HomeMy WebLinkAboutInviso - City of Auburn MSA.pdf
AGREEMENT
This agreement (“Agreement”) is made and entered into by and between City of Auburn (“Entity”),
and Inviso Corporation, a Washington corporation (“Inviso”).
RECITALS
WHEREAS, the Entity requires the services of Inviso (“Services”), as more particularly
described in a Statement of Work (“SOW”), as described below; and WHEREAS, Inviso represents that it has the experience, knowledge, labor, and skill to perform the Services; and
NOW, THEREFORE, in consideration of the above recitals, mutual covenants, and terms and conditions contained herein, the parties agree as follows: SECTION 1. DESCRIPTION OF SERVICES
(a) Inviso shall perform the Services substantially in accordance with the terms and conditions set forth under this Agreement and as evidenced by one or more SOW. Each SOW will include a detailed schedule for performance of the Services, delivery of the deliverables and the costs associated with the Services and deliverables. Each executed SOW will be attached hereto and
incorporated herein, and the terms and conditions of this Agreement will apply to each SOW as sequentially organized by SOW date, ex. “SOW XX/XX/XXXX.” Inviso shall be solely responsible for the means, methods, and procedures of performing the Services. No SOW will be effective until signed by authorized representatives from both parties.
(b) The Entity and Inviso recognize the Services and project schedule may require modification due to unforeseen events that may be encountered. Therefore, an amendment to this Agreement may be prepared, negotiated, and executed by the parties in accordance with the terms of this Agreement if there has been or is to be a significant change, including but not limited to: (1) Scope, complexity, or character of the Services to be performed;
(2) Conditions under which the Services are required to be performed, such as a change in applicable standards or a change in available base data that would require significant additional work to successfully complete the Agreement; or (3) Duration of work if the time period for completion of the Services warrants such adjustment.
Any modification required by the Entity or Inviso that results in a change in the Services or project schedule will also be specified in a fully executed written amendment to this Agreement which will set forth the nature, scope, and payment therefore.
SECTION 2. COMPENSATION AND MANNER OF PAYMENT (a) The Entity agrees to pay Inviso for the Services based on the fees/rates outlined in the SOW. It is expressly understood that Inviso must complete all services, and it is Inviso’s responsibility to
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
ensure that hours and tasks are properly budgeted so that all Services are completed in accordance with the applicable SOW.
Inviso, as a prerequisite to the obligation on the part of the Entity for payment of fees provided herein, must submit monthly invoices describing the Services performed during the preceding month. Invoices must list all direct and non-direct costs. The Entity shall pay Inviso all properly billed amounts within thirty (30) days of the Entity’s receipt of properly submitted invoice(s). All
invoices shall reference the Entity’s applicable purchase order number. The Entity may offset any
such payment to reflect amounts owing from Inviso to the Entity pursuant to this Agreement. (b) Unless otherwise agreed in a fully executed written amendment to this Agreement, the Entity will not reimburse Inviso for any travel expenses other than those pre-approved travel expenses, if
any, that are set forth in the Statement of Work and include a cost estimate. Inviso must obtain prior
written approval from the Entity concerning the number of employees to be sent by Inviso each time travel is required in performing this Agreement. The Entity will reimburse Inviso for travel expenses paid or incurred on its behalf as follows: (1) Meals, incidentals and lodging reimbursements must not exceed rates established by
the U.S. General Services Administration (GSA) for the primary destination. For
current rates, refer to: http:// www.gsa.gov/perdiem. GSA rates vary by location, and for some locations, by time of year. If a city/county is not listed, then the GSA standard rate for continental U.S. applies. Reimbursement for lodging taxes is in addition to this rate but only up to the lodging taxes applicable based on the GSA
rate.
(2) Travel to the Entity in performing this Agreement where overnight lodging is necessary must be arranged at hotels located within the County where Entity is located. (3) Air travel costs will be limited to coach or economy class only; copies of original
receipts are required.
(4) Mileage will be limited to direct routes and reimbursed at IRS standard business rates. Other ground transportation (e.g., taxi, shuttle, bus, rental car) are at actual costs; copies of original receipts required. Rental car reimbursement is limited to midsize sedan or equivalent; copies of original receipts are required.
Copies of original receipts are required as stated herein and no reimbursement will be allowed for costs not directly related to the furtherance of Inviso’s business under this Agreement with the Entity. SECTION 3. TIME OF PERFORMANCE
(a) This Agreement shall be effective on the Effective Date (defined below) and will continue to be in effect for two (2) years (“Term”), unless terminated earlier in accordance with the terms herein. The “Effective Date” is the later of the date of official action of Entity officials (if required and as reflected on the signature page) or the date of full execution of this Agreement, as reflected on the
signature page.
The Parties agree to extend this Agreement for an additional two (2) year Term if there is an active SOW in force at the time of expiration.
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
(b) Neither the completion of the Services nor any earlier termination of this Agreement shall
impact any replacement or re-performance of a Nonconforming Service, representations,
indemnities, insurance requirements, confidentiality obligations, termination obligations or other obligations which by their own terms are intended to survive the completion of the Services, all of which shall continue in full force and effect after the Term.
SECTION 4. SUSPENSION OF SERVICES The Entity may suspend performance by Inviso under this Agreement for such period of time as the Entity, at its sole discretion, may prescribe by providing written notice to Inviso at least ten (10) days prior to the date on which the Entity wishes to suspend. Inviso shall not perform further work
under this Agreement after the effective date of suspension until receipt of written notice from the
Entity to resume performance, and the time period for Inviso’s performance of the Services shall be extended by the amount of time such performance was suspended. If the Entity delivers notice of its intent to suspend services under this Agreement, Inviso shall suspend performance of the Services on a schedule acceptable to the Entity. If suspension is for the Entity’s convenience, the Entity
shall pay Inviso for all the Services performed and an equitable amount for incremental costs
incurred by Inviso as a result of the suspension; provided, however, that if the suspension is due to Inviso’s willful failure to substantially comply with this Agreement, no such payment shall be made. SECTION 5. TERMINATION FOR CONVENIENCE
The Entity may terminate this Agreement in whole or in part at any time without cause prior to completion of the Services or the Term by sending to Inviso written notice of such termination. Upon such termination, the Entity shall pay to Inviso, in full satisfaction and discharge of all liabilities and obligations owed Inviso, an equitable amount for all Services satisfactorily performed by Inviso as
of the date of termination plus the actual cost for any charges incurred by Inviso that cannot be
canceled or reasonably mitigated. In that notice, the Entity shall specify whether it is terminating this Agreement in whole or in part and the effective date of Agreement termination. The Entity shall not be liable for anticipated profits based upon Services not yet performed.
