HomeMy WebLinkAbout2021-252-E-County Manager-Dude Solutions Contract safety center appRevised 04/21
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[Departmental Use Only]
TITLE Dude Solutions
FY 20-21
NORTH CAROLINA
SERVICES AGREEMENT NO RFP/RFQ
ORANGE COUNTY
This Services Agreement (hereinafter “Agreement”), made and entered into this 1st day of
April, 2020, (“Effective Date”) by and between Orange County, North Carolina a political
subdivision of the State of North Carolina (hereinafter, the "County") and Dude Solutions,
(hereinafter, the "Provider").
WITNESSETH:
That the County and Provider, for the consideration herein named, do hereby agree as follows:
1. Services
a. Scope of Work.
i) This Agreement is for services to be rendered by Provider to County with respect
to (insert type of project): Safety Center App (renewal)
ii) By executing this Agreement, the 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.
iii) Time is of the essence with respect to this Agreement.
iv) The services to be performed under this Agreement consist of Basic Services, as
described and designated in Section 3 hereof. Compensation to the Provider for
Basic Services under this Agreement shall be as set forth herein.
v) For the avoidance of doubt, the service provided hereunder is the commercial
software-as-a-service (“SaaS”) application of Provider. The SaaS is made available
under the terms of the Provider’s subscription agreement, attached hereto as
Attachment A and incorporated herein by reference. The services do not include
any deliverables or works made for hire. The Provider retains all ownership right,
title, and interest in and to the SaaS, including without limitation all corrections,
enhancements, improvements to, or derivative works, and in all intellectual
property rights.
2. Responsibilities of the Provider
a. Services to be provided. The Provider shall provide the County with all services required
in Section 3 to satisfactorily complete the Project within the time limitations set forth
herein and in accordance with the highest professional standards.
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b. Standard of Care.
i) The Provider shall exercise reasonable care and diligence in performing services
under this Agreement in accordance with the highest generally accepted standards
of this type of Provider practice throughout the United States and in accordance
with applicable federal, state and local laws and regulations applicable to the
performance of these services. Provider is solely responsible for the professional
quality, accuracy and timely completion and/or submission of all work related to
the Basic Services.
ii) Provider shall be responsible for all errors or omissions of its agents, contractors,
employees, or assigns 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.
iii) The Provider shall not, except as otherwise provided for in this Agreement,
subcontract the performance of any work under this Agreement without prior
written permission of the County. No permission for subcontracting shall create,
between the County and the subcontractor, any contract or any other relationship.
iv) Provider is an independent contractor of County. Any and all employees of the
Provider engaged by the Provider in the performance of any work or services
required of the Provider under this Agreement, shall be considered employees or
agents of the Provider only and not of the County, and any and all claims that may
or might arise under any workers compensation or other law or contract on behalf
of said employees while so engaged shall be the sole obligation and responsibility
of the Provider.
v) If activities related to the performance of this Agreement require specific licenses,
certifications, or related credentials Provider represents that it and/or its employees,
agents and subcontractors engaged in such activities possess such licenses,
certifications, or credentials and that such licenses certifications, or credentials are
current, active, and not in a state of suspension or revocation.
vi) In determining the Basic Services to be provided, should any documents be
referenced in this Agreement, the terms of this Agreement shall have priority in any
conflict between the terms of referenced documents and the terms of this
Agreement.
vii) Should this Agreement involve project designs, the construction or creation of
which is to be bid out and/or fulfilled by other contractors, and bidding or
negotiation with contractors produce prices which, when added to the other
elements of the approved total project cost, produce a cost that is in excess of the
approved total project cost, the Provider shall participate with the County in
negotiation and design adjustments to the extent such are necessary to obtain prices
within the approved total project cost. All activity of the Provider with respect to
these matters shall constitute Basic Services and shall be performed by the Provider
without additional compensation. If negotiation and design adjustments fail to
bring costs within the total project cost the County may reject all bids and Provider
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will redesign and/or reduce portions of the project in an effort to reduce the bid
prices to within the total project cost and rebid the project. One such redesign is
included within Basic Services. If this second letting for bids does not produce bids
that are within the approved total project cost initially or after negotiations with the
contractor the cost is not reduced to an amount within the total project cost, the
Provider is not obligated to engage in further redesign.
3. Basic Services
a. Basic Services. The Services to be rendered pursuant to this Agreement are as follows
(fully describe services to be provided): Safety Center App for all Orange County
Employee Smart Devices
4. Duration of Services
a. Term. The term of this Agreement shall be from 10/1/20 to 9/30/21, renewable annually
through September 30, 2023, with up to a 5% increase in billable fees annually.
b. Scheduling of Services.
i) The Provider shall schedule and perform its activities in a timely manner.
ii) Should the County determine that the Provider is behind schedule, it may require
the Provider to expedite and accelerate its efforts, including providing additional
resources and working overtime, as necessary, to perform its services in accordance
with the approved project schedule at no additional cost to the County.
iii) The Commencement Date for the Provider's Basic Services shall be 10/1/2020.
5. Compensation
a. Compensation for Basic Services. Compensation for Basic Services shall include all
compensation due the Provider from the County for the Subscription fees for the Term of
this Agreement. The maximum amount payable for Basic Services shall not exceed Six
Thousand Four Hundred Thirty-Nine and 70/100 Dollars ($6,439.70) annually, subject to
increases as provided in section 4.a. Payment for satisfactorily performed Basic Services
shall become due and payable within thirty (30) days of Provider properly invoicing
County. Payment shall be subject to provisions of Section 5(b).
b. Disputes. In the event the amount stated on an invoice is disputed by the County, the
County may withhold payment of all or a portion of the amount stated on an invoice until
the parties resolve the dispute. 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.
c. Additional Services. County shall not be responsible for costs related to any services in
addition to the Basic Services performed by Provider unless County requests such
additional services in writing and such additional services are evidenced by a written
amendment to this Agreement.
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6. Responsibilities of the County
a. Cooperation and Coordination. The County has designated (Alisa Cornetto) to act as the
County's representative with respect to the Project and shall have the authority to render
decisions within guidelines established by the County Manager and/or the County Board
of Commissioners and shall be available during working hours as often as may be
reasonably required to render decisions and to furnish information.
7. Insurance
a. General Requirements. Provider shall obtain, at its sole expense, Commercial General
Liability Insurance, Automobile Insurance, Workers’ Compensation Insurance, and any
additional insurance as may 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 consist of 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.
