3.5 Otsego OpWorks Software Contract
Request for
City Council Action
DEPARTMENT INFORMATION
ORIGINATING DEPARTMENT REQUESTOR: MEETING DATE:
Utilities Utility Manager Neidermeier September 27, 2021
PRESENTER(s) REVIEWED BY: ITEM #:
Consent City Administrator/Finance Director Flaherty
City Attorney Kendall
3.5 – OpWorks Contract
STRATEGIC VISION
MEETS: THE CITY OF OTSEGO:
Is a strong organization that is committed to leading the community through innovative
communication.
X Has proactively expanded infrastructure to responsibly provide core services.
Is committed to delivery of quality emergency service responsive to community needs and
expectations in a cost-effective manner.
Is a social community with diverse housing, service options, and employment opportunities.
Is a distinctive, connected community known for its beauty and natural surroundings.
AGENDA ITEM DETAILS
RECOMMENDATION:
City staff is recommending City Council approve a contract with OpWorks.
ARE YOU SEEKING APPROVAL OF A CONTRACT? IS A PUBLIC HEARING REQUIRED?
Yes No
BACKGROUND/JUSTIFICATION:
The attached OpWorks contract assists Utility Operations with monitoring equipment, processes and
infrastructure proactively. The contract allows for twelve customizable reports, twelve data entry
worksheets and six charts. Examples of this vision: Reports (regulatory) – MDH, MPCA, DNR: Data Entry –
well logs, chemical feed, biosolids processing: Charts – Electrical use, Well Drawdowns. Payback is annual
in data access, electrical and chemical savings.
The Public Works Subcommittee reviewed this information at their September 15, 2021 meeting. There
was discussion about certain data privacy language. OpWorks has removed the contract language in
question, with City Attorney Kendall providing review with guidance of approval.
SUPPORTING DOCUMENTS ATTACHED:
• OpWorks Contract
POSSIBLE MOTION
PLEASE WORD MOTION AS YOU WOULD LIKE IT TO APPEAR IN THE MINUTES:
Motion to approve the contract between the City of Otsego and OpWorks.
BUDGET INFORMATION
FUNDING: BUDGETED:
Fund 601 – Water Utility
Fund 602 – Sanitary Sewer Utility
Not for 2021; but has been included in the 2022
budgets.
Your Lite OpWorks system shall include the following features:
Individualized OpWorks website (*CLIENT*WW.OpWorks.us)
Utilities (Water & Wastewater):
OpWorks staff shall create an OpWorks Lite system encompassing the Client facilities
Unlimited user logins:
OpWorks staff shall create users as requested by Client staff
Unlimited customizable reports:
OpWorks staff shall create up to 12 custom reports
OpWorks staff shall train select Client staff to create custom reports
Opworks staff may create additional custom reports above the allowed quantity of 12 at the
standard developer rate of $125/hr
Unlimited customizable data entry worksheets
OpWorks staff shall create up to 12 custom data entry worksheets
Sales tax is not included in this proposal. If sales tax is applicable to these services, it will be added to the invoice.
Please let us know if your organization is sales tax exempt and if so provide the tax exempt certificate for our
records.
All services and use of OpWorks are subject to the OpWorks Standard Terms and Conditions and attached for
review. Fees are perpetual until ceased by user per Standard Terms and Conditions.
It should be noted, as a web-based operational software solution, OpWorks requires internet to function. The
removal of internet (cellular, hardwired, or wifi) will cease functionality until internet service is restored.
If this proposal meets your approval, please sign this original and email or mail a copy of the signed document to
OpWorks. Signing this proposal also indicates your acceptance of the terms and conditions.
