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HomeMy WebLinkAboutContract 52137 CSC No.52137 EPACT SERVICES ORGANIZATION TERMS OF SERVICE Last Updated:June 1, 2018 1. ePACT SaaS Services (a) "Agreement" has the meaning set out in the Subscription Order Form. (b) "Code of Conduct" means the personal information code of conduct set out at www.epactnetwork.com/corp/about-us/code-of-conduct/, as amended from time to time. (c) "Credit" has the meaning set out at Section 10(a). (d) "Effective Date" has the meaning set out in the Subscription Order Form. (e) "Emergency" means: (i)any event that presents a reasonable health or safety risk to any Member or an individual in the Member's support network, exclusively or as part of a collective; (ii) a sudden decline in the physical or psychological wellbeing of any Member or an individual in the Member's support network rendering such Member or other individual in need of assistance to ensure their health and safety; and (iii) any other circumstances under which a reasonable person would conclude that the use of Member Content or any other Personal Information is necessary to ensure the health and safety of any Member or an individual in the Member's support network. (f) "ePACT" has the meaning set out in the Subscription Order Form. (g) "ePACT Mobile Application" means any mobile device software provided by ePACT to Organization (or any of its Organizational Admins) through the Apple App Store or Google Play, including the mobile application titled 'ePACT Admin'. (h) "ePACT SaaS Services" means services through which ePACT hosts and makes available the ePACT solution for building support networks of relatives, friends and organizations, to store and exchange information (including personal health information), and to access communication tools for greater interaction and preparation in the course of their participation in programs and services offered by organizations registered with ePACT. The term "ePACT SaaS Services" includes the ePACT Mobile Application, but does not include Technical Support Services or the Professional Services. (i) "ePACT Services" means the ePACT SaaS Services, the Technical Support Services and the Professional Services, collectively, and any part thereof. OFFICIAL RECORD LEGAL_1:46342062.7 CITY SECRETARY FT WORTH,TX - 2 - (j) "Fees" has the meaning set out in Section 10. (k) "Initial Term" has the meaning set out in Section 14(a). (1) "Member" means any individual affiliated with Organization that has been identified in the ePACT SaaS Services as a 'member'. For greater clarity, Members may, but are not required to become users of the ePACT SaaS Services. (m) "Member Content" means any data, information, content, records, and files relating to a Member that has been transmitted, uploaded or entered into the ePACT SaaS Services by or on behalf of such Member, including any Personal Information about such Member. For greater clarity, Member Content excludes any information, content, records and files relating to a Member that has been transmitted, uploaded or entered into the ePACT SaaS Services by an Organizational Admin that is not on a Member's behalf. (n) "Modifications" means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, dE!rivative works, translations and adaptations, and "Modify" has a corresponding meaning. (o) "Organization" has the meaning set out in the Subscription Order Form. (p) "Organization Data" means any data, information, content, records, and files that Organization (or any of its Organizational Admins) loads, downloads from, receives through, transmits to or enters into the ePACT SaaS Services, excluding Member Content. (q) "Organizational Admin" means any user that uses the ePACT Services on behalf of the Organization, including using the ePACT SaaS Services, using the accounts issued to Organization in accordance with Section 8 of these Terms of Service. (r) "Organizational Admin Accounts" has the meaning set out in Section 8. (s) "Party" means either ePACT or Organization, as the context requires, and "Parties" will mean both ePACT and Organization, collectively. (t) "Personal Information" means information about an identifiable individual (including, for greater certainty, contact information and personal health information). (u) "Professional Services" means the consulting aric' other professional services set out on a Subscription Order Form, if any. (v) "Shared Member Content" means any Member Content that a Member has elected to share with the Organization through the ePACT SaaS Services. LEGAL 1:46342062.7 - 3 - (w) "Subscription Order Form" means the subscription order form entered into between ePACT and Organization containing the pricing and other terms governing your access to or use of the services. (x) "Technical Support Services" means the support services described in Section 9. (y) "Term" means the Initial Term and any renewal terms described in the Subscription Order Form. (z) "Terms of Service" means the terms of service described hereunder. (aa) "Terms of Use" means the end user terms of use (attached), as amended from time to time. (bb) "Website"means any websites