23.08.07 PSA ZENCITYZENCITY SERVICES AGREEMENT
Town of Avon,CO
Order form #:900021
Order form prepared for:Town of Avon,CO
Order form expiration date:Jul 31, 2023
This Order Form ("Order Form")is entered into between the Zencity entity detailed below ("Zencity"),and the entity identified below
("Customer",and jointly with Zencity the “Parties”)),as of the Effective Date (as defined below)which shall remain in effect for the duration
of the Initial Term as defined below and any renewal term (the “Term”)unless agreed otherwise explicitly and in writing between the Parties.
This Order Form includes and incorporates the Zencity Terms and Conditions attached hereto as Appendix A (the “T&Cs”).In the event of any
conflict between this Order Form and the T&Cs,the terms of this Order Form shall prevail.All prices are quoted in USD.
LEGAL ENTITY:Zencity Technologies US Inc.
ZENCITY CUSTOMER
Entity (legal)name:Zencity Technologies US Inc.Entity (legal)
name:
Town of Avon,Colorado
Full address:1313 N Market St,Suite 5100
Wilmington,DE 19801
Full address:100 Mikaela Way
Avon,CO 81620
Contact:Max Coonin,
Government Solutions Manager
Contact:Eric Heil,
Town Manager
Phone:(706)222-3324 Phone:970-748-4021
Email:Max@zencity.io Email:ehail@avon.org
Name SKU Product Description Yearly List
Price Term
Term
Discount
Yearly
Discounted
Price
Zencity Engage ZC -ENG Community engagement interface to share essential
project context and invite resident collaboration and
input.
*Including one-time Onboarding Services
$18,000 3 years 33.33%$11,870
Total Fees $35,610
Total Billed Yearly $11,870
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Any additional modules,quantity increases or other custom development and integration work requested by Customer during the
Term shall require an Order Form executed by the Parties,and shall be subject to the prevailing Zencity rate card subject to
amendment from time to time.
ORDER FORM TERMS
Effective Date:Aug 7, 2023
Initial Term:3 years,commencing on the Effective Date.
Fees:The Fees are exclusive of any applicable taxes (including sales tax)and withholdings,which will be added to the Fees
and paid by Customer,to the extent applicable.
Payment Terms:The Fees shall be payable on an annual basis within 30 days of the Effective Date and on each annual anniversary
thereof.
Customer Billing
Contact:
Name:Elizabeth Wood
Phone:970-748-4087
Email:ewood@avon.org
Customer PO #
(if applicable):
N/A
CUSTOMER ZENCITY
Signature: _________________
Name:__________________
Title:___________________
Date:___________________
Signature: _________________
Name:__________________
Title:___________________
Date:___________________
DocuSign Envelope ID: 7642ED47-4A1C-4D25-BBB5-CEAFC2E1731D
Eric Heil
July 24, 2023
Town Manager
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CEO
Eyal
July 25, 2023
Appendix A
Zencity Terms and Conditions
1.SOFTWARE LICENSE &SUPPORT SERVICES
1.1.Subject to the terms and conditions of these Zencity Terms and Conditions and of the applicable Order Form (collectively,the
"Agreement"),Zencity hereby grants to Customer a personal,non-exclusive,non-transferable limited license to use the products
and services licensed by Zencity to Customer (the “Licensed Program”)identified in the applicable Order Form entered into by
Zencity and Customer and the documentation and user manuals for the Licensed Program supplied by Zencity to Customer
throughout the Term (the "Documentation").
For the purposes of this Section 1.1,the term "use"shall be only in accordance with the confidentiality provisions of this
Agreement and shall include the rights to use the Licensed Program only for the use of the Customer's organization,company or
institution.
For the purposes of this Section 1.1 the term "use"shall not include:(i)the right to make,use,or sell products incorporating the
Licensed Program,or (ii)the right to sub-license the Licensed Program.
No right is granted to the source code of the Licensed Program or to create derivative works thereof or to transfer ownership of the
media containing such so ware except as a part of,or with,or for use in the equipment with which it operates.
1.2.Routine customer support is available via email.Any claim will be answered within 24 hours of the report.On or before the
Effective Date,Customer and Zencity shall each designate a liaison as a respective point of contact for technical issues.Each party
may change such liaison upon written notice from time to time at reasonable intervals.Zencity will not be obligated to provide
support to any person other than the Customer's designated liaison.