8. Indemnity
a. Indemnity. To the extent authorized by North Carolina law the Provider agrees, without
limitation, to defend, indemnify and hold harmless the County from all loss, liability,
claims or expense, including reasonable attorney's fees, arising out of or related to the
Project and arising from property damage or bodily injury including death to any person
or persons caused in whole or in part by the negligence or misconduct of the Provider
except to the extent same are caused by the negligence or willful misconduct of the
County. It is the intent of this provision to require the Provider to indemnify the County
to the fullest extent permitted under North Carolina law.
9. Amendments to the Agreement
a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional
compensation or a change in duration of this Agreement shall be made by a written
Amendment to this Agreement executed by the County and the Provider. The Provider
shall proceed to perform the Services required by the Amendment only after receiving a
fully executed Amendment from the County.
10. Termination
a. Termination for Convenience of the County. This Agreement may be terminated without
cause by the County and for its convenience upon seven (7) days’ prior written notice to
the Provider.
b. Other Termination. The Provider may terminate this Agreement based upon the County's
material breach of this Agreement; provided, the County has not taken all reasonable
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actions to remedy the breach. The Provider shall give the County seven (7) days' prior
written notice of its intent to terminate this Agreement for cause.
c. Compensation After Termination.
i) In the event of termination, the Provider shall be paid that portion of the fees and
expenses that it has earned to the date of termination, less any costs or expenses
incurred or anticipated to be incurred by the County due to errors or omissions of
the Provider.
ii) Should this Agreement be terminated, the Provider shall deliver to the County
within seven (7) days, at no additional cost, all deliverables including any electronic
data or files relating to the Project.
d. Waiver. The payment of any sums by the County under this Agreement or the failure of
the County to require compliance by the Provider with any provisions of this Agreement
or the waiver by the County of any breach of this Agreement shall not constitute a waiver
of any claim for damages by the County for any breach of this Agreement or a waiver of
any other required compliance with this Agreement.
e. Suspension. County may suspend the Basic Services and this Agreement at any time for
County’s convenience and without penalty to County upon three (3) days’ notice to
Provider. Upon any suspension by County, Provider shall discontinue work on the Basic
Services and shall not resume the Basic Services until notified to proceed by County.
11. Additional Provisions
a. Limitation and Assignment. The County and the Provider each bind themselves, their
successors, assigns and legal representatives to the terms of this Agreement. Neither the
County nor the Provider shall assign or transfer its interest in this Agreement without the
written consent of the other; provided, however, that the Provider may transfer or assign
this Agreement to the surviving entity in a merger or consolidation or to a purchaser of all
or substantially all of its assets without the written consent of the County.
b. Governing Law. This Agreement and the duties, responsibilities, obligations and rights of
respective parties hereunder shall be governed by the laws of the State of North Carolina.
By executing this Agreement Provider affirms that Provider and any subcontractors of
Provider are and shall remain in compliance with Article 2 of Chapter 64 of the North
Carolina General Statutes. 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.
c. Non-Discrimination. 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 non-discrimination laws, policies, rules, and regulations and the Orange
County Non-Discrimination Policy and Orange County Living Wage Policy (each policy
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is incorporated herein by reference and may be viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php.) Any
violation of the Orange County Non-Discrimination Policy 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.
d. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with
respect to any provision of, or the performance or non-performance of, this Agreement
shall be brought in the General Court of Justice of North Carolina sitting in Orange
County, North Carolina. It is agreed by the parties that no other court shall have
jurisdiction or venue with respect to such suits or actions. Binding arbitration may not be
initiated by either Party, however, the Parties may agree to nonbinding mediation of any
dispute prior to the bringing of such suit or action.
e. Entire Agreement. This Agreement represents the entire and integrated agreement
between the County and the Provider and supersedes all prior negotiations, representations
or agreements, either written or oral. This Agreement may be amended only by written
instrument signed by both parties. Modifications may be evidenced by facsimile
signatures.
f. Severability. If any provision of this Agreement is held as a matter of law to be
unenforceable, the remainder of this Agreement shall be valid and binding upon the
Parties.
g. 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. It is expressly agreed that County
shall not activate this non-appropriation provision for its convenience or to circumvent the
requirements of this Agreement, but only as an emergency fiscal measure during a
substantial fiscal crisis.
In the event of a change in the County’s statutory authority, mandate and/or mandated
functions, by state and/or federal legislative or regulatory action, which adversely affects
County’s authority to continue its obligations under this Agreement, then this Agreement
shall automatically terminate without penalty to County upon written notice to Provider of
such limitation or change in County’s legal authority.
h. Signatures. 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.
i. Notices. Any notice required by this Agreement shall be in writing and delivered by
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certified or registered mail, return receipt requested to the following:
Orange County Provider’s Name
Attention: Alisa Cornetto Dude Solutions
P.O. Box 8181 11000 Regency Pkwy, 110
Hillsborough, NC 27278 Cary, NC27518
IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder
set their hands and seal, all as of the day and year first above written.
ORANGE COUNTY: PROVIDER:
By: _________________________________
Bonnie Hammersley, County Manager
By: __________________________________
Brian Benfer, Senior Vice President of Sales
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ORANGE COUNTY—DEPARTMENT USE ONLY
______________________________________________________________________________
Party/Vendor Name: Dude Solutions Party/Vendor Contact Person: Melissa Buchananr Contact Phone: 877-655-
3833 Party/Vendor Address: 11000 Regency Pkwy, Ste. 110 City Cary State: NC Zip: 27518 Department: Risk
Management Amount: $6,439.70 for 2020 and up to 5% increase annually through 2023 Purpose: Safety Center App
Budget Code(s): 10230220-630000 Vendor # 61502 (N/A if new vendor) Vendor is a BOCC consultant? Yes
No Contract Type: (Check one) New Renewal Amendment Effective Date 10/1/20 Approved by
Board Yes No Agenda Date:
This agreement is approved as to technical form and content and I as Department Director affirmatively state work on
this project has not been initiated prior to execution of the agreement:
Department Director’s Signature ________________________________________ Date: ________
Agreements for emergency services or repair are not subject to the above affirmation. If services related to this
agreement have already begun or been completed please briefly describe the nature of the emergency condition that
was addressed: Due to Pandemic and turnover - ongoing software renewal contract was not completed as services
continued.
