Loading...
HomeMy Public PortalAbout159-2022 - Fire - Life Safety Inspection Vault - Safety System Reporting Access (2) PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into this IA day of ) P , 2022, and referred to as Contract No. 159-2022, by and between the City of Rid ond, Indiana, a municipal corporation acting by and through its Board of Public Works and Safety (hereinafter referred to as the "City") and Life Safety Inspection Vault LLC, 146 E. Chubbuck Road, Suite C, Chubbuck, Idaho, 83202 (hereinafter referred to as the "Contractor"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby retains Contractor to furnish access, licensing, and support for its online web application and reporting repository and vault, which repository services shall include the City's access to and use of the repository and which shall allow and ensure the uniform monitoring of the various life-safety systems overseen by the Richmond Fire Department (the "Project"). Contractor shall perform all services and provide all access and licensing described on Contractor's proposal marked as "Exhibit A"which exhibit consists of thirty-six (36)pages, was received May 23, 2022, and which is attached hereto and made a part hereof Contractor agrees to abide by the same. Contractor shall also abide by any applicable provisions and regulations set forth in Richmond City Code Chapter 92 and set forth in Richmond City Ordinance No. 45- 2022 pertaining to single-point repository services companies ("SRSC"). Should any provisions,terms, or conditions contained in any of the documents attached hereto as Exhibits, or in any of the documents incorporated by reference herein,-conflict with any of the provisions,terms, or conditions of this Agreement,this Agreement shall be controlling. Contractor shall perform all work herein in a timely-manner, conforming to all applicable professional standards. • The Contractor shall furnish all labor, material, equipment, and services necessary for the proper completion of all work specified. No performance of services shall commence until the following has been met: 1. The City is in receipt of any required certificates of insurance; 2. The City is in receipt of any required affidavit signed by Contractor in accordance with Indiana Code 22-5-1.7-11(a)(2); and 3. A purchase order has been issued by the Purchasing Department. Contract No. 159-2022 Page 1 of 7 • SECTION II. STATUS OF CONTRACTOR Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. The Contractor shall provide, at its own expense, competent supervision of the work. SECTION III. COMPENSATION Contractor's compensation will be accomplished through its reasonable charges to third-party users of the repository vault as more specifically described in Contractor's proposal attached as Exhibit A to this Agreement. Fees charged to third-party users shall be reasonable and uniform with charges applied to similar users in other Indiana jurisdictions. Neither the City nor the Richmond Fire Department will be charged any fees for access to and use of the repository vault. This Agreement shall not be construed to apply any third-party beneficiary status to any third party users of the repository vault. SECTION IV.TERM OF AGREEMENT This Agreement shall be effective when signed by all parties and shall continue in effect until completion of the Project. Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination which shall include but not be limited to the following: a. failure, for any reason of the Contractor to fulfill in a timely manner its obligations under this Agreement; b. submission of a report, other work product, or advice,whether oral or written,by the Contractor to the City that is incorrect, incomplete, or does not meet reasonable professional standards in any material respect; c. ineffective or improper use of funds provided under this Agreement; d. suspension or termination of the grant funding to the City under which this Agreement is made; or e. unavailability of sufficient funds to make payment on this Agreement. • Page 2 of 7 .5 In the event of such termination, the City shall be required to make payment for all work. performed prior to the date this Agreement is terminated, but shall be relieved of any other responsibility herein. This Agreement may also be terminated, in whole or in part,by mutual Agreement of the parties by setting forth the reasons for such termination, the effective date, and in the case of partial termination,the portion to be terminated. This Agreement may also be terminated by the City if a force-majeure event occurs and the results or aftereffects of said event causes the performance of this Agreement to become impossible or highly impracticable. Said event or results or aftereffects of said event would include events or effects which the parties to this Agreement could not have anticipated or controlled. Examples of a force-majeure event, or its results, would include, but would not be limited to, events such as an Act of God, an Act of Nature, an Act of Law, or an Emergency Act of Executive Enforcement of the Federal government,the State of Indiana, or local government. SECTION V. INDEMNIFICATION AND INSURANCE Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or property or any other claims which may arise from the Contractor's conduct or performance of this Agreement, either intentionally or negligently; provided, however, that nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers, agents, or employees. Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set forth below which may arise out of or result from the Contractor's operations under this Agreement, whether such operations by the Contractor or by any sub-contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may be held responsible. Coverage Limits A. Worker's Compensation& Statutory Disability Requirements B. Employer's Liability $100,000 C. Comprehensive General Liability Section 1. Bodily Injury $1,000,000 each occurrence $2,000,000 aggregate Section 2. Property Damage $1,000,000 each occurrence Page 3 of 7 D. Comprehensive Auto Liability Section 1. Bodily Injury $1,000,000 each person $1,000,000 each occurrence • Section 2. Property Damage $1,000,000 each occurrence E. Comprehensive Umbrella Liability $1,000,000 each occurrence $2,000,000 each aggregate F. Malpractice/Errors & Omissions Insurance $1,000,000 each occurrence $2,000,000 each aggregate SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing work under this Agreement,provide the City a certificate of insurance, or a certificate from the industrial board showing that the Contractor has complied with Indiana. Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's worker's compensation law, Contractor may choose to comply with all provisions of its home state's worker's compensation law and provide the City proof of such compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law. SECTION VII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility status of all newly hired employees of the contractor through the Indiana EVerify program. Contractor is not required to verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance of this Agreement, Contractor shall provide to the City its signed Affidavit affirming that Contractor does not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty (30) days after the City notifies the Contractor of the violation. If Contractor fails to remedy the violation within the thirty (30) day period provided above, the City shall consider the Contractor to be in breach of this Agreement and this Agreement will be terminated. If the City determines that terminating this Agreement would be detrimental to the public interest or public property, the City may allow this Agreement to remain in effect until the City procures a new contractor. If this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for actual damages. Page 4 of 7 L, sp SECTION VIII. IRAN INVESTMENT ACTIVITIES Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in investment activities in Iran. In the event City determines during the course of this Agreement that this certification is no longer valid, City shall notify Contractor in writing of said determination and shall give contractor ninety (90) days within which to respond to the written notice. In the event Contractor fails to demonstrate to the City that the Contractor has ceased investment activities in Iran within ninety (90) days after the written notice is given to the Contractor, the City may proceed with any remedies it may have pursuant to IC 5-22-16.5. In the event the City determines during the course of this Agreement that this certification is no longer valid and said determination is not refuted by Contractor in the manner set forth in IC 5- 22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement and terminate the agreement upon the expiration of the ninety(90) day period set forth above. SECTION IX. PROHIBITION AGAINST DISCRIMINATION A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub-contractor, or any person acting on behalf of Contractor or any sub-contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with • respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability,national origin, or ancestry. B. Pursuant to Indiana Code 5-16-6-1,the Contractor agrees: 1. That in the hiring of employees for the performance of work under this Agreement of any subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of Contractor or any sub-contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates; 2. That Contractor, any sub-contractor, or any person action on behalf of Contractor or any sub-contractor shall in no manner discriminate against or intimidate any employee hired for the perfoinuance of work under this Agreement on account of race,religion, color, sex,national origin or ancestry; 3. That there may be deducted from the amount payable to Contractor by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and Page 5 of 7 >. cJ �. 4. That this Agreement may be canceled or terminated by the City and all money due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. C. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation shall be considered a material breach of this Agreement. SECTION X. MISCELLANEOUS This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. Any such delegation or assignment, without the prior written consent of the other party, shall be null and void. This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their successors and assigns. This document constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. By executing this Agreement the parties agree that this document supersedes any previous discussion,negotiation, or conversation relating to the subject matter contained herein. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising out of this Contract must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other action in any alternative forum, venue, or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right Contractor may have to bring such suit in front of other tribunals or in other venues. Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal to execute this Contract. In the event of any breach of this Agreement by Contractor, and in addition to any other damages or remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this Agreement, including but not limited to, City's reasonable attorney's fees. Page 6 of 7 .) ,,. In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises,this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. IN WITNESS WHEREOF,the parties have executed.this Agreement at Richmond,Indiana,as of the day.and year first written above,although signatures may be affixed on different dates. "CITY" "CONTRACTOR" THE CITY OF RICHMOND, LIFE SAFETY INSPECTION VAULT LLC INDIANA by and through its 146 E. Chubbuck Road,Ste C Board of Public Works and Safety Chubbuck,ID 83202 By: L /24 e B Vicki Robinson,President L By: Printed: 4 7-4 vd c- 'ly Pa mer,Member / jrBy: Title: ✓:2ai L Matt Evans,Member r '— g% - a-o..3 Date: l 2— _- Date: 1 APPROVED: t ._' _ `David" . Sno ff. Mayo Date: Ol - i 3 . 2'2 3 Page 7of7 Exhibit A i • • • LIFE-SAFETY INSPECTION VAULT STATEMENT OF WORK (SOW) Fire De ' art: ' out a 4 WWW.I ivsafe.com Page 1 1EXIBiT pAGEA orais?: Exhibit A TABLE OF CONTENTS 1.1 - Statement of Work 1.2 - Deliverables 1.3 - Fire Department Responsibilities Page 2 =,'X:z41111- pi_RAGE. orjkl n I3 Exhibit A Section 1.1 Life Safety Inspection Vault (LIV) is a proactive solution provided to fire departments. LIV has developed an online web application that collects, organizes, and stores fire and life safety system reports pertaining to inspection, testing, and maintenance. Fire departments will be able to view all reports submitted within their jurisdiction in one centralized location. LIV's web application tracks when inspections on fire and life safety systems are approaching their next required inspection, past due, or if there are any unresolved deficiencies. LIV sends notifications to the person responsible for maintaining the fire and life safety system. Designed with simplicity the application streamlines the process of maintaining and reviewing reports, allowing more time to focus on other high priorities. The solution provides additional tools at no cost to the fire department. A partnership with LIV will help create a safer community. r‘=',7qs�=- 't ._X__ AGE. ..$"F. ta � Page 3 Exhibit A SECTION 1.2 Training - LIV will provide ongoing training to all users. Training comes at no cost and will be available throughout life of contract. Mapping - GIS mapping components are integrated into the LIV system, utilizing Google mapping features and structure identification tools. Customer Support - All users of will be provided 24/7 customer support throughout the life of the contract. Contact info is as follows: #1- 885-225-4822, or mailed at info@livsafe.com Payment Processing - Through a secure source LIV electronically collects and processes all fees from inspection companies submitting reports to LIV's web application. Contractors - Any inspection company performing inspections, testing, or maintenance will ONLY be able to see reports that were submitted by their company. If a system has impairments, then the local fire department must be notified immediately. Contractors will have limited view capabilities and will have some edit capabilities. EXS lBI`f 'AGE±-j_T*319___.I Page 4 • r Exhibit A Section 1.2 Report Types - LIV has the ability to track any of the system types listed below. If there are additional systems that are desired to be tracked, it must be approved by LIV first. Intervals of inspection, testing, and maintenance will be determined by the AHJ's, and adopted fire code. All reports will be stored and retained for 5 years. • Fire Alarm System • Fire Sprinkler System • Sprinkler 5 Year • Standpipe System • Backflow • Fire Hydrant • Fire Pump • Commercial Hood Suppression System • Commercial Hood Cleaning • Fire Extinguishers • Dry Chemical Suppression • Clean Agent • Active Smoke Control • Elevator • Emergency Generator !EMU Y\ PAGE ;V. (o i Page 5 • Exhibit A SECTION 1.2 Notification - Notifications will be emailed to the responsible party for the inspection, testing and maintenance of the fire system. LIV will send notices to the email address provided by the 3rd party contractor. LIV is not held liable or responsible for collecting and ensuring that the email address provided by 3rd party contractor is accurate. Only premises that have received an inspection report within LIV's database and have emails provided, will receive email notifications. Notifications will be sent on behalf of the fire department and will state 3rd party contractors' credentials that performed the inspection. LIV will design all notifications and will get approval from the AHJ on all verbiage. • Renewal Notice - This will be a reminder notice of upcoming inspections. This is a notice sent by LIV on behalf of the AHJ to help be more proactive with