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HomeMy WebLinkAbout2018-354-E IT - IPro Tech cloud servicesDocuSign Envelope ID: 91C2E157- 827B- 4CC8- BB64- 1C9F43AD2D28 [Departmental Use Only] TITLE IproTech FY 2019 ORANGE COUNTY CONTRACT NORTH CAROLINA THIS AGREEMENT, made and entered into this 31 st day of July, 2018, ( "Effective Date ") by and between Orange County, North Carolina, a body politic and corporate organized under the laws of the State of North Carolina, (the "County"), party of the first part; and Ipro Tech, LLC (the "Provider "), party of the second part; WITNESSETH: For the purpose and subject to the terms and conditions hereinafter set forth, the County hereby contracts for the services of the Provider, and the Provider agrees to provide the following services to the County in accordance with the terms of this Agreement, time being of the essence: The services and/or materials and/or construction (hereinafter referred to collectively as "Services ") to be furnished under this Agreement are as follows: All services detailed in Provider's proposal entitled "Ipro Tech, LLC Innovative Information Solutions Ipro Cloud Customized Services" with pricing as shown in Cloud Option 2, attached hereto and incorporated herein. The term of this agreement rendered shall be from July 31, 2018 to June 30, 2019. Provider represents and agrees that Provider is qualified to perform and fully capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner to the satisfaction of the County. Provider shall be responsible for all errors or omissions, in the performance of the Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. Provider agrees that Provider shall not sub - contract any of the services to be provided in this Agreement, nor shall Provider assign any right or responsibility granted or required by this Agreement, without the prior written approval of the County. SPECIFIC TERMS 1. Pam: The County agrees to pay at the rates specified for Services satisfactorily performed in accord with this Agreement. The amount to be paid by the County shall not exceed five thousand dollars, ($5,000.00). Payment shall be made within thirty (30) days of an invoice properly submitted to County. Should Provider fail to perform its duties under the terms of this Agreement, County may, without fault or penalty, withhold any payment associated with the work to be performed until such time as said work is completed. 2. Non — waiver: Failure by County at any time to require the performance by Provider of any of the provisions hereof shall in no way waive or affect the County's right hereunder to enforce the same, nor shall any waiver by the County of any breach be held to be a waiver of any succeeding breach or a waiver of this Non - Waiver Clause. 3. Independent Contractor: The Provider shall operate as an independent contractor, and the County shall not be responsible for any of the Provider's acts or omissions. The Provider shall not be treated as an employee with respect to the Services performed hereunder for federal or state tax, unemployment or workers' compensation purposes. The Provider understands that neither federal, nor state, nor payroll tax of any kind shall be withheld or paid by the County on behalf of the Provider or the employees of the Provider. 4. Insurance: Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, and any additional insurance as may Revised 10/17 (Mgr apry 5k 6/18) DocuSign Envelope ID: 91C2E157- 827B- 4CC8- BB64- 1C9F43AD2D28 be required by County's Risk Manager as such insurance requirements are described in the Orange County Risk Transfer Policy and Orange County Minimum Insurance Coverage Requirements (each document is incorporated herein by reference and may be viewed at http: / /www.orangecountync.gov /departments /purchasing division /contracts.php). If County's Risk Manager determines additional insurance coverage is required such additional insurance shall be designated here N/A (if no additional insurance required mark N/A as being not applicable). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the County's Risk Manager. 5. Indemnity: The Provider agrees, without limitation, to defend, indemnify, and hold harmless Orange County from all losses, liabilities, claims, demands, suits, costs, damages or expenses (including reasonable attorney's fees) arising from bodily injury, including death, to any person or persons or damage to or destruction of any property caused in whole or in part by any negligent or intentional act or omission on the part of the Provider in carrying out Provider's duties and obligations related to the Services to be provided in this Agreement. 