4.37 4.37
SERVICESTifth Asset DBA DebtBook Software—RENEWAL—1-1-2024
RESOLUTION AUTHORIZING RENEWAL OF FIFTH ASSET, INC.,
DB/A DEBTBOOK DEBT AND LEASE MANAGEMENT SOFTWARE
RESOLUTION NO.: 12024
INTRODUCED BY:
WHO MOVED ITS ADOPTION
SECONDED BY:
WHEREAS, by Resolution No.: 94,2023, the Queensbury Town Board authorized
engagement of Fifth Asset, Inc., d/b/a DebtBook (DebtBook) for implementation of DebtBook's
debt and lease management software, and
WHEREAS, the Town Budget Officer has recommended that the Town Board authorize a
three (3) year renewal of the DebtBook debt and lease management software, as lease disclosure is
required under Governmental Accounting Standards Board (GASB-87) for the Town's fiscal year
financial statements, and
WHEREAS, DebtBook has submitted a Quote and Order Form Amendment dated
12/13/2023 for an annual subscription fee of $7,600 for 2024, $8,000 for 2025 and $8,400 for
2026 for a total contract value of$24,000, and
WHEREAS, the Town Board concurs with the Town Budget Officer's recommendation,
NOW, THEREFORE, BE IT
RESOLVED, that the Queensbury Town Board hereby authorizes and directs the three (3)
year renewal of Fifth Asset, Inc., d/b/a DebtBook's debt and lease management software in
accordance with DebtBook's Quote and Order Form Amendment dated 12/13/2023 for an annual
subscription fee of $7,600 for 2024, $8,000 for 2025 and $8,400 for 2026 for a total contract
value of$24,000 and authorizes and directs the Town Supervisor to sign the Quote and Order Form
Amendment substantially in the form presented at this meeting as well as any other needed
documentation,to be paid from Computer Software Account No.: 001-1680-2032, and
BE IT FURTHER,
RESOLVED, that the Town Board further authorizes and directs the Town Supervisor, and/or
Town Budget Officer to take such other and further actions as may be necessary to effectuate the
terms of this Resolution.
Duly adopted this V day of January, 2024,by the following vote:
AYES Mr. Metivier, Mr. Freer, Mr. Dixon, Mr. McNulty, Mr. Strough
NOES None
ABSENT: None
Prepared For: Prepared By:
Town of Barbara Tierney i Budget officer Hank Coffey
barbarat@queensbury.net Customer Success Manager
+Qu@@nSbl,lr
J►1 NY (518) 761 -8240 hank.coffey@debtbook.com
742 Bay Road Notice Address:
Queensbury, NY 12804 PO Box 667950
Charlotte, NC 28266
The Renewal Term under this Renewal Order Form is 3 year(s). The Application Services purchased under this Renewal Order Form
include the Products listed below. The Services include the Application Services, the Onboarding Services, the Support Services, and, if
applicable for any Product, the Implementation Services option indicated below.
Products
Description Year i Year 2 Year 3
2023 Tier 1 - Debt - 23D.ST1-2
DebtSook's debt management software-as-a-service application provided, if
applicable, to Customer through access to the Application Services. - - -
2023 Tier 1 - Lease - 23LSTi -2
DebtSooWs Lease management software-as-a-service application provided,
If applicable, to Customer through access to the Application Services.
2023 Tier 1 - Subscriptions - 23SST1-2
DebtBooWs Subscriptions management software-as-a-service application
provided, if applicable, to Customer through access to the Application
Services.
Product Bundle Total
$78600 $84000 $8.400
Implementation Services Price
2023 Tier 1 Subscriptions Premium Implementation Implementation - 23SPi1 -2 $0
[FOR PREMIUM ONLY[ The additional implementation services provided to Customer on a semiannual basis,
Including tailored Implementation support, review of Application Obligations, and entry of relevant Customer Data.
Total Contract Value $24,000
ORDER FORM AMENDMENT
This order Form Amendment (this "Amendment'") is entered into between the customer executing below ("Customer") and Fifth
Asset, Inc., d/b/a DebtBook ("DebtBook").
The Customer and DebtBook have previously entered into an Agreement, as such term Is defined In the Order Form(s) executed
and delivered by Customer and DebtBook and attached as Exhibit A (collectively, the "Existing Order Form'"). The Existing Order
Form, as modified by this Amendment, is referred to as the "Renewal Order Form." Each capitalized term used but not defined
In this Amendment has the meaning given in the Agreement.
On and after the Amendment Effective Date (as defined below), Customer and DebtBook agree to amend the Existing Order Form
and the Agreement as follows:
Amendments. Any reference to the "DebtBook Quote" will mean DebtBooWs pricing document attached as Exhibit B. Any
reference to the "Customer Terms" will mean any Customer Terms in the Existing Agreement as amended or supplemented, if
applicable, by the additional Customer Terms attached as Exhibit C. Any reference to the '"Terms & Conditions" will mean the
updated Terms &n Conditions attached as Exhibit D. Each exhibit to this Amendment is Incorporated herein by this reference. Any
Notice delivered under the Agreement will be delivered to DebtBook at the address indicated beneath DebtBook's signature
below. Any reference to the "Order Form" will mean the Renewal Order Form, and any reference to the "Agreement" will mean
the Agreement as modified by this Amendment.
Term. This Amendment establishes a "Renewal Term" beginning on the Amendment Effective Date and remaining In effect for
the term indicated in the DebtBook Quote_
Services; Fees. The DebtBook Quote sets forth the Services to be
provided to Customer under the Renewal Order Form, including the
specific Products to be provided to Customer through its access to
the Application Services. During the Renewal Term, DebtBook will
charge Customer an annual Subscription Fee as set forth in the
DebtBook Quote. To the extent applicable, DebtBook will also
charge Customer an Implementation Fee as set forth in the
DebtBook Quote for the Premium Implementation Services.
Other Terms. Unless otherwise provided in the Customer Terms, this Amendment will become effective on the day immediately
following the end of the current Term established in the Existing Order Form (the "Amendment Effective Date"). Except as
expressly provided in this Amendment, the terms and provisions of the Agreement will remain unchanged and in full force and
effect.
September 2023 Form
Authority; Execution. Each of the undersigned represents that ( I )
they are authorized to execute and deliver this Order Form on behalf
of their respective party, (2) they are authorized to bind their
respective party to the terms of the Agreement, and (3) if Customer
is a Government Entity, sufficient funds have been appropriated and
are available to pay any Fees due under the Agreement in
Customer's current fiscal year. This Order Form and any other
documents executed and delivered in connection with the
Agreement may be executed in counterparts, each of which is
deemed an original, but all of which together are deemed to be one
and the same agreement. If permitted by applicable law, electronic
signatures may be used for the purpose of executing this Order Forth
by email or other electronic means. Any document delivered
electronically and accepted is deemed to be "in writing" to the same
extent and with the same effect as if the document had been signed
manually.
FIFTH ASSET, TOWN OF
INC., D/B/A QUEENSBURY,
DEBTBOOK NY
By: By:
Name: Name:
Title: Title:
Notice Address Date Signed:
PO Box 667950
Charlotte, NC 28266
Attention: Chief
Operating Officer Purchase Order
legal�?a debtbook.com Required: Yes
No
September 2023 Form
Exhibit A
Existina Order Form(s)
[see attached.]
September 2023 Form
Exhibit C
Customer Terms
The additional terms set forth below constitute "Customer Terms'" for all purposes of the Agreement, apply to the Products and
Services purchased under this Order Form, and modify any conflicting provision In the Agreement.
Exhibit D
DEBTBOOK'S GENERAL TERMS & CONDITIONS
Please carefully read these General Terms and Conditions (these "Terms & Conditions") which govern Customer's access and use
of the Services described in the Order Form.
By executing the Order Form and using any of the Services, Customer agrees to be bound by these Terms.
1. Definitions.
"Aggregated Statistics" means data and information related to Customer's use of the Services that is used by DebtBook
in an aggregate and anonymized manner, including statistical and performance information related to the Services.
"Agreement" means, collectively and to the extent applicable, the Order Farm, any Customer Terms, these Terms &
Conditions, and the incorporated Documents, in each case as may be amended from time to time In accordance with their terms.
