Agreement - DebtBook - Contract No. 24FIN1304 - Application Service - Tier 2 - Debt, Lease, Subscriptions - Signed 2023-12-14September 2023 Form
ORDER FORM
Fifth Asset, Inc., d/b/a DebtBook (“DebtBook”) is pleased to provide the customer executing below (“Customer”) with the
Services subject to the terms established in this Order Form, including DebtBook’s pricing document attached as Exhibit A and
incorporated herein by this reference (the “DebtBook Quote”).
The Services are subject to DebtBook’s General Terms & Conditions, which have been provided to Customer (the “Terms &
Conditions”), the Incorporated Documents referenced in the Terms & Conditions, and any additional terms set forth in Exhibit B
to this Order Form (the “Customer Terms”), which, together with this Order Form and any other Order Form in effect from time
to time, constitute the complete “Agreement” between the parties. The Agreement supersedes any prior discussion or
representations regarding Customer’s purchase and use of the Products and Services described in this Order Form.
Each capitalized term used but not defined in this Order Form has the meaning given in the Terms & Conditions.
Effective Date; Initial Term. The Effective Date of this Order Form will be July 15, 2023. This Order Form will remain in effect for
the Initial Term of 3 years as indicated in the DebtBook Quote.
Services. The DebtBook Quote sets forth the Services to be provided to Customer under this Order Form, including the specific
Products to be provided to Customer through its access to the Application Services.
Fees. DebtBook will charge Customer a recurring Subscription Fee as set forth in the DebtBook Quote for Customer’s access to
the Onboarding Services, the Application Services, and the Support Services. To the extent applicable, DebtBook will also charge
Customer an Implementation Fee as set forth in the DebtBook Quote for the Premium Implementation Services.
Billing. Unless otherwise provided in the Customer Terms, (1) all Fees will be due and payable annually and subject to the payment
terms set forth in the Terms & Conditions, and (2) each invoice will be emailed to Customer’s billing contact indicated in the
DebtBook Quote.
Notices. Any Notice delivered under the Agreement will be delivered, if to the Customer, to the address indicated in the DebtBook
Quote and, if to DebtBook, the address below DebtBook’s signature below.
Authority; Execution. Each of the undersigned represents that (1) 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)
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 Form by email or other
electronic means. Any document delivered electronically and accepted is deemed to be “in writing” to the same extent and with
the same effect as if the document had been signed manually.
FIFTH ASSET, INC., D/B/A DEBTBOOK
By:
Name:
Title:
GILROY, CA
By:
Name:
Title:
Notice Address
PO Box 667950
Charlotte, NC 28266
Attention: Chief Operating Officer
legal@debtbook.com
Date:
Purchase Order Required: Yes ____ No ____
Tyler Traudt
CEO
Harjot Sangha
Finance Director
Dec 14, 2023
September 2023 Form
Exhibit A
DebtBook Quote
[See attached.]
DebtBook Quote
12/14/2023
Gilroy, CA
7351 Rosanna St.
Gilroy, CA 95020
Prepared For:
Harjot Sangha
harjot.sangha@cityofgilroy.org
(408) 888-6690
Prepared By:
Tyler Hunt
Customer Success Manager
tyler.hunt@debtbook.com
Notice Address:
PO Box 667950
Charlotte, NC 28266
The Term under this Order Form is 3 year(s). The Application Services purchased under this 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
2023 Tier 2 - Debt - [23DST2-2]
DebtBook's debt management software-as-a-service application provided, if
applicable, to Customer through access to the Application Services.
2023 Tier 2 - Lease - [23LST2-2]
DebtBook's Lease management software-as-a-service application provided,
if applicable, to Customer through access to the Application Services.
2023 Tier 2 - Subscriptions - [23SST2-2]]
DebtBook's Subscriptions management software-as-a-service application
provided, if applicable, to Customer through access to the Application
Services.
Product Bundle Total
Year 1
-
-
-
$11,000
Year 2
-
-
-
$12,000
Year 3
-
-
-
$12,500
Implementation Services Price
2023 Tier 2 Debt Premium Implementation - [23DPI2-2]
[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.
$0
2023 Tier 2 Subscriptions Premium Implementation - [23SPI2-2]
[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.