6. Termination: This Agreement may be terminated at any time by mutual written agreement of the parties or by the County upon written notice to the Provider. County may suspend this Agreement upon reasonable notice to Provider. 7. Entire Agreement and Signatures: The parties have read this Agreement and agree to be bound by all of its terms, and further agree that it constitutes the complete and exclusive statement of the Agreement between the parties unless and until modified in writing and signed by the parties. Modifications may be evidenced by telefacsimile signature. This Agreement together with any amendments or modifications may be executed electronically. All electronic signatures affixed hereto evidence the consent of the Parties to utilize electronic signatures and the intent of the parties to comply with Article 11A and Article 40 of North Carolina General Statute Chapter 66. 8. Governing Law and Priority: Both parties agree that this Agreement shall be governed by the laws of the State of North Carolina and Orange County. Provider shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all state and federal anti - discrimination laws, policies, rules, and regulations and the Orange County Non - Discrimination Policy and Orange County Living Wage Policy (each policy is incorporated herein by reference and may be viewed at http: / /www.oran eg couni nc. ovg / departments /purchasing division/contracts.php.). Any violation of this requirement is a breach of this Agreement and County may immediately terminate this Agreement without further obligation on the part of the County. This paragraph is not intended to limit and does not limit the definition of breach to discrimination. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147 - 86.58. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147 - 86.81. By executing this Agreement Provider affirms Provider is and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. In determining the basic services to be provided, should any documents be referenced in or attached to this Agreement, the terms herein shall have priority in any conflict between the terms of referenced documents and the terms of this Agreement. 9. Dispute Resolution: Neither party may initiate binding arbitration. Any disputes shall be resolved by nonbinding mediation. If such mediation fails either party may initiate litigation to resolve the dispute. Should either party initiate litigation to settle any dispute involving the terms of this Agreement such litigation shall be initiated in the General Court of Justice of North Carolina seated in Orange County, North Carolina. Revised 10/17 (Mgr apry 5k 6/18) 2 DocuSign Envelope ID: 91C2E157- 827B- 4CC8- BB64- 1C9F43AD2D28 10. Non Appropriation: Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non - appropriation of public funds. 11. Void Contract: By executing this Agreement the Provider and County agree this Agreement supersedes the contract dated July 3, 2018 titled IproTech, which contract is void and of no further effect. IN WITNESS WHEREOF, Orange County and the Provider have signed this Agreement, effective as of the day first written above. ORANGE COUNTY DocuSigned by: By: �[M ! Y"� — C116A91E73A64DF.... for 200 S. Cameron St. P.O. Box 8181 Hillsborough, NC 27278 Revised 10/17 (Mgr apry 5k 6/18) PROVIDER DocuSigned by: BynT,r Tit 9475016A6BEC481... Ifficer 1700 N. Desert Drive, Suite 101 Tempe, AZ 85281 DocuSign Envelope ID: 91C2El57- 827B- 4CC8- BB64- 1C9F43AD2D28 Innovative Information Solutions Ipro Cloud Customized Services Agreement prepared for: Orange County Gov Requested by: Jim Northrup Created on: Jun 25, 2018 Agreement is valid until July 25, 2018 If you have any questions, please contact: Brad Reed 704 - 301 -8627 breed @iprotech.com DocuSign Envelope ID: 91C2El57- 827B- 4CC8- BB64- lC9F43AD2D28 Ipro Tech, LLC 1700 N Desert Drive STE 101 Tempe, AZ 85281 602 - 324 -4776 1 www.iprotech.com Ipro Tech, LLC I *I(Dro novatlue nformation sdut,ons Ipro Cloud Customized Services Agreement Option 2 Parties to this Ipro Cloud Customized Services Agreement are Ipro Tech, LLC ("Ipro ") and Orange County Gov , a Prospective Client corporation, with principal offices located at 200 S. Cameron Street, Hillsborough, North Carolina 27278 ( "Customer "). The effective date of this Ipro Cloud Agreement is (the "Effective Date "). This Ipro Cloud