Copyright 2022, Peregrine Technologies, Inc. All rights reserved. Copyright extends to all pages of this document.
EXHIBIT A
PEREGRINE CUSTOMER ORDER FORM & SCOPE OF SERVICES
Customer Information
Customer Name: Santa Rosa Police Department Contact: Chief John Cregan Address:
965 Sonoma Ave
Santa Rosa, CA 95401
Phone: 707-543-3600
Email: [email protected] Fax: N/A
Peregrine Services
Effective Date: January 31, 2025
Initial Term: From the Effective Date through January 30, 2028 (“Initial Term”).
Service Fee: The following fee schedule is available to the Cu s t o m e r i f O r d e r F o r m i s s i g n e d o n o r b e f o r e December 31, 2024. Unless otherwise terminated as set forth in the Terms and Conditions, Customer shall pay Peregrine a service fee of $94,500 annually for the Term as follows:
a. $94,500 within 30 days of the Effective Date
b. $94,500 within 30 days of 1/31/2026
c. $94,500 within 30 days of 1/31/2027
The Customer has the option to continue use of the Service for up to two (2) optional annual terms as follows:
a. Option Year 1: $94,500 within 30 days of 1/31/2028
b. Option Year 2: $94,500 within 30 days of 1/31/2029
Users: Customer may allow an unlimited number of employ ees of the Santa Rosa Police Department to access and use the Service.
Onboarding and Training Services: Peregrine will provide Customer with an introductory training session that provides an overview of the Service, background on accessible data sources as of the Effective Date and an introduction to the analytic capabilit ies of the Service. Peregrine will pr ovide additional training, including refresher sessions and advanced training modules, from time to time upon mutual agreement of the parties.
Professional Services: The initial Customer Data sources and syst ems that Peregrine w ill integrate with the Service for Customer are: Central Square RMS, Hexagon CAD, Axon BWC, Flock ALPR, and Fleet3 ALPR.
The fee schedule above includes support for up to 60 million annual LPR reads and a 30-day retention of LPR detections.
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Peregrine services are provided subject to the terms set forth above on this Order Form together with the attached terms and conditions (the “ Terms and Conditions ,” and together with this Order Form, the “ Agreement”). Any capitalized term used in this Order Form but not defined he rein shall have the meaning as cribed to it in the Terms and Conditions. By signing this Order From, Peregrine and Customer each agree to the terms and conditions set forth in this Agreement. In the event of any conflict between this Order Form and the Terms and Conditions, the terms of this Order Form shall govern to the extent of such co nflict. This Order Form may be executed in counterparts (which may be delivered by electronic mail of .pdf files), each of which counterparts, when so executed and delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.
Peregrine Customer
By: By:
Name: Nicholas Noone Name:
Title: President & CEO Title:
Date Signed: Date Signed:
Attest:
Name:
Peregrine is responsible for the first $2,500 in third- party API and/or data access fees. The Customer is responsible for any third-party API or data access fees in excess of $2,500.
Any additional data integrations or new functionality shall be subject to mutual written agreement of the parties, including with respect to fees. All additional data inte gration services or new functionality and corresponding fees will be set forth in a statement of work.
For clarity, Peregrine will provide any other Professional Services and additional data integration services in accordance with Section 2.2 of the Terms and Conditions.
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Peregrine Customer Terms and Conditions
These Peregrine Customer Terms and Conditions govern th e provision of the services described on the attached Order Form (“ Order Form ”) by Peregrine Technologies, Inc. (“ Peregrine”) to Santa Rosa Police Department (“Customer”). By executing an Order Form with Peregrine, Customer agrees to be bound by these Terms and Conditions.
1. Definitions.
“Aggregated Data” has the meaning specified in Section 6.1. “CJIS Security Policy” means the FBI CJIS Security Policy document as published by the FBI CJIS Information Security Officer, currently located at https://www.fbi.gov/services/cjis/cjis-security-policy-resource-center. “Client-Side Software” means any software in source or object code form that Peregrine makes available for use in connection with the Service, including Peregrine’s mobile application(s). “Criminal Justice Information Services Division ” or “ CJIS” means the FBI division resp onsible for the collection, warehousing, and timely dissemination of relevant criminal justice informat ion to the FBI and to qualified law enforcement, criminal justice, civilian, academic, employment and licensing agencies. “Customer Data” means any of Customer’s data, information, docu ments or electronic files that are provided to Peregrine via the Service or otherwise in connection wi th this Agreement, including any databases Customer procures from third party vendors for Peregrine’s integration with the Service; provided that, for purposes of clarity, Customer Data as defined herein does not include Aggregated Data. “Documentation” means the materials supplied by Peregrine here under, in any media, including any and all installer’s, operator’s and user’s manuals, training materials, guides, functional or tech nical specifications or other materials for use in conjunction with the Service.
