Loading...
HomeMy WebLinkAboutPPP Agency Subscription Agreement Oshkosh (WI Law) Page 1 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law SUBSCRIPTION AGREEMENT This is a SUBSCRIPTION AGREEMENT (“Agreement”), effective as of the last date accompanying the signatures of the parties, between Acid Remap LLC (“Acid Remap”), with offices located at 3547 Springhill Rd., Lafayette, CA 94549, and City of Oshkosh Fire Department (“Client”), with offices located at 101 Court Street Oshkosh, WI 54901. Acid Remap and Client may each be referred to as a “party” and together be referred to as the “parties.” RECITALS WHEREAS, Acid Remap offers a mobile application service that provides certain EMS protocols and other Client Data under the name Paramedic Protocol Provider; and WHEREAS, Client desires to license Paramedic Protocol Provider for use subject to the “Terms of Ser- vice” set forth on www.acidremap.com, as may be amended from time to time. NOW THEREFORE, the parties hereby agree as follows: 1. DEFINED TERMS. 1.1 “Application” is a mobile software plat- form through which Client may digitally distrib- ute Client Data, including, without limitation, EMS protocols and policies to certain end-users. The term “Application” shall be deemed to in- clude any (i) upgrades or updates of the Applica- tion made after the effective date of this Agree- ment and (ii) Custom Applications provided to Client. 1.2 “Client Data” is any Client data or con- tent, including, without limitation, any EMS pro- tocols and policies, shared with Acid Remap through use of the Application. 1.3 “Custom Application” is an Application specifically branded for Client and containing Client’s Client Data exclusively. 1.4 “User” refers to each employee, consult- ant, client or other agent of Client, which Client authorizes to access the Application on Client’s behalf or on behalf of an agency for which Client provides services, including, without limitation, EMTs, paramedics or other medical practitioners operating under Client's medical license. 1.5 “EMS” refers to Emergency Medical Services. 2. INTELLECTUAL PROPERTY. 2.1 License. (a) Subject to the terms and conditions of this Agreement, including, but not limited to, Cli- ent’s obligation to pay fees when due, Acid Remap hereby grants to Client and Users a non- exclusive license to access and use, subject to the Terms of Service in effect at the time of use and the “Schedules” attached as exhibits hereto, the Application, including any Custom Applications specified in the Schedules attached hereto, during the Term of this Agreement solely for its internal business operations (b) Client grants to Acid Remap a nonexclu- sive, royalty-free license during the Term to ac- cess and use the Client Data for the purposes of distributing such Client Data as part of the Appli- cation, which such license expressly, and without limitation, includes the right of Acid Remap to modify such Client Data as is commercially rea- sonable to fulfill Acid Remap’s obligations under this Agreement; provided, that such modifications do not change the substantive content of such Client Data. (c) Client is solely responsible for providing all telecommunications, computer and other equipment necessary for accessing the Applica- tion. (d) Acid Remap retains the right, in its sole discretion and without prior notice or liability, to restrict or terminate access to the Application by Client and/or particular Users, and to otherwise remove any Client Data from the Application if Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 2 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law Client and/or any of its use of the Application violates any applicable federal, state, local or in- ternational laws or regulations, or the rights of any third party. 2.2 Ownership. (a) Acid Remap retains all rights to the Ap- plication not expressly granted to Client in this Agreement. Without limiting the generality of the foregoing: (i) except as specifically set forth in this Agreement and as with regards to Client Da- ta, which is the sole and exclusive property of Client, Acid Remap has all rights, title and inter- est in and to the Application, all components thereof, all content which Acid Remap makes available to Client for downloading and all intel- lectual and industrial property rights embodied therein or pertaining thereto, including, without limitation, copyrights, patent rights, trademarks and trade names, and trade secrets. (ii) any con- figuration or deployment of the Application shall not affect or diminish Acid Remap’s rights, title, and interest in and to the Application, and (iii) Client shall not limit Acid Remap in any way from developing, using, licensing, distributing, modifying, or otherwise freely exploiting the Ap- plication, any other materials provided by Acid Remap, or any modifications, enhancements, im- provements or derivative works thereof, or from permitting third parties from so doing; provided, that, except as expressly set forth herein, Acid Remap shall not use any Client Data for any pur- pose other than providing the Application to Cli- ent and Users. (b) The Application is licensed, not sold, to Client, and solely for the purposes set forth in this Agreement. To the extent Client or its Users cre- ates any derivative works or improvements to the Application, Client, on behalf of itself and its Users, hereby assigns all right, title and interest to such derivative works or improvements, includ- ing, without limitation, all intellectual property rights, to Acid Remap. 