Contract - 09-12-2023 - 13208 - Professional Services Agreement with DebtBook for Subcription-Based Information Technology Agreement Tracking to Account for All County Department Agreements. AS-13028 Consent A. 1.
BOCC Agenda
Meeting Date: 09/12/2023
Professional Services Agreement with DebtBook for Subscription-Based Information Technology Agreement
Tracking to Account for All County Department Agreements
Submitted For: KayLee McKay Submitted By: KayLee McKay
Department: Auditor
Information
Subject and Summary Statement
The Governmental Accounting Standards Board (GASB) released statement 96 regarding
Subscription-Based Information Technology Arrangements (SBITA) accounting and financial reporting
that is required to be implemented by the County by January 1, 2024. This GASB standard requires the
County to track and account for every contract the County has entered into allowing us the right to use
another party's IT software (i.e. PeopleSoft, Zoom, Microsoft 365, etc). The Auditors office received back
from County Departments over 400 software platform agreements, of those we are estimating roughly
75-100 applicable agreements that will require tracking and accounting entries. If the County was to
manually track each agreement, it is estimated to require 6-7 hours of staff time to produce the required
tracking and accounting per each individual agreement. This would result in over 500 hours of County
staff time to track and account for each agreement. DebtBook provides the County the ability to track all
SBITA's County wide in one secure platform, ensures accurate tracking of each agreement, generates
the County's liability to be reported on Financial Statements, and produces the journal entries and note
disclosures that are required of the County that will also be audited by the State Auditors Office.
Will Staff Attend - NAME OF STAFF
Yes- Carolyn Fundingsland, Cowlitz County Auditor
KayLee McKay, Accounting Manager
Camilla Eastman, Senior Accountant
Department Recommendation
Staff recommend the Board of Cowlitz County Commissioners approve the attached agreement with
DebtBook to properly track and record all of the County's Subscription Based Information Technology
Arranements per GASB 96 requirements to ensure accurate and appropriate accounting.
Fiscal Impact
Expenditure Required $: 16,230
Budget Sufficient Y-N: N
Amendment Required Y-N: Y
Source of Funds -What Dept ? : 055100
Grant Y-N: N
Attachments
DebtBook Contract
Form Review
Inbox Reviewed By Date
ORDER FORM
RELATING TO A MASTER AGREEMENT WITH
REGION 14 EDUCATION SERVICE CENTER
Fifth Asset,Inc.,d/b/a DebtBook("DebtBook")is pleased to provide Cowlitz County,WA("Customer")with the
Services subject to the terms established in this Order Form and under a Master Agreement dated as of
August 16,2021 and referenced as Contract Number 14-03(the"Master Agreement")between DebtBook and
Region 14 Education Service Center("Region 14 ESC"), on its own behalf and on behalf of other government
agencies, and made available through the National Cooperative Purchasing Alliance ("NCPA"), as
administrative agent under an Administration Agreement dated as of August 16, 2021(the "Administration
Agreement,"and together with the Master Agreement,the"NCPA Agreements")between NCPA and DebtBook.
DebtBook will provide the Services pursuant to the terms of the NCPA Agreements,this Order Form, including
the price quote attached as Exhibit A and incorporated herein by this reference(the "DebtBook Quote"), and
DebtBook's General Terms& Conditions(the "Terms&Conditions"), which have been provided to Customer,
and the Incorporated Documents referenced in the Terms& Conditions. Each capitalized term used but not
defined in this Order Form has the meaning given in the Terms&Conditions.
By executing this Order Form, DebtBook and Customer agree to be bound by this Order Form, the Terms &
Conditions, the Incorporated Documents, and any Customer Terms (collectively,the "Agreement").The NCPA
Agreements and the Agreement constitute the entire agreement between the parties and supersede any prior
discussion or representations regarding the Customer's purchase and use of the Services.
This Order Form may be modified or replaced from time to time by a subsequent Order Form duly executed
and delivered by each party in connection with any Renewal Term.
Effective Date:08/30/2023 Billing Frequency: Annually
Initial Term End Date:08/31/2024 Payment Terms: Net 30
Initial Pricing Tier:Tier 3 See the DebtBook Quote for more details
Services. Subject to the terms described in this Order Form and the NCPA Agreements, DebtBook will grant
Customer access to the Application Services during the Initial Term described above and, if applicable, each
subsequent Renewal Term. As part of the onboarding process, DebtBook will provide Customer with the
Onboarding Services and,if requested,the Implementation Services.DebtBook will also provide Customer with
the Support Services throughout the Term.
