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HomeMy WebLinkAbout2024-156-E-Animal Svc-DigitalCheetah-Software setup support for Animal Services 1 SERVICES SUBSCRIPTION AGREEMENT This Services Subscription Agreement (the “Agreement”) sets forth the terms and conditions governing Digital Cheetah’s provision to Client of a proprietary volunteer / member management solution and related services. This Agreement, together with the Order Form attached to it, and any Order Forms and statements of work entered into by the parties from time to time, constitutes the entire agreement of the parties and supersedes any prior and contemporaneous oral or written understanding as to the parties’ relationship and the subject matter hereof. Except as expressly set forth herein, this Agreement may only be modified in a writing signed by both parties. Additional or different terms in any purchase order or other communication from Client are void. This Agreement may be executed in two or more counterparts, each of which will be deemed an original for all purposes, and together will constitute one and the same document. By executing this Agreement, Digital Cheetah affirms that it and any of its subcontractors are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement, Digital Cheetah certifies that Digital Cheetah has not been identified and, to its knowledge has not utilized the services of any agent or subcontractor, on the list created by the State Treasurer pursuant to G.S. 147 -86.58. 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 intent of the parties to comply with Article 11A and Article 40 of North Carolina General Statutes Chapter 66. Once executed, both parties agree that any reproduction of this Agreement made by reliable means (for example, a photocopy, facsimile, or PDF file) is an original. AGREED TO AND ACCEPTED: AGREED TO AND ACCEPTED: “Digital Cheetah" “Client” DIGITAL CHEETAH SOLUTIONS, INC. ORANGE COUNTY Authorized Signature Authorized Signature Bonnie Hammersley Print Name Print Name County Manager Title Title Date Date Parties: “Digital Cheetah” “Client” or “County” Full Legal Name: DIGITAL CHEETAH SOLUTIONS, INC. ORANGE COUNTY Business Entity Type: Corporation a political subdivision of the State of North Carolina Organized In: State of Texas State of North Carolina Address: 512 E. Riverside Drive, Suite 270 Austin, TX 78704 300 W. Tryon Street, PO Box 8181, Hillsborough, NC 27278 Attn: Accounting Department Attn: Sandra Strong Phone: 512-539-5522 Phone: 919-942-7387 Email address: accounting@dcheetah.com Email address: sstrong@orangecountync.gov Agreement Effective Date: March 14, 2024 DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F President AJ Tidwell 3/14/2024 3/19/2024 Digital Cheetah® Solutions, Inc. Orange County Animal Services 2 Confidential & Proprietary 1. Definitions. “Account” means any account or instance created by or on behalf of Client within the Services. “Client Data” refers to electronic data, text, messages, communications, audio, video, images or other content submitted to and stored within the Hosted Services by Client and Users in connection with Client’s use of the Hosted Services. Client Data may include, without limitation, Personal Data. “Digital Cheetah Technology” means the proprietary technology (including graphics, data files, algorithms, user interfaces, software, hardware, know- how, techniques, designs, and other tangible or intangible technical material or information) provided or utilized by Digital Cheetah to make the Hosted Services available for access and use by Client including for the storage, retrieval, and processing of Client Data in connection with Client’s use of the Hosted Services. “Documentation” means the user guide, whether in written or electronic form, which specifies the functionalities and features of the Hosted Services or describe the Service Plans, as applicable, that Digital Cheetah provides or makes available to customers through its client portal. Documentation specifically excludes any “community moderated” forums provided or accessible through such portal or otherwise. “Hosted Services” means the online Volunteer Management System described in Exhibit A made available by Digital Cheetah via the applicable login link and other web pages designated by Digital Cheetah, as updated or modified by Digital Cheetah from time to time. Hosted Services exclude Other Services as that term is defined in this Agreement. “Order Form” means Digital Cheetah’s then-current standard form generated by Digital Cheetah and executed or approved by Client with respect to Client’s subscription to the Hosted Services, which form may detail, among other things, the Service Plan applicable to Client’s subscription to the Hosted Services. The initial Order Form entered into by the parties is attached to this Agreement. “Other Services” means third party offerings, products, services, or information which the Hosted Services link to or which Client may connect to or enable in conjunction with the Hosted Services including, without limitation, Other Services which may be integrated directly into Client’s Account by Client or at Client’s direction. “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity. “Software” means software provided by Digital Cheetah (either by download or access through the internet) that allows Users to use any functionality in connection with the Hosted Services. “Subscription Fees” means the fees paid by Client for the right to access and use the Hosted Services during the applicable Term. “Subscription Term” is defined in Section 10.a (“Subscription Term”). “Support Plan” means the support services provided by Digital Cheetah as selected by Client from the plans made available by Digital Cheetah. “User" means an individual, whether a Client employee, member, volunteer, or other agent or consultant, who is authorized by Client to use the Hosted Services. 