"Application Obligations" means, collectively, each contractual or financial obligation or agreement managed by
Customer using the Products made available to Customer through the Application Services_
"Application Services" means the Products and other application-based services that DebtBook offers to Customer
through access to the DebtBook application. The specific Products offered to Customer as part of the Application Services are
limited to those Products expressly described in any Order Form then In effect.
"Appropriate Security Measures" means, collectively, commercially reasonable technical and physical controls and
safeguards intended to protect[ Customer Data against destruction, loss, unauthorized disclosure, or unauthorized access by
employees or contractors employed by DebtBook.
"Authorized User" means any of Customer's employees, consultants, contractors, or agents who are authorized by
Customer to access and use any of the Services.
"Customer" means the person or entity purchasing the Services as identified in the Order Form.
"Customer Data" means, other than Aggregated Statistics, Information, data, and other content, in any form or
medium, that Is transmitted by or on behalf of Customer or an Authorized User through the Services.
"Customer Terms" means the terms set forth in or otherwise Identified and incorporated into the Order Form. Far the
avoidance of doubt, "Customer Terms" does not include any purchase order or similar document generated by Customer unless
such document is expressly identified and Incorporated into the Order Form,
"DebtBook" means Fifth Asset, Inc., d/b/a DebtBook, a Delaware corpo rat lon, and Its permitted successor and assigns,
"DebtBook IP" means (1) the Products, Services, Documentation, and Feedback, including all ideas, concepts,
discoveries, strategies, analyses, research, developments, improvements, data, materials, products, documents, works of
authorship, processes, procedures, designs, techniques, inventions, and other intellectual property, whether or not patentable
or co pyrig hta ble, and all embodlments and derivative works of each of the foregoing in any form and media, that are developed,
generated or produced by DebtBook arising from or related to the Product, Services, Documentation, or Feedback; and (2) any
intellectual property provided to Customer or any Authorized User in connection with the foregoing other than Customer Data.
"DebtBook Quote" means any pricing document identified and incorporated into each Order Form that may establish
the Products, Services, Term, payment terms, and other relevant details applicable to each Customer purchase of Products and
Services under such Order Form.
"Documentation" means DebtBook's end user documentation and content, regardless of media, relating to the
Products or Services made available from time to time on DebtBook's website at https.//support.debtbook.com.
"Feedback" means any comments, questions, suggestions, or similar feedback transmitted in any mannerto DebtBook,
including suggestions relating to features, functionality, or changes to the DebtBook IP.
"Guided Implementation Services" means Debteook's standard Implementation Services option, including basic
Implementation support, guidance, and training.
"Governing State" means, if Customer is a Government Entity, the state in which Customer is located. If Customer Is
not a Government Entity, "Governing State" means the State of North Carolina.
D-1 September 2023 Form
"Government Entity" means any unit of state or local government, Including states, counties, cities, towns, villages,
school districts, special purpose districts, and any other political or governmental subdivisions and municipal corporations, and
any agency, authority, board, or instrumentality of any of the foregoing.
"Implementation Services" means DebtBook's Guided Implementation Services or Its Premium Implementation
Services, in each case as requested by Customer and as provided to Customer on an annual basis.
"Incorporated Documents" means, collectively, the Privacy Policy, the SLA, and the Usage Policy, as each may be
updated from time to time In accordance with their terms. The Incorporated Documents, as amended, are incorporated into
these Terms & Conditions by this reference. Current versions of the Incorporated Documents are available at
httr)s:/lwww.de bt book.co m/I ega I.
"Initial Term" means the Initial Term established in the Order Form.
"0n boa rding Services" means on boarding services, support, and training as required to make the Application Services
available to Customer during the Initial Term_
'Order Form' means each order document (including, if applicable, any DebtBook Quote incorporated therein by
reference) duty authorized by Customer and DebtBook for the purchase of any products or Services in effect from time to time,
as each such Order Form may be amended, modified, or replaced in accordance with its terms and these Terms & Conditions.
"Premium implementation Services" means DebtBook's premium Implementation Services option, including
implementation support, guidance, and training, review of Application Obligations, and entry of relevant Customer Data.
"Pricing Tier" means, if applicable, Customer's pricing tier for each Product as of the date of determination.
"Privacy Policy" means, collectively, DebtBook's privacy policy and any similar data policies generally applicable to all
users of the Application Services, in each case as posted to DebtBook's website and as updated from time to time in accordance
with their terms.
"Products" means, collectively, any products DebtBook may offer to Customer from time to time through the
Application Services, In each case as established in any Order Form then in effect.
"Renewal Term" means any renewal term established In accordance with the terms of the Agreement.
'Services" means, collectively, the Application Services, the 0n boa rding Services, the Implementation Services, and the
Support Services. For the avoidance of doubt, "Services" Includes the underlying Products made available to Customer through
access to the Application Services.
"SLA" means the Service Level Addendum generally applicable to all users of the Application Services, as posted to
DebtBook's website and as updated from time to time in accordance with its terms.
"Support Services" means the general maintenance services and technical support provided in connection with the
Application, as more particularly described in the SLA.
"Term" means, collectively, the Initial Term and, if applicable, each successive Renewal Term.
"Usage Policy" means, collectively, DebtBook's acceptable usage policy, any end user licensing agreement, or any
similar policy generally applicable to all end users accessing the Application Services, in each case as posted to DebtBook s website
and as updated from time to time in accordance with its terms.
Each capitalized term used but not otherwise defined in these Terms & Conditions has the meaning given to such term
in the applicable Order Form.
2. &cess and Use.
lay Provision of Access. Subject to the terms and conditions of the Agreement, DebtBook grants Customer and
Customer's Authorized Users a non-exclusive, non-transferable (except as permitted by these Terms) right to access and use the
Application Services during the Term, solely for Customer's internal use and for the Authorized Users' use In accordance with the
Agreement. DebtBook will provide to Customer the necessary passwords and network links or connections to allow Customer to
access the Application Services.
(b) Documentation License. Subject to the terms and conditions of the Agreement, DebtBook grants to Customer
and Customer's Authorized Users a non-exclusive, non-sublicensable, non-transferable (except as permitted by these Terms)
license to use the Documentation during the Term solely for Customer's and Its Authorized User's internal buslness purposes In
connection with its use of the Services.
D-2 September 2023 Form
(c) Customer Responsibilities_ Customer is responsible and liable for its Authorized Users' access and use of the
Services and Documentation, regardless of whether such use Is permitted by the Agreement. Customer must use reasonable
efforts to make all Authorized Users aware of the provisions applicable to their use of the Services, Including the Incorporated
Documents.
(d) Use Restrictions. Customer may not at any time, directly or Indirectly through any Authorized User, access or
use the Services in violation of the Usage Policies, including any attempt to (1) copy, modify, or create derivative works of the
Services or Documentation, In whole or in part; (2) sell, license, or otherwise transfer or make available the Services or
Documentation except as expressly permitted by the Agreement; or (3) reverse engineer, disassemble, decompile, decade, or
otherwise attempt to derive or gain access to any software component of the Services, in whole or in part. Customer will not
knowingly transmit any personally identifiable information to DebtBook or any other third-party through the Services.
(e) Suspension. Notwithstanding anything to the contrary In the Agreement, DebtBook may temporarily suspend
Customer's and any Authorized User's access to any or all of the Services if: (1) Customer is more than 45 days late in making any
payment due under, and In accordance with, the terms of the Agreement, (2) DebtBook reasonably determines that (A) there is
a threat or attack on any of the DebtBook IP; (B) Customer's or any Authorized User's use of the DebtBook I disrupts or poses a
security risk to the DebtBook IP or to any other customer or vendor of DebtBook; (C) Customer, or any Authorized User, is using
the DebtBook IF for fraudulent or other illegal activities; or (D) DebtBook's provision of the Services to Customer or any
Authorized User is prohibited by applicable law; or (3) any vendor of DebtBook has suspended or terminated DebtSook's access
to or use of any third-party services or products required to enable Customer to access the Services (any such suspension, a
"Service Suspension ). DebtBook will use commercially reasonable efforts to (i) provide written notice of any Service Suspension
to Customer, (ii) provide updates regarding resumption of access to the Services, and (ii€) resume providing access to the Services
as soon as reasonably possible after the event giving rise to the Service Suspension is cured. DebtBook is not liable for anydamaget
losses, or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aegregated Statistics. Notwithstanding anything to the contrary in the Agreement, DebtBook may monitor
Customer's use of the Services and collect and compile Aggregated Statistics. As between DebtBook and Customer, all right, title,
and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by DebtBook.