Fees.DebtBook will charge Customer(1)a recurring Subscription Fee for Customer's access to the Onboarding
Services, the Application Services, and the Support Services and (2)if applicable, an Implementation Fee for
the Implementation Services, in each case as set forth in the DebtBook Quote and this Order Form.
DebtBook sets Fees using its standard pricing schedule for the Services in accordance with the NCPA
Agreements and based on the Customer's applicable Pricing Tier, which is based on the total number and
amount of the Customer's Application Obligations at the time of determination. DebtBook's current pricing
schedule and Pricing Tiers are set forth in the DebtBook Quote, which will remain in effect with respect to
Customer throughout the Initial Term.
The Initial Pricing Tier indicated above is based on Customer's good faith estimate of its Application Obligations
as of the Effective Date.The Subscription Fees to be charged as provided in the DebtBook Quote will not change
during the Initial Term,regardless of any change to the actual number or amount of the Customer's Application
Obligations during the Initial Term.
ImplerRembotlon Services.At Customer's request, DebtBook will provide Implementation Services to Customer
for a 12-month period, with each such period beginning, if applicable, on the Effective Date and on each
anniversary of the Effective Date thereafter (each, an "Implementation Period"). Customer may request
Implementation Services at any time during the Term.
September 2022 Form
If Implementation Services are requested for any Implementation Period,then the Implementation Fee will be
based on the aggregate number and amount of the Customer's Application Obligations at the beginning of
such Implementation Period.The Implementation Fee will be due and payable at the later of(1)the beginning
of the applicable Implementation Period or(2)the date on which Customer requests Implementation Services
for such Implementation Period, and will entitle Customer, in each case, to Implementation Services at the
applicable Pricing Tier through the end of the Implementation Period then in effect.
For any Implementation Period, if the total number or amount of Customer's Application Obligations
implemented causes Customer's applicable Pricing Tier to increase,then DebtBook will charge Customer an
additional Implementation Fee such that the total Implementation Fee charged for such Implementation
Period equals the Implementation Fee applicable to the increased Pricing Tier as set forth in the DebtBook
Quote.
Billing. Unless otherwise provided in the Order Form or the Customer Terms,all Fees will be due and payable
in advance on the terms indicated above, and each invoice will be emailed to the Customer's billing contact
indicated below.
Renewall Term. The Agreement is subject to renewal on the terms set forth in the Terms & Conditions. The
Pricing Tier applicable for each Renewal Term will be determined based on the aggregate number and amount
of the Customer's Application Obligations at the time of renewal.
it rmin i .The Agreement is subject to early termination on the terms set forth in the Terms&Conditions.
InWiectual Pmpaily. Except for the limited rights and licenses expressly granted to Customer under this Order
Form and the Terms & Conditions, nothing in the Agreement grants to Customer or any third party any
intellectual property rights or other right,title,or interest in or to the DebtBook IP.
LMp.c)A # 1scialmers & Llm_.ftatlon..s. EXCEPT FOR THE WARRANTIES SET FORTH IN THE TERMS &
CONDITIONS, DEBTBOOK IP IS PROVIDED "AS IS," AND DEBTBOOK DISCLAIMS ALL WARRANTIES,WHETHER
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND ALL
WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IN ADDITION, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES' LIABILITIES UNDER THE AGREEMENT ARE LIMITED
AS SET FORTH IN THE TERMS&CONDITIONS.
Notices. Any Notice delivered under the Agreement will be delivered to the address below each party's
signature below.
September 2022 Form
Authorft Exectdon. Each of the undersigned represents that they are authorized to (1) execute and deliver
this Order Form on behalf of their respective party and (2) bind their respective party to the terms of the
Agreement. This Order Form and any other documents executed and delivered in connection with the
Agreement may be executed in counterparts, each of which is deemed an original, but all of which together
are deemed to be one and the same agreement. To the extent permitted by applicable law, electronic
signatures may be used for the purpose of executing the Order Form by email or other electronic means.Any
document delivered electronically and accepted is deemed to be "in writing" to the same extent and with the
same effect as if the document had been signed manually.
