DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B
CARBYNE
Carbyne Universe Renewal Proposal
Chief Anthony Conrad
City of Murrieta Communications Center, CA
2 Towns Square, Murrieta, CA 92562
+1.951.696.3615 | [email protected]
October 17th, 2023
Carbyne Contact:
Casey Link
Regional Sales Manager - California
+1.310.913.1401 | [email protected]
Carbyne, Inc.
New York, NY 10001
www.carbyne.com
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B
CARBYNE
Quote
Customer and Carbyne acknowledge Customer has subscribed to Universe through Carbyne's partner, CentralSquare Technologies. Upon conclusion of the current subscription term, Customer's subscription will renew directly with Carbyne, as set forth in this Quote. The following pricing includes Universe licenses and any related services, if applicable. Unless otherwise specified, all fees are on an annual subscription basis. The renewal term of the subscription is 5 years.
Remote support for the term of subscription is included in the subscription fees.
Project Fees
Description 5 Year
Annual Subscription Fees Include: $39,000
• Universe Platform • 5 concurrent Licenses
Caller Location
• Carbyne Location
• Advanced Mobile
Location
• ANI / ALI Location
Video
Silent Chat
• Incident Conferencing
• Mapping Layers
Questionnaire
Voice Callback
• Auto-Detect
• Responder Connect
• Control Center
• Events History
• Video Board
• Essentials Services
• Customer Success
• Technical Support
City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 2
Carbyne Inc. | New York, NY 10001 | carbyne.com
Confidential
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B ° CARBYNE
Description 5 Year
Discount ($5,850)
Total Annual Subscription Fees per Year $33,150
The Customer may install the Software on up to 9 workstations. Customer's Authorized Users may use up to 5 of the 9 workstations at any given time to access and use the Solution (each license available for use referred to as a "Concurrent License"). In the event Customer's use of Concurrent Licenses exceeds the permitted number of Concurrent Licenses, Carbyne may charge additional fees or increase annual subscription fees for the next annual period. "Authorized User", "Software", and "Solution" as used in this paragraph are as defined in the Terms and Conditions.
Carbyne is offering a 15% discount applied to annual license subscription fees for the five year term.
Renewal Quote Summary
Annual Subscription
Fees
Year One Subscription Fees $33,150
Year Two Subscription Fees $33,150
Year Three Subscription Fees $33,150
Year Four Subscription Fees $33,150
Year Five Subscription Fees $33,150
Total Fees $165,750
City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 3
Carbyne Inc. | New York, NY 10001 | carbyne.com
Confidential
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B 09 CARBYNE
Payment Terms
Milestones
Upon Renewal Start Date (December 9, 2023) $35,150
The subscription renewal start date is December 9th, 2023 ("Start Date"), and the renewal term of the subscription is five years from the Start Date. Carbyne will invoice the annual subscription fees upon the renewal Start Date and each anniversary of the Start Date for the remainder of the three-year subscription term.
Additional optional features can be added at any time via a mutually agreed upon sales orders) and applicable subscription fees will be prorated from the date such feature is added through the end of the subscription term of this sales order.
Annual subscription fees may be subject to a fee adjustment on each anniversary date of the subscription start date to account for changes to the U.S. Department of Labor Consumer Price Index ("CPI"). Such fee adjustments are limited to the greater of 3% or the change in the CPI for the twelve month period preceding the anniversary date.
Support
Except as expressly described in this proposal, all hardware and third-party licenses and any other equipment, applications, and materials (collectively "Equipment") used with Carbyne products and services are Customer's responsibility. Carbyne's support obligations and warranties do not extend to such Equipment.
Upgrade Terms
In the event the customer upgrades the solution to APEX platform (Carbyne Cloud Call-Taking Solution) ("APEX"), unused subscription fees for the remainder of the subscription term may be taken into consideration toward the subscription to APEX. Upgrading to APEX may be subject to additional terms, including pricing, as mutually agreed upon in writing between the parties.
City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 4
Cardenial New York, NY 10001 | carbyno.com
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B * CARBYNE
Terms and Conditions
All mutually agreed upon Quotes and any use of Carbyne's products and services are subject to Carbyne's Terms and Conditions which can be found at https://carbyne.com/legal/ ("Terms and Conditions"). The current version of the Terms and Conditions are also attached below. By signing below, you agree to this Quote and the Terms and Conditions.