DebtBook maycompIle Aggregated Statistics based on Customer Data Input Into the Services. DebtBook may (1) make Aggregated
Statistics publicly available In compliance with applicable law, and (2) use Aggregated Statistics as permitted under applicable law
so long as, in each case, DebtBook's use of any Aggregated Statistics does not identify Customer or disclose Customer's
Confidential Information.
3. Services and Support.
(a) Services Generally. Subject to the terms of the Agreement, DebtBook will grant Customer access to the
Application Services during the Initial Term and, if applicable, each subsequent Renewal Term. As part of the on boarding process,
DebtBook will provide Customer with the Onboarding Services and the level of Implementation Services indicated in the Order
Farm. DebtBook will provide Customer with the Support Services throughout the Term.
(b) Implementation Services. DebtBook will provide Implementation Services for each Product to the extent
indicated for such Product in the applicable Order Form. Unless DebtBook has agreed to provide Premium Implementation
Services for any such Product in accordance with this subsection, DebtBook will provide Customer with Guided Implementation
Services for such Product at no additional charge. At Customer's request, DebtBook will identify in an order Form those Products
for which DebtBook will provide Premium Implementation Services. For each Product indicated for Premium Implementation
Services, DebtBook will charge Customer a one-time Fee for the Premium Implementation Services as set forth in such Order
Form_ Customer agrees to cooperate in good faith and to respond in a timely manner to any reasonable request for data or
Information DebtBook may require to complete the implementation Services. DebtBook Is not obligated to provide any
Implementation Services after the date that is ISO days after the Effective Date of the Order Form pursuant to which DebtBook
is providing such Implementation Services.
(c) Service Levels and Support. Subject to the terms and conditions of the Agreement, DebtBook will make the
Application Services and Support Services available In accordance with the SLA.
4. Fees and Payment.
(a) Fees. Customer will pay DebtBook the fees set forth in each Order Form (the "Fees"). DebtBook will Invoice
Customer for all Fees In accordance with the invoicing schedule and requirements set forth in each Order Form. Customer must
pay all Fees in US dollars within 30 days of its receipt of a valid invoice unless other payment terms are set forth in the Customer
Terms. If Customer Is a Government Entity, then Customer's obligation to pay any Fees under the Agreement Is subject in all
respects to the requirements and limitations of the Governing States prompt payment act, as amended. Except as expressly
provided in the Agreement, DebtBook does not provide refunds of any paid Fees. Unless otherwise provided in the Customer
Terms, and to the extent permitted by applicable law, if Customer fails to make any payment when due, DebtBook may, without
D-3 September 2023 Form
limiting any of Its other rights, charge interest on the past due amount at the lowest of (1) the rate of 1.5% per month, (2) the
rate established in any Customer Term, or (3) the maximum rate permitted under applicable law.
(b) Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and
similar assessments. Unless Customer Is exempt from making any such payment under applicable law or regulation, Customer is
responsible for all applicable sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind Imposed by
any federal, state, or local governmental or regulatory authority an any amounts payable by Customer under the Agreement,
other than any taxes imposed on Debt Boo k's income.
5. Confidential Information.
(a) From time to time during the Term, either party (the "Disclosing Party") may disclose or make available to
the other party (the "Receiving Party") information about the Disclosing Partys business affairs, products, confidential
intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary Information, whether
in written, electronic, or other form or media, that is marked, designated, or otherwise identified as "confidential", or which a
reasonable person would understand to be confidential or proprietary under the circumstances (collectively, 'Confidential
Information"). For the avoidance of doubt, DebtBook's Confidential information includes the DebtBook IP and the Application
Services source code and specifications. As used in the Agreement, "Confidential Information" expressly excludes any
information that, at the time of disclosure is (1) in the public domain; (2) known to the receiving party at the time of disclosure;
(3) rightfuIly obtained by the Receiving Party on a non-confidential basis from a third party; or (4) independently developed by
the Receiving Party.
(b) To the extent permitted by applicable law, the Receiving Party will hold the Disclosing ParWs Confidential
Information in strict confidence and may not disclose the Disclosing Party's Confidential Information to any person or entity,
except to the Receiving Party's employees, officers, directors, agents, subcontractors, financial advisors, and attorneys who have
a need to know the ConfdentlaI Information for the Receiving Party to exercise its rights or perform its obligations under the
Agreement or otherwise in connection with the Services. Notwithstanding the foregoing, each party may disclose Confidential
Information to the limited extent required (1) In order to comply with the order of a court or other governmental body, or as
otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order must
first give written notice to the other party; or (2) to establish a party's rights under the Agreement, including to make required
court filings.
(c) On the expiration or termination of the Agreement, the Receiving Party must promptly return to the
Disclosing Party all copies of the Disclosing Party's Confidential Information, or destroy all such copies and, on the Disclosing
Party's request, certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
(d) Each party's obligations under this Section are effective as of the Effective Date and will expire three years
from the termination of the Agreement; provided, however, with respect to any Confidential Information that constitutes a trade
secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the
Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
(e) Notwithstanding anything in this Section to the contrary, if Customer is a Government Entity, then DebtBook
expressly agrees and understands that Customer's obligations under this Section are subject in all respects to, and only
enforceable to the extent permitted by, the public records laws, policies, and regulations of the Governing State.
6, Intellectual Property.
(a) DebtBook IP. As between Customer and DebtBook, DebtBook owns all right, title, and interest, including all
Intellectual property rights, in and to the DebtBook IP.
(b) Customer Data. As between Customer and DebtBook, Customer awns all right, title, and Interest, Including
all intellectual property rights, In and to the Customer Data. Customer hereby grants to DebtBook a non-exclusive, royalty-free,
worldwide license to reproduce, distribute, sublicense, modify, prepare derivative works based on, and otherwise use and display
the Customer Data and perform all acts with respect to the Customer Data as may be necessary or appropriate for DebtBook to
provide the Services to Customer.
(c) Effect f Termination. Without limiting either party's obligations under Section 5 of the Agreement,
DebtBook, at no further charge to Customer, will (1) provide Customer with temporary access to the Application Services for up
to 60 days after the termination of the Agreement to permit Customer to retrieve its Customer Data in a commercially
transferrable format and (2) use commercially reasonable efforts to assist Customer, at Customer's request, with such retrieval.
After such period, DebtBook may destroy any Customer Data in accordance with DebtBook's data retention policies.
7. Limited Warranties.
0-4 September 2023 Form
(a) Functionality & Service Levels_ During the Term, the Application Services will operate in a manner consistent
with general industry standards reasonably applicable to the provision of the Application Services and will conform In all material
respects to the Documentation and service levels set forth in the SLA when accessed and used in accordance with the
Documentation. Except as expressly stated in the SLA, DebtBook does not make any representation, warranty, or guarantee
regarding availability of the Application Services, and the remedies set forth in the SLA are Customer's sale remedies and
DebtBook's sole liability under the limited warranty set forth in this paragraph-
(b) Security. DebtBook has implemented Appropriate Security Measures and has made commercially reasonable
efforts to ensure its licensors and hosting providers, as the case may be, have implemented Appropriate Security Measures
intended to protect Customer Data.
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, DEBTBOOK IP IS PROVIDED "AS IS," AND
DEBTBOOK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DEBTBOOK
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR
THE LIMITED WARRANTY SET FORTH IN THIS SECTION, DEBTBOOK MAKES NO WARRANTY OF ANY KIND THATTHE DEBTBOOK IP,
OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS,
OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM,
OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(d) DebtBook exercises no control over the flow of information to or from the Application Service, DebtBook's
network, or other portions of the Internet. Such flow depends I large part on the performance of Internet services provided a
controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt connections to the Internet.
Although DebtBook will use commercially reasonable efforts to take all actions DebtBook deems appropriate to remedy and avoid
such events, DebtBook cannot guarantee that such events will not occur. ACCORDINGLY, DEBTBOOK DISCLAIMS ANY AND ALL
LIABILITY RESULTING FROM OR RELATING TO ALL SUCH EVENTS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE
AGREEMENT, ANY OTHER ACTIONS OR INACTIONS CAUSED BY OR UNDER THE CONTROL OF A THIRD PARTY.