2. General Conditions; Access to and Use of the Services. a. Access to the Services. During the Subscription Term and subject to compliance by Client and Users with this Agreement, Client has the limited right to access and use the Hosted Services for Client’s internal business purposes. Digital Cheetah will make the Hosted Services and Client Data available to Client pursuant to this Agreement and the applicable Order Forms. Digital Cheetah will use commercially reasonable efforts to make the Hosted Services available to Client 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades to and maintenance of the Services (of which Digital Cheetah will use commercially reasonable efforts to notify Client in advance through the Services (“Planned Downtime”)); and (ii) for any unavailability caused by circumstances beyond the reasonable control of Digital Cheetah. b. Access Requirements. A high speed Internet connection is required for proper transmission of the Hosted Services. Client is responsible for procuring and maintaining all hardware, software and services, including the network connections that connect Client’s network to the Services and “browser” software that supports protocols used by Digital Cheetah, and for following procedures for accessing services that support such protocols. c. Additional Responsibilities regarding Access to and Use of the Services. i. Passwords and Accounts. Client is responsible for all activities conducted under its Account and User logins, and for all Client Data. Without limiting the foregoing, Client is solely responsible for ensuring that use of the Hosted Services to store and transmit Client Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations Client may maintain or enter into with Users. Client also maintains all responsibility for determining whether the Hosted Services or the information generated thereby is accurate or sufficient for Client’s purposes. Client and Users are responsible for safeguarding the confidentiality of the User names and passwords, and of all Login information for the Account. Client will provide Digital Cheetah with prompt written notice regarding any unauthorized use of a User login, Client Data or the Hosted Services of which Client becomes aware, and will take all steps necessary to terminate such unauthorized use. In addition, Client will provide Digital Cheetah with any cooperation and assistance reasonably requested by Digital Cheetah related to any such unauthorized use. ii. Client Content and Data. Client acknowledges and agrees that it (A) has responsibility for the accuracy and quality of all Client Data that is transmitted to, stored in, or accessed through the Hosted Services; (B) will ensure that Client Data complies with this Agreement, and applicable laws and regulations; and (C) will promptly handle and resolve any notices and claims from a third party claiming that any Client Data violates that party’s rights, including regarding take-down notices pursuant to the Digital Millennium Copyright Act. Digital Cheetah does not monitor any Client Data transmitted through the Hosted Services. iii. Other Client Obligations. Client agrees that it will not, and will not authorize or otherwise permit any Users to: (A) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or time share the Hosted Services, (B) except as expressly permitted in this Agreement or in the Documentation, make the Hosted Services available to any third party, other than authorized Users in furtherance of Client’s internal business purposes, (C) use the Hosted Services to process data on behalf of any third party other than Users, (D) modify, adapt, or hack the Hosted Services or otherwise attempt to gain unauthorized access to the Hosted Services or related systems or networks, (E) use the Hosted Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights, (F) use the Hosted Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (G) use the Hosted Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; or (H) use the Hosted Services send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Client also agrees not to interfere with, impair, overburden or disrupt the integrity or performance of the Hosted Services or the data contained in it or attempt to gain unauthorized access to the Hosted Services or the systems or networks used to provide it. Digital Cheetah reserves the right to modify, suspend or terminate the Hosted Services (or any part of the Hosted Services), Client’s Account or Client’s and/or Users’ rights to access and use the Hosted Services, and remove, disable and discard any Client Data if Digital Cheetah reasonably believes that Client or Users have violated this Agreement. This includes the removal or disablement of Client Data in accordance with the requirements of the Digital Millennium Copyright Act. Unless legally prohibited from doing so, Digital Cheetah will use commercially reasonable efforts to notify Client directly via email when taking any of the foregoing actions. Digital Cheetah shall not be liable to Client or Users or any other third party for any such modification, suspension or discontinuation of Client’s rights to access and use the Hosted Services. d. Copyright and Proprietary Notices. Client acknowledges that Digital Cheetah will post in a mutually agreeable location on Client’s instances of the Services a “Created by Digital Cheetah” statement and logo in a size and prominence reasonably acceptable to Client. 3. Availability of Other Digital Cheetah Services. a. Availability of Support. Upon Client’s payment of applicable fees, Digital Cheetah will provide Client with the type of support services selected DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F Digital Cheetah® Solutions, Inc. Orange County Animal Services 3 Confidential & Proprietary by Client from the Support Plans made available by Digital Cheetah. Digital Cheetah will automatically renew support (for the same Support Plan selected by Client during the prior period) by invoicing Client for the fee applicable to the next subsequent twelve month period (each, a “Support Period”). Renewal will be effective upon Digital Cheetah’s receipt of Client’s payment. If Client does not remit payment by the commencement date of the new Support Period, support will be cancelled. Client may also change the Support Plan or cancel support at the end of a Support Period by notifying Digital Cheetah per the process specified by Digital Cheetah. b. Availability of Professional Services. If Client requests that Digital Cheetah provide Client with consulting, training, or other professional services, Digital Cheetah will prepare a statement of work describing the services to be performed, the obligations of each party, applicable charges, and any