Customized Services Agreement, which includes this cover page, the attached Ipro Standard Terms and Conditions and Schedules, any Project Plans issued hereunder, and any related amendments or additions (collectively, the "Agreement'), is made and effective as of the above Effective Date by and between Ipro and Customer. By executing this Agreement, the above parties acknowledge that the terms and conditions set forth in this Agreement constitute good and valuable consideration, and hereby agree to be bound as provided herein. DocuSign Envelope ID: 91C2El57- 827B- 4CC8- BB64- lC9F43AD2D28 Ipro Tech, LLC 1700 N Desert Drive STE 101 Tempe, AZ 85281 602 - 324 -4776 1 www.iprotech.com I 01ro p inloralatio n Wlut!ons IN WITNESS WHEREOF, each party represents and warrants that it has the authority to execute this Agreement and to bind such party to the terms of this Agreement, including the Schedules, the standard Ipro End User License Agreement, if licensing Ipro Software (available online at myipro.iprotech.com) and the standard Ipro Terms of Services, if purchasing use rights to the Ipro Cloud (available online at myi pro. iprotech.com), all of which are incorporated by reference into this Agreement, effective as of the above Effective Date by and between Ipro and Customer. By Docu5igned by: 9475DiBABBEC481... Name Tammy Doss Date 8/3/2018 By I 2UocuSigned by: ik I�6� C11BA91E73A64DF... Tim Northrup Name Date 8/3/2018 DocuSign Envelope ID: 91C2El57- 827B- 4CC8- BB64- lC9F43AD2D28 Ipro Tech, LLC 1700 N Desert Drive STE 101 Tempe, AZ 85281 602 - 324 -4776 1 www.iprotech.com Exhibit Ipro Cloud - Customized Services I 01(3ro rbvativa nforalation sdut'ons Take advantage of our Ipro Customized Services team to handle all your eDiscovery needs using Ipro's ADD technology. With over 25 years of case management experience, our eDiscovery experts can deliver exceptional service and value for any size case. This solution allows for a repeatable and predictable process with the flexibility to cancel or upgrade at any time. .O PROCESSING Native File Processing $40.00 /GB This process includes extracting files from containers, extracting Compressed metadata, full text and load files. Ipro will handle container -level exceptions or report errors back for advisement. Data size is calculated on original compressed source data reported within Ipro application. Deliverable can be imported into Ipro Cloud Hosting environment or processed and delivered via FTP. Image Conversion $40.00 /GB Imaging of native data for the purpose of creating a deliverable per the client spec. Output includes any available image format(s). Size will be calculated on the size of the native files being imaged. Deliverable can be imported into Ipro Cloud Hosting environment or processed and delivered via FTP. Ipro Customized Services $200.00 /hour Services include, but are not limited to the following: Project Scope Customization, Change orders or additional user creation Case or Database Migration Consulting on Search Term Syntax } Assistance with additional data culling and filtering Assistance with the use of Analytics (including TAR) Review Workflow Setup, including batch management Imaging & Production Setup and Assistance Loading OCR, imaging of 3rd party processed data and transcripts Custom Reports and Scripts Data Error Remediation and Quality Checks DocuSign Envelope ID: 91 C2E157- 8278- 4CC8- BB64 -1 C9F43AD2D28 Ipro Tech, LLC 1700 N Desert Drive STE 101 Tempe, AZ 85281 602 - 324 -4776 1 www.iprotech.com VOW, I ro �,� ®mom Customized Services - Scope Terms: Eclipse Review Case Creation, Initial User Setup, and first hour of training - Included Eclipse Review Licenses, Analytics (NearDup, Email Threading, Default Clustering) - Included r Exports /Productions can be completed by Eclipse end users. If assistance is needed, hourly charges will be applied. All project requests will be submitted electronically using Ipro's project request forms. For all services, the project contact can choose from the standard "Best Practice Templates" or request a "Project Customization" scope call. The final project customization or any change requests after the initial scope discussion, will require written approval prior to work commencing and may result in further charges. Data Deletion and Archiving Image QC & Manual Formatting Product Training $200.00 /hour First hour of training will be included at no charge and conducted via GoTo Meeting. Additional training can be purchased at $200 per hour. Full training agendas