8. Indemnification.
(a) DebtBook indemnification.
(i) DebtBook will indemnify, defend, and hold harmless Customer from and against any and all losses,
damages, liabilities, costs (including reasonable attorneys' fees) (collectively, "Losses") incurred by Customer resulting
from any third-party claim, suit, action, or proceeding ('"Third-Party Claim") that the Application Services, or any use of
the Application Services in accordance with the Agreement, infringes or misappropriates such third party's US patents,
copyrights, or trade secrets, provided that Customer promptly notifies DebtBook in writing of the Third-Party Claim,
reasonably cooperates with DebtBook In the defense of the Third-Parry Claim, and allows DebtBook sole authority to
control the defense and settlement of the Third-Party Claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit DebtBook, at DebtBook's
sole expense and discretion, to (A) modify or replace the DebtBook IP, or component or part of the DebtBook IP, to
make it non-infringing, or (8) obtain the right for Customer to continue use. If DebtBook determines that neither
alternative is reasonably available, DebtBook may terminate the Agreement in its entirety or with respect to the
affected component or part, effective immediately an written notice to Customer, so long as, in each case, DebtBook
promptly refunds or credits to Customer all amounts Customer paid with respect to the DebtBook IP that Customer
cannot reasonably use as intended under the Agreement.
(III) DebtBook's indemnification obligation under this Section will not apply to the extent that the
alleged infringement arises from Customer's use of the Application Services In combination with data, software,
hardware, equipment, or technology not provided or authorized In wr€ting by DebtBook or modifications to the
Application Services not made by DebtBook.
(b) Sale Remedy. SECTION 8(a) SETS FORTH CUSTOMER'S SOLE REMEDIES AND DEBTSOOK'S SOLE LIABILITY FOR
ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY
THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT WILL DEBTBOOK'S LIABILITY UNDER SECTION 8(a) EXCEED
$10 DD4,DDD.
(c) Customer Indemnification. Customer will Indemnify, hold harmless, and, at DebtBook's option, defend
DebtBook from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer
Data in accordance with the Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-
Party Claims based an Customer's or any Authorized User's negligence or willful misconduct or use of the Services in a manner
not authorized by the Agreement. DEBTBOOK EXPRESSLY AGREES THAT THIS PROVISION WILL NOT APPLY TO ANY CUSTOMER
0-5 September 2D23 Form
THAT IS A GOVERNMENT ENTITY TO THE EXTENT SUCH INDEMNIFICATION OBLIGATIONS ARE PROHIBITED UNDER APPLICABLE
LAW.
9. Limitations of Liability. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY
BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED
OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS
EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL THE AGGREGATE LIABILITY OF DEBTBOOK ARISING OUT
OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DEBTBOOK UNDER THE
AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM_ THE EXCLUSIONS AND LIMITATIONS
IN THIS SECTION DO NOT APPLY TO CLAIMS PURSUANT TO SECTION 8_
10. Term and Termination.
(a) Term. Except as the parties may otherwise agree in the Customer Terms, or unless terminated earlier in
accordance with the Agreement:
(1) the Agreement will automatically renew for successive 12-month Renewal Terms unless either
party gives the other party written notice of non-renewal at least 30 days before the expiration of the then-current
term; and
(ii) each Renewal Term will be subject to the same terms and conditions established under the
Agreement, with any Fees determined in accordance with DebtBooWs then-current pricing schedule, as provided to
Customer at least 60 days before the expiration of the then-current term.
(b) Termination. in addition to any other express termination right set forth in the Customer Terms:
(i) DebtBook may terminate the Agreement immediately if Customer breaches any of its obligations
under Section 2 or Section 5;
(ii) Customer may terminate the Agreement in accordance with the SLA;
(III) either party may terminate the Agreement, effective on written notice to the other party, if the
other party materially breaches the Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure,
remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach;
(Iv) If Customer is a Government Entity and sufficient funds are not appropriated to pay for the
Application Services, then Customer may terminate the Agreement at anytime without penalty following 30 days prior
written notice to DebtBook; or
(v) either party may, to the extent permitted by law, terminate the Agreement, effective immediately
on written notice to the other party, If the other party becomes insolvent or is generally unable to pay, or fails to pay,
Its debts as they become due or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any
domestic or foreign bankruptcy or insolvency law.
(c) Survival. Only this Section and Section 1 (Definitions), Sections 4 through 6 (Fees; Confidential Information;
Intellectual Property), Section T(c) (Disclaimer of Warranties), and sections 8, 9 and 12 (indemnification; Limitations of Liablilty;
Miscellaneous) will survive any termination or expiration of the Agreement.
11. Independent Contractor. The parties to the Agreement are Independent contractors. The Agreement does not create a
joint venture or partnership between the parties, and neither party is, by virtue of the Agreement, authorized as an agent,
employee, or representative of the other party.
12. Miscellaneous.
(a) Governing Law: Submission to Jurisdiction. The Agreement will be governed by and construed in accordance
with the Iaws of the Governing State, without regard to any choice or conflict of law provisions, and any claim arising out of the
Agreement may be brought In the state or federal courts located in the Governing State. Each party irrevocably submits to the
jurisdiction of such courts in any such suit, action, or proceeding,,
(b) Ent<ir3 Agreement: Order of Precedence. The Order Form, the Customer Terms, the Terms & Conditions, and
the Incorporated Documents constitute the complete Agreement between the parties and supersede any prior discussion or
representations regarding Customer's purchase and use of the Services.
D-6 September 2023 Form
To the extent any conflict exists between the terms of the Agreement, the documents will govern in the following order or
precedence: (1) the Customer Terms, (2) Order Form, (3) the Terms & Conditions, and (4) the Incorporated Documents. No other
purchasing order or similar instrument issued by either party in connection with the Services will have any effect on the
Agreement or bind the other party in any way.
(c) Amendment: Waiver. No amendment to the Carder Form, the Terms & Conditions, or the Customer Terms will
be effective unless it is in writing and signed by an authorized representative of each party. DebtBook may update the
Incorporated Documents from time-to-time following notice to Customer so long as such updates are generally applicable to all
users of the Services. No waiver by any party of any of the provisions of the Agreement will be effective unless explicitly set forth
in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, delay in
exercising, or any partial exercise of any rights, remedy, power, or privilege arising from the Agreement will in any way waive or
otherwise limit the future exercise of any right, remedy, power, or privilege available under the Agreement.
(d) Notices. All notices, requests, consents, claims, demands, and waivers under the Agreement (each, a
"Noticel must be in writing and addressed to the recipients and addresses set forth for each party on the Order Form (ar to such
other address as DebtBook or Customer may designate from time to time in accordance with this Section). All Notices must be
delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of
transmission), a certified a registered mail (in each case, return receipt requested, postage pre-paid).
(e) Force Maieure. In no event will either party be liable to the other party, or be deemed to have breached the
Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligations to make
payments), if and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control,
including acts of God, flood, fire, earthquake, pandemic, epidemic, problems with the Internet, shortages in materials, explosion,
war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or
passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(f) Severability. If any provision of the Agreement Is invalid, illegal, or unenforceable in any jurisdiction, such
invalidity, illegality, or unenforceabiiity will not affect any other term or provision of the Agreement or invalidate or render
unenforceable such term or provision in any otherjurisdiction.
(g) Ass Ianment. Either party may assign its rights or delegate Its obligations, in whole or in part, on 30 days prior
written notice to the other party, to an affiliate or an entity that acquires all or substantially all of the business or assets of such
party, whether by merger, reorganization, acquisition, sale, or otherwise. Except as stated in this paragraph, neither party may
assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of the other
party, which consent may not be unreasonably withheld, conditioned, or delayed. The Agreement is binding on and inures to the
benefit of the parties and their permitted successors and assigns.
(h) Marketing. Neither party may Issue press releases related to the Agreement without the other party's prior
written consent. Unless otherwise provided in the Customer Terms, either party may include the name and logo of the other
party in lists of customers or vendors.