inspections. • Past Due Notice - A courtesy reminder will be sent by LIV on behalf of AHJ to notify the premise that they are now past due on their fire and life safety system inspection. • Deficiency Notice- If a report is submitted stating that there were deficiencies found during the last inspection. The AHJ will have the option to send an email to inform the premise that they must resolve the reported deficiencies. This notice will not automatically be sent but is ready for the AHJ to send with the click of a button. `iEximi T_A__F,;r G m G. :iw3lid Page 6 SECTION 1.2 Exhibit A Hosting/Security - Includes the following • Security monitoring • Password protection • Disaster recovery • Data protection at a secure data center • SSL encrypted • Network protection • Hacker prevention uAL-ini i Page 7 9 •z Exhibit A Section 1.3 Fire Department - A customized account will allow fire departments to view all registered inspection companies, their inspectors, and reports submitted within their jurisdiction. The fire department will also be given edit capabilities that can add, or update information. You will have the capability to pull reports of past due inspections, or upcoming. You will have the capability to add a customized list of occupancy types that are specific to your jurisdiction. Fire Department - Throughout the life of the contract it will be the fire departments responsibility to provide the following: • Require that all reports be submitted through LIV's web application. • Provide LIV with any and all adoption of local fire code, ordinances, or addendums. • Any equipment the fire department needs to access the web application will be at the fire departments expense. This may include items such as computers, and internet. • Provide LIV a facility for initial, or future trainings. • Any reports that are sent directly to the fire department must be forwarded to LIV. • Designate a contact person for LIV to have ongoing communication with. ----- Page 8 MASTER SERVICES AGREEMENT THIS MASTER SERVICES AGREEMENT ("Agreement"), dated ("Effective Date"), is between Life Safety Inspection Vault LLC, an Idaho limited liability company ("LIV"), and , a municipal corporation of the State of with a principal place of business at ("Client"). The term "Agreement" means, collectively, this Agreement, the applicable Registration Form(s), the applicable SOW(s), and any operating rules, policies, and procedures that LIV may publish from time to time. LIV and Client agree as follows: SECTION 1. ENGAGEMENT;SERVICES; DUTIES 1.1 Engagement. Subject to the terms and conditions of this Agreement, Client engages LIV to provide Client with web-based management of the Client's fire safety system permitting (collectively, the "Services"). LIV will provide the Services through LIV's proprietary web-based application that will allow the Client to track and drive code compliance, reduce false alarm activity, and provide a safer community (the "Vault"). The Vault provides a secure cloud environment in which third party contractors that inspect, test, and maintain fire protections systems can submit their reports via LIV's web application directly to the Client, facilitating a more efficient review, tracking, and follow-up process with occupants to correct deficiencies and maintain systems. As part of the Services, LIV provides a proactive service, in addition to the Vault, that includes hard and soft copy notifications sent to building owners and follow up phone calls to help increase testing and maintenance activity within the jurisdiction. Client will specify the Services it wishes LIV to provide by executing a Statement of Work ("SOW") substantially in the form attached as Exhibit A to this Agreement. If LIV agrees to provide those Services, LIV will countersign that SOW and will provide the indicated Services to Client under the terms and conditions of this Agreement. The term "Services" includes those items described above as well as any other items described on each SOW. 1.2 Designation of Key Personnel. LTV's "Representative" is Cole Harding, phone: 208-241-6189, e-mail: Cole.harding@livsafe.com. The Client's "Representative" is phone: e-mail: Client and LIV will each use best efforts to keep the same key personnel assigned to this engagement throughout the Term. If it becomes necessary for LIV to replace any key personnel, the replacement will be an individual having equivalent experience and competence in executing projects such as the one described in this Agreement. 1.3 LIV's Responsibilities. LIV shall fully and timely provide all deliverables described in this Agreement and in each SOW in material compliance with the terms, covenants, and conditions of the Agreement and all applicable Federal, State, and local laws, rules, and regulations (collectively, "Laws"). LIV will provide all technical and professional expertise, knowledge, management, and other resources required for accomplishing all aspects of the MASTER SERVICES AGREEMENT- 1 56428.0002.12966312.1 a rr tasks and associated activities identified in each accepted SOW. If the need arises for LIV to perform services beyond those stated in a particular SOW, LIV and the Client shall negotiate mutually agreeable terms and compensation for completing the additional services. LIV shall coordinate an annual business review meeting with representatives designated by each party either via teleconference or in person within 60 days before each anniversary of the Effective Date. Client may request that these meetings occur more frequently. 