“Personal Information” means any information that, individually or in combination, does or ca n identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “persona lly identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy. “Professional Services” has the meaning specified in Section 2.2. “Service” means Peregrine’s proprietary plat form that assists Users with cr iminal investigations and police leadership decision making, consisting of a hosted web-based interface and the Client-Side Software. For purposes of this Agreement, the Service is exclusive of Professional Services that may be rendered upon mutual agreement of the parties in accordance with Section 2.2.
“SOW” has the meaning specified in Section 2.2.
“Third Party Data ” means any third party databases that Peregrin e licenses from third party vendors and makes accessible via the Service. For clarity, Third Party Data does not include any Customer Data. “Third Party Products ” means any third-party products provided with , integrated with, or incorporated into the Service, including Third Party Data.
“Users” means the individuals authorized by Customer to use the Service in accordance with the terms in the Order Form (including number and type of individuals who may access the Service) and that have been supplied user identifications and passwords by Peregrine.
2. Provision of the Service and Additional Services.
2.1. Service. During the Term and subject to the terms and conditions of this Agreement, including payment of the fees set forth on the Order Form, Customer may: (a) access and use the Service for up to the number of Users set forth in the Order Form, (b) download and reproduce th e applicable Docume ntation solely for internal use in association with the Service, and (c) download, install, an d use any Client-Side Software in support of Customer’s November 18, 2024
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use of the Service, in each case on a nonexclusive, no n-transferable, and non-sublicensable basis and solely for Customer’s internal business purposes. Peregrine shall provide Customer with auth entication credentials for individual Users upon written request from authorized personnel of Customer, (ii) onboarding and training services as set forth in the Order Form (“ Onboarding and Training Services ”), and (iii) telephone and standard technical support to Customer during normal business hours (“Technical Support”). Except as set forth herein, Peregrine shall, at its sole cost and expense, provide all facilities and equipment that may be necessary for Peregrine to perform the Services.
2.2. Professional Services. Except as set forth in the Order Form, in the event that Customer requests that Peregrine perform data integration, configuration or im plementation services regarding the Service, including integration of Customer Data or Third Party Data and creation of specific modifications to the Service (but excluding any Onboarding and Training Services), Peregrine will discuss the scope and fees for such services and, if agreed, such work will be performed pursuant to a statement of work executed by the parties and referencing this Agreement that describe such scope and fees (an “SOW,” and such services, the “Professional Services”). Any fees associated with the Professional Services shall be set forth in the applicable SOW and Customer shall pay such fees in accordance with Section 4.2 below. To the extent the Pr ofessional Services result in any software code or other tangible work product (“ Work Product ”), all such Work Product will remain owned solely an d exclusively by Peregrine and may be used by Customer solely in connecti on with Customer’s authorized use of the Service under this Agreement. Customer shall permit Peregrine access to Customer’s offices and any other facilities necessary for Peregrine to provide the Professional Services.
2.3. Access and Policies. Customer will permit Peregrine access to Cu stomer’s offices and any other facilities necessary for Peregrine to provide the Service, Onboar ding and Training Services, Technical Support, and any Professional Services. Peregrine agrees to, and cause its personnel to, abide by Customer’s facilities access and use policies as provided by Customer to Peregrine in writing in advance of any on-s ite visits. Customer will also permit and enable Peregrine to have offsite access to Customer Data and the Cust omer’s production platform for the Service in order to provide the Service, Technical Support and Professional Services. Peregrine agrees to comply with the CJIS Security Policy in connection with its access to Customer Data, incl uding CJIS-defined policies for remote access.
2.4. Compliance with Applicable Laws . Each party and its agents shall comp ly with all laws applicable to the performance or receipt, as applicable, of the Service hereunder.
2.5. Licenses and Permits. Peregrine and its employees, agents, and any subcontractors have, and will maintain at their sole cost and expense, all lic enses, permits, qualifications, and appr ovals of whatsoever nature that are legally required to practice their respective profession s. In addition to the foregoing, Peregrine and any subcontractors shall obtain and maintain during the term of this Agreement valid bus iness licenses from Customer as required by law.
