HomeMy WebLinkAbout2023-074DocuSign Envelope ID: F842A29D-5DEF-410B-A860-3A1E4AE8E5DC
9-1-1 SERVICES AND
SOFTWARE LICENSE AGREEMENT
This 9-1-1 Services and Software License Agreement (this "Agreement"), together with any other documents incorporated into this
Agreement by reference (including all Exhibits to this Agreement, including the General Terms and Conditions of Software License,
which are attached to this Agreement as Exhibit A , constitute the sole and entire agreement of the Parties with respect to the subject
matter of this Agreement and supersede all prior and contemporaneous understandings, agreements, representations and warranties,
both written and oral, with respect to such subject matter.
The exhibits, attachments and appendices referred to in this Agreement are incorporated into this Agreement by reference and are an
integral part of this Agreement to the same extent as if they were set forth verbatim in this Agreement, and the Parties have read,
understand, and agree to all terms and conditions of all such exhibits, attachments, and appendices.
Any capitalized terms used, but not defined, below will have the meanings ascribed to them in the General Terms and Conditions of
Software License attached to this Agreement as Fxhihit A and incorporated into this Agreement by reference in their entirety.
1. Purpose
Type of Agreement/Document
2. Parties/ Notices:
INdigital:
Customer:
3. Effective Date
4. Software
5. Territory
6. Permitted Use
Grant of a non-exclusive, non -sub licensable and
non -transferable, limited license to use the Software, which
shall include any third -party software, necessary or required
for the operation of Customer's emergency telephone system in
the Territory.
® Original Agreement
0 Amendment
Communications Venture Corporation INdigital, Inc (d/b/a
INdigital) ("INdigital")
1616 Directors Row
Fort Wayne, IN 46808
Phone: (260) 469-2010
E-mail: contracts(&indiaital.net
Attention: Contract Administration
Indian River County Emergency Services
("Customer" and together with INdigital, the "Parties", and,
each, individually, a "Party")
Address: 4225 43rd Avenue, Vero Beach, Florida 32967
Phone: 772-226-3943
E-mail: krackard@ircgov.com
Contact Person: Karen Rackard
01/12/2023
("Effective Date").
Software listed and described in Exhibit C attached to, and
incorporated by reference into, this Agreement, together with
any Maintenance Releases provided to Customer pursuant to
this Agreement.
Indian River County Florida
("Territory").
Use of the Software by Customer for the purpose of operating
an emergency telephone system in the Territory ("Permitted
Use").
DocuSign Envelope ID: F842A29D-5DEF-4106-A860-3A1E4AE8E5DC
7. Installation
8. Maintenance Releases
9. License Fee
10. Additional Charges
11. Term
12. Exhibits
13. Other Agreements between Parties
14. Representative
INdigital will deliver and install one (1) copy of the Software
to Customer.
During the Term, INdigital will provide Customer with all
Maintenance Releases that INdigital may make generally
available to its licensees at no additional charge.
Fee: I See Exhibit D attached to,
and incorporated by reference into, this Agreement. If the
Term is renewed, Customer will pay the then -current standard
license fees that INdigital charges for the Software.
See Exhibit D attached to, and incorporated by reference into,
this Agreement for a exhibit of additional charges, if any, for
installation, training, and acceptance testing services.
Customer will also reimburse INdigital for out-of-pocket
expenses incurred by INdigital in connection with performing
such additional services.
Initial Term: From Effective Date until five (5) -year
anniversary of such date unless terminated earlier pursuant to
any of the Agreement's express provisions.
Renewal Terms: This Agreement will automatically renew
for additional successive twelve (12) -month terms unless
earlier terminated pursuant to any of the Agreement's express
provisions or either Party gives the other Party written notice
of non -renewal at least ninety (90) days prior to the expiration
of the then -current term.
® Exhibit A — General Terms and Conditions of 9-1-1
Services and Software License (attached to, made part
of, and incorporated in its entirety by reference into, this
Agreement).
® Exhibit B — Designated Sites
® Exhibit C - Software / Services Description
® Exhibit D — Price List
® Exhibit E — TERMINATION IN REGARDS TO F.S.
287.135 and E -Verify
❑ Equipment Purchase and Sale Agreement
❑ Support and Maintenance Agreement
Name: Holly Peacock
This 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. A signed copy of this Agreement delivered by e-mail is deemed to have the same legal effect as delivery of
an original signed copy of this Agreement.
DocuSign Envelope ID: F842A29D-5DEF-410B-A860-3A1E4AE8E5DC
CUSTOMER: Indian River County, FL , ••'...Mjgs.' • INDIGITAL INC:
*:COMMUNICATION VENTURE CORPORATION (D/B/A
By: jNDIGITAL)
Joseph H. Earman, Ch irman
DocuSiiggned- by:
G yRIVER CCN•• Na13
me: Je Humbaz er
By g
John A. Titkamch, Jr., County Administrator Title: Date: UR9/2023
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
By:
Dylan Reingold, County Attorney
Jeffrey R. Smith, Clerk of Court and Comptroller
ZAttest: "
Deputy Clerk
DocuSign Envelope ID: F842A29D-5DEF-4106-A860-3A1E4AE8E5DC
EXHIBIT A
GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SoFrwARE LICENSE)
These General Terms and Conditions for INdigital's 9-1-1
Services and Software License Agreement (the "Terms")
supplement the related specific 9-1-1 Services and
Software License Agreement (together with these Terms,
the "Agreement") between you ("you" or "Customer")
and Communications Venture Corporation (d/b/a
INdigital), an Indiana corporation ("INdigital" ), for the
grant by INdigital to you of a license to certain software
specified in the Agreement. These Terms will be deemed
to be a part of and are hereby incorporated by reference
into the Agreement.
These Terms prevail over any of Customer's general
terms and conditions regardless of whether or when
Customer has submitted its request for proposal, order, or
such terms. Provision of services, software license,
equipment or other products or goods to Customer does
not constitute acceptance of any of Customer's terms and
conditions and does not serve to modify or amend these
Terms.
INdigital and you may each individually be referred to as
a "Party" and collectively as the "Parties".
1. DEFINITIONS. Capitalized terms used in the
Agreement (including these Terms) have the meanings set
forth or referred to in this Section 1:
1.1. "Acceptance Testing" has the meaning
set forth in Section 4 of these Terms.
1.2. "Action" has the meaning set forth in
Section 8.24dl of these Terms.
1.3. "Affiliate" of a Person means any other
Person that directly or indirectly,
through one or more intermediaries,
controls, is controlled by, or is under
common control with, such Person. The
term "control" (including these Terms
"controlled by" and "under common
control with") means the direct or
indirect power to direct or cause the
direction of the management and
policies of a Person, whether through
the ownership of voting securities, by
contract or otherwise.
1.4. "Business Day" means a day other than
a Saturday, Sunday or other day on
which commercial banks in Fort Wayne,
Indiana are authorized or required by
Law to be closed for business.
1.5. "Confidential Information" has the
meaning set forth in Section 5.1 of these
Terms.
1.6. "Controlled Technology" means any
software, documentation, technology or
other technical data, or any products
that include or use any of the foregoing,
the export, re-export or release of which
to certain jurisdictions or countries is
prohibited or requires an export license
or other governmental approval, under
any Law, including the US Export
Administration Act and its associated
regulations.
1.7. "Customer" has the meaning set forth
in the preamble to these Terms.
1.8.
"Designated Sites" means any of
Customer's facilities set forth in Exhibit
]J attached to, and incorporated by
reference into, the Agreement.
1.9.
"Disclosing Party" has the meaning set
forth in Section 5.1 of these Terms.
1.10.
"Documentation" means any and all
manuals, instructions and other
documents and materials that INdigital
and/or any third -party provides or
makes available to Customer in any
form or medium which describe the
functionality, components, features or
requirements of the Software, including
any aspect of the installation,
configuration, integration, operation,
use, support or maintenance thereof.
1.11.
"Effective Date" has the meaning set
forth in Number 3 of the Agreement.
1.12.
"Force Majeure Event" has the
meaning set forth in Section 14.1 of
these Terms.
