known to Vendor from a source other than City other than by the breach of an obligation of confidentiality owed to City; (iv) is independently developed by Vendor; or (v) is not confidential as a matter of law. 3. Obligations Regarding Confidential Information. 3.1 Except as otherwise provided herein, Vendor shall: a. Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than prevailing standard of reasonable care in the Vendor's industry, to keep confidential the Confidential Information of the City; b. Refrain from disclosing, reproducing, summarizing and/or distributing City's Confidential Information except in pursuance of Vendor's business relationship with City, or only as otherwise provided hereunder; and C. Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by City to Vendor under the terms of this Agreement. AGREEMENT FOR SOFTWARE AS A SERVICE Page 15 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 3.2 Notwithstanding anything to the contrary herein, City and Vendor will disclose Confidential Information in accordance with judicial action, federal or state public disclosure requirements, state or federal regulations, or other governmental order or requirement of law. In the context of public records requests, City will give the Vendor reasonable notice prior to Vendor's records consistent with City's rules to allow Vendor a reasonable opportunity to seek injunctive or other applicable judicial relief preventing such disclosure. 3.3 The Vendor may disclose Confidential Information only to Vendor's employees and consultants on a need-to-know basis. The Vendor will have executed or shall execute appropriate written agreements with third parties sufficient to enable Vendor to enforce all the provisions of this Agreement. 3.4 Vendor shall notify the City promptly and without undue delay upon discovery of any unauthorized use or disclosure of Confidential Information as defined by this Agreement. Vendor will cooperate with City in helping City regain possession of its Confidential Information and prevent its further unauthorized use or disclosure. AGREEMENT FOR SOFTWARE AS A SERVICE Page 16 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 EXHIBIT E INSURANCE REQUIREMENTS The software as provided is offered as a locally installed instance in operation on City-managed computer assets and managed by the City. OEM Vendor will not be in custody of City's information. City of Kent Risk Management recommends the Vendor maintain a Cyber Risk, Professional Liability, Technology Professional Liability, and/or Errors & Omissions Policy in addition to a General Liability and Umbrella Policy. Such additional coverage would guarantee reimbursement for damages incurred in the event of the following scenarios that may not be covered under the Vendor's General Liability or Umbrella Policy: • Security breach • Cyber extortion • System failure • Business interruption • Information theft • Damage, destruction, or alteration of electronic information • Invasion of privacy information • Release of private information Given the software provided is a locally installed solution, the City of Kent considers the risk of the events listed above occurring to be low and is satisfied that the Vendor has the appropriate level of coverage required as indicate in their Certificate of Insurance. AGREEMENT FOR SOFTWARE AS A SERVICE Page 17 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 tac�rrr� CERTIFICATE OAF LIABILITY INSURANCE D006;, I THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTFF CATE BOLDER. 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 IHSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER_ IMPORTANT_ If the certificate holder Is an ADDITIONAL INSURED, the pollcy(les)must be endorsed_If SUBROOATIONIS WANED, subject to the terms and conditions of the policy,certain policies may require an erWorsenwrii.A statemenl on this certificate does not confer rights to the certificate holder In lieu at such endorsemeM{sk PROOIICER CONTACT BURNETIE INSURANCE AGENCY INCIPHS 20252161 PHOIIIE (866)225-M6 F INC.NaI.Exti! A,C.N... The Hartio(d Business Service Center 3600 Wtaeman BNd San Antonio,TX 7$251 J°ORESs` I SUIRERlS)AFFIOR13DM COVERAGE NNC* INSPIRER A Har&xd Underwnters Insurance Conwany 301G4 Micra-Te1,LLC INSURER a 31W HOLCOMB BRIDGE RD STE 5 PEACHTREE CORNERS GA 30092,4784 ONUREA D INSURER O INSURER E. INSURER F. COVERAGES CERTIFICATE NUMBER. REVISION NUMBER. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE L4STED BELOW HAVE BEEN ISSUED TO THE INSLWEO NAMED ABOVE FOR THE POUCY PERIOD iNDICATEDNoTwrrHSTAND4NG ANY REQUIREMENT.TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT mTH 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 WAY HAVE BEEN REDUCED BY PAID CLAN& TYPE OF MSURANCE POLICY NUMBER Ll:TH LTR INSR 'IIN,UO'YW.r9A EVY YYY COMMEREALGENE- LIASIUT'Y EACHOCCURRENCE $1,0OQ000 CLA11,iIAADE OCCUR DAMACIE TORiENTED x eneralUability ►1£DE?FIAegw.P&Wnp $10,ODD A 20SMA1k8SHG 05,111.12024 05A1f2025 PERSONALL07kJ9 $1,0D0,000 CENLACZAEGATE LIJIT APPLIES PER GENERAL AGGREGATE S2.(100.0 0 x P]LiY©P� �LoO PRODUCTS-COMR'OPAGG S2,ODQ000 JECT OTFER. 