September 2022 Form
RENEWAL ORDER FORM
Fifth Asset, Inc., d/ b/ a DebtBook (“ DebtBook”) is pleased to provide Redondo Beach, CA (“ Customer”) with the Services subject to the terms established in this Order Form, including DebtBook’ s Price Quote attached as Exhibit A and incorporated herein by this reference ( the “DebtBook Quote”).
On and after the Effective Date listed below, this Order Form supersedes and replaces the Order Form previously executed and delivered by DebtBook and the Customer ( the “Original Order Form”). This Order Form may be modified or replaced from time to time by a subsequent Order Form duly executed and delivered by each party in connection with any Renewal Term.
The Services are subject to DebtBook’ s General Terms & Conditions, which were provided to Customer in connection with the execution and delivery of the Original Order Form ( the “ Terms & Conditions”), and the Incorporated Documents referenced in the Terms & Conditions. Each capitalized term used but not defined in this Order Form has the meaning given in the Terms & Conditions.
Order Form Details
Effective Date: 5/ 17/ 2023 Billing Frequency: Annually Initial Term End Date: 5/ 16/ 2024 Payment Terms: Net 30 Initial Pricing Tier: Tier 3 See the DebtBook Quote for more details Services. Subject to the terms described in this Order Form, DebtBook will grant Customer access to the Application Services during the Initial Term described above and, if applicable, each subsequent Renewal Term.
As part of the onboarding process, DebtBook will provide Customer with the Onboarding Services and, if requested, the Implementation Services. DebtBook will also provide Customer with the Support Services throughout the Term.
Fees. DebtBook will charge Customer ( 1) a recurring Subscription Fee for Customer’ s access to the Onboarding Services, the Application Services, and the Support Services and (2) if applicable, an Implementation Fee for the Implementation Services, in each case as set forth in the DebtBook Quote and this Order Form.
Generally, DebtBook sets Fees using its standard pricing schedule for the Services based on the Customer’ s applicable Pricing Tier, which is based on the total number and amount of the Customer’ s Application Obligations at the time of determination. DebtBook’ s current pricing schedule and Pricing Tiers are set forth in the DebtBook Quote, which will remain in effect with respect to Customer throughout the Initial Term.
The Initial Pricing Tier indicated above is based on Customer’ s good faith estimate of its Application Obligations as of the Effective Date. The Subscription Fees to be charged as provided in the DebtBook Quote will not change during the Initial Term, regardless of any change to the actual number or amount of the Customer’ s Application Obligations during the Initial Term.
Implementation Services. At Customer’ s request, DebtBook will provide Implementation Services to Customer for a 12-month period, with each such period beginning, if applicable, on the Effective Date and on each anniversary of the Effective Date thereafter ( each, an “ Implementation Period”). Customer may request Implementation Services at any time during the Term.
If Implementation Services are requested for any Implementation Period, then the Implementation Fee will be based on the aggregate number and amount of the Customer’ s Application Obligations at the beginning of such Implementation Period. The Implementation Fee will be due and payable at the later of (1) the beginning of the applicable Implementation Period or (2) the date on which Customer requests Implementation Services for such Implementation Period, and will entitle Customer, in each case, to Implementation Services at the applicable Pricing Tier through the end of the Implementation Period then in effect.
For any Implementation Period, if the total number or amount of Customer’ s Application Obligations implemented causes Customer’ s applicable Pricing Tier to increase, then DebtBook will charge Customer an additional Implementation Fee such that the total Implementation Fee charged for such Implementation Period equals the Implementation Fee applicable to the increased Pricing Tier as set forth in the DebtBook Quote.
September 2022 Form
Billing. Unless otherwise provided in the Order Form or the Customer Terms, all Fees will be due and payable in advance on the terms indicated above, and each invoice will be emailed to the Customer’ s billing contact indicated below.
Renewal Term. The Agreement is subject to renewal on the terms set forth in the Terms & Conditions. The Pricing Tier applicable for each Renewal Term will be determined based on the aggregate number and amount of the Customer’ s Application Obligations at the time of renewal.
Termination. The Agreement is subject to early termination on the terms set forth in the Terms & Conditions.
Entire Agreement. By executing this Order Form, each party agrees to be bound by this Order Form, the Terms Conditions, the Incorporated Documents, and any Customer Terms.
This Order Form, the Customer Terms, the Terms & Conditions, and the Incorporated Documents constitute the complete “ Agreement” between the parties and supersede any prior discussion or representations regarding the Customer’ s purchase and use of the Services.
Intellectual Property. Except for the limited rights and licenses expressly granted to Customer under this Order Form and the Terms & Conditions, nothing in the Agreement grants to Customer or any third party any intellectual property rights or other right, title, or interest in or to the DebtBook IP.
Important Disclaimers & Limitations. EXCEPT FOR THE WARRANTIES SET FORTH IN THE TERMS & CONDITIONS, DEBTBOOK IP IS PROVIDED “ AS IS,” AND DEBTBOOK DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES’ LIABILITIES UNDER THE AGREEMENT ARE LIMITED AS SET FORTH IN THE TERMS & CONDITIONS.