2.3 Restrictions on Use. (a) Except as otherwise specifically permit- ted under this Agreement, and with the exception of any Client Data, Client shall not, and Client shall not permit any third party to (i) copy, modi- fy, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver or otherwise transfer the Appli- cation to any third party in whole or in part; pro- vided, that Client may copy Acid Remap’s docu- mentation as needed for use by its Users, (ii) derive or attempt to derive the source code of any portion of the Application by any means, (iii) reverse engineer, decompile, disassemble, or translate the Application or any part thereof, (iv) transfer any of the Application components to any other person, entity, computer, computer network, or other device, or (v) upload, post, mail, publish, transmit or distribute in any way the Application, any component of the Applica- tion or derivative works based thereon. (b) Client may not sublicense or use the Ap- plication for commercial time-sharing, rental, outsourcing, or service bureau use, or to train persons other than Users, unless previously agreed to in writing by Acid Remap. 2.4 Limited Trademark License. No li- cense, right or interest in the trademarks, trade names or service mark of either party or its licen- sors (“Marks”) is granted hereunder, except for the limited purpose of marketing and publicity to the extent permitted by Section 10.4 and except as otherwise necessary to fulfill the terms of this Agreement. Each party expressly retains the right to monitor the uses, if any, to which its (or its licensors’) Marks are put, and each party shall comply with instructions which the other party may give from time to time regarding the other party’s (or its licensors’) Marks. 2.5 Limited Access to Client Data. (a) If, in the course of Acid Remap perform- ing its obligations hereunder, it is necessary for Acid Remap to access Client Data to an extent not otherwise provided herein, Client hereby grants Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 3 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law Acid Remap a royalty-free right to access Client Data for the purposes of fulfilling Acid Remap’s obligations under this Agreement. (b) Client shall not transmit any “protected health information” (“PHI”, as defined in 45 C.F.R. 160.103) or “individually identifiable health information” (as defined in 42 U.S.C. 1320d) without the written consent of Acid Remap. In the event such consent is given, Acid Remap shall comply with the Health Insurance Portability and Accountability Act of 1996, as codified as 42 U.S.C. 1320d–1329d (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and any current and future regulations promulgated under HIPAA or HITECH, including, without limita- tion, the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the “Federal Privacy Regulations”), the federal security standards con- tained in 45 C.F.R. Part 142 (the “Federal Securi- ty Regulations”) and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162, all collectively referred to herein as “HIPAA Requirements,” to the extent applicable. Acid Remap shall further comply with all relevant state and local laws governing the privacy and security of patient health or personal information, to the extent applicable. (c) To the extent applicable, Acid Remap shall not use or further disclose any PHI or Indi- vidually Identifiable Health Information, other than as permitted by HIPAA requirements and the terms of this Agreement. 3. C OMPENSATION. 3.1 Fees. Client will pay Acid Remap the Fees as defined in the Schedules. 3.2 Professional Services. In connection with Client’s use of the Application, Acid Remap may provide Client with services related to the Application, as Client may request from time to time and the parties mutually agree. Acid Remap shall bill all such services to Client on a time and materials basis at Acid Remap’s then-current rates. Client shall in all cases be responsible for Acid Remap’s reasonable out-of-pocket expenses, including, without limitation, travel and lodging. 3.3 Payment Terms. Client shall pay Acid Remap pursuant to the billing options indicated in the Schedules. Acid Remap may, in its sole dis- cretion upon Client’s request, invoice multiple entities to pay the Fees on Client’s behalf; pro- vided, in any event, that Client shall ultimately be responsible for the timely payment of the Fees. In the event of overdue payment, Acid Remap re- serves the right to discontinue access to the Ap- plication or suspend any services until Client re- mits the outstanding balance due. If payments remain past due for more than twenty (20) days after receipt of notice of non-payment by Client, Acid Remap may terminate this Agreement for cause as set forth in Section 8.2. Acid Remap will bear no liability or responsibility in the exercise of the rights set forth in this Section 3.3 for non- payment. Client shall pay Acid Remap’s costs of collection (including, without limitation, reasona- ble attorney’s fees). 