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L LL'�2�.riC-GYf�r3 J C 198&2013 ACORD CORPORATION.Al I rights reserved. ACORD 25(2016t03) The ACORD name and logo are registered marks of ACORD AGREEMENT FOR SOFTWARE AS A SERVICE Page 18 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 EXHIBIT F CITY OF KENT NON-DISCRIMINATION POLICY AND FORMS DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City's equal employment opportunity policies. The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative response is required on all of the following questions for this Agreement to be valid and binding. If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the directives outlines, it will be considered a breach of contract and it will be at the City's sole determination regarding suspension or termination for all or part of the Agreement; The questions are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin, age, or the presence of all sensory, mental or physical disability. 3. During the time of this Agreement the prime contractor will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 4. During the time of the Agreement I, the prime contractor, will actively consider hiring and promotion of women and minorities. 5. Before acceptance of this Agreement, an adherence statement will be signed by me, the Prime Contractor, that the Prime Contractor complied with the requirements as set forth above. By s dng,Joa6gw, I agree to fulfill the five requirements referenced above. (AW&M jLkt&kt,vw►t*V By: 690719MA1487-4A4 For: Cerium Networks, Inc. VP Title: 7/18/2024 Date: AGREEMENT FOR SOFTWARE AS A SERVICE Page 19 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998 SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996 CONTRACTORS APPROVED BY Jim White, Mayor POLICY: Equal employment opportunity requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. Any contractor, subcontractor, consultant or supplier who willfully disregards the City's nondiscrimination and equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to assume the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these regulations are familiar with the regulations and the City's equal employment opportunity policy. 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. AGREEMENT FOR SOFTWARE AS A SERVICE Page 20 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the Agreement. I, the undersigned, a duly represented agent of Company, hereby acknowledge and declare that the before-mentioned company was the prime contractor for the Agreement known as that was entered into on the (date), between the firm I represent and the City of Kent. I declare that I complied fully with all of the requirements and obligations as outlined in the City of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity Policy that was part of the before-mentioned Agreement. By ------ -- ---------- For: Title: Date: AGREEMENT FOR SOFTWARE AS A SERVICE Page 21 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 EXHIBIT G MICRO-TEL END USER LICENSE AGREEMENT MICRO-TEL END-USER LICENSE AGREEMENT IMPORTANT READ CAREFULLY: This End-User License Agreement (EULA) is a legal agreement between you (either an individual or single entity) and Micro- Tel, Incorporated for the Microcall software (as further defined below, "Software") that accompanies this EULA or that is referenced in an Order incorporating or otherwise governed by this EULA. YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS EULA BY ACCESSING, INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT ACCESS, INSTALL, COPY, OR USE THE SOFTWARE. Micro-Tel Incorporated provides this Software and this license. You assume responsibility for the selection of the Software to achieve your intended results, and for the installation, use and results obtained by the Software. All Micro-Tel Software, and Microcall remain the property of Micro-Tel, Inc. Micro-Tel provides a limited right-to-use license only. License Software, as used herein, means and includes all software made available to you by MicroTel in connection with this EULA, whether accompanying this EULA or identified in an Order. "Order" means any price quote, order or other ordering document entered into by you and Micro-Tel that incorporates or references this EULA. Single Site use or Enterprise-edition is determined at the time of purchase by indicating in the Order the Site Location where the Software is installed, the number of data sources from which the Software collects call data, the specific manufacturer identified for each data source, and the number of extensions to track. Some components and features of the Software are subscription-based and terminate annually or with the software maintenance expiration, whichever comes first. You may copy the Software onto any machine (readable or printed form) for backup purposes only, in support of your use of the Software on the single machine. You must reproduce and include the copyright notice on any copy of the Software. You may not use, copy, modify or transfer the Software, or any copy of modification of the Software, or of the Software documentation, in whole or in part, except as expressly provided for in the license. You may not sublicense, assign or transfer the license or the Software. Micro-Tel hereby grants you a non-exclusive, right to use license, to access and use the Software for your business purposes; however, each license has a "software maintenance expiration date" associated with it, and you must have current software maintenance and update your installed licenses with the then-current Software release included with your purchase of each annual maintenance renewal or reinstatement. Subscription components of the Software will expire at the software maintenance expiration date and will be reactivated at the renewal or reinstatement of your maintenance services. You may also purchase additional subscription licenses for additional users. Micro-Tel will not