FIFTH ASSET,INC., D/B/A DEBTBOOK COWLITZ COUNTY,WA
By: By:C:a�k— —
Name: Tyler Traudt Name
Title: CEO Title: !-
Notice Address Notloe Address
PO Box 667950 [Address Line 1]
Charlotte, NC 28266 [Address Line 2]
Attention:Chief Executive Officer Attention:[Notice Contact]
tyler.traudt@debtbook.com [Notice Contact Email]
Billing Contact
[Address Line 1]
[Address Line 21
Attention:[Billing Contact]
[Billing Contact Email]
a GOUNpy.C, A EST
COWLITZ V.COUNTY {n
0° sn CLE OTHEBOARD
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0 DATE.
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September 2022 Form
.Exhibit A
DeVEloo Quote
[See attached.]
September 2022 Form
DEBTBOOK'S GENERAL TERMS&CONDITIONS
Please carefully read these General Terms and Conditions (these "Terms & Conditions") which govern the
Customer's access and use of the Services described in the Order Form.
By executing the Order Form and using any of the Services,the Customer agrees to be bound by these Terms.
1. Definitions.
"Aggregated Statistics" means data and information related to Customer's use of the Services that is
used by DebtBook in an aggregate and anonymized manner,including statistical and performance information
related to the Services.
"Agreement" means, collectively and to the extent applicable, the Order Form, any Customer Terms,
these Terms &Conditions, and the Incorporated Documents, in each case as may be amended from time to
time in accordance with their terms.
"Application Obligations" means, collectively, Customer's debt, lease, and other financial obligations
relevant to the Application Services.
"Application Services" means DebtBook's debt, lease, and financial obligation management and
compliance software-as-a-service application.
"Appropriate Security Measures"means,collectively,commercially reasonable technical and physical
controls and safeguards intended to protect Customer Data against destruction,loss,unauthorized disclosure,
or unauthorized access by employees or contractors employed by DebtBook.
"Authorized User" means any of Customer's employees, consultants, contractors, or agents who are
authorized by Customer to access and use any of the Services.
"Customer"means the person or entity purchasing the Services as identified in the Order Form.
"Customer Data"means,other than Aggregated Statistics,information,data,and other content,in any
form or medium,that is transmitted by or on behalf of Customer or an Authorized User through the Services.
"Customer Terms" means any terms or agreements provided by Customer and applicable to the
Services but only to the extent such terms or agreements are expressly referenced and incorporated into the
Order Form. For the avoidance of doubt, "Customer Terms" does not include any purchase order or similar
document generated by Customer unless such document is expressly referenced and incorporated into the
Order Form.
"DebtBook" means Fifth Asset, Inc., d/b/a DebtBook, a Delaware corporation, and its permitted
successor and assigns.
"DebtBook IP" means(1)the Services, Documentation, and Feedback, including all ideas, concepts,
discoveries, strategies, analyses, research, developments, improvements, data, materials, products,
documents,works of authorship,processes,procedures,designs,techniques,inventions,and other intellectual
property,whether or not patentable or copyrightable,and all embodiments and derivative works of each of the
foregoing in any form and media, that are developed, generated or produced by DebtBook arising from or
related to the Services,Documentation,or Feedback;and(2)any intellectual property provided to Customer or
any Authorized User in connection with the foregoing other than Customer Data.
"Documentation" means DebtBook's end user documentation and content, regardless of media,
relating to the Services made available from time to time on DebtBook's website at
https://support.debtbook.com.
"Feedback" means any comments, questions, suggestions, or similar feedback transmitted in any
manner to DebtBook,including suggestions relating to features,functionality,or changes to the DebtBook IP.
"Governing State" means, if Customer is a Government Entity,the state in which Customer is located.
If Customer is not a Government Entity, "Governing State" means the State of North Carolina.
"Government Entity" means any unit of state or local government, including states, counties, cities,
towns,villages,school districts,special purpose districts,and any other political or governmental subdivisions
and municipal corporations, and any agency,authority, board,or instrumentality of any of the foregoing.
September 2022 Form
"Implementation Services" means, if requested by Customer,the additional implementation services
provided to Customer on an annual basis, including tailored implementation support, review of Application
Obligations,and entry of relevant Customer Data.