1.3.During the Term,Customer may have access to Updates upon request at no additional cost."Updates"shall mean certain new
features as determined by Zencity,or fixes of minor errors in the Licensed Program which are incorporated in a new release of the
Licensed Program.
1.4.Certain upgrades can be delivered to Customer upon commercial terms and conditions to be agreed upon."Upgrades"shall mean
enhancements,new functionalities that are added into the Licensed Program.
2.RESTRICTIONS AND RESPONSIBILITIES
2.1.Customer agrees not to,directly or indirectly:reverse engineer,decompile,disassemble,or otherwise attempt to discover the
source code,object code,or underlying structure,ideas,or algorithms of the Licensed Program,Documentation or data related to
the Licensed Program,except to the extent such a restriction is limited by applicable law;modify,translate,or create derivative
works based on the Licensed Program;or copy,reproduce,rent,lease,distribute,assign,sell,or otherwise dispose of the Licensed
Program,in whole or in part,or otherwise commercially exploit,transfer,or encumber rights to the Licensed Program;or remove
any proprietary notices.
2.2.Customer will use the Licensed Program only in compliance with all applicable laws and regulations (including,but not limited to,
any export restrictions,surveillance and monitoring restrictions,and any privacy and data protection requirements).
2.3.Customer shall be responsible for obtaining and maintaining any equipment and other services needed to connect to,access,or
otherwise use the Licensed Program and Customer shall also be responsible for (a)ensuring that such equipment is compatible
with the Licensed Program,(b)maintaining the security of such equipment,user accounts,passwords and files,and (c)for all uses
of Customer user accounts with or without Customer's knowledge or consent.To the extent Customer provides any Personal Data
(as defined below)of personnel for registration purposes,Customer represents and warrants that it has any right,license,consent,
and power and it has provided any notice,all as required under applicable law,to provide Zencity with such Personal Data and will
be fully and solely responsible for providing only Personal Data of personnel related to the Customer.Zencity will handle such
Personal Data in accordance with its Privacy Policy available at:https://zencity.io/privacy-policy/.
3.PROPRIETARY RIGHTS. Zencity retains all right,title,and interest in the Licensed Program,Documentation and any future
modifications and enhancements thereof,and all intellectual property rights (including all past,present,and future rights associated
with works of authorship,including exclusive exploitation rights,copyrights,and moral rights,trademark,and trade name rights and
similar rights,trade secret rights,patent rights,and any other proprietary rights in intellectual property of every kind and nature)
therein.Customer is granted only a limited right of use to the Licensed Program and Documentation as set forth herein,which right of
use is not coupled with an interest and is revocable in accordance with the terms of this Agreement.
4.CONFIDENTIALITY. Each party (the "Receiving Party")agrees not to disclose (except as permitted herein)any Confidential Information
of the other party (the "Disclosing Party")without the Disclosing Party's prior written consent."Confidential Information"means all
confidential business,technical,and financial information of the disclosing party that is marked as "Confidential"or an equivalent
designation or that should reasonably be understood to be confidential given the nature of the information and/or the circumstances
surrounding the disclosure (including the terms of the applicable License Agreement).Zencity's Confidential Information includes,
without limitation,the so ware underlying the Licensed Program and all Documentation.The Receiving Party agrees:(i)to use and
disclose the Confidential Information only in connection with this Agreement;and (ii)to protect such Confidential Information using
the measures that Receiving Party employs with respect to its own Confidential Information of a similar nature,but in no event with less
than reasonable care.Receiving Party shall,before receipt or usage of such Confidential Information inform its personnel of Receiving
Party's confidentiality obligations under this Agreement.Notwithstanding the foregoing,Confidential Information does not include
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information that:(i)has become publicly known through no breach by the Receiving Party;(ii)was rightfully received by the Receiving
Party from a third party without restriction on use or disclosure;or (iii)is independently developed by the Receiving Party without
access to such Confidential Information.Notwithstanding the above,the Receiving Party may disclose Confidential Information to the
extent required by law or court order,provided that prior written notice of such required disclosure and an opportunity to oppose or
limit disclosure is given to the Disclosing Party.
5.DATA AND MATERIALS LICENSE.
5.1.Customer grants Zencity a non-exclusive, transferable,perpetual,worldwide,and royalty-free license to use any data or
information provided by Customer for use in,by,or in connection with the Licensed Program,any information collected,and/or
any analysis of any such information conducted by the Licensed Program.