1.4 Client's Responsibilities. Client's Representative will be responsible for exercising general oversight of LIV's activities in completing each SOW. Specifically, the Client's Representative will represent the Client's interests in resolving day-to-day issues that may arise during the term of this Agreement, shall participate regularly in conference calls or meetings for status reporting, shall promptly review any written reports submitted by LIV, and shall approve all invoices for payment, as appropriate. The Client's Representative shall give LIV timely feedback on the acceptability of progress and task reports. SECTION 2. COMPENSATION 2.1 Management Fee. 2.1.1 Unless a certain report type is noted as an exception on applicable SOW (each, an "Exception"), Liv will collect and retain a fixed fee of $15.00 US for each system inspection submitted (the "Fixed Fee"). The Fixed Fee for any Exceptions will not exceed $15 per report.The parties will meet and review the Fixed Fee on or about each anniversary of the Effective Date. 2.1.2 As part of the Services, LIV will collect all fees due and payable by third party inspectors in connection with activities relating to Vault and the Services, plus any additional fees that Client charges in connection with the activities relating to the premises in question (the "Inspection Fees"). The Inspection Fees will be determined solely by Client. If Client elects under the applicable SOW, it may add an administration fee to the Inspection Fees charged to the Client's customers. If so, LIV will collect that administration fee in addition to the Inspection Fees. 2.1.3 Within 30 days following the end of each calendar quarter, LIV will remit to Client the amount by which the amount of Inspection Fees collected during such quarter exceeds the amount of Fixed Fees due and payable to LIV under this Agreement for such quarter. 2.1.4 Client will not be charged any fees for access to and use of Vault. SECTION 3. TERM AND TERMINATION 3.1 Term of Agreement. The term of this Agreement will be for an initial period commencing on the Effective Date and running through the date that is year from the Effective Date("Initial Term").Thereafter,the Term may be renewed for up to additional MASTER SERVICES AGREEMENT-2 56428.0002.12966312.1 1 one-year terms (each, a "Renewal Term," and collectively with the Initial Term, the "Term") if, no later than 60 days before the expiration of the initial Term or any successive Renewal Term, Client notifies LIV of its intent to renew the Term. 3.2 Termination. In addition to any other express termination right set forth in this Agreement: 3.2.1 Either party may terminate this Agreement, without cause, effective on 90 days written notice to the other party; 3.2.2 Either party may terminate this Agreement, effective on written notice to the other party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) is capable of cure and remains uncured 30 days after the non- breaching party provides the breaching party with written notice of such breach; or 3.2.3 Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b)files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 3.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the LIV IP and, without limiting Client's obligations under Section 8, Client shall delete, destroy, or return all copies of the LIV IP and certify in writing to the LIV that the LIV IP has been deleted or destroyed. No expiration or termination will affect Client's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund. No termination shall affect LIV's responsibility to remit any and all fees collected pursuant to Section 2 of this Agreement. 3.4 Survival. This Section 3.4 and Section 2, Section 3.3, Section 4.2, Section 7, Section 8, Section 11, Section 12, and Section 14 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement. SECTION 4. WARRANTIES; LIMITATIONS 4.1 Warranty. 4.1.1 Vault and Services Warranties. LIV represents and warrants to Client that all Services to be provided to the Client under the Agreement will be fully and timely performed in accordance with the terms, conditions, and covenants of the Agreement, and all Laws, and that Vault will perform, in all material respects, in accordance with the specifications. While LIV MASTER SERVICES AGREEMENT-3 56428.0002.12966312.1 tl • T. does not warrant the accuracy of the information that is put into Vault by third party inspectors, LIV will take all prudent and necessary steps to ensure its proper and accurate retention, transmission, and provision to Client. LIV further represents and warrants to the Client that LIV has all rights necessary in and to any patent, copyright, trademark, service mark or other intellectual property right used in, or associated with, the Vault and the Services, and that LIV is duly authorized to enter into this Agreement and provide the Vault and the Services to the Client under this Agreement. 4.1.2 Non-Suspension or Debarment. LIV certifies that its and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, or any other state or local government. 