"Incorporated Documents" means, collectively, the Privacy Policy, the SLA, and the Usage Policy, as
each may be updated from time to time in accordance with their terms. The Incorporated Documents, as
amended, are incorporated into these Terms & Conditions by this reference. Current versions of the
Incorporated Documents are available at Iittpi: / ww.rlebtbook�a;1/le a..1.
"Initial Term"means the Initial Term of the Services beginning on the Effective Date and ending on the
Initial Term End Date,as established in the Order Form.
"Onboarding Services" means onboarding services, support, and training as required to make the
Application Services available to the Customer during the Initial Term.
"Order Form" means (1)the order document executed and delivered by DebtBook and Customer for
the Initial Term or (2) to the extent applicable, any subsequent order document executed and delivered by
DebtBook and Customer for any Renewal Term.
"Pricing Tier" means the Customer's applicable pricing tier, determined based on the number and
amount of Application Obligations at the time of determination, as set forth in the schedule included as part
of the Order Form.
"Privacy Policy" means,collectively, DebtBook's privacy policy and any similar data policies generally
applicable to all users of the Application Services, in each case as posted to DebtBook's website and as
updated from time to time in accordance with their terms.
"Renewal Term"means any renewal term established in accordance with the terms of the Agreement.
"Services"means,collectively,the Application Services,the Onboarding Services,the Implementation
Services,and the Support Services.
"SLA"means the Service Level Addendum generally applicable to all users of the Application Services,
as posted to DebtBook's website and as updated from time to time in accordance with its terms.
"Support Services" means the general maintenance services and technical support provided in
connection with the Application,as more particularly described in the SLA.
"Term"means,collectively,the Initial Term and, if applicable,each successive Renewal Term.
"Usage Policy" means, collectively, DebtBook's acceptable usage policy, any end user licensing
agreement, or any similar policy generally applicable to all end users accessing the Application Services, in
each case as posted to DebtBook's website and as updated from time to time in accordance with its terms.
Each capitalized term used but not otherwise defined in these Terms&Conditions has the meaning
given to such term in the applicable Order Form.
2. Access and Use.
(a) Provisiprt nf_Acce,5.Subject to the terms and conditions of the Agreement, DebtBook grants
Customer and Customer's Authorized Users a non-exclusive, non-transferable (except as permitted by these
Terms)right to access and use the Application Services during the Term,solely for Customer's internal use and
for the Authorized Users' use in accordance with the Agreement. DebtBook will provide to Customer the
necessary passwords and network links or connections to allow Customer to access the Application Services.
(b) Documenta i n Llcense. Subject to the terms and conditions of the Agreement, DebtBook
grants to Customer and Customer's Authorized Users a non-exclusive, non-sublicensable, non-transferable
(except as permitted by these Terms)license to use the Documentation during the Term solely for Customer's
and its Authorized User's internal business purposes in connection with its use of the Services.
(c) Customer Responsibilities.Customer is responsible and liable for its Authorized Users'access
and use of the Services and Documentation, regardless of whether such use is permitted by the Agreement.
Customer must use reasonable efforts to make all Authorized Users aware of the provisions applicable to their
use of the Services, including the Incorporated Documents.
September 2022 Form
(d) U_se Restrictions.Customer may not at any time,directly or indirectly through any Authorized
User,access or use the Services in violation of the Usage Policies,including any attempt to(1)copy,modify,or
create derivative works of the Services or Documentation, in whole or in part; (2) sell, license, or otherwise
transfer or make available the Services or Documentation except as expressly permitted by the Agreement;or
(3) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to any
software component of the Services, in whole or in part. Customer will not knowingly transmit any personally
identifiable information to DebtBook or any other third-party through the Services.