other applicable terms. To be effective, each statement of work must be signed by both parties. The parties agree that the specified Professional Services to be completed pursuant to any statement of work primarily involve the configuration of Client’s subscription to the Services and integration of Client Data with and into the Services using Digital Cheetah’s know-how, ideas, concepts, information, and Digital Cheetah Technology. Unless otherwise expressly specified in a statement of work, no deliverable provided in connection with the Professional Services provided pursuant to the Agreement constitutes a “work made for hire” under this Agreement. In the event that any such deliverable is held to be a work made for hire, Client hereby assigns to Digital Cheetah all right, title and interest therein or, to the extent such assignment is not permitted or effective, hereby grants to Digital Cheetah a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. 4. Intellectual Property Ownership Rights. a. Ownership by Client. As between Client and Digital Cheetah, Client or its licensors own all right, title, and interest in and to the Client Data. Client grants Digital Cheetah the right to use the Client Data solely to provide the Hosted Services and prevent or address service, support or technical problems. Client represents and warrants that Client has all rights in the Client Data necessary to grant these rights of use, and that such use does not violate any law or this Agreement. No title to or ownership of any proprietary rights related to the Client Data is transferred to Digital Cheetah pursuant to this Agreement. Client reserves all rights not expressly granted to Digital Cheetah. b. Ownership by Digital Cheetah. As between Digital Cheetah and Client, Digital Cheetah or its licensors own all right, title, and interest in and to the Digital Cheetah Technology and the Hosted Services, including documentation as well as maintenance and support solutions for the Hosted Services. No title to or ownership of any proprietary rights related to the foregoing is transferred to Client pursuant to this Agreement. Digital Cheetah reserves all rights not expressly granted to Client. 5. Fees and Payment. a. Fees. Client agrees to pay Digital Cheetah subscription and other fees as set forth in the applicable Order Form. In addition, Client will pay Digital Cheetah for professional services at Digital Cheetah’s then current time and materials rates unless otherwise specified in the statement of work. Client agrees to reimburse Digital Cheetah for all miscellaneous out-of-pocket expenses incurred by Digital Cheetah in performing professional services as well as for reasonable travel expenses provided such expenses have been pre-approved by Client. b. Payment Terms. Fees are due within 30 days from the date of Digital Cheetah’s invoice (or as otherwise set forth in the invoice). All payments will be made in U.S. dollars. Amounts charged by Digital Cheetah do not include applicable taxes or similar fees now in force or enacted in the future resulting from any transaction under this Agreement. Client is responsible for all such amounts and will pay them in full (except for taxes based on Digital Cheetah’s net income). Notwithstanding the foregoing, if Client is entitled to an exemption from any applicable taxes, Client is responsible for presenting Digital Cheetah with a valid exemption certificate (in a form reasonably acceptable to Digital Cheetah). Digital Cheetah will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies following Digital Cheetah’s receipt of the certificate. In addition to Digital Cheetah’s other rights under this Agreement, Digital Cheetah may suspend Client’s access to the Services, or cancel the Services, if Client’s account remains past due ten days after Digital Cheetah provides Client written notice of a past due invoice. Past due amounts will incur interest at a rate equal to the lower of 1.5% per month (18% per annum) or the highest rate permitted by law. 6. Warranties; Disclaimer. a. By Digital Cheetah. i. Non-Infringement. Digital Cheetah warrants that (A) it has the right to enter into and grant the rights described in this Agreement, and (B) the Hosted Services do not violate, misappropriate or infringe any United States copyrights, trade secrets or other intellectual property rights of any person or entity. In the event of any failure to conform to this warranty, Digital Cheetah will indemnify Client as set forth in Section 8.a (regarding Digital Cheetah’s indemnification). ii. Hosted Services Warranty. Digital Cheetah warrants that the Hosted Services will perform materially in accordance with the applicable Documentation. If the Hosted Services are nonconforming, Digital Cheetah will fix, provide a work around, or otherwise correct the Hosted Services. If Digital Cheetah is unable do so within a reasonable period of time, Digital Cheetah will terminate Client’s access to the Hosted Services, this Agreement will terminate, and Digital Cheetah will refund to Client prepaid Subscription Fees on a prorated basis beginning with Client’s notice of nonconformity. iii. Professional Services Warranty. Digital Cheetah warrants that the Professional Services provided pursuant to the Agreement will be performed in a timely and professional manner, consistent with generally- accepted industry standards; provided that Client’s sole and exclusive remedy for any breach of this warranty will be, at Digital Cheetah’s option, re-performance of the Professional Services or termination of the applicable statement of work and return of the portion of the fees paid to Digital Cheetah by client for the nonconforming portion of the Professional Services. b. By Client. Client warrants that (i) Client has the right to enter into and grant the license described in this Agreement, and (ii) Client Data does not violate, misappropriate or infringe any right of privacy or publicity or any United States copyrights, trade secrets or other intellectual property rights of any person or entity. c. Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PROVISIONS OF SECTION 6.a CONSTITUTE CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND DIGITAL CHEETAH’S SOLE AND EXCLUSIVE LIABILITY, FOR BREACH OF THE WARRANTIES SET FORTH IN THIS AGREEMENT. EXCEPT AS SET FORTH IN SECTION 6.a OF THIS AGREEMENT, SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DIGITAL CHEETAH AND ITS SUPPLIERS AND LICENSORS (COLLECTIVELY, “SUPPLIERS”) EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DIGITAL CHEETAH MAKES NO WARRANTY THAT THE HOSTED SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. Digital Cheetah does not and cannot control the flow of data to or from Digital Cheetah’s network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Client’s connections to the Internet (or portions thereof). Digital Cheetah agrees to use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events. However, Digital Cheetah cannot guarantee that such events will not occur. Accordingly, Digital Cheetah disclaims any and all liability resulting from or related to such events. Digital Cheetah also disclaims any liability or warranty for Other Services. 7. CONFIDENTIALITY. a. Client Confidential Information. Digital Cheetah acknowledges that any nonpublic information of Client (including Client Data) which Client discloses to Digital Cheetah or to which Digital Cheetah has access in the course of performing its obligations under this Agreement is confidential and proprietary to Client (“Client Confidential Information”). Digital Cheetah agrees to: (i) treat all Client Confidential Information with the same degree of care as it accords its own confidential information, but not less than reasonable care; (ii) use the Client Confidential Information only in connection with performing its obligations under this Agreement; and (iii) not disclose or disseminate the Client Confidential Information to any third party except as permitted herein. Digital Cheetah agrees that the only employees, agents, and contractors who will have access to Client Confidential Information will be those with a need to know who have agreed to abide by the obligations set forth in this Section pursuant to a written confidentiality agreement. DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F Digital Cheetah® Solutions, Inc. Orange County Animal Services 4 Confidential & Proprietary b. Digital Cheetah Confidential Information. The terms of this Agreement (including pricing), the Hosted Services, Digital Cheetah Technology, and other nonpublic information of Digital Cheetah constitute confidential information of Digital Cheetah (“Digital Cheetah Confidential Information”). Client agrees to: (i) treat all Digital Cheetah Confidential Information with the same degree of care as it accords to its own confidential information, but not less than reasonable care; (ii) use the Digital Cheetah Confidential Information only in connection with accessing the Hosted Services as permitted under this Agreement; and (iii) not disclose or disseminate the Digital Cheetah Confidential Information to any third party except as permitted herein. Client agrees that the only Client employees, agents, and contractors (including third party service providers providing services to Client) who will have access to Digital Cheetah Confidential Information will be those with a need to know who have agreed to abide by the obligations set forth in this Section pursuant to a written confidentiality agreement. c. Exceptions to Confidentiality. Information will not be deemed Confidential Information of either Client or Digital Cheetah under this Agreement if such information: (i) is or becomes rightfully known to the recipient without any obligation of confidentiality or breach of this Agreement; (ii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the recipient of such Confidential Information; or (iii) is independently developed by the recipient of such Confidential Information. The foregoing exclusions do not apply to Personal Data in the Client Data. The recipient of such Confidential Information may disclose such Information pursuant to the requirements of a governmental agency or by operation of law, provided that the recipient gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. d. Compliance with North Carolina’s Public Records Law. Both parties recognize and agree to adhere to North Carolina’s public records law set forth at Chapter 132 of the North Carolina General Statutes (the “Act”). Client acknowledges that Digital Cheetah is entitled under the Act to certain exceptions governing disclosure of trade secrets. Therefore, Client agrees that, upon receiving any request under the Act for disclosure of Digital Cheetah information, Client will (i) provide Digital Cheetah with reasonable written notice prior to responding to the request sufficient to permit Digital Cheetah to contest such disclosure and (ii) cooperate with Digital Cheetah as reasonably requested by Digital Cheetah. Digital Cheetah agrees to indemnify and hold harmless Client and its officers, employees, and agents from all costs, damagers, and expenses incurred by Client which arise out of an individual claimant’s action against Client that such claimant was denied access to the requested public records as required by the Act and such costs, damages, and expenses were caused by Digital Cheetah’s intentional failure to comply with the Act. 8. Indemnification; Conditions to Indemnification. a. Indemnification. Digital Cheetah will defend Client from and against all claims, suits or actions arising out of or resulting from any action against Client that is based on any third party claim that the Hosted Services infringe that party’s United States patents, copyrights, or trade secrets, and will pay the amount of any final judgment awarded (including reasonable attorney’s fees and costs) or final settlement made with respect to such claim. In addition to Digital Cheetah’s obligation of indemnification, if the Hosted Services becomes or, in Digital Cheetah's opinion, is likely to become the subject of a claim of infringement, Digital Cheetah may, at its option, either procure for Client the right to continue to access the Hosted Services or replace or modify the Hosted Services so that they are non-infringing. If neither of the foregoing alternatives is commercially reasonable, in Digital Cheetah’s judgment, Digital Cheetah may terminate this Agreement, including terminating access to the Hosted Services. Notwithstanding the foregoing, Digital Cheetah will have no liability of any kind for any infringement or claim (i) based on the Client Data