4.2 Limitations; Disclaimer of Warranties. All information entered into Vault is produced by third party inspectors and their agents. THEREFORE, LIV SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ENTERED INTO VAULT BY EITHER CLIENT OR THIRD PARTY INSPECTORS. EXCEPT AS SET FORTH IN THIS Section 4, VAULT AND THE SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND "AS AVAILABLE" AND LIV DOES NOT WARRANT THAT VAULT OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. LIV MAKES NO REPRESENTATIONS OR WARRANTIES THAT VAULT OR THE SERVICES WILL PROVIDE ANY PARTICULAR RESULTS. EXCEPT AS SET FORTH IN THIS Section 4, LIV DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. THIS DISCLAIMER OF WARRANTY EXTENDS TO CLIENT, CLIENT'S CUSTOMERS, AND ALL OTHER USERS, AND NO DESCRIPTIONS OR SPECIFICATIONS, WHETHER OR NOT INCORPORATED INTO THIS AGREEMENT OR ANY SCHEDULE, EXHIBIT, ANNEX, OR DOCUMENTATION WILL CONSTITUTE WARRANTIES OF ANY KIND. LIV'S SOLE LIABILITY FOR BREACH OF THE WARRANTY SET FORTH IN THIS Section 4, AND CLIENT'S SOLE REMEDY, IS THAT LIV WILL, SUBJECT TO Section 11 AND Section 12, INDEMNIFY AND HOLD CLIENT HARMLESS FROM AND AGAINST ANY LOSS, SUIT, DAMAGE, CLAIM, OR DEFENSE ARISING OUT OF BREACH OF THE REPRESENTATION AND WARRANTY. SECTION 5. PROPRIETARY RIGHTS 5.1 Proprietary Rights. LIV retains all right, title and interest in and to Vault, the Services, any derivative works or modifications thereof (the "Derivative Works"), any accompanying documentation, manuals or other materials used or supplied under this Agreement or with respect to Vault, the Services, or any Derivative Works (the "Documentation"), any reproductions works made thereof, and any other LIV IP (as that term is defined in Section 6.1). Client shall not remove any product identification or notices of such proprietary rights from Vault or the Services. Except for the limited use rights established under this Agreement, Client has no right, title, or interest in or to Vault, the Services, any Derivative Works,the Documentation, or any other LIV IP. MASTER SERVICES AGREEMENT-4 56428.0002.12966312.1 1'EXHB11 k PAGE I2_ FNEi 5.2 Use of Trademarks. During the Term, LIV may use the Client's trademarks and logos for the purpose of providing Vault and the Services to Client, and Client hereby grants LIV the right to use Client's trademarks and logos for said purposes. LIV may not, without Client's prior written consent, use Client's trademarks or logos for any other purpose, including promotional services or commercial services not directly related to the provision of Services under this Agreement. SECTION 6. SOFTWARE AS A SERVICE TERMS AND CONDITIONS 6.1 Definitions. 6.1.1 "Aggregated Statistics" means data and information related to Client's use of Vault that is used by LIV in an aggregate and anonymized manner, including compiling statistical and performance information related to the provision and operation of Vault. 6.1.2 "Authorized User" means Client's employees, consultants, contractors, and agents as indicated on the Registration Form (i) who are authorized by Client to access and use Vault under the rights granted to Client by this Agreement and (ii) for whom access to Vault has been purchased under this Agreement. 6.1.3 "Client Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through Vault. 6.1.4 "LIV IP" means Vault, the Documentation, and any intellectual property provided to Client or any Authorized User in connection with the foregoing. LIV IP includes Aggregated Statistics and any information, data, or other content derived from LIV's monitoring of Client's access to or use of Vault, but does not include Client Data. 6.1.5 "Registration Form" means the order form filled out and submitted by or on behalf of Client, and accepted by LIV,for Client's access to Vault under this Agreement. 6.2 Access and Use. 6.2.1 Registration. In order to use Vault, Client must: (a) provide certain current, complete, and accurate information about Client as prompted to do so by the Registration Form order to enroll as a Vault user, as applicable; and (b) maintain and update such registration information ("Registration Data") as required to keep such information current, complete, and accurate. If any Registration Data that Client provides is untrue, inaccurate, not current or incomplete, LIV may terminate Client's account and Client's rights to use Vault. 6.2.2 Provision of Access. Subject to and conditioned on Client's compliance with the terms and conditions of this Agreement, LIV hereby grants Client a non-exclusive, non- transferable right to access and use Vault during the Term, solely for use by Authorized Users in accordance with the terms and conditions of this Agreement. Such use is limited to Client's MASTER SERVICES AGREEMENT-5 56428.0002.12966312.1 internal use. LIV shall provide to Client the necessary passwords and network links or connections to allow Client to access Vault. 6.2.3 Fees.There are no fees for access to and the use of the Vault. 6.2.4 Documentation License. Subject to the terms and conditions contained in this Agreement, LIV hereby grants to Client a non-exclusive, non-sublicensable, non- transferable license to use the Documentation during the Term solely for Client's internal business purposes in connection with its use of Vault. 