Notices. Any Notice delivered under the Agreement will be delivered to the address below each party’ s signature below.
September 2022 Form
Authority; Execution. Each of the undersigned represents that they are authorized to (1) execute and deliver this Order Form on behalf of their respective party and ( 2) bind their respective party to the terms of the Agreement. This Order Form and any other documents executed and delivered in connection with the Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. To the extent permitted by applicable law, electronic signatures may be used for the purpose of executing the Order Form by email or other electronic means. Any document delivered electronically and accepted is deemed to be “in writing” to the same extent and with the same effect as if the document had been signed manually.
FIFTH ASSET, INC., D/ B/ A DEBTBOOK
By:
Name: Tyler Traudt
Title: CEO
Redondo Beach, CA
By:
Name:
Title:
Notice Address
PO Box 667950
Charlotte, NC 28266
Attention: Chief Executive Officer
account-management@debtbook. com
Notice Address
City of Redondo Beach
Financial Services
415 Diamond St, Door 1
Redondo Beach, CA 90277
Attention: Wendy Collazo, Finance
Director wendy.collazo@redondo. org
Billing Contact
Same as above
Mayor
William C. Brand
ATTEST:
Eleanor Manzano, City Clerk
APPROVED AS TO FORM:
Michael W. Webb, City Attorney
Diane Strickfaden,
Risk Manager
September 2022 Form
Exhibit A
DebtBook Quote
See attached.]
DebtBook Quote
Redondo Beach, CA
415 Diamond Street
Redondo Beach, CA 90277
Wendy Collazo
Finance Director
[email protected]
310) 372-1171
Prepared By:
DebtBook
Tyler Hunt
Customer Success Manager
[email protected]
Notice Address:
PO Box 667950
Charlotte, NC 28266
Products & Services
Description Qty Unit Price Discount Total
Implementation Charge: Tier 3
This represents the cost of our Implementation
process for your organization.
1 $ 3,000 $ 3,000 $ 0
Year 1 Cost
Subscription Charge: Tier 3
This represents the annual subscription charge your
organization pays for access to the DebtBook platform.
There are no additional charges - this covers unlimited users, external sharing, support and training.
1 $ 20,000
Year 1
7,000 $ 13,000
Year 1 Cost
Total 1 Year Renewal Cost:$ 13,000
1 ORDER FORM
Fifth Asset, Inc., d/ b/ a DebtBook(" DebtBook") is pleased to provide City of Redondo Beach, CA(" Customer") with the Services subject to the terms established in this Order Form. This Order Form may be modified or replaced from time to time by a subsequent Order Form duly executed and delivered by each party In connection with any Renewal Term.
The Services are subject to DebtBook' s General Terms& Conditions ( the " Terms& Conditions"), which have been provided to Customer, and the Incorporated Documents referenced in the Terms & Conditions. Each capitalized term used but not defined in this Order Form has the meaning given in the Terms& Conditions.
Order Details
Effective Date: 5/ 17/ 2022
Initial Term End Date: 5/ 16/ 2023
Initial Pricing Tier:$ 8,775( Tier 2)
Billing Frequency: Annually
Payment Terms: Net 30
Services. Subject to the terms described in this Order Form, DebtBook will grant Customer access to the Application Services during the Initial Term described above and, if applicable, each subsequent Renewal Term.
As part of the initial implementation and onboarding process, DebtBook will provide Customer with the Implementation Services. DebtBook will also provide Customer with the Support Services throughout the Term.
Fees. DebtBook will charge Customer( 1.) a one-time Implementation Fee for Its initial Implementation Services and ( 2) a recurring Subscription Fee for Customer' s ongoing access to the Application Services and Support Services.
Generally, DebtBook sets Fees using Its standard pricing schedule for the Services based on the Customer' s applicable Pricing Tier, which is based on the total number and amount of debt and lease obligations outstanding at the time of determination. The Initial Pricing Tier indicated above is based on Customer's good faith estimate of Its total number and amount of debt and lease obligations currently outstanding and will not change during the Initial Term, regardless of( 1) the actual number or amount of the Customer' s debt and lease obligations implemented as part of the Implementation Services or( 2) any changes during the initial Term to Customer' s debt and lease obligations.
Billing. Unless otherwise provided in the Customer Terms, all Fees will be due and payable in advance on the terms indicated above, and each invoice will be emailed to the Customer' s billing contact indicated below.
Renewal Term. Notwithstanding anything in Section 10( a) of the Terms & Conditions to the contrary, the Agreement may only be renewed for successive 12-month Renewal Terms at the discretion of the Customer on terms mutually agreed upon in a written agreement executed by both parties. The pricing tier applicable for each Renewal Term will be determined based on the aggregate number and amount of the Customer' s debt and lease obligations outstanding at the time of renewal.
