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HomeMy WebLinkAbout2021-409-E-Acid Remap-Protocol application creation and supportRevised 07/20 ORANGE COUNTY—DEPARTMENT USE ONLY ______________________________________________________________________________ Party/Vendor Name: Acid Remap, LLC Party/Vendor Contact Person: Oded Wurman / Ben Powers Contact Phone: 415-967-2243 Party/Vendor Address: 560A Missouri Street City: San Francisco State: CA Zip: 94107 Department: Emergency Services (EMS) Amount: $3000 / year for 3 years Purpose: Protocol Application Creation and Support Budget Code(s): 10757520-625000 Vendor # N/A (N/A if new vendor) Vendor is a BOCC consultant? Yes No Contract Type: (Check one) New Renewal Amendment Effective Date 8/1/21 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: 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 the Clerk upon completion: occlerkdocs@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:_________ DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A 7/22/2021 7/23/2021 7/26/2021 7/26/2021 7/27/2021 Page 1 of 10 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law SUBSCRIPTION AGREEMENT This is a SUBSCRIPTION AGREEMENT (“Agreement”), effective as of the last date accompanying the signatures of the parties, between Acid Remap LLC (“Acid Remap”), with offices located at 560A Missouri Street, San Francisco, CA 94107, and Orange County, a local political subdivision of the State of North Carolina, for and on behalf of the Orange County Emergency Services Department (“Client”), with offices located at 510 Meadowlands Drive, Hillsborough, NC 27278. Acid Remap and Client may each be referred to as a “party” and together be referred to as the “parties.” RECITALS WHEREAS, Acid Remap offers a mobile application service that provides certain EMS protocols and other Client Data under the name Paramedic Protocol Provider; and WHEREAS, Client desires to license Paramedic Protocol Provider for use subject to the “Terms of Ser- vice” set forth on www.acidremap.com, as may be amended from time to time. NOW THEREFORE, the parties hereby agree as follows: 1. DEFINED TERMS. 1.1 “Application” is a mobile software plat- form through which Client may digitally distribute Client Data, including, without limitation, EMS protocols and policies to certain end-users. The term “Application” shall be deemed to include any (i) upgrades or updates of the Application made af- ter the effective date of this Agreement and (ii) Custom Applications provided to Client. 1.2 “Client Data” is any Client data or con- tent, including, without limitation, any EMS proto- cols and policies, shared with Acid Remap through use of the Application. 1.3 “Custom Application” is an Application specifically branded for Client and containing Cli- ent’s Client Data exclusively. 1.4 “User” refers to each employee, consult- ant, client or other agent of Client, which Client authorizes to access the Application on Client’s be- half or on behalf of an agency for which Client pro- vides services, including, without limitation, EMTs, paramedics or other medical practitioners operating under Client's medical license. 1.5 “EMS” refers to Emergency Medical Ser- vices. 2. INTELLECTUAL PROPERTY. 2.1 License. (a) Subject to the terms and conditions of this Agreement, including, but not limited to, Client’s obligation to pay fees when due, Acid Remap hereby grants to Client and Users a nonexclusive license to access and use, subject to the Terms of Service in effect at the time of use and the “Sched- ules” attached as exhibits hereto, the Application, including any Custom Applications specified in the Schedules attached hereto, during the Term of this Agreement solely for its internal business op- erations (b) Client grants to Acid Remap a nonexclu- sive, royalty-free license during the Term to access and use the Client Data for the purposes of distrib- uting such Client Data as part of the Application, which such license expressly, and without limita- tion, includes the right of Acid Remap to modify such Client Data as is commercially reasonable to fulfill Acid Remap’s obligations under this Agree- ment; provided, that such modifications do not change the substantive content of such Client Data. (c) Client is solely responsible for providing all telecommunications, computer and other equip- ment necessary for accessing the Application. (d) Acid Remap retains the right, in its sole discretion and without prior notice or liability, to restrict or terminate access to the Application by DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A Page 2 of 10 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law Client and/or particular Users, and to otherwise re- move any Client Data from the Application if Cli- ent and/or any of its use of the Application violates any applicable federal, state, local or international laws or regulations, or the rights of any third party. 