used by ePACTto provide the ePACTSaaS Services, including the website located at www.epactnetwork.com. 2. ePACT SaaS Services (a) Provisioning of the ePACT SaaS Services. Subject to Organization's compliance with the terms and conditions of this Agreement,ePACT will make the ePACT SaaS Services available to Organization on the terms and conditions of this Agreement. (b) Restrictions on Use. Organization will comply with, and cause its Organizational Admins to agree to comply with, the obligations set out in the Terms of Use and Code of Conduct. Without limiting the foregoing, Organization will require each Organizational Admin to accept the Terms of Use prior to access to or use of the ePACT SaaS Services. (c) Suspension of Access; Scheduled Downtime; Modifications. ePACT may, at its discretion: (i) suspend Organization's access to or use of the ePACT SaaS Services or any component thereof: (A) for scheduled maintenance; (B) if Organization or any Organizational Admin violates any provision of applicable law or this Agreement; or (C) to address any emergency security concerns; and (ii) Modify the ePACT SaaS Services. Organization is required to accept all patches, bug fixes and updates made by or on behalf of ePACT to the ePACT SaaS Services. 3. Information Transfer API Services LEGAL 1:46342062.7 -4 - Organization may have entered into agreements with one or more third party software vendors (each, a "Vendor") that permits data (including any data related to Organization's customers, clients or members) stored in Organization's account on the Vendor's software ("Organization's Vendor Account") to be accessed and retrieved via APIs (any access and retrieval by ePACT in accordance with this Agreement,, the "Information Transfer API Services"). By providing ePACT with Organization's API key and/or other credentials necessary to access and use Organization's Vendor Account, Organization: (1) grants ePACT the right to retrieve select data from Organization's Vendor Account on its behalf,and import it into Organization's account on the ePACT SaaS Services on its behalf; and (2) represents and warrants that it has all rights, consents and permissions necessary to grant the right to ePACT described in clause(1). ePACT will limit any data retrieved from Organization's Vendor Account to the data (including any data related to Organization's customers, clients or members) that Organization has requested be transferred, based on settings in Organization account on the ePACT SaaS Services. ePACT will store API Ikeys provided to ePACT using the same security that ePACT uses to store passwords generally on the ePACT SaaS Services. Organization acknowledges and agrees that the Information Transfer API Services are dependent on the cooperation of Vendor and, accordingly, ePACT is not, and cannot, be responsible for ensuring the availability, uptime, integrity or performance of the Information Transfer API Services. If Organization makes any requests that ePACT facilitate the transfer of Organization Information using the Information Transfer API Services, Organization does so at its own risk. 4. Professional Services ePACT will use commercially reasonable efforts to perform the Professional Services, if any. 5. Ownership (a) Organization will own all right (including intellectual property rights), title and interest in and to the Organization Data and, as between Organization and ePACT, Shared Member Content. Organization hereby grants to ePACT a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right and license to access, use, process, store and transmit Organization Data to Provide the ePACT Services and to exercise its rights hereunder. ePACT may collect and analyze non-identifiable data and other information relating to the provision, use and performance of the ePACT Services and related systems and techrologies (including information concerning Organization Data and data derived therefrom), and during and after the Term of this Agreement,ePACT may use such clata and information to improve and enhance the ePACT Services and for other development, diagnostic and corrective purposes in connection with the ePACT Services and other ePACT offerings. (b) ePACT or its licensors will own all rights (including intellectual property rights), title and interest in and to: (i) the ePACT Services; (ii) anything developed or delivered by or on behalf of ePACT under this Agreement; and (iii) any LEGAL 1:46342062.7 - 5 - Modifications to the foregoing (i) and (ii), except for the Organization's ownership rights described in Section 5(a). 6. Shared Member Content Notwithstanding that, as between the Parties,Shared Member Content will be owned by and the Confidential Information of Organization pursuant to Section 5(a) and 11(a), the Parties acknowledge that Shared Member Content may be made available by the applicable Member to the Organization under certain terms and conditions between such Members and the Organization.Accordingly, Organization will only use Shared Member Content in accordance with the rights and permissions granted by the applicable Member and ePACTwill not be responsible for Organization's use or misuse of such Shared Member Content. 