13400 90th Street NE
Ostego, Minnesota 55330
US
Bill To
Otsego, City ofBill To Name
jeff@aeoptech.comEmail
Jeff StanglerPrepared By
00000030Quote Number
9/30/2021Expiration Date
9/20/2021Created DateOtsego, City ofAccount Name
Annual Recurring OpWorks Fee Billed Every 12 Months
Product Total Price
OpWorks Lite $1,500.00
OpWorks Contract
Statement of Work
OpWorks® Standard Terms and Conditions of License and Service
BY ITS EXECUTION OF AN OPWORKS QUOTATION (“QUOTATION”) AND, IF APPLICABLE, AN
OPWORKS STATEMENT OF WORK (“SOW”), OR UPON ITS SUBMISSION OF A PURCHASE ORDER
TO ADVANCED ELEMENTS OPERATIONAL TECHNOLOGY, LLC, THE CUSTOMER IDENTIFIED IN
THE QUOTATION AGREES TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING ITS USE
OF OPWORKS AND AEOT’S PROVISION OF SERVICES (TOGETHER WITH THE QUOTATION AND
ANY SOW, THE “AGREEMENT”).
1) License Grant, Services and Restrictions.
a) Grant. Advanced Elements Operational Technology, LLC (“AeOT”) hereby grants Customer a
non-exclusive, non-transferable right to use AeOT’s proprietary, web-based software for managing utilities
Basic Support: Included with annual hosting, basic support includes assistance with general how-to questions and
general troubleshooting.
Hourly Support: Hourly support begins one year after system startup, after which support requests beyond basic
support that require OpWorks staff to create/modify content within OpWorks or troubleshoot issues external to
OpWorks, is available at an hourly rate ($125/hr, 2021 rate).
Custom Development: We encourage feature enhancement requests which are frequently added to benefit the entire
OpWorks userbase. However, when unique custom functionality is requested that requires software development,
OpWorks will provide a scope, fee, and timeline for services rendered.
OpWorks staff shall train select Client staff to create custom data entry worksheets
Opworks staff may create additional custom data entry worksheets above the allowed quantity
of 12 at the standard developer rate of $125/hr
Unlimited customizable charts
OpWorks staff shall create up to 6 custom charts
OpWorks staff shall train select Client staff to create custom charts
Opworks staff may create additional custom charts above the allowed quantity of 6 at the
standard developer rate of $125/hr
Data Entry and Automated Reporting System
Customizable data entry sheets and reports can be created to replicate your existing data forms, or
start new
See Unlimited Customizable Reports and Unlimited Customizable Data Entry Worksheets above
for specific details
Customizable reports can be autogenerated, emailed and/or stored on the website for on demand
viewing
Charts can be created from manually entered data or historical SCADA system data
See Unlimited Customizable Charts above for specific details
SCADA Integration
OpWorks shall interface with your SCADA Historian to replicate data needed for reports and work order
triggers
Operations Calendar
Dynamic scheduling and adjustment
OpWorks staff shall train Client staff to utilize the OpWorks Calendar
Mobile Functionality
The responsive layout of OpWorks automatically enables functionality on any mobile device
No additional modules or apps are required for mobile access
Support
Standard Terms and Conditions
and related systems (hereinafter “OpWorks”) during the term of this Agreement, solely for Customer’s own
internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly
granted to Customer are reserved by AeOT and its licensors.
b) Services. Subject to the terms and conditions of this Agreement, AeOT will provide Customer with the
services described in the Quotation and SOW, referred to under this Agreement as the “Services.” If
specified in the Quotation, AeOT shall provide basic implementation services and reasonable training to
Customer and its employees to assist them in understanding the use of OpWorks.