SECTION 6. TERMINATION FOR CAUSE (a) The occurrence of any of the following events constitutes a default by Inviso (an “Event of Default”): (1) A material and substantial breach by Inviso of any material term, condition, or
covenant contained herein, if such breach continues uncured for a period of thirty
(30) days after receipt of written notice from the Entity, unless such breach cannot by its nature be remedied within such period in which event Inviso shall provide evidence reasonably satisfactory to the Entity within thirty (30) days after receipt of such notice that the cure of such breach has commenced and Inviso thereafter makes
reasonable, substantial and continuous progress to that end. For purposes of this
Agreement, such a breach by Inviso shall be deemed to include, without limitation, Inviso’s refusal or neglect to supply sufficient and properly skilled labor or subconsultants, Inviso’s refusal or neglect to perform the Services in accordance with
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
applicable standards, or Inviso’s failure in any respect to prosecute the Services or any part thereof with promptness, diligence and in accordance with all of the material
provisions hereof; or
(2) Entity’s determination that any representation, statement or covenant made by Inviso in this Agreement, or in any other statement, report or document that Inviso is required to furnish to the Entity, was false or misleading in any material respect; (3) The occurrence of any of the following: (a) the filing by or against Inviso of a
proceeding under any bankruptcy or similar Law (defined below), unless such
proceeding is dismissed within thirty (30) days from the date of filing; (b) the making by Inviso of any assignment for the benefit of creditors; (c) the filing by or against Inviso for a proceeding for dissolution or liquidation, unless such proceeding is dismissed within thirty (30) days from the date of filing; (d) the appointment of or
the application for the appointment of a receiver, trustee or custodian for any material
part of Inviso’s assets unless such appointment is revoked or dismissed within thirty (30) days from the date thereof; (e) the attempt by Inviso to make any adjustment, settlement or extension of its debts with its creditors generally; (f) the insolvency of Inviso; or (g) the filing or recording of a notice of lien or the issuance or the obtaining
of a levy of execution upon or against a material portion of Inviso’s assets, unless
such lien or levy of execution is dissolved within thirty (30) calendar days from the date thereof; or Inviso, in the reasonable opinion of the Entity, has experienced a material adverse change in Inviso’s financial condition or Inviso’s ability to fulfill its obligations under
this Agreement.
(b) Upon the occurrence of any Event of Default, following the giving of any notice and the expiration of any cure period expressly provided in Subsection (a)(1) above, the Entity shall be entitled upon written notice to Inviso – without notice to Inviso’s sureties and without limiting any
of the Entity’s other rights or remedies – to terminate this Agreement or to terminate Inviso’s right
to proceed with that portion of the Services affected by any such default. (c) Upon receipt of any such written notice of termination for an Event of Default of the entire Agreement or of any right to proceed with any portion of the Services following the applicable
process described in this Section, Inviso shall, at its expense, assess the status of any deliverables
still due, preserve any Services performed, and deliver to the Entity any partially-completed Services performed by Inviso and any subconsultant, including without limitation documentation, software source media, flow charts, documents and other deliverables.
(d) In the event of such termination for an Event of Default, the Entity may finish the Services
by whatever method the Entity may deem expedient including: (1) the Entity may hire a replacement consultant(s) at its expense to complete the remaining Services that Inviso was otherwise obligated to complete under the Agreement using such form of agreement as the Entity may deem advisable; or
(2) the Entity may itself provide any labor or materials to complete the Services.
(e) In the event of such a termination for an Event of Default, the Entity may suspend all payments otherwise due to Inviso hereunder and the Entity has no further obligation to pay Inviso
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
for the Services, except for payment of the reasonable value for all Services satisfactorily performed to the date of termination. However, the Entity is not obligated to make any such payment until after
all Services are completed to the Entity’s satisfaction.
(f) If the Entity terminates this Agreement and finishes the Services pursuant to Subsection (d) above and the total cost of completing the Services, including all payments made to Inviso, is less than the total amount budgeted for this Agreement by the Entity, then the Entity shall pay to Inviso,
within thirty (30) days after the completion of the Services, the amount of any payment that would
otherwise (i.e., in the absence of the default) be due to Inviso for any Services performed by Inviso prior to termination. If the Entity terminates this Agreement and finishes the work pursuant to Subsection (d) above and the total cost of completing the Services, including all payments made to Inviso, is greater than the total amount budgeted for this Agreement, then Inviso shall pay the amount
by which the total cost of completing the Services exceeds the total amount budgeted to the Entity
within thirty (30) days after Entity provides an invoice to Inviso. (g) All rights and remedies provided in this Section are cumulative, and are not exclusive of any other rights or remedies that may be available to the Entity, whether provided by Law, equity, in any
other agreement between the parties or otherwise. Upon the occurrence of an Event of Default,
following the applicable process described in this Section, the Entity shall be entitled to pursue any and all other rights and remedies, including without limitation damages, that the Entity may have against Inviso under this Agreement, at Law, in equity or pursuant to another agreement between the parties. “Law” means all applicable federal, state and local laws, statutes, ordinances, regulations,
rules, codes, orders, policies, standards, guidelines or other governmental requirements of Entity.
(h) This Agreement may be terminated by Inviso in the event the Entity defaults in the due observance and performance of any material term, condition, or covenant contained herein and such default is not cured within thirty (30) days after Inviso delivers written notice of such default to the
Entity, unless such breach cannot by its nature be remedied within such period in which event the
Entity shall provide evidence reasonably satisfactory to Inviso within ten (10) days after receipt of such notice that the cure of such breach has commenced and the Entity thereafter makes reasonable and continuous progress to that end. For purposes of this Agreement, such a breach by the Entity shall be deemed to include, without limitation, failure to pay an invoice in accordance with
the “COMPENSATION AND MANNER OF PAYMENT” Section.