Information Technologies
(Applicable only to hardware/software purchases or related services) This agreement has been reviewed and is
approved as to information technology content and specifications:
Office of the Chief Information Officer___________________________________ Date: ________
Risk Management
This agreement is approved for sufficiency of insurance standards, specifications, and requirements:
Office of the Risk Management Officer___________________________________ Date: _________
Financial Services
This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act:
Office of the Chief Financial Officer ____________________________________ Date: _________
Legal Services
This agreement is approved as to legal form and sufficiency:
Office of the County Attorney __________________________________________Date: ________
Clerk to the Board
Received for record retention:
All Docusign contracts must be copied to Sherri Ingersoll upon completion: singersoll@orangecountync.gov
The following signature block is for hard copies only and is not required for Docusign contracts:
Office of the Clerk to the Board __________________________________________Date:_________
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5/12/2021
5/12/2021
5/13/2021
5/13/2021
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CONFIDENTIAL 1 Rev. 12/1/17
SUBSCRIPTION AGREEMENT
This Online Subscription Agreement (this “Agreement”) shall govern Subscriber’s (as defined below) access
and use of the Service (as defined below) provided by Dude Solutions, Inc. (together with its affiliates, successors and
assigns, “DSI”). BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE, BY
EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE ACCESSING AND USING THE
SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. AS A RESULT, PLEASE READ ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT CAREFULLY.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU
REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND
ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND
CONDITIONS SET FORTH HEREIN, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
Section 1.0 Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
1.1 “Access Credentials” means any user name, identification number, password, license or security key,
security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an
individual’s identity and authorization to access and use the Service.
1.2 “Account” means Subscriber’s specific account where Subscriber subscribes to access and use Service(s).
1.3 “Account User” means each employee, consultant and contractor of Subscriber that has been granted
Access Credentials.
1.4 “Affiliate” means, with respect to any legal entity, any other legal entity that (i) controls, (ii) is controlled by
or (iii) is under common control of such legal entity. A legal entity shall be deemed to “control” another legal entity
if it has the power to direct or cause the direction of the management or policies of such legal entity, whether
through the ownership of voting securities, by contract, or otherwise.
1.5 “Annual Fee” means the annual fee invoiced to Subscriber by DSI (or its sales agent) prior to the Initial
Term and each applicable Renewal Term, which is required to be paid in order for Subscriber to be permitted to
access and use the Service and, if Subscriber purchases a Connector Toolkit, the API.
1.6 “API Toolkit” or “API” means DSI’s proprietary application programming interface and any accompanying or
related documentation, software libraries, software tools, published specifications, and other materials, as amended
from time‐to‐time in DSI’s sole discretion.
1.7 “Beta Services” means DSI Services or functionality that may be made available to Subscriber to try at its
option at no additional charge that is clearly designated as beta, pilot, limited release, early adoption, non‐
production, sandbox, evaluation or a similar description.
1.8 “Connector Toolkit” means DSI’s add‐on module that (i) enables DSI’s Subscribers to integrate
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(import/export) Subscriber Data with the Service in batch‐mode or real‐time, and (ii) consists of the “Connecter
Tool”, which is a client‐side executable program installed locally on Subscriber’s computer, and the API.
1.9 “Confidential Information” means any non‐public information and/or materials disclosed in writing or
orally by a party under this Agreement (the “Disclosing Party”) to the other party (the “Receiving Party”), which (i) is
designated in writing as confidential at the time of disclosure, or (ii) with respect to non‐public information disclosed
orally, the Disclosing Party sends the Receiving Party a written notice to Receiving Party within 15 days after oral
disclosure identifying the non‐public information that was disclosed as its confidential information, including when,
where, how and to whom such non‐public information was disclosed. For avoidance of doubt, DSI’s Confidential
Information shall include the source code, data structure, algorithms and logic of the Applications and
Service. Notwithstanding the foregoing, Confidential Information shall not include any information that (i) is or
becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was
known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to
the Disclosing Party, (iii) is received from a Third Party without breach of any obligation owed to the Disclosing Party,
or (iv) was independently developed by the Receiving Party.
1.10 “Content” means all of the audio and visual information, documents, content, materials, products and/or
software contained in, or made available through, the Service.
1.11 “Community Development Services” means the SmartGov, ATS and ASMi software application(s)
subscribed to by Subscriber pursuant to the Agreement, Documentation or Order Form. For avoidance of doubt,
Community Development Services applies only to Subscriber’s production instance and shall exclude all beta and
early adopter programs, user interface (UI) or user experience (UX) changes, feature or functionality improvements,
and enhancements where a workaround exists in production.
1.12 “Documentation” means the user documentation relating to the Service, including but not limited to
descriptions of the functional, operational and design characteristics of the Service.
1.13 “DSI Data” means all data, information and other content provided by or on behalf of DSI Subscribers to
any of the DSI Services.
1.14 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104‐191) and all
regulations promulgated thereunder (45 C.F.R. §§ 160‐164), as amended by Subtitle D of the Health Information
Technology for Economic and Clinical Health Act and all regulations promulgated thereunder, as Title XIII of Division
A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111‐5), as amended
from time to time.
1.15 “Implementation, Training and Support Program” or “ITSP” means DSI’s comprehensive implementation,
training and support program provided to DSI’s Subscribers with respect to the Service.
1.16 “Intellectual Property Rights” means all ideas, concepts, designs, drawings, packages, works of authorship,
processes, methodologies, information, developments, materials, inventions, improvements, software, and all
intellectual property rights worldwide arising under statutory or common law, including without limitation, all (i)
patents and patent applications owned or licensable by a party hereto; (ii) rights associated with works of
authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work
applications and mask work registrations; (iii) rights related to protection of trade secrets and Confidential
Information; (iv) trademarks, trade names, service marks and logos; (v) any right analogous to those set forth in
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clauses (i) through (iv); and (vi) divisions, continuations, renewals, reissues and extensions of the foregoing (as and
to the extent applicable) now existing, hereafter filed, issued or acquired.
1.17 “Order Form” means DSI’s ordering document or online order specifying the Services to be provided
hereunder that is entered into between Subscriber and DSI or its Affiliates, including any addenda and supplements.
Entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original
party.
1.18 “Privacy Policy” means the DSI privacy policy, as amended from time‐to‐time, which can be viewed by
clicking the “Privacy” hypertext link located on www.dudesolutions.com.
1.19 “Service” means DSI’s suite of Software‐as‐a‐Service (SaaS) applications, products and services, as updated,
enhanced or otherwise modified from time‐to‐time that are ordered by Subscriber on an Order Form or provided
without charge (if applicable) and made available by DSI, including mobile components.
1.20 “Subscriber” means the legal entity identified on the Account.
1.21 “Subscriber Data” means all data, information and other content provided by or on behalf of Subscriber to
the Service, including that which the Account Users input or upload to the Service.
1.22 “Third Party” means a party other than Subscriber or DSI.