7. Personal Information (a) Organization will ensure that any collection, access, use and storage(including the storage of copies using ePACT's archival service) of Member Content by Organization will be performed in accordance with this Agreement, in compliance with applicable law, as well as in accordance with the Organization's privacy and information retention policies (to the extent such policies are not inconsistent with or contrary to this Agreement or applicable law). Organization will promptly notify ePACT of any actual or suspected unauthorized access to or use of the ePACT SaaS Services, Organization Data or Member Content. (b) ePACT will implement reasonable safeguards in an effort to protect personally identifiable Organization Data and Shared Member Content from unauthorized access, use and disclosure.Organization acknowledges that ePACTwill access, use, collect, store, disclose and otherwise process Personal Information, including Shared Member Content, in accordance with ePACT's privacy policy located at www.epactnetwork.com/corp/about-us/privacy-policy/(the "Privacy Policy"). 8. Organizational Admin Account; Notification of Breach Upon Organization's request, ePACT may issue one or more organization accounts for use by individuals on behalf of Organization (such accounts, the "Organizational Admin Accounts") in accordance with this Agreement. Organization is responsible for: (a) identifying and authenticating all Organizational Admins; (b) each Organizational Admins' compliance with this Agreement; and (c) all activities that occur on or through the use of any Organizational Admin Accounts. ePACT reserves the right to suspend, deactivate, or replace the Organizational Admin Account if it determines that the Organizational Admin Account may have been used for an unauthorized purpose. 9. Support Organization will generally have access to ePACT's Customer Success Team: (a) via telephone at 1-855-773-7228 from 9:00 am Pacific to 5:00 pm Pacific from Monday to Friday, (excluding LEGAL L46342062.7 - 6 - statutory and civic holidays observed in Vancouver, British Columbia); and (b) via email at help@epactnetwork.com. 10. Fees and Payment (a) Fees. Organization will pay to ePACT the fees described in any Subscription Order Form, including any applicable sales, use, gross receipts,value-added, GST or HST or other applicable taxes (the "Fees"). If Organization's use of the ePACT SaaS Services exceeds the service capacity set forth on a Subscription Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Organization will be billed for such usage and Organization will pay the additional fees in accordance with this Agreement. If Organization has paid Fees in excess of the actual service capacity used by Organization, as determined by ePACT in its sole discretion, then Organization may be entitled to receive a credit in the amount of the unused service capacity,as determined by ePACT in its sole discretion,that may be applied towards future invoices("Credit").Credits will not be refunded, except if if this Agreement is terminated by ePACT pursuant to Section 14(b). Unless otherwise noted on a Subscription Order Form, all Fees are identified in US dollars and are payable in advance. (b) Changes to the Fees. ePACT reserves the right n change the Fees and institute new charges on each anniversary of the Term upon providing not less than 60 days prior notice to Organization. (c) Invoicing. ePACT will prepare and send to Organization, at the then-current contact information on file with ePACT, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice,Organization will pay all invoiced amounts within 30 calendar days of the invoice date. (d) Disputed Invoices or Charges. If Organization believes ePACT has charged or invoiced Organization incorrectly, Organization must contact ePACT no later than 30 days after having been charged by ePACT or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Organization will pay any undisputed amounts in accordance with the payment terms herein,and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute. (e) Late Payment. Organization may not withhold or setoff any amounts due under this Agreement. ePACT reserves the right to suspend Organization's access to the ePACT SaaS Services and any delivery of Professional Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of 10% per annum, plus all expenses and costs of collection, until fully paid. LEGAL 1:46342062.7 - 7 - (f) Suspension. Any suspension of the ePACT Services by ePACT pursuant to the terms of this Agreement will not excuse Organization from its obligation to make payments under this Agreement. 