2.6. Nondiscrimination and Equal Opportunity. Peregrine shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, genetic information, marital status, sex, sexual orientation, gender or gender identity, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Peregrine under this Agreement. Peregrine shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Peregrine thereby.
2.7. Suspension. Notwithstanding anything to the contrary in this Agreement, Peregrine may temporarily suspend Customer’s and any User’s access to any portion or all of the Service if: (a) Peregrine reasonably determines that (i) there is a threat or attack on the Service; (ii) Cu stomer’s or any User’s use of the Service disrupts or poses a security risk to the Service or to any other customer or vendor of Peregrine; (iii) Customer, or any User, is using the Service for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidati on, dissolution, or similar proceeding; (v) Peregrine’s November 18, 2024
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provision of the Service to Customer or any User is prohibited by applicable law; or (vi) any Customer Data submitted, posted, or otherwise transmitted by or on behalf of Cu stomer or an User through the Service may infringe or otherwise violate any third party’s intellectual property or other rights; (b) any vendor of Peregrine has suspended or terminated Peregrine’s access to or use of any Third Party Products require d to enable Customer to access the Service; or (c) if Customer fails to pay any undisputed fees when due (any such suspension described in subclauses (a), (b), or (c), a “Service Suspension”). Peregrine shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provid e updates regarding resumption of access to the Service following any Service Suspension. Peregr ine shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Peregrine will have no liability for any damage, liabilities, losses (i ncluding any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Service Suspension.
2.8. Third Party Products. Peregrine may from time to time make Third Party Products available to Customer or Peregrine may allow for certain Third Party Products to be integrated with the Service. For purposes of this Agreement, such Third Party Products are subject to thei r own terms and conditions. Peregrine is not responsible for the operation of any Third Party Products and makes no representations or warranties of any kind with respect to Third Party Products or their respective providers. If Customer does not agree to abide by the applicable terms for any such Third Party Products, then Customer should not install or use such Third Party Products. By authorizing Peregrine to transmit Customer Data from Third Party Products into the Service, Customer represents and warrants to Peregrine that it has all right, power, and authority to provide such authorization.
2.9. Open Source Components. Certain aspects of the Service, such as the Client-Side Software, may contain or be distributed with open source software code or libraries (“ Open Source Components”). Peregrine will provide a list of Open Source Components for a particular version of any distributed portion of the Service, such as the Client- Side Software, on Customer’s request. To the extent required by the license applicable to such Open Source Components: (a) Peregrine will use reasonable efforts to deliver to Customer any notices or other materials (such as source code); and (b) the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of such licenses prohibit any of the restrictions in this Agreement with respect to any particular Open Source Component, such restrictions will not apply to such Open Source Component.
To the extent the terms of such licenses require Peregrine to make an offer to provide source code or related information in connection with the Open Source Component, such offer is hereby made. For purposes of clarity, Open Source Components are Third Party Products.
3. Customer Responsibilities.
3.1. Generally. Customer is responsible for all activities that occur under User accounts. Customer also shall: (a) ensure it has all rights necessary for Peregrine to integrate the Customer Da ta with the Service; (b) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriatene ss of all Customer Data; (c) prevent unauthorized access to, or use of, the Service, and notify Peregrine immediately of any unauthorized access or use; (d)_ensure each User has its own unique account on the Service and that Users do not share their account credentials with one another or any third party; and (e) comply with all applicable laws in using the Service. Customer agrees to provide its Users with the applications necessary to run the Service as set forth in the Documentation.