Section 2.0 Use of the Service and the API; Proprietary Rights
2.1 Use of the Service and the API.
(a) Service Subscription. Subject to the terms of this Agreement (including, without limitation, the
responsibilities, limitations and restrictions set forth in this Section 2.1 and payment of the Annual Fees required
hereunder), (i) DSI shall permit Subscriber's Account Users to access and use the Service(s) during the Term,
including access and use of all of the Content contained in or made available through the Service(s), (ii) Subscriber
shall be automatically enrolled in the ITSP (Implementation, Training and Support Program), if applicable, and (iii)
DSI shall use commercially reasonable efforts to make available to Subscriber each of the components described
in the ITSP, when applicable. Subscriber agrees that it shall use the Service(s) solely for internal business purposes,
and access and use of the Service(s) and the ITSP shall be limited to Account Users.
(b) API License. Subject to the terms of this Agreement (including, without limitation, the
responsibilities, limitations and restrictions set forth in this Section 2.1 and payment of the Annual Fees required
hereunder), provided that Subscriber is purchasing the right to use the Connector Toolkit, DSI hereby grants to
Subscriber a limited, non‐exclusive, non‐transferable, revocable license (without the right to sublicense) to use
and make calls to the API solely for the purpose of (i) extracting and transferring Subscriber Data from the Service
to other Third Party applications used by the Subscriber for internal business purposes, and/or (ii) Subscriber's
internal development efforts to develop applications to work in conjunction with the functionality and capabilities
of the Service purchased by Subscriber ("Subscriber Applications"). Subscriber shall have no right to distribute,
license (whether or not through multiple tiers) or otherwise transfer the API to any Third Party or incorporate the
API in any software, product, or technology.
(c) Account Setup. To subscribe to the Service, Subscriber must establish its Account, which may only
be accessed and used by its Account Users. To setup an Account User, Subscriber must provide DSI (and agree to
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maintain, promptly update and keep) true, accurate, current and complete information for such Account User. If
Subscriber or any applicable Account User provides any information that is untrue, inaccurate, not current or
incomplete, DSI has the right to immediately suspend or terminate Subscriber's Account and usage of the Service
and the API and refuse any and all future use. Each Account User must establish and maintain personal, non‐
transferable Access Credentials, which shall not be shared with, or used by, any other Third Party. Subscriber may
not transfer an Account User's Access Credentials and/or its right to access and use the Service to a different
user. Subscriber shall be solely responsible for any and all activities that occur under its Account, including all acts
and omissions of its Account Users. Subscriber shall notify DS I immediately of any unauthorized use of its Account
and/or any other breach of security of the Service that it suspects or becomes aware of.
(d) Subscriber Responsibilities. Subscriber shall: (i) take appropriate action to ensure that non‐
Account Users do not access or use the Service or the API; (ii) ensure that all Account Users comply with all of the
terms and conditions of this Agreement, including the limitations and restrictions set out in Section 2.1(e); (iii) be
solely responsible for the accuracy, integrity, legality, reliability and appropriateness of all Subscriber Data created
by Account Users using the Service; (iv) access and use the Service solely in compliance with the Documentation
and all applicable local, state, federal, and foreign laws, rules, directives and regulations (including those relating
to export, homeland security, anti‐terrorism, data protection and privacy); (v) allow e‐mail notifications generated
by the Service on behalf of Subscriber's Account Users to be delivered to Subscriber's Account Users; and (vi)
promptly update and upgrade its system as requested or required in order to ensure continued performance and
compatibility with upgrades to the Service and/or API Modifications (as defined in Section 2.1(g)). Subscriber shall
be responsible for any breach of this Agreement by Account Users and any access or Use of the Service by persons
other than Account Users.
(e) Limitations and Restrictions. Subscriber agrees that it shall not, and shall not permit any Third
Party to, directly or indirectly: (i) modify, alter, revise, decompile, disassemble, reverse engineer, create derivative
works or attempt to derive the source code of the Service or the API; (ii) assign, transfer, lease, rent, sublicense,
distribute or otherwise make available the Service or the API, in whole or in part, to any Third Party, including on
a timesharing, software‐as‐a‐service or other similar basis; (iii) share Access Credentials or otherwise allow access
or use the Service or the API to provide any service bureau services or any services on a similar basis; (iv) use the
Service or the API in a way not authorized in writing by DSI or for any unlawful purpose; (v) use the Service or the
API to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit
material in violation of Third Party privacy rights; (vi) attempt to tamper with, alter, disable, hinder, by‐pass,
override, or circumvent any security, reliability, integrity, accounting or other mechanism, restriction or
requirement of the Service or the API; (vii) remove, obscure or alter any copyright, trademark, patent or
proprietary notice affixed or displayed by or in the Service; (viii) perform load tests, network scans, penetration
tests, ethical hacks or any other security auditing procedures on the Service or the API; (ix) interfere with or disrupt
the integrity or performance of the Service, the API or the data contained therein; (x) access or use the Service or
the API in order to replicate applications, products or services offered by DSI and/or otherwise build a competitive
product or service, copy any features, functions or graphics of the Service or the API or monitor the availability
and/or functionality of the Service or the API for any benchmarking or competitive purposes; (xi) under any
circumstances, through a Third Party application, a Subscriber Application or otherwise, repackage or resell the
Service, the API or any DSI data received via the API; (xii) store, manipulate, analyze, reformat, print, and display
the Content for personal use; and (xiii) upload or insert code, scripts, batch files or any other form of scripting or
coding into the Service;.
(f) Additional Service Guidelines. DSI reserves the right to establish or modify general practices and
limits concerning use of the Service. DSI shall provide at least thirty (30) days' prior notice of any such
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modification. DSI also reserves the right to block IP addresses originating a Denial of Service (DoS) attack. DSI shall
notify Subscriber should this condition exist and inform Subscriber of its action. Once blocked, an IP address shall
not be able to access the Service or the API and the block may be removed once DSI is satisfied corrective action
has taken place to resolve the issue.
(g) API Modifications. DSI may modify, amend, change, or deprecate all or part of the API in its sole
discretion at any time (an "API Modification"). DSI shall use reasonable efforts to provide notice to Subscriber of
any such API Modifications as soon as reasonably practical. Subscriber acknowledges that an API Modification may
have a material adverse effect on any applications utilizing or relying upon the API (including Subscriber
Applications), including but not limited to causing such applications not to operate as designed. DSI shall have no
liability of any kind to Subscriber or any user of such applications with respect to such API Modifications or any
adverse effects resulting from such API Modifications.
(h) Controlled API Usage. DSI may limit or suspend Subscriber's usage of or access to the API if, in
DSI's sole discretion, Subscriber or Subscriber's use of the API are adversely affecting the performance or operation
of the API or the Service. DSI shall use reasonable efforts to provide notice to Subscriber of any such actions as
soon as reasonably practical.
