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HomeMy WebLinkAbout23-076 - National Purchasing Partners (NPPGov) - Intergovernmental Cooperative Purchasing AgreementDocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 23-076 Council Approval 4/17/23 Intergovernmental Cooperative Purchasing Agreement This Intergovernmental Agreement (Agreement) is by and between the "Lead Contracting Agency" and participating government entities ("Participating Agencies"), that are members of National Purchasing Partners ("NPPGov"), including members of Public Safety GPO, First Responder GPO, Law Enforcement GPO, Education GPO and EMS GPO that agree to the terms and conditions of this Agreement. The Lead Contracting Agency and all Participating Agencies shall be considered as "parties" to this agreement. WHEREAS, upon completion of a formal competitive solicitation and selection process, the Lead Contracting Agency has entered into Master Price Agreements with one or more Vendors to provide goods and services, often based on national sales volume projections; WHEREAS, NPPGov provides group purchasing, marketing and administrative support for governmental entities. NPPGov's marketing and administrative services are free to its membership, which includes participating public entities and nonprofit institutions throughout North America. WHEREAS, NPPGov has instituted a cooperative purchasing program under which member Participating Agencies may reciprocally utilize competitively solicited Master Price Agreements awarded by the Lead Contracting Agency; WHEREAS, the Master Price Agreements provide that all qualified government members of NPPGov may purchase goods and services on the same terms, conditions and pricing as the Lead Contracting Agency, subject to applicable local and state laws of the Participating Agencies; WHEREAS, the parties agree to comply with the requirements of the Intergovernmental Cooperation Act as may be applicable to the local and state laws of the Participating Agencies; WHEREAS, the parties desire to conserve and leverage resources, and to improve the efficiency and economy of the procurement process while reducing solicitation and procurement costs; WHEREAS, the parties are authorized and eligible to contract with governmental bodies and Vendors to perform governmental functions and services, including the purchase of goods and services; and WHEREAS, the parties desire to contract with Vendors under the terms of the Master Price Agreements; DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 NOW, THEREFORE, the parties agree as follows: ARTICLE 1: LEGAL AUTHORITY Each party represents and warrants that it is eligible to participate in this Agreement because it is a local government created and operated to provide one or more governmental functions and possesses adequate legal authority to enter into this Agreement. ARTICLE 2: APPLICABLE LAWS The procurement of goods and services subject to this Agreement shall be conducted in accordance with and subject to the relevant statutes, ordinances, rules, and regulations that govern each party's procurement policies. Competitive Solicitations are intended to meet the public contracting requirements of the Lead Contracting Agency and may not be appropriate under, or satisfy Participating Agencies' procurement laws. It is the responsibility of each party to ensure it has met all applicable solicitation and procurement requirements. Participating Agencies are urged to seek independent review by their legal counsel to ensure compliance with all local and state solicitation requirements. ARTICLE 3: USE OF BID, PROPOSAL OR PRICE AGREEMENT a. A "procuring party" is defined as the Lead Contracting Agency or any Participating Agency that desires to purchase from the Master Price Agreements awarded by the Lead Contracting Agency. b. Each procuring party shall be solely responsible for their own purchase of goods and services under this Agreement. A non -procuring party shall not be liable in any fashion for any violation of law or contract by a procuring party, and the procuring party shall hold non -procuring parties and all unrelated procuring parties harmless from any liability that may arise from action or inaction of the procuring party. c. The procuring party shall not use this agreement as a method for obtaining additional concessions or reduced prices for similar goods and services outside the scope of the Master Price Agreement. d. The exercise of any rights or remedies by the procuring party shall be the exclusive obligation of such procuring party. e. The cooperative use of bids, proposals or price agreements obtained by a party to this Agreement shall be in accordance with the terms and conditions of the bid, proposal or price agreement, except as modified where otherwise allowed or required by applicable law, and does not relieve the party of its other solicitation requirements under state law or local policies. DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ARTICLE 4: PAYMENT OBLIGATIONS The procuring party will make timely payments to Vendors for goods and services received in accordance with the terms and conditions of the procurement. Payment for goods and services, inspections and acceptance of goods and services ordered by the procuring party shall be the exclusive obligation of such procuring party. Disputes between procuring party and Vendor shall be resolved in accordance with the law and venue rules of the state of the procuring party. ARTICLE 5: COMMENCEMENT DATE This Agreement shall take effect after execution of the "Lead Contracting Agency Endorsement and Authorization" or "Participating Agency Endorsement and Authorization," as applicable. ARTICLE 6: TERMINATION OF AGREEMENT This Agreement shall remain in effect until terminated by a party giving 30 days written notice to "Lead Contracting Agency" ARTICLE 7: ENTIRE AGREEMENT This Agreement and any attachments, as provided herein, constitute the complete Agreement between the parties hereto, and supersede any and all oral and written agreements between the parties relating to matters herein. ARTICLE 8: CHANGES AND AMENDMENTS This Agreement may be amended only by a written amendment executed by all parties, except that any alterations, additions, or deletions of this Agreement which are required by changes in Federal and State law or regulations are automatically incorporated into this Agreement without written amendment hereto and shall become effective on the date designated by such law or regulation. ARTICLE 9: SEVERABILITY All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. THIS INSTRUMENT HAS BEEN EXECUTED IN TWO OR MORE ORIGINALS BY EXECUTION AND ATTACHMENT OF "THE LEAD CONTRACTING AGENCY ENDORSEMENT AND AUTHORIZATION" OR "PARTICIPATING AGENCY ENDORSEMENT AND AUTHORIZATION," AS APPLICABLE. ONCE EXECUTED, IT IS THE RESPONSIBILITY OF EACH PARTY TO FILE THIS AGREEMENT WITH THE PROPER AGENCY IF REQUIRED BY LOCAL OR STATE LAW. DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 LEAGUE OF OREGON CITIES ENDORSEMENT AND AUTHORIZATION The undersigned acknowledges, on behalf of the League of Oregon Cities (`Lead Contracting Agency") that he/she has read and agrees to the general terms and conditions set forth in the enclosed Intergovernmental Cooperative Purchasing Agreement regulating use of the Master Price Agreements and purchase of goods and services that from time to time are made available by the League of Oregon Cities to Participating Agencies locally, regionally, and nationally through NPPGov. Copies of Master Price Agreements and any amendments thereto made available by the League of Oregon Cities will be provided to Participating Agencies and NPPGov to facilitate use by Participating Agencies. The undersigned understands that the purchase of goods and services under the provisions of the Intergovernmental Cooperative Purchasing Agreement is at the absolute discretion of the Participating Agencies. The undersigned affirms that he/she is an agent of the League of Oregon Cities and is duly authorized to sign this League of Oregon Cities Endorsement and Authorization. DocuSigned by: ..,,t________ r7 c_______ L- 3C54Ff3143E tSY: ITS: League of Oregon Cities Contact Information: Contact Person: Mike Culley Address: 1201 Court St NE #200, Salem, OR 97301 Telephone No.: 503-588-6550 Email: mculley@orcities.org Date: 3/26/2020 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 PARTICIPATING AGENCY ENDORSEMENT AND AUTHORIZATION The undersigned acknowledges, on behalf of City of Tukwila ("Participating Agency") that he/she has read and agrees to the general terms and conditions set forth in the enclosed Intergovernmental Cooperative Purchasing Agreement regulating use of the Master Price Agreements and purchase of goods and services that from time to time are made available by the Lead Contracting Agency to Participating Agencies locally, regionally, and nationally through NPPGov. The undersigned further acknowledges that the purchase of goods and services under the provisions of the Intergovernmental Cooperative Purchasing Agreement is at the absolute discretion of the Participating Agency and that neither the Lead Contracting Agency nor NPPGov shall be held liable for any costs or damages incurred by or as a result of the actions of the Vendor or any other Participating Agency. Upon award of contract, the Vendor shall deal directly with the Participating Agency concerning the placement of orders, disputes, invoicing and payment. The undersigned affirms that he/she is an agent of City of Tukwila and is duly authorized to sign this Participating Agency Endorsement and Authorization. oocusigned by: a((aln amu^ Date: 5/3/2023 1 10:55 AM PDT BY: Ia9n°E15erg ITS: Mayor Participating Agency Contact Information: Contact Person: City Clerk, City of Tukwila Address: 6200 Southcenter Boulevard Tukwila WA, 98188 Telephone No.: 206-433-1800 Email: TukwilaCityClerk@tukwilawa.gov DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 LEAGUE OF OREGON CITIES MASTER PRICE AGREEMENT This Master Price Agreement is effective as of the date of the last signature below (the "Effective Date") by and between the LEAGUE OF OREGON CITIES, an Oregon public corporation under ORS Chapter 190 ("LOC" or "Purchaser") and Informer Systems, LLC ("Vendor"). RECITALS WHEREAS, the Vendor is in the business of selling certain Public Safety Software Solutions, Data Collection, Storage and Utilization, as further described herein; and WHEREAS, the Vendor desires to sell and the Purchaser desires to purchase certain products and related services all upon and subject to the terms and conditions set forth herein; and WHEREAS, through a solicitation for Public Safety Software Solutions, Data Collection, Storage and Utilization the Vendor was awarded the opportunity to complete a Master Price Agreement with the LEAGUE OF OREGON CITIES as a result of its response to Request for Proposal No. 2020 for Public Safety Software Solutions, Data Collection, Storage and Utilization; and WHEREAS, the LEAGUE OF OREGON CITIES asserts that the solicitation and Request for Proposal meet Oregon public contracting requirements (ORS 279, 279A, 279B and 279C et. seq.); and WHEREAS, Purchaser and Vendor desire to extend the terms of this Master Price Agreement to benefit other qualified government members of National Purchasing Partners, LLC dba Public Safety GPO, dba First Responder GPO, dba Law Enforcement GPO and dba NPPGov; NOW, THEREFORE, Vendor and Purchaser, intending to be legally bound, hereby agree as follows: ARTICLE 1 — CERTAIN DEFINITIONS 1.1 "Agreement" shall mean this Master Price Agreement, including the main body of this Agreement and Attachments A -F attached hereto and by this reference incorporated herein, including Purchaser's Request for Proposal No. 2020 (herein "RFP") and Vendor's Proposal submitted in response to the RFP (herein "Vendor's Proposal") as referenced and incorporated herein as though fully set forth (sometimes referred to collectively as the "Contract Documents"). 1.2 "Applicable Law(s)" shall mean all applicable federal, state and local laws, statutes, ordinances, codes, rules, regulations, standards, orders and other governmental requirements of any kind. 1.3 "Employee Taxes" shall mean all taxes, assessments, charges and other amounts whatsoever payable in respect of, and measured by the wages of, the Vendor's employees (or subcontractors), as required by the Federal Social Security Act and all amendments thereto and/or any other applicable federal, state or local law. 1.4 "Purchaser's Destination" shall mean such delivery location(s) or destination(s) as Purchaser may prescribe from time to time. DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 1.5 "Products and Services" shall mean the products and/or services to be sold by Vendor hereunder as identified and described on Attachment A hereto and incorporated herein, as may be updated from time to time by Vendor to reflect products and/or services offered by Vendor generally to its customers. 1.6 "Purchase Order" shall mean any authorized written order for Products and Services sent by Purchaser to Vendor via mail, courier, overnight delivery service, email, fax and/or other mode of transmission as Purchaser and Vendor may from time to time agree. 1.7 "Unemployment Insurance" shall mean the contribution required of Vendor, as an employer, in respect of, and measured by, the wages of its employees (or subcontractors) as required by any applicable federal, state or local unemployment insurance law or regulation. 1.8 "National Purchasing Partners" or "(NPP)" is a subsidiary of two nonprofit health care systems. The Government Division of NPP, hereinafter referred to as "NPPGov", provides group purchasing marketing and administrative support for governmental entities within the membership. NPPGov's membership includes participating public entities across North America. 1.9 "Lead Contracting Agency" shall mean the LEAGUE OF OREGON CITIES, which is the governmental entity that issued the Request for Proposal and awarded this resulting Master Price Agreement. 1.10 "Participating Agencies" shall mean members of National Purchasing Partners for which Vendor has agreed to extend the terms of this Master Price Agreement pursuant to Article 2.6 and Attachment C herein. For purposes of cooperative procurement, "Participating Agency" shall be considered "Purchaser" under the terms of this Agreement. 1.11 "Party" and "Parties" shall mean the Purchaser and Vendor individually and collectively as applicable. ARTICLE 2 — AGREEMENT TO SELL 2.1 Vendor hereby agrees to sell to Purchaser such Products and Services as Purchaser may order from time to time by Purchase Order, all in accordance with and subject to the terms, covenants and conditions of this Agreement. Purchaser agrees to purchase those Products and Services ordered by Purchaser by Purchase Order in accordance with and subject to the terms, covenants and conditions of this Agreement. 2.2 Vendor may add additional products and services to the contract provided that any additions reasonably fall within the intent of the original RFP specifications. Pricing on additions shall be equivalent to the percentage discount for other similar products. Vendor may provide a web -link with current product listings, which may be updated periodically, as allowed by the terms of the resulting Master Price Agreement. Vendor may replace or add product lines to an existing contract if the line is replacing or supplementing products on contract, is equal or superior to the original products offered, is discounted in a similar or to a greater degree, and if the products meet the requirements of the solicitation. No products may be added to avoid competitive procurement requirements. LOC may reject any additions without cause. 2.3 All Purchase Orders issued by Purchaser to Vendor for Products during the term (as hereinafter defined) of this Agreement are subject to the provisions of this Agreement as though fully set forth in such Purchase Order. The Vendor retains authority to negotiate above and beyond the terms of this Agreement to meet the Purchaser or Vendor contract requirements. In the event that the provisions of this Agreement conflict with any Purchase Order issued by Purchaser to Vendor, the provisions of this Agreement shall 2 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 govern. No other terms and conditions, including, but not limited to, those contained in Vendor's standard printed terms and conditions, on Vendor's order acknowledgment, invoices or otherwise, shall have any application to or effect upon or be deemed to constitute an amendment to or to be incorporated into this Agreement, any Purchase Order, or any transactions occurring pursuant hereto or thereto, unless this Agreement shall be specifically amended to adopt such other terms and conditions in writing by the Parties. 2.4 Notwithstanding any other provision of this Agreement to the contrary, the Lead Contracting Agency shall have no obligation to order or purchase any Products and Services hereunder and the placement of any Purchase Order shall be in the sole discretion of the Participating Agencies. This Agreement is not exclusive. Vendor expressly acknowledges and agrees that Purchaser may purchase at its sole discretion, Products and Services that are identical or similar to the Products and Services described in this Agreement from any third party. 2.5 In case of any conflict or inconsistency between any of the Contract Documents, the documents shall prevail and apply in the following order of priority: (i) This Agreement; (ii) The RFP; (iii) Vendor's Proposal; 2.6 Extension of contract terms to Participating Agencies: 2.6.1 Vendor agrees to extend the same terms, covenants and conditions available to Purchaser under this Agreement to Participating Agencies, that have executed an Intergovernmental Cooperative Purchasing Agreement ("IGA") as may be required by each Participating Agency's local laws and regulations, in accordance with Attachment C. Each Participating Agency will be exclusively responsible for and deal directly with Vendor on matters relating to ordering, delivery, inspection, acceptance, invoicing, and payment for Products and Services in accordance with the terms and conditions of this Agreement as if it were "Purchaser" hereunder. Any disputes between a Participating Agency and Vendor will be resolved directly between them under and in accordance with the laws of the State in which the Participating Agency exists. Pursuant to the IGA, the Lead Contracting Agency shall not incur any liability as a result of the access and utilization of this Agreement by other Participating Agencies. 2.6.2 This Solicitation meets the public contracting requirements of the Lead Contracting Agency and may not be appropriate under or meet Participating Agencies' procurement laws. Participating Agencies are urged to seek independent review by their legal counsel to ensure compliance with all local and state solicitation requirements. 2.6.3 Vendor acknowledges execution of a Vendor Administration Fee Agreement with NPPGov, pursuant to the terms of the RFP. 2.7 Oregon Public Agencies are prohibited from use of Products and Services offered under this Agreement that are already provided by qualified nonprofit agencies for disabled individuals as listed on the Department of Administrative Service's Procurement List ("Procurement List") pursuant to ORS 279.835-.855. See www.OregonRehabilitation.org/qrf for more information. Vendor shall not sell products and services identified on the Procurement List (e.g., reconditioned toner cartridges) to Purchaser or Participating Agencies within the state of Oregon. 