$0
1
DebtBook Quote
12/14/2023
Total Contract Value $35,500
2
September 2023 Form
Exhibit B
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.
Section 10(a) is deleted and replace with the following: 10(a). The Agreement’s duration will last until its expiration as specified
in the DebtBook Quote. There will be no automatic renewal of the Agreement upon expiration. Any renewal or extension of the
Agreement beyond the Initial Term will require a mutual written agreement by both parties confirming their intent to renew or
extend the Agreement. All terms and conditions for any Renewal Term will be as mutually agreed upon in writing by both
parties. Any changes in Fees for the Renewal Term will be determined in accordance with DebtBook’s then-current pricing
schedule, provided to Customer for agreement at least 30 days prior to the expiration of the then-current Term.
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 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, 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. For 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 corporation, 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 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 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 manner to DebtBook,
including suggestions relating to features, functionality, or changes to the DebtBook IP.
“Guided Implementation Services” means DebtBook’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.
“Government Entity” means any unit of state or local government, including states, counties, cities, towns, villages,
school districts, special purpose districts, and any other political or governmental subdivisions and municipal corporations, and
any agency, authority, board, or instrumentality of any of the foregoing.
September 2023 Form
“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
https://www.debtbook.com/legal.
“Initial Term” means the Initial Term established in the Order Form.
“Onboarding Services” means onboarding 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) duly 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 Onboarding 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. Access and Use.
(a) 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 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 2023 Form
(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, decode, or
otherwise attempt to derive or gain access to any software component of the Services, in whole or in part. Customer will not
knowingly transmit any personally identifiable information to DebtBook or any other third-party through the Services.
(e) Suspension. Notwithstanding anything to the contrary in the Agreement, DebtBook may temporarily suspend
Customer’s and any Authorized User’s access to any or all of the Services if: (1) Customer is more than 45 days late in making any
payment due under, and in accordance with, the terms of the Agreement, (2) DebtBook reasonably determines that (A) there is
a threat or attack on any of the DebtBook IP; (B) Customer’s or any Authorized User’s use of the DebtBook IP disrupts or poses a
security risk to the DebtBook IP or to any other customer or vendor of DebtBook; (C) Customer, or any Authorized User, is using
the DebtBook IP for fraudulent or other illegal activities; or (D) DebtBook’s provision of the Services to Customer or any
Authorized User is prohibited by applicable law; or (3) any vendor of DebtBook has suspended or terminated DebtBook’s access
to or use of any third-party services or products required to enable Customer to access the Services (any such suspension, a
“Service Suspension”). DebtBook will use commercially reasonable efforts to (i) provide written notice of any Service Suspension
to Customer, (ii) provide updates regarding resumption of access to the Services, and (iii) resume providing access to the Services
as soon as reasonably possible after the event giving rise to the Service Suspension is cured. DebtBook is not liable for any damage,
losses, or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, DebtBook may monitor
Customer’s use of the Services and collect and compile Aggregated Statistics. As between DebtBook and Customer, all right, title,
and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by DebtBook.
DebtBook may compile Aggregated Statistics based on Customer Data input into the Services. DebtBook may (1) make Aggregated
Statistics publicly available in compliance with applicable law, and (2) use Aggregated Statistics as permitted under applicable law
so long as, in each case, DebtBook’s use of any Aggregated Statistics does not identify 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 onboarding process,
DebtBook will provide Customer with the Onboarding Services and the level of Implementation Services indicated in the Order
Form. 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 180 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 State’s 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
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
September 2023 Form
responsible for all applicable sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by
any federal, state, or local governmental or regulatory authority on any amounts payable by Customer under the Agreement,
other than any taxes imposed on DebtBook’s income.
5. 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 Party’s business affairs, products, confidential
intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether
in written, electronic, or other form or media, that is marked, designated, or otherwise identified as “confidential”, or which a
reasonable person would understand to be confidential or proprietary under the circumstances (collectively, “Confidential
Information”). For the avoidance of doubt, DebtBook’s Confidential information includes the DebtBook IP and the Application
Services source code and specifications. As used in the Agreement, “Confidential Information” expressly excludes any
information that, at the time of disclosure is (1) in the public domain; (2) known to the receiving party at the time of disclosure;
(3) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (4) independently developed by
the Receiving Party.