This Quote is valid for 90 days from the date of this Quote.
City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 5
Carbyne Inc. | New York, NY 10001 | carbyne.com
Confidential
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B ° CARBYNE
Signatures of Authority
This Quote and the Terms and Conditions are entered into by and between Carbyne Inc., with a principal place of business at 45 W 27th St, Floor 2, New York, NY 10001; and City of Murrieta Communications Center, CA, with a principal place of business at 2 Towns Square, Murrieta, CA 92562.
City of Murrieta Communications Center, Carbyne, Inc.
CA
Chief Anthony Conrad Rahul Sheth, CFO
+1.951.696.3615 | [email protected] +1 516.302.7434 | [email protected] -DocuSigned by:
Almons
ratual shette
-3E4DEFF80306458
Customer Signature Carbyne Signature
12/1/23 12/7/2023
Date Date
City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 6
arbyne Inc. | New York, NY 10001 | carbyne.co
onfidenti
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B ° CARBYNE
Carbyne Terms and Conditions
These Carbyne Terms and Conditions ("Agreement") govern your access to and use of the Solution offered by us or our Affiliates. By using the Solution, or upon your agreement to the Order Form for the Solution, you indicate you have read, understand and agree to the terms and conditions of this Agreement. If you use the Solution on behalf of › organization, you agree to this Agreement on behalf of that organization and you represent and warrant that yo ave the authority to do so. "Carbyne" "us" "we" or "our" refers to Carbyne Ltd. Carbyne, Inc. or Carbyneg Mexico S. de RL de CV, as specified on the Order Form, on behalf of itself and its Affiliates, and "Customer", "you" and "your" refers to the customer signing below.
DEFINITIONS
Affiliates means any other person that directly or indirectly License Designation refers to the permitted Software controls, or is controlled by or under common control with a installation and Solution use rights as follows:
party, with 'control' as applied to any party being the direct or (a) Primary License: you may install the Software on your indirect ownership of more than fifty percent (50%) of the workstations up to the number of licenses specified on the equity or voting interest in such party. Order Form and access and use the Solution from such workstations.
Authorized User means you or your employees, consultants, (b) Backup License: you may install the Software on your agents or contractors who are granted access to the Solution backup workstations up to the number of licenses specified on by you as part of their support of your internal business or the Order Form and access and use the Solution from such operations.
workstations only for backup purposes.
Confidential Information means information (whether oral, (c) Concurrent License: you may install the Software on your written or in some other tangible form) disclosed by one party workstations up to the number of licenses specified on the (the "disclosing party") to the other party (the "receiving Order Form, and you may access and use the Solution from party") that is obtained by the receiving party under or in only up to 50% of such workstations at any given time (unless connection with this Agreement and that is marked as otherwise indicated in the Order Form). confidential, is by its nature confidential or relates to the If no License Designation is provided on the Order Form, the business or affairs of the disclosing party. License Designation is considered a Primary License.
Documentation means the then-current standard product Order Form refers to the ordering document, such as a quote, sheet provided or made available by us with respect to the agreed to in writing between you and us which is subject to Solutions which describes its features and functionalities. this Agreement and describes the Solution (including the Documentation specifically excludes marketing and number of Software licenses, as applicable) and Support promotional materials and proposals. Services you wish to purchase from us and the applicable fees.
Intellectual Property Rights means any and all intellectual Platform means the hosted platform, software as a service property rights including patents, trademarks, design rights and/or other hosted product or service which we or our copyright, rights in databases, know-how, look-and-feel Affiliate(s) make available to you pursuant to this Agreement. domain names and all similar rights (whether or not registered The Platform excludes Software. or capable of registration and whether subsisting in any part of the world), together with any and all goodwill relating or Privacy Policy means the policy found at attached thereto, all derivative works and all extensions and https://carbyne.com/app-privacy-policyl, which describes how we use personal data you and your Authorized Users
renewals thereof. provide to us, including personal data which is shared with us in connection with your use of the Solutions.