or the Other Services or (ii) which results from use of the Hosted Services in a manner prohibited under this Agreement or for which the Hosted Services were not designed. b. Conditions to Indemnification; Entire Obligation. To qualify for indemnification under any provision of this Agreement, Client is required to: (i) promptly notify Digital Cheetah in writing of the existence of any such action; (ii) grant Digital Cheetah sole control of the defense, negotiation, compromise and settlement of such claim; provided however, that any such settlement does not impose any obligation of payment or admission of guilt, or any other material obligation (except customary obligations of confidentiality) on Client without Client’s prior written consent; and (iii) cooperate with Digital Cheetah with respect to any such claim. Client may elect to participate in any such action with an attorney of its own choice and at its own expense. The foregoing states the entire obligation and liability of Digital Cheetah with respect to any third party claim. 9. Limitation of Liability. a. Disclaimer of Consequential and Other Damages. Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this Agreement, or their affiliates, officers, directors, employees, agents, service providers, suppliers or licensors be liable to the other party or any third party for any lost profits, lost sales or business, lost data, business interruption, loss of goodwill, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other loss or damages incurred by such party or third party in connection with this Agreement, the Hosted Services or the Professional Services, regardless of whether such party has been advised of the possibility of or could have foreseen such damages. b. Limitation on Liability. Notwithstanding anything to the contrary in this Agreement, Digital Cheetah’s aggregate liability to Client, Users or any third party arising out of this Agreement or otherwise in connection with any provision, use or employment of any of the services provided hereunder, including the Hosted Services, shall in no event exceed the Subscription Fees for the Hosted Services paid by Client during the twelve months prior to the first event or occurrence giving rise to such liability. Client acknowledges and agrees that the essential purpose of this Section 9.b is to allocate the risks under this Agreement between the parties and limit potential liability given the Subscription Fees, which would have been substantially higher if Digital Cheetah were to assume any further liability other than as set forth herein. Digital Cheetah has relied on these limitations in determining whether to provide Client with the rights to access and use the Hosted Services (and any other services) provided for in this Agreement. c. Exceptions in Some Jurisdictions. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Client. In these jurisdictions, Digital Cheetah’s liability will be limited to the maximum extent permitted by applicable law. 10. Termination. a. Subscription Term. This Agreement will commence on the Effective Date and remain in effect for a period of one year (“Initial Subscription Term”). After expiration of the Initial Subscription Term, this Agreement will automatically terminate unless it unless it is renewed for successive one year terms (each a “Renewal Subscription Term” and, together with the Initial Subscription Term, referred to as the “Subscription Term”) in a writing signed by both parties. b. Termination. i. By Client for Convenience. Client may terminate this Agreement for its convenience at any time during a Subscription Term on at least 60 days’ written notice to Digital Cheetah. However, no refunds or credits for Subscription Fees or other fees or payments will be provided to Client in that event. ii. By Either Party for Cause. Either party may terminate this Agreement on 30 days’ written notice to the other party if the other party is in material breach under this Agreement and fails to cure such material breach within 30 days after delivery of such written notice. If Client terminates for Digital Cheetah’s uncured breach, Digital Cheetah will refund to Client prepaid Subscription Fees on a prorated basis beginning with Client’s notice of breach. c. Effect of Termination and Survival. Upon any termination or expiration of this Agreement, (i) Digital Cheetah will immediately cease providing access to the Hosted Services, (ii) each party will destroy the other party’s Confidential Information, and (iii) all undisputed payments owed under this Agreement will immediately become due and payable. Upon Client’s request made within 30 days after the effective date of termination or expiration of this Agreement, Digital Cheetah will make Client Data available to Client for export or download as provided in the Documentation. After a period of 90 days from termination, Digital Cheetah will have no obligation to maintain or provide any Client Data and will have the right to delete or destroy all copies of Client Data in the Digital Cheetah systems or otherwise in Digital Cheetah’s possession or control, unless prohibited by law. The terms of any sections of this Agreement which by DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F Digital Cheetah® Solutions, Inc. Orange County Animal Services 5 Confidential & Proprietary their nature are intended to extend beyond termination will survive termination of this Agreement for any reason. 11. General Provisions. a. Governing Law and Jurisdiction. This Agreement will be exclusively governed and construed in accordance with the laws of the State of North Carolina without regard to the conflicts of law principles, and any action brought under this Agreement shall be brought in the General Court of Justice of the State of North Carolina in Orange County. The United Nations Convention on the International Sale of Goods will have no application to this Agreement. b. Supervision of Personnel; Independent Contractors. Digital Cheetah is responsible for the supervision, direction, and control of its personnel engaged in performing its obligations under this Agreement. Digital Cheetah may subcontract a service, or any part of it, to subcontractors selected by Digital Cheetah. The relationship of Digital Cheetah and Client will be that of independent contractors, and nothing contained in this Agreement will constitute the parties as partners, joint venturers, or otherwise as agents or participants in a joint undertaking. c. Assignment. Neither party may assign or transfer its rights or obligations under this Agreement without the other party’s prior written consent except (i) to its affiliates, or (ii) in connection with a merger, acquisition or sale of all or substantially all of its assets. For purposes of this Section, “affiliate” means an entity that controls, is controlled by, or is under common control with, that party. Any purported assignment in violation of this Section will be null and void. d. Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond that party’s reasonable control. e. Notices. All notices under this Agreement will be in writing and will be deemed to have been fully given and received at the addresses set forth in this Agreement or such other address as either party may specify in writing to the other: (i) when delivered in writing personally; (ii) when sent by confirmed facsimile or scan; (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a commercial overnight carrier, with written verification of such receipt. f. No Waiver; Severability. A party’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement will be unenforceable or invalid under any applicable law or be so held by a court of competent jurisdiction, such unenforceable or invalid provision will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. g. Compliance with Laws; No Discrimination. Digital Cheetah shall not discriminate based upon race, ethnicity, color, national origin, religion, creed, age, sex, gender, gender identity, gender expression, marital status, familial status, disability, political affiliation, veteran status, disabled veteran status. h. Acknowledgement of Public Funding. Digital Cheetah 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 Digital Cheetah of the unavailability and non-appropriation of funds. i. Encumbered amount. The amount encumbered and paid under this Agreement shall not exceed $_________. j. Compliance with Laws. Digital Cheetah shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all state and federal anti- discrimination laws, policies, rules, and regulations and the Orange County Anti-Discrimination Policy, in the performance of its obligations under this Agreement. Any violation of this requirement is a breach of this Agreement and County may immediately terminate this Agreement without further obligation on the part of the County. This paragraph is not intended to limit and does not limit the definition of breach to discrimination. DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F Digital Cheetah® Solutions, Inc. Orange County Animal Services 6 Confidential & Proprietary SERVICES SUBSCRIPTION AGREEMENT Exhibit A Description of Volunteer Management System Deliverables Core Volunteer Management System Deliverables Volunteer Management and Tracking Database Complete tracking of all volunteer data, including contact information, status, photo, employment, demographics, skills, attributes, availability, and more. Role-based security limits access to specified administrative features and sections of the system. Password Protected Volunteer Portal Our secure volunteer portal empowers your volunteers to edit their unique user account plus allows the many additional Volunteer Only features and functions made available to her/him, resulting in a highly personalized volunteer engagement experience with your organization. Our robust and easy to use web-based administrative tools will allow you to easily and successfully manage both your volunteer data as well as your volunteer’s user experience. Volunteer Profile The online volunteer profile provides the ability for the volunteer to view their complete volunteer history with your organization. The volunteer can change her/his contact information and any other information specified via the secure volunteer portal. Volunteer Directory Your online searchable organization directory allows visibility for all volunteers to view information about other organizational volunteers. The directory includes privacy settings which allow volunteers to choose to share contact data. Volunteer Event Registration / Shift Signup Volunteers have access to sign up for your organization’s event-based activities. She/he will be presented with events and shifts to choose from with real time, first come first served capability. Automatically generated calendars and listing pages enable volunteers to easily view and register for organizational activities, shifts and events. Administrative capabilities for single event set up as well as mass entry and upload of recurring shifts. Volunteer Position Management Track current volunteer position, history, position groups (committees, taskforces, etc.) for each volunteer with position reports and queries. Integrates with registration tool and email engine for streamlined communication and precise access control for managing and signing up for events. Dynamic Form Builder Create dynamic forms to collect information from both volunteers and non-volunteers. Receive administrative notifications and track responses via response queue and Excel export. iPhone/Android App for Volunteers A free downloadable app from the Apple App Store or the Google Play Store is available for your volunteers. The app allows a volunteer to access the volunteer directory and other password-protected information on his/her mobile device Mass Email Integration Ability for your administrators to send emails in mass to volunteers and other contacts in your database utilizing our built-in email integration. An unlimited number of emails can be sent to any group or segment within the database. DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F Digital Cheetah® Solutions, Inc. Orange County Animal Services 7 Confidential & Proprietary Newsletters via MailChimp Integration Ability for your administrators to send graphical newsletters in mass to volunteers in your database utilizing our built in MailChimp integration. NOTE: MailChimp pricing can be viewed at http://mailchimp.com/pricing/ ; MailChimp is free for up to 2,000 active volunteers and affordable plans are available for additional active volunteers. A 15% discount is available off the listed prices for