1.13.
"Indemnitee" has the meaning set forth
in Section 11.3 of these Terms.
1.14.
"Indemnitor" has the meaning set forth
in Section 11.3 of these Terms.
1.15.
"INdigital" has the meaning set forth in
the preamble to these Terms.
1.16.
"INdigital Indemnitee" has the
meaning set forth in Section 11.2 of
these Terms.
1.17.
"Initial Term" has the meaning set
forth in Section 9.1 of these Terms.
1.18. "Intellectual Property Rights" means
any and all registered and unregistered
rights granted, applied for or otherwise
now or hereafter in existence under or
related to any patent, copyright,
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EXHIBIT A
GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SOFrwARE LICENSE)
trademark, trade secret, database
protection or other intellectual property
rights laws, and all similar or equivalent
rights or forms of protection, in any part
of the world.
1.19. "Law" means any statute, law,
ordinance, regulation, rule, code, order,
constitution, treaty, common law,
judgment, decree or other requirement
or rule of any federal, state, local or
foreign government or political
subdivision thereof, or any arbitrator,
court or tribunal of competent
jurisdiction.
1.20. "Loss" means any and all losses,
damages, liabilities, deficiencies,
claims, actions, judgments, settlements,
interest, awards, penalties, fines, costs
or expenses of whatever kind, including
reasonable attorneys' fees and the costs
of enforcing any right to
indemnification under the Agreement
and the cost of pursuing any insurance
providers.
1.21. "Maintenance Release" means any
update, upgrade, release or other
adaptation or modification of the
Software, including any updated
Documentation, that INdigital and/or
any third party may provide to
Customer from time to time during the
Term, which may contain, among other
things, error corrections, enhancements,
improvements or other changes to the
user interface, functionality,
compatibility, capabilities, performance,
efficiency or quality of the Software,
but does not include any New Version.
1.22. "New Version" means any new version
of the Software may from time to time
be introduced and marketed generally as
a distinct licensed product (as may be
indicated by INdigital's and/or a third
party's designation of a new version
number), and which INdigital and/or a
third party may make available to
Customer at an additional cost under a
separate written agreement.
1.23. "Parties" has the meaning set forth in
the preamble to these Terms.
1.24. "Party" has the meaning set forth in the
preamble to these Terms.
1.25.
"Payment Failure" has the meaning set
forth in Section 9.3(a) of these Terms.
1.26.
"Permitted Use" has the meaning set
forth in Section 2 of the Agreement.
1.27.
"Person" means an individual,
corporation, partnership, joint venture,
limited liability entity, governmental
authority, unincorporated organization,
trust, association or other entity.
1.28.
"Receiving Party" has the meaning set
forth in Section 5.1 of these Terms.
1.29.
"Renewal Term" has the meaning set
forth in Section 9.2 of these Terms.
1.30. "Representatives" means, with respect
to a Party, that Party's employees,
officers, directors, consultants, agents,
independent contractors, service
providers, sub licensees, subcontractors
and legal advisors.
1.31. "Software" means the software listed in
Exhibit C attached to, and incorporated
by reference into, the Agreement,
together with any Maintenance Releases
provided to Customer pursuant to this
Agreement.
1.32. "Term" has the meaning set forth in
Section 9.2 of these Terms.
1.33. "Territory" has the meaning set forth in
Number 5 of the Agreement.
1.34. "Third -Party Materials" means
materials and information, in any form
or medium, that are not proprietary to
INdigital, including any third -party:
(a) documents, data, content or
specifications; (b) software, hardware or
other products, facilities, equipment or
devices; and (c) accessories,
components, parts or features of any of
the foregoing.
1.35. "Warranty Period" has the meaning
set forth in Section 10.2 of these Terms.
2. LICENSE.
2.1. License Grant. Subject to the terms and
conditions of the Agreement (including these Terms)
and INdigital's rights under any third -party
agreements relating to the Software, and conditioned
on Customer's and its Affiliates' and
Representatives' compliance therewith, INdigital
hereby grants to Customer a non-exclusive, non -sub
DocuSign Envelope ID: F842A29D-SDEF-410B-A860-3A1 E4AE8E5DC
EXHIBIT A
GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SoF-rwARE LICENSE)
licensable and non -transferable, limited license and
sublicense (to the extent allowed by any third -party
agreements) to use the Software and Documentation
solely for the Permitted Use in the Territory during
the Term.
2.2. Scope of Licensed Access and Use.
Customer may use and run one copy of the Software
on Customer's network at any of the Designated
Site(s). The total number of Designated Site(s) shall
not exceed the number set forth under the Agreement
(including these Terms), except as expressly agreed
to in writing by the Parties and subject to any
appropriate adjustment of the license fees payable
under the Agreement.
3. USE RESTRICTIONS. Except as the Agreement
(including these Terms) expressly permits, Customer
shall not, and shall not permit any other Person to:
(a) copy the Software, in whole or in part;
(b) modify, correct, adapt, translate,
enhance or otherwise prepare derivative works or
improvements of any Software;
(c) rent, lease, lend, sell, sublicense, assign,
distribute, publish, transfer or otherwise make
available the Software to any Person, including
on or in connection with the internet or any
time-sharing, service bureau, software as a
service, cloud or other technology or service;
(d) reverse engineer, disassemble,
decompile, decode or adapt the Software, or
otherwise attempt to derive or gain access to the
source code of the Software, in whole or in part;
(e) bypass or breach any security device or
protection used for or contained in the Software
or Documentation;
(f) remove, delete, efface, alter, obscure,
translate, combine, supplement or otherwise
change any trademarks, terms of the
Documentation, warranties, disclaimers, or
Intellectual Property Rights, proprietary rights or
other symbols, notices, marks or serial numbers
on or relating to any copy of the Software or
Documentation;
(g) use the Software in any manner or for
any purpose that infringes, misappropriates or
otherwise violates any Intellectual Property
Right or other right of any Person, or that
violates any applicable Law;
(h) use the Software for purposes of:
(i) benchmarking or competitive analysis of the
Software; (ii) developing, using or providing a
competing software product or service; or
(iii) any other purpose that is to INdigital's
detriment or commercial disadvantage;
(i) use the Software in or in connection
with the design, construction, maintenance,
operation or use of any hazardous environments,
systems or applications, any safety response
systems or other safety -critical applications, or
any other use or application in which the use or
failure of the Software could lead to personal
injury or severe physical or property damage; or
0) use the Software or Documentation
other than for the Permitted Use or in any
manner or for any purpose or application not
expressly permitted by the Agreement (including
these Terms).
4. DELIVERY AND INSTALLATION. INdigital
shall deliver and install one (1) copy of the Software
to Customer. Risk of loss of any tangible media on
which the Software is delivered shall pass to
Customer on delivery.
4.1. Acceptance. Customer will test whether the
Software operates in accordance with the
Documentation ("Acceptance Testing") pursuant to
the terms of this Section 4. Upon completion of the
Software installation, Customer shall have fourteen
(14) days to test the Software and notify INdigital in
writing of any defect or deficiency. If the initial
Acceptance Testing fails, INdigital shall, within
fifteen (15) days of the Acceptance Testing and at its
cost, correct the errors so disclosed and Customer
may repeat the Acceptance Testing. If the subsequent
Acceptance Testing fails, and such failure does not
arise from or relate to any failure or defect of
Customer's or any third -party's product, service,
hardware, software, system or network, INdigital
shall, within fifteen (15) days of the subsequent
Acceptance Testing, at its cost, correct the errors so
disclosed and Customer may again repeat the
Acceptance Testing. If the subsequent Acceptance
Testing fails two (2) or more times, Customer may
terminate the Agreement (including these Terms) on
written notice to INdigital. On termination, INdigital
shall refund all license fees paid by Customer under
the Agreement (including these Terms) within thirty
(30) days of receipt of such notice, and such refund
shall be Customer's sole and exclusive remedy for
any unresolved Acceptance Testing failures. In any
event, Customer shall be deemed to have accepted
the Software if. (a) the Acceptance Testing is
certified by Customer to be successful; or
(b) Customer commences operational use of the
Software.