3.4 Taxes. All charges hereunder exclude, and Client will be solely responsible for and shall pay or reimburse Acid Remap for, all sales, use, excise and other taxes, which may be levied in connection with this Agreement, except for taxes based on Acid Remap’s net income and payroll. 3.5 Currency. All payments by Client are to be in US Dollars unless otherwise specified in the Schedules. 3.6 Developer Account Fees. Client may be required to open a developer account in one or more of the third party application stores through which Client distributes the Application (e.g., an Apple developer account or Android developer account). Client shall be responsible for any fees related to such an account. Enforcement of any such fee obligation is at the discretion of the third party application store owners. 4. CLIENT DATA AND MAINTE- NANCE. 4.1 Data Storage. Client owns all rights and interests to the Client Data stored in the Applica- Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 4 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law tion. Upon termination of this Agreement, Acid Remap shall use commercially reasonable efforts to transfer Client’s Data in electronic form to Cli- ent or a third party designated in writing by Cli- ent. This Agreement sets forth the rights of the parties and is not intended to cause by application of statutory law or otherwise Acid Remap to be deemed a carrier, bailee, or warehouseman of Client Data, information, or other property. 4.2 Privacy of Registration Data. In order to become an authorized subscriber, Client and its Users may be asked to provide certain personal data (“Registration Data”). All Registration Data Client and Users provide to Acid Remap will be, to the best of the knowledge of Client and Users, current, accurate and complete at the time of the inquiry. Acid Remap will not disclose Registra- tion Data except (i) as required by law or pursuant to a court order, (ii) as necessary to protect the personal safety of other Acid Remap subscribers or the public, (iii) as necessary to protect or de- fend the rights or property of Acid Remap, or (iv) for contacting Users of the Application. Cli- ent shall take all commercially reasonable efforts to ensure that Client’s account(s) and password(s) are not disclosed to or used by any unauthorized party, and will promptly notify Acid Remap upon learning of any such unauthorized use. 5. WARRANTIES AND DISCLAIMER OF WARRANTY. 5.1 Acid Remap represents, warrants and covenants: (a) That the Applications and any Custom Applications performs and will substantially per- form in accordance with the applicable specifica- tion. (b) That it has obtained and will continue in effect all rights and title, including any third party licenses, required for it to perform its obligations under this Agreement, including with respect to any upgrades or other changes to the Application or any Custom application, provided, that this warranty shall not extend to any specification or Client Data. (c) That it uses and will use industry stand- ard methods to ensure against the unauthorized access to, disclosure or use of, any Client Data, including implementation of industry standard information security methods. (d) That the Application and any Custom Application are and will be served from locations within the US and that no Client Data will be pro- cessed by, or stored by, Acid Remap outside of the United States without the express written con- sent of Client. Acid Remap makes no warranties with respect to data storage, processing or serving by third parties, including, without limitation the Apple App Store, Google Play and Amazon Appstore. 5.2 Each party represents and warrants: (a) That it has the authority to enter into this Agreement and that doing so will not result in a breach of any prior agreement. (b) That it will perform its obligations under this Agreement in accordance with applicable law, including all applicable privacy and data protection laws. 5.3 THE APPLICATION, ACCESS THERETO, AND ANY SERVICES PRO- VIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND ACID REMAP AND ITS AFFILIATES AND AGENTS: (I) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (I I) DO NOT WARRANT THAT ACCESS TO THE APPLICATION WILL BE UNINTERRUPTED, ERROR- FREE, OR SECURE, OR THAT ANY IN- FORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE THROUGH THE APPLICATION IS FREE OF VIRUS- Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 5 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law ES, CANCELBOTS, WORMS, LOGIC BOMBS, TROJAN HORSES, OR OTHER HARMFUL CONTENTS OR COMPO- NENTS; AND (III) SHALL IN NO EVENT BE LIABLE TO CLIENT OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE (INCLUDING, WITHOUT LIM- ITATION, LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS OR INTERRUPTIONS OF THE APPLICATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ACID REMAP OR AN APPROVED REP- RESENTATIVE SHALL CREATE A WAR- RANTY UNLESS IT IS IN WRITING AND SIGNED BY AN AUTHORIZED REPRE- SENTATIVE OF ACID REMAP. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CER- TAIN WARRANTIES. IN SUCH JURIS- DICTIONS, ACID REMAP’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. 