11. Confidential Information (a) Definitions. For the purposes of this Section, a Party receiving Confidential Information (as defined below) will be the "Recipient", the Party disclosing such information will be the "Discloser" and "Confidential Information" means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that the Discloser's Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser's Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations. (b) Confidentiality Covenants, The Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a "need to know"and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary markings. Each Party will take reasonable precautions to safeguard the other Party's Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type. (c) Exceptions to Confidentiality. Notwithstanding Section 11(b), the Recipient may disclose the Discloser's Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similarjudicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party's business; or (iii) in the case of ePACT, to potential assignees, acquirers or successors of ePACT if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of ePACT. LEGAL 1:46342062.7 - 8 - 12. Warranty; Disclaimer; Indemnity (a) Organization Warranty. Organization represents and warrants to, and covenants with ePACT that: (i) Organization has and will maintain, throughout the Term, all authority required under applicable laws (including federal and provincial privacy laws)to enable ePACT to provide the ePACT SaaS Services and to exercise its rights hereunder, including ensuring that Organization has provided all notices and obtained all necessary consent as required under federal and provincial privacy laws with respect to the collection, use, access, storage, disclosure, transmission or other processing of Organization Data or Shared Member Content, including by or to ePACT on behalf of Organization and by, to or from Organization or any other third party; and (ii) Organization has and will comply,throughout the Term, with all applicable consent, notice, and other requirements under Canada's anti-spam legislation and its associated regulations (and under any additional applicable laws regulating the same or similar subject matter), including all requirements with respect to the sending of any commercial electronic messages and the installation of computer programs, including as necessary to enable ePACT to provide the ePACT Mobile Application to Organizational Admins. (b) GENERAL DISCLAIMER. EPACT DOES NOT WARRANT THAT THE EPACT SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANT'AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE EPACT SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE EPACT SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY EPACT TO ORGANIZATION ARE PROVIDED "AS IS"AND "AS AVAILABLE". TO THE EXTENT PERMITTED BY APPLICABLE LAW, EPACT HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE,OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF C OURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, EPACT EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO ORGANIZATION IN CONNECTION WITH ORGANIZATION'S USE OF THE EPACT SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY ORGANIZATION FOR ANY PURPOSE WHATSOEVER. LEGAL 1:46342062.7 - 9 - (c) Indemnity. Organization will defend, indemnify and hold harmless ePACT, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Members) liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Organization Data and Shared Member Content; (ii) Organization's breach of Sections 11 (Confidential Information) and 12(a) (Organization Warranty); (iii) Organization's breach of applicable laws (including applicable privacy laws); (iv) any gross negligence or wilful misconduct of Organization or any Organizational Admin; and (v) use of the ePACT Services(or any part thereof) by Organization or any Organizational Admin contrary to this Agreement or any guidelines made available by ePACT to Organization or any Organizational Admin. Organization will fully cooperate with ePACT in the defense of any claim defended by Organization pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of ePACT. 13. Limitation of Liabilities The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy: EXCEPT FOR ORGANIZATION'S INDEMNITY OBLIGATIONS UNDER SECTION 12(c): (a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, EXTRACONTRACTUAL LIABILITY, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY ORGANIZATION FOR THE EPACT SERVICES IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL EPACT'S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. (b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY ORGANIZATIONAL ADMIN FOR ANY: (1) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH;OR(VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, EXTRACONTRACTUAL LIABILITY, TORT (INCLUDING NEGLIGENCE OR GROSS LEGAL 1:46342062.7 - 10 - NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. 14. Term and Termination (a) Term. This Agreement will commence on the Effective Date and continue to be in effect for the period set out in the Subscription Order Form and identified as the 'Initial Term' (the "Initial Term"). The Term will renew on the terms out in the Subscription Order Form. (b) Termination for Convenience. Either Party may terminate this Agreement at any time by providing advance written notice of not less than 30 days to the other Party, and, in the case of Organization, upon payment of any corresponding fees identified in a Subscription Order Form. (c) Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement and fails within 30 calendar days after receipt of notice of such breach to correct such material breach. (d) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 5 (Ownership), Section 11 (Confidential Information),Section 12 (Warranty; Disclaimer; Indemnity),Section 13(Limitation of Liabilities), Section 14(d) (Survival), and Section 15 (General Provisions). 