Termination. In addition to the termination events described in Section 10( b) of the Terms & Conditions, Customer may terminate the Agreement for any reason or for no reason by giving DebtBook 30 days' prior written notice. If Customer terminates the Agreement pursuant to this paragraph, Customer shall not be entitled to a refund of any Fees paid prior to such termination date. Except as provided in this paragraph, the Agreement is otherwise subject to early termination on the terms set forth in the Terms& Conditions.
Additional Customer Terms. The terms attached to this Order Form as Exhibit A constitute" Customer Terms" for the purposes of the Agreement and are incorporated into this Order Form by this reference.
Entire Agreement By executing this Order Form, each party agrees to be bound by( 1) this Order Form,( 2) the Terms& Conditions,( 3) the Incorporated Documents, and( 4) any Customer Terms.
This Order Form, the Customer Terms, the Terms& Conditions, and the incorporated Documents constitute the complete" Agreement" between the parties and supersede any prior discussion or representations regarding the Customer's purchase and use of the Services.
Intellectual Property. Except for the limited rights and licenses expressly granted to Customer under this Order Form and the Terms & Conditions, nothing In the Agreement grants to Customer or any third party any intellectual property rights or other right, title, or interest in or to the DebtBook IP.
Important Disclaimers & Limitations. EXCEPT FOR THE WARRANTIES SET FORTH IN THE TERMS & CONDITIONS, DEBTBOOK IP IS PROVIDED " AS IS," AND DEBTBOOK DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IN ADDITION, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES' LIABILITIES UNDER THE AGREEMENT ARE LIMITED AS SET FORTH IN THE TERMS& CONDITIONS.
Public Records. DebtBook expressly agrees and understands that Customer' s obligations under Section 5 of the Terms & Conditions are subject in all respects to, and only enforceable to the extent permitted by, the California Public Records Act, as amended, and any similar federal laws. In addition, DebtBook understands the Agreement, including this Order Form, the Terms& Conditions, and the Incorporated Documents, shall not be deemed Confidential Information, and Customer may post the Agreement, Order Form, Terms& Conditions, and Incorporated Documents as part of Its contract approval process.
Late Fees. Notwithstanding anything in Section 4( a) of the Terms& Conditions to the contrary, the Customer shall not be charged any Interest with respect to any past due Invoice.
Notices. Any Notice delivered under the Agreement will be delivered to the address below each party' s signature below.
Signatures Begin on Following Pagel
Authority; Execution. Each of the undersigned represents that they are authorized to ( 1) execute and deliver this Order Form on behalf of their respective party and ( 2) bind their respective party to the terms of the Agreement. This Order Form and any other documents executed and delivered in connection with the Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. To the extent permitted by applicable law, electronic signatures may be used for the purpose of executing the Order Form by email or other electronic means. Any document delivered electronically and accepted is deemed to be in writing" to the same extent and with the same effect as if the document had been signed manually.
FiFTH ASSET, INC., D/ B/ A DEBTBOOK CITY OF REDONDO BEACH, CA By: By:
Name: Tyler Traudt Name: William C. Brand
Title: CEO Title: Mayor
Notice Address Notice Address
Fifth Asset, Inc. City of Redondo Beach
300 W. Summit Avenue, Suite 110 Financial Services
Charlotte, NC 28203 415 Diamond St., Door 1
Attention: Chief Executive Officer Redondo Beach, CA 90277 tyler.traudt@debtbook. com Attention: Jennifer Paul, Finance Director jennifer.paul@redondo. org
Billing contact
Same as above
ATTEST: I// GKle K2Cii , CER( E,Q
Eleanorono. CityI(_119i / `
APPROVED AS TO FORM:
Michael W. Webb, City Attorney
Exhibit A
Additional Customer Terms
Without limiting DebtBook' s indemnification obligations under this Agreement, DebtBook shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by DebtBook, its agents, representatives, or employees.
Minimum Scone of insurance
Coverage shall be at least as broad as:
insurance Services Office Commercial General Liability coverage( occurrence form CG 0001).
Insurance Services Office form number CA 0001( Ed. 1/ 87) covering Automobile Liability, code 1( any auto) Workers' Compensation insurance as required by the State of California. Employer' s Liability insurance.
Errors and Omissions liability insurance appropriate to DebtBook' s industry. Architects' and Engineers' coverage is to be endorsed to include contractual liability.
Minimum Limits of Insurance
DebtBook shall maintain limits no less than:
General Liability:$ 1, 000, 000 per occurrence for bodily injury, personal Injury and property damage.
The general aggregate limit shall apply separately to this project/ location.
Automobile Liability: $ 1, 000, 000 per accident for bodily injury and property damage. Employer' s Liability:$ 1,000,000 per accident for bodily injury or disease.