5.4 Client Acknowledgement. Client repre- sents and warrants that it fully understands that (i) the Application is a mobile application intend- ed to deliver Client Data to Users, (ii) the Appli- cation is dependent upon a number of factors out- side the control of Acid Remap, including, with- out limitation, the operation of third party provid- ed hardware and network services, (iii) the Appli- cation is not intended to be the sole source of providing EMS protocols and other Client Data, and is not a substitute for any of Client’s current systems or methods of providing medical treat- ment and/or medicine, (iv) there may be occa- sional communication failures or delays in the display of Client Data, and (v) the Application is not expected to perform at the same level of per- formance and/or reliability one might expect from medical devices used in the delivery of critical medical care in clinical environments. 6. LIMITATION OF LIABILITY. 6.1 Exclusion of Consequential Damages. EXCEPT FOR BREACHES OF SECTION 9 OR THE INDEMNIFICATION OBLIGA- TIONS UNDER SECTION 7, IN NO EVENT SHALL CLIENT, USERS ACID REMAP OR ACID REMAP’S SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCI- DENTAL, SPECIAL OR CONSEQUEN- TIAL DAMAGES, INCLUDING, WITH- OUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; provided, that in the event Client gives access to the Application to non-authorized persons, Acid Remap shall be entitled to recover the full amount of any license fees that would relate to such per- sons if they were Users. 6.2 Limitation of Direct Damages. Except for its obligations to indemnify Client under Sec- tion 7 , or for any breach of its nondisclosure obli- gations under Section 9, the aggregate and cumu- lative liability of Acid Remap and its suppliers for damages hereunder shall in no event exceed the amount of fees paid by Client for the previous twelve (12) months under this Agreement. Except for Client’s obligations to indemnify Acid Remap under Section 7, or any breach of its obligations to comply with the License grant under Sec- tion 2.1(a), the Restrictions on Use under Sec- tion 2.3, its payment obligations, and its non- disclosure obligations under Section 9, Client’s aggregate and cumulative liability for damages hereunder shall in no event exceed the amount of fees paid by Client under this Agreement. 7. INDEMNIFICATION. 7.1 General Indemnity. Client shall defend, indemnify and hold harmless Acid Remap and its employees, officers, directors and agents (the “Acid Remap Indemnitees”) against all losses, judgments, costs, fees (including reasonable at- Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 6 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law torney’s fees in the event that Client fails to meet its obligations hereunder), damages, or other ex- penses of any kind for bodily injury, death, or damage to real or tangible personal property, proximately caused by Client or any Users in the course of performing this Agreement or using the Application, including, without limitation, those caused by any modifications to the Application requested by Client; provided, that (i) Client re- ceives prompt written notice of the claim from the Acid Remap Indemnitees under this Section 7.1, (ii) Client has the right to control the defense of such claim and any related settlement negotia- tions, and (iii) the Acid Remap Indemnitees pro- vide to Client, at Client’s request and expense, with the reasonable assistance, information and authority necessary to perform Client’s obliga- tions under this Section 7.1. Notwithstanding the foregoing, Client shall not enter into any settle- ment that requires an admission of wrongdoing or payment by an Acid Remap Indemnitee without the consent of that Acid Remap Indemnitee. In the event that Client declines to perform its obli- gations under this Section 7.1, Acid Remap may perform those obligations at Client’s expense. 7.2 Intellectual Property Indemnity. (a) Acid Remap shall defend, indemnify and hold harmless Client, its officers, directors, em- ployees and Users (the “Client Indemnitees”) against any and all third party claims or allega- tions, including any losses, judgments, costs, fees (including reasonable attorney’s fees in the event that Acid Remap fails to meet its obligations hereunder), damages, or other expenses of any kind related to such claims or allegations, (collec- tively, “IP Claims”) that the Application infringes or misappropriates any patent, copyright, or trademark, trade secret or any other intellectual property right of any kind; provided, that (i) Acid Remap receives prompt written notice of the IP Claim from the Client Indemnitees under this Section 7.2, (ii) Acid Remap has the right to con- trol the defense of such claim and any related settlement negotiations, and (iii) the Client In- demnitees provide to Acid Remap, at Acid Remap’s request and expense, with the reasonable assistance, information and authority necessary to perform Acid Remap’s obligations under this Section 7.2. In the event that Acid Remap de- clines to perform its obligations under this Sec- tion 7.2, Client may perform those obligations at Acid Remap’s expense. (b) Acid Remap shall have no obligation under this Section 7.2 to the extent that an IP Claim arises from (i) the use of a superseded