6.2.5 Use Restrictions. Client shall use Vault only for the benefit of Client, shall use commercially reasonable efforts to prevent the unauthorized use or disclosure of Vault, and shall not use Vault for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of Vault or any Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available Vault or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of Vault, in whole or in part; (iv) remove any proprietary notices from Vault or the Documentation; (v) use Vault or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any person's intellectual property or other rights, or that violates any Law; (vi) interfere with or disrupt the integrity or performance of Vault or the Services or any third-party data contained therein. 6.2.6 Reservation of Rights. LIV reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the LIV IP. 6.2.7 Data Storage. LIV shall not place any limit on the amount of memory or other computer storage that Client may utilize through Vault. 6.2.8 Suspension. Notwithstanding anything to the contrary in this Agreement, LIV may temporarily suspend Client's and any Authorized User's access to any portion or all of Vault if: (a) LIV reasonably determines that (i) there is a threat or attack on any of the LIV IP; (ii) Client's or any Authorized User's use of the LIV IP disrupts or poses a security risk to the LIV IP or to any other customer or vendor 'of LIV; (iii) Client, or any Authorized User, is using the LIV IP for fraudulent or illegal activities; (iv) subject to Law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) LIV's provision of Vault to Client or any Authorized User is prohibited by Law; or MASTER SERVICES AGREEMENT-6 56428.0002.12966312.1 c1 n 16 (b) Any vendor of LIV has suspended or terminated LIV's access to or use of any third-party services or products required to enable Client to access Vault; (any such • suspension described in subsections 6.2.8(a) and 6.2.8(b), a "Service Suspension"). LIV will use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to Vault following any Service Suspension. LIV will use commercially reasonable efforts to resume providing access to Vault as soon as reasonably possible after the event giving rise to the Service Suspension is cured. LIV will have no liability for any damages, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension. 6.2.9 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, LIV may,monitor Client's use of Vault and collect and compile Aggregated Statistics. As between LIV and Client, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by LIV. Client acknowledges that LIV may compile Aggregated Statistics based on Client Data input into Vault. LIV may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted by Law; provided that such Aggregated Statistics do not identify Client or Client's Confidential Information. 6.2.10 LIV Responsibilities and Uptime. LIV is responsible for the acquisition and operation of all hardware, software, and network support related to Vault (other, than those required for Client to connect to the internet and access Vault). The technical and professional activities required for establishing, managing, and maintaining the Vault environment are LIV's responsibilities. LIV will take all reasonable and necessary steps to make Vault, but does not guarantee that Vault will be, available 24-7/365 (subject to maintenance downtime). 6.3 Equitable Relief. Any breach or threatened breach by Client of any of its obligations under Section 6.2.5 would cause LIV irreparable harm for which monetary damages would not be an adequate remedy. As such, in the event of a breach or threatened breach of Client's obligations under Section 6.2.5, LIV will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court,without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are in addition to all other remedies that may be available at law, in equity or otherwise. 6.4 Client Responsibilities. Client is responsible and liable for all uses of Vault and any Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as MASTER SERVICES AGREEMENT-7 56428.0002.12966312.1 !EXHIBIT I6t PAGE_15 Or 4. , P; applicable to such Authorized User's use of Vault, and shall cause Authorized Users to comply with such provisions. 6.5 Termination and Suspension of Service. If this Agreement is terminated, LIV will implement an orderly return of Client Data in a format readable and useable in Microsoft Excel within 30 days, and shall subsequently securely dispose of Client Data. Client will be entitled to any reasonable post-termination assistance required to ensure Client has received the Client Data in a useable form. LIV shall securely dispose of all requested data in all of its forms,such as disk, CD/DVD, backup tape, and paper, when requested by the Client. Data will be permanently deleted and not be recoverable, according to National Institute of Standards and Technology (NIST)-approved methods. LIV will provide certificates of destruction to Client upon request. SECTION 7. INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK 7.1 LIV IP. Client acknowledges that, as between Client and LIV, LIV owns all right, title, and interest, including all intellectual property rights,in and to the LIV IP. 7.2 Client Data. LIV acknowledges that, as between LIV and Client, Client owns all right,title, and interest, including all intellectual property rights, in and to the Client Data.Client hereby grants to LIV a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data, and perform all acts with respect to the Client Data, as may be necessary for LIV to provide Vault and the Services to Client. 