DocuSign Envelope ID: F842A29D-5DEF-410B-A860-MlE4AE8E5DC
EXHIBIT A
GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SOFTWARE LICENSE)
4.2 MAINTENANCE AND SUPPORT. During the
Term, INdigital: (i) will use commercially reasonable
efforts to resolve any Incidents reported by
Customer; (ii) may provide training services to
Customer on Customer's request, at INdigital's
standard hourly rates then in effect, and the terms and
conditions of the Agreement (including these Terms)
will govern the provision of any training services
delivered by INdigital to Customer; and (iii) will
provide Customer with all Maintenance Releases
under the terms and conditions set forth in the
Software License Agreement. INdigital has the sole
right to determine, in its discretion: (a) what
constitutes an Incident; and (b) when an Incident is
deemed to be resolved. An "Incident", as used herein
and throughout these Terms, means a support request
that begins when Customer contacts INdigital to
report a specific Error and ends when INdigital
either: (a) resolves the Error; or (b) determines in its
sole and absolute discretion that the Error cannot be
resolved. INdigital will use commercially reasonable
efforts to resolve an Incident, but does not guarantee
that any Incident will be resolved.
As set forth above, during the Term, INdigital will
provide Customer with all Maintenance Releases
(including updated Documentation) that INdigital
may, in its sole discretion, make generally available
to its licensees at no additional charge. All
Maintenance Releases, being provided by INdigital to
Customer under the Agreement, are deemed Software
subject to all applicable terms and conditions in the
Agreement (including these Terms). As part of the
support and maintenance to be provided by INdigital
to Customer, Customer will install all Maintenance
Releases as soon as practicable after receipt.
Customer does not have any right under the
Agreement to receive any New Versions of the
Software that INdigital or any third -party software
provider may, in its sole discretion, release from time
to time. Customer may license any New Version at
INdigital's then -current list price and subject to a
separate license agreement, provided that Customer is
in compliance with the terms and conditions of the
Agreement (including these Terms).
5. CONFIDENTIALITY.
5.1. Confidential Information. In connection
with the Agreement each Party (as the "Disclosing
Party") may disclose or make available to the other
Party (as the "Receiving Party") Confidential
Information. Subject to Section 5.2 of these Terms,
"Confidential Information" means information in
any form or medium (whether oral, written,
electronic or other) that the Disclosing Party
considers confidential or proprietary, including
information consisting of or relating to the Disclosing
Party's technology, trade secrets, know-how, business
operations, plans, strategies, customers, and pricing,
and information with respect to which the Disclosing
Party has contractual or other confidentiality
obligations, whether or not marked, designated or
otherwise identified as "confidential". Without
limiting the foregoing: (a) the Software and
Documentation are the Confidential Information of
INdigital; and (b) the financial terms of the
Agreement (including these Terms) are the
Confidential Information of INdigital.
5.2. Exclusions and Exceptions. Confidential
Information does not include information that the
Receiving Party can demonstrate by written or other
documentary records: (a) was rightfully known to the
Receiving Party without restriction on use or
disclosure prior to such information's being disclosed
or made available to the Receiving Party in
connection with the Agreement (including these
Terms); (b) was or becomes generally known by the
public other than by the Receiving Party's or any of
its Representatives' noncompliance with the
Agreement (including these Terms); (c) was or is
received by the Receiving Party on a non -confidential
basis from a third party that was not or is not, at the
time of such receipt, under any obligation to maintain
its confidentiality; or (d) the Receiving Party can
demonstrate by written or other documentary records
was or is independently developed by the Receiving
Party without reference to or use of any Confidential
Information.
5.3. Protection of Confidential Information.
As a condition to being provided with any disclosure
of or access to Confidential Information, the
Receiving Party shall:
(a) not access or use Confidential
Information other than as necessary to exercise
its rights or perform its obligations under and in
accordance with the Agreement (including these
Terms);
(b) except as may be permitted under the
terms and conditions of Section 5.4 of these
Terms, not disclose or permit access to
Confidential Information other than to its
Representatives who: (i) need to know such
Confidential Information for purposes of the
Receiving Party's exercise of its rights or
performance of its obligations under and in
accordance with the Agreement (including these
Terms); (ii) have been informed of the
confidential nature of the Confidential
Information and the Receiving Party's
obligations under this Section 5: and (iii) are
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EXHIBIT A
GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SOFrwARE LICENSE)
bound by written confidentiality and restricted
use obligations at least as protective of the
Confidential Information as the terms set forth in
this Section 5;
(c) safeguard the Confidential Information
from unauthorized use, access or disclosure
using at least the degree of care it uses to protect
its similarly sensitive information and in no
event less than a reasonable degree of care;
(d) promptly notify the Disclosing Party of
any unauthorized use or disclosure of
Confidential Information and cooperate with
Disclosing Party to prevent further unauthorized
use or disclosure; and
(e) ensure its Representatives' compliance
with, and be responsible and liable for any of its
Representatives' non-compliance with, the terms
of this Section 5.
Notwithstanding any other provisions of the
Agreement (including these Terms), the Receiving
Party's obligations under this Section 5 with respect
to any Confidential Information that constitutes a
trade secret under any applicable Law will continue
until such time, if ever, as such Confidential
Information ceases to qualify for trade secret
protection under one or more such applicable Laws
other than as a result of any act or omission of the
Receiving Party or any of its Representatives.
5.4. Compelled Disclosures. If the Receiving
Party or any of its Representatives is compelled by
applicable Law to disclose any Confidential
Information then, to the extent permitted by
applicable Law, the Receiving Party shall:
(a) promptly, and prior to such disclosure, notify the
Disclosing Party in writing of such requirement so
that the Disclosing Party can seek a protective order
or other remedy or waive its rights under Section 5.3
of these Terms; and (b) provide reasonable assistance
to the Disclosing Party, at the Disclosing Party's sole
cost and expense, in opposing such disclosure or
seeking a protective order or other limitations on
disclosure. If the Disclosing Party waives compliance
or, after providing the notice and assistance required
under this Section 5.4. the Receiving Party remains
required by Law to disclose any Confidential
Information, the Receiving Party shall disclose only
that portion of the Confidential Information that the
Receiving Party is legally required to disclose and, on
the Disclosing Party's request, shall use
commercially reasonable efforts to obtain assurances
from the applicable court or other presiding authority
that such Confidential Information will be afforded
confidential treatment.
5.5. Return, Destruction. Confidential
Information will remain the property of the
Disclosing Party and will, at the Disclosing Party's
request and after it is no longer needed for the
purposes of the Agreement (including these Terms)
or upon expiration or termination of the Agreement
(including these Terms) for any reason, whichever
occurs first, promptly be returned to the Disclosing
Party or be destroyed, together with all copies made
by the Receiving Party and by anyone to whom such
Confidential Information has been made available by
the Receiving Party in accordance with the provisions
of this section.
6.1. License Fees. In consideration of the rights
granted to Customer under the Agreement (including
these Terms), Customer shall pay to INdigital the
license fees set forth in Exhibit D (attached to, and
incorporated by reference into, the Agreement) in
accordance with that exhibit and the terms of this
Section 6. If the Term is renewed for any Renewal
Term(s) pursuant to Section 9.2 of these Terms,
Customer shall pay the then -current standard license
fees that INdigital charges for the Software during the
applicable Renewal Term.
6.2. Additional Fees and Expenses. In
consideration of INdigital providing installation,
support and maintenance, training, and other ancillary
services under the Agreement (including these
Terms), Customer shall pay to INdigital the fees set
forth in Exhibit D attached to, and incorporated by
reference into, the Agreement, and shall reimburse
INdigital for out-of-pocket expenses incurred by
INdigital in connection with performing these
services, in accordance with that exhibit and the
terms of this Section 6.
6.3. Taxes. All license fees and other amounts
payable by Customer under the Agreement (including
these Terms) are exclusive of taxes and similar
assessments. Without limiting the foregoing,
Customer is responsible for all sales, service, 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 INdigital's income.