or altered release of the Application if the infringe- ment would have been avoided by the use of a current unaltered release of the Application and Client was notified to cease use of the superseded release as a result of a claim of infringement, (ii) the modification of the Application by or on behalf of Client, except where such modification was approved in writing by Acid Remap; provid- ed, that the infringement would not have resulted but for the modification, (iii) the use of the Appli- cation other than in accordance with the docu- mentation, the Terms of Service and this Agree- ment, or (iv) the use of any materials or infor- mation provided to Acid Remap by Client, in- cluding, without limitation, Client Data, where the infringement would not have occurred but for such use, for which Client shall be solely respon- sible. (c) If the Application is held to infringe or is believed by Acid Remap to infringe, Acid Remap shall have the option, at its expense, to (i) replace or modify the Application to be non-infringing, or (ii) obtain for Client a license to continue using the Application. If it is not commercially reason- able to perform either of the foregoing options, then Acid Remap may terminate the Application license and refund the remainder of any license fees paid for the Application, and fees for any Services that directly relate to such Application, pro-rated to reflect the period of time in which Client had full and unrestricted access to the Ap- plication. This Section 7.2 states Acid Remap’s entire liability and Client’s exclusive remedy for any claim of infringement. (d) Client shall defend, indemnify and hold harmless the Acid Remap Indemnitees against Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 7 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law any losses, judgments, costs, fees (including rea- sonable attorney’s fees in the event that Client fails to meet its obligations hereunder), damages, or other expenses of any kind arising from third party claims that Acid Remap’s use of Client Da- ta or any modifications to the Application re- quested by Client infringes any patent, copyright, or trademark or is a misappropriation of any trade secrets or any other form of intellectual property Agreement; provided, that (i) Client receives prompt written notice of the claim from the Acid Remap Indemnitees under this Section 7.2(d), (ii) Client has the right to control the defense of such claim and any related settlement negotia- tions, and (iii) the Acid Remap Indemnitees pro- vide to Client, at Client’s request and expense, with the reasonable assistance, information and authority necessary to perform Client’s obliga- tions under this Section 7.2(d). Notwithstanding the foregoing, Client shall not enter into any set- tlement that requires an admission of wrongdoing or payment by an Acid Remap Indemnitee with- out the consent of that Acid Remap Indemnitee. In the event that Client declines to perform its obligations under this Section 7.2(d), Acid Remap may perform those obligations at Client’s ex- pense. This Section 7.2(d) states Client’s entire liability and Acid Remap’s exclusive remedy for any claim of infringement or misappropriation. 8. TERM AND TERMINATION. 8.1 Term. This Agreement shall commence and remain in effect for the term set forth in any Schedule attached as an exhibit to this Agree- ment, or until terminated in accordance with Sec- tion 8.2; provided, that the term shall automatical- ly renew upon continued payment by Client of any fees invoiced by Acid Remap on a payment period-by-payment period basis unless Acid Remap delivers to Client notice of termination at least thirty (30) days prior to the end of the then current term. 8.2 Termination. Except as otherwise set forth in this Agreement, either party may termi- nate this Agreement if: (i) the other party breach- es any material term or condition of this Agree- ment and fails to cure such breach within thirty (30) days after receipt of written notice, except in the case of failure to pay fees, which must be cured within twenty (20) days after receipt of written notice from Acid Remap or (ii) the other party becomes the subject of a voluntary or invol- untary petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors. 8.3 Effect of Termination. (a) Upon termination of this Agreement, (i) Client and its Users will immediately cease access to the Application and (ii) Client shall pay all charges that accrued prior to such termination. (b) In the event of a termination by Acid Remap pursuant to Section 2.1(d) or Section 8.2, all charges payable by Client for the remaining term of this Agreement shall accelerate and shall also be due and payable by Client at the time of the termination. (c) The following provisions shall survive the termination of this Agreement for any reason: Sections 1, 2.1, 2.1, 2.3, 3, 4, 5.3, 5.4, 6, 7, 8.3, 9 and 10. 9. CONFIDENTIAL INFORMATION. 