(i) Links to Third Party Websites. To the extent that the Service links to any Third Party website,
application or service, the terms and conditions thereof shall govern Subscriber's rights with respect to such
website, application or service, unless otherwise expressly provided DSI. DSI shall have no obligations or liability
arising from Subscriber's access and use of such linked Third Party websites, applications and services.
(j) Beta Services. From time to time, DSI may make Beta Services available to Subscribers at no
charge. Subscriber may choose to try such Beta Services or not in its sole discretion. Use of the Beta Services is at
Subscriber's sole risk and may contain bugs or errors. Subscriber may discontinue use of the Beta Services at any
time, in its sole discretion. Further, DSI may discontinue any and all Beta Services availability at any time in its sole
discretion without notice. NOTWITHSTANDING THE DISCLAIMER OF WARRANTIES IN SECTION 7.2(b) AND
INDEMNIFICATION IN SECTION 7.3, BETA SERVICES AND DOCUMENTATION, ARE PROVIDED ON AN "AS‐IS" AND
"AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON‐INFRINGEMENT. DSI SHALL HAVE NO
INDEMNIFICATIN OBLIGATIONS AND NO LIABILITY OF ANY TYPE WITH RESPECT TO THE BETA SERVICES UNLESS
SUCH EXCLUSION IS UNENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE DSI’S LIABILITY WITH RESPECT TO
THE BETA SERVICES PROVIDED SHALL NOT EXCEED $500.00.
2.2 Proprietary Rights.
(a) Subscriber acknowledges and agrees that (as between Subscriber and DSI) DSI retains all ownership
right, title, and interest in and to the Service, the API, the Documentation and the Content, including without
limitation all corrections, enhancements, improvements to, or derivative works thereof (collectively, "Derivative
Works"), and in all Intellectual Property Rights therein or thereto. To the extent any Derivative Work is developed
by DSI based upon ideas or suggestions submitted by Subscriber to DSI, Subscriber hereby irrevocably assigns all
rights to modify or enhance the Service and/or the API using such ideas or suggestions or joint contributions to DSI,
together with all Intellectual Property Rights related to such Derivative Works. Nothing contained in this Agreement
shall be construed to convey to Subscriber (or to any party claiming through Subscriber) any Intellectual Property
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Rights in or to the Service, the API, the Documentation and the Content, other than the rights expressly set forth in
this Agreement.
(b) DSI acknowledges and agrees that (as between Subscriber and DSI) Subscriber retains all ownership
right, title, and interest in and to the Subscriber Data, including all Intellectual Property Rights therein or
thereto. Notwithstanding the foregoing, Subscriber hereby grants DSI and its Affiliates a non‐exclusive, royalty‐free
license to: (i) access, display, copy, distribute, transmit, publish, disclose and otherwise use all or any portion of the
Subscriber Data to fulfill its obligations under this Agreement. In addition, Subscriber hereby grants DSI a non‐
exclusive, royalty‐free right to use aggregated and de‐identified data generated and/or derived by DSI from the
Subscriber Data (the "De‐Identified Data") in order to improve the Services and DSI's performance hereunder to
grow DSI's business, including without limitation, submitting and sublicensing such De‐Identified Data to Third
Parties for analytical purposes, provided that DSI shall take commercially reasonable efforts to conduct such de‐
identification in a manner that ensures that such De‐Identification cannot be traced back to Subscriber.
(c) Subscriber acknowledges the Services may utilize, embed or incorporate Third Party software and/or
tools (each, a "Third‐Party Tool") under a license granted to DSI by one or more applicable Third Parties (each, a
"Third‐Party Licensor"), which licenses DSI the right to sublicense the use of the Third‐Party Tool solely as part of the
Services. Each such sublicense is nonexclusive and solely for Subscriber's internal use and Subscriber shall not further
resell, re‐license, or grant any other rights to use such sublicense to any Third Party. Subscriber further
acknowledges that each Third‐Party Licensor retains all right, title, and interest to its applicable Third‐Party Tool and
all documentation related to such Third‐Party Tool. All confidential or proprietary information of each Third‐Party
Licensor is Confidential Information of DSI under the terms of this Agreement and shall be protected in accordance
with the terms of Section 8.
Section 3.0 DSI Responsibilities
3.1 Implementation, Training and Support Program (ITSP). During the Term DSI (or its agent,
representative or designee) shall provide and maintain an ITSP program. During the Term, DSI shall, as part of
Subscriber’s Subscription Fees, provide telephone and email support (“Support Services”) during the hours of 8:00 AM
and 6:00 PM EST, Monday through Friday, excluding New Year’s Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, day after Thanksgiving, Christmas Eve and Christmas Day (“Business Hours”), except Community
Development Services, where Business Hours means 5:00 AM – 5:00 PM PST.
3.2 Professional Services. DSI shall provide and perform professional, technical, consulting and/or other
services (collectively, “Professional Services”) that are mutually agreed upon and described in one or more statements
of work that expressly reference this Agreement. Each statement of work shall be effective, incorporated into and
form a part of this Agreement when duly executed by an authorized representative of each of the parties. Each
statement of work shall (i) describe the fees and payment terms with respect the Professional Services being provided
pursuant to such statement of work, (ii) identify any work product that will be developed pursuant to such statement
of work, and (iii) set forth each party’s respective ownership and proprietary rights with respect to any work product
developed pursuant to such statement of work.
3.3 Service Levels.
(a) DSI shall use commercially reasonable efforts to make the Service available 99.9% for each full
calendar month during the Term, determined on a twenty‐four(24) hours a day, seven (7) days a week basis (the
“Service Standard”). Service availability for access and use by Subscriber(s) excludes unavailability when due to: (a)
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any access to or use of the Service by Subscriber or any Account User that does not strictly comply with the terms of
the Agreement or the Documentation; (b) any failure of performance caused in whole or in part by Subscriber’s delay
in performing, or failure to perform, any of its obligations under the Agreement; (c) Subscriber’s or its Account User’s
Internet connectivity; (d) any Force Majeure Event; (e) any failure, interruption, outage, or other problem with
Internet service or Non‐DSI Service; (f) Scheduled Downtime; or (g) any disabling, suspension, or termination of the
Service by DSI pursuant to the terms of the Agreement. “Scheduled Downtime” means, with respect to any
applicable Service, the total amount of time (measured in minutes) during an applicable calendar month when such
Service is unavailable for the majority of Subscribers’ Account Users due to planned Service maintenance. To the
extent reasonably practicable, DSI shall give at least eight (8) hours prior electronic notice of Service maintenance
events and schedule outside the business hours of 6:00 AM to 10:00 PM EST.