6.4. Payment. Customer shall pay all amounts
due and owing under the Agreement (including these
Terms) within thirty 30 days after the date of
INdigital's invoice therefor. Customer shall make all
payments under the Agreement in US dollars by wire
transfer or check to the address or account specified
in Exhibit D attached to, and incorporated by
DocuSign Envelope ID: F842A29D-5DEF-4106-A860-3A1E4AE8E5DC
7.
EXHIBIT A
GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SOFrwARE LICENSE)
reference into, the Agreement or such other address
or account as INdigital may specify in writing from
time to time.
6.5. Late Payment. If Customer fails to make
any payment when due then, in addition to all other
remedies that may be available to INdigital:
(a) INdigital may charge interest on the
past due amount at the rate of 1.5% per month
calculated daily and compounded monthly or, if
lower, the highest rate permitted under
applicable Law;
(b) Customer shall reimburse INdigital for
all reasonable costs incurred by INdigital in
collecting any late payment of amounts due or
related interest, including attorneys' fees, court
costs and collection agency fees; and
(c) if such failure continues for fifteen (15)
days following written notice thereof, INdigital
may: (i) disable Customer's use of the Software
(including by means of a disabling code,
technology or device); (ii) withhold, suspend or
revoke its grant of a license and/or sublicense
under the Agreement; and/or (iii) terminate the
Agreement (including these Terms) under
Section 9.3(a) or Section 9.3(b) of these Terms,
as applicable.
6.6. No Deductions or Setoffs. All amounts
payable to INdigital under the Agreement (including
these Terms) shall be paid by Customer to INdigital
in full without any setoff, recoupment, counterclaim,
deduction, debit or withholding for any reason (other
than any deduction or withholding of tax as may be
required by applicable Law).
SECURTTY MEASURES. The Software may contain
technological measures designed to prevent
unauthorized or illegal use of the Software. Customer
acknowledges and agrees that: (a) INdigital may use
these and other lawful measures to verify Customer's
compliance with the terms of the Agreement
(including these Terms) and enforce INdigital's
rights, including all Intellectual Property Rights, in
and to the Software; (b) INdigital may deny any
individual access to and/or use of the Software if
INdigital, in its sole reasonable discretion, believes
that Person's use of the Software would violate any
provision of the Agreement (including these Terms);
and (c) INdigital and its Representatives may collect,
maintain, process and use diagnostic, technical, usage
and related information, including information about
Customer's computers, systems and software, that
INdigital may gather periodically to improve the
performance of the Software or develop Maintenance
Releases. This information will be treated in
accordance with INdigital's privacy policy, as
amended from time to time.
F.1MFPNFWFW7Q It 1111410 WRIT
8.1. Intellectual Proaerty Ownership. Customer
acknowledges and agrees that:
(a) the Software and Documentation are
licensed or sublicensed and not sold to Customer
by INdigital and Customer does not and will not
have or acquire under or in connection with the
Agreement (including these Terms) any
ownership interest in the Software or
Documentation, or in any related Intellectual
Property Rights;
(b) INdigital and its licensor(s) are and will
remain the sole and exclusive owners of all right,
title and interest in and to the Software and
Documentation, including all Intellectual
Property Rights relating thereto, subject only to
the limited license granted to Customer under the
Agreement; and
(c) Customer hereby unconditionally and
irrevocably assigns to INdigital or INdigital's
designee, Customer's entire right, title and
interest in and to any Intellectual Property Rights
that Customer may now or hereafter have in or
relating to the Software or Documentation
(including any rights in derivative works or
patent improvements relating to either of them),
whether held or acquired by operation of law,
contract, assignment or otherwise.
8.2. Customer Cooperation and Notice of
Infringement. Customer shall, during the Term:
(a) take all reasonable measures to
safeguard the Software and Documentation
(including all copies thereof) from infringement,
misappropriation, theft, misuse or unauthorized
access;
(b) at INdigital's expense, take all such
steps as INdigital may reasonably require to
assist INdigital in maintaining the validity,
enforceability and INdigital's ownership of the
Intellectual Property Rights in the Software and
Documentation;
(c) promptly notify INdigital in writing if
Customer becomes aware of:
(i). any actual or suspected infringement,
misappropriation or other violation of
INdigital's Intellectual Property Rights in
or relating to the Software or
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(9-1-1 SERVICES AND SOFTWARE LICENSE)
Documentation; or
(ii). any claim that the Software or
Documentation, including any production,
use, marketing, sale or other disposition of
the Software or Documentation, in whole
or in part, infringes, misappropriates or
otherwise violates the Intellectual Property
Rights or other rights of any Person; and
(d) fully cooperate with and assist INdigital
in all reasonable ways in the conduct of any
claim, suit, action or proceeding (each, an
"Action") by INdigital to prevent or abate any
actual or threatened infringement,
misappropriation or violation of INdigital's
rights in, and to attempt to resolve any claims
relating to, the Software or Documentation.
8.3. No Implied Rights. Except for the limited
rights and licenses expressly granted under the
Agreement, nothing in the Agreement (including
these Terms) grants, by implication, waiver, estoppel
or otherwise, to Customer or any third party any
Intellectual Property Rights or other right, title, or
interest in or to any of the Software or
Documentation.
9. TERM AND TERMINATION.
9.1. Initial Term. The initial term of the
Agreement commences as of the Effective Date and
will continue in effect until such time as specified in
Number 11 of the Agreement, unless terminated
earlier pursuant to any of the Agreement's express
provisions (the "Initial Term").
9.2. Renewal Term. The Agreement will
automatically renew for additional successive terms
specified in Number 11 of the Agreement unless
earlier terminated pursuant to any of the Agreement's
express provisions or either Party gives the other
Party written notice of non -renewal at least ninety
(90) days prior to the expiration of the then -current
term (each, a "Renewal Term" and, collectively,
together with the Initial Term, the "Term").
9.3. Termination. The Agreement may be
terminated at any time:
(a) by INdigital, effective on written notice
to Customer, if Customer fails to pay any amount
when due under the Agreement (including these
Terms), where such failure continues more than
fifteen (15) days after INdigital's delivery of
written notice thereof ("Payment Failure");
(b) by INdigital, immediately on written
notice to Customer if any two or more Payment
Failures occur in any twelve (12) -month period;
(c) by either Party, effective on written
notice to the other Party, if the other Party
materially breaches the Agreement (including
these Terms) and such breach: (i) is incapable of
cure; or (ii) being capable of cure, remains
uncured thirty (30) days after the non -breaching
Party provides the breaching Party with written
notice of such breach (except in the case of a
Payment Failure, which shall be governed by
Section 9.3(a) of these Terms);
(d) by INdigital, effective immediately, if
the Customer: (i) is dissolved or liquidated or
takes any corporate action for such purpose;
(ii) becomes insolvent or is generally unable to
pay its debts as they become due; (iii) becomes
the subject of any voluntary or involuntary
bankruptcy proceeding under any domestic or
foreign bankruptcy or insolvency Law;
(iv) makes or seeks to make a general
assignment for the benefit of its creditors; or (v)
applies for, or consents to, the appointment of a
trustee, receiver or custodian for a substantial
part of its property;
(e) by INdigital, upon notice to Customer,
if Customer is in breach of any other agreement
between the Parties and such breach is not cured
pursuant to the terms of such agreement.
9.4. Effect of Termination or Expiration. On
the expiration or earlier termination of the
Agreement:
(a) all rights, licenses and authorizations
granted to Customer under the Agreement will
immediately terminate and Customer shall:
(i). immediately cease all use of
and other activities with respect to the
Software and Documentation other than
those described in Section 9.4(a)(ii) of
these Terms;
(ii). within sixty (60) days deliver
to INdigital, or at INdigital's written request
destroy, and permanently erase from all
devices and systems Customer directly or
indirectly controls, the Software, the
Documentation and INdigital's Confidential
Information, including all documents, files
and tangible materials (and any partial and
complete copies) containing, reflecting,
incorporating or based on any of the
foregoing, whether or not modified or
merged into other materials;
(iii). certify to INdigital in a signed
written instrument that it has complied with
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GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SoYrwARE LICENSE)
the requirements of this Section 9.4; and
(b) all amounts payable by Customer to
INdigital of any kind under the Agreement
(including these Terms) are immediately payable
and due no later than thirty (30) days after the
effective date of the expiration or INdigital's
termination of the Agreement.