(e) Suspension. Notwithstanding anything to the contrary in the Agreement, DebtBook may
temporarily suspend Customer's and any Authorized User's access to any or all of the Services if:(1)Customer
is more than 45 days late in making any payment due under, and in accordance with, the terms of the
Agreement,(2)DebtBook reasonably determines that(A)there is a threat or attack on any of the DebtBook IP;
(B)Customer's or any Authorized User's use of the DebtBook IP disrupts or poses a security risk to the DebtBook
IP or to any other customer or vendor of DebtBook;(C)Customer,or any Authorized User,is using the DebtBook
IP for fraudulent or other illegal activities; or (D) DebtBook's provision of the Services to Customer or any
Authorized User is prohibited by applicable law; or(3) any vendor of DebtBook has suspended or terminated
DebtBook's access to or use of any third-party services or products required to enable Customer to access the
Services(any such suspension,a "Service Suspension").DebtBook will use commercially reasonable efforts to
(1)provide written notice of any Service Suspension to Customer, (ii)provide updates regarding resumption of
access to the Services, and (iii) resume providing access to the Services as soon as reasonably possible after
the event giving rise to the Service Suspension is cured. DebtBook is not liable for any damage,losses,or any
other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) A re ated Statistics.. Notwithstanding anything to the contrary in the Agreement, DebtBook
may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between
DebtBook and Customer,all right,title,and interest in Aggregated Statistics,and all intellectual property rights
therein, belong to and are retained solely by DebtBook. DebtBook may compile Aggregated Statistics based
on Customer Data input into the Services. DebtBook may(1)make Aggregated Statistics publicly available in
compliance with applicable law, and (2)use Aggregated Statistics as permitted under applicable law so long
as, in each case, DebtBook's use of any Aggregated Statistics does not identify the Customer or disclose
Customer's Confidential Information.
3. Service Levels andS.upport. Subject to the terms and conditions of the Agreement,DebtBook will use
commercially reasonable efforts to make the Application Services and Support Services available in
accordance with the SLA.
4. Fees and Payment.
(a) Fees.Customer will pay DebtBook the fees("Fees")set forth in the Order Form.DebtBook will
invoice Customer for all Fees in accordance with the invoicing schedule and requirements set forth in the Order
Form.Customer must pay all Fees in US dollars,and all Fees are fully earned once paid.To the extent permitted
by applicable law,if Customer fails to make any payment when due,DebtBook may,without limiting any of its
other rights, charge interest on the past due amount at the lowest of(1)the rate of 1.5% per month, (2)the
rate established in any Customer Term,or(3)the maximum rate permitted under applicable law.
(b) Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive
of taxes and similar assessments.Unless Customer is exempt from making any such payment under applicable
law or regulation, Customer is responsible for all applicable sales,use,and excise taxes,and any other similar
taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory
authority on any amounts payable by Customer under the Agreement, other than any taxes imposed on
DebtBook's income.
5. ConfidentialInformation.
(a) From time to time during the Term,either party(the"Disclosing Party")may disclose or make
available to the other party(the "Receiving Party") information about the Disclosing Party's business affairs,
products, confidential intellectual property, trade secrets, third-party confidential information, and other
sensitive or proprietary information, whether in written, electronic, or other form or media, that is marked,
designated, or otherwise identified as "confidential", or which a reasonable person would understand to be
confidential or proprietary under the circumstances(collectively,"Confidential Information"). For the avoidance
September 2022 Form
of doubt, DebtBook's Confidential information includes the DebtBook IP and the Application Services source
code and specifications. As used in the Agreement, "Confidential Information" expressly excludes any
information that, at the time of disclosure is (1)in the public domain; (2) known to the receiving party at the
time of disclosure;(3)rightfully obtained by the Receiving Party on a non-confidential basis from a third party;
or(4)independently developed by the Receiving Party.
(b) To the extent permitted by applicable law,the Receiving Party will hold the Disclosing Party's
Confidential Information in strict confidence and may not disclose the Disclosing Party's Confidential
Information to any person or entity, except to the Receiving Party's employees, officers, directors, agents,
subcontractors,financial advisors,and attorneys who have a need to know the Confidential Information for the
Receiving Party to exercise its rights or perform its obligations under the Agreement or otherwise in connection
with the Services. Notwithstanding the foregoing, each party may disclose Confidential Information to the
limited extent required (1) in order to comply with the order of a court or other governmental body, or as
otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to
the order must first give written notice to the other party; or (2) to establish a party's rights under the
Agreement, including to make required court filings.
(c) On the expiration or termination of the Agreement,the Receiving Party must promptly return
to the Disclosing Party all copies of the Disclosing Party's Confidential Information, or destroy all such copies
and, on the Disclosing Party's request, certify in writing to the Disclosing Party that such Confidential
Information has been destroyed.
(d) Each party's obligations under this Section are effective as of the Effective Date and will expire
three years from the termination of the Agreement; provided, however, with respect to any Confidential
Information that constitutes a trade secret (as determined under applicable law), such obligations of non-
disclosure will survive the termination or expiration of the Agreement for as long as such Confidential
Information remains subject to trade secret protection under applicable law.