City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 7
Carbyne Inc. | New York, NY 10001 | carbyne.com
Confidential
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B * CARBYNE
Solution means the Software and Platform which we or our (ii) a non-exclusive, non-transferable, non-sublicensable, Affiliate(s) make available to you pursuant to this Agreement. limited, revocable right to download, install and use the The Solution does not include Third Party Content. Software solely for purposes of exercising your rights to access the Platform as part of the Solution. In accordance with Software means the software in object code we provide to the specified License Designation, you may install the Software you for download under this Agreement which enables you and up to the number of licenses set forth in the Order Form, and your Authorized Users to access the Platform. Software
you may access and use the Solution for your internal business includes any upgrades we provide in accordance with the purposes only. If we provide you with hardware or equipment Support Terms and Service Level Agreement. Software
for your use with the Solution, unless otherwise agreed upon in excludes the Platform.
writing, upon expiration or termination of this Agreement, you Subscription Term means the duration of your subscription to are required to promptly return the hardware or equipment to use the Solution specified in the applicable Order Form. US. 12 You are responsible for obtaining and maintaining your Support Services means the maintenance and support own IT infrastructure and any ancillary services needed to use services provided in connection with your use of the Solution the Solution (such as internet, electricity, modems, servers and in accordance with the Support Terms and Service Level operating systems) and for the security of your systems, Agreement. including the Software installed on your systems, and will take commercially reasonable steps to exclude malware, viruses, Support Terms and Service Level Agreement (or SLA) means spyware and Trojans from your systems. You and your
the document provided by us describing the Support Services Authorized Users may use the Platform to send and receive provided by us, which includes our commitment regarding the messages, and you are solely responsible for any such
performance of the Platform, as updated and which is
messages and their content.
incorporated into this Agreement by this reference.
1.3 You may permit Authorized Users to access and use
Supplemental Terms means additional terms and conditions the Solution and Documentation provided you are responsible that apply to specified products and services or address for: (i) ensuring all Authorized Users use the Solution and specific requirements, as mutually agreed upon between the Documentation only for support of your internal business and parties in writing, which are made part of this Agreement. operations in accordance with this Agreement, and (ii) any unauthorized use of the Solution or any breach of this
Third Party Content means applications, materials, services, Agreement by an Authorized User. data and information, such as location, which are provided by a 1.4 As between you and us, we or our licensors retain all third party and is made available to you through your use of rights, title and interest, including Intellectual Property Rights, the Solutions.
in and to the Solution, Support Services, Professional Services Your Data means data (including personal data of callers), and Documentation, including specifications, materials and records, reports, recordings and files you or your Authorized user manuals provided by us. You agree not to copy, distribute, Users enter into the Solution, including the content of any modify or make derivative works of the Solution and Documentation or any other components or content, or to use message, video, or chat sent or received using the Platform, or any of our Intellectual Property Rights in any way not expressly which are otherwise generated by you or your Authorized Users through access or use of the Solution. Your Data includes permitted by us.
1.5 As part of your use of the Solution and Support
log information from your use of the Platform, such as log data Services, you may receive access to Third Party Content. You from your use of the Solution which is stored in Events History. are responsible for compliance, including compliance by your Your Data does not include Third Party Content.
Authorized Users, with any terms which apply to Third Party
1. USE AND LICENSE OF PRODUCTS Content. We make any Third Party Content available "AS IS"
1.1 Carbyne offers a Solution comprised of a cloud-based without support (unless otherwise specified), representations Platform accessed by Authorized Users through Software or warranties of any kind. We may suspend or terminate installed on an Authorized User's computer. During the Term, provision or availability of any Third Party Content at any time provided you are current in your payment obligations, we grant without any liability, and such suspension or termination will you: (i) the right to access the Platform through the Software; not be deemed a breach of this Agreement.
City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 8
Carbyne Inc. | New York, NY 10001 | carbyne.com
Confidential
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B • CARBYNE
4. Your Obligations and Restrictions
2. Orders and Fees You represent and warrant (i) that no third party Orders for the Solution, and any related services, are agreement prevents you from using the Solutions as placed when you agree in writing to an Order Form issued by contemplated under this Agreement; (ii) you will manage, us. Order Forms are subject to this Agreement. Unless secure and protect from unauthorized use or disclosure, and otherwise set forth in the applicable Order Form or keep confidential, all Software license keys and login Supplemental Terms, delivery of the Solution occurs when we credentials used by Authorized Users in connection with use of make the Software and Platform available to you. the Software and Platform.