Any customizations requested by Customer shall be billable at the then-current hourly rate of AeOT unless
otherwise specified in the
Quotation.
c) Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or
otherwise commercially exploit or make available to any third party OpWorks in any way; (ii) modify or
make derivative works based upon OpWorks or its content; (iii) use OpWorks to send or store material
containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or
programs; (iv) interfere with or disrupt the integrity or performance of OpWorks or the data contained
therein; (v) attempt to gain unauthorized access to OpWorks or related systems or networks; (vi) import or
export OpWorks in violation of United States or other applicable import or export law; or (vii) reverse
engineer or access OpWorks in order to (1) build a competitive product or service, (2) build a product
using similar ideas, features, functions, or graphics, or (3) copy any ideas, features, functions, or graphics
of OpWorks. Further, Customer agrees to comply with AeOT’s reasonable policies concerning acceptable
use of OpWorks and the Services, including but not limited to the Acceptable Use Policy of AeOT’s
hosting vendor, currently posted at http://www.windowsazure.com/en-us/support/legal/services-terms/, as
that policy may be replaced or amended from time to time.
d) Proprietary rights. OpWorks, and any customizations thereto, is and shall remain the exclusive property
of AeOT, and the processes and techniques used in OpWorks constitute AeOT’s proprietary trade secret
information. AeOT alone (and its licensors, where applicable) shall own all right, title, and interest,
including all related intellectual property rights, in and to OpWorks, and the related Services and any
suggestions, ideas, enhancement or customization requests, feedback, recommendations or other
information provided by Customer or any other party relating to OpWorks. This Agreement is not a sale
and does not convey to Customer any rights of ownership in or related to OpWorks or the intellectual
property rights owned by AeOT.
e) Authorized Users. AeOT shall provide Customer with the number of user accounts purchased under the
Quotation for employees or other authorized representatives to whom Customer elects to grant access to
OpWorks (the “Authorized Users”). Customer shall be responsible for paying the fees for each Authorized
User. Customer agrees that each Authorized User shall be bound by this Agreement. Customer is
responsible for protecting Authorized User passwords, and for any damage caused by unauthorized
access
to OpWorks or to the Customer Data (defined below) through any of the Authorized User accounts.
Customer shall be authorized to access and use OpWorks via compatible web browsers operating on
compatible computer systems residing at Customer’s locations, accessed through Customer’s own
Internet Service Provider, all in an appropriate, careful and proper manner and in compliance with all user
manuals, laws and regulations. These computer systems shall be selected, maintained, and controlled
solely by Customer.
2) Customer Responsibilities.
a) Resources/Cooperation. Customer will provide AeOT reasonable access to appropriate business and
technical contacts, background information and data sources as necessary or useful for AeOT to provide
the Services. AeOT’s performance is dependent on Customer’s timely and complete cooperation,
decisions, and approvals, and the timely and complete cooperation of Customer’s vendors whose systems
will interact with the Services or OpWorks. Delays by Customer or its vendors may impact the ability to
achieve the delivery timeframes set forth in the applicable Quotation or SOW. AeOT is entitled to rely on
all decisions and approvals Customer provides in connection with the Services. Customer will appoint a
lead contact who will be responsible as the main interface between Customer and AeOT.
b) Third Party Items and Fees. Customer understands and agrees that Customer’s use of any and all third
party hardware, software, services, telecommunication services (including Internet connectivity), or other
items used by Customer in conjunction with Customer’s use of OpWorks, is the sole and exclusive
responsibility of Customer, and that AeOT has no responsibility for such third party items, services, or
Customer’s relationships with such third parties. If the parties desire AeOT obtain any third party item on
behalf of Customer, such third party item and all related fees and charges shall be set forth in the
Quotation, and all fees will be passed through to Customer. For any third party proprietary items included
in OpWorks, such third party items may be governed by additional license terms from the applicable third
party including but not limited to the terms of any end user license agreement accompanying such third
party software. Customer agrees that it shall at all times comply with the lawful terms and conditions of its
agreements with such third parties.
c) Customer’s Facilities. Customer agrees to maintain Customer’s computers, and to ensure the presence
and continued operation of the web browsers, network infrastructure and internet service necessary to
access OpWorks. Customer also agrees to comply with any requirements regarding installation, use, and
maintenance of OpWorks, including hardware, connectively, and remote access requirements, set forth in
AeOT’s standard policies and any documentation accompanying OpWorks.
d) Customer’s Operations. Customer understands and agrees that although AeOT may advise Customer
on certain matters, Customer at all times remains responsible for Customer’s own operations and the
consequences thereof. AeOT is not responsible for Customer’s erroneous entries into OpWorks or
Customer’s interpretation of data displayed by OpWorks. Further, Customer shall remain responsible for
the review and accuracy of any and all submissions of forms, claims, or other information to any third party
including
any government office or agency.