9.5. Surviving Terms. The provisions set forth
in the following sections, and any other right,
obligation or provision under the Agreement
(including these Terms) that, by its nature, should
survive termination or expiration of the Agreement
(including these Terms), will survive any expiration
or termination of the Agreement: this Section 9.5 of
these Terms, Section 1 of these Terms (Definitions),
Section 5 of these Terms (Confidentiality), Section 8
of these Terms (Intellectual Property Rights), Section
14 of these Terms (Representations and Warranties),
for clarity, including Section 10.7 of these Terms
(Disclaimer of Warranties), Section 11 of these Terms
(Indemnification), Section 12 of these Terms
(Limitation of Liability), and Section 15 of these
Terms (Miscellaneous).
10.1. Mutual Representations and Warranties.
Each Party represents, warrants and covenants to the
other Party that:
(a) it has the full right, power and authority
to enter into and perform its obligations and
grant the rights, licenses and authorizations it
grants and is required to grant under the
Agreement (including these Terms);
(b) the execution of the Agreement by its
representative whose signature is set forth at the
end of the Agreement has been duly authorized
by all necessary action of such Party; and
(c) when executed and delivered by both
Parties, the Agreement (including these Terms)
will constitute the legal, valid and binding
obligation of such Party, enforceable against
such Party in accordance with its terms.
10.2. Limited Warranty. Subject to the
limitations and conditions set forth in Section 10.3 of
these Terms and Section 10.4 of these Terms,
INdigital warrants to Customer that for a period of
ninety (90) days from the Effective Date (the
"Warranty Period"), the Software will substantially
conform in all material respects to the specifications
set forth in the Documentation, when installed,
operated and used as recommended in the
Documentation and in accordance with the
Agreement (including these Terms).
10.3. Customer ReQuiremgnts. The limited
warranty set forth in Section 10.2 of these Terms
applies only if Customer: (a) notifies INdigital in
writing of the warranty breach before the expiration
of the Warranty Period; (b) has promptly installed all
Maintenance Releases to the Software that INdigital
previously made available to Customer; and (c) as of
the date of notification, is in compliance with all
terms and conditions of the Agreement (including
these Terms) (including the payment of all license
fees then due and owing).
10.4. ExceDtions. Notwithstanding any provisions
to the contrary in the Agreement (including these
Terms), the limited warranty set forth in Section 10.2
of these Terms does not apply to problems arising out
of or relating to:
(a) Software, or the media on which it is
provided, that is modified or damaged by
Customer or its Representatives;
(b) any operation or use of, or other activity
relating to, the Software other than as specified
in the Documentation, including any
incorporation in the Software of, or combination,
operation or use of the Software in or with, any
technology (including any software, hardware,
firmware, system or network) or service not
specified for Customer's use in the
Documentation, unless otherwise expressly
permitted by INdigital in writing;
(c) Customer's or any third party's
negligence, abuse, misapplication or misuse of
the Software, including any use of the Software
other than as specified in the Documentation or
expressly authorized by INdigital in writing;
(d) Customer's failure to promptly install
all Maintenance Releases that INdigital has
previously made available to Customer;
(e) the operation of, or access to, Customer's
or a third party's system or network;
(f) any beta software, software that
INdigital makes available for testing or
demonstration purposes, temporary software
modules or software for which INdigital does not
receive a license fee;
(g) Customer's material breach of any
provision of the Agreement (including
these Terms);
(h) any other circumstances or causes
outside of the reasonable control of INdigital
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EXHIBIT A
GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SovrwARE LICENSE)
(including abnormal physical or electrical stress);
or
(i) any failure or interruption of any
electrical power, or any accident or cause
external to the Software, including, but not
limited to, problems or malfunctions related to
Customer's network, database, third party
software products, workstation configurations,
Customer's hardware, operator error, or
Customer's negligence or willful misconduct.
10.5. Remedial Efforts. If INdigital breaches, or
is alleged to have breached, the limited warranty set
forth in Section 10.2 of these Terms, INdigital may, at
its sole option and expense, take any of the following
steps to remedy such breach:
(a) replace any damaged or defective media
on which INdigital supplied the Software;
(b) amend, supplement or replace any
incomplete or inaccurate Documentation;
(c) repair the Software;
(d) replace the Software with functionally
equivalent software (which software will, on its
replacement of the Software, constitute
Software); and/or
(e) terminate the Agreement and, provided
that Customer fully complies with all of its
post -termination obligations as set forth in
Section 9.4 of these Terms, promptly refund to
Customer, on a pro rata basis, the share of any
license fees prepaid by Customer for the future
portion of the Term that would have remained
but for such termination.
10.6. Sole Remedy. If INdigital does not cure a
warranty breach or terminate the Agreement as
provided in Section 10.5 of these Terms within a
reasonable period of time after INdigital's receipt of
written notice of such breach, Customer shall have
the right to terminate the Agreement as provided in
Section 9.3(cl of these Terms. Provided that
Customer fully complies with its post -termination
obligations as set forth in Section 9.4 of these Terms,
INdigital shall promptly refund to Customer, on a pro
rata basis, the share of any license fees prepaid by
Customer for the future portion of the Term that
would have remained but for such termination. THIS
SECTION 10.6 SETS FORTH THE CUSTOMER'S
SOLE REMEDY AND INDIGITAUS ENTIRE
OBLIGATION AND LIABILITY FOR ANY
BREACH OF ANY INDIGITAL WARRANTY OF
THE SOFTWARE SET FORTH IN THE
AGREEMENT.
10.7. DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS LIMITED
WARRANTY SET FORTH IN SECTION 10.2 OF
THESE TERMS, ALL SOFTWARE,
DOCUMENTATION AND OTHER PRODUCTS,
INFORMATION, MATERIALS AND SERVICES
PROVIDED BY INDIGITAL ARE PROVIDED "AS
IS." INDIGITAL HEREBY DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHER (INCLUDING ALL
WARRANTIES ARISING FROM COURSE OF
DEALING, USAGE OR TRADE PRACTICE), AND
SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE
AND NON -INFRINGEMENT. WITHOUT
LIMITING THE FOREGOING, INDIGITAL
MAKES NO WARRANTY OF ANY KIND THAT
THE SOFTWARE OR DOCUMENTATION, OR
ANY OTHER INDIGITAL OR THIRD -PARTY
GOODS, SERVICES, TECHNOLOGIES OR
MATERIALS (INCLUDING ANY SOFTWARE OR
HARDWARE), OR ANY PRODUCTS OR
RESULTS OF THE USE OF ANY OF THEM,
WILL MEET CUSTOMER'S OR OTHER
PERSONS' REQUIREMENTS, OPERATE
WITHOUT INTERRUPTION, ACHIEVE ANY
INTENDED RESULT, BE COMPATIBLE OR
WORK WITH ANY OTHER GOODS, SERVICES,
TECHNOLOGIES OR MATERIALS (INCLUDING
ANY SOFTWARE, HARDWARE, SYSTEM OR
NETWORK), OR BE SECURE, ACCURATE,
COMPLETE, FREE OF HARMFUL CODE OR
ERROR FREE. ALL THIRD -PARTY MATERIALS
ARE PROVIDED "AS IS" AND ANY
REPRESENTATION OR WARRANTY OF OR
CONCERNING ANY OF THEM IS STRICTLY
BETWEEN CUSTOMER AND THE
THIRD -PARTY OWNER OR DISTRIBUTOR OF
SUCH OPEN- THIRD -PARTY MATERIALS.