3.2. Use Restrictions. Customer shall not use the Service for any purposes beyond the scope of access granted under this Agreement. Without limiting the generality of the foregoing, Customer shall not, and shall ensure Users do not: (a) license, su blicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (b) send spam or otherwise duplicative or unsolicited messages via the Serv ice; (c) send or store infringing or unla wful material; (d) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (f) attempt to gain unauthorized access to the Service or its related systems or networks; (g) copy, modify, or create derivative works based upon the Serv ice or any component thereof; (h) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service or any component thereof; (i) use the Service in any manner or for any purpose that infrin ges, misappropriates, or otherwise violates any intellectual property or other right of any third party or that violates any applicable law; (j) November 18, 2024
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access or use the Service for purposes of competitive anal ysis of Peregrine or the Service, the development, provision, or use of a competing serv ice or product, or any other purpose that is to Peregrine’s detriment or commercial disadvantage; or (k) input, upload, transmit, or otherwise prov ide to or through the Service any information or materials, including Customer Data, that are unlawful or injurious in any way
3.3. CJIS Requirements. Customer certifies that it and its Users will comply with the following CJIS requirements:
(a) Customer agrees to use training, policy and procedures to ensure Users use proper handling, processing, storing and communication protocols for Customer Data and any Third Party Data; (b) Customer agrees to protect the Service and any Third Party Data by monitoring and auditing st aff user activity to ensure that it is only within the purview of system application development, system maintenance and the support roles assigned; (c) Customer will only provide access to the Service and any Third Party Data through Customer-managed role-based access and applied sharing rules configured by Cust omer; (d) Customer agrees to create and retain activity transaction logs to enable auditing by Peregrine staff, CJIS and any Thir d Party Data owners; (e) Customer agrees to perform independent employment background screening for its sta ff at Customer’s own expense; and (f) Customer agrees to reinforce staff policies fo r creating User accounts with only one Cust omer domain email address for each User, with exceptions only as granted in writing by Peregrine.
3.4. Operation Restrictions. Under certain circumstances, it may be dangerous to operate a moving vehicle while attempting to operate a laptop, mobile device or other touch screen and any of their applications. Customer agrees that the Users will be instructed to only utilize the interface for the Service at times when it is safe to do so.
Peregrine is not liable for any accident caused by a result of distraction such as fr om viewing the screen while operating a moving vehicle.
3.5. Customer Logo. Peregrine may use Customer’s name and logo in Peregrine’s lists of customers provided that such use will comply with any standard trademark guidelines provided by Customer to Peregrine.
3.6. Feedback. If Customer or any of its employees or cont ractors sends or transmits any communications or materials to Peregrine by mail, email, telephone, or otherwise, suggesting or recommending changes to the Service, including without limitation, new features or function ality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Peregrine is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.
4. Fees & Payment.
4.1. Fees. Customer shall pay the fees for the Service as spec ified in the Order Form and in any SOWs. All fees are non-refundable except to the extent otherwise expressly set forth in this Agreement.
4.2. Payment Terms. Except as set forth on the Order Form, Customer shall pay all fees within thirty (30) days of Peregrine issuing an invoice.
4.3. Taxes. Peregrine’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, ex cluding only taxes based on Peregrine’s income. If Peregrine has the legal obligation to pay or collect Taxes fo r which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Peregrine with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary Rights. The “Peregrine Technology “means (a) the Peregrine name, the Peregrine logo, and other trademarks and service marks; (b) audio and visual information, documents, software and other works of authorship, including training materials; (c) other technology included in the Service, including Client-Side Software, graphical user interfaces, workflows, products, proce sses, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information provided by Peregrine under this Agreement; and (d) the work product or other results of Professional Services. Peregrine owns and shall retain all rights in the Pere grine Technology. Other than as expressl y set forth in Section 2.1 above, no license or other rights in or to the Peregrine Technology or related intellectual property rights are granted to Customer or Users, and all such licenses and rights are hereby expressly reserved to Peregrine. For clarity, “Peregrine Technology” does not include Customer Data.
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6. Data Access, Sharing and Security.
6.1. Customer Data. Peregrine may access, reproduce, and use Customer Data to provide the Service, including to provide Technical Support, Onboarding and Training Services and any Professional Services. Customer agrees that Peregrine may generate technical logs, da ta and insights about Customer’s usage of the Service (e.g., frequency of logins) (“Peregrine Insights”) and may use the Customer Data in aggregated and anonymized form that does not individually identify any person or enti ty, including Customer or its Users (“ Aggregated Data ”) for Peregrine’s internal business purposes and to operate and improve Pe regrine’s proprietary software and services, and that Peregrine shall own the Peregrine Insights and the Aggregat ed Data. Peregrine shall destroy Peregrine Insights and Aggregated Data on termination of this Agreement. Peregrine may choose to terminate the provision of any Customer Data via the Service if the provision of such data may be harmful to the Service, as determined by Peregrine in its reasonable discretion.
6.2. CJIS Security Policy. Peregrine has implemented procedures to allow for adherence to the CJIS Security Policy. The hosting facility for the Servic e uses access control technologies that meet or exceed CJIS requirements.
In addition, Peregrine has installed and configured solid network intrusion prevention appliances for adherence to the CJIS Security Policy.