15. General Provisions (a) Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent: (i) if to ePACT, to the address set out in the Subscription Order Form; and (ii) if to Organization, to the current postal or email address that ePACT has on file with respect to Organization. ePACT may change its contact information by posting the new contact information on the Website or by giving notice thereof to Organization. Organization is solely responsible for keeping its contact information on file with ePACT current at all times during the Term. (b) Assignment. Organization will not assign this Agreement to any third party without ePACT's prior written consent. ePACT may assign this Agreement or any rights under this Agreement to any third party in connection with the sale of all (or substantially all)of ePACT's business or assets,without Organization's consent. Any assignment in violation of this Section will be void. This Agreement will inure LEGAL 1:46342062.7 - 11 - to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees. (c) Publicity. Organization agrees that ePACT may use and display Organization's name in listings of current customers or any other marketing materials or communications. (d) Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of British Columbia and the federal laws of Canada applicable therein,without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent ePACT from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. (e) Export Restrictions. Organization will comply with all export laws and regulations that may apply to its access to or use of the ePACT SaaS Services. (f) Construction. Except as otherwise provided in this Agreement, the Parties' rights and remedies under this Agreement are cumulative. The terms "include" and "including" mean, respectively, "include without limitation" and "including without limitation." The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms "consent" or "discretion", when used in respect of ePACT in this Agreement means the right of ePACT to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Organization. (g) Force Maleure. Neither Party will be liable for failures to perform its obligations hereunder, non-availability, or delays caused by any event or circumstances beyond ePACT's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving ePACT's employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites. ePACT cannot guarantee the availability of the ePACT SaaS Services during a natural disaster and strongly recommends that Organization and Organizational Admins maintain offline backups of all information in a safe location that can easily be accessed in an Emergency (which location may include the ePACT Mobile Application). (h) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this LEGAL 1:46342062.7 - 12 - Agreement and all other provisions of this Agree-rent will remain in full force and effect. (i) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions. (j) Independent Contractors. ePACT's relationship to Organization is that of an independent contractor, and neither Party is an agent, employee or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party. (k) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral. (1) Amendments. No amendment, supplement, modification, waiver, ortermination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. (m) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C'est la volonte expresse des Parties que la presente convention ainsi que les documents qui s'y rattachent soient rediges en anglais. LEGAL L:46342062.7 ADDENDUM TO ePACT SUBSCRIPTION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND EPACT NETWORK LTD This Addendum to ePACT Subscription Agreement("Addendum") is entered into by and between ePACT Network Ltd. ("Seller") and the City of Fort Worth ("City"), collectively the "parties",for a purchase of licenses. The Contract documents shall include the following: 1. The ePACT Subscription Form—Quote Number QU-0348; and 2. ePACT's Terms of Service, located at hgps://www.epactnetwork.com/corp/about- us/terms-use-organization/;and 3. This Addendum. Notwithstanding any language to the contrary in the attached ePACT Subscription Form and Terms of Service (the "Agreement"), the Parties hereby stipulate by evidence of execution of this Addendum below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1. Termination. a. Convenience.Either City or Seller may terminate the Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. b. Breach.If either party commits a material breach of the Agreement,the non- breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten(10)calendar days after receipt of notice from the non-breaching party, or other time frame as agreed to by the parties. If the breaching party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion, and without prejudice to any other right under the Agreement, law, or equity, immediately terminate this Agreement by giving written notice to the breaching party. C. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Seller of such occurrence and the Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. d. Duties and Obligations of the Parties. In the event that the Agreement is terminated prior to the Expiration Date, City shall pay Seller for services actually rendered up to the effective date of termination and Seller shall continue to provide City with Addendum to ePACT Subscription Form Page 1 of 5 services requested by City and in accordance with the Agreement up to the effective date of termination. Upon termination of the Agreement for any reason, Seller shall provide City with copies of all completed or partially completed documents prepared under the Agreement. In the event Seller has received access to City information or data as a requirement to perform services hereunder, Seller shall return all City provided data to City in a machine readable format or other format deemed acceptable to City. 2. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any amount, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 3. Law and Venue. The Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with the laws of the United States and state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement is required to be governed by any state law other than Texas or venue in Tarrant County, City objects to such terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 4. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign immunity. To the extent the Agreement requires City to waive its rights or immunities as a government entity; such provisions are hereby deleted and shall ]lave no force or effect. 5. Indemnity. To the extent the Agreement requires City to indemnify or hold Seller or any third party harmless from damages of any kind or character, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 6. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all obligations of City hereunder are;subject to the availability of funds. If such funds are not appropriated or become unavailable,City shall have the right to terminate the Agreement except for those portions of funds which have been appropriated prior to termination. 7. Confidential Information. City is a government entity under the laws of the State of Texas and all documents held or maintained by City are subiect to disclosure under the Texas Public Information Act. To the extent the Agreement requires that City maintain records in violation of the Act, City hereby objects to such provisions and such provisions are hereby deleted from the Agreement and shall have no force or effect.In the event there is a request for information marked Confidential or Proprietary, City shall promptly notify Seller. It will be the responsibility of Seller to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 8. Addendum Controlling. If any provisions of the attached Agreement conflict with the terms herein, are prohibited by applicable law, conflict with any applicable rule,regulation or ordinance of City,the terms in this Addendum shall control. Addendum to ePACT Subscription Form Page 2 of 5 9. Liability and Indemnification. LIABILITY - SELLER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF SELLER, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. INDEMNIFICATION - SELLER HEREBY COVENANTS AND AGREES TO INDEMNIFY,HOLD HARMLESS AND DEFEND THE CITY,ITS OFFICERS,AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER,WHETHER REAL OR ASSERTED,FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO SELLER'S BUSINESS,AND ANY RESULTING LOST PROFITS)PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, AND DAMAGES FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OF SELLER, ITS OFFICERS, AGENTS, SUBCONTRACTORS, SERVANTS OR EMPLOYEES. IN NO EVENT SHALL SELLER'S OBLIGATIONS HEREUNDER EXCEED $500,000.00. 10. Immigration Nationality Act. Seller shall verify the identity and employment eligibility of its employees based in the United States who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Seller shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Seller shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Seller employee who is not legally eligible to perform such services. SELLER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY SELLER, SELLER'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Seller, shall have the right to immediately terminate this Agreement for violations of this provision by Seller. 11. No Boycott of Israel. Seller acknowledges that in accordance with Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Seller certifies that Seller's signature provides written verification to City that Seller: (1) does not boycott Israel; and(2) will not boycott Israel during the term of the Agreement. 