(I) State-Specific Certifications & Agreements. If Customer is a Government Entity and to the extent required
under the laws of the Governing State, DebtBook hereby certifies and agrees as follows:
(i) DebtBook has not been designated by any applicable government authority or body as a company
engaged in the boycott of Israel under the laws of the Governing State;
(II) DebtBook is not presently debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from participation in the Agreement by any governmental department a agency of the Governing
State;
(m) DebtBook will not discriminate against any employee or applicant for employment because of race,
ethnicity, gender, gender identity, sexual orientation, age, religion, national origin, disability, color, ancestry,
citizenship, genetic information, political affiliation a miiitaryfveteran status, or any other status protected by federal,
state, or local law;
(iv) DebtBook will verify the work authorization of Its employees using the federal E-Verify program and
standards as promulgated and aperated by the United States Department of Homeland Security and, if applicable, will
require its subcontractors to do the same; and
(v) Nothing in the Agreement is intended to act as a waiver of immunities that Customer has as a matter
of law as a Government Entity under the laws of the Governing State, including but not limited to sovereign or
D-7 September 2023 Form
governmental Immunity, public officers or official immunity or qualified immunity, to the extent Customer is entitled
to such immunities.
0) Execution. Any document executed and delivered In connection with the Agreement may be executed in
counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. To
the extent permitted by applicable law, electronic signatures may be used for the purpose of executing the Order Form by email
or other electronic means. Any document delivered electronically and accepted is deemed to be ^in writing" to the same extent
and with the same effect as if the document had been signed manually.
O 8 September 2023 Form
ORDER FORM
Fifth Asset, Inc., d/b/a DebtBook ("DebtBook") is pleased to provide Town of Queensbury, NY ("Customer) with
the Services subject to the terms established in this Order Form, Including DebtBooWs Price Quote attached as
Exhibit A and Incorporated herein by this reference (the "DebtBook Quote"). This Order Form may be modified
or replaced from time to time by a subsequent Order Form duly executed and delivered by each party in
connection with any Renewal Term_
The Services are subject to DebtBook's General Terms & Conditions, which have been provided to Customer
(the 'Terms & Conditions"X and the Incorporated Documents referenced in the Terms & Conditions. Each
capitalized term used but not defined in this Order Form has the meaning given In the Terms & Conditions.
_
Effective Date: 3/1/2023 Wiling Frequency: Annually
Initial Term End Date: 2/28/2024 Payment Terms: 'Nat 30
Initial Pricing Tier:1 See the DebtBook Quote for more details
*ervices. Subject to the terms described In this Order Form, DebtBook will grant Customer access to the
Application Services during the Initial Term described above and, If applicable, each subsequent Renewal Term.
As part of the onboarding process. DebtBook will provide Customer with the Onboarding Services and, if
requested, the Implementation Services. DebtBook will also provide Customer with the Support Services
throughout the Term.
Fe. DebtBook will charge Customer (1) a recurring Subscription Fee for Customer's access to the Onboarding
Services, the Application Services, and the Support Services and (2) if applicable, an implementation Fee for
the Implementation Services, In each case as set forth in the DebtBook Quote and this Order Form.
Generally, DebtBook sets Fees using its standard pricing schedule for the Services based on the Customer's
applicable Pricing Tier, which Is based on the total number and amount of the Customer's Application
Obligations at the time of determination. DebtBook's current pricing schedule and Pricing Tiers are set forth In
the DebtBook Quote, which will remain In effect with respect to Customer throughout the Initial Term.
The initial Pricing Tier Indicated above is based on Customer's good faith estimate of its.Application Obligations
as of the Effective Date. The Subscription Fees to be charged as provided in the DebtBook Quote will not change
during the Initial Term, regardless of any change to the actual number or amount of the Customer's Application
Obligations during the Initial Term.
IM ementatlon Servlce,*. At Customer's request, DebtBook will provide Implementation Services to Customer
for a 1.2-month period, with each such period beginning, if applicable, on the Effective Date and on each
anniversary of the Effective Date thereafter (each, an 'implementation Period"). Customer may request
Implementation Services at any time during the Term.
If Implementation Services are requested for any Implementation Period, then the Implementation Fee will be
based on the aggregate number and amount of the Customer's Application Obligations at the beginning of
such Implementation Period. The Implementation Fee will be due and payable at the later of (1) the beginning
of the applicable implementation Period or (2) the date on which Customer requests implementation Services
for such implementation Period, and will entitle Customer, In each case, to implementation Services at the
applicable Pricing Tier through the end of the Implementation Period then in effect.
For any Implementation Period, if the total number or amount of Customer's Application Obligations
implemented causes Customer's applicable Pricing Tier to increase, then DebtBook will charge Customer an
additional Implementation Fee such that the total Implementation Fee charged for such Implementation
Period equals the Implementation Fee applicable to the Increased Pricing Tier as set forth in the DebtBook
Quote.
Il$ ling. Unless otherwise provided in the Order Form or the Customer Terms, all Fees will be due and payable
in advance on the terms indicated above, and each invoice will be emaited to the Customer's billing contact
Indicated below.
September 2022 Form
fienewal Term. The Agreement is subject to renewal on the terms set forth In the Terms & Conditions. The
Pricing Tier applicable for each Renewal Term will be determined based on the aggregate number and amount
of the Customer's Application Obligations at the time of renewal.
Termination. The Agreement Is subject to early termination on the terms set forth In the Terms & Conditions,
j: ire AgreemenL By executing this Order Form, each party agrees to be bound by this Order Form, the Terms
& Conditions, the Incorporated Documents, and any Customer Terms.
This Order Form, the Customer Terms, the Terms & Conditions, and the Incorporated Documents constitute the
complete "Agreement" between the parties and supersede any prior discussion or representations regarding
the Customer's purchase and use of the Services.
Intellectual Proggrty. Except for the limited rights and licenses expressly granted to Customer under this Order
Form and the Terms & Conditions, nothing in the Agreement ,grants to Customer or any third party any
Intellectual property rights or other right, title, or interest in or to the DebtSook IP.
Important Disclaimers & Limitations. EXCEPT FOR THE WARRANTIES SET FORTH IN THE TERMS &
CONDITIONS, DEBTBOOK IP IS PROVIDED "AS IS," AND DEST1300K DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS, IMPLIED, .STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTASILiTY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND ALL
WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IN ADDITION, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES^ LIABILITIES UNDER THE AGREEMENT ARE LIMITED
AS SET FORTH IN THE TERMS & CONDITIONS,
Notloes. Any Notice delivered under the Agreement will be delivered to the address below each party's
signature below.
September 2022 Form
AuthorlMa Execuflon. Each of the undersigned represents that they are authorized to (1) execute and deliver
this Order Form on behalf of their respective party and (2) bind their respective party to the terms of the
Agreement. This Girder Form and any other documents executed and delivered In connection with the
Agreement may be executed in counterparts, each of which Is deemed an original, but all of which together
are deemed to be one and the same agreement. To the extent permitted by applicable law, electronic
signatures may be used for the purpose of executing the Order Form by email or other electronic means. Any
document delivered electronically and accepted Is deemed to be "in writing` to the same extent and with the
some effect as If the document had been signed manually.
FIFTFI ASSET, INC.. P/B/A IDEBTBOOK TOWN OF QUEENS Y, NY
By. / / By:
Name: ----- Tra ldt. _. Name;
Title: CEO
Notice Address Notice Address.
PO Box 667950 742 Bay Road
Charlotte, NC 28266 Queensbury, NY 12804
Attention: Chief Executive Officer Attention; Barbara Tierney
tyler.traudt0debtbook.com barbaretQqueensbu ry.net
1311(ing Contact
742 Bay Road
Queensbury, NY 12804
Attention: Barbara Tierney
barbarat0q ueensb u ry.net
September 2022 Form
DEBTBOOWS GENERAL TERMS & CONDMONS
Please carefully read these General Terms and Conditions (these "Terms & Conditions") which. govern the
Customer's access and use of the Services described in the Order Form.
By executing the Order Form and using any of the Services, the Customer agrees to be bound by these Terms.
1. Definitions.
"Aggregated Statistics" means data and information related to Customer's use of the Services that Is
used by DebtBook In an aggregate and anonymized manner, including statistical and performance information
related to the Services.
"Agreement" means, collectively and to the extent applicable, the Order Form, any Customer Terms,
these Terms & Conditions, and the Incorporated Documents, in each case as may be amended from time to
time In accordance with their terms.