available upon request. Hard Drive $200.00 /drive 1 TB Hard Drive for archiving, exports or productions of case data. Media Handling $100.00 /drive Ipro will handle, track, and connect any physical media sent by the client. Assistance after -hours and weekends must be $150.00 /drive - after hours scheduled with Ipro twenty -four (24) hrs in advance and during business hours. Customized Services - Scope Terms: Eclipse Review Case Creation, Initial User Setup, and first hour of training - Included Eclipse Review Licenses, Analytics (NearDup, Email Threading, Default Clustering) - Included r Exports /Productions can be completed by Eclipse end users. If assistance is needed, hourly charges will be applied. All project requests will be submitted electronically using Ipro's project request forms. For all services, the project contact can choose from the standard "Best Practice Templates" or request a "Project Customization" scope call. The final project customization or any change requests after the initial scope discussion, will require written approval prior to work commencing and may result in further charges. DocuSign Envelope ID: 91C2El57- 827B- 4CC8- BB64- lC9F43AD2D28 Ipro Tech, LLC 1700 N Desert Drive STE 101 Tempe, AZ 85281 602 - 324 -4776 1 www.iprotech.com I '* o I(Dr YiO'watlw'E inloralatio n Wlut!ons Exhibit B Customized Services - Agreement Terms Age Either party may terminate this Agreement, or Customer may terminate any individual case hosted under this Agreement, with thirty (30) days advance written notice. If terminated by the Customer, monthly hosting and storage fees shall be due for the full month in which the termination becomes effective. If terminated by Ipro, monthly fees shall be prorated through the effective date of termination. Ipro will complete a conflict check prior to beginning processing as a courtesy to the Customer. Ipro, however, is not liable for any failure to discover a conflict associated with representation of the Customer or any former Ipro customer or client. Hours are calculated on human time (not machine), project requests are billed at thirty (30)- minute minimum and billed in fifteen (15)- minute increments. The native file processing data size is calculated on original compressed source data size. Hosting data size is calculated on the highest amount stored and reported in Eclipse Case Summary report. This will include but is not limited to: production and third -party uploaded data. You may request to archive data at any time to minimize your storage on disk, standard Ipro Customized Services fees apply. Failure to archive data resulting in additional charges to the Customer is the responsibility of the Customer and not Ipro. Ipro has no duty to further inform the Customer of its ability to archive data to minimize storage. Aq Near -line storage is available upon request. No user access to the database but leave it in our environment at a reduced hosting rate of $4.00 /GB /Month. ,( Assistance after hours and weekends must be scheduled with Ipro twenty -four (24) hrs in advance and during business hours. After -hours price is $250 /hr for Ipro Customized Service hours / $150 for media handling. OEM tools are included in Ipro Software and Ipro reserves the right to make changes to the Software and /or price at any time. DocuSign Envelope ID: 91C2El57- 827B- 4CC8- BB64- lC9F43AD2D28 Ipro Tech, LLC 1700 N Desert Drive STE 101 Tempe, AZ 85281 602 - 324 -4776 1 www.iprotech.com I 01(Dro rioV311uE iWormation S Iut,ons Exhibit C Billing Terms AV Each database created within the Ipro Cloud will be invoiced a minimum of $200 every month until the subject database is deleted. 4,p� Each processing request will be invoiced a minimum of 2 GBs ($80). Invoices will be sent at the end of the month for the hosting of Eclipse data, native processing and /or hours used, per project. ( Payment under this agreement will be subject to the current payment terms agreed to by the parties in this agreement. Prices set forth in this agreement above do not reflect applicable sales tax or shipping fees. AO Ipro's standard payment terms are net 30 days from the date of invoice. Past due amounts are subject to late payment service charges of 1 �/2 % per month. Payments - For U.S. Customers, please mail checks to Ipro Tech, LLC, PO Box 29822, Phoenix, AZ 85038 -9822. „} Fees do not include travel expenses, shipping costs, sales, withholdings or value -added taxes. All fees are in United States Dollars. Payment is due net 30 days from the date of