3) AeOT Responsibilities.
a) Availability of OpWorks. AeOT shall take reasonable measures to ensure that OpWorks is available to
Customers 99.9% of the time. For purposes of this Agreement, “availability” exists unless OpWorks is not
accessible to Customer (i) due to factors outside of AeOT’s reasonable control (for example, a network or
device failure external to AeOT or its hosting vendor’s data center); (ii) resulting from Customer’s use of
hardware, software, or services not provided by AeOT; (iii) due to Customer’s use of OpWorks in a
manner inconsistent with AeOT’s documentation or guidance; (iv) if Customer used OpWorks after AeOT
advised Customer to modify its use, and Customer did not modify its use as advised; or (v) due to acts by
persons gaining unauthorized access to OpWorks by means of Customer’s passwords or otherwise
resulting from Customer’s failure to follow appropriate security practices. Scheduled downtime for
standard maintenance shall not count against the uptime goal. Notifications of downtime for standard
maintenance shall be delivered to Customer’s primary contact by email. Notwithstanding the foregoing,
Customer acknowledges and agrees that there may be
instances where AeOT needs to interrupt access to OpWorks without notice in order to protect the
integrity of OpWorks due to security issues, virus attacks, spam issues or other unforeseen
circumstances. AeOT will monitor performance indicators on the systems and network infrastructure (both
its own and those of third party suppliers) in order to gauge the overall performance of its hosting services,
and will take reasonable measures to address systems and network infrastructure as required to maintain
availability and performance. b) Support Services. Up to the number of hours per month set forth on the
Quotation, AeOT will provide Customer with telephone and email technical support services at
substantially all times during AeOT’s normal weekday business hours, 8:00 AM to 5:00 PM Central Time,
excluding AeOT’s holidays (“Support”). AeOT will not provide Support to Customer if Customer’s Support
fees are not current. AeOT may remotely access the Customer’s systems to perform Support services.
Customer shall provide AeOT with remote access to
its system. AeOT shall not be responsible for any harm to Customer’s system that may be caused by
AeOT’s remote access to such systems.
c) Updates. As long as Customer has paid the applicable Support fees, AeOT will provide Customer, at no
additional charge, with any update that AeOT makes generally available.
d) Security. Through its hosting vendor, AeOT will implement industry standard safeguards, procedures,
and systems to protect the privacy and security of Customer Data it receives, accesses, uses, creates, or
discloses in the course of providing OpWorks and the Services, including but not limited to appropriate
technical and organizational measures, internal controls, and data security routines intended to protect
Customer Data against accidental loss or change, unauthorized disclosure or access, or unlawful
destruction; provided, however, AeOT cannot warrant that OpWorks or Customer Data will be completely
secure from interference or disruption by factors outside AeOT’s explicit control.
e) Backups. AeOT (or its third-party hosting vendor) will perform incremental system backups and full
backups from time to time at AeOT’s discretion. AeOT will maintain in a safe and secure location, a copy
of at least one full backup until after the next full backup is performed. Backups will be maintained on a
rolling basis, and AeOT will not be responsible for archiving more than the most recent backup. AeOT will
use reasonable efforts to maintain data integrity in any backup, but AeOT is not responsible for loss of
data or data integrity so long as AeOT has used such efforts.
f) Suspension. AeOT may suspend Customer’s access to OpWorks if (i) reasonably needed to prevent
unauthorized access to Customer Data; (2) Customer does not pay amounts due under this Agreement,
as set forth in Section 4.d. below; or (3) Customer does not abide by AeOT or its vendors’ policies,
including its hosting vendor’s Acceptable Use Policy.