2.2 Ownership. (a) Acid Remap retains all rights to the Ap- plication not expressly granted to Client in this Agreement. Without limiting the generality of the foregoing: (i) except as specifically set forth in this Agreement and as with regards to Client Data, which is the sole and exclusive property of Client, Acid Remap has all rights, title and interest in and to the Application, all components thereof, all con- tent which Acid Remap makes available to Client for downloading and all intellectual and industrial property rights embodied therein or pertaining thereto, including, without limitation, copyrights, patent rights, trademarks and trade names, and trade secrets. (ii) any configuration or deployment of the Application shall not affect or diminish Acid Remap’s rights, title, and interest in and to the Ap- plication, and (iii) Client shall not limit Acid Remap in any way from developing, using, licens- ing, distributing, modifying, or otherwise freely exploiting the Application, any other materials provided by Acid Remap, or any modifications, enhancements, improvements or derivative works thereof, or from permitting third parties from so doing; provided, that, except as expressly set forth herein, Acid Remap shall not use any Client Data for any purpose other than providing the Applica- tion to Client and Users. (b) The Application is licensed, not sold, to Client, and solely for the purposes set forth in this Agreement. To the extent Client or its Users cre- ates any derivative works or improvements to the Application, Client, on behalf of itself and its Us- ers, hereby assigns all right, title and interest to such derivative works or improvements, including, without limitation, all intellectual property rights, to Acid Remap. 2.3 Restrictions on Use. (a) Except as otherwise specifically permit- ted under this Agreement, and with the exception of any Client Data, Client shall not, and Client shall not permit any third party to (i) copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, de- liver or otherwise transfer the Application to any third party in whole or in part; provided, that Client may copy Acid Remap’s documentation as needed for use by its Users, (ii) derive or attempt to derive the source code of any portion of the Application by any means, (iii) reverse engineer, decompile, disassemble, or translate the Application or any part thereof, (iv) transfer any of the Application components to any other person, entity, computer, computer network, or other device, or (v) upload, post, mail, publish, transmit or distribute in any way the Application, any component of the Appli- cation or derivative works based thereon. (b) Client may not sublicense or use the Ap- plication for commercial time-sharing, rental, out- sourcing, or service bureau use, or to train persons other than Users, unless previously agreed to in writing by Acid Remap. 2.4 Limited Trademark License. No li- cense, right or interest in the trademarks, trade names or service mark of either party or its licen- sors (“Marks”) is granted hereunder, except for the limited purpose of marketing and publicity to the extent permitted by Section 10.4 and except as oth- erwise necessary to fulfill the terms of this Agree- ment. Each party expressly retains the right to monitor the uses, if any, to which its (or its licen- sors’) Marks are put, and each party shall comply with instructions which the other party may give from time to time regarding the other party’s (or its licensors’) Marks. 2.5 Limited Access to Client Data. (a) If, in the course of Acid Remap perform- ing its obligations hereunder, it is necessary for Acid Remap to access Client Data to an extent not otherwise provided herein, Client hereby grants Acid Remap a royalty-free right to access Client DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A Page 3 of 10 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law Data for the purposes of fulfilling Acid Remap’s obligations under this Agreement. (b) Client shall not transmit any “protected health information” (“PHI”, as defined in 45 C.F.R. 160.103) or “individually identifiable health information” (as defined in 42 U.S.C. 1320d) without the written consent of Acid Remap. In the event such consent is given, Acid Remap shall comply with the Health Insurance Portability and Accountability Act of 1996, as cod- ified as 42 U.S.C. 1329D (“HIPAA”), the Health Information Technology for Economic and Clini- cal Health Act (“HITECH”), and any current and future regulations promulgated under