"Application Obligations" means, collectively, Customer's debt, lease, and other financial obligations
relevant to the Application Services.
"Application Services" means DebtBook's debt, lease, and financial obligation management and
compliance software-es-a-service application.
"Appropriate Security Measures" means, collectively, commercially reasonable technical and physical
controls and safeguards Intended to protect Customer Data against destruction, loss, unauthorized disclosure,
or unauthorized access by employees or contractors employed by DebtBook.
"Authorized User" means any of Customer's employees, consultants, contractors, or agents who are
authorized by Customer to access and use any of the Services.
"Customer" means the person or entity purchasing the Services as Identified In the Order Form.
"Customer Data" means, other than Aggregated Statistics, information, data, and other content, In any
form or medium, that Is transmitted by or on behalf of Customer or an Authorized User through the Services.
"Customer Terms" means any terms or agreements provided by Customer and applicable to the
Services but only to the extent such terms or agreements are expressly referenced and incorporated Into the
Order Form. For the avoidance of doubt, "Customer Terms" does not include any purchase order or similar
document generated by Customer unless such document Is expressly referenced and incorporated Into the
Order Form.
"DebtBook" means Fifth Asset, Inc., d/b/a DebtBook, a Delaware corporation, and Its permitted
successor and assigns.
"DebtBook IP" means (1) the Services, Documentation, and Feedback, including all ideas, concepts,
discoveries, strategies, analyses, research, developments, Improvements, data, material% products,
documents, works of authorship, processes, procedures, designs, techniques, Inventions, and other Intellectual
property, whether or not patentable or copyrightable, and all embodiments and derivative works of each of the
foregoing in any form and media, that are developed, generated or produced by DebtBook arising from or
related to the Services, Documentation, or Feedback; and (2) any Intellectual property provided to Customer or
any Authorized User in connection with the foregoing other than Customer Data.
"Documentation" means DebtBook's end user documentation and content, regardless of media,
relating to the Services made available from time to time on DebtBook's website at
httpsV/support.debtbook.com.
"Feedback" means any comments, questions, suggestions, or similar feedback transmitted In any
manner to DebtBook, Including suggestions relating to features, functionality, or changes to the DebtBook OP.
"Governing State" means, If Customer is a Government Entity, the state in which Customer is located.
If Customer is DDI a Government Entity, "Governing State" means the State of North Carolina.
"Government Entity" means any unit of state or local government, Including states, counties, cities,
towns, villages, school districts, special purpose districts, and any other political or governmental subdivisions
and munic€pal corporations, and any agency, authority, board, or instrumentality of any of the foregoing.
September 2022 Farm
"Implementatlon Services" means, If requested by Customer, the additional Implementation services
provided to Customer on an annual basis, Including tailored implementation support, review of Application
Obligations, and entry of relevant Customer Data.
1ricorporated Documents" means, collectively, the Privacy Policy, the SLA, and the Usage Policy, as
each may be updated from time to time In accordance with their terms. The Incorporated Documents, as
amended, are Incorporated Into these Terms & Conditions by this reference. Current versions of the
Incorporated Documents are available at httcs;//wwvu debtbooic com/feeaf.
"Initial Term" means the Initial Term of the Services beginning on the Effective Date and ending on the
Initial Term End Date, as established in the Order Form.
"Onboarding Services" means onboarding services, support, and training as required to make the
Application Services available to the Customer during the Initial Term.
"Order Form" means (1) the order document executed and delivered by DebtBook and Customer for
the Initial Term or (2) to the extent applicable, any subsequent order document executed and delivered by
DebtBook and Customer for any Renewal Term.
"Pricing Tier" means the Customer's applicable pricing tier, determined based on the number and
amount of Application Obligations at the time of determination, as set forth In the schedule included as part
of the Order Form.
"Privacy Policy" means; collectively, DebtBooWs privacy policy and any similar data policies generally
applicable to all users of the Application Services, In each case as posted to DebtBook's website and as
updated from time to time In accordance with their terms.
"Renewal Term" means any renewal term established In accordance with the terms of the Agreement_
"Services" means, collectively, the Application Services, the Onboarding Services, the Implementation
Services, and the Support Services.
"SLA" means the Service Level Addendum generally applicable to all users of the Application Services,
as posted to DebtBook's website and as updated from time to time In accordance wlth its terms.
"Support Services" means the general maintenance services and technical support provided in
connection with the Application, as more particularly described In the SLA.
"Term" means, collectively, the Initial Term and, If applicable, each successive Renewal Term.
"Usage Policy" means, collectively, DebtBook's acceptable usage policy, any and user licensing
agreement, or any similar policy generally applicable to ail end users accessing the Application Services, in
each case as posted to DebtBook's website and as updated from time to time in accordance with Its terms.
Each capitalized term used but not otherwise defined In these Terms & Conditions has the meaning
given to such term In the applicable Order Form.
2. Access ang Use.
(a) Provislon of Access. Subject to the terms and conditions of the Agreement, Debtsook grants
Customer and Customer's Authorized Users a non-exclusive, non-transferable (except as permitted by these
Terms) right to access and use the Application Services during the Term, solely for Customer's Internal use and
for the Authorized Users' use in accordance with the Agreement. DebtBook will provide to Customer the
necessary passwords and network links or connections to allow Customer to access the Application Services.
(b) Documentation Llgense. Subject to the terms and conditions of the Agreement, DebtBook
,grants to Customer and Customer's Authorized Users a nonexclusive, non-sublicensable, non-transferable
(except as permitted by these Terms) license to use the Documentatlon during the Term solely for Customer's
and Its Authorized User's Internal business purposes in connection with its use of the Services.
(c) Customer Responsibilities. Customer Is responsible and liable for Its Authorized Users' access
and use of the Services and Documentation, regardless of whether such use Is permitted by the Agreement.
Customer must use reasonable efforts to make all Authorized Users aware of the provisions applicable to their
use of the Services, Including the Incorporated Documents,
September 2022 Form
(d) ILiORestrictlons. Customer may not at any time, directly or indirectly through any Authorized
User, access or use the Services In viola#ion of the Usage Policies, including any attempt to (1) copy, modify, or
create derivative works of the Services or Documentation, In whole or in part; (2) sell, license, or otherwise
transfer or make available the Services or Documentation except as expressly permitted by the Agreement; or
(3) reverse engineer, disassemble, decomplie, decode, or otherwise attempt to derive or gain access to any
software component of the Services, in whole or in part. Customer will not knowingly transmit any personally
identifiable Information to DebtBook or any other third-party through the Services.
(e) Suspension. Notwithstanding anything to the contrary in the Agreement, DebtBook may
temporarily suspend Customer's and any Authorized User's access to any or all of the Services If; (1) Customer
is more than 45 days late In making any payment due under, and In accordance with, the terms of the
Agreement, (2) DebtBook reasonably determines that (A) there Is a threat or attack on any of the DebtBook IP;
(B) Customer's or anyAuthorized User's use of the DebtBook IP disrupts or poses a security risk to the DebtBook
IP orto any other customer or vendor of DebtBook; (C) Customer, or anyAuthorized User, Is using the DebtBook
IP for fraudulent or other illegal activities; or (D) DebtBooWs provision of the Services to Customer or any
Authorized User is prohibited by applicable law; or (3) any vendor of DebtBook has suspended or terminated
DebtBook's access to or use of any third-party services or products required to enable Customer to access the
Services (any such suspension, a 'Service Suspension"). DebtBook will use commercially reasonable efforts to
(1) provide written notice of any Service Suspension to Customer, (11) provide updates regarding resumption of
access to the Services, and (Ili) resume providing access to the Services as soon as reasonably possible after
the event giving rise to the Service Suspension is cured. DebtBook Is not liable for any damage, losses, or any
other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Stat(atic-s. Notwithstanding anything to the contrary in the Agreement, DebtBook
may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between
DebtBook and Customer, all right, title, and interest In Aggregated Statistics, and all intellectual property rights
therein, belong to and are retained solely by DebtBook. DebtBook may compile Aggregated Statistics based
on Customer Data input into the Services. DebtBook may (1.) make Aggregated Statistics publicly available in
compliance with applicable law, and (2) use Aggregated Statistics as permitted under applicable law so long
as, in each case, DebtBook's use of any Aggregated Statistics does not identify the Customer or disclose
Customer's Confidential Information.