3 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ARTICLE 3 — TERM AND TERMINATION 3.1 The initial contract term shall be for three (3) calendar years from the Effective Date of this Agreement ("Initial Term"). Upon termination of the original three (3) year term, this Agreement shall automatically extend for up to three (3) successive one (1) year periods; (each a "Renewal Term"); provided, however, that the Lead Contracting Agency and/or the Vendor may opt to decline extension of the MPA by providing notification in writing at least thirty (30) calendar days prior to the annual automatic extension anniversary of the Initial Term. 3.2 Either Vendor or the Lead Contracting Agency may terminate this Agreement by written notice to the other party if the other Party breaches any of its obligations hereunder and fails to remedy the breach within thirty (30) days after receiving written notice of such breach from the non -breaching party. ARTICLE 4 — PRICING, INVOICES, PAYMENT AND DELIVERY 4.1 Purchaser shall pay Vendor for all Products and Services ordered and delivered in compliance with the terms and conditions of this Agreement at the pricing specified for each such Product and Service on Attachment A, including shipping. Unless Attachment A expressly provides otherwise, the pricing schedule set forth on Attachment A hereto shall remain fixed for the Initial Term of this Agreement; provided that manufacturer pricing is not guaranteed and may be adjusted based on the next manufacturer price increase. Pricing contained in Attachment A shall be extended to all NPPGov, Public Safety GPO, First Responder GPO and Law Enforcement GPO members upon execution of the IGA. 4.2 Vendor shall submit original invoices to Purchaser in form and substance and format reasonably acceptable to Purchaser. All invoices must reference the Purchaser's Purchase Order number, contain an itemization of amounts for Products and Services purchased during the applicable invoice period and any other information reasonably requested by Purchaser, and must otherwise comply with the provisions of this Agreement. Invoices shall be addressed as directed by Purchaser. 4.3 Unless otherwise specified, Purchaser is responsible for any and all applicable sales taxes. Attachment A or Vendor's Proposal (Attachment D) shall specify any and all other taxes and duties of any kind which Purchaser is required to pay with respect to the sale of Products and Services covered by this Agreement and all charges for packing, packaging and loading. 4.4 Except as specifically set forth on Attachments A and F, Purchaser shall not be responsible for any additional costs or expenses of any nature incurred by Vendor in connection with the Products and Services, including without limitation travel expenses, clerical or administrative personnel, long distance telephone charges, etc. ("Incidental Expenses"). 4.5 Price reductions or discount increases may be offered at any time during the contract term and shall become effective upon notice of acceptance from Purchaser. 4.6 Notwithstanding any other agreement of the Parties as to the payment of shipping/delivery costs, and subject to Attachments A, D, and F herein, Vendor shall offer delivery and/or shipping costs prepaid FOB Destination. If there are handling fees, these also shall be included in the pricing. 4.7 Unless otherwise directed by Purchaser for expedited orders, Vendor shall utilize such common carrier for the delivery of Products and Services as Vendor may select; provided, however, that for expedited orders Vendor shall obtain delivery services hereunder at rates and terms not less favorable than those paid by Vendor for its own account or for the account of any other similarly situated customer of Vendor. 4 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 4.8 Vendor shall have the risk of loss of or damage to any Products until delivery to Purchaser. Purchaser shall have the risk of loss of or damage to the Products after delivery to Purchaser. Title to Products shall not transfer until the Products have been delivered to and accepted by Purchaser at Purchaser's Destination. ARTICLE 5 — INSURANCE 5.1 During the term of this Agreement, Vendor shall maintain at its own cost and expense (and shall cause any subcontractor to maintain) insurance policies providing insurance of the kind and in the amounts generally carried by reasonably prudent manufacturers in the industry, with one or more reputable insurance companies licensed to do business in Oregon and any other state or jurisdiction where Products and Services are sold hereunder. Such certificates of insurance shall be made available to the Lead Contracting Agency upon 48 hours' notice. BY SIGNING THE AGREEMENT PAGE THE VENDOR AGREES TO THIS REQUIREMENT AND FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN CANCELLATION OF THIS MASTER PRICE AGREEMENT. 5.2 All insurance required herein shall be maintained in full force and effect until all work or service required to be performed under the terms of this Agreement is satisfactorily completed and formally accepted. Any failure to comply with the claim reporting provisions of the insurance policies or any breach of an insurance policy warranty shall not affect coverage afforded under the insurance policies to protect the Lead Contracting Agency. The insurance policies may provide coverage that contains deductibles or self-insured retentions. Such deductible and/or self-insured retentions shall not be applicable with respect to the coverage provided to the Lead Contracting Agency under such policies. Vendor shall be solely responsible for the deductible and/or self-insured retention and the Lead Contracting Agency, at its option, may require Vendor to secure payment of such deductibles or self-insured retentions by a surety bond or an irrevocable and unconditional letter of credit. 5.3 Vendor shall carry Workers' Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Vendor's employees engaged in the performance of the work or services, as well as Employer's Liability insurance. Vendor waives all rights against the Lead Contracting Agency and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the Workers' Compensation and Employer's Liability or commercial umbrella liability insurance obtained by Vendor pursuant to this Agreement. 5.4 Insurance required herein shall not be permitted to expire, be canceled, or materially changed without thirty days (30 days) prior written notice to the Lead Contracting Agency. ARTICLE 6 — INDEMNIFICATION AND HOLD HARMLESS 6.1 Vendor agrees that it shall indemnify, defend and hold harmless Lead Contracting Agency, its respective officials, directors, employees, members and agents (collectively, the "Indemnitees"), from and against any and all damages, claims, losses, expenses, costs, obligations and liabilities (including, without limitation, reasonable attorney's fees), suffered directly or indirectly by any of the Indemnitees to the extent of, or arising out of, (i) any breach of any covenant, representation or warranty made by Vendor in this Agreement, (ii) any failure by Vendor to perform or fulfill any of its obligations, covenants or agreements set forth in this Agreement, (iii) the negligence or intentional misconduct of Vendor, any subcontractor of Vendor, or any of their respective employees or agents, (iv) any failure of Vendor, its subcontractors, or their respective employees to comply with any Applicable Law, (v) any litigation, proceeding or claim by any third party relating in any way to the obligations of Vendor under this Agreement or Vendor's performance under this Agreement, (vi) any Employee Taxes or Unemployment Insurance, or (vii) any claim alleging that the 5 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 Products and Services or any part thereof infringe any third party's U.S. patent, copyright, trademark, trade secret or other intellectual property interest. Such obligation to indemnify shall not apply where the damage, claim, loss, expense, cost, obligation or liability is due to the breach of this Agreement by, or negligence or willful misconduct of, Lead Contracting Agency or its officials, directors, employees, agents or contractors. The amount and type of insurance coverage requirements set forth herein will in no way be construed as limiting the scope of the indemnity in this paragraph. The indemnity obligations of Vendor under this Article shall survive the expiration or termination of this Agreement for two years. 6.2 LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURIES TO PERSONS OR TO PROPERTY OR LOSS OF PROFITS OR LOSS OF FUTURE BUSINESS OR REPUTATION, WHETHER BASED ON TORT OR BREACH OF CONTRACT OR OTHER BASIS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6.3 The same terms, conditions and pricing of this Agreement may be extended to government members of National Purchasing Partners, LLC. In the event the terms of this Agreement are extended to other government members, each government member (procuring party) shall be solely responsible for the ordering of Products and Services under this Agreement. A non -procuring party shall not be liable in any fashion for any violation by a procuring party, and the procuring party shall hold non - procuring parties or unrelated purchasing parties harmless from any liability that may arise from action or inaction of the procuring party. ARTICLE 7 — WARRANTIES Purchaser shall refer to Vendor's Proposal for all Vendor and manufacturer express warranties, as well as those warranties provided under Attachment B herein. ARTICLE 8 - INSPECTION AND REJECTION 8.1 Purchaser shall have the right to inspect and test Products at any time prior to shipment, and within a reasonable time after delivery to the Purchaser's Destination. Products not inspected within a reasonable time after delivery shall be deemed accepted by Purchaser. The payment for Products shall in no way impair the right of Purchaser to reject nonconforming Products, or to avail itself of any other remedies to which it may be entitled. 