SECTION 7. DELAYS
(a) Neither party shall be liable for delays caused by a Force Majeure Event; provided, however, that both parties agree to seek to mitigate the potential impact of any such delay. Any delay attributable to a Force Majeure Event shall not be the basis for a request for additional compensation, and the Entity shall not in any case be held liable or responsible to Inviso for any damage caused by such delay. In the event of any such delay, the required completion date may be extended for a
reasonable period not exceeding the time actually lost by reason of the Force Majeure Event. A “Force Majeure Event” means a delay caused by fire, flood, storm, earthquake, strikes, labor disputes, war, acts of vandalism, destruction, public disobedience, terrorism, pandemic, the action of civil or military authorities, ransomeware attack, or other events: (1) that are not reasonably foreseeable as of the Effective Date; (2) that are attributable to a cause beyond the control and without
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
the fault or negligence of the party incurring such delay; and (3) the effects of which cannot be avoided or mitigated by the party claiming such delay through the use of commercially reasonable
efforts; provided that economic hardship, including lack of money, downturn in the economy, or
credit and changes in exchanges rates, does not constitute a Force Majeure Event. (b) If Inviso is actually and reasonably delayed in its performance of the Services by the actions or omissions of the Entity (excluding the Entity’s good faith exercise of rights and remedies provided
under the Agreement or a Force Majeure Event), or by changes ordered or amendments to this Agreement with respect to the Services, and if Inviso is able to prove that it has used all reasonable means to avoid or minimize the effects of the delay, then the deadline to complete the Services shall be equitably adjusted to reflect the impacts of such Entity-caused delays. The Entity may, at its
discretion, in lieu of granting an extension of time, require Inviso to regain the schedule whereby the Entity shall compensate Inviso for all additional, actual costs reasonably incurred thereby. No adjustment under this Subsection (b) shall be made for any delay to the extent that it is caused or contributed to by Inviso or performance would have otherwise been delayed by any other cause,
including the errors, omissions, fault or negligence of Inviso. (c) If, at any time, the Entity determines the progress of completing the Services is not being performed in accordance with the agreed-upon schedule or reasonably believes Inviso will not
complete all Services before the Term expires, the Entity may direct Inviso to take corrective actions to ensure the timely and orderly prosecution of the Services, at no additional cost to the Entity.
(d) In the event that any dispute or conflict arises between the parties while this Agreementt is in effect, Inviso agrees that, notwithstanding such dispute or conflict, it will continue to make a good faith effort to cooperate and continue work toward successful completion of the assigned duties and responsibilities.
SECTION 8. CORRECTION OF WORK If any deficiency, error, or omission in the Services, including any deliverable, is reasonably found or, in the Entity’s reasonable opinion, fails to substantially conform to the requirements in this Agreement, whether during or within twelve (12) months after the Term (each a “Nonconforming
Service”), Inviso shall expeditiously and at no expense to the Entity, re-perform or replace the
Nonconforming Service and make any necessary corrections so as to conform with the requirements herein. If Inviso fails to expeditiously make any replacement or re-performance as required herein, the Entity may conduct the necessary work at Inviso’s expense, and Inviso shall reimburse the Entity for the cost of any replacement or re-performance performed by the Entity and an Entity contractor,
provided such cost does not exceed total fees charged under this agreement. This Section survives
default, expiration, or termination of this Agreement or excuse of performance. Exercise of this section shall not be a prerequisite condition for the Entity to exercise its rights under section 6, termination for cause.
SECTION 9. STANDARD OF CARE Inviso covenants that all Services performed, including deliverables supplied, shall substantially conform to the specifications, drawings, samples, and other descriptions set forth in this Agreement, shall be performed in a manner consistent with the level of care and skill ordinarily exercised by
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
members of Inviso’s profession and in accordance with generally accepted industry standards prevailing at the time the Services are performed and deliverables supplied, and do not infringe the
intellectual property rights of a third party. The foregoing covenants are not intended as a limitation,
but are in addition to all other express covenants set forth in this Agreement and such other warranties as are implied by Law, custom, and usage of trade. SECTION 10. OWNERSHIP OF DOCUMENTS & RIGHTS TO THIRD-PARTY
SOFTWARE All Inviso materials, drawings, specifications, reports or other documents given, prepared, or assembled by Inviso and delivered to the Entity by Inviso, which are related to the performance of this Agreement, are deemed to be the property of the Entity when prepared, and shall, together with
any materials furnished to Inviso and its personnel by the Entity hereunder, be delivered to the Entity
upon request, and, in any event, upon termination or final acceptance of the Services. Inviso agrees that all such original work prepared by it, or its employees, agents or subconsultants of any tier, or their employees, under this Agreement and delivered to the Entity by Inviso which is subject to protection under copyright Laws constitutes “work made for hire,” all copyrights to which belong to
the Entity. In any event, Inviso assigns to the Entity all intellectual property rights in such Inviso
work whether by way of copyright, trade secret or otherwise, and whether or not subject to protection by copyright Laws. Inviso shall retain all rights to its preexisting standard details, specifications, computer software or other intellectual property. Such preexisting materials, if required to be delivered as part of the Service. are hereby licensed to the Entity, through a fully paid, worldwide,
royalty-free, non-exclusive and perpetual license, for (a) the Entity’s own use for the Services that
are the subject of this Agreement to the fullest extent necessary to accomplish the purposes of this Agreement and (b) any future use, replacement, or correction of the Services. However, Inviso may keep copies of these documents for its files, subject to the “CONFIDENTIALITY” Section. If Inviso or a subconsultant labels a document owned by the Entity as Inviso’s (or a subconsultant’s)
proprietary or confidential document, such label shall be deemed void.
The Entity understands and agrees that Inviso may require the Entity to purchase third- party software licenses as part to the Services and that the Entity’s rights to the third-party software shall be set forth in the applicable third-party license agreement.
This Section survives default, expiration, or termination of this Agreement or excuse of performance. Any code, script or software written as part of any contract or SoW will become the property of City of Auburn.
SECTION 11. INSURANCE (a) Inviso, upon request, shall furnish the Entity within ten (10) business days with a Certificate of Insurance, endorsed to include the Entity as “Additional Insured,” signed by an authorized
representative, as well as any endorsements affecting the coverage required by this clause. All
deductibles and self-insured retentions(s) shall be fully disclosed in the Certificates of Insurance. All insurance coverage required herein must be written by a company with a current A.M. Best’s
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
rating of not less than A:VII.
Any failure to comply with reporting or other provisions of the policies including breaches of
warranties shall not affect coverage provided to the Entity. Inviso shall include all subconsultants as insured under its policies or shall furnish separate certificates or endorsements for each subconsultant. All coverage for subconsultants shall be subject
to all above requirements.
Inviso, at its own cost, shall maintain in full force and effect throughout the term of this Agreement the following insurance coverage with limits of liability not less than those stated below. An excess liability policy or umbrella liability policy may be used to meet the minimum liability requirements
provided that the coverage is written on a “following form” basis.