be obligated or required to reactive any subscription components, without first obtaining a renewal or reinstatement agreement executed by client or end-user. Microcall upgrades, new releases, licensing confirmation, and other software additions or enhancements will take place through the License Server, which uses secured, encrypted communication. For continued software validation, the Software must maintain a static connection to the License Server. If it is determined that a static IP connection cannot be maintained to the License Server, at Micro-Tel's sole discretion, a License Key may be issued for the use of a current software release and the key will contain a termination date associated with the software maintenance expiration date. You must have a current Software maintenance agreement to continue AGREEMENT FOR SOFTWARE AS A SERVICE Page 22 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 use of the Software License Key and to maintain contact with the License Server. Legacy software systems must be upgraded to the new Software release at the then-current rate to avoid obsolescence associated with older hardware, obsolete software developer tools and third-party applications, obsolete security protocols, to name a few. Term Your license is effective until terminated. You may terminate it at any time by ceasing use and destroying the Software together with all copies, modifications, and merged portions in any form. It will also terminate upon conditions set forth elsewhere in the Agreement or if you fail to comply with any term or condition of this Agreement, including, but not limited to, (a) software tampering, abuse, misapplication, abnormal use (b) non-payment or non-timely payment of license fees (c) failure to comply with the Software licensing requirements or (d) software or hardware obsolescence. Your subscription-based licenses to the Software will also terminate when your maintenance service terminates. You agree upon such termination to destroy the Software together with all copies, modifications, and merged portions in any form. Fees and Payment Fee and payment terms shall be as set forth in an Order or other agreement between you and Micro- Tel. Fees may be charged on a subscription, license/maintenance or other basis, each as set forth in the corresponding Order. By giving us your payment information (e.g. credit card information, bank account information), you are expressly giving us permission to charge you for all fees incurred in connection with your account. You acknowledge that we may utilize third parties to process payment and consent to such use. Unless otherwise expressly agreed, fees are due in advance. If we don't receive timely payment, we reserve the right to suspend or terminate your license to the Software. A late charge of the lesser of 1.5% per month or the maximum amount permitted by law may be added to past due accounts until paid in full, and you give us permission to use your payment information to process payment for such accrued and unpaid fees at any time on or after they have accrued. All reasonable costs and expenses, including but not limited to attorneys' fees, court costs and service charges incurred by us in collecting payment will be paid by you. You are responsible for all taxes associated with your purchase except taxes on our income. You are not entitled to set off any fees against any other amounts for any reason. All fees paid or owed are non-cancellable and non-refundable. Termination of Support and Other Services Software has a limited useful life for various reasons including changes in technology. Micro-Tel reserves the right in its sole discretion to terminate Support Services and all other Software Licenses, including but not limited to, connectivity to the License Server in the event that the Software has become inoperable or incompatible with current operating systems, hardware, add-on products and services, security issues or any other Software or Hardware Obsolescence. Use Restrictions Except as this EULA expressly permits, you shall not, and shall not permit any other person or entity to: (a) copy the Software, in whole or in part; (b) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Software; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (d) reverse engineer, disassemble, decompile, decode or adapt the Software, or otherwise attempt to derive or gain access to the source code of AGREEMENT FOR SOFTWARE AS A SERVICE Page 23 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 the Software, in whole or in part; (e) bypass or breach any security device or protection used for or contained in the Software; (f) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, disclaimers, or other symbols, notices, marks or serial numbers on or relating to any copy of the Software; (g) use the Software in any manner that violates any applicable law; or (h) use the Software for purposes of: (i) benchmarking or competitive analysis of the Software; or (ii) developing, using or providing a competing software product or service. Intellectual Property Rights The Software is licensed, not sold, to you by Micro-Tel and you do not and will not have or acquire under or in connection with this EULA any ownership interest in the Software or in any related intellectual property rights. Micro-Tel and its licensors are and will remain the sole and exclusive owners of all right, title and interest in and to the Software, including all intellectual property rights relating thereto. Except for the limited rights and licenses