6.3. Third Party Data. Any Third Party Data that Peregrine may provide via the Service is governed by the third party owner’s retention policy. Peregrine does not provide any warranties with respect to any Third Party Data and Peregrine may choose to terminate the provision of any Thir d Party Data via the Service if Peregrine’s applicable rights to such Third Party Data terminate or the provision of such data may be harmful to the Service, as determined by Peregrine in its reasonable discretion.
6.4. Processing of Personal Information. Peregrine’s rights and obligations with respect to Personal information it collects directly from individuals are set forth in Pere grine’s Privacy Policy <https://peregrine.io/privacy-policy/>.
Personal Information included within Customer Data and processed by Peregrine on behalf of Customer is governed by this Agreement.
6.5. Sensitive Information; Marking Requirements . To the extent Customer provides Customer Data that Customer considers to be sensitive, proprietary, re stricted, or otherwise requiring sensitive treatment (“ Sensitive Information”), Customer is solely responsible for providing appropriate markings to designate the applicable Customer Data as Sensitive Information. Customer shall provide Peregrine with documentation and/or instructions in writing with sufficient detail for Peregrine to identify and distinguish content that is Sensitive Information within other provided Customer Data. Customer shall (a) mark Se nsitive Information on its face, (b) make the appropriate designations for Sensitive Information in document metada ta, (c) provide Peregrine with a table or other list of Sensitive Information that contains sufficient detail to iden tify the Sensitive Information; or (d) identify Sensitive Information to Peregrine in some other mutually agreed upon method. Peregrine shall not be responsible for failure to designate Sensitive Information with specific access control status based on Customer failure to provide sufficient information to identify Sensitive Information.
7. Confidentiality.
7.1. Definition of Confidential Information. The term “ Confidential Information” means all confidential and proprietary information of a party (“ Disclosing Party”) disclosed to the other party (“ Receiving Party”), whether orally or in writing, that is designat ed as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Customer Data, any Third Party Data, the Service, the Documentation, the Peregrine Te chnology, business and marketing plans, technology and technical information, product designs, and business processes.
7.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party except to perform its obligations or exercise its rights under this Agreement, except with the Disclosing Party’s prior written permission on a case-by-case basis. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event with less than reason able care. If the Receiving Party is compelled by law or a government authority to disclose Co nfidential Information of the Disclosing Party, it shall November 18, 2024
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provide the Disclosing Party with prior notice of such co mpelled disclosure (to the extent practicable and legally permitted) and reasonable assistance, at Disclosing Part y’s cost, if the Disclosing Party wishes to contest the disclosure.
7.3. Exceptions. The parties’ obligations in Section 7.2 shall not apply to any information that: (a) is or becomes publicly available without breach of an y obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.4. Public Records Acts . Peregrine acknowledges that Customer is a public entity and may be governed by applicable laws, rules, or regulations relating to public records (each a “Public Records Act”). Nothing in this Section 7 shall prevent Customer from disclosing Confidential In formation for purposes of comp lying with an applicable Public Records Act to the extent legally required.
7.5. Remedies. If the Receiving Party discloses or uses (or th reatens to disclose or use) any Confidential Information of the Disclosing Party in br each of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such unauthorized disclosure or use may cause irreparable harm to the Disclosing Party for which any other available remedies are inadequate.
8. Warranties & Disclaimers.
8.1. Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Peregrine represents and warrants that (i) it will provide the Service in a professional manner consistent with the standards observed by a competent practitioner of the profession in which Peregrine is engaged, and (ii) the Service will perform in accordance with and otherwise substantially conform to its associated documentation.
8.2. Disclaimer. EXCEPT AS EXPRESSLY PROVID ED IN SECTION 8.1, PEREGRINE MAKES NO WARRANTY OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE, THE PEREGRINE
TECHNOLOGY, ANY THIRD PARTY DATA AND ANY OTHER PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT. PEREGRINE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURP OSE, TITLE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. Indemnification.