(1) Commercial General Liability: This policy shall include bodily injury, property damage and broad form contractual liability coverage: Each Occurrence: $1,000,000 Personal Injury: $1,000,000 General Aggregate: $2,000,000 (2) Automotive Liability: If any of the Services are performed in the state where Entity is located, the auto policy shall provide coverage for bodily injury and property
damage for any owned, hired, leased, borrowed, and non-owned vehicles used in the
performance of this Agreement: Combined single limit: $1,000,000 (3) Professional Liability Insurance (Errors and Omissions): This policy shall include coverage for the activities and any errors or omissions of Inviso’s professional staff
in connection with the Services and any other work performed by Inviso in
connection with this Agreement. These are minimum limits and could be increased to be commensurate with the Services: Each Claim: $1,000,000 Annual Aggregate: $2,000,000
If the Professional Liability insurance required by this Agreement is written on a claims-made basis, Inviso warrants and shall ensure that any retroactive date under that policy shall precede the Effective Date and that either continuous coverage will be maintained, or an extended discovery period will be exercised, for a period of two (2) years from the time the Services under this Agreement are completed.
(4) Workers’ Compensation and Employer’s Liability: Workers’ Compensation: Statutory (b) The commercial general liability and, if any of the Services are performed in the state of the Entity, the automotive liability policies are to contain, or be endorsed to contain the following:
(1) The Entity, its officers, officials, employees, agents, and volunteers are to be covered with respect to: liability arising out of activities performed by or on behalf of Inviso; products and completed operations of Inviso, premises occupied or used by Inviso (its officers, employees, agents, subconsultants). The coverage shall contain no special limitations on the scope of protection afforded to
the Entity.
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
(2) For any claims related to this Agreement, Inviso’s coverage shall be primary and non-contributory with respect to all other available sources and with respect to the
Entity, its officers, officials, employees, volunteers and agents.
(3) Inviso’s insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer’s liability. (4) Should any of the described policies be canceled before the expiration date thereof, notice will be delivered in accordance with the policy provisions (pursuant to ISO
ACORD Form 25, current revision), and, in such event, Inviso shall promptly provide
written notice to the Entity. If any of the insurance coverage required hereunder is canceled and not replaced, reduced or restricted, the Entity reserves the right to terminate this Agreement for cause without penalty or further obligation or liability to Inviso.
(5) If Inviso maintains higher insurance limits than the minimums shown above, the
Entity shall be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by Inviso, irrespective of whether such limits maintained by the Inviso are greater than those required by this contract or whether any certificate of insurance furnished to the Entity evidences limits of
liability lower than those maintained by Inviso.
SECTION 12. INVISO’S INDEMNITY OBLIGATION
(a) Inviso specifically and expressly agrees (at no cost to an Indemnitee) to indemnify, defend,
and hold harmless the Entity and its officers, officials, employees, volunteers, and agents (individually, an “Indemnitee”) from and against any and all claims, demands, suits, losses, judgments, expenses, fines, penalties, proceedings, costs and damages of every kind and description, including attorneys’ fees and costs (each a “Claim”) brought or made against or incurred by any of
the Indemnitees caused by, resulting from or arising out of the negligence or intentional misconduct
of Inviso or its employees, agents, representatives or subconsultants of any tier in the performance or nonperformance of Inviso’s obligations under this Agreement. Inviso’s indemnity obligations under this Section shall include without limitation: (1) Loss of or damage to any property of the Entity, Inviso or any third party or to the
environment;
(2) Bodily injury to, or death of any person(s), including without limitation employees of the Entity, or of Inviso or its subconsultants of any tier; (3) Claims or amounts arising out of or recovered under workers’ compensation, unemployment compensation, or similar Laws or obligations applicable to
employees of Inviso or its subconsultants of any tier;
(4) Claims arising from the failure of Inviso or its subconsultants of any tier to comply with an applicable Law; and (5) Claims arising from the knowing violation or infringement of any patent, copyright or work delivered by Inviso to Entity under this Agreement.
(b) The Entity must give Inviso notice of a Claim promptly after the Entity has actual knowledge thereof, provided that the Entity’s failure to give such notice shall not relieve Inviso of its obligations hereunder except to the extent that Inviso is materially damaged as a result of its failure to receive
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
actual notice. If Inviso wishes to settle a Claim, any settlement must not impose any obligations or expense on the Entity, must fully resolve the Claim against the Entity, and must ensure that the Entity
receives Services and Documents that are satisfactory to the Entity and functionally equivalent to
those Inviso is obligated to deliver under this Agreement. (c) In case any Services or Documents (as defined below), or any combination thereof, constitutes or is alleged to constitute such an infringement or violation or infringement of any patent,
copyright work and the use of any of the foregoing is enjoined, Inviso shall, at its expense and
through mutual agreement between the Entity and Inviso, either procure for the Entity the right to continue using said Services and Documents, replace same with non-infringing Services and Documents, or modify the same so they become non-infringing, are satisfactory to the Entity and are functionally equivalent to those Inviso is obligated to deliver under this Agreement. “Document”
means any material, drawing, specification, report or other document Inviso is obligated to deliver
the Entity under this Agreement. (d) Inviso’s indemnity obligations owing to Indemnitees under this Section are not limited by any applicable insurance coverage identified in the “INSURANCE” Section or by any limitation of
liability provision. Inviso’s indemnity obligations under this Agreement shall not extend to any
liability caused by the sole negligence of any of the Indemnitees. (e) For purposes of the Entity’s enforcement of an indemnity obligation only, Inviso specifically and expressly waives any immunity under workers’ compensation Laws or other employee benefits
acts of any state or jurisdiction that conflicts with Inviso’s indemnification obligations in this
Agreement. Inviso acknowledges that this waiver was mutually negotiated by the parties herein. (f) The invalidity, in whole or in part, of any of the foregoing Subsections will not affect the remainder of such Subsections or any other Subsections in this Section.
(g) This Section survives default, expiration, or termination of this Agreement or excuse of performance. SECTION 12.1 ENTITY’S INDEMNITY OBLIGATION
(a) The Entity specifically and expressly agrees (at no cost to an Indemnitee) to indemnify,
defend, and hold harmless Inviso and its officers, shareholders, officials, employees, volunteers, and
agents (individually, an “Indemnitee”) from and against any and all claims, demands, suits, losses, judgments, expenses, fines, penalties, proceedings, costs and damages of every kind and description, including attorneys’ fees and costs (each a “Claim”) brought or made against or incurred by any of the Indemnitees caused by, resulting from or arising out of the sole negligence or intentional
misconduct of the Entity or its employees, agents, representatives or subconsultants of any tier in the
performance or nonperformance of the Entity’s obligations under this Agreement. The Entity’s indemnity obligations under this Section shall include without limitation: (1) Loss of or damage to any property of Inviso, the Entity or any third party or to the environment; (2) Bodily injury to, or death of any person(s), including without limitation employees of Inviso, or its subconsultants of any tier;
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
(3) Claims or amounts arising out of or recovered under workers’ compensation, unemployment compensation, or similar Laws or obligations applicable to
employees of the Entity or its subconsultants of any tier;
(4) Claims arising from the failure of Entity or its subconsultants of any tier to comply
with an applicable Law; and
(5) Claims arising from knowing violation or infringement of any patent, copyright work from the Entity’s materials provided to Inviso. (b) Inviso must give the Entity notice of a Claim promptly after Inviso has actual knowledge thereof, provided that Inviso’s failure to give such notice shall not relieve Inviso of its obligations hereunder except to the extent that Inviso is materially damaged as a result of its failure to receive
actual notice. If the Entity wishes to settle a Claim, any settlement must not impose any obligations
or expense on Inviso, must fully resolve the Claim against Inviso.