(b) DSI shall use reasonable efforts to ensure the availability of the API in accordance with the service
levels described in Section 3.3. Notwithstanding the foregoing, DSI does not guarantee any required uptime,
performance, or integrity of any product, application or service that integrates with and/or otherwise utilizes the API
(including, without limitation, any such product, application or service developed by Subscriber). Moreover, DSI shall
not be liable to Subscriber or any Third Party for the unavailability of the API or the failure of the API to perform in
accordance with its specifications. Subscriber shall not represent to any Third Party any availability or performance
levels with respect to the API.
3.4 Protection of Subscriber Data. DSI shall maintain commercially reasonable administrative, physical,
and technical safeguards for protection of the security, unauthorized access or disclosure of Subscriber Data. In
addition, if Subscriber is a “Covered Entity” under HIPAA, DSI shall be Subscriber’s “Business Associate” under HIPAA,
and any Subscriber Data provided by Subscriber to DSI in their capacities as a Covered Entity and Business Associate,
respectively, DSI and Subscriber shall enter into a Business Associate Agreement (the form of which shall be reasonably
satisfactory to DSI). At all times during the Subscription term and upon written request of Subscriber within thirty (30)
days after the effective date of termination or expiration of this Agreement, Subscriber data shall be available for
Subscriber’s export and download. Following the thirty (30) days after termination or expiration, DSI shall not be
obligated to maintain Subscriber Data and shall delete or destroy what remains in its possession or control unless
prohibited by law.
Section 4.0 Third Party Interactions
4.1 Relationship to Third Parties. In connection with Subscriber’s use of the Service, Subscriber may: (i)
enter into correspondence with and/or participate in promotions of advertisers or sponsors showing their goods
and/or services through the Service; (ii) purchase goods and/or services, including implementation, customization,
content, forms, schedules, integration and other services; (iii) exchange data, integrate, or interact between
Subscriber’s Account, the Service, the API and a Third Party provider; (iv) be offered additional functionality within the
user interface of the Service through use of the API; and/or (v) be provided content, knowledge, subject matter
expertise in the creation of forms, content and schedules. Any such activity, and any terms, conditions, warranties or
representations associated with such activity, shall be solely between Subscriber and the applicable Third Party. DSI
shall have no liability, obligation or responsibility for any such correspondence, purchase, promotion, data exchange,
integration or interaction between Subscriber and any such Third Party.
4.2 Ownership. Subscriber is the owner of all Third Party content and data loaded into the Subscriber
Account. As the owner, it is Subscriber’s responsibility to make sure it meets its particular needs. DSI shall not
comment, edit or advise Subscriber with respect to such Third Party content and data in any manner.
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4.3 No Warranty or Endorsement. DSI does not warrant any Third Party providers or any of their products
or services, whether or not such products or services are designated by DSI as “certified,” “validated,” “premier”
and/or any other designation. DSI does not endorse any sites on the Internet that are linked through the Service. DSI
is providing these links to Subscriber only as a matter of convenience, and in no event shall DSI be responsible for any
content, products, or other materials on or available from such sites. The limitations of liability shall apply to all Third
Party Interactions.
Section 5.0 Annual Fees
5.1 Annual Fees. Subscriber shall, on or before the commencement of the Initial Term of a Service
subscription, pay to DSI the Annual Fee for such Service subscription. Thereafter, DSI shall invoice Subscriber for each
applicable Annual Fee at least sixty (60) days prior to the commencement of the applicable Renewal Term. Unless
Subscriber provides written notice of non‐renewal in accordance with Section 6.1, Subscriber agrees to pay all Annual
Fees no later than thirty (30) days after the receipt of DSI’s applicable invoice. Subscriber is responsible for providing
complete and accurate billing and contact information to DSI and notifying DSI of any changes to such information.
5.2 Automatic Payments. Subscriber shall, upon the written request from DSI, establish and maintain
valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment
Method”). Upon establishment of such Automatic Payment Method, DSI (as DSI’s collection agent) is hereby
authorized to charge any applicable Annual Fee using such Automatic Payment Method.
5.3 Renewal Charges. DSI maintains the right to increase Annual Fees and other applicable fees and
charges in connection with each Renewal Term.
5.4 Taxes. DSI’s fees do not include any taxes, levies, duties or similar governmental assessments of any
nature, including, for example, value‐added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever
(collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with its purchases hereunder. If DSI
has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section 5.4, DSI (as DSI’s
collection agent) shall invoice Subscriber and Subscriber shall pay that amount unless Subscriber provides DSI with a
valid tax exemption certificate authorized by the appropriate taxing authority. Subscriber agrees to indemnify and
hold DSI harmless from any encumbrance, fine, penalty or other expense which DSI may incur as a result of
Subscriber’s failure to pay any Taxes required hereunder. For clarity, DSI is solely responsible for taxes assessable
against DSI based on its income, property and employees.
Section 6.0 Term and Termination
6.1 Term. This Agreement commences on the date Subscriber establishes its Account and continues until
the Service subscription hereunder has expired or have been terminated (the “Term”). The initial term of the Service
subscription shall be set forth on the Order Form (the “Initial Term”). Thereafter, the Service subscription shall
automatically renew for successive one year periods (each, a “Renewal Term”) unless either party has provided
written notice of its intent to not renew the Service subscription not less than thirty (30) days prior to the expiration
of the then‐current Initial or Renewal Term applicable to the Service subscription.
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6.2 Termination of Agreement for Breach. Either party may terminate this Agreement (including its
Service subscription and Account) prior to the expiration of the Term if the other party commits a material breach of
this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach is given by the
non‐breaching party; provided that if the breach involves a failure of Subscriber to pay any of the fees required under
this Agreement, the cure period shall be reduced to ten (10) days. Without limiting the foregoing, in the event of a
breach that gives rise to the right by DSI to terminate this Agreement, DSI may elect, as an interim measure, to suspend
Subscriber’s access and use of the Service, the API (if applicable) and the Account until the breach is cured. DSI’s
exercise of its suspension right shall be without prejudice to DSI’s right to terminate this Agreement upon written
notice to Subscriber.