9.1 Confidential Information. In the per- formance of this agreement, each party may dis- close certain of its Confidential Information to the other party. Each party receiving such infor- mation (the “receiving party”) shall hold the Con- fidential Information of the other party (“disclos- ing party”) in strict confidence and not disclose that Confidential Information to third parties nor use for any purpose not authorized herein, nor permit access to Confidential Information, except to those of its employees or authorized repre- sentatives having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein. A party’s “Confidential Information” includes the business plans and strategies, financial information, the terms of this Agreement, software programs and source code documents, proprietary processes, Client Data and any other information which is Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 8 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law (i) disclosed to the other party in a writing marked confidential or (ii) a person should reasonably know is confidential. Upon learning of any unau- thorized use or disclosure of a disclosing party’s Confidential Information, the other party shall immediately notify the disclosing party. 9.2 Exceptions. The restrictions of Sec- tion 9.1 shall not apply to (i) information that becomes, through no act or fault of the receiving party, publicly known or generally known in the relevant industry, (ii) information received from a third party not obligated under a confidentiality agreement with the disclosing party, (iii) information independently developed by the receiving party without reference to the Confiden- tial Information, (iv) information required to be disclosed by law or court or governmental agency order; provided, that, to the extent permitted by law, the receiving party gives prompt notice of such requirement to the other party, or (v) disclosures to a professional advisor of the disclosing party under a duty of confidentiality. 9.3 Ownership and Return of Confidential Information. All Confidential Information shall remain the property of the disclosing party. Ex- cept as required by law, upon written request of the disclosing party, the receiving party shall promptly return to the disclosing party all docu- ments and other tangible materials representing the disclosing party’s Confidential Information, together with all copies thereof (at disclosing par- ty’s expense). 10. MISCELLANEOUS. 10.1 Relationship. The relationship between the parties is that of vendor and purchaser. Nei- ther party, nor any employee of a party, is an in- dependent contractor or employee of the other. Each party shall be responsible for determining the method, location and other details of its per- formance under this Agreement, for hiring, pay- ing (including providing benefits) and managing any and all of its employees, and for providing any and all equipment or other materials neces- sary for its performance under this Agreement. 10.2 Applicable Law and Forum. This Agreement shall be governed by the laws of the State of California as applied to agreements made, entered into and performed entirely in California by California residents. The United Nations Con- vention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. All claims under, or otherwise with respect to, this Agreement shall be brought and maintained in the state and federal courts located in San Francisco, California USA, and the parties hereby expressly consent (and waive any right to otherwise object) to the exclusive venue and jurisdiction of such courts. 10.3 Force Majeure. Except for Client’s ob- ligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, without limitation, acts of war, acts of God, earthquake, flood, em- bargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the internet; pro- vided, that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. 10.4 Publicity and Marketing. Notwith- standing anything to the contrary in this Agree- ment, each party may publicize the existence of the business relationship established hereunder in connection with any product, promotion or publi- cation arising under this Agreement; provided, that, except as required by law, Client shall not disclose any of the terms of this Agreement to any third party without first obtaining the written con- sent of Acid Remap. Client hereby grants Acid Remap a license to use and publish Client’s name and/or Marks as part of Acid Remap’s customer lists or as otherwise set forth herein, in the form provided by Client and in compliance with Cli- ent’s applicable trademark usage policies. Client shall serve as a reference account for Acid Remap. As such, Acid Remap may provide Cli- ent’s name and contact information to, and Client may be contacted by, members of the media, market analysts, potential customers or other par- Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 9 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law ties interested in Client’s opinion of Acid Remap and its products or services. Depictions of the Application using Client’s EMS protocols or oth- er Client Data may be used by Acid Remap, or any third party with Acid Remap’s permission, for publicity or marketing purposes. 10.5 Assignment. Client may not assign this Agreement, or its rights or duties hereunder, to any third party, in whole or in part, whether vol- untarily or involuntarily, by operation of law (e.g., in a statutory merger) or otherwise, without Acid Remap’s prior written consent, which may be granted or withheld in Acid Remap’s reasona- ble discretion. Acid Remap reserves the right to impose an additional reasonable start-up fee on any proposed assignee, as a precondition to per- mitting such assignment. 