8.2 If any of the Products are found at any time to be defective in material or workmanship, damaged, or otherwise not in conformity with the requirements of this Agreement or any applicable Purchase Order, as its exclusive remedy, Purchaser may at its option and at Vendor's sole cost and expense, elect either to (i) return any damaged, non -conforming or defective Products to Vendor for correction or replacement, or (ii) require Vendor to inspect the Products and remove or replace damaged, non -conforming or defective Products with conforming Products. If Purchaser elects option (ii) in the preceding sentence and Vendor fails promptly to make the necessary inspection, removal and replacement, Purchaser, at its option, may inspect the Products and Vendor shall bear the cost thereof. Payment by Purchaser of any invoice shall not constitute acceptance of the Products covered by such invoice, and acceptance by Purchaser shall not relieve Vendor of its warranties or other obligations under this Agreement. 8.3 The provisions of this Article shall survive the expiration or termination of this Agreement. 6 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ARTICLE 9 — SUBSTITUTIONS Except as otherwise permitted hereunder, Vendor may not make any substitutions of Products, or any portion thereof, of any kind without the prior written consent of Purchaser. ARTICLE 10 - COMPLIANCE WITH LAWS 10.1 Vendor agrees to comply with all Applicable Laws and at Vendor's expense, secure and maintain in full force during the term of this Agreement, all licenses, permits, approvals, authorizations, registrations and certificates, if any, required by Applicable Laws in connection with the performance of its obligations hereunder. At Purchaser's request, Vendor shall provide to Purchaser copies of any or all such licenses, permits, approvals, authorizations, registrations and certificates. 10.2 Purchaser has taken all required governmental action to authorize its execution of this Agreement and there is no governmental or legal impediment against Purchaser's execution of this Agreement or performance of its obligations hereunder. ARTICLE 11 — PUBLICITY / CONFIDENTIALITY 11.1 No news releases, public announcements, advertising materials, or confirmation of same, concerning any part of this Agreement or any Purchase Order issued hereunder shall be issued or made without the prior written approval of the Parties. Neither Party shall in any advertising, sales materials or in any other way use any of the names or logos of the other Party without the prior written approval of the other Party. 11.2 Any knowledge or information which Vendor or any of its affiliates shall have disclosed or may hereafter disclose to Purchaser, and which in any way relates to the Products and Services covered by this Agreement shall not, unless otherwise designated by Vendor, be deemed to be confidential or proprietary information, and shall be acquired by Purchaser, free from any restrictions, as part of the consideration for this Agreement. ARTICLE 12 - RIGHT TO AUDIT Subject to Vendor's reasonable security and confidentiality procedures, Purchaser, or any third party retained by Purchaser, may at any time upon prior reasonable notice to Vendor, during normal business hours, audit the books, records and accounts of Vendor to the extent that such books, records and accounts pertain to sale of any Products and Services hereunder or otherwise relate to the performance of this Agreement by Vendor. Vendor shall maintain all such books, records and accounts for a period of at least three (3) years after the date of expiration or termination of this Agreement. The Purchaser's right to audit under this Article 12 and Purchaser's rights hereunder shall survive the expiration or termination of this Agreement for a period of three (3) years after the date of such expiration or termination. ARTICLE 13 - REMEDIES Except as otherwise provided herein, any right or remedy of Vendor or Purchaser set forth in this Agreement shall not be exclusive, and, in addition thereto, Vendor and Purchaser shall have all rights and remedies under Applicable Law, including without limitation, equitable relief. The provisions of this Article shall survive the expiration or termination of this Agreement. 7 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ARTICLE 14 - RELATIONSHIP OF PARTIES Vendor is an independent contractor and is not an agent, servant, employee, legal representative, partner or joint venture of Purchaser. Nothing herein shall be deemed or construed as creating a joint venture or partnership between Vendor and Purchaser. Neither Party has the power or authority to bind or commit the other. ARTICLE 15 - NOTICES All notices required or permitted to be given or made in this Agreement shall be in writing. Such notice(s) shall be deemed to be duly given or made if delivered by hand, by certified or registered mail or by nationally recognized overnight courier to the address specified below: If to Lead Contracting Agency: LEAGUE OF OREGON CITIES 1201 Court St. NE Suite 200 Salem OR 97301 ATTN: Jamie Johnson -Davis Email: rfp@ORCities.org If to Vendor: INFORMER SYSTEMS, LLC 1900 South Norfolk Street Suite 350 San Mateo CA 94403 ATTN: Mark Musick Email: .Mirn.. siiglk@ii,1121E0221.. ; g,i ..::g,2i 2 Either Party may change its notice address by giving the other Party written notice of such change in the manner specified above. ARTICLE 16 - FORCE MAJEURE Except for Purchaser's obligation to pay for Products and Services delivered, delay in performance or non-performance of any obligation contained herein shall be excused to the extent such failure or non- performance is caused by force majeure. For purposes of this Agreement, "force majeure" shall mean any cause or agency preventing performance of an obligation which is beyond the reasonable control of either Party hereto, including without limitation, fire, flood, sabotage, shipwreck, embargo, strike, explosion, labor trouble, accident, riot, acts of governmental authority (including, without limitation, acts based on laws or regulations now in existence as well as those enacted in the future), acts of nature, and delays or failure in obtaining raw materials, supplies or transportation. A Party affected by force majeure shall promptly provide notice to the other, explaining the nature and expected duration thereof, and shall act diligently to remedy the interruption or delay if it is reasonably capable of being remedied. In the event of a force majeure situation, deliveries or acceptance of deliveries that have been suspended shall not be required to be made upon the resumption of performance. 8 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ARTICLE 17 - WAIVER No delay or failure by either Party to exercise any right, remedy or power herein shall impair such Party's right to exercise such right, remedy or power or be construed to be a waiver of any default or an acquiescence therein; and any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power. No waiver hereunder shall be valid unless set forth in writing executed by the waiving Party and then only to the extent expressly set forth in such writing. ARTICLE 18 - PARTIES BOUND; ASSIGNMENT This Agreement shall inure to the benefit of and shall be binding upon the respective successors and assigns of the Parties hereto, but it may not be assigned in whole or in part by Vendor without prior written notice to Purchaser which shall not be unreasonably withheld or delayed. ARTICLE 19 - SEVERABILITY To the extent possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under Applicable Law. If any provision of this Agreement is declared invalid or unenforceable, by judicial determination or otherwise, such provision shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of the Parties shall be construed and enforced accordingly. ARTICLE 20 - INCORPORATION; ENTIRE AGREEMENT 20.1 All the provisions of the Attachments hereto are hereby incorporated herein and made a part of this Agreement. In the event of any apparent conflict between any provision set forth in the main body of this Agreement and any provision set forth in the Attachments, including the RFP and/or Vendor's Proposal, the provisions shall be interpreted, to the extent possible, as if they do not conflict. If such an interpretation is not possible, the provisions set forth in the main body of this Agreement shall control. 20.2 This Agreement (including Attachments and Contract Documents hereto) constitutes the entire Agreement of the Parties relating to the subject matter hereof and supersedes any and all prior written and oral agreements or understandings relating to such subject matter. ARTICLE 21 - HEADINGS Headings used in this Agreement are for convenience of reference only and shall in no way be used to construe or limit the provisions set forth in this Agreement. ARTICLE 22 - MODIFICATIONS This Agreement may be modified or amended only in writing executed by Vendor and the Lead Contracting Agency. The Lead Contracting Agency and each Participating Agency contracting hereunder acknowledge and agree that any agreement entered into in connection with any Purchase Order hereunder shall constitute a modification of this Agreement as between the Vendor and the Participating Agency. Any modification of this Agreement as between Vendor and any Participating Agency shall not be deemed a 9 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 modification of this Agreement for the benefit of the Lead Contracting Agency or any other Participating Agency. ARTICLE 23 - GOVERNING LAW This Agreement shall be governed by and interpreted in accordance with the laws of the State of Oregon or in the case of a Participating Agency's use of this Agreement, the laws of the State in which the Participating Agency exists, without regard to its choice of law provisions. ARTICLE 24 - COUNTERPARTS This Agreement may be executed in counterparts all of which together shall constitute one and the same Agreement. below. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year last written PURCHASER: pacuSigned by: Signature: 3EC546F8869143E... Mike cully Printed Name: Executive Director Title: LEAGUE OF OREGON CITIES Dated: 6/24/2020 VENDOR: OocuSigned. by: �y It'l.t.VL A^1.;.�.S.�L. Signature: re: 3F2A9B177B534F3 Mark Musick Printed Name: Title: President Informer Systems, LLC 6/24/2020 Dated: 10 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ATTACHMENT A to Master Price Agreement by and between VENDOR and PURCHASER. PRODUCTS, SERVICES, SPECIFICATIONS AND PRICES Source of list price is directly from Informer Systems, LLC with a publication date of March 3, 2020. All products offered are new, unused, and most current. All price proposals include freight and delivery. This pricing schedule covers Categories 1, 2, 5, 9, and 11. Informer Systems .................................................................................................................................................... Li Schedule' li Express Number of Users 1-30 .................................................................................................. 31-150 .................................................................................................. 151-300 .................................................................................................. 301-500 .................................................................................................. 501-750 .................................................................................................. 751-1000 .................................................................................................. 1001-1250 .................................................................................................. 1251-1500 .................................................................................................. 1501-1750 .................................................................................................. 1751-2000 .................................................................................................. 2001-2250 .................................................................................................. 2251-2500 .................................................................................................. 2501-2750 .................................................................................................. 2751-3000 .................................................................................................. 3001-3250 .................................................................................................. 3251-3500 .................................................................................................. 3501-3750 .................................................................................................. 3751-4000 .................................................................................................. 4001 and above Additional Discounts League of Oregon Cities Pricing ............................................................................................................... Fixed Discount per # of Users $20.00 0.0% $13.00 35.0% $12.50 37.5% $12.00 40.0% $11.50 42.5% $11.00 45.0% $10.50 47.5% License Fee Per User/Per Month* -(Billed Annually) $10.00 $9.50 $9.00 $8.50 $8.00 $7.50 $7.00 $6.50 $6.00 $5.50 $5.00 $4.50 50.0% 52.5% 55.0% 57.5% 6o.o% 62.5% 65.o% 67.5% 70.0% 72.5% 75.0% 77.5% 1o% addl number of users Onsite refresher trainin Unlimited 'live' web -based trainin All future maintenance and updates 24/7/365 service, support, and maintenance 11 Number Total of Users Annually 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 .................................. $0.00 $0.00 $0.00 $0.00 .................................. $0.00 $0.00 $0.00 .................................. $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 Professional Services Personnel One-time onsite full deployment of Schedule Express One-time onsite training for all admin & supervisory personnel One-time onsite data collection and custom configuration $1,500 per person 5o% discount for rapid deployment within 6o days after receipt of order Additional Services ................................................................................................................... Custom Reports Programming Services System Analysis Services Modification of Existing Report or Creation of New Report Custom Development or Integration with Third Party Applications $1,000 each Analysis & Evaluation of Work Force Management Processes & Procedures © 2020 Informer Systems, LLC — Confidential/Proprietary Information — All Rights Reserved Pricing contained in this Attachment A shall be extended to all NPPGov members upon execution of the Intergovernmental Agreement. Participating Agencies may purchase from Vendor's authorized dealers and distributors, as applicable, provided the pricing and terms of this Agreement are extended to Participating Agencies by such dealers and distributors. Vendor's authorized dealers and distributors, as applicable, are identified in a [list, link found at http:], as may be updated from time to time. [ A current list may be obtained from Vendor.] 12 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ATTACHMENT B to Master Price Agreement by and between VENDOR and PURCHASER. ADDITIONAL SELLER WARRANTIES To the extent possible, Vendor will make available all warranties from third party manufacturers of Products not manufactured by Vendor, as well as any warranties identified in this Agreement and Vendor's Proposal. 13 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ATTACHMENT C to Master Price Agreement by and between VENDOR and PURCHASER. PARTICIPATING AGENCIES The Lead Contracting Agency in cooperation with National Purchasing Partners (NPPGov) entered into this Agreement on behalf of other government agencies that desire to access this Agreement to purchase Products and Services. Vendor must work directly with any Participating Agency concerning the placement of orders, issuance of the purchase orders, contractual disputes, invoicing, and payment. The Lead Contracting Agency shall not be held liable for any costs, damages, etc., incurred by any Participating Agency. Any subsequent contract entered into between Vendor and any Participating Agency shall be construed to be in accordance with and governed by the laws of the State in which the Participating Agency exists. Each Participating Agency is directed to execute an Intergovernmental Cooperative Purchasing Agreement ("IGA"), as set forth on the NPPGov web site, w.w..n ov,.com. The IGA allows the Participating Agency to purchase Products and Services from the Vendor in accordance with each Participating Agency's legal requirements as if it were the "Purchaser" hereunder. 14 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ATTACHMENT D to Master Price Agreement by and between VENDOR and PURCHASER. Vendor's Proposal (The Vendor's Proposal is not attached hereto.) (The Vendor's Proposal is incorporated by reference herein.) DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ATTACHMENT E to Master Price Agreement by and between VENDOR and PURCHASER. Purchaser's Request for Proposal (The Purchaser's Request for Proposal is not attached hereto.) (The Purchaser's Request for Proposal is incorporated by reference herein.) DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 ATTACHMENT F to Master Price Agreement by and between VENDOR and PURCHASER. ADDITIONAL VENDOR TERMS OF PURCHASE, IF ANY. Terms of Service THE:,"sE: "TE RIMS 0 IE SE RVII CIE:" COVE RNI YO Li P U 11-1IASE 0 IE 01.11R SERVO CES T11-11ESE 11"' M S 01E' S C IA/II II.... II.... AIL. SO GOVE RINI YOU IR PU RC 1E, AN ID ON GOO N G LUSE 0 IF S 1E, SE RVII C 1E, S P AS 1E, READ 11-H ESE, 'TIE, M 0 IF SE:R.VIICE CAIR E. U B 1E0 U S NIG THE: SE RVII C BY USII NG 1111-111E S CES YOU S G IEY YO IR ASS E "TO E S 1E, 11-E RIMS OF SE RVII C II YO Li ID 0 0-1 AG R E E TO E S 1E, E RMS OF SE, CE Y01.11 MAY N 011- S 1E, E S 1E, C ES II 'ci.i F iJirO TIR S R MS OF SE IRVIICE ON REHM...IF OF A COM PANY OFR OT I -11E R IL.. 1E, G E 11- II TY, YO RIE, P RES 1E, NI I 11 -11 -II AT YO HAVIE, II -II E. Al.111-11-11 0 R.11 TY 11-0 N IL) S C 1E, INTO -1Y AN IID AIE II 11-0 'TERMS D CON D 0 N S N INF -1111 CM CASE 11-111E, 11-11E M S "YOU" OR 1111Y0 Li IR" SNAIL...II.... RE, IF 1E, IR 1r0 SI.11CH 1E, NI 11-1111"Y AN ID ITS AlIF IF II II...OATES. II YOUDON OT S C Al..1711-11011R.11 TY, OR OF YOU 0 IN 011"' AG RIE, 1E, 1A/1111-11-11 ESE -11-E RMS AN CO 1111-11 0 NS, Y01.11 1.11 S11- NOT AC:: 1P-11- THESE 'TIE, M S (DIE SERVO C:11E .AIN ID MAY 011- Li SE E Mese Terms of Service were last updated on INovember 7, 2019,, -11-hey are effective between You and Us as of the date You commence using the Services,, We Imlay, in Our sole and albscillute discretion, change these Terms of Service from time to time. \AI e WOO post a copy of the Terms of Service as changed on the Site. Your continued use of the SerAces constitutes your agreement to abide by the Terms of Service as changed. Of you object to any such changes, your sole recourse shat be to cease using the Services., 1. DEFINITIONS A11111111i1 ate" means any entity vvhich directly or indirectly controls, is contro011ed by, or is under common control with the subject entity,. "Contrcill," for purposes of thiis definitic.)n, means dii re d or iindiirect ownership or contrc.)II of inc.)re than 50% of the voting interests of the subject entity. "IMallicious Code" means viruses, worms, time bombs, 11-rojan horses and other harmful or malicious code, files, scripts, agents or programs,. "Purchased Services" means Ser/ices that You or Your Affiliates purchase. "ServiIces" means the online, Web -based applications and platform provided by "Us" via www.scheduleexpress.com and/or other designated websites collectively, the "Site"). "Users" means individuals who are authorized by You to uF3e, the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users include Your employees and agents,. 