3. Shire Levels and Support_ Subject to the terms and conditions of the Agreement, DebtBook will use
commercially reasonable efforts to make the Application Services and Support Services available In
accordance with the SLA.
4. Fees and Paymeni.
(a) Fees. Customer will pay DebtBook the fees (Fees') set forth in the Order Form. DebtBook will
Invoice Customer for all Fees In accordance with the invoicing schedule and requirements set forth in the Order
Form. Customer must pay all Fees In US dollars, and all Fees are fully earned once paid, To the extent permitted
by applicable law, If Customer falls to make any payment when due, DebtBook may, without limiting any of Its
other rights, charge Interest on the past due amount at the lowest of (1) the rate of 1.5% per month, (2) the
rate established in any Customer Term, or (3) the maximum rate permitted under applicable law.
(b) Taxed. All Fees and other amounts payable by Customer under the Agreement are exclusive
of taxes and similar assessments. Unless Customer Is exempt from making anysuch payment under applicable
law or regulation, Customer is responsible for all applicable sales, use, and excise taxes, and any other similar
taxes, duties, and charges of any kind Imposed by any federal, state, or local governmental or regulatory
authority an any amounts payable by Customer under the Agreement, other than any taxes imposed on
DebtBook's Income,
5. Confidentiat Information.
(a) From time to time during the Term, either party (the "Disclosing Party") may disclose or make
available to the other party (the 'Receiving Party") information about the Disclosing Party's business affairs,
products, confidential Intellectual property, trade secrets, third-party confidential information, and other
sensitive or proprietary Information, whether in written, electronic, or other form or media, that Is marked,
designated, or otherwise ident(Red as "confidential", or which a reasonable person would understand to be
confidential or proprietary under the circumstances (collectively, "Confidential Information"). For the avoidance
September 2022 Form
of doubt, DebtBook's Confidential information includes the DebtBook IP and the Application Services source
code and specifications. As used in the Agreement, "Confidential Informatlon" expressly excludes any
Information that, at the time of disclosure Is (1) in the public domain; (2) known to the receiving party at the
time of disclosure; (3) rightfully obtained by the Receiving Party on a non-confidential basis from a third party;
or (4) Independently developed by the Receiving Party.
(b) To the extent permitted by applicable law, the Receiving Party will hold the Disclosing Party's
Confidential Information in strict confidence and may not disclose the Disclosing Party's Confidential
Information to any person or entity, except to the Receiving Party's employees, officers, directors, agents,
subcontractors, financial advisors, and attorneys who have a need to know the Confidential Information for the
Receiving Party to exercise its rights or perform Its obligations under the Agreement or otherwise In connection
with the Services. Notwithstanding the foregoing, each party may disclose Confidential Information to the
limited extent required (1) In order to comply with the order of a court or other governmental body, or as
otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to
the order must first give written notice to the other parry, or (2) to establish a party's rights under the
Agreement, including to make required court filings.
(c) On the expiration or termination of the Agreement, the Receiving Party must promptly return
to the Disclosing Party all copies of the Disclosing Party's Confidential information, or destroy all such copies
and, on the Disclosing Party's request, certify in writing to the Disclosing Party that such Confidential
Information has been destroyed.
(d) Each party's obligations under this Section are effective as of the Effective Date and will expire
three years from the termination of the Agreement; provided, however, with respect to any Confidential
Information that constitutes a trade secret (as determined under applicable law), such obligations of non-
disclosure will survive the termination or expiration of the Agreement for as long as such Confidential
Information remains subject to trade secret protection under applicable law.
(a) Notwithstanding anything In this Section to the contrary, If Customer Is a Government Entity,
then DebtBook expressly agrees and understands that Customer's obligations under this Section are subject
In all respects to, and only enforceable to the extent permitted by, the public records laws, policies, and
regulations of the Governing State.
S. Intellectual Proper x_
(a) DebtBook. As between Customer and DebtBook, DebtBook owns all right, title, and Interest,
including all Intellectual property rights, In and to the DebtBook IP.
(b) CuMomer Data. As between Customer and DebtBook, Customer owns all right, title, and
interest, Including all intellectual property rights, in and to the Customer Data. Customer hereby grants to
DebtBook a non-exclusive, royalty-free, worldwide license to reproduce, distribute, sublicense, modify, prepare
derivative works based on, and otherwise use and display the Customer Data and perform ail acts with respect
to the Customer Data as may be necessary or appropriate for DebtBook to provide the Services to Customer.
(c) Effect of Termination. Without limiting either party's obligations under Section 5 of the
Agreement, DebtBook, at no further charge to Customer, will (1) provide Customer with temporary access to
the Application Services for up to SO days after the termination of the Agreement to permit Customer to retrieve
its Customer Data In a commercially transferrable format and (2) use commercially reasonable efforts to assist
Customer, at Customer's request, with such retrieval. After such period, DebtBook may destroy any Customer
Data In accordance with DebtBook's data retention policies.
7. Limited Warranties,
($) Functionality & Service Levels. During the Term, the Application Services will operate In a
manner consistent with general Industry standards reasonably applicable to the provision of the Application
Services and will conform in all material respects to the Documentation and service levels set forth in the SLA
when accessed and used in accordance with the Documentation. Except as expressly stated In -the SLA,
DebtBook does not make any representation, warranty, or guarantee regarding availability of the Application
Services, and the remedies set forth in the SLA are Customer's sole remedies and DebtBook's sole liability
under the limited warranty set forth In this paragraph.
September 2022 Form
(b) Securl DebtBook has Implemented Appropriate Security Measures and has made
commercially reasonable efforts to ensure Its licensors and hosting providers, as the case may be, have
Implemented Appropriate Security Measures Intended to protect Customer Data.
(e) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, DEBTBOOK IP IS PROVIDED 'AS
IS," AND DEBTBOOK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE. DEBTBOOK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING
FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH
IN THIS SECTION, DESTBOOK MAKES NO WARRANTY OF ANY KIND THAT THE DEBTBOOK IP, OR ANY
PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSONS
REQUIREMENTS, OPERATE WITHOUT. INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR
WORK WITH ANY SOFTWARE, 'SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF
HARMFUL CODE, OR ERROR FREE.
(d) DebtBook exercises no control over the flow of information to or from the Application Service,
DebtBodk's network, or other portions of the Internet. Such flow depends in large part on the performance of
Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can
Impair or disrupt connections to the Internet. Although DebtBook will use commercially reasonable efforts to
take all actions DebtBook deems appropriate to remedy and avoid such events, DebtBook cannot guarantee
that such events will not occur. ACCORDINGLY, DEBTBOOK DISCLAIMS ANY AND ALL LIABILITY RESULTING
FROM OR RELATING TO ALL SUCH EVENTS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE
AGREEMENT, ANY OTHER ACTIONS OR INACTIONS CAUSED BY OR UNDER THE CONTROL OF A THIRD PARTY,
8. Indemnification.
(a) DebtBook Indemnification.
(1) DebtBook will indemnify, defend, and hold harmless Customer from and against any
and all Josses, damages, liabilities, costs (including reasonable attorneys' fees) (collectively, 'Lasses")
incurred by Customer resulting from any third-party claim, suit, action, or proceeding ('Third-Party
Claim") that the Application Services, or any use of the Application Services In accordance with the
Agreement, Infringes or misappropriates such third party's US patents, copyrights, or trade secrets,
provided that Customer promptly notifies DebtBook In writing of the Third-Party Claim, reasonably
cooperates with DebtBook in the defense of the Third-Party Claim, and allows DebtBook sole authority
to control the defense and settlement of the Third-Party Claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit DebtBook, at
DebtBook's sole expense and discretion, to (A) modify or replace the DebtBook IP, or component or
part of the DebtBook IP, to make it non-Infringing, or (B) obtain the right for Customer to continue use.
If DebtBook determines that neither alternative Is reasonably available, DebtBook may terminate the
Agreement In Its entirety or with respect to the affected component or part, effective Immediately on
written notice to Customer, so long as, In each case, DebtBook promptly refunds or credits to Customer
all amounts Customer paid with respect to the DebtBook IP that Customer cannot reasonably use as
intended under the Agreement.