6.3 Termination for Convenience. Subscriber may terminate this Agreement (including its Service
subscription and Account) at any time for convenience by providing DSI forty‐five (45) days’ prior written notice to the
following email address: notice@dudesolutions.com. Upon termination by Subscriber pursuant to this Section 6.3,
Subscriber may request in writing and be granted a refund in accordance with the following: (i) if DSI receives
Subscriber’s written notice of termination within the first sixty (60) days after the commencement of the Initial Term,
DSI shall refund to Subscriber eighty percent (80%) of the Annual Fee prepaid for the Initial Term (the “Initial Year
Subscription Fee”); (ii) if DSI receives Subscriber’s written notice of termination during the Initial Term but after the
first sixty (60) days thereof, DSI shall refund to Subscriber a ny prepaid Subscription Fees of the Initial Year Subscription
determined based upon the number of full months remaining in the Initial Term (based upon the effective date of
termination). For avoidance of doubt, no refund shall be granted during a Renewal Term or with respect to
Professional Services rendered.
6.4 Effect of Termination. Upon termination of this Agreement, (i) Subscriber’s access and use of the
Service shall automatically cease, and (ii) DSI shall have no obligation to maintain the Subscriber Data or to forward
the Subscriber Data to Subscriber or any Third Party.
6.5 Survival. The following portions of this Agreement shall survive termination of this Agreement and
continue in full force and effect: Sections 2.1(e), 2.2, 6.4, 7, 8 and 9. Termination of this Agreement, or any of the
obligations hereunder, by either party shall be in addition to any other legal or equitable remedies available to such
party, except to the extent that remedies are otherwise limited hereunder.
Section 7.0 Representations, Warranties and Disclaimers
7.1 Representations. Subscriber represents and warrants that: (i) it has full right, title and authority to
enter into this Agreement; and (ii) this Agreement constitutes a legal, valid and binding obligation of Subscriber,
enforceable against it in accordance with its terms.
7.2 Warranties.
(a) DSI represents and warrants that all such Professional Services shall be performed in a professional
and workmanlike manner in accordance with generally accepted industry standards. For any breach of this
warranty, Subscriber's exclusive remedy and DSI's entire liability shall be the re‐performance of the applicable
Professional Services.
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(b) EXCEPT AS EXPRESSLY STATED HEREIN, THE PARTIES MAKE NO REPRESENTATION, WARRANTY, OR
GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR
COMPLETENESS OF THE SERVICES OR ANY CONTENT. PARTIES DISCLAIM ALL REPRESENTATIONS OR WARRANTIES
THAT: (I) THE USE OF THE SERVICES OR API SHALL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR‐FREE OR
OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) THE SERVICES OR
API SHALL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (III) ANY STORED DATA SHALL BE ACCURATE OR
RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR
OBTAINED BY YOU THROUGH THE SERVICES SHALL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (V) ERRORS
OR DEFECTS SHALL BE CORRECTED; (VI) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE
ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES A ND ALL CONTENT IS PROVIDED TO YOU
STRICTLY ON AN "AS‐IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON‐INFRINGEMENT, ARE HEREBY DISCLAIMED TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE PARTIES.
7.3 Indemnification.
(a) Indemnity by DSI. DSI shall defend and indemnify Subscriber from any loss, damage or expense
(including reasonable attorneys' fees) awarded by a court of competent jurisdiction, or paid in accordance with a
settlement agreement signed by Subscriber, in connection with any Third Party claim (each, a "Claim") alleging
that Subscriber's use of the Service as expressly permitted hereunder infringes upon any United States patent,
copyright or trademark of such Third Party, or misappropriates the trade secret of such Third Party; provided that
Subscriber (x) promptly gives DSI written notice of the Claim; (y) gives DSI sole control of the defense and
settlement of the Claim; and (z) provides to DSI all reasonable assistance, at DSI's expense. If DSI receives
information about an infringement or misappropriation claim related to the Service, DSI may in its sole discretion
and at no cost to Subscriber: (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a
license for Subscriber's continued use of the Service, or (iii) terminate this Agreement (including Subscriber's
Service subscriptions and Account) upon prior written notice and refund to Subscriber any prepaid Annual Fee
covering the remainder of the term of the terminated Service subscriptions. Notwithstanding the foregoing, DSI
shall have no liability or obligation with respect to any Claim that is based upon or arises out of (A) use of the
Service in combination with any software or hardware not expressly authorized by DSI, (B) any modifications or
configurations made to the Service by Subscriber without the prior written consent of DSI, and/or (C) any action
taken by Subscriber relating to use of the Service that is not permitted under the terms of this Agreement. This
Section 7.3(a) states Subscriber's exclusive remedy against DSI for any Claim of infringement of misappropriation
of a Third Party's Intellectual Property Rights related to or arising from Subscriber's use of the Service.
(b) To the extent allowable under applicable law, Subscriber shall defend and indemnify DSI from any
loss, damage or expense (including reasonable attorneys' fees) awarded by a court of competent jurisdiction, or
paid in accordance with a settlement agreement signed by DSI, in connection with any Claim alleging that the
Subscriber Data, or Subscriber's use of the Service or the API in breach of this Agreement, infringes upon any United
States patent, copyright or trademark of such Third Party, or misappropriates the trade secret of such Third Party;
provided that DSI (x) promptly gives Subscriber written notice of the Claim; (y) gives Subscriber sole control of the
defense and settlement of the Claim; and (z) provides to Subscriber all reasonable assistance, at Subscriber's
expense. This Section 7.3(b) states DSI's exclusive remedy against Subscriber for any Claim of infringement of
misappropriation of a Third Party's Intellectual Property Rights related to or arising from the Subscriber Data or
Subscriber's use of the Service.
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7.4 Limitation of Liability. IN NO EVENT SHALL DSI, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO
SUBSCRIBER IN EXCESS OF THE AMOUNT OF ANNUAL FEES PAID BY SUBSC RIBER TO PROVIDER (INCLUDING PAYMENTS
TO DSI, AS PROVIDER’S COLLECTION AGENT, FOR USE OF THE SERVICE) PURSUANT TO THIS AGREEMENT DURING THE
TWELVE MONTHS PRIOR TO THE FIRST ACT OR OMISSION GIVING RISE TO THE LIABILITY. UNDER NO CIRCUMSTANCES
SHALL PROVIDER HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE
FOR LOSS OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF
PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY
IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR PRODUCTS LIABILITY. NOTHING IN THIS SECTION SHALL LIMIT
SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 5.0.
Section 8.0 Confidentiality
8.1 Protection of Confidential Information. The Receiving Party agrees that it shall (i) hold the Disclosing
Party’s Confidential Information in strict confidence and shall use the same degree of care in protecting the
confidentiality of the Disclosing Party’s Confidential Information that it uses to protect its own Confidential
Information, but in no event less than reasonable care, (ii) not use the Confidential Information of the Disclosing Party
for any purpose not permitted by this Agreement; (iii) not copy any part of the Disclosing Party’s Confidential
Information except as expressly permitted by this Agreement, (iv) limit access to the Confidential Information of the
Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with
this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no
less stringent than those herein.