(c) The Entity’s indemnity obligations owing to Indemnitees under this Section are not limited by any applicable insurance coverage that the Entity maintains. The Entity’s indemnity obligations under this Agreement shall not extend to any liability caused by the sole negligence of any of the Indemnitees.
(d) The invalidity, in whole or in part, of any of the foregoing Subsections will not affect the
remainder of such Subsections or any other Subsections in this Section.
(e) This Section survives default, expiration, or termination of this Agreement or excuse of performance. SECTION 13. INTELLECTUAL PROPERTY RIGHTS
The Entity understands and agrees that Inviso may require the Entity to purchase third-party software licenses as part to the Services and that the Entity’s rights to the third-party software shall be set forth in the applicable third-party license agreement. In performance of the Services and in connection with the provision of any deliverables, Inviso must not take any action that would knowingly violate or infringe any patent, copyright work. Inviso
represents that:
(a) it has, and upon completion of the work required under this Agreement will have, all rights
necessary with respect to the Services and deliverables (and each part thereof); and (b) the Services and deliverables (and each part thereof) are not known to violate or infringe any patent, or copyright work. Except with respect to third-party software licensed by the Entity as part of the Services, to the extent the Entity does not own the intellectual property rights in the Services as required by the
“OWNERSHIP OF DOCUMENTS” Section, Inviso grants to the Entity, must obtain and transfer
to the Entity, and must cause any subconsultant to grant, obtain, and transfer to the Entity perpetual, fully-paid, worldwide, royalty-free, unrestricted, non-revocable licenses to use, reproduce and modify all intellectual property provided by Inviso and any subconsultant to the Entity in connection with this Agreement, together with any warranties related thereto.
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
This Section survives default, expiration, or termination of this Agreement or excuse of performance.
SECTION 14. ASSIGNMENT Inviso shall not assign, transfer, convey or otherwise dispose of this Agreement or its right, title, or interest in or to the same, or any part thereof, without previous written consent of the Entity and any
sureties, and any attempted assignment in violation hereof shall be void. Nothing contained herein
shall be construed as creating any personal liability on the part of any Entity officer, official, employee, or agent. SECTION 15. WAIVER
No consent or waiver, express or implied, by Inviso or the Entity of any breach or default by the other in the performance of any obligations under the Agreement shall be deemed or construed to be a consent or waiver to or of any other breach or default by such party. Failure on the part of Inviso or the Entity to complain of any act or failure to act of the other party or to declare that other party
in default under this Agreement, irrespective of how long such failure continues, shall not constitute
a waiver of the rights of that party and that party continues to have the right to enforce each and every provision of the Agreement. Inspection by, payment by, or tentative approval or acceptance by the Entity or the failure of the Entity to perform any inspection hereunder shall not constitute a final acceptance of the Services or any part thereof and shall not release Inviso of any of its
obligations hereunder.
SECTION 16. DESIGNATION OF REPRESENTATIVES (a) David Travis is hereby designated as the Entity representative with respect to the Services.
Said representative shall have complete authority to issue task orders, transmit instructions, receive
information, and provide interpretations of Entity policies and decisions with respect to the Services. (b) Inviso hereby designates Ken Lippe, Chief Operations Officer, as its authorized representative and coordinator having responsible charge of all Services. Said representative or
coordinator shall have complete authority to act on behalf of Inviso.
(c) Either party may change its authorized representative by providing notice to the other party in accordance with the “NOTICES” Section.
SECTION 17. INVISO REPRESENTATIONS (a) Inviso represents that it is financially solvent, able to pay its debts as they mature, and possessed of sufficient working capital to complete this Agreement; that it is able to furnish the plant,
tools, materials, supplies, equipment and labor; that it is experienced in, qualified, and competent to
perform the Services contemplated by this Agreement; and, that it is authorized to do business in the state where Entity is located, as may be required. (b) Inviso further represents that Inviso holds a license, permit or other special license to perform
the Services included in this Agreement, as required by Washington Law, or employs or works under
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
the general supervision of the holder of such license, permit or special license.
(c) Inviso represents that the person signing this Agreement on behalf of Inviso has all requisite
authority to bind Inviso to the terms and conditions herein. (d) Inviso represents that it, and each of its Owners, managers, partners, shareholders, officers, executive directors, and key employees, as applicable, has no Family Member who is a Public
Servant for Entity. “Family Member” means anyone living in the same home or dwelling, including
the spouse or domestic partner of the Public Servant, or who is related to the Public Servant by blood, adoption, marriage or domestic partnership, within the third degree of consanguinity or affinity. SECTION 18. INVISO PERSONNEL
(a) Inviso shall employ in the performance of the Services only persons qualified for the same. Inviso shall at all times enforce strict discipline and good order among its personnel and the personnel of any subconsultant of any tier. In the performance of the Services, Inviso shall not permit or allow any Inviso personnel to introduce or use any firearms, illegal drugs or intoxicating liquor upon any
of the grounds occupied, controlled, or used by the Entity. Inviso shall be responsible for taking
such disciplinary action with respect to its personnel as may be necessary. Inviso shall immediately remove from the work, whenever requested by the Entity, any person considered by the Entity to be incompetent, insubordinate, careless, disorderly, in violation of the above restriction on firearms, illegal drugs or intoxicating liquor, under the influence of illegal drugs or intoxicating liquor,
or whose continued employment on the work is deemed by the Entity to be contrary to the public
interest, and such person shall not again be employed in the performance of the Services without the written consent of the Entity. (b) Inviso’s “Key Personnel” assigned to work full time (38 hours/ week) for Inviso under for
this Agreement, if any, shall remain assigned to the Services by Inviso throughout the duration of
this Agreement. Inviso shall not reassign any of the Key Personnel without the prior written authorization of the Entity. Additionally, in the event of termination or resignation of full time Key Personnel assigned to the Services, Inviso shall replace full time Key Personnel in a timely manner and in consultation with the Entity.