2.2 You agree to pay the fees set forth on the applicable 4.2 You shall not, directly or indirectly: (i) attempt to Order Form. We may also invoice you for additional fees if you infiltrate, hack, reverse engineer, decompile or disassemble the exceed the permitted use. Fees are payable within 30 days of Solution or any part of the Solution for any purpose; (ii) the date of the invoice we issue. All payments not made when interfere with, modify, disrupt or disable features or due are subject to a late charge of 1.5% per month or the functionality of the Solution; (iii) remove or use the name, maximum amount allowed by law, compounded annually. You trademarks, trade-names, logos and other proprietary notices agree to pay fees by wire transfer or check to the account of Carbyne contained on or in Solution or Documentation; (iv) details provided by us in writing, or such other account as may copy any part or content of the Solution or of the be designated by us from time to time. Any fees specified on Documentation other than for your own internal business the Order Form are exclusive of applicable taxes. purposes (except as specifically permitted in this Agreement);
2.3 If you fail to pay any fees in accordance with the (v) use the Solution or any part thereof to build a competitive terms of this Agreement and the applicable Order Form, in product or service; (vi) sell, rent, lease, sublicense, distribute, addition to any other rights and remedies available to us, we redistribute, syndicate, create derivative works of, assign or may suspend or limit your access to the Platform until all otherwise transfer or provide access to, in whole or in part, the outstanding fees have been paid. Solution or any data accessed or created by the Solution to You agree to pay (and to reimburse us or our any third person (except to the extent expressly permitted in authorized agent, if applicable, on request if we are required to this Agreement); (vii) permit other individuals or entities to pay on your behalf) any applicable taxes, assessments and create links to the Platform or Solution, or "frame" or "mirror" duties of any kind and nature that is levied or imposed by any the Platform on any other server, or wireless or Internet-based governmental authority on your use of the Solution, or your device, or otherwise make available to a third party any token, receipt of support or other services, but not including taxes key, password or other login credentials to the Solution; (viii) based on our net income. If you are exempt from taxes, then transmit software viruses or any other computer code, files or you must provide a valid exemption certificate or other programs designed to interrupt, destroy or limit the government approved documentation to us. functionality of any computer software or hardware or telecommunications equipment into the Platform or Carbyne's
3. Professional Services network environment; (ix) use the Solution or Third Party You may request professional services, such as Content in violation of any applicable law or regulation or any installation and integration services, in connection with your rights of any person. You shall provide us with reasonable use of the Solution ("Professional Services"). A description of assistance to prevent the occurrence of any such activities by the Professional Services will be set forth in a Statement of any third parties.
Work ("SOW"), as mutually agreed in writing, which will be Furthermore, you shall not use the Solution: (i) for any subject to this Agreement and the Professional Services Terms illegal or fraudulent activity; (ii) to violate the rights of others; and Conditions. We will invoice any fees for Professional (ili) to threaten, incite, promote or actively encourage violence, Services, and such fees are payable, in accordance with the terrorism or other serious harm; (iv) for any content or activity applicable SOW. that promotes child sexual exploitation or abuse; (v) to violate
3.2 Any changes or modifications to Professional Services the security, integrity or availability of any user, network, will be as mutually agreed in writing in an amendment to the computer or communications system, software application, or SOW, including any associated changes to fees for Professional network or computing device; (vi) to distribute, publish, send Services. or facilitate the sending of unsolicited mass email or other messages, promotions, advertising or solicitations (or "spam").