(e) Notwithstanding anything in this Section to the contrary, if Customer is a Government Entity,
then DebtBook expressly agrees and understands that Customer's obligations under this Section are subject
in all respects to, and only enforceable to the extent permitted by, the public records laws, policies, and
regulations of the Governing State.
6. Intellectual Property.
(a) DebtBook IP.As between Customer and DebtBook,DebtBook owns all right,title,and interest,
including all intellectual property rights, in and to the DebtBook IP.
(b) Customer Data. As between Customer and DebtBook, Customer owns all right, title, and
interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to
DebtBook a non-exclusive,royalty-free,worldwide license to reproduce,distribute,sublicense, modify, prepare
derivative works based on,and otherwise use and display the Customer Data and perform all acts with respect
to the Customer Data as may be necessary or appropriate for DebtBook to provide the Services to Customer.
(c) Effect of Terming ign. Without limiting either party's obligations under Section 5 of the
Agreement, DebtBook, at no further charge to Customer, will (1) provide Customer with temporary access to
the Application Services for up to 60 days after the termination of the Agreement to permit Customer to retrieve
its Customer Data in a commercially transferrable format and(2)use commercially reasonable efforts to assist
Customer,at Customer's request,with such retrieval.After such period, DebtBook may destroy any Customer
Data in accordance with DebtBook's data retention policies.
7. Limited Warranties.
(a) Functionality & Service Levels. During the Term, the Application Services will operate in a
manner consistent with general industry standards reasonably applicable to the provision of the Application
Services and will conform in all material respects to the Documentation and service levels set forth in the SLA
when accessed and used in accordance with the Documentation. Except as expressly stated in the SLA,
DebtBook does not make any representation,warranty, or guarantee regarding availability of the Application
Services, and the remedies set forth in the SLA are Customer's sole remedies and DebtBook's sole liability
under the limited warranty set forth in this paragraph.
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(b) Security. DebtBook has implemented Appropriate Security Measures and has made
commercially reasonable efforts to ensure its licensors and hosting providers, as the case may be, have
implemented Appropriate Security Measures intended to protect Customer Data.
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, DEBTBOOK IP IS PROVIDED"AS
IS," AND DEBTBOOK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE. DEBTBOOK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING
FROM COURSE OF DEALING, USAGE,OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH
IN THIS SECTION, DEBTBOOK MAKES NO WARRANTY OF ANY KIND THAT THE DEBTBOOK IP, OR ANY
PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S
REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR
WORK WITH ANY SOFTWARE,SYSTEM,OR OTHER SERVICES,OR BE SECURE,ACCURATE,COMPLETE,FREE OF
HARMFUL CODE,OR ERROR FREE.
(d) DebtBook exercises no control over the flow of information to or from the Application Service,
DebtBook's network,or 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 connections to the Internet. Although DebtBook will use commercially reasonable efforts to
take all actions DebtBook deems appropriate to remedy and avoid such events, DebtBook cannot guarantee
that such events will not occur. ACCORDINGLY, DEBTBOOK DISCLAIMS ANY AND ALL LIABILITY RESULTING
FROM OR RELATING TO ALL SUCH EVENTS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE
AGREEMENT,ANY OTHER ACTIONS OR INACTIONS CAUSED BY OR UNDER THE CONTROL OF A THIRD PARTY.
8. Indemnification.
(a) 00113cok Indemnification.
(i) DebtBook will indemnify,defend,and hold harmless Customer from and against any
and all losses,damages,liabilities,costs(including reasonable attorneys'fees)(collectively,"Losses")
incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party
Claim") that the Application Services, or any use of the Application Services in accordance with the
Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets,
provided that Customer promptly notifies DebtBook in writing of the Third-Party Claim, reasonably
cooperates with DebtBook in the defense of the Third-Party Claim,and allows DebtBook sole authority
to control the defense and settlement of the Third-Party Claim.
(ii) If such a claim is made or appears possible,Customer agrees to permit DebtBook,at
DebtBook's sole expense and discretion, to (A) modify or replace the DebtBook IP, or component or
part of the DebtBook IP,to make it non-infringing,or(B)obtain the right for Customer to continue use.