HIPAA or HITECH, including, without limitation, the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the “Federal Privacy Regulations”), the federal security standards contained in 45 C.F.R. Part 142 (the “Federal Security Regula- tions”) and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162, all collectively referred to herein as “HIPAA Requirements,” to the extent applicable. Acid Remap shall further comply with all relevant state and local laws governing the privacy and security of patient health or personal information, to the ex- tent applicable. (c) To the extent applicable, Acid Remap shall not use or further disclose any PHI or Indi- vidually Identifiable Health Information, other than as permitted by HIPAA requirements and the terms of this Agreement. 3. C OMPENSATION. 3.1 Fees. Client will pay Acid Remap the Fees as defined in the Schedules. 3.2 Professional Services. In connection with Client’s use of the Application, Acid Remap may provide Client with services related to the Ap- plication, as Client may request from time to time and the parties mutually agree. Acid Remap shall bill all such services to Client on a time and mate- rials basis at Acid Remap’s then-current rates. Cli- ent shall in all cases be responsible for Acid Remap’s reasonable out-of-pocket expenses, in- cluding, without limitation, travel and lodging. 3.3 Payment Terms. Client shall pay Acid Remap pursuant to the billing options indicated in the Schedules. In the event of overdue payment, Acid Remap reserves the right to discontinue ac- cess to the Application or suspend any services un- til Client remits the outstanding balance due. If payments remain past due for more than twenty (20) days after receipt of notice of non-payment by Client, Acid Remap may terminate this Agreement for cause as set forth in Section 8.2. Acid Remap will bear no liability or responsibility in the exer- cise of the rights set forth in this Section 3.3 for non-payment. Client shall pay Acid Remap’s costs of collection (including, without limitation, rea- sonable attorney’s fees). 3.4 Taxes. All charges hereunder exclude, and Client will be solely responsible for and shall pay or reimburse Acid Remap for, all sales, use, excise and other taxes, which may be levied in con- nection with this Agreement, except for taxes based on Acid Remap’s net income and payroll. 3.5 Currency. All payments by Client are to be in US Dollars unless otherwise specified in the Schedules. 3.6 Developer Account Fees. Client may be required to open a developer account in one or more of the third party application stores through which Client distributes the Application (e.g., an Apple developer account or Android developer ac- count). Client shall be responsible for any fees re- lated to such an account. Enforcement of any such fee obligation is at the discretion of the third party application store owners. 4. CLIENT DATA AND MAINTE- NANCE. 4.1 Data Storage. Client owns all rights and interests to the Client Data stored in the Applica- tion. Upon termination of this Agreement, Acid Remap shall use commercially reasonable efforts to transfer Client’s Data in electronic form to Cli- ent or a third party designated in writing by Client. This Agreement sets forth the rights of the parties DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A Page 4 of 10 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law and is not intended to cause by application of stat- utory law or otherwise Acid Remap to be deemed a carrier, bailee, or warehouseman of Client Data, information, or other property. 4.2 Privacy of Registration Data. In order to become an authorized subscriber, Client and its Users may be asked to provide certain personal data (“Registration Data”). All Registration Data Client and Users provide to Acid Remap will be, to the best of the knowledge of Client and Users, current, accurate and complete at the time of the inquiry. Acid Remap will not disclose Registration Data except (i) as required by law or pursuant to a court order, (ii) as necessary to protect the personal safety of other Acid Remap subscribers or the pub- lic, (iii) as necessary to protect or defend the rights or property of Acid Remap, or (iv) for contacting Users of the Application. Client shall take all com- mercially reasonable efforts to ensure that Client’s account(s) and password(s) are not disclosed to or used by any unauthorized party, and will promptly notify Acid Remap upon learning of any such un- authorized use. 5. WARRANTIES AND DISCLAIMER OF WARRANTY. 