8.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing
Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such
compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the
Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing
Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing
Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost
of compiling and providing secure access to such Confidential Information.
8.3 Records Requests. To the extent permitted by law, Subscriber shall treat as exempt from treatment
as a public record, and shall not disclose in response to a request made pursuant to any applicable public records law,
any of DSI’s Confidential Information. Upon receiving a request to produce records under any applicable public
records or similar law, Subscriber shall immediately notify DSI and provide such reasonable cooperation as requested
by DSI and permitted by law to oppose production or release of such DSI Confidential Information.
8.4 Remedies. Recipient acknowledges that Disclosing Party would have no adequate remedy at law
should Receiving Party breach its obligations relating to Confi dential Information and agrees that Disclosing Party shall
be entitled to enforce its rights by obtaining appropriate equitable relief, including without limitation a temporary
restraining order and an injunction.
Section 9.0 Miscellaneous
9.1 Compliance with Laws. Subscriber will comply with all laws and applicable government rules and
regulations insofar as they apply to Subscriber in its performance of this Agreement’s rights and obligations.
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9.2 Acceptance of Privacy Policy. All data and information provided by Subscriber through its use of the
Service is subject to DSI’s privacy policy, as amended from tim e‐to‐time, which can be viewed by clicking the “Privacy”
hypertext link located within the Service. By using the Service, Subscriber accepts and agrees to be bound and abide
by such privacy policy.
9.3 Governing Law. This Agreement and any dispute arising out of or in connection with this Agreement
shall be governed by and construed under the laws of the State of North Carolina, without regard to the principles of
conflict of laws. Each of DSI and Subscriber hereby waives any right to jury trial in connection with any action or
litigation in any way arising out of or related to this Agreement.
9.4 Relationship of the Parties. DSI is performing pursuant to this Agreement only as an independent
contractor. DSI has the sole obligation to supervise, manage, contract, direct, procure, perform or cause to be
performed its obligations set forth in this Agreement, except as otherwise agreed upon by the parties. Nothing set
forth in this Agreement shall be construed to create the relationship of principal and agent between DSI and
Subscriber. DSI shall not act or attempt to act or represent itself, directly or by implication, as an agent of Subscriber
or its affiliates or in any manner assume or create, or attempt to assume or create, any obligation on behalf of, or in
the name of, Subscriber or its affiliates.
9.5 Waiver. No failure or delay by either party in enforcing any of its rights under this Agreement shall be
construed as a waiver of the right to subsequently enforce any of its rights, whether relating to the same or a
subsequent matter.
9.6 Assignment. Subscriber shall have no right to transfer, assign or sublicense this Agreement or any of
its rights, interests or obligations under this Agreement to any Third Party and any attempt to do so shall be null and
void. DSI shall have the full ability to transfer, assign or sublicense this Agreement or any of its rights, interests or
obligations under this Agreement.
9.7 Force Majeure. Subject to the limitations set forth below, neither party shall be held responsible for
any delay or default, including any damages arising therefrom, due to any act of God, act of governmental entity or
military authority, explosion, epidemic casualty, flood, riot or civil disturbance, war, sabotage, unavailability of or
interruption or delay in telecommunications or Third Party services, failure of Third Party software, insurrections, any
general slowdown or inoperability of the Internet (whether from a virus or other cause), or any other similar event
that is beyond the reasonable control of such party (each, a “Force Majeure Event”). The occurrence of a Force
Majeure Event shall not excuse the performance by a party unless that party promptly notifies the other party of the
Force Majeure Event and promptly uses its best efforts to provide substitute performance or otherwise mitigate the
force majeure condition.
9.8 Notices. Except as otherwise specified in this Agreement, all notices, instructions, requests,
authorizations, consents, demands and other communications hereunder shall be in writing and shall be delivered by
one of the following means, with notice deemed given as indicated in parentheses: (a) by personal delivery (when
actually delivered); (b) by overnight courier (upon written verification of receipt); (c) by certified or registered mail,
return receipt requested (upon verification of receipt); or (d) solely with respect to notices to Subscriber, via electronic
mail to the e‐mail address maintained on Subscriber’s Account. All notices to DSI shall be addressed to
notice@dudesolutions.com or Dude Solutions, Inc., Attn: Legal Department, 11000 Regency Parkway, Suite 400, Cary
NC 27518
9.9 Interpretation of Agreement. The Section headings contained in this Agreement are solely for the
purpose of reference, are not part of the agreement of the parties, and shall not affect in any way the meaning or
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CONFIDENTIAL 13 Rev . 03/31/2020
interpretation of this Agreement. Any reference to any federal, state, local or foreign statute or law shall be deemed
to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
9.10 No Third Party Beneficiaries. No person or entity not a party to the Agreement shall be deemed to be
a third party beneficiary of this Agreement or any provision hereof.
9.11 Severability. The invalidity of any portion of this Agreement shall not invalidate any other portion of
this Agreement and, except for such invalid portion, this Agreement shall remain in full force and effect.
9.12 Entire Agreement. This Agreement is the entire agreement between Subscriber and DSI regarding
Subscriber’s use of the Service and supersedes all prior and contemporaneous agreements, proposals or
representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any
provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification,
amendment or waiver is to be asserted. The parties agree that any term or condition stated in any purchase order or
in any other order documentation is void.
9.13 Export Compliance. The Services, other technology DSI may make available, and derivatives thereof
may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that
it is not named on any U.S. government denied‐party list. Subscriber shall not permit any Account User to access or
use any Service or Content in a U.S.‐embargoed country or in violation of any U.S. export law or regulation.
9.14 Anti‐Corruption. Neither party has received or been offered any illegal or improper bribe, kickback,
payment, gift, or thing of value from an employee or agent of the other party in connect with this
Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above
restriction. If Subscriber learns of any violation of the above restriction, Subscriber shall immediately notify DSI.
9.15 Cooperative Use. With Subscriber’s approval, the market research conducted by Subscriber during its
selection process for the Services may be extended for use by other jurisdictions, municipalities, and government
agencies of Subscriber’s state. Any such usage by other entities must be in accordance with ordinance, charter, and/or
procurement rules and regulations of the respective political entity.
9.16 Modifications. DSI may revise the terms of this Agreement from time‐to‐time and shall post the most
current version of this Agreement on its website. If a revision meaningfully reduces Subscriber’s rights, DSI shall notify
Subscriber.
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