5.2.Any content created by Customer and provided to Zencity for use in connection with the Licensed Program or other services
provided by Zencity ("Customer Materials")shall be the sole property of the Customer.Customer hereby grants Zencity and its
successors and assigns a perpetual,irrevocable,transferrable,worldwide,royalty-free,fully paid-up,and non-exclusive license
under any of Customer's intellectual property,moral or privacy rights to use,copy,distribute,display,modify and create derivative
works of any Customer Materials for the provision of the services in accordance with the terms of this Agreement.The parties
acknowledge that Zencity does not require any Personal Data to be provided in order to provide the Licensed Program and
Customer undertakes that it shall not provide Zencity with any Personal Data as part of the Customer Materials.To the extent the
Customer Materials shall include any Personal Data it shall be incidental and Customer shall be fully liable for such Personal Data
in accordance with the terms of this Agreement and applicable law.
6.FEES.
6.1.The fees for the Licensed Program ("Fees")are set forth in the applicable Order Form.Properly submitted invoices for which
payment is not received within fourteen (14)days of the invoice due date shall accrue a late charge of 1.5%interest per month,
compounding annually.The Fees are exclusive of any applicable taxes,which,if payable by Zencity,shall be billed to and paid by
Customer,including any bank fees related to the Customer's wire transfer.Customer may not withhold or set-off any amounts
from the Fees.For the avoidance of doubt,discounts or credits relating to any term defined in any Order Form shall apply to said
term only and shall not carry over to any Renewal Term.
7.TERM &TERMINATION
7.1.This Agreement shall commence on the Effective Date and continue for the period of the Licensed Program purchased pursuant
to any applicable and outstanding Order Form,including any renewal term,unless earlier terminated in accordance with this
Section 7.In the event of any Renewal Term,the Fees payable for the Licensed Program shall be updated as specified in the Order
Form.Either party may terminate this Agreement immediately by giving written notice to the other party if:(i)the other party
breaches a material provision of this Agreement and fails to cure the breach within seven (7)days a er being given written notice
thereof;or (ii)the other party is judged bankrupt or insolvent,makes a general assignment for the benefit of its creditors,a
trustee or receiver is appointed for such party;or any petition by or on behalf of such party is filed under any bankruptcy or
similar laws.
7.2.The Initial Term shall be automatically extended for successive renewal terms of 12 months each (each,a "Renewal Term"and
collectively with the Initial Term,the "Term")unless either party provides written notice of non-renewal to the other party at
least 90 days before the end of each applicable term.
7.3.Upon termination,Customer will pay in full for the Licensed Program up to and including the effective date of termination.Upon
any termination of this Agreement:(a)the license of the Licensed Program hereunder shall immediately terminate;and (b)each
party shall return to the other party or,at the other party's option,destroy all Confidential Information of the other party in its
possession.
7.4.All sections of this Agreement which by their nature should survive termination will survive termination,including,without
limitation,accrued rights to payment,confidentiality obligations,warranty disclaimers,and limitations of liability.
8.WARRANTY AND DISCLAIMER
8.1.Zencity represents and warrants that:(i)it has all right and authority necessary to enter into and perform this Agreement;and (ii)
the Licensed Program shall perform in accordance with generally prevailing industry standards.
8.2.Customer represents and warrants that (i)it has all right and authority necessary to enter into and perform this Agreement;(ii)it
owns all right,title,and interest in and to all data,including without limitation,any Personal Data that may be included therein,
provided to Zencity (if any)for use in connection with this Agreement,or possesses the necessary authorization thereto;and (iii)
Zencity's use of such data or materials including Customer Materials as contemplated hereunder will not violate the rights of any
third party;(iv)it has all right,license and consent required to provide Zencity with the Customer Materials,including Personal
Data contained therein,if and to the extent provided in accordance with Section 5.2 above;(v)the Customer Materials and
Zencity's use thereof in accordance with the terms of this Agreement does not and will not infringe upon any third party's right;
and (vi)it shall at all times use the Licensed Program in compliance with applicable law."Personal Data"have the definition
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ascribed to it by the General Data Protection Regulation (EU)2016/679 of the European Parliament and of the Council of 27 April
2016 ("GDPR"))or any parallel term in the jurisdiction in which the Licensed Program is being used.