invoice. All Non -U.S. Customers please send all payments via ACH, wire transfer or credit card. Please contact ar @iprotech.com for ACH and wire instructions or to make payment by credit card. DocuSign Envelope ID: 91C2El57- 827B- 4CC8- BB64- lC9F43AD2D28 Ipro Tech, LLC 1700 N Desert Drive STE 101 Tempe, AZ 85281 602 - 324 -4776 1 www.iprotech.com EXHIBIT D A 1(Dro rbvativa �nfornvation sduaons The client must complete the following information at the time of execution of this Agreement. NOTICES TO IPRO: Ipro Tech, LLC 1700 N Desert Drive STE 101 Tempe, AZ 85281 Attention: VP of Information Technology - Jamie Neilon Phone: 602.324.4776 Fax: 602.324.4784 Address City /State /Zip Contact Name Contact Title Email Phone Address City /State /Zip Contact Name Contact Title Email Phone Fax DocuSign Envelope ID: 91C2E157- 8278- 4CC8- BB64- 1C9F43AD2D28 This Ipro Cloud Agreement ( "Agreement "), is made and entered into as of the Effective Date, as defined on the signature page attached hereto (the "Signature Page "), by and between Ipro Tech, LLC, an Arizona Limited Liability Company with principal offices located at 1700 N Desert Drive Suite 101, Tempe, AZ 85281 ( "IPRO ") and Customer, as defined on the Signature Page. DEFINITIONS. For the purpose of this Agreement, the following terms shall have the following meanings: Additional Professional Services (Optional). The optional services which may be provided to Customer under this Agreement, as set forth in Exhibit A as attached. Customer Content. Customer's data, including registration data supplied and input by or on behalf of Customer. Hosting Facilities. The centrally located hosting hardware, software and communications facilities necessary to make the IPRO Solution available to customers who have a connection to the Internet. Improvements. Enhancements, updates and upgrades to the IPRO Solution that IPRO makes generally and commercially available to other customers at no additional charge for the term of this Agreement. Products. The Automated Digital Discovery (ADD) platform and its associated components are designed for electronic data discovery, extraction, and processing to output a reviewable deliverable. Eclipse is an integral part of ADD that provides early insight into the size, scope and composition of data collections, designed for large- scale, hosted reviews. Site. The website where the Products are hosted and from where IPRO provides Customer access. Standard Business Hours. Ipro's standard business hours are Monday through Friday 8am to 5pm Arizona Time. IPRO Solution. Collectively, the Products, the Site, the Hosting Facilities or any component thereof including but not limited to associated materials or intellectual property, Improvements thereto, and /or third party products licensed by IPRO included therein. 1. SERVICES. 1.1 Service Periods. Subject to Customer's adherence to the terms and conditions of this Agreement, IPRO agrees to perform and to provide to Customer the Services set forth therein in Exhibit A. 1.2 Media Handling and Service Periods. Customer may transfer Customer Content via Physical Media as outlined in Additional Services, Exhibit A. Media Handling requests are accepted during IPRO's Standard Business Hours. Media Handling requests submitted outside ]PRO's Standard Business Hours will result in an After Hours Service Fee, as set forth in Exhibit A. 1.3 System Maintenance. A regular scheduled maintenance period for the environment will occur weekly from 8pm —12am AZ time every Saturday. Depending on the work performed, the maintenance may or may not impact user access to the environment. Extended maintenance periods may also occur and all customers will be notified at least 1 week in advance as to the duration and impact. Should an emergency arise requiring an unscheduled maintenance period all customers will be notified as soon as possible with the duration and impact. 2. CUSTOMER LICENSE. Subject to Customer's adherence to the terms and conditions of this Agreement, IPRO grants to Customer a limited, non - transferable and non - exclusive right to access and use the IPRO Solution in accordance with the terms of this Agreement, solely for Customer's own internal business purposes, hosted and maintained on IPRO's servers and other equipment, and made available to Customer through password - protected Internet access. Customer acknowledges that this Agreement is specific to the legal entity that has executed this Agreement and that Customer may not sublicense the IPRO Solution to any third parties, except as set forth herein. Customer may permit agents or contractors to use the [PRO Solution on behalf of Customer for the purposes set forth in this Agreement, subject to the terms and conditions of this Agreement, provided that Customer shall remain responsible for any such agents' or contractor's compliance with this Agreement in such use. Except for the Hosting Facilities, Customer will be fully responsible for all the necessary computer hardware, software, modems, and connections to the Internet and other items required for the access and use of the IPRO Solution. 