5.1 Acid Remap represents, warrants and covenants: (a) That the Applications and any Custom Applications performs and will substantially per- form in accordance with the applicable specifica- tion. (b) That it has obtained and will continue in effect all rights and title, including any third party licenses, required for it to perform its obligations under this Agreement, including with respect to any upgrades or other changes to the Application or any Custom application, provided, that this war- ranty shall not extend to any specification or Client Data. (c) That it uses and will use industry standard methods to ensure against the unauthorized access to, disclosure or use of, any Client Data, including implementation of industry standard information security methods. (d) That the Application and any Custom Ap- plication are and will be served from locations within the US and that no Client Data will be pro- cessed by, or stored by, Acid Remap outside of the United States without the express written consent of Client. Acid Remap makes no warranties with respect to data storage, processing or serving by third parties, including, without limitation the Ap- ple App Store, Google Play and Amazon Appstore. 5.2 Each party represents and warrants: (a) That it has the authority to enter into this Agreement and that doing so will not result in a breach of any prior agreement. (b) That it will perform its obligations under this Agreement in accordance with applicable law, including all applicable privacy and data protec- tion laws. 5.3 THE APPLICATION, ACCESS THERETO, AND ANY SERVICES PRO- VIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND ACID REMAP AND ITS AFFILIATES AND AGENTS: (I) DO NOT MAKE, AND HEREBY EX- PRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMI- TATION, WARRANTIES OF MERCHANT- ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (I I) DO NOT WARRANT THAT ACCESS TO THE APPLICATION WILL BE UNINTER- RUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE THROUGH THE APPLICATION IS FREE OF VIRUSES, CANCELBOTS, WORMS, LOGIC BOMBS, TROJAN HORSES, OR OTHER HARMFUL CONTENTS OR COM- PONENTS; AND (III) SHALL IN NO EVENT BE LIABLE TO CLIENT OR ANY- ONE ELSE FOR ANY INACCURACY, ER- ROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE (INCLUDING, WITHOUT DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A Page 5 of 10 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law LIMITATION, LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAIL- URES, DELAYS OR INTERRUPTIONS OF THE APPLICATION. NO ORAL OR WRIT- TEN INFORMATION OR ADVICE GIVEN BY ACID REMAP OR AN APPROVED REPRESENTATIVE SHALL CREATE A WARRANTY UNLESS IT IS IN WRITING AND SIGNED BY AN AUTHORIZED REP- RESENTATIVE OF ACID REMAP. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CER- TAIN WARRANTIES. IN SUCH JURISDIC- TIONS, ACID REMAP’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. 5.4 Client Acknowledgement. Client repre- sents and warrants that it fully understands that (i) the Application is a mobile application intended to deliver Client Data to Users, (ii) the Application is dependent upon a number of factors outside the control of Acid Remap, including, without limita- tion, the operation of third party provided hard- ware and network services, (iii) the Application is not intended to be the sole source of providing EMS protocols and other Client Data, and is not a substitute for any of Client’s current systems or methods of providing medical treatment and/or medicine, (iv) there may be occasional communi- cation failures or delays in the display of Client Data, and (v) the Application is not expected to perform at the same level of performance and/or reliability one might expect from medical devices used in the delivery of critical medical care in clin- ical environments. 6. LIMITATION OF LIABILITY. 6.1 Exclusion of Consequential Damages. EXCEPT FOR BREACHES OF SECTION 9 OR THE INDEMNIFICATION OBLIGA- TIONS UNDER SECTION 7 , IN NO EVENT SHALL CLIENT, USERS ACID REMAP OR ACID REMAP’S SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPE- CIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBIL- ITY OF SUCH DAMAGES; provided, that in the event Client gives access to the Application to non-authorized persons, Acid Remap shall be enti- tled to recover the full amount of any license fees that would relate to such persons if they were Us- ers. 6.2 Limitation of Direct Damages. Except for its obligations to indemnify Client under Sec- tion 7 , or for any breach of its nondisclosure obli- gations under Section 9, the aggregate and cumu- lative liability of Acid Remap and its suppliers for damages hereunder shall in no event exceed the amount of fees paid by Client for the previous twelve (12) months under this Agreement. Except for Client’s obligations to indemnify Acid Remap under Section 7, or any breach of its obligations to comply with the License grant under Sec- tion 2.1(a), the Restrictions on Use under Sec- tion 2.3, its payment obligations, and its non-dis- closure obligations under Section 9, Client’s ag- gregate and cumulative liability for damages here- under shall in no event exceed the amount of fees paid by Client under this Agreement. 