(III) DebtBook's Indemnification obligation under this Sectlon will not apply to the extent
that the alleged infringement arises from Customer's use of the Application Services In combination
with data, software, hardware, equipment, or technology not provided or authorized In writing by
DebtBook or modifications to the Application Services not made by DebtBook.
(b) 59le Remedy. SECTION B(a) SECS FORTH CUSTOMER'S SOLE REMEDIES AND DEBTBOOK'S
SOLE LIABILITY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE,
MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD PARTY"S INTELLECTUAL PROPERTY RIGHTS. IN NO
EVENT WILL DEBTBOOWS LIABILITY UNDER SECTION $(a) EXCEED $1,000,000.
(c) Customer Indemnification. To the extent permitted by applicable law. Customer will
indemnify, hold harmless, and, at DebtBook's option, defend DebtBook from and against any Losses resulting
from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with the
Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party
September 2022 Form
Claims based on Customer's or any Authorized User's negligence or willful misconduct or use of the Services
in a manner not authorized by the Agreement.
9. Lfixiitations of Liabill . EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT
WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR
EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR
PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH
LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS
EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN No EVENT WILL THE AGGREGATE LIABILITY OF
DEBTBOOK ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY,
INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE
EXCEED THE TOTAL AMOUNTS PAID TO DE13TSOOK UNDER THE AGREEMENT IN THE 12-MONTH PERIOD
PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION DO
NOT APPLY TO CLAIMS PURSUANT TO SECTION 81
100 TA[M and Termination.
(a) Term. Except as the parties may otherwise agree In the Order Form, or unless terminated
earlier in accordance with the Agreement,
(I) the Initial Term of the Agreement will begin on the Effective Date and end on the .
Initial Term End Date;
the Agreement will automatically renew for successive 12-month Renewal Terms
unless either party gives the other party written notice of non-renewal at least 30 days before the
expiration of the then-current term; and
(111) each Renewal Term will be subject to the same terms and conditions established
under the Agreement, with any Fees determined in accordance with DebtBook's then-current pricing
schedule published on DebtBook's website and generally appliable to all users of the Services, as
provided to Customer at least 60 days before the expiration of the then-current term.
(b) jgrmination, In addition to any other express termination right set forth In the Agreement:
(1) DebtBook may terminate the Agreement Immediately if Customer breaches any of
Its obligations under Section 2 or Section 5;
(11) Customer may terminate the Agreement in accordance with the SLA,;
(ill) either party may terminate the Agreement, effective on written notice to the other
party, If the other party materially breaches the Agreement, and such breach. (A) Is incapable of cure;
or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the
breaching party with written notice of such breach;
(Iv) If (1) Customer is a governmental entity and (2) sufficient funds are not appropriated
to pay for the Application Services, then Customer may terminate the Agreement at any time without
penalty following 30 Clays prior written notice to DebtBook; or
(v) either party may, to the extent permitted by law, terminate the Agreement, effective
Immediately on written notice to the other party, If the other party becomes Insolvent or is generally
unable to pay, or fails to pay, Its dents as they become due or otherwise becomes subject, voluntarily
or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law.
(c) Survival. Only this Section and Section 1. (Definitions), Sections 4 through 6 (Fees; Confidential
Information; Intellectual Property), Section 7(c) (Disclaimer of Warranties), and Sections S. 9 and 12
(indemnification; Limitations of Liability; Miscellaneous) will survive any termination or expiration of the
Agreement.
11. Indepeadant Contractor. The parties to the Agreement are independent contractors. The Agreement
does not create a joint venture or partnership between the parties, and neither party Is, by virtue of the
Agreement, authorized as an agent, employee, or representative of the other party.
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12. Miscellaneous.
(a) Governing Law: Submission to Jurisdiction. The Agreement will be governed by and construed
In accordance with the laws of the Governing State, without regard to any choice or conflict of taw provisions,
and any claim arising out of the Agreement may be brought In the state or federal courts located in the
Governing State. Each party irrevocably submits to the jurisdiction of such courts In any such suit, action, or
proceeding,
(b) Entire Agreement: Order of Precedence. The Order Form, any Customer Terms, the Terms &
Conditions, and the Incorporated Documents constitute the complete Agreement between the parties and
supersede any prior discussion or representations regarding the Customer's purchase and use of the Services.
To the extent any conflict exists between the terms of the Agreement, the documents will govern In the
following order or precedence. (1) the Order Form (2) the Customer Terms, (3) the Terms & Conditions, and (4)
the Incorporated Documents. No other purchasing order or similar Instrument Issued by either party In
connection with the Services will have any effect on the Agreement or bind the other party In any way.
(c) ArBcndment% Waiver. No amendment to the Order Form, the Terms & Conditions, or the
Customer Terms will be effective unless It is in writing and signed by an authorized representative of each
party. DebtBook may update the Incorporated Documents from time-todime following notice to Customer so
long as such updates are generally applicable to all users of the Services. No waiver by any party of any of the
provisions of the Agreement will be effective unless explicitly set forth In writing and signed by the party so
waiving. Except as otherwise set forth In the Agreement, no failure to exercise, delay in exercising, or any partial
exercise of any rights, remedy, power, or privilege arising from the Agreement will in any way waive or otherwise
limit the future exercise of any right, remedy, power, or privilege available under the Agreement.
(d) Notic". All notices, requests, consents, claims, demands, and waivers under the Agreement
(each, a "Notice") must be In writing and addressed to the recipients and addresses set forth for each party on
the Order Form (or to such other address as DebtBook or Customer may designate from time to time in
accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized
overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered
mail (In each case, return receipt requested, postage pre-pald)_
(e) Farce Milleure. In no event will either party be liable to the other party, or be deemed to have
breached the Agreement, for any failure or delay In performing Its obligations under the Agreement (except for
any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances
beyond such party's reasonable control, including acts of God, flood, fire, earthquake, pandemic, epidemic,
problems with the Internet, shortages In materials, explosion, war, terrorism, invasion, riot or other civil unrest,
strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken
by a governmental or public authority, Including imposing an embargo.
(f) Seyerabllity. If any provision of the Agreement Is Invalid, illegal, or unenforceable in any
Jurisdiction, such Invalidity, Illegality, or unenforoeability will not affect any other term or provision of the
Agreement or invalidate or render unenforceable such term or provision in any other Jurisdiction.
(g) Assignment. Either party may assign Its rights or delegate its obligations, In whole or In part,
on 30 days prior written notice to the other party, to an affiliate or an entity that acquires all or substantially
all of the business or assets of such party, whether by merger, reorganization, acquisition, sale, or otherwise.
Except as stated in this paragraph, neither party may assign any of its rights or delegate any of Its obligations
under the Agreement without the prior written consent of the other party, which consent may not be
unreasonably withheld, conditioned, or delayed. The Agreement Is binding on and inures to the benefit of the
parties and their permitted successors and assigns.
(h) Market, ink. Neither party may Issue press releases related to the Agreement without the other
party's prior written consent. Fither party may Include the name and logo of the other party in lists of customers
or vendors.
(1) StateSpeelfic CertificatlQns & Agreements To the extent required under the laws of the
Governing State, DebtBook hereby certifies and agrees as follows;
(1) DebtBook has not been designated by any applicable government authority or body
as a company engaged In the boycott of Israel under the laws of the Governing State;
September 2022 Form
DebtBook Is not presently debarred, suspended, proposed for debarment, declared
Ineligible, or voluntarily excluded from participation in the Agreement by any governmental
department or agency of the Governing State;
(III) DebtBook will not discriminate against any employee or applicant for employment
because of race, ethnicity, gender, gender Identity, sexual orientation, age, religion, national origin,
disability, color, ancestry, citizenship, genetic Information, political affiliation or military/veteran
status, or any other status protected by federal, state, or local law; and
(Iv) DebtBook will verify the work authorization of its employees using the federal E-Verify
program and standards as promulgated and operated by the United States Department of homeland
Security and, if applicable, will require Its subcontractors to do the same.
G) Execution. Any document executed and delivered In connection with the Agreement may be
executed In counterparts, each of which is deemed an original, but all of which together are deemed to be one
and the same agreement. 7o the extent permitted by applicable law, electronic signatures may be used for the
purpose of executing the Order Form by email or other electronic means. Any document delivered electronically
and accepted is deemed to be `in writing" to the same extent and with the same effect as If the document had
been signed manually.
September 2022 Form