3. LICENSE LIMITATIONS. Customer agrees that it shall not itself, or through any subsidiary, affiliate, agent or other third party: (i) copy any portion of the IPRO Solution; (ii) attempt, or knowingly permit or encourage others to attempt to decompile, decipher, disassemble, reverse engineer or otherwise decrypt or discover the source code of all or any portion of the IPRO Solution; (iii) write or develop any derivative works based on the IPRO Solution; (iv) use any portion of the IPRO Solution in any manner except as expressly provided in this Agreement; (v) loan, rent, or lease the IPRO Solution or otherwise transfer or assign the right to use the IPRO Solution, except as stated herein or with IPRO's prior written consent; (vi) remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the IPRO Solution; (vii) publish or otherwise release any results of benchmark tests run on the IPRO Solution; or (ix) install or run through their Internet accessed account any applications which have not been provided by IPRO as part of the Services or approved through IPRO's third party application approval process. 4. PROPRIETARY RIGHTS. 4.1 Ownership. Customer acknowledges and agrees that this Agreement grants no title or right of ownership in or to the IPRO Solution, or any component thereof, and that IPRO and its licensors retain all right, title and interest in and to the IPRO Solution, including, but not limited to: (i) patent, copyright, trade secret and similar intellectual property rights in the IPRO Solution and underlying technology; (ii) all copies and derivative works thereof (by whomever produced) and (iii) the documentation. Customer shall not, at any time, take or cause any action, which would be inconsistent with or tend to impair the rights of IPRO or its licensors in the IPRO Solution. This Agreement does not grant to Customer any license under any patents or other intellectual property rights that IPRO may own, license or control, except the limited right to use the IPRO Solution as provided in this Agreement. Customer shall not alter or remove any of IPRO's proprietary or copyright notices, trademarks or logos. 4.2 Customer Content. As between IPRO and Customer, Customer shall remain the sole owner of Customer DocuSign Envelope ID: 91C2E157- 8278- 4CC8- BB64- 1C9F43AD2D28 Content. Customer shall not provide any Customer Content subject to regulation under the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996, as amended from time to time (collectively, "Protected Health Information ") without the advanced, written approval of IPRO. Customer agrees to indemnify, defend and hold IPRO harmless from any and all damages, cost, expenses, fines or other liabilities (including reasonable attorney fees and court costs) arising out of or related to any disclosure of Protected Health Information to IPRO in violation of this Section. Subject to the terms and conditions of this Agreement, Customer hereby grants to IPRO and its authorized agents and licensors the non - exclusive right to use, copy, distribute and display Customer Content solely in connection with IPRO's operation of, testing and improvements to the IPRO Cloud, performance of, testing and improvements to the Services, and envorcement of this Agreement. IPRO may also disclose information about Customer necessary to report Customer's usage of IPRO Cloud to IPRO's licensors. Customer, not IPRO, shall have responsibility for the accuracy, integrity, and reliability of Customer Content and Customer's use of IPRO Cloud, and IPRO shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Customer Content or any destruction, damage, loss or failure caused by Customer's use of IPRO Cloud. Notwithstanding the foregoing, Customer grants to ]PRO and its licensors royalty -free, fully -paid up and non - exclusive license and right to use, store, analyze and aggregate the Customer Content for the sole purpose of IPRO performing