City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 9
Carbyne Inc. | New York, NY 10001 | carbyne.com
Confidential
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B • CARBYNE
purposes except to carry out its rights and responsibilities
5. Platform Availability and Support under this Agreement; (iii) to keep the disclosing party's
5.1 You may request Support Services, as described in Confidential Information confidential using at least the same the Support Terms and Service Level Agreement. We will make degree of care it uses to protect its own confidential the Platform available to you in accordance with the SLA, information, which shall in any event not be less than a subject to operational requirements such as regularly reasonable degree of care. Notwithstanding the foregoing, the scheduled maintenance and downtime. In the event of any receiving party may disclose disclosing party's Confidential downtime of the Platform, your only remedy is as set forth in Information in its possession to the extent required by legal the SLA or to cease use of the Platform. Our obligations and process or applicable law, rule or regulation, provided prior to commitments in the Support Terms and Service Level such disclosure, if legally allowed, receiving party gives prompt Agreement only apply to the Solution and not to any other notice to the disclosing party to give disclosing party an hardware, equipment, software, products or services. opportunity to seek a protective order or other appropriate We may at any time: (i) introduce new or additional relief. products and services, (i) update the Solution to improve or Confidential Information excludes any information add features or functionalities to the Solution, or (iii) modify that: (i) is now or subsequently becomes generally available in the Solution to cease providing a feature or functionality. We the public domain through no fault or breach on the part of will make available to you any additional terms applicable to receiving party; (ii) the receiving party has in its possession new or enhanced products and services in advance. If we without any duty of confidentiality prior to disclosure of the materially degrade or remove a functionality from the Solution Confidential Information by the disclosing party; (ili) the that affects your use of the Solution, we will notify you as soon receiving party rightfully obtains from a third party who has as reasonably practicable and you may terminate this the right to transfer or disclose it, without default or breach of Agreement by notifying us in writing no later than thirty (30) any confidentiality obligations; (iv) the receiving party has days after the date of such notice. If you terminate this independently developed, without breach of this Agreement Agreement as permitted in this Section, the termination will be and/or without any use of or reference to the Confidential effective as of the date specified in the notice and you will Information. remain responsible for all fees incurred up to, and including, the effective date of such termination. We will refund any 7. Data, Data Privacy prepaid fees prorated from the effective date of the 71 Our Privacy Policy governs your rights arising from and termination, less any applicable discounts not earned as of the relating to data protection and privacy, including our practices effective date of the termination. Your continued use of the with respect to the collection, use and disclosure of certain Solution after the effective date of any change is deemed as data and/or personal information provided to us in connection acceptance of the modified Solution. We may also share with your use of the Solution. We may use contact information information about future enhancements or other changes to you provide to us to communicate with you about the Solution the Solution in advance, but you should not rely upon this and send you information we think may be of interest to you information when deciding to subscribe. Your decision to based on your marketing communication preferences. Our use subscribe should be based upon the functionality available at of your personal data remains subject to the Privacy Policy. the time you are making that decision and not on any potential The parties may enter into additional Supplemental Terms future functionality. governing data privacy, if necessary to comply with applicable privacy laws.
6. Confidentiality 7.2 You grant us a license to use, reproduce, transmit and The receiving party agrees (i) not to disclose the analyze Your Data, solely as required to provide the Solution to disclosing party's Confidential Information to any third parties you (including performance of operations by the Solution in other than to its directors, employees, advisors, or consultants accordance with Documentation and this Agreement), and to (collectively, its "Representatives") on a "need to know" basis provide Support Services and Professional Services. You retain and provided that such Representatives are bound by all rights, title and interest, including Intellectual Property confidentiality obligations not less restrictive than obligations Rights, in and to Your Data. You are solely responsible for all described in this Agreement; (ii) not to use or reproduce any Your Data. You represent and warrant that you own all Your of the disclosing party's Confidential Information for any Data, or you have all consents and rights that are necessary to City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 10