9.1. Indemnification by Peregrine. Peregrine shall at its expense defend Customer and its officers, directors, officials, agents, volunteers and employees (“ Customer Indemnified Parties ”) against any claim made or brought against any Customer Indemnified Party by a third party alleging that the Service as provided to Customer and when used in accordance with this Agreement infringes any intellectual property rights of a third party (each, a “Customer Claim”), and shall indemnify and hold Customer Indemnified Parties harmless from and against any and all liability, loss, damage, claims, expenses, and costs, including without limitation, attorney’s fees, awarded by a court or agreed to by Peregrine in a settlement with respect to such Cust omer Claim; provided, that Customer (a) promptly gives written notice of the Customer Claim to Peregrine; (b) gives Peregrine sole control of the defense and settlement of the Customer Claim (provided that Peregrine may not agree to any settlement that imposes any liability or obligation on Customer without Customer’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed); and (c) provides to Peregrine, at Peregrin e’s cost, all reasonable assistance in the defense and settlement of the Customer Claim. Peregrine shall have no obligation under this Section 9.1 or otherwise regarding claims that arise from or relate to (i) Customer’s use of the Service other than as contemplated by this Agreement, (ii) any modifications to the Service made by any entity other than Peregr ine (where the liability would not have arisen but for such modification), (iii) any combination of the Service with services or technologies not provided by Peregrine (where the liability would not have arisen but for such combination), (iv) Customer’s use of the Service or portion thereof after Peregrine has terminated this Agreement or such portion of the Service in accordance with this Section 9.1, or (v) Third Party Products. If in Peregrine’s opinion a Customer Claim is likely to be made, or if an existing Customer Claim may cause Peregrine liability, Peregrine may in its discretion (x) obtain a license to enable Customer November 18, 2024
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to continue to use the potentially infringing portion of the Service, (y) modify the Service to avoid the potential infringement, or (z) if the foregoing cannot be achieved after using reasonab le commercial efforts, terminate the Agreement or the license to the infringing portion of th e Service and refund the amount of any pre-paid fees applicable to the portion of the terminated Services to be provided after the termination date.
9.2. Indemnification by Customer . To the extent permitted by applicable law, Customer shall at its expense defend Peregrine and its officers, directors, officials, agents, volunteers and employees (“ Peregrine Indemnified Parties”) against any claim made or brough t against any Peregrine Indemnified Pa rty by a third party based on: (a) Customer’s or any User’s negligence, gross negligence, fraud, or willful misconduct; (b) Customer’s or any User’s use of the Service in a manner not authorized by this Agreement; or (c) Customer Data or Peregrine’s authorized use of such Customer Data (each, a “ Peregrine Claim ”), and shall indemnify and hold Peregrine Indemnified Parties harmless from and against any and all liability, loss, damage, claims, expe nses, and costs, including without limitation, attorney’s fees, awarded by a court or agreed to by Customer in a settlement with respect to such Peregrine Claim; provided, that Peregrin e (i) promptly gives written notice of the Peregrine Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Peregrine Claim (provided that Customer may not agree to any settlement that imposes any liability or obligation on Peregr ine without Peregrine’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance in the defense and settlement of the Peregrine Claim.
9.3. Sole Remedy . THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PEREGRINE’S SOLE
LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS BY THIRD PARTIES RELATING TO THE SERVICE OR ITS USE.
10. Limitation of Liability.
10.1. Exclusion of Consequential and Related Damages. EXCEPT FOR A PARTY’S BREACH OF SECTION 7, A PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS, OR A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL
MISCONDUCT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS,
LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER
IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10.2. Liability Cap. IN NO EVENT SHALL PEREGRINE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO
THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO PEREGRINE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
11. Term & Termination.
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues for the duration of the term set forth on the Order Form (“ Term”), unless earlier terminated in ac cordance with the Order Form or Section 11.2
11.2. Termination for Cause. A party may terminate this Agreement for cause upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. Termination shall not relieve Customer of the obligation to pay any fees accrued or pa yable to Peregrine prior to the effective date of termination.
11.3. Data. Upon expiration or termination of this Agreement, Peregrine shall have no obligation to maintain or provide any Customer Data or Third Party Data. Unless lega lly prohibited, Peregrine shall delete all Customer Data in its systems or otherwise in its possession or under its control. Notwithstanding the foregoing or any other provision of this Agreement, Peregrine may use in perpetuity any Aggregated Data.
11.4. Survival. The following provisions shall survive termination or expiration of this Agreement: Sections 4, 5,
6.1, 6.3, 7, 8, 9, 10, 11.3, 11.4, and 12.
12. General Provisions.
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12.1. Insurance. Peregrine shall maintain the insurance coverages described on Appendix A: Insurance.
12.2. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
At all times during the term of this Ag reement, Peregrine shall be an indepe ndent contractor and shall not be an employee of Customer. Except as Customer may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of Customer in any capacity whatsoever as an agen t. Peregrine shall ha ve no authority, express or implied, pursuant to this Agreement to bind Customer to any obligation whatsoever.