11. INDEMNIFICATION.
11.1. INdigital Indemnification. INdigital shall
indemnify, defend and hold harmless Customer from
and against any and all Losses incurred by Customer
arising out of or relating to any Action by a third
party (other than an Affiliate) to the extent that such
Losses arise from any allegation in such Action that
the Software, or any use of the Software, in the
Territory in accordance with the Agreement
(including these Terms) (including the
Documentation) infringes any U.S. Intellectual
Property Right in the U.S. The foregoing obligation
does not apply to the extent that such Action or
Losses arise from any allegation of or relating to any:
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EXHIBIT A
GENERAL TERMS AND CONDITIONS
(9-1-1 .SERVICES AND .SOFrwARE LICENSE)
(a) Third -Party Materials;
(b) patent issued on a patent application
published after the Effective Date;
(c) incorporation by the Software of, or
combination, operation or use of the Software in
or with, any technology (including any software,
hardware, firmware, system or network) or
service not provided by INdigital or specified for
Customer's use in the Documentation, unless
otherwise expressly permitted by INdigital in
writing;
(d) modification of the Software other than:
(i) by INdigital or its authorized contractor
in connection with the Agreement (including
these Terms); or (ii) with INdigital's express
written authorization and in strict accordance
with INdigital's written directions and
specifications;
(e) failure to timely implement any
Maintenance Release, modification, update or
replacement of the Software made available to
Customer by INdigital;
(f) use of the Software after INdigital's
notice to Customer of such activity's alleged or
actual infringement, misappropriation or other
violation of a third party's rights;
(g) negligence, abuse, misapplication or
misuse of the Software or Documentation by or
on behalf of Customer, Customer's
Representatives or a third party;
(h) use of the Software or Documentation
by or on behalf of Customer that is outside the
purpose, scope or manner of use authorized by
the Agreement (including these Terms) or in any
manner contrary to INdigital's instructions;
(i) events or circumstances outside of
INdigital's commercially reasonable control
(including any third -party hardware, software or
system bugs, defects or malfunctions); or
0) Action or Losses for which Customer is
obligated to indemnify INdigital pursuant to
Section 11.2 of these Terms.
11.2. Customer Indemnification. Customer shall
indemnify, defend and hold harmless INdigital and its
Affiliates, officers, directors, employees, agents,
subcontractors, successors and assigns (each,
including INdigital, an "INdigital Indemnitee")
from and against any and all Losses incurred by the
INdigital Indemnitee in connection with any Action
by a third party (other than an Affiliate of a INdigital
Indemnitee) to the extent that such Losses arise out of
or relate to any allegation:
(a) that any Intellectual Property Right or
other right of any Person, or any Law, is or will
be infringed, misappropriated or otherwise
violated by any:
(i). use or combination of the
Software by or on behalf of Customer or
any of its Representatives with any
hardware, software, system, network,
service or other matter whatsoever that is
neither provided by INdigital nor
authorized by INdigital in the Agreement
(including these Terms) and the
Documentation or otherwise in writing; and
(ii). information, materials or
technology or other matter whatsoever
directly or indirectly provided by Customer
or directed by Customer to be installed,
combined, integrated or used with, as part
of, or in connection with the Software or
Documentation;
(b) of or relating to facts that, if true, would
constitute a breach by Customer of any
representation, warranty, covenant or obligation
under the Agreement (including these Terms);
(c) of or relating to negligence, abuse,
misapplication, misuse or more culpable act or
omission (including recklessness or willful
misconduct) by or on behalf of Customer or any
of its Representatives with respect to the
Software or Documentation or otherwise in
connection with the Agreement (including these
Terms); or
(d) of or relating to use of the Software or
Documentation by or on behalf of Customer or
any of its Representatives that is outside the
purpose, scope or manner of use authorized by
the Agreement (including these Terms) or the
Documentation, or in any manner contrary to
INdigital's instructions.
11.3. Indemnification Procedure. Each Party
shall promptly notify the other Party in writing of any
Action for which such Party believes it is entitled to
be indemnified pursuant to Section 11.1 or Section
III of these Terms. The Party seeking
indemnification (the "Indemnitee") shall cooperate
with the other Party (the "Indemnitor") at the
Indemnitor's sole cost and expense. The Indemnitor
shall immediately take control of the defense and
investigation of such Action and shall employ
counsel reasonably acceptable to the Indemnitee to
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GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SOFrwARE LICENSE)
handle and defend the same, at the Indemnitor's sole
cost and expense. The Indemnitee's failure to perform
any obligations under this Section 11 will not relieve
the Indemnitor of its obligations under this Section 11
except to the extent that the Indemnitor can
demonstrate that it has been materially prejudiced as
a result of such failure. The Indemnitee may
participate in and observe the proceedings at its own
cost and expense with counsel of its own choosing.
11.4. Mitigation. If the Software, or any part of
the Software, is, or in INdigital's opinion is likely to
be, claimed to infringe, misappropriate or otherwise
violate any third -party Intellectual Property Right, or
if Customer's use of the Software is enjoined or
threatened to be enjoined, INdigital may, at its option
and sole cost and expense:
(a) obtain the right for Customer to
continue to use the Software materially as
contemplated by the Agreement (including these
Terms);
(b) modify or replace the Software, in
whole or in part, to seek to make the Software
non -infringing, while providing materially
equivalent features and functionality, and such
modified or replacement software will constitute
Software under the Agreement (including these
Terms); or
(c) if none of the remedies set forth in the
above Section 11.4(a) or Section 11 AN of these
Terms is reasonably available to INdigital,
terminate the Agreement, in its entirety or with
respect to the affected part or feature of the
Software, effective immediately on written
notice to Customer, in which event:
(i). Customer shall cease all use of
the Software and Documentation
immediately on receipt of Customer's
notice; and
(ii). provided that Customer fully
complies with its post -termination
obligations set forth in Section 9.4 of these
Terms, INdigital shall promptly refund to
Customer, on a pro rata basis, the share of
any license fees prepaid by Customer for the
future portion of the Term that would have
remained but for such termination.
11.5. Sole Remedy. THIS SECTION 11 SETS
FORTH CUSTOMER'S SOLE REMEDIES AND
INDIGITAL'S SOLE LIABILITY AND
OBLIGATION FOR ANY ACTUAL,
THREATENED OR ALLEGED CLAIMS THAT
THE AGREEMENT (INCLUDING THESE
TERMS) OR ANY SUBJECT MATTER OF THE
AGREEMENT (INCLUDING THE SOFTWARE
AND DOCUMENTATION) INFRINGES,
MISAPPROPRIATES OR OTHERWISE VIOLATES
ANY INTELLECTUAL PROPERTY RIGHTS OF
ANY THIRD PARTY.
12. LIMITATION OF LIABILITY.
12.1. EXCLUSION OF DAMAGE . IN NO
EVENT WILL INDIGITAL OR ANY OF ITS
LICENSORS, SERVICE PROVIDERS OR
SUPPLIERS BE LIABLE UNDER OR IN
CONNECTION WITH THE AGREEMENT
(INCLUDING THESE TERMS) OR ITS SUBJECT
MATTER UNDER ANY LEGAL OR EQUITABLE
THEORY, INCLUDING BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY AND OTHERWISE, FOR ANY (a)
INCREASED COSTS, DIMINUTION IN VALUE
OR LOST BUSINESS, PRODUCTION,
REVENUES OR PROFITS, (b) LOSS OF
GOODWILL OR REPUTATION, (c) USE,
INABILITY TO USE, LOSS, INTERRUPTION,
DELAY OR RECOVERY OF ANY SOFTWARE
OR THIRD -PARTY MATERIALS, (d) LOSS,
DAMAGE, CORRUPTION OR RECOVERY OF
DATA, OR BREACH OF DATA OR SYSTEM
SECURITY, (e) COST OF REPLACEMENT
GOODS OR SERVICES, OR (f)
CONSEQUENTIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL, ENHANCED OR
PUNITIVE DAMAGES, IN EACH CASE
REGARDLESS OF WHETHER SUCH PERSONS
WERE ADVISED OF THE POSSIBILITY OF
SUCH LOSSES OR DAMAGES OR SUCH
LOSSES OR DAMAGES WERE OTHERWISE
FORESEEABLE, AND NOTWITHSTANDING
THE FAILURE OF ANY AGREED OR OTHER
REMEDY OF ITS ESSENTIAL PURPOSE.