4) Payment Terms.
a) Fees. Customer will pay AeOT for the license and use of OpWorks and other Services as specified in
the Quotation. Unless otherwise specified on the Quotation, License, Services and Support fees shall be
due on the Effective Date and, thereafter, AeOT shall invoice Customer annually in advance for Support
fees, with each invoice being due and payable upon receipt. All payments are non-refundable. Unless
otherwise specified on the Quotation, all fees and expenses shall be stated in and paid in U.S. Dollars.
Interest at the rate of 1.5 % per month or the highest rate permitted by applicable law, whichever is less,
shall accrue on any unpaid balance beginning on the thirty-first (31st) day after the invoice date. In the
event of collection enforcement, Customer will be liable for any
costs associated with such collection, including, without limitation, reasonable attorney fees, court costs
and collection agency fees. Additional professional services may be available from time to time at AeOT’s
standard rates. AeOT understands that the Customer, as a Minnesota municipal corporation, cannot
agree to keep pricing terms confidential.
b) Expenses. In addition to the fees payable as set forth on the Quotation, Customer shall reimburse
AeOT for all reasonable, preapproved by the Customer, and appropriately documented travel and related
out of pocket expenses incurred by AeOT in performing Support or other Services.
c) Suspension of Account. Customer’s access to OpWorks may be suspended if Customer’s account
remains unpaid forty-five (45)
days after the invoice date. AeOT reserves the right to impose a fee for restoration of any suspended
accounts.
d) Taxes. Customer is solely responsible for the payment of any sales taxes, fees, tariffs or other such
levies resulting from access to or use of OpWorks, and the fees set forth on the Quotation are exclusive of
such taxes.
e) Disputes. If Customer believes Customer’s bill is incorrect, Customer must contact AeOT in writing
within 30 days of the invoice date to be eligible to receive an adjustment or credit.
5) Term and Termination.
a) Initial and Renewal Term. The effective date of the Agreement shall be the first day on which AeOT
activates Customer’s account (“Effective Date”). This Agreement shall continue for an initial term (“Initial
Term”) of twelve (12) months and shall automatically renew for successive terms of twelve (12) months
(“Renewal Term”). Either party may terminate this Agreement by giving written notice to the other party no
later than sixty (60) days prior to the expiration of the then current Term.
b) Termination by AeOT. AeOT shall have the right to terminate the Agreement upon written notice if
Customer’s account remains unpaid forty-five (45) days after the invoice date, or if Customer or an
Authorized User is otherwise in material breach of the Agreement. AeOT shall notify Customer of the
breach and provide Customer with thirty (30) days following such notice to cure the breach. If the breach
is not fixed during this 30-day cure period, the Agreement shall automatically terminate.
c) By Customer. If AeOT is in material breach of the Agreement, Customer shall provide written notice to
AeOT of the breach and provide AeOT with thirty (30) days following such notice to cure the breach. If the
breach is not fixed during this 30-day cure period, Customer may terminate the Agreement by written
notice to AeOT.
d) Effect of Termination. The expiration or termination of this Agreement, for any reason, shall not release
either party from liability to the other, including any payment obligation that has already accrued
hereunder. Upon termination or expiration of this Agreement, for any reason, Customer shall immediately
discontinue use of OpWorks, and each party shall return or destroy all materials containing
the other’s Confidential Information, except that AeOT understands that the Customer, as a Minnesota
municipal corporation, is bound by Minnesota law to retain and disclose certain data. Upon termination of
this Agreement, AeOT shall, at no charge, provide a copy of the Customer Data files and records in
AeOT’s standard format within five (5) business days.
e) Survival. The following provisions shall survive termination of this Agreement: Sections 1(d), 4, 5, 6,
7(d), 7(e), 8, 9, and 10.