SECTION 19. INDEPENDENT CONTRACTOR Inviso is an independent contractor and shall perform the Services in the State of Washington. Neither Inviso nor the Entity is, nor will they be deemed to be, for any purpose, the agent,
representative or employee of the other by reason of this Agreement. Nothing in this Agreement or
any agreement or subcontract by Inviso will create any contractual relationship between Inviso’s employee, agent, or subconsultant and the Entity. SECTION 20. COMPLIANCE WITH LAWS
Inviso shall, in the performance of its obligations hereunder, comply with all Laws, including without limitation the Federal Occupational Health and Safety Act, Title VII of the Federal Civil Rights Act of 1964 et seq., including the Equal Employment Opportunity Act of 1972; 42 U.S.C. §
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
1981, the Age Discrimination in Employment Act of 1967, and as amended (“ADEA”), the Americans with Disabilities Act as applicable. Inviso shall not discriminate against any person on
the grounds of race, color, creed, religion, sex, sexual orientation, gender identity or gender
expression, age, disability, national origin or any other status protected under Law. Inviso shall be responsible for fines, penalties, and repayment of any state or federal funds that may arise (including those that the Entity pays, becomes liable to pay, or becomes liable to repay) as a direct result of Inviso’s non-compliance with this Section.
SECTION 21. SEVERABILITY If any provision of this Agreement shall be held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain valid and binding on the parties hereto. Any invalid or
unenforceable provision will be deemed severed from this Agreement, and the balance of this
Agreement will be construed and enforced as if it did not contain the particular invalid or unenforceable provision. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision.
SECTION 22. PROHIBITION AGAINST CONTINGENT FEES Inviso warrants that no person or entity has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage or contingent fee. For breach or violation of this warranty, the Entity shall have the right to terminate
this Agreement for cause without penalty or further obligation or liability to Inviso or, in the Entity’s
discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such commission, percentage brokerage or contingent fee from Inviso. SECTION 23. PUBLICITY
Except with respect to internal business communications, communications with governmental agencies, or as required by Law, Inviso shall not use this Agreement nor its relationship with the Entity for purposes of or in any manner that intentionally gives rise to advertising or publicity without first consulting with and obtaining the prior written consent of the Entity.
SECTION 24. CONFIDENTIALITY (a) By virtue of this Agreement, the Entity might provide Confidential Information (as defined below) to Inviso. Inviso shall (1) maintain the confidentiality of the Entity’s Confidential
Information and not disclose it to a third party, except as authorized by the Entity in writing, as
required by Law, or as required by a court or other regulatory body or government agency of competent jurisdiction; (2) restrict disclosure of Confidential Information to personnel who have a reasonable basis for needing access to such information and who are bound by confidentiality obligations similar to those in this Agreement; (3) take necessary and appropriate precautions to
guard the confidentiality of the Confidential Information, including informing its personnel who
handle the Confidential Information that it is confidential and is not to be disclosed to others, but these precautions will be with the same degree of care that Inviso uses to protect its own Confidential Information and in no event less than a reasonable amount of care; (4) not use the Confidential
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
Information, except to further the purposes of this Agreement or as may be required to report to Inviso’s governing body, legal advisors, financial advisors, or regulators, and not sell the
Confidential Information; (5) promptly notify the Entity upon discovery of any unauthorized use or
disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Section; and (6) establish and maintain any additional physical, electronic and procedural controls and safeguards to protect the Protected Data (as defined below) from unwarranted disclosure as may be
required for the Entity to comply with all Laws. The responsibilities under this Section shall continue
during the Term and for five (5) years thereafter for Confidential Information that is not Protected Data or a trade secret under Law and for Protected Data and trade secrets shall continue for so long as such Confidential Information remains Protected Data or a trade secret under Law.
(b) Inviso must also require subconsultants and vendors to comply with the requirements in this
Section and shall include this confidentiality provision in its agreements with all subconsultants and vendors related to the Services. (1) “Confidential Information” means non-public information that is disclosed by the Entity under this Agreement in oral, written, graphic, machine recognizable, and/or
sample form, being clearly designated, labeled or marked as confidential or its
equivalent. Confidential Information that is disclosed orally must be identified as confidential at the time of disclosure and confirmed by the Entity by submitting a written document to Inviso within thirty (30) days after such disclosure. That written document must contain a summary of the Confidential Information disclosed with
enough specificity for identification purpose and must be labeled or marked as
confidential or its equivalent. However, Confidential Information does NOT include any information that: (1) is or becomes publicly known through no wrongful act of Inviso; (2) is already known to Inviso without restriction when it is disclosed; (3) is or becomes, rightfully and without breach of the Agreement, in Inviso’s possession
lawfully without any obligation restricting disclosure; (4) is independently developed
by Inviso without breach of this Agreement; (5) is explicitly approved for release by written authorization of the Entity; or (6) required to be open to public inspection and is not subject to an applicable exception or declared by Law to be confidential (as determined by the Entity in its sole and absolute discretion).
(c) “Personal Information” means (1) any data or information accessible by Inviso as a result of
its business relationship with the Entity that can be used to identify or locate a natural person,
including but not limited to: name, address, telephone number, e-mail address, social security number, or driver’s license number; (2) any other data, such as, but not limited to, identifiers, demographic or behavioral data, when such data is linked or has the capacity to be linked to a specific person; and (3) “personal information” as that term may be defined in any applicable state statutes,
and any applicable state regulations promulgated under such state statutes. Personal Information
includes any list, description or other grouping of individuals that is derived using any of the foregoing.
(d) “Protected Data” means any Personal Information that is protected or covered by Law or a Entity policy. Protected Data will not be excluded from coverage under this Agreement merely because it is provided to Inviso in a manner that commingles the Protected Data with other data that is not Protected Data.
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
(e) This Section survives default, expiration, or termination of this Agreement or excuse of
performance.
SECTION 25. SUBCONSULTING AGREEMENTS (a) Inviso agrees that it shall include the following in all professional subconsulting agreements,
in connection with performance of the terms and obligations imposed under this Agreement:
(1) A provision that Inviso agrees to pay the subconsultant when paid for that portion of the work by the Entity, that no liability arises on the part of Inviso to the subconsultant for payment of the subcontracted work until payment has been made by the Entity, and that if the Entity has paid Inviso for said subcontracted work, then the
subconsultant’s only recourse is against Inviso and not against the Entity, either
through the institution of legal or equitable action or the attachment of any lien. (2) A provision that the subconsultant has no rights against the Entity and is not an Entity agent, representative or employee. (3) A provision that the subconsultant agrees to be bound by all the terms and in this
Agreement applicable to Inviso.