(b) To the extent permitted by applicable law, the Receiving Party will hold the Disclosing Party’s Confidential
Information in strict confidence and may not disclose the Disclosing Party’s Confidential Information to any person or entity,
except to the Receiving Party’s employees, officers, directors, agents, subcontractors, financial advisors, and attorneys who have
a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations under the
Agreement or otherwise in connection with the Services. Notwithstanding the foregoing, each party may disclose Confidential
Information to the limited extent required (1) in order to comply with the order of a court or other governmental body, or as
otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order must
first give written notice to the other party; or (2) to establish a party’s rights under the Agreement, including to make required
court filings.
(c) On the expiration or termination of the Agreement, the Receiving Party must promptly return to the
Disclosing Party all copies of the Disclosing Party’s Confidential Information, or destroy all such copies and, on the Disclosing
Party’s request, certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
(d) Each party’s obligations under this Section are effective as of the Effective Date and will expire three years
from the termination of the Agreement; provided, however, with respect to any Confidential Information that constitutes a trade
secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the
Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
(e) Notwithstanding anything in this Section to the contrary, if Customer is a Government Entity, then DebtBook
expressly agrees and understands that Customer’s obligations under this Section are subject in all respects to, and only
enforceable to the extent permitted by, the public records laws, policies, and regulations of the Governing State.
6. Intellectual Property.
(a) DebtBook IP. As between Customer and DebtBook, DebtBook owns all right, title, and interest, including all
intellectual property rights, in and to the DebtBook IP.
(b) Customer Data. As between Customer and DebtBook, Customer owns all right, title, and interest, including
all intellectual property rights, in and to the Customer Data. Customer hereby grants to DebtBook a non-exclusive, royalty-free,
worldwide license to reproduce, distribute, sublicense, modify, prepare derivative works based on, and otherwise use and display
the Customer Data and perform all acts with respect to the Customer Data as may be necessary or appropriate for DebtBook to
provide the Services to Customer.
(c) Effect of 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.
(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
September 2023 Form
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.
(b) Security. DebtBook has implemented Appropriate Security Measures and has made commercially reasonable
efforts to ensure its licensors and hosting providers, as the case may be, have implemented Appropriate Security Measures
intended to protect Customer Data.
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, DEBTBOOK IP IS PROVIDED “AS IS,” AND
DEBTBOOK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DEBTBOOK
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR
THE LIMITED WARRANTY SET FORTH IN THIS SECTION, DEBTBOOK MAKES NO WARRANTY OF ANY KIND THAT THE DEBTBOOK IP,
OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS,
OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM,
OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(d) DebtBook exercises no control over the flow of information to or from the Application Service, DebtBook’s
network, or other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or
controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt connections to the Internet.
Although DebtBook will use commercially reasonable efforts to take all actions DebtBook deems appropriate to remedy and avoid
such events, DebtBook cannot guarantee that such events will not occur. ACCORDINGLY, DEBTBOOK DISCLAIMS ANY AND ALL
LIABILITY RESULTING FROM OR RELATING TO ALL SUCH EVENTS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE
AGREEMENT, ANY OTHER ACTIONS OR INACTIONS CAUSED BY OR UNDER THE CONTROL OF A THIRD PARTY.
8. Indemnification.
(a) 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-Party Claim, and allows DebtBook sole authority to
control the defense and settlement of the Third-Party Claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit DebtBook, at DebtBook’s
sole expense and discretion, to (A) modify or replace the DebtBook IP, or component or part of the DebtBook IP, to
make it non-infringing, or (B) obtain the right for Customer to continue use. If DebtBook determines that neither
alternative is reasonably available, DebtBook may terminate the Agreement in its entirety or with respect to the
affected component or part, effective immediately on written notice to Customer, so long as, in each case, DebtBook
promptly refunds or credits to Customer all amounts Customer paid with respect to the DebtBook IP that Customer
cannot reasonably use as intended under the Agreement.
(iii) DebtBook’s indemnification obligation under this Section will not apply to the extent that the
alleged infringement arises from Customer’s use of the Application Services in combination with data, software,
hardware, equipment, or technology not provided or authorized in writing by DebtBook or modifications to the
Application Services not made by DebtBook.