6) Customer Data; Confidentiality.
a) Customer Data. Nothing in this Agreement transfers any ownership interest in or to any data entered
into or accessed by OpWorks (“Customer Data”), including any intellectual property rights therein, all of
which remain the property of Customer. Customer hereby grants AeOT (and its subcontractors and
hosting vendors) a limited license to the Customer Data for the sole purpose of providing OpWorks and
the Services. Customer represents and warrants that it has adequate rights in the Customer Data to grant
such a license to AeOT and its subcontractors.
b) Confidential Information. In the course of performing under this Agreement, each party may receive, be
exposed to or acquire confidential and/or proprietary data, information, or technology of the other party,
including the Customer Data and the OpWorks software (“Confidential Information”). Except as provided
by Minnesota law and in Section 6(c) of this Agreement, neither party will use the other party’s
Confidential Information except for the purposes of this Agreement or disclose such Confidential
Information to any third party except to employees or contractors as is reasonably required in connection
with the exercise of its rights and obligations under this Agreement or as required by law(and only subject
to disclosure restrictions at least as protective as those set forth herein). However, the receiving party may
disclose the other party’s Confidential Information: (i) pursuant to the order or requirements of a court,
administrative agency or other governmental body, or as may be required by any law or regulation,
provided that the receiving party gives reasonable notice to allow the disclosing party to contest such
order or requirement (unless such notice is prohibited by law); and (ii) on a confidential basis to legal and
financial advisors. Neither party will be obligated to keep confidential any information of the other party
that is or becomes publicly available without breach of this Agreement, is already known or is
independently developed by the receiving party outside the scope of this Agreement or is rightfully
obtained by the receiving party from a third party.
(c) Government Data Practices. AeOT understands that the Confidential Information provided to Customer
may be governed by the Minnesota Government Data Practices Act (Minn. Stat. §§ 13.01 et. seq.) (the
“MGDPA”). Consequently, the data collected, received, created, stored, maintained, or disseminated to
Customer may be subject to the requirements of the MGDPA. AeOT understands that the Customer has
an obligation to evaluate whether the data it receives qualifies as trade secret data or business data under
the MGDPA. If it does qualify as trade secret data or business data, the information would generally be
classified under the MGDPA as either private data or nonpublic data. The parties acknowledge that the
classification of Confidential Information is governed by the MGDPA and not this Agreement.
Notwithstanding any other provision in this Agreement, Customer may be obligated to maintain and
release the Confidential Information in a manner required by the MGDPA or as otherwise required by state
law and cannot be held liable for disclosures made as required by the MGDPA, pursuant to judicial order,
or Minnesota state law.
7) Limited Warranty/Exclusions.
a) Limited Warranties. AeOT warrants that it will use commercially reasonable efforts to provide Customer
with access to OpWorks substantially as described in its then current documentation. If access to
OpWorks fails to so perform, Customer will promptly notify AeOT of, and adequately describe, any such
failure. AeOT will use commercially reasonable efforts to correct the identified defect. AeOT does not
warrant that access to or the performance of OpWorks will be error-free, or that its use will be
uninterrupted. AeOT is not obligated to remedy any defect that cannot be adequately repeated. If AeOT is
unable, after reasonable effort, to provide access to OpWorks substantially in accordance with its then
current documentation, Customer may terminate this Agreement without further obligation. Termination of
the Agreement and recovery of direct damages not to exceed the license fees paid to AeOT for use of
OpWorks during the twelve (12) month period preceding the event shall be Customer’s exclusive remedy,
and shall be AeOT’s sole liability in connection with any breach of this warranty or any failure of OpWorks
to perform in accordance with its documentation.
b) General Services Warranty. AeOT warrants that the Services provided to Customer will be performed in
a competent, workman-like and professional manner, which meets or exceeds industry standards. In the
event AeOT is notified of a breach of this warranty, AeOT shall re-perform the nonconforming Services.