8.3.ZENCITY DOES NOT WARRANT THAT USE OF THE LICENSED PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE;NOR DOES IT
MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE LICENSED PROGRAM.EXCEPT AS SET
FORTH IN THIS SECTION 8,THE LICENSED PROGRAM IS PROVIDED "AS IS"AND ZENCITY DISCLAIMS ALL WARRANTIES,EXPRESS OR
IMPLIED,INCLUDING,BUT NOT LIMITED TO,IMPLIED WARRANTIES OF MERCHANTABILITY,TITLE,FITNESS FOR A PARTICULAR
PURPOSE,AND NON-INFRINGEMENT.ZENCITY DOES NOT WARRANT THAT ANY OR ALL FAILURES,DEFECTS OR ERRORS WILL BE
CORRECTED,OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAM WILL MEET CUSTOMERʼS
REQUIREMENTS.
8.4.To the extent the Licensed Program or any services provided by Zencity hereunder are provided through or in connection with any
third-party services,Zencity shall not have any responsibility for any technical issues or limitations resulting from the use of such
third-party service,including actions of Zencity on such third-party service taken on behalf of and at the instruction of Customer.
Customer acknowledges and agrees that use of any third-party service shall be in accordance with such third party's terms and
privacy policy.
9.LIMITATION OF LIABILITY.NEITHER PARTY,NOR ITS SUPPLIERS,OFFICERS,AFFILIATES,REPRESENTATIVES,CONTRACTORS,AND
EMPLOYEES,SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR RELATED TERMS
AND CONDITIONS UNDER ANY CONTRACT,NEGLIGENCE,STRICT LIABILITY,OR OTHER THEORY:(A)FOR ERROR OR INTERRUPTION OF
USE OR FOR LOSS OR INACCURACY OF DATA (EXCEPT AS OTHERWISE SET FORTH IN SECTIONS 2.3 AND 5.2)OR COST OF PROCUREMENT
OF SUBSTITUTE GOODS OR SERVICES OR LOSS OF BUSINESS;(B)FOR ANY INDIRECT,EXEMPLARY,PUNITIVE,INCIDENTAL,SPECIAL,OR
CONSEQUENTIAL DAMAGES;OR (C)FOR ANY MATTER BEYOND SUCH PARTY'S REASONABLE CONTROL,EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.IN NO EVENT SHALL EITHER PARTY'S AGGREGATE,CUMULATIVE LIABILITY
FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO ZENCITY
(OR,IN THE CASE OF CUSTOMER,PAYABLE)FOR THE LICENSED PROGRAM UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE
ACT THAT GAVE RISE TO THE LIABILITY.
10.MISCELLANEOUS. Capitalized terms not otherwise defined in these Terms and Conditions have the meaning set forth in the applicable
License Agreement.Neither party shall be held responsible or liable for any losses arising out of any delay or failure in performance of
any part of this Agreement,other than payment obligations,due to any act of God,act of governmental authority,or due to war,riot,
labor difficulty,pandemic,failure of performance by any third-party service,utilities,or equipment provider,or any other cause beyond
the reasonable control of the party delayed or prevented from performing.Zencity shall have the right to use and display Customer's
logos and trade names for marketing and promotional purposes in connection with Zencity's website and marketing materials,subject
to Customer's trademark usage guidelines (as provided to Zencity).If any provision of this Agreement is found to be unenforceable or
invalid,that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in
full force and effect and enforceable.This Agreement is not assignable or transferable by either party without the other party's prior
written consent,provided however that either party may assign this Agreement to a successor to all or substantially all of its business or
assets.This Agreement (including the License Agreement)is the complete and exclusive statement of the mutual understanding of the
parties and supersedes and cancels all previous written and oral agreements,communications,and other understandings relating to
the subject matter of this Agreement.All waivers and modifications must be in a writing signed by both parties.No agency,partnership,
joint venture,or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other
party in any respect.In any action or proceeding to enforce rights under this Agreement,the prevailing party will be entitled to recover
costs and attorneys'fees.All notices under this Agreement will be in writing and will be deemed to have been duly given when received
if personally delivered;when receipt is electronically confirmed,if transmitted by facsimile or e-mail; the day a er it is sent if sent for
next day delivery by recognized overnight delivery service;and upon receipt,if sent by certified or registered mail,return receipt
requested.This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions and
the competent courts of New York City shall have exclusive jurisdiction to hear any disputes arising hereunder.
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