Carbyne Inc. | New York, NY 10001 | carbyne.com
Confidential
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B
CARBYNE
share Your Data with us and to grant us the rights to Your Data manner, we may, without notice and at our sole discretion, under these Terms. You also represent and warrant that neither without limiting any other remedy available to us, terminate or Your Data, nor your use and provision of Your Data through the suspend your right to use the Solution (or any feature, Solution, nor our use of Your Data to provide the Solution, functionality or content which we determine is being used in Support Services or Professional Services, will infringe, violation of this Agreement) or take any other action we misappropriate or violate a third party's intellectual property consider appropriate. rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. 9. Warranties; Disclaimer
7.3 Unless you provide us with written instruction 9.1 Each party warrants it has the full capacity and otherwise, we will retain Your Data which you submit to the authority and all necessary consents to enter into and perform Platform or which is recorded or stored in the course of your its respective obligations under this Agreement. use of the Solution, for a period of two years the period we 9.2 We warrant that the Solution provided to you under retain your data referred to as the "Data Retention Period"), this Agreement are in material compliance with the features provided that you acknowledge you are responsible for your and functionalities described in the applicable Documentation. compliance with any applicable data retention laws. Your Data If the Solution fails to perform as warranted in this Agreement, is automatically deleted after the Data Retention Period; to the extent permissible under applicable law, our sole however, at any time prior to such deletion, you may download obligation, and your exclusive remedy, will be (i) to use Your Data which has been stored on the Platform. You will be commercially reasonable efforts to repair or restore the solely responsible for the retention of such data for any non-conforming Solution so that it conforms to this warranty, applicable retention periods and for the purposes of any or (i) if such repair or restoration may not be, in our opinion, subsequent data requests. We will have no further obligation available within a reasonable time or with reasonable efforts, to with respect to Your Data after the Data Retention Period or terminate the non-conforming Solution and refund to you any after you download Your Data. prepaid amounts for such Solution on a pro-rata basis for the
7.4 We may create anonymized and aggregated statistical remainder of the Term. data from your usage of the Solution, which does not include 9.3 YOU ACKNOWLEDGE WE DO NOT PROVIDE your personal data. We may use such anonymized and TELEPHONE SERVICES, INTERCONNECTED VOIP SERVICES, aggregated data for our own purposes, such as to develop and OR 911 SERVICES. WE MAKE NO REPRESENTATION THAT WE improve the Solution, to develop new services or products, and ARE AN INTERCONNECTED VOIP SERVICE OR A COVERED 911 to identify usage trends. SERVICE PROVIDER, AND YOU MUST OBTAIN SUCH SERVICES FROM THE APPROPRIATE THIRD PARTY SERVICE PROVIDER.
8. Compliance EXCEPT AS EXPRESSLY PROVIDED IN THIS
8.1 You agree to use the Solution in accordance with all AGREEMENT, WE PROVIDE THE SOLUTION (INCLUDING ANY applicable laws, including any applicable privacy and export INFORMATION AND DATA MADE AVAILABLE THROUGH THE laws. You agree to comply with all applicable sanctions SOLUTION OR ANY FEATURE), SUPPORT SERVICES AND (including embargoes) and re-export control laws and DOCUMENTATION TO YOU ON AN "AS IS" BASIS, WITHOUT regulations including (to the extent applicable) those of the WARRANTIES OR REPRESENTATIONS OF ANY KIND. YOUR USE United States of America. We are not obligated to perform OF THE SOLUTION AND ANY INFORMATION OR DATA MADE under this Agreement if doing so is in violation of national or AVAILABLE TO YOU IS AT YOUR DISCRETION. WE EXPRESSLY international foreign trade or customs requirements or any DISCLAIM ALL WARRANTIES, WHETHER STATUTORY, embargoes or other sanctions. EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT
8.2 You agree to report any known or suspected misuse of LIMITATION WARRANTIES MERCHANTABILITY, the Solution to us. We have the right to monitor your use of the NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, Solution (but not Your Data) to verify your compliance with this OR ACCURACY. WE FURTHER DISCLAIM ANY WARRANTY Agreement at any time. If your use of the Solution exceeds the THAT THE OPERATION OF THE PLATFORM OR ANY RELATED License Designation, we will provide you with notice of any SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, FAULT additional fees or increases in the annual subscription fee for TOLERANT, FAIL SAFE, FREE OF HARMFUL COMPONENTS, OR the next annual period. Furthermore, if we reasonably believe THAT ANY CONTENT, INCLUDING YOUR DATA, WILL BE that you are using the Solution in an unauthorized or improper SECURE OR NOT OTHERWISE LOST OR DAMAGED.