AeOT’s obligation to re-perform the Services shall be Customer’s sole remedy and AeOT’s entire liability
for any breach of this warranty.
c) Non-Infringement. AeOT warrants that OpWorks and Customer’s permitted use of OpWorks do not, to
the knowledge of AeOT, infringe upon the copyright, patent or other proprietary rights of any third party. If
OpWorks becomes, or in AeOT’s opinion is likely to become, subject to an infringement claim, AeOT may,
at its sole option and expense, take any of the following steps: (i) obtain the right for Customer to continue
to use OpWorks; (ii) modify or replace OpWorks with functionally equivalent software or products that
AeOT believes to be non-infringing; or, (iii) if neither (i) or (ii) is possible, immediately terminate this
Agreement on written notice to
Customer and promptly provide to Customer a pro-rata refund of the fees paid by Customer for the portion
of OpWorks that is deemed to be infringing. This Section sets forth AeOT’s sole liability and entire
obligation and Customer’s exclusive remedy for any
infringement action related to this Agreement.
d) LIMITATIONS. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO
CASE SHALL AEOT BE LIABLE TO CUSTOMER OR ANY EMPLOYEE, CONTRACTOR OR AGENT
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS,
INCLUDING LOST PROFITS, LOST DATA, LOST ACCESS TO DATA, LOST GOODWILL OR THE
INABILITY TO USE OPWORKS, WHETHER SUCH DAMAGES ARE BASED UPON A BREACH OF
EXPRESS OR IMPLIED WARRANTIES, BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY
OTHER LEGAL THEORY. THIS IS TRUE EVEN IF AEOT IS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND INCLUDES LOSSES RESULTING FROM LOSS, MISAPPROPRIATION OR
UNAUTHORIZED ACCESS TO OR MODIFICATION OF CUSTOMER DATA, OR FROM MISTAKES,
OMISSIONS, OR DELAYS IN TRANSMISSION OF INFORMATION, OR FROM INTERRUPTIONS IN
TELECOMMUNICATIONS CONNECTIONS TO OPWORKS, VIRUSES OR FAILURES OF
PERFORMANCE, OR FROM THE IMPACT OF OPWORKS ON ANY CUSTOMER SYSTEM. IN NO
CASE WILL AEOT’S LIABILITY EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THE
AGREEMENT DURING THE PRECEDING TWELVE (12) MONTHS.
e) Statute of Limitations. No action arising out of the performance or failure to perform under the
Agreement may be brought more than one (1) year after such action has accrued.
f) Rights and Remedies. The rights and remedies available to AeOT shall be limited to breach of contract,
and no other cause of action, including, without limitation, negligence, misrepresentation, or other tort
theory. The damages for a breach of contract claim shall be limited to license fees owed to AeOT in
accordance with the terms of this Agreement.
8) Indemnity. AeOT agree to indemnify and hold the Customer, its licensors, subsidiaries, affiliates,
officers, directors, employees, and agents harmless from and against any and all claims, costs, damages,
losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with
OpWorks or the related Services.
9) No-Solicitation/No-Hire. During the term of this Agreement and for a period of one (1) year after any
termination or expiration of this Agreement, Customer shall not directly or indirectly solicit for employment,
employ or retain as an independent contractor any AeOT personnel who participated in providing any
Services to Customer under this Agreement or who contributed to the development of OpWorks, provided
that OpWorks provides a list to the Customer the AeOT personnel subject to this provision.