10.6 Notices. All notices must be in writing and delivered personally or sent by overnight cou- rier service to the address indicated herein or such other address as either party may indicate by writ- ten notice, or sent via e-mail to the e-mail address currently specified by either party to the other. Notice will be deemed effective upon the earlier of actual receipt or two business days after depos- it with an overnight courier or email transmission. 10.7 Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of this Agreement will be unimpaired, and the invalid term or provision will be replaced by such valid term or provision as comes closest to the intention underlying the invalid term or provision. 10.8 Attorneys’ Fees. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its inter- pretation, its performance, or the like, the prevail- ing party shall be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. In the event of a non-adjudicative settle- ment of litigation between the parties or a resolu- tion of dispute by arbitration, the term “prevailing party” shall be determined by that same process. 10.9 Entire Agreement, Waiver, Amend- ment. This Agreement and the Schedules together constitute the entire, exclusive and final statement of the agreement of the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous representations, proposals, ne- gotiations, discussions, and agreements between the parties regarding the same subject matter, whether oral or in writing. In the event this Agreement conflicts with the Terms of Service, this Agreement shall govern. Except as expressly set forth herein, this Agreement, including, with- out limitation, any Schedule or exhibit to this Agreement, may not be modified or amended except by an instrument in writing signed by the parties hereto. The waiver or failure of either par- ty to exercise in any respect any rights provided for in this Agreement will not be deemed a waiver of any further right under this Agreement. There are no intended third-party beneficiaries to this Agreement. 10.10 Counterparts. This Agreement may be executed in counterparts, which taken together shall be considered one original Agreement. The exchange of a fully executed Agreement (in coun- terparts or otherwise) by fax or e-mail shall be sufficient to bind the parties to the terms and con- ditions of this Agreement. 10.11 Wisconsin Public Records Law. Not- withstanding any other term of this Agreement, whether identified before or after this paragraph, and including other terms incorporated by refer- ence or linked to this Agreement, the following terms apply are incorporated herein: (a) The City of Oshkosh is statutorily re- quired to comply with the Wisconsin Public Rec- ords laws as well as other laws. Information re- ceived from Acid Remap LLC, used for the pur- poses of this Agreement, or created pursuant to this Agreement, will be considered public records as defined by Wis. Stat. 19.32(2), and any other relevant statute. These records include those held by the City as an "Authority" having custody of a Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 10 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law records pursuant to Wis. Stat. 19.32(1), as well as those contractors records as defined in Wis. Stat. 19.36(3). (b) Nothing in this Agreement shall prevent or prohibit the City of Oshkosh from complying with Wisconsin Public Records or other laws, or from acquiring, storing, handling, disclosing, dis- tributing, treating, and retaining public records in a manner consistent with Wisconsin Public Rec- ords or other laws including, without limitation, public records retention laws. In the event the City of Oshkosh's compliance Wisconsin Public Records laws, or compliance with other laws, conflicts with any term of this Agreement, wheth- er the term is explicitly stated, or implied, or ref- erenced, or linked, the City of Oshkosh will com- ply with the applicable law and such compliance shall not be considered a breach, default, waiver, or other violation of any term of this Agreement. (c) For purposes of clarification, but without limitation, the City of Oshkosh acknowledges the intellectual property and trade secrets rights of Acid Remap LLC, as well as those of Acid Remap LLC's subsidiaries and affiliates. This section is not intended to limit or alter the afore- mentioned intellectual property or trade secret rights as may be otherwise described herein. (d) For purposes of clarification, but without limitation, the parties note that this Agreement includes various terms which may be similar, and used together, but which are not legally inter- changeable. It is acknowledged that intellectual property, proprietary information, confidential information, and information subject to privacy laws may seem in some sense to be the same, but each are different in nature, both legally and prac- tically, and are subject to different legal protec- tions and standards. It is the intent of the parties to interpret each term according to each term's unique legal characteristics, as well as in the con- text of the City as a governmental body with