(b) Sole Remedy. SECTION 8(a) SETS FORTH CUSTOMER’S SOLE REMEDIES AND DEBTBOOK’S SOLE LIABILITY FOR
ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY
THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT WILL DEBTBOOK’S LIABILITY UNDER SECTION 8(a) EXCEED
$1,000,000.
(c) Customer 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 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. DEBTBOOK EXPRESSLY AGREES THAT THIS PROVISION WILL NOT APPLY TO ANY CUSTOMER
THAT IS A GOVERNMENT ENTITY TO THE EXTENT SUCH INDEMNIFICATION OBLIGATIONS ARE PROHIBITED UNDER APPLICABLE
LAW.
September 2023 Form
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:
(i) 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 DebtBook’s 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 any time without penalty following 30 days prior
written notice to DebtBook; or
(v) either party may, to the extent permitted by law, terminate the Agreement, effective immediately
on written notice to the other party, if the other party becomes insolvent or is generally unable to pay, or fails to pay,
its debts as they become due or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any
domestic or foreign bankruptcy or insolvency law.
(c) Survival. Only this Section and Section 1 (Definitions), Sections 4 through 6 (Fees; Confidential Information;
Intellectual Property), Section 7(c) (Disclaimer of Warranties), and Sections 8, 9 and 12 (Indemnification; Limitations of Liability;
Miscellaneous) will survive any termination or expiration of the Agreement.
11. 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 laws of the Governing State, without regard to any choice or conflict of law provisions, and any claim arising out of the
Agreement may be brought in the state or federal courts located in the Governing State. Each party irrevocably submits to the
jurisdiction of such courts in any such suit, action, or proceeding,
(b) Entire Agreement; Order of Precedence. The Order Form, 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.
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
September 2023 Form
purchasing order or similar instrument issued by either party in connection with the Services will have any effect on the
Agreement or bind the other party in any way.
(c) Amendment; Waiver. No amendment to the Order Form, the Terms & Conditions, or the Customer Terms will
be effective unless it is in writing and signed by an authorized representative of each party. DebtBook may update the
Incorporated Documents from time-to-time following notice to Customer so long as such updates are generally applicable to all
users of the Services. No waiver by any party of any of the provisions of the Agreement will be effective unless explicitly set forth
in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, delay in
exercising, or any partial exercise of any rights, remedy, power, or privilege arising from the Agreement will in any way waive or
otherwise limit the future exercise of any right, remedy, power, or privilege available under the Agreement.
(d) Notices. All notices, requests, consents, claims, demands, and waivers under the Agreement (each, a
“Notice”) must be in writing and addressed to the recipients and addresses set forth for each party on the Order Form (or to such
other address as DebtBook or Customer may designate from time to time in accordance with this Section). All Notices must be
delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of
transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid).
(e) Force Majeure. In no event will either party be liable to the other party, or be deemed to have breached the
Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligations to make
payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control,
including acts of God, flood, fire, earthquake, pandemic, epidemic, problems with the Internet, shortages in materials, explosion,
war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or
passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(f) Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such
invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction.
(g) 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) 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 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;
(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; 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
governmental immunity, public officers or official immunity or qualified immunity, to the extent Customer is entitled
to such immunities.
September 2023 Form
(j) 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.
Gilroy CA_OF_Ts and Cs_12_14_2023
Final Audit Report 2023-12-14
Created:2023-12-14
By:Tyler Hunt (tyler.hunt@debtbook.com)
Status:Signed
Transaction ID:CBJCHBCAABAAcM3zFLDeCJPeh-rfR9gsgL7Yjk9-282p
"Gilroy CA_OF_Ts and Cs_12_14_2023" History
Document created by Tyler Hunt (tyler.hunt@debtbook.com)
2023-12-14 - 6:28:46 PM GMT
Document emailed to Harjot Sangha (harjot.sangha@ci.gilroy.ca.us) for signature
2023-12-14 - 6:29:17 PM GMT
Email viewed by Harjot Sangha (harjot.sangha@ci.gilroy.ca.us)
2023-12-14 - 6:37:43 PM GMT
Document e-signed by Harjot Sangha (harjot.sangha@ci.gilroy.ca.us)
Signature Date: 2023-12-14 - 6:38:14 PM GMT - Time Source: server
Agreement completed.
2023-12-14 - 6:38:14 PM GMT