Errors and Omissions liability:$ 1, 000,000 per occurrence.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by Customer. At the option of Customer, either: ( 1) the insurer shall reduce or eliminate such deductibles or self-Insured retentions as respects Customer, Its officers, officials, employees and volunteers or( 2) DebtBook shall provide a financial guarantee satisfactory to Customer guaranteeing payment of losses and related investigations, claim administration and defense expenses.
Other Insurance Provisions
The provisions: general liability and automobile liability policies are to contain, or be endorsed to contain, the following Additional Insured Endorsement:
General Liability: The Customer, Its officers, elected and appointed officials, employees, and volunteers are to be covered as insureds with respect to liability arising out of work performed by or on behalf of DebtBook. General liability coverage can be provided In the form of an endorsement to DebtBook's insurance, or as a separate owner' s policy.
Automobile Liability: The Customer, its officers, elected and appointed officials, employees, and volunteers are to be covered as Insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of DebtBook.
For any claims related to this project, DebtBook' s insurance coverage shall be primary insurance as respects Customer, its officers, elected and appointed officials, employees, and volunteers. Any insurance or self-Insurance maintained by Customer, its officers, officials, employees, or volunteers shall be excess of DebtBook' s insurance and shall not contribute with it.
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty ( 30) days prior written notice by certified mail, return receipt requested, has been given to Customer.
Each insurance policy shall be endorsed to state that the Inclusion of more than one insured shall not operate to Impair the rights of one insured against another insured, and the coverages afforded shall apply as though separate policies had been Issued to each Insured.
Errors and Omissions policy, if written on a claims made basis, shall be maintained by DebtBook for a period of one year after the completion of the project.
Each Insurance policy shall be in effect prior to awarding the contract and each insurance policy or a successor policy shall be in effect for the duration of the project. The maintenance of proper insurance coverage is a material element of the contract and failure to maintain or renew coverage or to provide evidence of renewal may be treated by Customer as a material breach of contract on DebtBook' s part.
Acceptability of Insurers
Insurance Is to be placed with insurers with a current A.M. Best's rating of no less than A:VII and which are authorized to transact insurance business in the State of California by the Department of Insurance.
Verification of Coverage
DebtBook shall furnish Customer with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on Customer authorized forms provided with the contract specifications. Standard ISO forms which shall be subject to Customer approval and amended to conform to Customer' s requirements may be acceptable in lieu of Customer authorized forms. All certificates and endorsements are to be received and approved by Customer before the contract is awarded. The Customer reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
Subcontractors
DebtBook shall include all subcontractors as insured under Its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
Risk Manaoement
DebtBook acknowledges that Insurance underwriting standards and practices are subject to change, and Customer reserves the right to make changes to these provisions in the reasonable discretion of Its Risk Manager.
DEBTBOOK' S GENERAL TERMS& CONDMONS
Please carefully read these General Terms and Conditions ( these " Terms & Conditions") which govern the Customer' s access and use of the Services described in the Order Form.
By executing the Order Form and using any of the Services, the Customer agrees to be bound by these Terms.
1. Definitions.
Aggregated Statistics" means data and Information related to Customer' s use of the Services that is used by DebtBook In an aggregate and anonymized manner, including statistical and performance information related to the Services.
Agreement" means, collectively and to the extent applicable, the Order Form, any Customer Terms, these Terms& Conditions, and the Incorporated Documents, in each case as may be amended from time to time in accordance with their terms.
Application Services" means DebtBook' s debt and lease management software- as-a- service application.
Appropriate Security Measures" means, collectively, commercially reasonable technical and physical controls and safeguards Intended to protect Customer Data against destruction, loss, unauthorized disclosure, or unauthorized access by employees or contractors employed by DebtBook.
Authorized User" means any of Customer' s employees, consultants, contractors, or agents who are authorized by Customer to access and use any of the Services.
Customer" means the person or entity purchasing the Services as identified In the Order Form.
Customer Data" means, other than Aggregated Statistics, Information, data, and other content, in any form or medium, that is transmitted by or on behalf of Customer or an Authorized User through the Services.
Customer Terms" means any terms or agreements provided by Customer and applicable to the Services but only to the extent such terms or agreements are expressly referenced and incorporated into the Order Form. For the avoidance of doubt, " Customer Terms" does not Include any purchase order or similar document generated by Customer unless such document Is expressly referenced and Incorporated into the Order Form.
DebtBook" means Fifth Asset, Inc., d/ b/ a DebtBook, a Delaware corporation, and its permitted successor and assigns.
DebtBook IP" means( 1) the Services, Documentation, and Feedback, including all Ideas, concepts, discoveries, strategies, analyses, research, developments, Improvements, data, materials, products, documents, works of authorship, processes, procedures, designs, techniques, inventions, and other Intellectual property, whether or not patentable or copyrightable, and all embodiments and derivative works of each of the foregoing in any form and media, that are developed, generated or produced by DebtBook arising from or related to the Services, Documentation, or Feedback; and( 2) any intellectual property provided to Customer or any Authorized User In connection with the foregoing other than Customer Data.