the Service for Customer. IPRO understands that the Customer Content may contain information that is confidential, proprietary, privileged or otherwise non - public information. IPRO has implemented measures designed to keep the Customer Content confidential and shall not share or disclose such information to any third party for any purpose except as expressly authorized by Customer in writing. IPRO shall exercise the same degree of care with respect to the Customer Content as IPRO takes to safeguard and preserve its own confidential and proprietary information, which in all cases shall be at least a commercially reasonable level of care. 4.3 Third Party Software. Customer acknowledges that (a) the IPRO Solution may contain components IPRO has licensed from various third parties, including Oracle USA, Inc. and its Affiliates (collectively, "Oracle "), including any upgrades, modified versions, updates, additions and copies thereof; (b) these third parties, including Oracle or Oracle's licensor, retains all ownership and intellectual property rights to such components; (c) that Oracle is a third party beneficiary of this Agreement; and (d) that the IPRO Solution may include source code that Oracle may provide as part of its standard shipment of such components, which source code shall be governed by the terms of the Agreement. Third party technology that may be appropriate or necessary for use with the Oracle components is specified in the Documentation and such third party technology is licensed to Customer only for use with the IPRO Solution under the terms of the third party license agreement specified in the Documentation and not under the terms of this Agreement. 5. TERM AND TERMINATION. 5.1 Term. This Agreement shall commence upon the above Effective Date and shall continue until terminated as defined in this Agreement. 5.2 Termination. Customer may terminate this Agreement at any time; however, Customer will still be billed for the full month in which Customer terminated and any services rendered. IPRO may terminate this Agreement upon thirty (30) days prior written notice (fifteen (15) days in the case of payment obligations). Upon termination for any reason, Customer support for and all Customer access rights to the IPRO Solution shall cease. Sections 4, 5, 7 and 8 shall survive any termination of this Agreement. 5.3 Effect of Termination. Upon termination of this Agreement (i) Customer shall return, purge and /or destroy all copies of any and all material relating to the IPRO Solution and provide written confirmation of the same upon reasonable request from IPRO, and (ii) IPRO shall no longer be required to retain or store any Customer Content. 6. FEES. 6.1 Pricing. Pricing for the Term of this Agreement has been placed in Exhibit A. 6.2 Payments. As compensation for (i) Customer's right to access and use the IPRO Solution pursuant to Section 2, (ii) the Services and (iii) any Additional Services, as applicable, Customer shall pay to IPRO the fees set forth in this Agreement. Unless otherwise stated in Exhibit A, Payments for any amounts under this Agreement shall be due net thirty (30) days after the date of invoice. 6.3 Suspension of Access. IPRO shall be permitted to suspend Customer's access to the IPRO Solution in the event and for so long as Customer fails to make its payment obligations set forth in this Section 6. 6.4 Late Payments. Late payments due under this Agreement shall accrue interest at the lower of the legal maximum interest rate or one and one -half percent (1.5 %) per calendar month. 6.5 Taxes. All amounts payable by Customer to IPRO under this Agreement are exclusive of any tax, levy or similar governmental charge that may be assessed by any jurisdiction existing now or in the future, except for net income, net worth or franchise taxes assessed on ]PRO. If IPRO is required to withhold any tax on such payments, then the amount of the payment will be automatically increased to offset such tax, so that the amount actually remitted to IPRO, net of all taxes, equals the amount invoiced or otherwise due. 7. WARRANTIES AND DISCLAIMERS. 7.1 Services. IPRO warrants that the Services and Additional Services will be performed substantially in accordance with the Documentation during the term of this Agreement. IPRO shall not be liable for violation of any applicable law, rule or regulation or the rights of any third party arising out of Customer Content provided to IPRO by Customer. 