12.2. CAP ON MONETARY LIABILITY. IN
NO EVENT WILL THE AGGREGATE LIABILITY
OF INDIGITAL AND ITS LICENSORS,
SUPPLIERS AND SERVICE PROVIDERS
ARISING OUT OF OR RELATED TO THE
AGREEMENT (INCLUDING THESE TERMS),
WHETHER ARISING UNDER OR RELATED TO
BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR ANY
OTHER LEGAL OR EQUITABLE THEORY,
EXCEED THE TOTAL AMOUNTS PAID TO
INDIGITAL UNDER THE AGREEMENT IN THE
12 -MONTH PERIOD PRECEDING THE EVENT
GIVING RISE TO THE CLAIM. THE
FOREGOING LIMITATIONS APPLY EVEN IF
ANY REMEDY FAILS OF ITS ESSENTIAL
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GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SOFTWARE LICENSE)
PURPOSE.
13. EXPORT REGULATION, Customer shall not
itself, or permit any other Person to, export, re-export
or release, directly or indirectly any Controlled
Technology to any country, jurisdiction or Person to
which the export, re-export or release of Controlled
Technology (a) is prohibited by applicable Law or (b)
without first completing all required undertakings
(including obtaining any necessary export license).
14, FORCE MA TEURF..
14.1. No Breach or Default. In no event will
INdigital be liable or responsible to Customer, or be
deemed to have defaulted under or breached the
Agreement (including these Terms), for any failure or
delay in fulfilling or performing any term of the
Agreement (including these Terms), when and to the
extent such failure or delay is caused by any
circumstances beyond INdigital's reasonable control
(a "Force Majeure Event"), including acts of God,
flood, fire, earthquake or explosion, war, terrorism,
invasion, riot or other civil unrest, embargoes or
blockades in effect on or after the date of the
Agreement, national or regional emergency, strikes,
labor stoppages or slowdowns or other industrial
disturbances, passage of Law or any action taken by a
governmental or public authority, including imposing
an export or import restriction, quota or other
restriction or prohibition or any complete or partial
government shutdown, or national or regional
shortage of adequate power or telecommunications or
transportation. Either Party may terminate the
Agreement if a Force Majeure Event continues
substantially uninterrupted for a period of 90 days or
more.
14.2. Obligations. In the event of any failure or
delay caused by a Force Majeure Event, INdigital
shall give prompt written notice to Customer stating
the period of time the occurrence is expected to
continue and use commercially reasonable efforts to
end the failure or delay and minimize the effects of
such Force Majeure Event.
15.1. Further Assurances. On a Party's
reasonable request, the other Party shall, at the
requesting Party's sole cost and expense, execute and
deliver all such documents and instruments, and take
all such further actions, as may be necessary to give
full effect to the Agreement.
15.2. Relationship of the Parties. The
relationship between the Parties is that of
independent contractors. Nothing contained in the
Agreement (including these Terms) shall be
construed as creating any agency, partnership, joint
venture or other form of joint enterprise, employment
or fiduciary relationship between the Parties, and
neither Party shall have authority to contract for or
bind the other Party in any manner whatsoever.
15.3. Notices. Except as otherwise expressly set
forth in the Agreement, any notice, request, consent,
claim, demand, waiver or other communication under
the Agreement will have legal effect only if in
writing and addressed to a Party at its address or
e-mail designated in the Agreement. Notices sent in
accordance with this Section 15.3 will be deemed
effectively given: (i) when received, if delivered by
hand, with signed confirmation of receipt; (ii) when
received, if sent by a nationally recognized overnight
courier, signature required; (iii) when sent, if by
e-mail, (in each case, with confirmation of
transmission), if sent during the addressee's normal
business hours, and on the next business day, if sent
after the addressee's normal business hours; and (iv)
on the third business day after the date mailed by
certified or registered mail, return receipt requested,
postage prepaid.
15.4. Interpretation. For purposes of the
Agreement (including these Terms): (i) the words
"include," "includes" and "including" are deemed to
be followed by the words "without limitation"; (ii)
the word "or" is not exclusive; (iii) the words
"herein," "hereof," "hereby," "hereto" and
"hereunder" refer to the Agreement as a whole
(including these Terms); (iv) words denoting the
singular have a comparable meaning when used in
the plural, and vice versa; and (v) words denoting any
gender include all genders. Unless the context
otherwise requires, references in the Agreement
(including these Terms): (x) to exhibits, exhibits,
attachments and appendices mean the exhibits,
exhibits, attachments and appendices attached to, the
Agreement (including these Terms); (y) to an
agreement, instrument or other document means such
agreement, instrument or other document as
amended, supplemented and modified from time to
time to the extent permitted by the provisions thereof;
and (z) to a statute means such statute as amended
from time to time and includes any successor
legislation thereto and any regulations promulgated
thereunder. The Parties intend the Agreement
(including these Terms) to be construed without
regard to any presumption or rule requiring
construction or interpretation against the party
drafting an instrument or causing any instrument to
be drafted. The exhibits, schedules, attachments and
appendices referred to in the Agreement (including
these Terms) are an integral part of the Agreement to
the same extent as if they were set forth verbatim in
DocuSign Envelope ID: F842A29D-5DEF-410B-A860-3A1E4AE8E5DC
EXHIBIT A
GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SoyrwARE LICENSE)
the Agreement.
15.5. $gadjpgg. The headings in the Agreement
(including these Terms) are for reference only and do
not affect the interpretation of the Agreement
(including these Terms).
15.6. Entire Agreement. The Agreement,
together with these Terms and any other documents
incorporated by reference into the Agreement (and, if
applicable, together with the Software Support and
Maintenance Agreement), constitute the sole and
entire agreement of the Parties with respect to the
subject matter of the Agreement and supersede all
prior and contemporaneous understandings,
agreements, representations and warranties, both
written and oral, with respect to such subject matter.
15.7. Assignment. Customer shall not assign or
otherwise transfer any of its rights, or delegate or
otherwise transfer any of its obligations or
performance, under the Agreement (including these
Terms) without INdigital's prior written consent. Any
purported assignment, delegation or transfer in
violation of this Section 15.7 is void. The Agreement
(including these Terms) inures to the benefit of, and
is binding on and enforceable against, the Parties and
their respective permitted successors and assigns.
15.8. No Third -Party Beneficiaries. The
Agreement (including these Terms) are for the sole
benefit of the Parties and their respective permitted
successors and permitted assigns and nothing in the
Agreement (including these Terms), express or
implied, is intended to or shall confer on any other
person or entity any legal or equitable right, benefit
or remedy of any nature whatsoever under or by
reason of the Agreement (including these Terms).
15.9. Amendment and Modification: Waiver.
No amendment to, modification of, or rescission,
termination or discharge of the Agreement (including
these Terms) is effective unless it is in writing,
identified as an amendment to or rescission,
termination or discharge of the Agreement (including
these Terms) and signed by an authorized
representative of each Party. No waiver by any Party
of any of the provisions of the Agreement (including
these Terms) shall be effective unless explicitly set
forth in writing and signed by the Party so waiving.
Except as otherwise set forth in the Agreement
(including these Terms), no failure to exercise, or
delay in exercising, any rights, remedy, power or
privilege arising from the Agreement (including these
Terms) shall operate or be construed as a waiver
thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege under the
Agreement (including these Terms) preclude any
other or further exercise thereof or the exercise of any
other right, remedy, power or privilege.
15.10. Severability. If any provision of the
Agreement (including these Terms) is invalid, illegal
or unenforceable in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any
other term or provision of the Agreement (including
these Terms) or invalidate or render unenforceable
such term or provision in any other jurisdiction. On
such determination that any term or other provision is
invalid, illegal or unenforceable, the Parties shall
negotiate in good faith to modify the Agreement so as
to effect the original intent of the Parties as closely as
possible in a mutually acceptable manner in order
that the transactions contemplated by the Agreement
(including these Terms) be consummated as
originally contemplated to the greatest extent
possible.