(b) Further, Services specified by this Agreement and any associated SOW may not be subcontracted by Inviso without prior written approval of the Entity. Approval by the Entity of Inviso’s request to subcontract, or acceptance of or payment for subcontracted work by the Entity,
shall not in any way relieve Inviso of responsibility for the professional and technical accuracy and
adequacy of the work. Inviso shall be and remain liable for all damages to the Entity caused by negligent performance or non-performance of Services under this Agreement by Inviso’s subconsultant or its sub-subconsultant. The compensation due under the “COMPENSATION AND MANNER OF PAYMENT” Section will not be affected by the Entity’s approval of Inviso’s request
to subcontract.
SECTION 26. VENUE All actions shall be initiated in the courts of the County where Entity is located or the federal district
court with jurisdiction over the County where Entity is located. Inviso agrees that it shall not initiate
an action against the Entity in any other jurisdiction. Inviso irrevocably agrees to submit to the exclusive jurisdiction of the courts located in the County where Entity is located over any dispute or matter arising under or in connection with this Agreement.
SECTION 27. GOVERNING LAW This Agreement shall be governed by and construed and interpreted in accordance with the substantive and procedural laws of the state where Entity is located, without giving effect to its choice or conflicts of law provisions.
SECTION 28. NOTICES (a) All notices that are required under this Agreement shall be in writing and delivered by
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
personal delivery, by a recognized courier, or by certified U.S. mail (postage prepaid, return receipt requested), and addressed to the receiving party at the address below:
Entity: David Travis IT Director | City of Auburn 1 E Main St STE 320
Auburn Wa, 98002
Inviso: Inviso Corporation
Attention: Ken Lippe, COO
3075 112th Avenue NE, Suite 200 Bellevue, WA 98004 (b) Such notice will be deemed to have been received by the party to whom it was addressed on the date of delivery if delivered personally, on the date officially recorded as delivered (or delivery
refused) according to the record of delivery if delivered by courier, or three (3) days after mailing. Either party may change its contact information for purposes of the Agreement by giving written notice to the other party in the manner set forth above. SECTION 29. MODIFICATION
This Agreement may be modified or amended only by a written instrument signed by both the Entity and Inviso with the same formality as this Agreement. SECTION 30. NO THIRD PARTY BENEFICIARIES
This Agreement is intended only to benefit the parties hereto, their permitted successors and assigns, and Indemnitees. This Agreement shall not be deemed to be for the benefit of any entity or person that is not a party hereto, is a party’s permitted successor or assign, or an Indemnitee and does not create any rights, benefits or causes of action for any other person, entity or member of the general
public.
SECTION 31. ENTIRE AGREEMENT This Agreement constitutes the complete and exclusive statement of the agreement between the
Entity and Inviso regarding the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, promises, proposals, negotiations, and understandings, whether written or oral, relating to this subject matter.
SECTION 32. WAIVER OF CONSEQUENTIAL DAMAGES The Entity shall not be liable to Inviso, a subconsultant, or a third party for any consequential, indirect, exemplary or incidental damages, including, without limitation, damages based upon delay,
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
loss of use, lost revenues, or lost profits. This Section survives default, expiration, or termination of this Agreement or excuse of performance.
SECTION 33. FISCAL FUNDING Inviso acknowledges that funding of this Agreement is dependent on budget appropriations set each fiscal year. Accordingly, if necessary funds to continue with the specified Services are not allocated
by the Entity, this Agreement shall terminate at the expiration of the appropriated funds without
further action by the Entity and without liability to Inviso, unless the Entity terminates this Agreement earlier. SECTION 34. PUBLIC RECORDS
(a) The Entity is a governmental entity and subject to the public records Laws and regulations. Therefore, the Entity’s records are public records and are subject to inspection and copying by any person unless there is an applicable exception or the record is declared by Applicable Law to be confidential. Inviso is advised, and acknowledges, that the Agreement and documents provided in
connection with this Agreement become a public record and, unless the information is declared by
Law to be confidential or is otherwise excluded from the public records disclosure requirements, may be subject to inspection and copying.
(b) If Inviso believes any information it submits should be considered confidential or proprietary in nature, or contains trade secrets, Inviso shall either follow the procedure stated in section 35(b) or shall mark the page or pages that contain such information “CONFIDENTIAL,” shall provide a summary sheet identifying each and every page that contains information so marked, shall represent in writing on that sheet that protections exist under Law to preserve the integrity, confidentiality and
security of the information, and shall specify with particularity the basis thereof. If Inviso fails to do all of the foregoing, such information shall be deemed to not be confidential.
(c) If the Entity receives a public records request that applies to this Agreement (either specifically or otherwise), it will analyze the documents provided in connection with this Agreement to see if the information so marked may legally be withheld from inspection and copying. The Entity takes no responsibility and is not liable for release of (1) any information not so marked and summarized or (2) any information that is so marked and summarized in the event that the Entity
determines in its sole and absolute discretion that the Entity must provide the information because
an applicable exception does not apply or the information is not declared by Applicable Law to be confidential. SECTION 35. RECORDS AND AUDITING (a) Inviso shall maintain, and shall cause its subconsultants to maintain, accurate and complete books, documents, accounting records and other records pertaining to the Services for six (6) years
from the date of the final payment under the Agreement (or longer as required by Law). In addition,
Inviso shall maintain, and shall cause to be maintained, those records that relate to any dispute, litigation, or the settlement of claims arising out of Inviso’s performance under the Services until six (6) years after the date of resolution of such dispute, litigation, or claim (or longer as required by Law). Inviso shall make such records available, and shall cause its subconsultants to make such
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
records available, to the Entity and its representatives for inspection, audit, examination, reproduction, and copying at Inviso’s offices at all reasonable times. However, if requested, Inviso
shall furnish copies of said records at its expense, within seven (7) business days of the request. Such
records shall include but not be limited to those books, documents and accounting records that represent Inviso’s costs of delivering the Services, including those of any of its subconsultants. These rights also apply to any other governmental entity or agency participating in the funding of the Agreement, or any authorized agents thereof.