111We ,11,1 Us or "OurThrieans the IInformer Systems, "You" or "Your" roeans the company or other legal entity for which you are accept ng the -leans ..f Service and Affiliates of that company or entity. 17 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 "Your 11:::)ata" means all electronIIc data or Iinformatlon submIitted Illy You to the Purchased Services. 2. PURCHASED SERVICES 2.1. 1Provision oflurchased Services. 1/Ve Phalli make .the P rchased Servlces avaliabie to YoU pursuant to these Terms a Servlae. You agree that Your purchase hereunder are nelther contlngent on the del very of any .future .functionallty or features nor dependent on any oral or wdtten publIIIc comments made by Us regardIIng .fiuture .functIonallity or features. 2.2. User Subscriptions. Servlces are purchased as User S U lbscriptons and may be accessed by no more than the specified rounnlber of Users. User Subscriptions may be added duldIng the subscrlptIon term at the same pr cing as that for the pre- existing subscriptions, prorated for .the remainder of the subscription .term ri effect at .the time the additionall User S bscriptions are added. Added User Subscriptions shalli terminate on the same date as the pre-exiisting subscriptions. Subscriptions are for deslgnated Users and cannot be shared or 'used by 'more than one User. 3. USE OF THE SERVICES 3.1 Our IIRtesponsliblillIlitlies.1A/e siaI (11) provide to You basic support for the Purchased Services at no additionall clharge, use commerclallly reasonable efforts to make the Purchased Servlces avaliabie 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give ample notice via the P rchased Services and which We Phalli schedule to the extent pract cable during the weekend hours .from 6.00 p.nro. Pacific time 117rlday to 3.00 a.m. Pacific tlInne Monday), or (ID) any unavaliabliity caused lby dIrcunnstances lbeyond Our reasonable controll, inciuding without 0IInniltation, acts Of God, acts of government, flood fi re , ea rth q u a kes unrest, acts of terror, strikes or other labar p ro e nro s (other than those iin vo vii rog Our eniplloyees), or Internet servlce [DllrovIIder faliures or delays, and provide the IPurchased Servlces only ni accordance wlth appiiicablleiaws and government regullations. 3.2. Your 11ResponsilloillIlities. You ;hall(i) be responsible for Userscompllance with .these Terms of Service, be solely responslbie for the accuracy, quality, IIntegrlty and Ilegallity of Your Data and of thelmearos by which You acquired Your IData, Oil) use commercially reasonable efforts to prevent lunauthenzed access to or 'use of the Services and 'notify Us promptly of any such 'unauthorized access or 'use, and (iv) use the Services only 1 accordance with lits ntended use and applicable laws and government regullatlons. You shall not (a) make the Servlces availlabie to anyone other than Users, (b) selli, resell, rent or lease .the Services, (c) use the Serylces to store or .transmitnirirq ny, Oibeious, or otherwlse luniawfull or tortious mater al or to store or transmit matedall n vlollatIon of thIIrd-party pdvacy rlghts, (d) use the Services to store or transmit Maildous Code, (e) interfere wlth or dlsrupt .the IIntegrlty or performance of the Servlces or thIIrd-party data contalned therein, or (f) attempt to gain unauthorlzed access to the Services or theft related systems orinetworks. 4. FEES AND PAYMENT FOR PURCHASED SERVICES 4.1, User lFees. Subscrlption fees are based on monthlly periods that begln the...first day of the nroonth and are blIlled annuallly. SubscrlptIons that are activated wlthln the month *Ili be prorated, e.g. fees for SubscrlptIons actIvated n he rilddlle of a monthlly perlod wIIIIII be prorated for that moonthlly ceded. You S h a Ill pay all fees spec ed al101nvolces hereunder. IE:xceptas otherwise sdpecifled Inereln, (II) fees are quoted and payable n United States dollars fees are based on serAces purchased and not actuall usage payrnerot obilgatIons are non -cancellable and fees pad are non-refundabie. Current fe e S for the Servlces may be obtalned by calliIIng our Sales Department at 800-470-6102. 18 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 4..2. Invoicirj and 1Payment. You will11 provIIde Us *I'M valid and lupdated contact Iinformadon with a vallIId purchase order or allternalive do CU ment reasonably acceptable to Us. IPayment s requIIred to be made in advance annivalllly; or in accordance with a Ihnutualllly agreed lupon bil ing cycle. We will IInvoIIce You ri advance and othenMse Iin accordance wIth these -11erms of ServIIce. lInvOIced charges are due net 30 days from ithe IIInvolce date. You are responsiblle for maIInitaIIMIng compllete and accurate bi inq and contact Iinformation in the ServIIces. Overdu... Charges. Of any charges are not receIIved from You by the due date, then at Our discretion, (a) such charges Inday accrue late IIniterest at ithe rate of 1.5% of ithie olitstandIIng lbalance per 1month, or ithe maxIImUm rate permIItted by Ilaw, whichever 5 lower, from the date such payment was due und0 the date paid. 4.4. Suspension of Service and Acceileration. Of any amount owing by You under these Terms of Service or any other agreement for Our services is 30 or more days overdue, We may, Without Illimiltling Our other rlights and remedies, accelerate Your unpaIId fee obtgations under such agreements so that all such obIligatIons lbecome IimmedIatelly due and ipayable and suspend Our servIIces to You UllitU Ruch amounts are paid 4.5. Payment [Disputes. 1/Ve shall0 not exercise Our nights under Section 4.3 (Overdue Charges) or 4.4 (Suspenslion of Semlice and Accelleraton) t the applIIIcablle charges are 'under reasonable and goodiiiifaIIth dIspute and You are cooperating dIlligently to resollve the dlispute. 4.6. Taxes. Unless otherwilse stated, Our fees do not lincllude any taxes, Ileviles, duties or slinillOar governmental assessments of any nature, IIncilludInig Ibut not 0IImited to value-added, sales, 'use or WIthlholldIng taxes, assessable lby any Iocal state, provIIndIall, federall or foreiign judisdictiion (collectively " Taxes"). You are responsillblle for payling all Taxes associated With Your purchases hereunder. Of We have the legal obIlligation to pay or co011ect Taxes for which You are responsiliblle under thils iparagraphthe appropdate amount shall be nvoiced to and paid by You, unless You provide Us wlth a valid tax exemption cert ficate a lit lhanzed by the appropnate tax ng authanty. 5. PROPRIETARY RIGHTS 5.1. Illeservation of 111Rights. Subject to the OIImIIited PIghts expressly granted Ihereunder, We reserve all0 rights, ttle and IInterest iin and to the Serviices, nclud nq all0 related iintellectual proiperty riights. No riights are granted to You Ine.reunder other than as expressly set forth IhereIIn. 5.2. Restrictions. You shal111 not, ( ) permany thiird party to access or US e the Serviices except as permitted hereiin, create denvate works based on the ServIIces, copy, frame or mIIrror any part or content of the SeriIcesother than copyIIng or 'firamiing on Your own iintranets or otherwiise for Your own iinternall busiiness purposes, (iiv) reverse engneer the S e rviices, or (v) access the ServIIces in order to (a) IbuII0d a compedfive product or servIIce, or (b) copy any 'features, functIons or graph cs of the ServIIces. 5.3. Ownersho of 'Your IData,, As between Us and You, YOU excill U5ivelly own all0 PIghts, title and IIInterest n and to all of Your Data. 5.4. Suggestions. We shal111 lhave a royalty -free, worIldWIde, transferable, suibIlicenseable, IIrrevocablle, perpetuall IIIIcense to use or Iincorporate IInto the Services any suggestions, enhancement requests, recommendations or other 'feedback iprovIded by You, including Users, rellatin,g to the operation of the SeniIces. 19 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 6. CONFIDENTIALITY au„1„ If;Deafliunlitlion of Conflideuntlialll 11ntormat•.lion, As used herein, "Confidentiallluntorrnatliion" means allll ca:.nnfiideintiiall liirnfoirmatiiori diiscllosed by a party ("" IIDIi sclllosiiiunngi Party”) to the other (party ("" If eceiiviiiunna Party"), whether oiralllly or lin writing, that is desligunated as corofideuntliall or that reasonably sllnouulld be understood to be coroflideuntliall glivero the roalluuure of tillne IInforrnat on arnd the clircurnstainces of dliscllosuure• Your t::;orifliderotiiall 11nforrrnatiioan slhallll include Your (Data; Our Couilr deintiiall I1nitormatiioni shallll irncllu.ude the ,Servlices; and Cou•nfliden all llntfoirmatliorn of each (party slhallll linclitude the Terms of Serviice, as we1111 as Ibusiiness, and rnarlketliinig Ipllarns tesIimollogy and teclhnlicall lirnformatiioro, product ppllaris and designs, and Ibusiirness processes disclosed by suuclh pairty,. Il however, Confiiderntiiall llintoirmation (other tlhlarn Your II:Data) slhallll not luruaalu.ud any iirnformatiion .that (ii) its or Ibecames, gerneralllly known to the public without breach of any obligation owed to the ID'issccllosslirng (Party, (iili) was known 'to the IReceiiviiinip Party Ipiriicir to lits diis,cllosu.ure by the I0lisclloslirnq Party Without breach of any olbllligatlio n owed to the I0lisclloslirug IFairty, (iilili) lis receiived froinrn a tlhiird party Without Ibrear•Ih of am y oblliiga'tiiorn owed tothe IDiiscllosiiug Party, or (Iv) was iiinidelpenderrtlly developed by the Receihviinq Party,. 6„2„ Ifwurote^ctlion of Connflidentlialll I1rrffc ri"natiouni„ Except as otherwiise Ipermliitted On wilt rng by the II::)iiscllosiirng (Party, (ii) the Recelivlirng Party slhallll use the sainne degree of care that lit uses to protect the coinitiidentlialliity of lits own confiidenntliall iinformation . f I1lilka. kind (but lin s ,) t' to dliscllose or use any Confliderntiiall Ilrntorrmatliorn of the Iltiliscllc�sliruq o ( iirP Innis event es;:>'flh�airP re:a.