15.11. Governine Law: Submission to
Jurisdiction. The Agreement (including these Terms)
is governed by and construed in accordance with the
internal laws of the State of Indiana without giving
effect to any choice or conflict of law provision or
rule that would require or permit the application of
the laws of any jurisdiction other than those of the
State of Indiana. Any legal suit, action or proceeding
arising out of or related to the Agreement will be
instituted exclusively in the federal courts of the
United States District Court of the Northern District
of Indiana or the courts of the State of Indiana in each
case located in the city of Fort Wayne and County of
Allen, and each Party irrevocably submits to the
exclusive jurisdiction of such courts in any such suit,
action or proceeding. Service of process, summons,
notice or other document by mail to such Party's
address set forth in Number 2 of the Agreement will
be effective service of process for any suit, action or
other proceeding brought in any such court.
15.12. Waiver of Jury Trial. Each Party
irrevocably and unconditionally waives any right it
may have to a trial by jury in respect of any legal
action arising out of or relating to the Agreement or
the transactions contemplated by the Agreement
(including these Terms).
15.13. Eauitable Remedies. Customer
acknowledges and agrees that a breach or threatened
breach by Customer of any of its obligations under
Section 3 of these Terms (Use Restrictions), Section
5 of these Terms (Confidentiality), Section 8 of these
Terms (Intellectual Property Rights) or Section 11 of
these Terms (Indemnification) would cause INdigital
irreparable harm for which monetary damages would
not be an adequate remedy and that, in the event of
such breach or threatened breach, INdigital will be
DocuSign Envelope ID: F842A29D-5DEF-410B-A860-3A1E4AE8E5DC
EXHIBIT A
GENERAL TERMS AND CONDITIONS
(9-1-1 SERVICES AND SOFTWARE LICENSE)
entitled to equitable relief, including in a restraining
order, an injunction, specific performance and any
other relief that may be available from any court of
competent jurisdiction, without any requirement to
post a bond or other security, or to prove actual
damages or that monetary damages are not an
adequate remedy. Such remedies are not exclusive
and are in addition to all other remedies that may be
available at law, in equity or otherwise.
15.14. Attorneys' Fees. In the event that any
action, suit, or other legal or administrative
proceeding is instituted or commenced by either
Party against the other Party arising out of or related
to the Agreement (including these Terms), the
prevailing Party shall be entitled to recover its
reasonable attorneys, expert witness and accountants'
fees and court costs from the non -prevailing Party.
DocuSign Envelope ID: F842A29D-5DEF-4106-A860-3A1E4AE8E5DC
Exhibit B
Designated Site(s)
4225 43rd Avenue
Vero Beach, FL 32967
DocuSign Envelope ID: F842A29D-5DEF-4106-A860-3A1E4AE8E5DC
Exhibit C
Software / Services Description
1. Text (TAG) Services -
INdigital Text to 9-1-1 services is a text control service that enables Short Message Service (SMS) text to the 9-1-1
PSAP that subscribes to the service. The Customer will receive the SMS messages from the major carriers. This
inbound service will be integrated with the existing Solacom Call Handling equipment. Text to 9-1-1 is an additional
resource for citizens who may be in need of emergency services, and are not able to make a voice call, to reach
emergency services timely. This service is considered a best effort service and is not regulated.
DocuSign Envelope ID: F842A29D-5DEF-4106-A860-3A1E4AE8E5DC
Exhibit D
Price List
Nan Voice Services - Texty (Annual Renewal)
CuYlwvf. Irdiav River c4rey
Unted Now. Kmen Rackafd
4225 43rd Avenue
Mere Beach, FL 32967
Phate: 772-22&3943
rrrnherd/eemYfseen
[41111611
Ouxe Date 1 12.2723
Sales pefeur trolly Feacvck
•varaexa air nea auarene
Service
SmiftDamcdOW requemOd
Quwft WO Prtoe
Emendmi
F_CRF MIV (V"50050) Niles
0 3
Taxdy web Erowaar
FeeYtts
Rsgrresled
qur►lrty
tiRC
Emended
AeemalmdTaW
text -TO -911 r &xM
k
138,028
S 0.0040
$552.11
$&CK34
teed -FROM 411 (Temy OAWU d aniy)
S
0
i 0.0098
$0.00
3800
__
sen7,m Man-F2ecurnng total
j0_DO'
3m, trig
$6,625.34,
Non Voice Connecevl-FOR4/1
Unit Price
Erltssded
Annuaifesd Total
INldgtal pftwdec IP .--ineclivit,
lC:B
2
5584.75
31,169.50
514,034110
IN411011111 pfcwdet' i:Kivale elherrtet ccrirecGy 1Y
Ka
0
50.00
$000
$0.00
armalrecvfrrig
$14,034.00
ttebd amnef
service
$20,659.34
Service
SmiftDamcdOW requemOd
Quwft WO Prtoe
Emendmi
F_CRF MIV (V"50050) Niles
0 3
1,500
S
Cerrkr Coorafe8ori ommisgNew
0 S
2,505
S
Transition serftm -
0 S
1.200
S
NOwmk Selto tetfa 04450151 eke
0 S
750
S
Lofdr Ca*d Device - FaMet (TAG Ord)(
0 i
t <LC
5
__
sen7,m Man-F2ecurnng total
j0_DO'
DocuSign Envelope ID: F842A29D-5DEF-410B-A860-3A1E4AE8E5DC
Exhibit E
TERMINATION IN REGARDS TO F.S. 287.135: INdigital certifies that it and those related entities of
INdigital, as defined by Florida law are not on the Scrutinized Companies that Boycott Israel List, created
pursuant to s. 215.4725 of the Florida Statutes, and are not engaged in a boycott of Israel. Customer may
terminate this Contract if INdigital, including all wholly owned subsidiaries, majority-owned subsidiaries,
and parent companies that exist for the purpose of making profit, is found to have been placed on the
Scrutinized Companies that Boycott Israel List or is engaged in a boycott of Israel as set forth in section
215.4725, Florida Statutes.
INdigital is registered with and will use the Department of Homeland Security's E -Verify system
(www.e-verify.gov) to confirm the employment eligibility of all newly hired employees for the duration of this
agreement, as required by Section 448.095, F.S. INdigital is also responsible for obtaining proof of E -Verify
Certificate Of Completion
Envelope Id: F842A29D5DEF41 0BA8603A1 E4AE8E5DC
Subject: Complete with DocuSign: INdigital Agreement.pdf
Source Envelope:
Document Pages: 21 Signatures: 1
Certificate Pages: 1 Initials: 0
AutoNav: Enabled
Envelopeld Stamping: Enabled
Time Zone: (UTC -05:00) Eastern Time (US & Canada)
Record Tracking
Status: Original
4/19/2023 3:36:59 PM
Signer Events
Jeff Humbarger
jhumbarger@indigital.net
CFO
INdigital
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
In Person Signer Events
Editor Delivery Events
Agent Delivery Events
Intermediary Delivery Events
Certified Delivery Events
Carbon Copy Events
Witness Events
Notary Events
Envelope Summary Events
Envelope Sent
Certified Delivered
Signing Complete
Completed
Payment Events
Holder: Holly Peacock
hpeacock@indigital.net
Signature
[DocuSigned by:
*6ry
Signature Adoption: Pre -selected Style
Using IP Address: 144.86.182.171
Signature
Status
Status
Status
Status
Status
Signature
Signature
Status
Hashed/Encrypted
Security Checked
Security Checked
Security Checked
Status
DocuSign
Status: Completed
Envelope Originator:
Holly Peacock
1616 Directors Row
Fort Wayne, IN 46808
hpeacock@indigital.net
IP Address: 172.59.104.247
Location: DocuSign
Timestamp
Sent: 4/19/2023 3:38:07 PM
Viewed: 4/19/2023 4:32:49 PM
Signed: 4/19/2023 4:33:28 PM
Timestamp
Timestamp
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Timestamps
4/19/2023 3:38:07 PM
4/19/2023 4:32:49 PM
4/19/2023 4:33:28 PM
4/19/2023 4:33:28 PM
Timestamps