10) General.
a) Assignment. Customer may not assign this Agreement in whole or in part without the prior written
consent of AeOT, except that Customer may assign this Agreement without such consent upon written
notice to AeOT in connection with a merger, acquisition, corporate reorganization or sale of all or
substantially all of its assets, unless such transaction would result in an assignment to an entity
reasonably deemed to be a direct competitor of AeOT. AeOT may assign this Agreement in whole or in
part. This Agreement will inure to the benefit of, and will be binding upon, the parties and their successors
and permitted assigns.
b) Use of Name. AeOT maynot use Customer’s name in AeOT’s promotional materials, unless Customer
provides
AeOT written consent to such use.
c) Notice. Unless otherwise provided herein, notices given by AeOT to Customer will be delivered by
e-mail or by conventional mail. Notices will be sent to the e-mail address or mailing address Customer
provides to AeOT as listed on the Quotation. Notices given by Customer to AeOT must be given by e-mail
to info@opworks.us or such updated address as AeOT may provide.
d) Governing Law/Venue. The Agreement shall be governed by and interpreted under the laws of the
State of Minnesota without reference to conflicts of laws principles, and excluding the UN Convention on
Contracts for the International Sale of Goods. Federal and state courts located in Wright County,
Minnesota, shall have jurisdiction and venue to redress any dispute or claim. The parties stipulate that the
state and federal courts located in Wright County, Minnesota shall have personal jurisdiction and venue
over each of them for the purpose of litigating any such dispute or claim. The parties agree that the United
Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
e) Compliance with Laws. Each party shall at all times comply with all applicable U.S. federal, state and
local laws, ordinances, regulations, rules, orders and requirements relating to this Agreement, OpWorks
and the Services. However, AeOT makes no representation that it will comply with international laws,
ordinances, regulations, rules, orders or requirements relating to this Agreement, OpWorks or the
Services.
f) Force Majeure. Neither party will be liable for failure to perform its obligations hereunder if such
performance is prevented, hindered or delayed by reason of any cause or causes beyond its reasonable
control, including without limitation any act of God, war or other violence, civil disturbance, strike, work
stoppage or other labor difficulties, transportation contingency, accident, failure of its suppliers to perform
their contractual obligations, power or telecommunications failure, law, regulation or ordinance, or act or
order of any governmental agency or authority.
g) Audit Rights. Customer or its agent may examine AeOT’s systems, desktop computers, laptops,
servers, books and records for the purposes of verifying AeOT’s compliance with the terms of this
Agreement, upon reasonable notice and during normal business hours at AeOT’s offices.
h) Severability. If any provision of this Agreement is held to be unenforceable for any reason, it will be
modified rather than voided, if possible, in order to achieve the intent of the parties to the extent possible.
Any provision held overbroad as written will be deemed amended to narrow its application to the extent
necessary to make the provision enforceable under applicable law, and enforced as amended. All other
provisions of this Agreement will be deemed valid and enforceable to the full extent.
i) Independent Contractors; Subcontracting. Customer and AeOT are independent contractors to each
Accepted this ________ day of
____________________, 2021
By: City of Otsego
_____________________________________
Mayor Jessica Stockamp
_____________________________________
Attest
______________________________________
City Clerk
By: _________________________________
OpWorksTM
Grant Meyer
Advanced Elements Operational
Technology
other. AeOT may use third parties under contract with AeOT to assist AeOT in the performance of its
obligations under this Agreement, provided that AeOT will remain responsible for all its obligations under
this Agreement.
j) Entire Agreement; Modification and Waiver. This Agreement, together with any signed Quotations,
signed SOWs and any additional terms presented to Customer with the OpWorks software (including but
not limited to the OpWorks end user license agreement) represents the only agreement among the parties
concerning the subject matter hereof and supersedes all prior agreements and communications, whether
written or oral, relating thereto. The terms and conditions of this Agreement will control any conflicting
course of dealing or performance or any conflicting or additional terms set forth in any Customer purchase
order or other ordering document (other than Quotations accepted by AeOT). No failure by either party to
take any action or assert any right hereunder will be deemed to be a waiver of such right.
Signature