�uuroalb � care) u�oo Party for any (purpose cu.utSlide the scope of .these 11-erms of Seervlice, and (lili) the IRecelIIvliung (Party sIhellll OIImOt access to Confilderntliall Ilrrfarrn-nat'lioru of the Ilti'osclloslirug Party to thiose of lits erniplloyees, contractors and agents who meed S access 'tor purposes con :siistent With tllresee Terms of Seuviice and who have sligined conflideundalllity agreements wlitlh the Receiving Party coarntaiiroiiung Iproto ctiiorus no llesss stringent than those (herein. 6.3. II irotectiioun of Your II Data. \N tlhout 0miitiing .the above, We slhallll maintain alplprolpriiate adinrniiuniistratiive, 1plhysiicall, and teclhiniIIcall safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 6.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters. Courruppcllllcd Disclosure. -1Ire IF.ecelIIvliung (Party may diisu:.,llose Ccnflidertliall 11nifarmatlioun of the II::) scllosliinq IIPartty iif lit its cornpelllled by (law to do so, provided the IF,tecelivling (Party gives the IDliscllosliung Party Iprlioir not ce of such coimlpelllled dliscllosu,ure (to tlfne extent Ilegalllly Ipeirmli'tted) arnd reasonable asslistaince, at the IIDii:scllosiing Party's cost, Of the II:Diiscllosiirng Party wishes to corotest the diiscllosuure. [lithe IReceiiviiinq Party its compelled by (law to diiscllose the II:::Diiscllosiiing (Party's Cornfiiderntiiall I1nifarmatlioun as part of a cdivlill Ipiroceedling to wlhIIIclln .the IDliscllosliing Party its a party, and the IDiiscllosiing Party lis not cointestiIng the dliscllosuuire, the 1Jiiscllosiiung (Party wiillll reiIInnlburse the 11Recelivlirng Party for its reasonable cost of coinrnlpiilliiung and IprolviIIddiinnq secuure access to suuclln ConflideintIall Ilntoirmat9ion. 7. WARRANTIES AND DISCLAIMERS 7.1„ Our Warranties. We warrant that (i) the 'Servlices slhallll perform materiialllly lien accordaunce with the Terms of Servlic:;e and .the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 10.3 (Termination for Cause) and Section 10.4 (Refund or Payment upon II errrn nation) bellow. ••• ✓..2„ Iw I• scllaurrr, .XC.P/S IIR::SSIIY PROVIDED Hl:.lR::lN, EllEllEEIEEIR RAREFY 1RY 1/K:S ANY tAryryAlt-1f III:S OF AlNI°u( K.IIII^tICD, r�dll Nlf::::: fll NIf:::::IC, II::::: C1PIIR.If:::::,: S„ 1111 11:"11....IIII:::::ID, ar"s1fF'alf t..Ulf t'Dlf fP' CIFu;. 'D1f11••••IIIEIC",WlOSIE:, AND II:::::ACII••••II PARTY SIFrE4;:x1111:::lC;AII....II....Y DII : CIL...F'allll` 20 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 All....11.... II1M II :III: WAR RAN -11-11 11IIIII S II II '011 CI; 11.... 0..i1 ID N G ANY WAR RA N -11-11 11IIIII S 0 OIII° 1M E RC:HAN-II-A:111 11....11 -O-s0( 0 R. IF II -11-11\11 E SS 110 A PAO:Z.1-11C 0..J11....AIIR IP 0...0 IR IF' 0 S E -11- 0 1-11....11E 1M AXII 1M !JIM E kir 11IIIII NIT P E RIM rir....rEEr.) All') 11....11 CAB E 11....A1A/0 8. INDEMNIFICATION 8.1 10 ridemffificatIiIon by You,. You shall defend Us and Our agents, servants, offiichalls and employees 'from any and all0 dams, losses, Iliablities, damages, costs, and expenses, hinchudiing attorneys' fees, accountant, expert Witness 'fees, related costs of investigatic.)n, and court costs (a "Chaim") irnade or broughit against Us by a hi rd party allheging .that Your II:Data, or Your use of the Services n viiclation of these Terris of Serviice, iinfriinges or miisappropriates the intellhectuall property rights of a third party or vidates appticabhe Ilaw, and shall iindemniify Us for any damages .finally awarded against, and for reasonable attorney's fees incurred lby Us iin conrection kith ahly such C;Ilaiim; proviided, that We (a) promptly give You written not se of the Chaiiinn; (h) giive You sae contra of the defense and settlemeat of the Chaim (prc.)viided that YOU may not settle any Charn urilless the, settlement unconditionally rellease Us of all Ohabillity); and (c) proviide to You all reasonable assistance, at Our expense. 8.2 tndemnlificatton by Us. Subject to the Illimiltatlion of1 abil Ily set forth herelin, We wil011 defend You and Your agents, servarts, officialls and employees .from any and al 0 arisiing out of (a) any gross negligence, reckless or iintentionall act, error or o inn ss o n of Us cal r our officers, agents , servar Its ar e cri p o ye es n the pe infr.)rm a r ce of the Pu ro h as e d ,Serviices r.)ir a cc ru n g resulting .from or relating to the S Ct Imater of .these Terms of San Se inchudiing, any and al 0 claims, demands or causes of action of any iallure whatsoever resulting from linjurlies or damages sustalined by any person or property as the result of gross negliigent design, manufacture, iinstallhation, or servicing of any part of the Serviices„ and (b) any actual or allheged iinfriingement hichudling contrillbutc)ry liafringernent), milsapproprilatlic)n, or vliollatliori of any thlird party's patents, copyrights, trade secret nights, trademarks, or other iintellhectuall property or proprietary inights of any nature ri any jurisdiiction n the world resulting .fronn Your use of the Serviice as permiitted 'under .these h[eros of Service. -1hiis iindenrmillcation 5 contingent on You provhdiing Us With prompt written notice cd such a Chaim, granting Us, kith the prior wriitteri approval of Your Clity/County Attorney, inot to be unreasonably withhelld, sok; contra of .the defense of any such Chaim, along with the right and opportumiity to approve or reject any settlement of any charn for which Ycu 'MUD seek iindemniification 'from Us,. hn the event Yaun Oity/County Attorney dc)es not proviide such prior 'written approval, We MO have no obIliigation to iindemnify You pursuant to thiis Section 8.2. You 400 use reasorablle efforts to rotilly Us pirr.)innotly of any thiird party chaiirn, suht, or action for whiich You bel eve yr.)u are entitled to iind emn nth cation lereunden, 8.3 IN altw1ithstard1in 'the 'foregoiing, We *Oh not be oblligated to iindemnify You to the extent that an iinfringement or miisappropriation claim s based upon (ii) any imodit catton Yo Li make to the Services or Your use of the Seriiices n a manner that We lhave not authadzed writing (iii) use of the San/hoes ir comb nation With other prodt,ucts inot supaiied or recommended by Us as lbeing cornpatiblle With the Services, f such iinfringement or imiisapprc)priation wc)ulld not lhave occurred Ibut for such combined use; (id) use of any release of the. Services other than the most current release actually .fuirnished, if the most CU nrent release was 'furnished to You specifically to avr3id such hafringement or rasapproprhation and if such iinfringennent or miisappropriation woad lhave lbeen avoided by use of .the mast cunrent release ; or (iv) any imodification of the Services made by YoU ( oth e r than at Our diirectiion), SUCH nfriingement or nniisappropriation woulld not have occurred Ibut 'for SU C nriodjfication. Our oblliigation to iindennnify You ni any event shall0 be reduced proportionatelly by the extent to wlhiich the iinjury or damage, whiiclh forms the basis of the U nderlyiing Chaim, was caused by the Your neglIiigent or wrongful act or amiissiion. 9. LIMITATION OF LIABILITY 9..1. 11....irniltation of S11000011A11....11.... 0 0.00 R AG G 11R E. GA -1I- 11.... II AIIIO3 11....11-11-Y ARO S11 NG )L.01]1 0 11R D -11-0 11- 10E11 -11E R MS 0 IF S 1E ERVIICO;IIIIIII ••••IE.t]FF••••bF.F ll ::'RAC -11-, -11011R-1r C.) 0...I N ID IIIIIII IR .ANY IR -11-11--11E()RY 21 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 I::::!Xc:;ll::::!IIE!II::D iIHNIE. -101 AIIUIoU1N11- BY YOU IHNIEIRE.U1N11::)E:.R OR, 1/tllf1flH IF II::: SPI:"".c:, -11 o /\INY SIllNC.11....lE. ONC:‘,111 ]IHNIE. 0D11 $500,..Dt.Dt1 oIR THE NIL-. AMG..Dt.UIINV If E31( YODU...11 II NIL....II ,IL....U...UINVIL..DIL....II . ON THE 12 MONTHS II N,ti IPIr.Ik.f,IL....IL.DIIING fll--Ulf::::: IIIINVa„IIIf.::DIEIINV"'II"• lu•usioun of Clonsequentiiall and IR.elated IlDernages. ON NO EVEN11- SHIA....l.... WE --11AVE ANY I....IAI::t1I....ItY.TO YOU IFOR ANY II....o,S"'ll"' Ifwlf`kGlf'll"'ll"`S OR IRIIE!VIEINIuIE:,s OR IFOR ANY IIINIII::)IIISIEc"T, ,° IF IE6.,IIAII.... MINI IIIf.:Dlf:::!IN"'ll"'All... COINSIE!ouE:.IN"'ll"'lIAll...., COVER OR ='U...UINVII"'ICIIVIf::::: If.::DAIMAGIE U I11101n/IEVF:.R CAUSED, 0/11..1IE.TIFNII:::::lr. o CO NT RAcT TORT OR u..JINI1::)1E1R ANY o.iri IIIEIrt 'N II N11:::::o1R,.Y I....IIAII 1111....lITY AIME:) WHETHER HNIElR OR INoli YOU IHIAVII : BEEN ADVISED Glf -THE IR0SSllll:a011....1ITY OF SUCH IDAIMAGIE!S• hill::::! f''ODGOO ING If:Dllo O II....AlIIMIElR SII IIAII....11.... IN OT AIPIPII....Y "TO THE IIIE IEX"'IC`Ell NII"'ll"' IPlR011-11IIFtII"'ll"'IEIf.::D II:aY AIPIPIL...IICAR ll....11::::: 10. TERM AND TERMINATION "'f"erunn, "These "Terms of rviice commence oiru the dale You commence using the Services and conlfliiruuue u.yi mill ullll User ubsciriilptiions granted in accordance with the Il erinrus of Sero✓iine have exlpiIIred or been teirirniIIniated, 10„2, Term of I1::3u.uurcllnasaed User Suullbscrlilptlions, User suulbsciriiptlioins purchased by You commence on the Hirst day of the tiraiiniing peiriiad and will coroliiinuue uunt110 termlirualled car cancelled Except as otherwlise s1pecliiflied, alllll User sullrascriiptiions sli¶a11111 gau.ull:oma.icallllly renew for tune annual periiod(s), unillless eiiitUhier party giives the other noll:iice of roni-renewal at Illeasat: 30 days (before tllnie end of tllhie relevant sulbscriipptiion month.. The Iper...unlit pricing duirlin9 any such renewal month shall be the same as that du.uriung the Ipriiior germ unless We have a;Uliveni You wriill:d:eini roU:iice of a Ipriciiung iiincurease all:llleast 30 days before the end of such 1priior monthly terra, lin wll¶liclh case the Iprliicliunu9 increase shalllll be effective uulponi renewal and thereafter.. 