7.2 Customer Content. Customer warrants to IPRO that it has adequate rights to provide the Customer Content to IPRO. Customer understands that IPRO assumes no responsibility for any Customer Content. IPRO will perform regular backups for disaster recovery purposes for catastrophic failures, however Customer Content could potentially be lost if there is a hardware or similar type of failure. Customer is strongly advised to regularly maintain backup copies of Customer Content originally loaded into the DocuSign Envelope ID: 91C2E157- 8278- 4CC8- BB64- 1C9F43AD2D28 IPRO Solution. In no event shall IPRO be liable for damages resulting from loss of Customer Content. 7.3 Remedies. In the event of a breach by IPRO of the warranties set forth in this Section 7, IPRO shall use reasonable commercial efforts to correct such non- compliance with the warranties at no additional cost to Customer. 7.4 Disclaimers. THE WARRANTIES SET FORTH IN THIS SECTION 7 ARE (PRO'S AND ITS LICENSORS' SOLE AND EXCLUSIVE WARRANTIES TO CUSTOMER AND ANY THIRD PARTY CONCERNING THE SERVICES, ADDITIONAL SERVICES, THE IPRO SOLUTION AND OTHER ITEMS AND SERVICES PROVIDED HEREUNDER AND SECTION 7.3 CONTAINS CUSTOMER'S EXCLUSIVE REMEDY FOR BREACH OF SUCH WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SERVICES, ADDITIONAL SERVICES, THE IPRO SOLUTION AND OTHER ITEMS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED STRICTLY "AS IS," AND NEITHER [PRO NOR ITS LICENSORS MAKE ANY ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE SERVICES, ADDITIONAL SERVICES, IPRO OFFERING AND OTHER ITEMS AND SERVICES PROVIDED HEREUNDER OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF TITLE, NON - INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. 7.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL IPRO BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL IPRO'S LICENSORS BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IPRO'S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, WHETHER OR NOT ARISING FROM ]PRO'S NEGLIGENCE, SHALL NOT EXCEED THE LESSER OF (A) ACTUAL DAMAGES OR (B) AN AMOUNT EQUAL TO THE PAYMENTS MADE BY CUSTOMER TO IPRO PURSUANT TO THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 8. GENERAL 8.1 Assignment. Neither party may assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party; provided, however, IPRO may assign this Agreement to a successor entity in the event of a merger, acquisition, or sale or license of all or substantially all of its assets. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. 8.2 Attorneys' Fees. The prevailing party in any action arising from this Agreement may recover its reasonable attorneys' fees and costs from the losing party. 8.3 Entire Agreement. This Agreement represents the entire agreement of the parties with respect to its subject matter. Neither party has made any representations, warranties, inducements or oral agreements except as expressly set forth herein, or in other contemporaneous written agreements. This Agreement shall not be modified except by a written agreement dated subsequent to the Effective Date of this Agreement and signed on behalf of both parties. 8.4 Force Majeure. IPRO shall not be liable in damages for any default, delay, or other failure in performance, if such default, delay or failure is caused by conditions beyond the reasonable control of ]PRO, including without limitation acts of God, acts of civil or military authority, civil disturbances, declared or undeclared wars, labor disturbances, material shortages, fires, floods, inclement weather or epidemics. If any such delay or default shall continue for more than six (6) months, then either party may terminate this Agreement without liability upon thirty (30) days prior written notice to the other party. 8.5 Governing Law and Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Arizona (excluding the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act). The parties unconditionally and irrevocably agree and consent to the exclusive jurisdiction of the courts located in Maricopa County, Arizona and waive any objection with respect thereto, for the purpose of any action, suit or proceeding arising out of or relating to this Agreement and further agree not to commence any such action, suit or proceeding except in any such court. 8.6 No Waiver. The failure of either party to enforce at any time for any period the provisions of or any rights deriving from this Agreement shall not be construed to be a waiver of such provisions or rights or the right of such party thereafter to enforce such provisions.