If DebtBook determines that neither alternative is reasonably available, DebtBook may terminate the
Agreement in its entirety or with respect to the affected component or part, effective immediately on
written notice to Customer,so long as,in each case,DebtBook promptly refunds or credits to Customer
all amounts Customer paid with respect to the DebtBook IP that Customer cannot reasonably use as
intended under the Agreement.
(III) DebtBook's indemnification obligation under this Section will not apply to the extent
that the alleged infringement arises from Customer's use of the Application Services in combination
with data, software, hardware, equipment, or technology not provided or authorized in writing by
DebtBook or modifications to the Application Services not made by DebtBook.
(b) Sole Remedy. SECTION 8(a) SETS FORTH CUSTOMER'S SOLE REMEDIES AND DEBTBOOK'S
SOLE LIABILITY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE,
MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. IN NO
EVENT WILL DEBTBOOK'S LIABILITY UNDER SECTION 8(a)EXCEED$1,000,000.
(c) Customer lndemq_ification. To the extent permitted by applicable law, Customer will
indemnify, hold harmless,and,at DebtBook's option, defend DebtBook from and against any Losses resulting
from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with the
Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party
September 2022 Form
Claims based on Customer's or any Authorized User's negligence or willful misconduct or use of the Services
in a manner not authorized by the Agreement.
9. Limitations of Liability.EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION,IN NO EVENT
WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR
EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY,
AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,SPECIAL, ENHANCED, OR
PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH
LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS
EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL THE AGGREGATE LIABILITY OF
DEBTBOOK ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY,
INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE
EXCEED THE TOTAL AMOUNTS PAID TO DEBTBOOK UNDER THE AGREEMENT IN THE 12-MONTH PERIOD
PRECEDING THE EVENT GIVING RISE TO THE CLAIM.THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION DO
NOT APPLY TO CLAIMS PURSUANT TO SECTION 8.
10. Term and Termination.
(a) Term. Except as the parties may otherwise agree in the Order Form, or unless terminated
earlier in accordance with the Agreement:
(i) the Initial Term of the Agreement will begin on the Effective Date and end on the
Initial Term End Date;
(ii) the Agreement will automatically renew for successive 12-month Renewal Terms
unless either party gives the other party written notice of non-renewal at least 30 days before the
expiration of the then-current term;and
(Ili) each Renewal Term will be subject to the same terms and conditions established
under the Agreement, with any Fees determined in accordance with DebtBook's then-current pricing
schedule published on DebtBook's website and generally appliable to all users of the Services, as
provided to Customer at least 60 days before the expiration of the then-current term.
(b) Termination.In addition to any other express termination right set forth in the Agreement:
(i) DebtBook may terminate the Agreement immediately if Customer breaches any of
its obligations under Section 2 or Section 5;
(ii) Customer may terminate the Agreement in accordance with the SLA;
(Ili) either party may terminate the Agreement, effective on written notice to the other
party,if the other party materially breaches the Agreement,and such breach:(A)is incapable of cure;
or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the
breaching party with written notice of such breach;
(iv) if(1)Customer is a governmental entity and(2)sufficient funds are not appropriated
to pay for the Application Services,then Customer may terminate the Agreement at any time without
penalty following 30 days prior written notice to DebtBook;or
(v) either party may,to the extent permitted by law,terminate the Agreement, effective
immediately on written notice to the other party, if the other party becomes insolvent or is generally
unable to pay,or fails to pay, its debts as they become due or otherwise becomes subject,voluntarily
or involuntarily,to any proceeding under any domestic or foreign bankruptcy or insolvency law.
(c) Survival.Only this Section and Section 1(Definitions),Sections 4 through 6(Fees;Confidential
Information; Intellectual Property), Section 7(c) (Disclaimer of Warranties), and Sections 8, 9 and 12
(Indemnification; Limitations of Liability; Miscellaneous) will survive any termination or expiration of the
Agreement.
11. Independen#._Contractor. The parties to the Agreement are independent contractors. The Agreement
does not create a joint venture or partnership between the parties, and neither party is, by virtue of the
Agreement,authorized as an agent,employee,or representative of the other party.
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12. Miscellaneous.