10..1 ..fermiinatiion for Cause... A party may terrmliroalle the -Terms aaf Serviice for cause: (II) uupoua 30 days uvriittein not ce tu:a lillne other party of a imateeiriiall Ihreaclh lif ssuuclln Ihireeaclh ireinrualIIns uncured at the explIIrat'ion of SU ch peiriiod, or (liliy lif the other party becoir nes the subject of a petition lin Ibauwolkruuptc y or aroy other Iproceediiing rellatiilnq to iinsollverocy, irec;aeiivershiilp, I1iquiildatiion or asslIIginnmeint .for the benefit of ciredlIItoirs.• IRefund our Payment u1pouni °'U'°erururuiiinatiion„ Upon any termIIratliaan for cause by You, any I)repaid tees coveiriinp the remaiiinideir of the term of all suulbscirlilprtlions slha1111 not the refunded after the effective date of teirmIIImatlion• Upon any terimhatiioin for cause by Us as iIIndlicateed lien Section 3.•2 (Your IFeslpou-oslilblillliflies), Section 4.4 (Suspension of ServlIIce and Acca;lleiratlian), Section 5,•1 (IReseirvatlions of Rligllnts), Secrt9ioun 5,,2 (R.e.stinctiionsa , and Sectlioirn 6,•2 (Protection of Conflidentliall IInfoinnnatiioirn), You .slhallll (pay any'uinpaiid fees rroveiriiimg the iremalIIndeir of the term after the effective date of teinmiination. IIn into event slfnallll any teirirmiIInatiion relieve You of the cblliIIgalliion to pay any fees payalbllee to Us 'for the oeirliod Ipriicr to the effective date of teeirinmliirnatlian• 10„5, (Return of Your Data„ Upon request by Youu made wlIItlhlIIn 30 days after the effective date of teirnnliinatlIIon of a Purchased Servlices suulbscirlilptlion, We wii1111 malke available to You for download a tulle of You.uir Data liini comma separated valluue csv) 'form at along With atllaollnirnnerots lien their natlive forirrnat• After such 30•••day period, We slhallll have no olblliigatiIon to malirotalIIn or pproviide any of Your Data and slha1111 tlheireafteir, uuinlless Ilegalllly prolfniilbiited delete allll of Your Data Biro Our systems or o'tlheirwlIIse lien Our posses slioin or under Our corolhroll. 110,„6,,, Suurviiviirig IlProviisiions. Seclliioin 4 (Fees and Payment foil Purchased ,SeirviIIces), 5 (IPirolpiriie'tain/ Rights), S (Confiideirntiallii'ty) 7.2 (lI:::DiIIscllaiIImeir) 8 (Il irndeinnnuiifiica'tiioin), 9 (II....iimiIItatlioiri of I1....iiabiilliity), 10.4 (Refund or Payment upon ”' ' :Ifeinrnliirua't'uc:virn), 10.5 (Return of Your IIDalia), 10.6. • (Surviving Provisions) 11 (Notices, Governing Law and JVuuriisdlictliorn) and 12 (Geneirall IPirovlIIslIIoins) shall sauirvlive any tein^imiin_adorn or exlplIIratlIorn of these 'Terms of ServiIIce• 22 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 11. NOTICES, GOVERNING LAW AND JURISDICTION 11.1. General, INot ces shoulld be dIrected and sent to CEO, Ildformer Systems, 1900 S. INorfollk Street SuOte 350, San Mateo, CA 94403, These "Terms of SeNce are governed by and construed in accordance WIth .the laws of .the State of CalljtornOa, UnOted States of Amenca, without regards to OLs prOnciplles of confOOcts of Ilaw. You agree to submjt to the excllusOve ilunsdOct on of any State or 11""ederall court llocated On the County of San Mateo, UnOted States of America, arid waive aoly jj risdOct onall, venue or Iinconvenient .forum object ons to such ccurts lt.a. Manner of Giving Noth:e. lExcept as otherwise spec fied in the Terms of SeriOceallO not ces, permissdros and approvals hereunder shallO be On wrOtIng and shallO be deemed to lhave been gOven persona0dellOvery, (iII) the second busIIIness day after mailling, i the second business day after send ng Ihy confOirmed Lacs mile or (iv) the first busOness day after se: id by emallO (provided emall0 shall0 not be Slifflicilent for not ces of .termlination or an lindemnii.fliablle clIalim). Not ces to You shall be addressed to the system adriOnOstrator designated by You for Your rellevamt Services accr.alunt, and Iin the case of Ihill0Iing-rellated not ces, to the rellevant11)1i0Oling contact designated by You,. 11.3., Waiver of Jury Trial. Each party hereby waII'ves any right to jury Li all On connect on WIth any actio In or Ilitigat on IIon any way arlislirig out of or related to the 'Terms of Serviice. 12. GENERAL PROVISIONS 12.1, Compliance. Each party shiallOcomplly with the export laws and regullat ons of the United States and other appIllicabOe jurilsdlictic.)nslin providing and usling the Serviices. 1A/lith LA Il limiting the .foregc.)ling, (11) eac.;111 party represents that Otils not named on any U.S. government Oist of persons or entt es prohibII.ted .from receOvOng exports, and (II) You shall not permit Users to access or 'use ServOces ni vOollatIon of any U.S. export embargo, prord b Lan or restricton. 12.2. 11RelllationsIniIo of tlhe IParties. The parties are Ondependent. -11he 'Terms of Serviice do not create a jpartnershiip, .franchiise, joint venture„ agency, .fidudary or employment rellat onshOp between the part es,. 12.3. No 'll'hiird-11:3artyll3enefiiiciaries. -11There are no .third -party lbenet darOes to the Terms of Service. 12.4. 'aiver and Cumulative 11:lernediIes. No .faiiOure or delay by either party iin exerciisiing any right under 'the. Terris of ServOce shall constitute a waIIver of that oight. Other than as expresslly stated hereM, the remedOes provided hereOn are On addItIon to, and not excllusive of, any other remedOes of a party at law or in equity. 12.5. Severalleitity., Of any provision of .the Terms of SeNce s held by a court of competent junsdIction to be contrary to law, the provisOon shall0 be rpodIfied by the court and Onterpreted so as best to accomplish the objectives of the ongOnaO prc.)vOsOon to the .fulIllest extent permOtted lby0aw, and the remain ng jprovOsions of the 'Terms of :Service shallOremaIIn Iin effect, 126 Attorney 11:::'ees. You shall0 pay on demand all0 of Our reasoroablle attorney fees and other costs Oncurred by Us to co011ect any fees or charges due Us under .these 'Terms of Service folldwing Your breach of Secton 4.2 (OnvoOdng and Payment) 12.7.. Assignment.. INeither party may assOgn any of its nghts or oblligatOons Ineretinder, whether by operation of law or otherwise, wjthout .the prior widtten conserot of the other party (not to be LI In reasonably w[thheid). Notwi.thstandOng the foregoOng„ ether party may assOgn the Terms of ServOce n lits entirety, wIthout consent of the other party, to Ots Afflilate or On connection with airroerger, acco.JOsitIon, corporate reor,gadIzatIon, or sale of all or S 111 bsta ntiallOy all of its assets not Onvollying a direct competitor of the other jparty. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non -assigning party's election, termination of the Terms of Service upon written notice to the 23 DocuSign Envelope ID: 43C4B866-FBF2-4ECB-ACOB-CE3E891 E86B6 assigning party. In the event of such a termination, We shall not refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Terms of Service shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 12.8. IU!!!!ntiire Agreement. "flies(e "'ll"'euros of Seiniiice, l imc u.udung 2110 exhibits and addenda hereto, constitute the entire agreement between the pairtiies and supersede allll prior and ccintennlpoiraneous agreements, pirolpcsall s or irepiresentadiions, written or o°irall, concerning iits subject matter. Unlless we uniillateiralllly change these -Terms of Service and post a copy of the Terms of Seirviice as, changed on the Site, no inmodliflicatiioiru, amendment, or waiver of any Ipirovlislioin of these "Terms of Service slhallll be effective unless lin writing and either signed or accepted ellectironlicalilly by the party against whom the modification, amendment or waver its to be asserted. IH-Iloweveir, to the extent of any conflict or iincoinsiistency between the piroviilsiions iiun the body of tlh e.se Terms of Seinilice and any exllniilbiit or addendum hereto, the terms of such exhibit or addendum shall Ipirevalill. INVotwlitlhstaindling any (language: to the contrary therein, :no teirnns or conditions stated lin Youuir purchase order or other order documentation slhallll be lIncoirlpoirated liinto or form any part of tlhlis Agreement, and allll suclh terms or conditions slhallll be nu.ulll0 and void. 102.9. III:: Ilectroniic Signatures and Contracts,. Your use of tlhie, Seirviices iiimolluudes the ability to enter ii unto agreements and/or to make transactions ellectiromiiicalllly. You aclk:unovwlledgee that Your ellectroniiic suulbinrulisslioinis via the Site constitute Youuir agreement and intent to be bound by andtopay for such agreements and transactions. Your agreement and intent Io be bound by eellectironlic suulbinnlisslioins alplplllies to all :records ireellatiinq to all transactions You enter into on the Site, Iinc.11uudliung notices of caincelllla'ti. p. tracts, and alplplliicatiio�irus. Iln order to access and retain Your ellectironliic irecords, you :may be required iutiu'u, I oluu;u¢�^:�, contracts, to have ceirtalin hardware and software, wlhliclh are Your sone ireslpounslilblillliy, 12„1(1 Notice for Callliifcrurlia Users,. Under California Ciiviill Code Section 11789,3, California Site users are entitled to he follllowiiinq specific cons uuinn eir rights notice!: The Ccairnnlpllaiint Assistance t.Jniit of the II:::liiviisiioun of Consumer Services of the Calliifoirriia II:::Depairtinment of Consumer Affairs may be contacted iiun writing at 400 R Street, Suulite 1080, Sacramento, Calliifoirniia 958114, or by te1IeIplhoine at (916) 445-1254 or (800) 952-5210. 12„1 '1U b,U„„ Government IRiiglhts. Of You are, or are entering iintto these -Terms of Seirviice euro behalf of, any actn:;incy or instiruumentalllity of the Lllnlited States Government, the San/ices, liinclluudliung irellated software, teclhnollogy and docu.umentatlion, are "commercial computer software” and "commeirciiall computer software documentation”, and (pursuant to FAR 12.212 or IIDIFAlRS 227,7202, and their successors, as aIPIplllicalblle, use, reproduction and dliscllosuuire of the Services, including irellated software„ technology and documentation, are governed by the terms of these Terms of Seirvlice, 24