7. INDEMNIFICATION. 7.1 General Indemnity. Client shall defend, indemnify and hold harmless, to the extent pro- vided by North Carolina law, Acid Remap and its employees, officers, directors and agents (the “Acid Remap Indemnitees”) against all losses, judgments, costs, fees (including reasonable attor- ney’s fees in the event that Client fails to meet its obligations hereunder), damages, or other ex- penses of any kind for bodily injury, death, or dam- age to real or tangible personal property, proxi- mately caused by Client or any Users in the course of performing this Agreement or using the Appli- cation, including, without limitation, those caused by any modifications to the Application requested by Client; provided, that (i) Client receives prompt DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A Page 6 of 10 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law written notice of the claim from the Acid Remap Indemnitees under this Section 7.1, (ii) Client has the right to control the defense of such claim and any related settlement negotiations, and (iii) the Acid Remap Indemnitees provide to Client, at Cli- ent’s request and expense, with the reasonable as- sistance, information and authority necessary to perform Client’s obligations under this Sec- tion 7.1. Notwithstanding the foregoing, Client shall not enter into any settlement that requires an admission of wrongdoing or payment by an Acid Remap Indemnitee without the consent of that Acid Remap Indemnitee. In the event that Client declines to perform its obligations under this Sec- tion 7.1, Acid Remap may perform those obliga- tions at Client’s expense. 7.2 Intellectual Property Indemnity. (a) Acid Remap shall defend, indemnify and hold harmless Client, its officers, directors, em- ployees and Users (the “Client Indemnitees”) against any and all third party claims or allega- tions, including any losses, judgments, costs, fees (including reasonable attorney’s fees in the event that Acid Remap fails to meet its obligations here- under), damages, or other expenses of any kind re- lated to such claims or allegations, (collectively, “IP Claims”) that the Application infringes or mis- appropriates any patent, copyright, or trademark, trade secret or any other intellectual property right of any kind; provided, that (i) Acid Remap re- ceives prompt written notice of the IP Claim from the Client Indemnitees under this Section 7.2, (ii) Acid Remap has the right to control the defense of such claim and any related settlement negotia- tions, and (iii) the Client Indemnitees provide to Acid Remap, at Acid Remap’s request and ex- pense, with the reasonable assistance, information and authority necessary to perform Acid Remap’s obligations under this Section 7.2. In the event that Acid Remap declines to perform its obligations un- der this Section 7.2, Client may perform those ob- ligations at Acid Remap’s expense. (b) Acid Remap shall have no obligation un- der this Section 7.2 to the extent that an IP Claim arises from (i) the use of a superseded or altered release of the Application if the infringement would have been avoided by the use of a current unaltered release of the Application and Client was notified to cease use of the superseded release as a result of a claim of infringement, (ii) the modifica- tion of the Application by or on behalf of Client, except where such modification was approved in writing by Acid Remap; provided, that the in- fringement would not have resulted but for the modification, (iii) the use of the Application other than in accordance with the documentation, the Terms of Service and this Agreement, or (iv) the use of any materials or information provided to Acid Remap by Client, including, without limita- tion, Client Data, where the infringement would not have occurred but for such use, for which Cli- ent shall be solely responsible. (c) If the Application is held to infringe or is believed by Acid Remap to infringe, Acid Remap shall have the option, at its expense, to (i) replace or modify the Application to be non-infringing, or (ii) obtain for Client a license to continue using the Application. If it is not commercially reasonable to perform either of the foregoing options, then Acid Remap may terminate the Application license and refund the remainder of any license fees paid for the Application, and fees for any Services that di- rectly relate to such Application, pro-rated to re- flect the