not-for-profits: http://mailchimp.com/for-nonprofits/. Intake Queue Management for New Volunteer Prospects The intake manager queue provides the ability to accept online prospective volunteer applications with any necessary steps to be approved. System administrators can accept, reject, or have items fulfilled by user-initiated system activities. You have visibility and control over the entire volunteer prospect life cycle and progress. Volunteer Hours Tracker Ability for volunteers to submit hours by type and amount. Administrators can view and review volunteer submitted hours for approval or rejection. Integrates with the registration tool to automatically calculate and track volunteer hours. Kiosk Check-In Kiosk check-in streamlines attendance tracking through a PC or Mac kiosk. (Note: Hardware is not included and is purchased through a third-party. Contact us for hardware vendor and scanner recommendations) Segmentation Engine The ability to create segments of members based on practically any attribute in the database. These segments can be used for email blasts, personalizing content, create GroupShare groups, and much more. Checklist Management Checklist management allows for checklists to be created and assigned to members either automatically, through roles, or manually. Checklist steps can be manual or automated based on the completion of a specific task such as a shift completion or signing a particular agreement. Terms & Conditions Builder Ability for admin to define terms and conditions required of some or all volunteers. Integrates with onboarding process or, if enabled, volunteers will be prompted to sign the T&Cs at specific intervals. Terms and Conditions builder tracks versions signed. Includes the ability for volunteers to sign position descriptions upon acceptance during the intake process or, for existing volunteers, for them to sign position descriptions upon acceptance in the referral process. Experience Manager Provide custom experiences based on type, status, or any other segment. Example: inactive members can be allowed to login with limited access to the portal to update her profile, request re-instatement, or download their transcript. Data Import Tool for Initial Volunteer Data Load Our data import tool enables you to migrate your current volunteers to the Digital Cheetah system. We will provide a standard Excel format to allow an import of existing volunteer contact information. Custom data migration quotes are available on request. Volunteer Content Management Digital Cheetah’s volunteer content management tools support rich content creation and publishing. Each location will have the ability to create content pages and personalize access to content based on segments, positions and other roles. In addition, global content is supported, allowing publication of nationwide content that is accessible to all locations. Standard Reports Core Volunteer Management System standard reports include reports such as current volunteer rosters by status, historical volunteer rosters by status, volunteer by language/skill, hours tracking and position information. Standard non- profit reports will be included to allow the ability to filter and customize data to allow for greater flexibility in reporting. DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F Digital Cheetah® Solutions, Inc. Orange County Animal Services 8 Confidential & Proprietary CheetahTrack ™ Attendance Tracking The CheetahTrack™ add-on will streamline the check-in process by allowing members to check themselves in and out of events using GPS or Bluetooth beacons and the Cheetah app. In addition, an administrator can use QR scanning to scan in/out members. Furthermore, the solution includes administrative functions to allow an administrator to view and manage the attendees. NOTE: Bluetooth beacons not included. Beacons can be ordered via a third-party (Accent Systems or Kontakt Beacons). Contact Accent Systems or Kontact Beacons for pricing. YouTube Training Module The YouTube training module allows a video training to be played, a knowledge check to be completed by the end user, outcomes to be automatically tracked on the end user profile, and integration with Intake to check off a required step. Dual Factor Authentication Digital Cheetal can enable Dual Factor Authentication for Orange County Animal Services for those that hold an Admin access level in VMS. Admin’s will have the ability to login to their account and their login will trigger dual factor authentication code to be sent to the mobile phone number on file in the end user’s profile via SMS. The Admin would enter the authorization code and will be logged into VMS. NOTE: There are additional third-party SMS delivery fees that will apply. The third party “per SMS message” delivery fees are not included in the pricing in this agreement. Visit https://www.twilio.org or https://www.twilio.com for information on Twilio pricing. NOTE: Dual Factor Authentication will not apply to mobile app. Orange County Animal Services has the options of disabling the mobile app for administrators. Enabling Dual Factor Authorization for mobile app will require the purchase of the Custom Branded Mobile App. Please contact your Account Manager for Branded Mobile App pricing. All Admins will be required to have a mobile phone number on their profile. If admin doesn’t have one on file, they will not be able to log into the system. Digital Cheetah Domain Management Digital Cheetah will make the Hosted Services and Client Data available at the URL [clientname].volunteerportal.org. Administrative User Training Four (4) hours of best practice planning and administrative user training on all features, applications, and functionality is included. Training is also available via live training webinars, recorded on-demand trainings, and searchable online step- by-step help guides. Additional custom webinar trainings tailored to your precise needs are also available at $60 per hour or $30 per half hour. Notes & Assumptions This agreement is intended for a single-use organization instance of the Digital Cheetah Volunteer Management System. Contact your Digital Cheetah representative if an enterprise solution or multi-organization configuration is desired. DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F Digital Cheetah® Solutions, Inc. Orange