expressly granted under this EULA, nothing in this EULA grants, by implication, waiver, estoppel or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to any of the Software. Limited Warranty Micro-Tel warrants that the Software when delivered will conform to Micro-Tel's current published Software specifications, and that the Software when delivered via download, will be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of the download. However, you acknowledge that the Software is of such complexity that they may have inherent defects, and that as Micro-Tel's sole liability, and your sole remedy, Micro-Tel will provide programming services to correct documented errors which Micro-Tel diagnosis indicates are caused by a defect in an unaltered version of the Software. Except for any refund elected by Micro-Tel, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO ACTUAL OR CONSEQUENTIAL DAMAGES, if the Software does not meet Micro- Tel's Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of "Exclusion of Incidental, Consequential and Certain Other Damages" are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have other rights which vary from state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY. Micro-Tel's entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of this EULA or for any other liability relating to the Software shall be, at Micro-Tel's option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software, that does not meet this Limited Warranty and that is returned to Micro-Tel. You will receive the remedy elected by Micro-Tel, in its sole discretion, without charge, except that you are responsible for any expenses you may incur. This Limited Warranty is void if failure of the Software has resulted from accident, software tampering, abuse, misapplication, abnormal use, or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Micro-Tel will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Micro-Tel's warranty remedy procedures. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROTEL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES AGREEMENT FOR SOFTWARE AS A SERVICE Page 24 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331D680937F7 WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE FOR WHATEVER REASON, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF MICRO-TEL OR ANY SUPPLIER, AND EVEN IF MICRO-TEL OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIMITATION OF LIABILITY AND REMEDIES NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF MICRO-TEL AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY HEREUNDER (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY MICRO-TEL, IN ITS SOLE DISCRETION, WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SOFTWARE OR THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. DISCLAIMER TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE GUARANTEE ABOVE, MICRO-TEL DISCLAIMS ALL WARRANTIES, CONDITIONS AND OTHER TERMS, EITHER EXPRESS OR IMPLIED (WHETHER BY STATUTE, COMMON LAW, COLLATERALLY OR OTHERWISE) INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF SATISFACTORY QUALITY AND FITNESS FOR PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE AND THE WRITTEN MATERIALS THAT ACCOMPANY THE SOFTWARE. ANY IMPLIED WARRANTIES THAT CANNOT BE EXCLUDED ARE LIMITED TO 90 DAYS OR TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW, WHICHEVER IS GREATER. Customization Micro-Tel warrants that the Software when delivered will conform to Micro-Tel's current published Software specifications. Each Microcall system will be customized to the user's specifications at the time of purchase. Because each Microcall system is customized for each user, once the Software is ordered and delivered, no refunds will be issued. Miscellaneous This agreement is governed by the laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule. Should you have any questions concerning this agreement, you may contact Micro-Tel at the following address: Micro-Tel, Incorporated Micro-Tel Center 3700 Holcomb Bridge Road Peachtree Corners, GA 30092 Phone: 770-447-5408 AGREEMENT FOR SOFTWARE AS A SERVICE Page 25 Docusign Envelope ID: 1AFBF3E4-D830-4410-9975-331 D680937F7 The relationship between the parties is that of independent contractors. Nothing contained in this EULA shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other Party in any manner whatsoever. This EULA and the rights and obligations hereunder, may not be assigned in whole or in part by you, including to an affiliate or due to a change of control of through merger, sale of all or substantially all of your assets, reorganization or bankruptcy, without the prior written consent of Micro-Tel. This EULA shall be binding upon, and inure to the benefit of, the permitted successors, executors, heirs, representatives, administrators, and assigns of the parties hereto. Any attempt at assignment without such consent shall be null and void and of no force and effect. This EULA is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this EULA. No amendment to or modification of this EULA is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this EULA, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this EULA shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any provision of this EULA is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this EULA so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. The parties agree that if any section of the EULA involving license or proprietary rights are breached, the non-breaching party will