Documentation" means DebtBook' s end user documentation and content, regardless of media, relating to the Services made available from time to time on DebtBook' s website at https:// support.debtbook. corn Feedback" means any comments, questions, suggestions, or similar feedback transmitted in any manner to DebtBook, including suggestions for new features, functionality, or changes to the DebtBook IP.
Governing State" means, If Customer is a governmental entity, the state In which Customer is located. Otherwise," Governing State" means the State of North Carolina.
Implementation Services" means onboarding and implementation services, including entry of relevant data, as necessary to make the Application Services available to the Customer during the Initial Term. incorporated Documents" means, collectively, the Privacy Policy, the Documentation, the SLA, and the Usage Policy, as each may be updated from time to time in accordance with their terms. The Incorporated Documents, as amended, are incorporated into these Terms& Conditions by this reference. Current versions of the Incorporated Documents are available at httos:// www.debtbook.com/ legal.
Initial Term" means the Initial Term of the Services beginning on the Effective Date and ending on the Initial Term End Date, as established in the Order Form.
Order Form" means( 1) the order document executed and delivered by DebtBook and Customer for the Initial Term or( 2) to the extent applicable, any subsequent order document executed and delivered by DebtBook and Customer for any Renewal Term, Including, in each case, any applicable Order Form Supplement.
Order Form Supplement" means any Order Form Supplement expressly referenced and incorporated by reference into any Order Form.
Privacy Policy" means, collectively, DebtBook' s privacy policy and any similar data policies generally applicable to all users of the Application Services, In each case as posted to DebtBook' s website and as updated from time to time in accordance with their terms.
Renewal Term" means any renewal term established in accordance with the terms of the Agreement.
Services" means, collectively, the Application Services, the Implementation Services, and the Support Services.
SLA" means the Service Level Addendum generally applicable to all users of the Application Services, as posted to DebtBook' s website and as updated from time to time in accordance with its terms.
Support Services" means the general maintenance services and technical support provided In connection with the Application, as more particularly described In the SLA.
Term" means, collectively, the initial Term and, if applicable, each successive Renewal Term.
Usage Policy" means, collectively, DebtBook' s acceptable usage policy, any end user licensing agreement, or any similar policy generally applicable to all end users accessing the Application Services, in each case as posted to Debtsook' s website and as updated from time to time In accordance with its terms.
Each capitalized term used but not otherwise defined in these Terms& Conditions has the meaning given to such term in the applicable Order Form.
2. Access and Use.
a) Provision of Access. Subject to the terms and conditions of the Agreement, DebtBook grants Customer and Customer' s Authorized Users a non- exclusive, non- transferable ( except as permitted by these Terms) right to access and use the Application Services during the Term, solely for Customer' s internal use and for the Authorized Users' use in accordance with the Agreement. DebtBook will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Application Services. b) Documentation License. Subject to the terms and conditions of the Agreement, DebtBook grants to Customer and Customer' s Authorized Users a non- exclusive, non-sublicensable, non-transferable except as permitted by these Terms) license to use the Documentation during the Term solely for Customer' s and its Authorized User' s internal business purposes in connection with its use of the Services. c) Customer Responsibilities. Customer is responsible and liable for its Authorized Users' access and use of the Services and Documentation, regardless of whether such use is permitted by the Agreement.
Customer must use reasonable efforts to make all Authorized Users aware of the provisions applicable to their use of the Services, including the Incorporated Documents. d) Use Restrictions. Customer may not at any time, directly or indirectly through any Authorized User, access or use the Services in violation of the Usage Policies, including any attempt to( 1) copy, modify, or create derivative works of the Services or Documentation, in whole or In part; ( 2) sell, license, or otherwise transfer or make available the Services or Documentation except as expressly permitted by the Agreement; or 3) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part. Customer will not knowingly transmit any personally identifiable information to DebtBook or any other third- party through the Services. e) Suspension. Notwithstanding anything to the contrary in the Agreement, DebtBook may temporarily suspend Customer' s and any Authorized User' s access to any or all of the Services If:( 1) Customer is more than 45 days late in making any payment due under, and in accordance with, the terms of the Agreement,( 2) DebtBook reasonably determines that( A) there is a threat or attack on any of the DebtBook IP; B) Customer' s or any Authorized User' s use of the DebtBook IP disrupts or poses a security risk to the DebtBook IP or to any other customer or vendor of DebtBook;( C) Customer, or any Authorized User, is using the DebtBook IP for fraudulent or other illegal activities; or( D) DebtBook' s provision of the Services to Customer or any Authorized User Is prohibited by applicable law; or( 3) any vendor of DebtBook has suspended or terminated DebtBook' s access to or use of any third-party services or products required to enable Customer to access the Services( any such suspension, a" Service Suspension"). DebtBook will use commercially reasonable efforts to I) provide written notice of any Service Suspension to Customer,( Ip provide updates regarding resumption of access to the Services, and( Ill) resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. DebtBook is not liable for any damage, losses, or any other consequences that Customer or any Authorized User may Incur as a result of a Service Suspension. f) Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, DebtBook may monitor Customer' s use of the Services and collect and compile Aggregated Statistics. As between DebtBook and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual property rights therein, belong to and are retained solely by DebtBook. DebtBook may compile Aggregated Statistics based on Customer Data input into the Services. DebtBook may( 1) make Aggregated Statistics publicly available in compliance with applicable law, and( 2) use Aggregated Statistics as permitted under applicable law so long as, in each case, DebtBook' s use of any Aggregated Statistics does not identify the Customer or disclose Customer' s Confidential Information.