period of time in which Client had full and unrestricted access to the Application. This Sec- tion 7.2 states Acid Remap’s entire liability and Client’s exclusive remedy for any claim of in- fringement. (d) Client shall defend, indemnify and hold harmless, to the extent provided by North Carolina law, the Acid Remap Indemnitees against any losses, judgments, costs, fees (including reasona- ble attorney’s fees in the event that Client fails to meet its obligations hereunder), damages, or other expenses of any kind arising from third party claims that Acid Remap’s use of Client Data or any modifications to the Application requested by Cli- ent infringes any patent, copyright, or trademark or is a misappropriation of any trade secrets or any other form of intellectual property Agreement; provided, that (i) Client receives prompt written DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A Page 7 of 10 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law notice of the claim from the Acid Remap Indem- nitees under this Section 7.2(d), (ii) Client has the right to control the defense of such claim and any related settlement negotiations, and (iii) the Acid Remap Indemnitees provide to Client, at Client’s request and expense, with the reasonable assis- tance, information and authority necessary to per- form Client’s obligations under this Section 7.2(d). Notwithstanding the foregoing, Client shall not en- ter into any settlement that requires an admission of wrongdoing or payment by an Acid Remap In- demnitee without the consent of that Acid Remap Indemnitee. In the event that Client declines to per- form its obligations under this Section 7.2(d), Acid Remap may perform those obligations at Client’s expense. This Section 7.2(d) states Client’s entire liability and Acid Remap’s exclusive remedy for any claim of infringement or misappropriation. 8. TERM AND TERMINATION. 8.1 Term. This Agreement shall commence and remain in effect for the term set forth in any Schedule attached as an exhibit to this Agreement, or until terminated in accordance with Section 8.2; provided, that the term shall automatically renew upon continued payment by Client of any fees in- voiced by Acid Remap on a payment period-by- payment period basis unless Acid Remap delivers to Client notice of termination at least thirty (30) days prior to the end of the then current term. 8.2 Termination. Except as otherwise set forth in this Agreement, either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days af- ter receipt of written notice, except in the case of failure to pay fees, which must be cured within twenty (20) days after receipt of written notice from Acid Remap or (ii) the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or other proceeding relating to insol- vency, receivership, liquidation, or composition for the benefit of creditors. 8.3 Effect of Termination. (a) Upon termination of this Agreement, (i) Client and its Users will immediately cease ac- cess to the Application and (ii) Client shall pay all charges that accrued prior to such termination. (b) In the event of a termination by Acid Remap pursuant to Section 2.1(d) or Section 8.2, all charges payable by Client for the remaining term of this Agreement shall accelerate and shall also be due and payable by Client at the time of the termination. (c) The following provisions shall survive the termination of this Agreement for any reason: Sections 1, 2.1, 2.2, 2.3, 3, 4, 5.3, 5.4, 6, 7, 8.3, 9 and 10. 9. CONFIDENTIAL INFORMATION. 9.1 Confidential Information. In the perfor- mance of this agreement, each party may disclose certain of its Confidential Information to the other party. Each party receiving such information (the “receiving party”) shall hold the Confidential In- formation of the other party (“disclosing party”) in strict confidence and not disclose that Confidential Information to third parties nor use for any purpose not authorized herein, nor permit access to Confi- dential Information, except to those of its employ- ees or authorized representatives having a need to know and who are bound by confidentiality obli- gations at least as restrictive as those contained herein. A party’s “Confidential Information” in- cludes the business plans and strategies, financial information, the terms of this Agreement, software programs and source code documents, proprietary processes, Client Data and any other information which is (i) disclosed to the other party in a writing marked confidential or (ii) a person should reason- ably know is confidential. Upon learning of any unauthorized use or disclosure of a disclosing party’s Confidential Information, the other party shall immediately notify the disclosing party. 