suffer immediate and irreparable damage that will not be adequately compensated by money damages alone, and therefore, either party, in addition to any other legal or equitable remedies, shall be entitled to seek an injunction or similar equitable relief against such breach or threatened breach, without providing a bond. This EULA, together with applicable Orders, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this EULA and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Micro-Tel 3700 Holcomb Bridge Road Peachtree Corners, GA 30092 AGREEMENT FOR SOFTWARE AS A SERVICE Page 26 ;eriUMnetworks- SPOKANE i SEATTLE i BILLINGS i HELENA i BEAVERTON BOISE PHILLIPINES u Orders@CeriumNetworks.com 7/17/2024 C 877.4.CERIUM 1 877.423.7486 -• CERQ96798 ® cerium networks.com • Jeff Fortney 420-527-6819 jfortney@ceriumnetworks.com PREPAREDFOR: City of Kent James Endicott City of Kent 220 Fourth Ave. S QUOTE DESCRIPTION: Kent, WA 98032 United States Cow F, L. Description 1 MICROCALL QUOTE-3 YEAR TERM SUBSCRIPTION 2 TOTAL CONTRACT VALUE= $16,530 3 BILLING FREQUENCY: ANNUAL PREPAID 4 1 One-time Setup Fee $2,250.00 $2,250.00 5 3 One-time Additional Data Source for SBCs $1,000.00 $3,000.00 6 7 1 MICROCALL YEAR 1 OF 3 $5,137.50 $5,137.50 8 Microcall Telemanagement Solution supporting up to 1500 extensions and integrating with a Mitel and Teams phone system. 9 Microcall Maintenance includes the following: • Free Remote Installation &System Configuration- Microcall Technician remotely installs and configures Microcall • Initial & on-going Microcall Training Webinars for System Administrators and End-users•Access to the Microcall Support Services/ Help Desk for Microcall Assistance/Trouble-shooting/ Training • FREE Voice Platform Upgrade-receive a free Microcall upgrade to interface with any new Voice platform (VolP solution)should the voice platform change 10 Suite of Auto-Refreshing Dashboards-Three Subscription Licenses to Real-time Dashboards-Desktop dashboards that continually refresh with new data automatically to present the most up-to-date analytics for employees, specific departments, and corporate-wide 11 SIP Trunk Analytics-SIP analytics for Pre &Post SIP Deployment includes: SIP Trunk Traffic, Peak Concurrent Calls, PRI to SIP Capacity, SIP Licensing, etc. 12 Session Border Controller(SBC)Analytics-Track calls that route through the SBC, includes: Backend SIP Calls, Load Balancing, Max Peak Usage on Trunk/Gateway, Under-utilized SIP Trunks, QoS Monitoring (Jitter/Latency/MOS), and more. 'SBC tracking may require an additional data source. 13 Traffic Analytics- Manage Voice Infrastructure: All Circuits Busy, Tail-End Hopoff, Toll Avoidance, Peak Time, Off-Network/On-Network Calls, etc. 14 Security/Compliance Tracking- Instant, Quick Searches for Harassing Calls, Bomb Threats, Long Calls, Excessive International Calls, HR searches, etc. 15 Sales/Customer Service- Employee Call Totals, Frequent Inbound Callers/Dialed Numbers, Busy Hours,Agent Terminated Calls,Abandoned Calls, Shared Lines, Cold Calls, Key Customer Calls, Calls to Voicemail, etc. 16 Tail-End Hopoff Reporting-shows opportunities for reducing toll charges by routing calls out remote gateways. 17 Cradle-Grave Reporting-Track each segment of ALL calls from start to finish, and reveal CERQ96798 1 of 2 Description how it transitions through your voice platform. 18 Enhanced Cisco Reporting -includes Abandoned Calls, calls that roll over to voicemail, Hunt Group totals, etc. 19 Shared-Line Reporting- Resolves MAC address of device and shows the actual user who handled the call. 20 Call Accounting/Cost Allocation-Corporate Expense Allocation, Phone Usage Charges, Tenant&Client Billing, Fixed Costs, Equipment Charges, etc. 21 Microcall Active Directory Interface/ASA/HR Systems/Databases/Spreadsheets- Seamless integration for automated Adds/Moves/Changes. 22 Unlimited Browser Reporting Dashboards from anywhere-Window Authentication & Custom Permissions for User Access Rights. 23 Instant Emergency 911 &Toll Fraud Notification- Microcall instantly sends alerts when 911 calls are made&users can create an unlimited number of instant toll fraud alerts. Alerts can be delivered via email, SMS, or screen pop and the alert message can include LOCATION identification info such as location, building, floor, room, extension#, employee name, etc. 24 Instant Alerts- User Defined Alerts with automatic notification of System Failures, Poor Call Quality, Improperly Routed Calls, Down Trunks and more. Applicable taxes and/or freight&handling to be billed upon final invoicing Subtotal $10,387.50 Estimated Tax $524.03 Grand Total $10,911.53 Terms Net 30 For order inquiries, including shipping estimates and tracking, please email orders@ceriumnetworks.com. See Attached Signature Page Pricing is valid for 30 days from the above date. Cerium reserves the right to cancel quotes and/or orders in the event of pricing changes. Taxes and/or shipping fees are estimated, and final costs will be billed upon final invoicing. Additional handling and/or other fees may apply. Expedited shipping is subject to an additional charge. Subscription fees are non-refundable and payment obligations are non-cancelable and non-negotiable, except where prohibited by law. By signing below, I acknowledge that I am permitted to authorize Cerium Networks to order products and/or perform services for the items listed above. Dax-�_� Dana Ralph 07/29/2024 Authorized Signature Printed Name: Date: Thank you for your business! Connecting your workforce to its potential. CERQ96798 2 of 2