3. Service Levels and Support. Subject to the terms and conditions of the Agreement, DebtBook will use commercially reasonable efforts to make the Application Services and Support Services available in accordance with the SIA.
4. Fees and Payment.
a) Fees. Customer will pay DebtBook the fees(" Fees") set forth in the Order Form. DebtBook will invoice Customer for all Fees in accordance with the invoicing schedule and requirements set forth in the Order Form. Customer must pay all Fees in US dollars, and all Fees are fully earned once paid. To the extent permitted by applicable law, if Customer fails to make any payment when due, DebtBook may, without limiting any of its other rights, charge interest on the past due amount at the lowest of( 1) the rate of 1. 5% per month,( 2) the rate established in any Customer Term, or( 3) the maximum rate permitted under applicable law. b) Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Unless Customer is exempt from making any such payment under applicable law or regulation, Customer is responsible for all applicable sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind Imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer under the Agreement, other than any taxes imposed on DebtBook' s Income.
5. Confidential Information.
a) From time to time during the Term, either party( the" Disclosing Party") may disclose or make available to the other party( the " ReceMng Party") information about the Disclosing Party' s business affairs, products, confidential Intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary Information, whether In written, electronic, or other form or media, that is marked, designated, or otherwise identif led as " confidential", or which a reasonable person would understand to be confidential or proprietary under the circumstances( collectively,' Confidential Information"). For the avoidance of doubt, DebtBook' s Confidential information Includes the DebtBook IP and the Application Services source code and specifications. As used in the Agreement, " Confidential Information" expressly excludes any information that, at the time of disclosure is( 1) in the public domain; ( 2) known to the receiving party at the time of disclosure;( 3) rightfully obtained by the Receiving Party on a non- confidential basis from a third party; or( 4) independently developed by the Receiving Party. b) To the extent permitted by applicable law, the Receiving Party will hold the Disclosing Party' s Confidential Information in strict confidence and may not disclose the Disclosing Party' s Confidential Information to any person or entity, except to the Receiving Party' s employees, officers, directors, agents, subcontractors, financial advisors, and attorneys who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations under the Agreement or otherwise in connection with the Services. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required ( 1) In order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order must first give written notice to the other party and make a reasonable effort to obtain a protective order; or( 2) to establish a party' s rights under the Agreement, including to make required court filings. c) On the expiration or termination of the Agreement, the Receiving Party must promptly return to the Disclosing Party all copies of the Disclosing Party' s Confidential Information, or destroy all such copies and, on the Disclosing Party' s request, certify in writing to the Disclosing Party that such Confidential Information has been destroyed. d) Each party' s obligations under this Section are effective as of the Effective Date and will expire three years from the termination of the Agreement; provided, however, with respect to any Confidential information that constitutes a trade secret ( as determined under applicable law), such obligations of nondisclosure will survive the termination or expiration of the Agreement for as long as such Confidential information remains subject to trade secret protection under applicable law.
6. Intellectual Property.
a) DebtBook IP. As between Customer and DebtBook, DebtBook owns all right, title, and Interest, including all Intellectual property rights, in and to the DebtBook IP. b) Customer Data. As between Customer and DebtBook, Customer owns all right, title, and interest, Including all intellectual property rights, in and to the Customer Data. Customer hereby grants to DebtBook a non- exclusive, royalty- free, worldwide license to reproduce, distribute, sublicense, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary or appropriate for DebtBook to provide the Services to Customer. c) Effect of Termination. Without limiting either party' s obligations under Section 5, on written request by Customer made within 30 days after the effective date of termination of the Agreement, DebtBook, at no further charge to Customer, will( 1) provide Customer with temporary access to the Application Services to permit Customer to retrieve its Customer Data In a commercially transferrable format and ( 2) use commercially reasonable efforts to assist Customer, at Customer' s request, with such retrieval.