9.2 Exceptions. The restrictions of Sec- tion 9.1 shall not apply to (i) information that be- comes, through no act or fault of the receiving party, publicly known or generally known in the relevant industry, (ii) information received from a DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A Page 8 of 10 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law third party not obligated under a confidentiality agreement with the disclosing party, (iii) infor- mation independently developed by the receiving party without reference to the Confidential Infor- mation, (iv) information required to be disclosed by law or court or governmental agency order; pro- vided, that, to the extent permitted by law, the re- ceiving party gives prompt notice of such require- ment to the other party, or (v) disclosures to a pro- fessional advisor of the disclosing party under a duty of confidentiality. 9.3 Ownership and Return of Confidential Information. All Confidential Information shall remain the property of the disclosing party. Except as required by law, upon written request of the dis- closing party, the receiving party shall promptly return to the disclosing party all documents and other tangible materials representing the disclosing party’s Confidential Information, together with all copies thereof (at disclosing party’s expense). 10. MISCELLANEOUS. 10.1 Relationship. The relationship between the parties is that of vendor and purchaser. Neither party, nor any employee of a party, is an independ- ent contractor or employee of the other. Each party shall be responsible for determining the method, location and other details of its performance under this Agreement, for hiring, paying (including providing benefits) and managing any and all of its employees, and for providing any and all equip- ment or other materials necessary for its perfor- mance under this Agreement. 10.2 Applicable Law and Forum. The United Nations Convention on Contracts for the Interna- tional Sale of Goods is specifically excluded from application to this Agreement. 10.3 Force Majeure. Except for Client’s obli- gation to make payments, neither party will be lia- ble for any failure or delay in its performance un- der this Agreement due to any cause beyond its reasonable control, including, without limitation, acts of war, acts of God, earthquake, flood, em- bargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the internet; pro- vided, that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. 10.4 Publicity and Marketing. Notwithstand- ing anything to the contrary in this Agreement, each party may publicize the existence of the busi- ness relationship established hereunder in connec- tion with any product, promotion or publication arising under this Agreement; provided, that, ex- cept as required by law, Client shall not disclose any of the terms of this Agreement to any third party without first obtaining the written consent of Acid Remap. Client hereby grants Acid Remap a license to use and publish Client’s name and/or Marks as part of Acid Remap’s customer lists or as otherwise set forth herein, in the form provided by Client and in compliance with Client’s applicable trademark usage policies. Client shall serve as a reference account for Acid Remap. As such, Acid Remap may provide Client’s name and contact in- formation to, and Client may be contacted by, members of the media, market analysts, potential customers or other parties interested in Client’s opinion of Acid Remap and its products or ser- vices. Depictions of the Application using Client’s EMS protocols or other Client Data may be used by Acid Remap, or any third party with Acid Remap’s permission, for publicity or marketing purposes. 10.5 Assignment. Client may not assign this Agreement, or its rights or duties hereunder, to any third party, in whole or in part, whether voluntarily or involuntarily, by operation of law (e.g., in a stat- utory merger) or otherwise, without Acid Remap’s prior written consent, which may be granted or withheld in Acid Remap’s reasonable discretion. Acid Remap reserves the right to impose an addi- tional reasonable start-up fee on any proposed as- signee, as a precondition to permitting such assign- ment. 10.6 Notices. All notices must be in writing and delivered personally or sent by overnight cou- rier service to the address indicated herein or such DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A Page 9 of 10 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law other address as either party may indicate by writ- ten notice, or sent via e-mail to the e-mail address currently specified by either party to the other. No- tice will be deemed effective upon the earlier of actual receipt or two business days after deposit with an overnight courier or email transmission. 