City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 11
Carbyne Inc. | New York, NY 10001 | carbyne.com
Confidential
DocuSign Envelope ID: 4598BA07-A8FE-4BB5-BDB2-89610BCE8A3B
CARBYNE
11.2 SUBJECT TO SECTION 11.1, EACH PARTY'S MAXIMUM
10. Our Indemnity; Customer Responsibilities AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING
10.1 Provided you comply with Section 10.2 below, we will TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT defend you from any claims brought by a third party alleging OF FEES PAID OR PAYABLE BY YOU TO US DURING THE 12 your use of the Solution in accordance with this Agreement MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. infringes their Intellectual Property Rights ("IP Claim"). We will 11.3 SUBJECT TO SECTION 11.1, TO THE MAXIMUM EXTENT indemnify you from any amount finally awarded against you by PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE a court of competent jurisdiction or amount which is agreed LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA upon in settlement as a result of the IP Claim. This indemnity (INCLUDING YOUR DATA), COST OF PROCUREMENT OF Will not apply to the extent the underlying allegation arises SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, from: (i) your breach of this Agreement or your negligence, or INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, use of the Solution outside the scope of this Agreement; (i) HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, combination or use of the Solution with third party equipment, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), hardware, materials, components or applications; or (iii) use of STATUTORY OR OTHERWISE, WHETHER OR NOT SUCH PARTY the Solution after you become aware of the IP Claim (unless we HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. agree you can continue to use it). Our entire obligation and liability in connection with any allegation that a person's 12. Term; Termination intellectual property rights have been infringed are set forth in 12.1 The Subscription Term and start date are set forth on this Section 10.1. the Order Form. The subscription shall automatically renew for To receive the benefit of Section 10.1, you shall (i) additional 12 month periods (each a "Renewal Term") after the promptly notify us in writing of any IP Claim for which initial Subscription Term unless either party provides written indemnity is claimed, provided that failure to so notify will not notice of its desire to terminate to the other party at least 30 relieve us of our obligation except to the extent it is prejudiced days prior to the expiration of the then applicable term, unless by your delay in providing us with such notice, and (ii) allow us otherwise set forth in the Order Form or unless the Agreement to solely control the investigation, defense and settlement of is terminated in accordance with the terms of this Section 12. the IP Claim, (iii) provide us with reasonable cooperation and Either party may terminate an Order Form or this assistance in defending such claim (at our cost), and (iv) Agreement immediately by giving written notice to the other immediately cease use of the Software and Platform which is party if: (i) the other party breaches a material provision of this subject to the IP Claim. Agreement and fails to remedy the breach (if capable of
10.3 You are responsible for any claims, suits or remedy) within thirty (30) days after receipt of written notice; proceedings arising out of or relating to your (or your (ii) the other party breaches any of its confidentiality Authorized Users'): (i) violation of any third party rights obligations; (iii) the other party is judged bankrupt or insolvent, (including third party Intellectual Property Rights or privacy makes a general assignment for the benefit of its creditors, a rights); (ii) use of the Solution and Documentation in breach of trustee or receiver is appointed for such party, or any petition the terms of this Agreement; (iii) the operation and your by or on behalf of such party is filed under any bankruptcy or combination or use of the Solution with Your Data and third similar laws. Additionally, we may also terminate this party equipment, software, applications, materials and/or Agreement if we reasonably believe you intend to undergo any services; (iv) Your Data; and (v) breach of Section 4 (Your of the foregoing or reasonably believe you are, or will be, Obligations). unable to provide your services which require use of the Solution. Outstanding Order Forms are automatically
11. Limitation of Liability terminated upon termination of this Agreement.
11.1 NOTHING IN THIS AGREEMENT LIMITS A PARTY'S Upon expiration of the Subscription Term or LIABILITY FOR WILLFUL MISCONDUCT OR FRAUD, BREACH OF termination of the Order Form, any outstanding fees shall ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, become due and payable, and you will immediately cease use ITS RESPECTIVE OBLIGATIONS UNDER SECTION 10 (INDEMNITY; of the affected Solution. In the event of termination of this RESPONSIBILITIES), OR ANY LIABILITY WHICH CANNOT BE Agreement, you will also return or destroy, at our option, all EXCLUDED UNDER APPLICABLE LAW. Confidential Information in your possession (and certify in writing you have done so). Sections 1.4, 1.5, 6, 7, 9.3, 9.4, 10,11,12.3 City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 12
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and 14 shall survive any expiration or termination of this 14.3 All notices shall be in writing and given in person, by Agreement. an overnight courier service which provides tracking information to evidence delivery, by registered mail, or by email
13. Betas; Evaluations with confirmation of receipt, addressed to the address or We may enable you to access and use the Software and/or email, as applicable, set forth in this Agreement or to such Platform for beta-testing, evaluation, preview or any other free other address or email as a party may designate to the other in of charge purposes (collectively, "Free of Charge Services"). If accordance with the notice procedure. All notices delivered in we do so, you may use Free of Charge Services only for the person or by courier service are deemed to have been given purpose of evaluating their functionality and to provide upon delivery, notices sent by registered mail are deemed feedback to us (which we may use freely). You may not use given three calendar days after posting, and notices sent by Free of Charge Services to process any personal data, and any are deemed given when received and opened as production use is at your own risk. Any use of the Free of validated by the read receipt.