obli- gations for transparency. The Wisconsin Public Records laws prevents public release of some of the aforementioned type of information, includ- ing: Wis. Stat 19.35(1) (records, such as intellec- tual property, subject to protection by other feder- al or state laws); Wis Stat 19.36(4)(computer pro- grams); Wis Stat 19.36(5)(trade secrets); and, Wis Stat identifying information). Wisconsin Public Records laws and associated policy has not acknowledged or recognized confidential or pro- prietary information except as they are set forth in specific laws. Therefore, the law does not prevent public disclosure, use, and handling of infor- mation that entities creating or disclosing infor- mation may believe are proprietary or confiden- tial, unless that information is explicitly protected by one of the previously identified laws. (e) For purposes of further clarification, but without limitation, the City of Oshkosh takes se- riously its obligations to protect records and in- formation that is protected by statute. Without limitation, this Agreement, communications relat- ed to this Agreement, and pricing related to this Agreement are considered public records subject to public inspection and copying, and use without restriction. The City notes that while computer programs and software is protected from public disclosure, as noted above, WIS Stat. 19.36(4) explicitly states that all material used for the input into the computer program, and all material pro- duced as a product of the computer program is subject to public examination and copying unless some or all of the information is otherwise specif- ically protected by law from inspection and copy- ing. Regardless of any confidentiality or proprie- tary notations placed on any input to the computer program, or output from the computer program, or any other document received from Acid Remap LLC, such records will be considered public rec- ords without restriction available for public in- spection, copying, and use unless the information is otherwise explicitly protected from disclosure by law. In the event that certain information may be provided to or by Acid Remap LLC, that may be protected by laws that are not referenced above, then the City will either protect such in- formation as required by other explicit law, or undertake the balancing test analysis as allowed by Wisconsin law for records that are not explicit- ly protected. All cases, disputes, and issues relat- Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 11 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law ed to public records associated with this Agree- ment shall be governed Wisconsin law without regard to choice of law analysis, and the venue for such cases and disputes shall be Winnebago County, Wisconsin. Acid Remap LLC may law- fully challenge any City decision to release or make available for viewing any public record, but shall do so at their own risk and cost regardless of the outcome of such challenge. Additionally, any such challenges shall be undertaken in a timeframe which does not interfere with the City's lawful obligation to respond to public records requests as soon as practicable and without delay. 10.12 Wisconsin Public Records Retention. Notwithstanding any other term of this Agree- ment, whether identified before or aner this para- graph, and including other terms incorporated by reference or linked to this Agreement, the City shall retain all information, whether in electronic, hard copy, or other form that is considered to be a "record" as defined in Wis. Stat. 19.32 and the City shall retain all such records in a manner that is compliant with the City's record retention obli- gations as required by WIS. Stat. 19.21. During this term of retention, all such records shall be used and retained according to applicable law. Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A Page 12 of 12 CONFIDENTIALITY NOTICE Not for use or disclosure outside of Acid Remap LLC or Client except as required by law * * * * * The undersigned duly authorized representatives of the parties have executed this Agreements as of the dates set forth below. EXECUTED BY: ACID REMAP LLC Signature: Name: Benjamin Powers Title: COO Date: EXECUTED BY: CITY OF OSHKOSH FIRE DEPARTMENT Name: _________________________ Mike Stanley, Fire Chief Name: _________________________ Diane Bartlett, City Clerk Name: _________________________ Julie Calmes, Finance Director Name: _________________________ John Fitzpatrick, Asst. City Manager Name: _________________________ Lynn Lorenson, City Attorney December 20, 2024 Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A 12/23/2024 12/23/2024 12/30/2024 12/30/2024 1/2/2025 Period Fee (USD) Year 1 $3,500 Year 2 $3,500 Year 3 $3,500 Total contract amount (over 3 years)$10,500 Schedule A Renewal. Renewal. Description of product or service Distribution and updates of the City of Oshkosh Fire Department protocols in a free- for-providers custom-branded Oshkosh Fire Department-only mobile app, derived from Paramedic Protocol Provider, on the Apple App Store (as an unlisted app) and Google Play for a term of 3 year(s) starting from the date of general availability, and for an agency of up to 150 staff. Docusign Envelope ID: 78AA8168-A9AF-429F-9A01-06AD3F3F3A2A