(b) If Inviso believes any record it is required to furnish to Entity should be considered confidential or proprietary in nature, or contains trade secrets, Inviso shall: provide Entity written notice in which Inviso identifies each record that contains such confidential or proprietary information, represents in writing that protections exist under Law to preserve the integrity,
confidentiality and security of the record, and shall specify with particularity the basis thereof; enter
into a non-disclosure agreement acceptable to Entity; and, furnish the record to Entity, subject to that non-disclosure agreement. SECTION 36. SAFETY REQUIREMENTS
Inviso while performing any Services at an Entity work site shall adhere to, and cause each subconsultant to be aware of and adhere to, all Entity work-site regulations provided in writing to Inviso, including without limitation environmental protection, loss control, safety, and security. The Entity, or its audit representatives, shall have the right at any reasonable time or times to examine,
audit and copy the records and documents pertaining to such requirements, provided Inviso may
redact personal information (i.e., SSNs/birthdates) from such records. SECTION 37. INTERPRETATION
The language of this Agreement has been agreed to by both parties to express their mutual intent and
no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Preparation of this Agreement has been a joint effort of the Entity and Inviso and the resulting document shall not, solely as a matter of judicial construction, be
construed more severely against one of the parties than any other.
SECTION 38. CONFLICT OF INTEREST (a) Inviso represents and warrants that as of the Effective Date it has no interest, and shall not
have any interest, direct or indirect, that would conflict in any manner with the performance of
work and Services required under this Agreement. If any conflict of interest should nevertheless arise after the Effective Date, Inviso shall promptly notify the Entity of the existence of such conflict of interest. (b) If Inviso becomes aware or otherwise believes that it is (or might be) employing a Family Member, Inviso will promptly provide the Entity written notice that identifies the name and title of the Family Member, that person’s date of hire, and the name of the possibly-related Public Servant.
(c) If a conflict of interest arises after the Effective Date or Inviso employs a Family Member
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
and any of the foregoing causes the Entity to violate an ethics Law, the Entity shall have the right to immediately terminate this Agreement for cause without penalty or further obligation or liability to
Inviso.
SECTION 39. TIME OF ESSENCE Time is of the essence with respect to Inviso’s obligations under this Agreement. The Entity
recognizes that Inviso’s performance must conform to any standard of care applicable to Inviso.
SECTION 40. REMEDIES All rights and remedies of the Entity and Inviso provided for in this Agreement will be cumulative
and in addition to, and not in lieu of, any other remedies available to the Entity and Inviso at law, in
equity, or otherwise. IN ANY DISPUTE UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR PUNITIVE DAMAGES.
SECTION 41. HEADINGS; CROSS REFERENCES The section titles contained in this Agreement are used solely for convenience and do not constitute a part of this Agreement, nor should they be used to aid in any manner in the construction of this
Agreement. All references in this Agreement to Sections, and Subsections are to Sections, and
Subsections in this Agreement, unless otherwise specified. Unless the context otherwise requires, the singular includes the plural and the plural includes the singular and the neuter includes the feminine and masculine.
SECTION 42. CONSTRUCTION OF THE WORD “INCLUDE” AND ITS DERIVATIVES When followed by an example, the words “include,” “includes,” and “including” are to be read as if they were followed by the phrase “without limitation.”
SECTION 43. ORDER OF PRECEDENCE The parties shall attempt to construe the terms and conditions in the various documents comprising this Agreement, in a manner that avoids conflict or inconsistency and in a manner that is
supplementary or complementary in nature rather than in conflict. If, however, a conflict or
inconsistency between the terms and conditions of the documents cannot be so avoided through such efforts, the conflict shall be resolved in accordance with the following descending order of priority: (a) This Agreement (b) An executed Statement of Work
SECTION 44. PERFORMANCE OF ACTS ON BUSINESS DAYS Any reference in this Agreement to time of day refers to local time of Entity. Unless specifically
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
stated to the contrary, all references to days herein refer to calendar days. Any reference herein to a “business day” refers to a day that is not a Saturday, Sunday or legal holiday of the Entity
governmental offices. If the final date for payment of any amount due or performance of any act
required hereunder falls on a Saturday, Sunday or legal holiday, that payment may be made or act performed on the next business day. SECTION 45. COMMERCIALLY REASONABLE EFFORTS
Reference in this Agreement to the “commercially reasonable efforts” of a party means that, with respect to a given goal, the efforts that a reasonable person in the position of that party would use so as to achieve that goal as expeditiously as possible.
SECTION 46. COUNTERPARTS The Entity and Inviso may execute the Agreement in counterparts. Each of these counterparts, when signed and delivered, is deemed an original and, taken together, constitutes one and the same instrument.
SECTION 47. ATTORNEYS’ FEES The prevailing party in an action to enforce this Agreement is entitled to reasonable attorneys’ fees and costs incurred.
SECTION 48. RELIANCE ON DATA Inviso will perform the Services described in this Agreement on the basis of information furnished by Entity. Inviso shall be entitled to rely upon any such data, information, or instructions as provided
by Entity. If any error results from incorrect input supplied by Entity, Entity shall be responsible for discovering and reporting such error and supplying the data necessary to correct such error to Inviso at the earliest possible time. In performance of the Services, Inviso shall not be responsible for any misunderstanding or incorrect information in connection with the Services excluding information provided by the Entity unless
such information could have been reasonably verified.
SECTION 49. ESTIMATES AND PROJECTIONS
In providing opinions of cost, financial analyses, economic feasibility projections, and schedules for
potential projects, Inviso has no control over cost or price of labor and material; unknown or latent conditions of existing equipment or structures that may affect operation and maintenance costs; competitive bidding procedures and market conditions; time or quality of performance of third parties; quality, type, management, or direction of operating personnel; and other economic and
operational factors that may materially affect the ultimate project cost or schedule. Although Inviso
makes no warranty that the Entity’s actual project costs, financial aspects, economic feasibility, or schedules will not vary from Inviso’s opinions, analyses, projections, or estimates for the foregoing reasons, Inviso agrees to perform and provide such opinions of cost, financial analyses, economic feasibility projections, and schedules for potential projects consistent with the professional skill and
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
care that would be exercised by those who perform similar services in the commercial marketplace and in accordance with accepted industry practice.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the
Effective Date.
INVISO CORPORATION
_____________________________ Signature
_Ken Lippe___________________
Print Name
_COO________________________ Title
_____________________________
Date
CITY OF AUBURN
_____________________________ Signature
Nancy Backus_________________
Print Name
Mayor_______________________ Title
_____________________________
Date 8/8/2020
Ken Lippe Digitally signed by Ken Lippe
Date: 2020.08.17
15:47:40 -07'00'
DocuSign Envelope ID: 03216F9A-1A11-4AB0-BA49-CB18CD63C085
8/31/2020