12.3. Peregrine’s Books and Records. To the extent required by applicable laws, rules, or regulations, Peregrine shall maintain any and all reco rds or documents evidencing or relating to charges for services or expenditures and disbursements charged to the Customer under this Agreemen t for a minimum of 3 years, or for any longer period required by law, from the date of final payment to Peregrine to this Agreement. All such records shall be maintained in accordance with generally accepted standards and shall be made available for inspection, audit, and/or copying during regular business hours, upon written request of the Customer.
12.4. Force Majeure. Neither party shall be liable by reason of any failure or delay in performance of its obligations under this Agreement (except for the payment of money) on account of events beyond the reasonable control of such party, which may include Internet denial-of- service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages (each, a “ Force Majeure Event ”). Upon the occurrence of a Force Majeure Event, the non- performing party will be excused from any further perfor mance of its obligations affe cted by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
12.5. Federal Government. Any use, copy or disclosure of the Service by the U.S. Government is subject to restrictions as set forth in this Agreement and as provided by DFARS 227.7202-1(a) and 227.7202-3(a)(1995), DFARS 252.227-7013(c)(1)(ii)(October 1998), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227(ALT III), as applicable.
12.6. Additional Government Terms. Peregrine acknowledges that Customer may be a public entity and, accordingly, certain additional laws, rules, and regulation s may take precedence over the terms and conditions of this Agreement (the “ Additional Government Terms ”). The Additional Government Terms, if any, are attached hereto as Error! Reference source not found. , and will govern to the extent of any conflict with any other term of this Agreement.
12.7. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon:
(a) personal delivery; (b) the second business day after mailing; (c) the se cond business day after sending by confirmed facsimile; or (d) after confirmed receipt of an email. Notices to Peregrine shall be addressed to the attention of Nick Noone, CEO, Peregrine Technologies, [email protected], with a copy to [email protected]. Notices to Customer are to be addressed to the individual identified in the Order Form.
12.8. Waiver; Cumulative Remedies Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other reme dies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the obje ctives of the original prov ision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, Peregrine may assign this Agreement, together with al l rights and obligations hereunder, without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets that relate to this Agreement. Any attempt by a party to assign its righ ts or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
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12.10. Governing Law. This Agreement shall be govern ed by the laws of California. The state courts located in Sonoma County, CA or in the United States District Court for the Northern District of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts provided that nothin g in this Section 12.10 prohibit s either party from seeking or obtaining in any jurisdiction injunctive or similar relief in connection with the enforcement of this Agreement.
12.11. Construction. The division of this Agreement into Sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement. The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this Agreement and not to any particular Section or other portion hereof. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. As used in this Agr eement, the words “include” and “includi ng,” and variations thereof, will be deemed to be followed by the words “without limitation” and “discretion” means sole discretion
12.12. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or re presentations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any pr ovision of this Agreement sh all be effective unless in writing and signed by the party against whom the modi fication, amendment or waiver is to be asserted.
Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding the Order Form) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are hereby rejected and shall be null and void.
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Appendix A: Insurance
Peregrine, at its own cost and expense, shall procure the types and amounts of insurance specified herein and maintain that insurance throughout the term of the Agreement. The cost of such insurance shall be included in the Peregrine’s bid or proposal. Peregrine shall be fully responsible for the acts an d omissions of its subcontractors or other agents.
Workers’ Compensation. Peregrine shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed dire ctly or indirectly by Peregrine in the amount required by applicable law. The requirement to maintain Statutory Workers’ Compensation and Employer’s Liability Insurance may be wa ived by the Customer upon written veri fication that Peregrine is a sole proprietor and does not have any employees and will not have any employees during the term of this Agreement.
Commercial General and Automobile Liability Insurance
General requirements. Peregrine, at it s own cost and expense, shall maintain commercial general and automobile liability insurance for the term of th is Agreement in an amount not le ss than $1,000,000 per occurrence and $2,000,000 aggregate, combined single limit coverage for risks associated with the work contemplated by this Agreement.
Minimum scope of coverage. Commercial general coverage shal l be at least as broad as Insurance Services Office Commercial General Liability oc currence form CG 0001 (most recent ed ition) covering comprehensive General Liability on an “occurrence” basis. Auto mobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (most recent edition) covering any auto (Code 1), or if Peregrine has no owned autos, hired (code 8) and non-owned autos (Code 9). No endorsement shall be attached limiting the coverage.
Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Commercial General and Automobile Liability Insurance shall cover on an occurrence basis. b. Customer, its officers, officials, employees, agents, and volunteers shall be covered as additional insureds for liability arising out of work or oper ations on behalf of the Peregrine, in cluding materials, parts, or equipment furnished in connection with such work or operations; or automobiles owned, leased, hired, or borrowed by the Peregrine. Coverage can be provided in the form of an endorsement to the Peregrine’s insurance at least as broad as CG 20 10 11 85, or both CG 20 10 10 01 and CG 20 37 10 01. c. For any claims related to this Agreement or the work hereunder, the Peregrine’s insurance covered shall be primary insurance as respects the Customer, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the Customer, its officers, officials, employees, agents or volunteers shall be excess of the Peregrine’s insurance and non-contributing.
d. The policy shall cover inter-insure d suits and include a “sep aration of Insureds” or “severability” clause which treats each insured separately.
e. Peregrine agrees to give at least 30 days prior written notice to Customer before coverage is canceled or modified as to scope or amount.
Professional Liability Insurance.
General requirements. Peregrine, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $1,000,000 per occurrence or claim covering the Peregrine’s errors and omissions.
Claims-made limitations. The following provisions shall appl y if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement.
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b. Insurance must be maintained and evidence of insura nce must be provided for at least five (5) years after completion of the Agreement or the work.
c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreemen t, Peregrine must purchase an extended period coverage for a minimum of five (5) years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be submitted to the Customer for review prior to the commencement of any work under this Agreement.
All Policies Requirements.
Submittal Requirements. Peregrine shall submit the following to Customer prior to beginning services:
Certificate of Liability Insurance in the amounts specified in this Agreement; and Additional Insured Endorsement as required for the General Commercial and Automobile Liability Polices.
Acceptability of Insurers. All insurance required by this Agreement is to be placed with insurers with a Bests' rating of no less than A:VII.
Deductibles and Self-Insured Retentions. Insurance obtained by the Peregrine shall have a self-insured retention or deductible of no more than $100,000.
Wasting Policies. No policy required herein shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).
Waiver of Subrogation. Peregrine hereby agrees to waiv e subrogation which any insurer or contractor may require from Peregrine by virtue of the payment of any loss. Pe regrine agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the Customer has received a waiver of subrogation endorsement from the insurer.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the Customer for all work performed by the Peregrine, its employees, agents, and subcontractors.
Subcontractors. Peregrine shall include all subcontractors as insureds 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, and Peregrine shall ensure that Customer, its officers, officials, employees, agents, and volunteers are covered as additional insured on all coverages.
Excess Insurance. If Peregrine maintains higher insurance limits than the minimums specified herein, Customer shall be entitled to coverage for the higher limits maintained by the Peregrine.
Remedies. In addition to any other remedies Customer ma y have if Peregrine fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Customer may, at its sole option, order Peregrine to stop work under this Agreement and withhold any payment that becomes due to Peregrine hereunder until Peregrine demonstrates compliance with the requirements hereof, or terminate this Agreement.
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Appendix B: Provisions for California Public Entities
Compliance with Applicable California Laws . Peregrine shall, to the extent required by the California Labor Code, pay not less than the latest prevailing wage rates as determined by the California Department of Industrial Relations.
California Public Records Act . Peregrine acknowledges that Customer is a public entity governed by the California Public Records Act and that nothing in this Agreement shall prevent Cust omer from disclosing Confidential Information for purposes of complying with the California Public Records Act.
PERS Indemnification by Peregrine . In the event that Peregrine or any employee, agent, or subcontractor of Peregrine providing services under this Agreement is de termined by a court of competent jurisdiction or the California Public Employees Retirement System (“PERS”) to be eligible for enrollment in PERS as an employee of Customer, at Peregrine shall indemnify, defend, and ho ld harmless Customer for the payment of any employee and/or employer contributions for PERS benefits on behalf of Peregrine or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of Customer.
Political Reform Act Conflicts . Peregrine may serve other clients, but no ne whose activities within the corporate limits of Customer or whose business, regardless of location, would place Peregrine in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. No officer or employee of Customer shall have any financial inte rest in this Agreement that would violate California Government Code Sections 1090 et seq.
California State Auditor Requirements . Pursuant to Government Code Section 8546.7, the Agreement may be subject to the examination and audit of the State Auditor for a period of 3 years after final payment under the Agreement.