County Animal Services 9 Confidential & Proprietary Service Order Form All information, including pricing, contained in this Service Order Form is confidential. Client Details Order Details Client Name: Orange County Animal Services Order #: 10965 Billing Contact: ____________________________________ Order Date: September _____, 2023 Billing Address: ____________________________________ Billing Email: ______________________________________ Billing Phone: ______________________________________ Payment Terms and Billing Frequency Payment Terms: Billing Frequency: The payment schedule is detailed below. Maintenance, Support, Hosting & Product Upgrade fees will be invoiced annually. Product Configuration, Setup Fee & Payment Schedule Description of Service Total One-time Fee Product Configuration & Setup Fee This one-time fee includes configuration and setup of Volunteer Management System, Volunteer Portal, Import of Historical Data (Contact Information and Service Hours), and Administrative Web-based Training. $6,000 Payment Schedule Installment Amount Due Date Installment 1 $3,000.00 Upon Signing Installment 2 $3,000.00 Go Live Subscription Plan: Maintenance, Support, Hosting & Product Upgrade Fees Description of Services Total Annual Fees Product Support & Maintenance NOTE 1: Help Desk Product Support Package includes two named contacts and includes online help desk ticketing system plus 800 number phone support. $400/month NOTE 2: Product Support & Maintenance fees are due at Go Live. $2,400/year DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F Revised 01/24 1 ORANGE COUNTY—INTERNAL USE ONLY ______________________________________________________________________________ Finance Information Vendor Name: DigitalCheetah Vendor Contact Person: AJ Tidwell Phone: 512-539-5500 Address: 512 E Riverside Drive, Suite 120 City Austin State: TX Zip: 78704 Department: Animal Services Amount: $8,400.00 Purpose: Software setup/support for Animal Services Budget Code(s): 10315020-625010 Vendor # 68383 Vendor Status with NCSOS: Current - Active Vendor is a BOCC consultant: Yes No Contract Details Contract Type: New Amendment (Original Contract: ) (Most Recent Amendment ) Effective Date 14 March 2024 End Date 1 April 2025 Notice Date (Notice Purpose ) Award Approved by Board (Agenda Date: ); Made or Administered by Signature Authority - BOCC Express Delegation (Agenda Date: ) - Policy 9.4: Under $5,000; Service Under $90,000; Construction Under $250,000 - Budget Policy Section XV (Capital Improvement Project: ) Bidding Informal Bidding ($30k-$90k); Formal RFP ($90k+); Other (<$30k); Exception(# ) Department Affirmation 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. This agreement is approved as to technical form and content. Services related to this agreement have alread y begun or been completed. Description of the nature of the emergency condition that was addressed: Department Director’s Signature ________________________________________ Date: ________ Information Technologies This agreement has been reviewed and is approved as to information technology content and specifications: Office of the Chief Information Officer___________________________________ Date: ________ Inapplicable because no hardware/software purchases or related services 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 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: Received for record retention: Office of the Clerk to the Board __________________________________________Date:_________ DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F 3/14/2024 3/15/2024 3/18/2024 3/19/2024 3/19/2024 WLTR005 THE HARTFORD BUSINESS SERVICE CENTER 3600 WISEMAN BLVD SAN ANTONIO TX 78251 March 13, 2024 Orange County 300 W TRYON ST HILLSBOROUGH NC 27278-2438 Account Information: Policy Holder Details :DIGITAL CHEETAH SOLUTIONS, INC Contact Us Need Help? Chat online or call us at (866) 467-8730. We're here Monday - Friday. Enclosed please find a Certificate Of Insurance for the above referenced Policyholder.Please contact us if you have any questions or concerns. Sincerely, Your Hartford Service Team DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 03/13/2024 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed.If SUBROGATIONIS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER EVANS EWAN & BRADY INS AGCY/PHS 65812909 The Hartford Business Service Center 3600 Wiseman Blvd San Antonio, TX 78251 CONTACT NAME: PHONE (A/C, No, Ext): (866) 467-8730 FAX (A/C, No): E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC# INSURED DIGITAL CHEETAH SOLUTIONS, INC 512 E RIVERSIDE DR STE 120 AUSTIN TX 78704-1596 INSURER A : Hartford Lloyd's Insurance Company 38253 INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/Y YYY)LIMITS A COMMERCIAL GENERAL LIABILITY X 65 SBA PZ3299 02/01/2024 02/01/2025 EACH OCCURRENCE $1,000,000 CLAIMS-MADE X OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence)$300,000 X General Liability MED EXP (Any one person)$10,000 PERSONAL & ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $2,000,000 POLICY PRO- JECT X LOC PRODUCTS - COMP/OP AGG $2,000,000 OTHER: A AUTOMOBILE LIABILITY 65 SBA PZ3299 02/01/2024 02/01/2025 COMBINED SINGLE LIMIT (Ea accident)$1,000,000 ANY AUTO BODILY INJURY (Per person) ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per accident) X HIRED AUTOS X NON-OWNED AUTOS PROPERTY DAMAGE (Per accident) A X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS- MADE 65 SBA PZ3299 02/01/2024 02/01/2025 EACH OCCURRENCE $1,000,000 AGGREGATE $1,000,000 DED X RETENTION $ 10,000 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N/ A PER STATUTE OTH- ER Y/N E.L. EACH ACCIDENT E.L. DISEASE -EA EMPLOYEE E.L. DISEASE - POLICY LIMIT A FAILSAFE TECHNOLOGY E OR O 65 SBA PZ3299 02/01/2024 02/01/2025 Each Glitch Aggregate $5,000,000 $5,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Those usual to the Insured's Operations. Orange County, its officers, agents and employees but only as required by a valid written contract, agreement, or permit is an additional insured as provided by the Business Liability Coverage Form SS0008 attached to this policy. CERTIFICATE HOLDER CANCELLATION Orange County 300 W TRYON ST HILLSBOROUGH NC 27278-2438 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03)The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F