Charge Services by you or by your Authorized Users is We may, with your prior approval, reference you as a provided "AS IS" WITHOUT WARRANTY OF ANY KIND AND "AS customer or user of our products in our publicity or general AVAILABLE". The SLA and any security standards in this marketing communications and activities.
Agreement do not apply to Free of Charge Services. We may, 14.5 This Agreement constitutes the entire agreement at our discretion and without notice, change, limit or between you and us and supersedes any previous agreements discontinue any Free of Charge Services, including your access or representations, either oral or written, including any and use. Our entire liability for all claims, damages and additional or preprinted terms on purchase orders, with indemnities arising out or related to your use of Free of Charge respect to the subject matter of this Agreement. All Services will not exceed in the aggregate USD $1,000.00 (or amendments will be made only in writing. We may update, equivalent in local currency). We have no obligation to make amend or modify this Agreement from time to time as required Free of Charge Services generally available. to comply with applicable law or as required by our licensors or vendors with thirty (30) days prior written notice. If there is
14. General a conflict between this Agreement, Supplemental Terms and The Solution is a commercial product that was an Order Form, the Order Form, then the Supplemental Terms, developed exclusively at private expense. If the Solution is will take precedence to the extent of such conflict and only acquired directly or indirectly for use by the U.S. Government, with respect to the applicable Solution, Support Services and then the parties agree that the Solution is considered any Professional Services under such Order Form and 'Commercial Items' and 'Commercial Computer Software' or Supplemental Terms. If any part of this Agreement is declared 'Computer Software Documentation', as defined in 48 C.F.R. invalid or unenforceable for any reason, such part shall be §2.101 and 48 C.F.R. §252.227-7014(a)(1) and (a)(5), as deemed modified to the extent necessary to make it valid and applicable. The Solution may only be used under the terms of operative and in a manner most closely representing the this Agreement as required by 48 C.F.R. §12.212 and 48 C.F.R. intention of the parties. Any failure by a party to insist upon or §227.7202. The U.S. Government will only have the rights set enforce performance by the other of any of the provisions of forth in this Agreement, which supersedes any conflicting this Agreement or to exercise any rights or remedies under terms or conditions in any government order document, this Agreement or otherwise by law will not be construed as a except for provisions which are contrary to applicable waiver or relinquishment of any right to assert or rely upon the mandatory federal laws. Unless otherwise expressly required, provision, right or remedy in that or any other instance. If this we will not be required to obtain a security clearance or Agreement is provided in response to a request for bid or otherwise be involved in accessing U.S. Government classified request for proposal ("RFP"), and such RFP includes a information. provision requiring that no conflicting terms shall apply,
14.2 Neither party will be liable for events beyond its then such RFP terms shall apply only to the extent of any reasonable control or for delay or failure to perform any conflict with this Agreement. obligations under this Agreement (except with respect to any You may transfer or assign your rights or obligations payment obligations) due to any cause beyond its reasonable under this Agreement to a third party only with prior written control. The delayed party will promptly notify the other party consent from us. Any purported assignment contrary to this of any such event. section shall be void. We may assign this Agreement to any of City of Murrieta Communications Center, CA October 17, 2023 Carbyne Universe Renewal Proposal Page 13
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our Affiliates or to a successor entity in the event of a merger or acquisition without your prior written consent, and we will provide you with written notice of such assignment.
Some of our licensors and suppliers may be
third-party beneficiaries under this Agreement.
If you provide any ideas or feedback regarding any
products and services offered by Carbyne (including Free of Charge Services), such as suggestions for changes or
enhancements, support requests (including any related
information), and error corrections (collectively "Feedback"), we may use Feedback freely.
If you are entering into this Agreement with Carbyne,
Inc. this Agreement is governed by the laws of the State of New York, without regard to its conflict of law principles, and the parties agree to submit to the exclusive jurisdiction of courts in New York, New York. If you are entering into this Agreement with Carbyne Ltd. or Carbyne911 Mexico S. de RL de CV, this Agreement is governed by the laws of Israel, without regard to its conflict of law principles, and the parties agree to submit to the exclusive jurisdiction of courts in Israel. Notwithstanding the foregoing, if you are a public entity and your state law requires you to contract under your state law, then your state law shall apply to this Agreement.
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Carbyne Inc. | New York, NY 10001 | carbyne.com
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