10.7 Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of this Agreement will be unimpaired, and the invalid term or provision will be replaced by such valid term or provision as comes closest to the intention underlying the invalid term or provision. 10.8 Attorneys’ Fees. In the event of any liti- gation of any controversy or dispute arising out of or in connection with this Agreement, its interpre- tation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the pros- ecution or defense of that controversy or dispute. In the event of a non-adjudicative settlement of lit- igation between the parties or a resolution of dis- pute by arbitration, the term “prevailing party” shall be determined by that same process. 10.9 Entire Agreement, Waiver, Amend- ment. This Agreement and the Schedules together constitute the entire, exclusive and final statement of the agreement of the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous representations, proposals, ne- gotiations, discussions, and agreements between the parties regarding the same subject matter, whether oral or in writing. In the event this Agree- ment conflicts with the Terms of Service, this Agreement shall govern. Except as expressly set forth herein, this Agreement, including, without limitation, any Schedule or exhibit to this Agree- ment, may not be modified or amended except by an instrument in writing signed by the parties hereto. The waiver or failure of either party to ex- ercise in any respect any rights provided for in this Agreement will not be deemed a waiver of any fur- ther right under this Agreement. There are no in- tended third-party beneficiaries to this Agreement. 10.10 Counterparts. This Agreement may be executed in counterparts, which taken together shall be considered one original Agreement. The exchange of a fully executed Agreement (in coun- terparts or otherwise) by fax or e-mail shall be suf- ficient to bind the parties to the terms and condi- tions of this Agreement. 10.11 Affirmations. By executing this Agree- ment, Acid Remap affirms that they and any of their subcontractors are and shall remain in com- pliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement, Acid Remap certifies that they have not been identified and have not utilized any agent or subcontractor's services on the list created by the State Treasurer according to G.S. 147-86.58. By executing this Agreement, Acid Remap certifies that they have not been identified and have not uti- lized any agent or subcontractor's services identi- fied on the list created by the State Treasurer ac- cording to G.S. 147-86.81. 10.12 Non Appropriation. Acid Remap acknowledges that Client is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the author- ity of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of Client's obligations during the term of this Agreement, the Client agrees to provide Acid Remap with immediate notice, and this con- tract terminated on the last day of the fiscal year, funds were appropriated. The Client will be re- sponsible for services performed up to the date of notice of non-appropriation of funds. 10.13 Non-Discrimination. Acid Remap shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regula- tions, including but not limited to all state and fed- eral non-discrimination laws, policies, rules, and regulations and the Orange County Non-Discrimi- nation Policy and Orange County Living Wage DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A Page 10 of 10 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law Policy (each policy is incorporated herein by refer- ence and may be viewed at http://www.orangec- ountync.gov/departments/purchasing_divi- sion/contracts.php). Any violation of the Orange County Non-Discrimination Policy is a breach of this Agreement, and the Client may immediately terminate this Agreement without further obliga- tion on the part of the Client. This paragraph is not intended to limit and does not restrict the definition of a breach to discrimination. 10.14 Signatures. This Agreement, together with any amendments or modifications, may be ex- ecuted electronically. All electronic signatures af- fixed hereto evidence the intent of the Parties to comply with Article 11A and Article 40 of North Carolina General Statute Chapter 66. * * * * * The undersigned duly authorized representatives of the parties have executed this Agreements as of the dates set forth below. EXECUTED BY: ORANGE COUNTY Signature: Name: Bonnie Hammersley Title: County Manager Date: EXECUTED BY: ACID REMAP LLC Signature: Name: Title: Date: DocuSign Envelope ID: 57B81867-7CC5-4DAD-8EC6-2C80F5632E9A 7/27/2021 Benjamin Powers Chief Operating Officer 7/27/2021