7. Limited Warranties.
a) Functionality& Service Levels. During the Term, the Application Services will operate In a manner consistent with general Industry standards reasonably applicable to the provision of the Application Services and will conform in all material respects to the Documentation and service levels set forth in the SLA when accessed and used in accordance with the Documentation. Except as expressly stated in the SLA, DebtBook does not make any representation, warranty, or guarantee regarding availability of the Application Services, and the remedies set forth in the SLA are Customer' s sole remedies and DebtBook' s sole liability under the limited warranty set forth In this paragraph. b) Security. DebtBook has implemented Appropriate Security Measures and has made commercially reasonable efforts to ensure its licensors and hosting providers, as the case may be, have implemented Appropriate Security Measures Intended to protect Customer Data. c) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, DEBTBOOK IP IS PROVIDED" AS IS," AND DEBTBOOK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DEBTBOOK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH
IN THIS SECTION, DEBTBOOK MAKES NO WARRANTY OF ANY KIND THAT THE DEBTBOOK IP, OR ANY
PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER' S OR ANY OTHER PERSON' S
REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK HARMFULWITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF CODE, OR ERROR FREE. d) DebtBook exercises no control over the flow of information to or from the Application Service, DebtBook' s network, or other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt connections to the Internet. Although DebtBook will use commercially reasonable efforts to take all actions DebtBook deems appropriate to remedy and avoid such events, DebtBook cannot guarantee that such events will not occur. ACCORDINGLY, DEBTBOOK DISCLAIMS ANY AND ALL LIABILITY RESULTING
FROM OR RELATING TO ALL SUCH EVENTS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT, ANY OTHER ACTIONS OR INACTIONS CAUSED BY OR UNDER THE CONTROL OFA THIRD PARTY.
8. Indemnification.
a) DebtBook Indemnification.
i) DebtBook will indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs( including reasonable attorneys' fees)( collectively, tosses") incurred by Customer resulting from any third- party claim, suit, action, or proceeding (" ThIrd- Party Claim') that the Application Services, or any use of the Application Services in accordance with the Agreement, infringes or misappropriates such third party' s US patents, copyrights, or trade secrets, provided that Customer notifies DebtBook in writing of the Third- Party Claim within 60 days and reasonably cooperates with DebtBook in the defense of the Third- Party Claim.
II) If such a claim is made or appears possible, Customer agrees to permit DebtBook, at DebtBook' s sole expense and discretion, to( A) modify or replace the DebtBook IP, or component or part of the DebtBook IP, to make it non- infringing, or( B) obtain the right for Customer to continue use.
If DebtBook determines that neither altemative is reasonably available, DebtBook may terminate the Agreement in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, so long as, In each case, DebtBook promptly refunds or credits to Customer all amounts Customer paid with respect to the DebtBook IP that Customer cannot reasonably use as intended under the Agreement. hi) DebtBook' s indemnification obligation under this Section will not apply to the extent that the alleged infringement arises from Customer' s use of the Application Services in combination with data, software, hardware, equipment, or technology not provided or authorized in writing by DebtBook or modifications to the Application Services not made by DebtBook. b) Sole Remedy. SECTION 8( a) SETS FORTH CUSTOMERS SOLE REMEDIES AND DEBTBOOK'S
SOLE LIABILITY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD PARTY' S INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT WILL DEBTBOOK' S LIABILITY UNDER SECTION 8(a) EXCEED$ 1, 000, 000. c) Customer Indemnification. To the extent permitted by applicable law, Customer will indemnify, hold harmless, and, at DebtBook' s option, defend DebtBook from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with the Agreement, infringes or misappropriates such third party' s intellectual property rights and any Third- Party Claims based on Customer' s or any Authorized User' s negligence or willful misconduct or use of the Services in a manner not authorized by the Agreement.
9. Limitations of Liability. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT
WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR
EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT( INCLUDING NEGLIGENCE), STRICT LIABILITY,
AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR
PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS
EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL THE AGGREGATE LIABILITY OF
DEBTBOOK ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY,
INCLUDING BREACH OF CONTRACT, TORT ( INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DEBTBOOK UNDER THE AGREEMENT IN THE 12- MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION DO NOT APPLY TO CLAIMS PURSUANT TO SECTION 8.
10. Term and Termination.
a) Term. Except as the parties may otherwise agree in the Order Form, or unless terminated earlier in accordance with the Agreement:
i) the Initial Term of the Agreement will begin on the Effective Date and end on the Initial Term End Date; ii) the Agreement will automatically renew for successive 12- month Renewal Terms unless either party gives the other party written notice of non- renewal at least 30 days before the expiration of the then-current term; and
III) each Renewal Term will be subject to the same terms and conditions established under the Agreement, with any Fees determined in accordance with DebtBook' s then- current pricing schedule published on DebtBook' s website and generally appliable to all users of the Services, as provided to Customer at least 60 days before the expiration of the then-current term. b) Termination. In addition to any other express termination right set forth in the Agreement:
i) DebtBook may terminate the Agreement Immediately if Customer breaches any of its obligations under Section 2 or Section 5; ii) Customer may terminate the Agreement in accordance with the SLA; iii) either party may terminate the Agreement, effective on written notice to the other party, if the other party materially breaches the Agreement, and such breach:( A) is incapable of cure; or ( B) being capable of cure, remains uncured 30 days after the non- breaching party provides the breaching party with written notice of such breach; Iv) if( 1) Customer is a governments entity and( 2) sufficient funds are not appropriated to pay for the Application Services, then Customer may terminate the Agreement at any time without penalty following 30 days prior written notice to DebtBook; or v) either party may, to the extent permitted by law, terminate the Agreement, effective Immediately on written notice to the other party, If the other party becomes insolvent or Is generally unable to pay, or falls to pay, Its debts as they become due or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law. c) Survival. Only this Section and Section 1( Definitions), Sections 4 through 6( Fees; Confidential Information; Intellectual Property), Section 7( c) ( Disclaimer of Warranties), and Sections 8, 9 and 12 Indemnification; Limitations of Liability; Miscellaneous) will survive any termination or expiration of the Agreement.