(a) Yernin Law:Submission to Jurisdiction.The Agreement will be governed by and construed
in accordance with the laws of the Governing State,without regard to any choice or conflict of law provisions,
and any claim arising out of the Agreement may be brought in the state or federal courts located in the
Governing State. Each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or
proceeding,
(b) Entire Agreement:Order of Precedence. The Order Form, any Customer Terms,the Terms&
Conditions, and the Incorporated Documents constitute the complete Agreement between the parties and
supersede any prior discussion or representations regarding the Customer's purchase and use of the Services.
To the extent any conflict exists between the terms of the Agreement, the documents will govern in the
following order or precedence:(1)the Order Form(2)the Customer Terms,(3)the Terms&Conditions,and (4)
the Incorporated Documents. No other purchasing order or similar instrument issued by either party in
connection with the Services will have any effect on the Agreement or bind the other party in any way.
(c) Amendment; Waiver. No amendment to the Order Form, the Terms & Conditions, or the
Customer Terms will be effective unless it is in writing and signed by an authorized representative of each
party. DebtBook may update the Incorporated Documents from time-to-time following notice to Customer so
long as such updates are generally applicable to all users of the Services. No waiver by any party of any of the
provisions of the Agreement will be effective unless explicitly set forth in writing and signed by the party so
waiving.Except as otherwise set forth in the Agreement,no failure to exercise,delay in exercising,or any partial
exercise of any rights,remedy,power,or privilege arising from the Agreement will in any way waive or otherwise
limit the future exercise of any right, remedy,power,or privilege available under the Agreement.
(d) Notices.All notices, requests,consents,claims, demands, and waivers under the Agreement
(each,a "Notice")must be in writing and addressed to the recipients and addresses set forth for each party on
the Order Form (or to such other address as DebtBook or Customer may designate from time to time in
accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized
overnight courier(with all fees pre-paid),or email(with confirmation of transmission),or certified or registered
mail(in each case, return receipt requested, postage pre-paid).
(e) Force Majeure. In no event will either party be liable to the other party,or be deemed to have
breached the Agreement,for any failure or delay in performing its obligations under the Agreement(except for
any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances
beyond such party's reasonable control, including acts of God, flood, fire, earthquake, pandemic, epidemic,
problems with the Internet,shortages in materials,explosion,war,terrorism,invasion, riot or other civil unrest,
strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken
by a governmental or public authority, including imposing an embargo.
(f) 5everability. If any provision of the Agreement is invalid, illegal, or unenforceable in any
jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the
Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(g) Assi nment. Either party may assign its rights or delegate its obligations, in whole or in part,
on 30 days prior written notice to the other party,to an affiliate or an entity that acquires all or substantially
all of the business or assets of such party,whether by merger, reorganization,acquisition,sale, or otherwise.
Except as stated in this paragraph, neither party may assign any of its rights or delegate any of its obligations
under the Agreement without the prior written consent of the other party, which consent may not be
unreasonably withheld, conditioned, or delayed.The Agreement is binding on and inures to the benefit of the
parties and their permitted successors and assigns.
(h) Marketing.Neither party may issue press releases related to the Agreement without the other
party's prior written consent.Either party may include the name and logo of the other party in lists of customers
or vendors.
(i) Sta o-$pgcific Certifications & AgreMents. To the extent required under the laws of the
Governing State, DebtBook hereby certifies and agrees as follows:
(i) DebtBook has not been designated by any applicable government authority or body
as a company engaged in the boycott of Israel under the laws of the Governing State;
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(ii) DebtBook is not presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from participation in the Agreement by any governmental
department or agency of the Governing State;
(iii) DebtBook will not discriminate against any employee or applicant for employment
because of race, ethnicity, gender, gender identity, sexual orientation, age, religion, national origin,
disability, color, ancestry, citizenship, genetic information, political affiliation or military/veteran
status,or any other status protected by federal,state,or local law;and
(iv) DebtBook will verify the work authorization of its employees using the federal E-Verify
program and standards as promulgated and operated by the United States Department of Homeland
Security and,if applicable,will require its subcontractors to do the same.
0) Execution. Any document executed and delivered in connection with the Agreement may be
executed in counterparts,each of which is deemed an original,but all of which together are deemed to be one
and the same agreement.To the extent permitted by applicable law,electronic signatures may be used for the
purpose of executing the Order Form by email or other electronic means.Any document delivered electronically
and accepted is deemed to be"in writing"to the same extent and with the same effect as if the document had
been signed manually.
September 2022 Form