12. Right to Audit. Seller agrees that City shall, until the expiration of three (3) years after final payment under the Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Seller involving transactions relating to the Addendum to ePACT Subscription Form Page 3 of 5 Agreement. Seller agrees that City shall have access during normal working hours to all necessary Seller facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Seller reasonable advance notice of intended audits. (signature page follows) I I i Addendum to ePACT Subscription Form Page 4 of 5 Executed this the 5tf1 day of Ap r� , 2019. CITY: City of Fort Worth Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration r�1 of this contract,including ensuring all By: Fernando Costa(Apr 5,2019) performance and reporting requirements. Fernando Costa,Assistant City Manager Date: Apr 5, 2019 ��'►A,:_o .o..., By: Sheri Endsley(Apr 4,2019) Sheri Endsley,District Superintendent Park&Recreation Department Approval Recommended: Approved as to Form and Legality: I,hez�w'�rgGg By: Richard Zavala(Apr4,2019) Richard Zavala,Director Park&Recreation Department By: Matthew A.Murray(Apr 5,2019) Matthew A.Murray,Assistant City Attorney Attest: Contract Authorization: 2 F oR T C: Not required By: Mary J.K el (A pf1f,019) J� 0 Mary . Ka ser, City Secr SELLER: ePACT Network Ltd By: `W�" Kirsten Koppang Telford,Co-Founder&COO Date: March 21,2019 OFFICIAL RECORD CITY SECRETARY FT. WORTH,TX Addendum to ePACT Subscription Form Page 5 of 5 • e PACT*�-A• your emergency network Date ePACT Network Ltd. SUBSCRIPTIONFORM 27 F 2019 105-267 Esplanade West E=xpiiy NORTH VANCOUVER BC F City of Fort Worth,Texas 28 _b 2019 V7M 1 A5 Attention:Sheri Endsley CANADA Quote;Number 200 Texas St CCU-0348 FORT WORTH TX 76102 USA ePACT- Subscription Agreement Description Quantity Unit Price Discount Tax Amount USD Fee includes your implementation and 1.00 2,250.00 100.00% 0.00 Administrator Training. ePACT Pro Package, includes: 1500.00 5.00 Tax Exempt 7,500.00 Telephone/Email Support&Online Training; Emergency/Medical Data Collection& Management; General Reports; Email Messaging; Mobile App Access;eSignature Waivers;Shared Files-Advanced; Dedicated Account Manager;SMS(Text Messaging); Advanced Reports Subtotal(includes a discount of 7,500.00 2,250.00) TOTAL USD 7,500.00 Terms Initial Term: 1 year Renewal Term:The services described above will renew annually at the end of the Initial Term and on the anniversary of each year thereafter for successive 1 year periods(each a"Renewal Term"),based on the total number of unique Members that has been associated with your account during the preceding the Initial Term or Renewal Term,as applicable. For illustration purposes,if during the preceding Renewal Term,there were 100 unique Members associated with your account, notwithstanding that only 50 unique Members were associated with your account at any given time,the renewal will be based on 100 unique Members. Registered Office:105-267 Esplanade West,North Vancouver,BC,V7M 1 A5,Canada. A subscription must be cancelled at least 30 days prior to the commencement of each renewal period in order for the cancellation to be effective. Service Capacity: If the total number of unique Members that has been associated with your account during the Initial Term or any Renewal Term exceeds the number of Members that ePACT had previously invoiced you for,ePACT will invoice you an amount that corresponds with the number of excess Members at the end of the Initial Term or each Renewal Term,as applicable,except if such amount exceeds $100,in which case ePACT may invoice you such amount anytime. For illustration purposes, if during a Renewal Term, 50 unique Members were associated with your account, and you subsequently delete those 50 unique Members and add an additional 50 different and unique Members,the total number of unique Members would be 100 for that Renewal Term.Thus,if we had previously invoiced you for 50 unique Members,then we would have the right to invoice you for the additional 50 unique Members. Note: For additional details, please read the Terms and Conditions below. Terms and Conditions(Please Read Carefully) The terms and conditions,located at: https://www.epactnetwork.com/corp/about-us/terms-use-organization/,(the"Terms of Service"),as amended by the addendum,attached(the"Addendum"),and the privacy and security policies located at https://www.epactnetwork.com (the"Privacy Policy and Security Policy")form part of, and are incorporated into this subscription order form("Subscription Order Form"). THE SUBSCRIPTION ORDER FORM,TOGETHER WITH THE TERMS OF SERVICE,AS AMENDED BY THE ADDENDUM,AND THE PRIVACY AND SECURITY POLICIES FORM A BINDING AGREEMENT BETWEEN YOU AND US. BY CLICKING ACCEPT ON THIS SUBSCRIPTION ORDER FORM(THE DATE THAT YOU CLICK ACCEPT,THE"EFFECTIVE DATE"),YOU: (A) REPRESENT AND WARRANT THAT:(1)YOU HAVE REACHED THE AGE OF MAJORITY IN YOUR JURISDICTION; (II)YOU HAVE THE CAPACITY TO ENTER INTO BINDING OBLIGATIONS;AND(111)ALL INFORMATION SUPPLIED BY YOU TO US IS TRUE,ACCURATE,CURRENT AND COMPLETE;AND(B)AGREE TO BE BOUND BY AND COMPLY WITH THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF PERSON OR ENTITY,YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THIS AGREEMENT. Registered Office:105-267 Esplanade West,North Vancouver,BC,V7M 1A5,Canada.