11. Independent Contractor. The parties to the Agreement are independent contractors. The Agreement does not create a joint venture or partnership between the parties, and neither party is, by virtue of the Agreement, authorized as an agent, employee, or representative of the other party.
12. Miscellaneous.
a) Governing Law: Submission to Jurisdiction. The Agreement will be governed by and construed In accordance with the laws of the Governing State, without regard to any choice or conflict of law provisions, and any claim arising out of the Agreement may be brought in the state or federal courts located in the Governing State. Each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding,
b) Entire Agreement: Order of Precedence. The Order Form, any Customer Terms, the Terms& Conditions, and the Incorporated Documents constitute the complete Agreement between the parties and supersede any prior discussion or representations regarding the Customer' s purchase and use of the Services.
To the extent any conflict exists between the terms of the Agreement, the documents will govern In the following order or precedence:( 1) the Order Form( 2) the Customer Terms,( 3) the Terms& Conditions, and( 4) the connection Incorporated with Documents. No other purchasing order or similar instrument issued by either party in the Services will have any effect on the Agreement or bind the other party in any way. c) Amendment: Waiver. No amendment to the Order Form, the Terms & Conditions, or the Customer Terms will be effective unless it Is in writing and signed by an authorized representative of each party. DebtBook may update the Incorporated Documents from time-to-time following notice to Customer so long as such updates are generally applicable to all users of the Services. No waiver by any party of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, delay In exercising, or any partial exercise of any rights, remedy, power, or privilege arising from the Agreement will in any way waive or otherwise limit the future exercise of any right, remedy, power, or privilege available under the Agreement. d) Notices. All notices, requests, consents, claims, demands, and waivers under the Agreement each, a " Notice") must be in writing and addressed, if to Customer, to the recipients and addresses set forth on the Order Form( or to such other address as Customer may designate from time to time In accordance with this Section). All Notices to DebtBook must be addressed to the recipients and addresses set forth at https:// www.debtbook. com/ legal. All Notices must be delivered by personal delivery, nationally recognized overnight courier( with all fees pre- paid), or email( with confirmation of transmission), or certified or registered mail( in each case, return receipt requested, postage pre-paid). e) Force Majeure. In no event will either party be liable to the other party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement( except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party' s reasonable control, including acts of God, flood, fire, earthquake, pandemic, epidemic, Internet outages, shortages In materials, explosion, war, terrorism, Invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. f) Severability. If any provision of the Agreement is invalid, Illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or Invalidate or render unenforceable such term or provision in any other jurisdiction. g) Assignment. Either party may assign its rights or delegate its obligations, in whole or In part, on 30 days prior written notice to the other party, to an affiliate or an entity that acquires all or substantially all of the business or assets of such party, whether by merger, reorganization, acquisition, sale, or otherwise.
Except as stated in this paragraph, neither party may assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld, conditioned, or delayed. The Agreement is binding on and inures to the benefit of the parties and their permitted successors and assigns.
h) Marketing. Neither party may issue press releases related to the Agreement without the other party' s prior written consent. Either party may include the name and logo of the other party In lists of customers or vendors. i) State-Specific Certifications & Agreements. To the extent required under the laws of the Governing State, DebtBook hereby certifies and agrees as follows:
i) DebtBook has not been designated by any applicable government authority or body as a company engaged In the boycott of Israel under the laws of the Governing State; ii) DebtBook is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in the Agreement by any governmental department or agency of the Governing State; ill) DebtBook will not discriminate against any employee or applicant for employment because of race, ethnicity, gender, gender identity, sexual orientation, age, religion, national origin, disability, color, ancestry, citizenship, genetic information, political affiliation or military/ veteran status, or any other status protected by federal, state, or local law; and iv) DebtBook will verify the work authorization of Its employees using the federal E-Verify program and standards as promulgated and operated by the United States Department of Homeland Security and, if applicable, will require Its subcontractors to do the same. f) Execution. Any document executed and delivered In connection with the Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. To the extent permitted by applicable law, electronic signatures may be used for the purpose of executing the Order Form by email or other electronic means. Any document delivered electronically and accepted is deemed to be 9n writing" to the same extent and with the same effect as If the document had been signed manually.