7.3 Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to LIV by mail, email, telephone, or otherwise, suggesting or recommending changes to the LIV IP, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), LIV is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Client hereby assigns to LIV on Client's behalf, and on behalf of its employees, contractors, and agents, all right, title, and interest in, and LIV is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although LIV is not required to use any Feedback. SECTION 8. CONFIDENTIAL INFORMATION 8.1 Definition. From time to time during the Term, one party may disclose or make available to the other 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 orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure, as demonstrated by the receiving party's written records; (c) rightfully obtained by the receiving party on a non-confidential basis from a third MASTER SERVICES AGREEMENT-8 56428.0002.12966312.1 F X 11BIT_I\ R AGE j Oa& n a � s party; or (d) independently developed by the receiving party without reliance on the disclosing party's Confidential Information. 8.2 Nondisclosure and Nonuse. 8.2.1 The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations under this Agreement. Further, the receiving party shall not, without the disclosing party's prior written permission use Confidential Information for purposes other than internal evaluation for so long as the Confidential Information must be maintained confidential, or analyze, disassemble for reverse engineering, or otherwise attempt to identify the intrinsic nature of any of the disclosing party's Confidential Information. 8.2.2 Notwithstanding the foregoing, the receiving party may disclose Confidential Information to the limited extent required (i) 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 receiving party must first give written notice to the disclosing party and must make a reasonable effort to obtain a protective order; or (ii) to establish the receiving party's rights under this Agreement, including to make required court filings. 8.2.3 On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such.Confidential Information has been destroyed. 8.2.4 The parties' respective obligations of non-disclosure and non-use with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date of each disclosure of Confidential Information to the receiving party; 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 this Agreement for as long as such Confidential Information remains subject to trade secret protection under Law. 8.3 Breach; Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by a party of any of its obligations under this Section 8 would cause the non- breaching party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. MASTER SERVICES AGREEMENT-9 y � 56428,0002.12966312.1 r SECTION 9. STAFFING;WORK SITES; LAWS 9.1 Place and Condition of Work. Client shall provide LIV access to the sites where LIV is to perform the services as required in order for LIV to perform the services in a timely and efficient manner in accordance with and subject to the applicable security Laws. 9.2 Staffing. LIV is responsible for supplying its employees to perform the Services, and for supervising and directing those employees. LIV will ensure that its employees are reasonably competent and experienced to perform the Services, If, at any time during the performance of this Agreement Client finds that the performance of LIV's employees or subcontractors is unsatisfactory, Client may object to the assignment of such employee or subcontractor, and LIV shall assign another of its employees or subcontractors to perform the Services. 9.3 Compliance with Health, Safety, and Environmental Regulations. LIV and its employees will comply in all material respects with all applicable Laws in the performance of the Services, including those promulgated by the Client and by the Occupational Safety and Health Administration (OSHA). SECTION 10. INSURANCE. During the Term, LIV, at its cost and expense, shall purchase and maintain the insurance set forth in this Section 10. Coverage must be provided by companies qualified to do business in the state(s) in which the Services will be performed. 10.1 Workers' Compensation and Employers' Liability. Workers' Compensation insurance must be provided as required by all applicable state laws. Employers' Liability insurance must be provided in amounts of at least $100,000 each accident for bodily injury by accident; $500,000 policy limit for bodily injury by disease; and $100,000 for each employee for bodily injury by disease. 10.2 Commercial General Liability. LIV will obtain and maintain a Commercial General Liability (Occurrence) policy, which policy shall include coverage for premises and operations, products and completed operations, contractual liability, broad form property damage, and personal injury liability. The policy must have a combined single limit for bodily injury and property damage of $1,000,000 each occurrence; $1,000,000 for personal injury liability; and $2,000,000 general aggregate. 10.3 Insurance Certificate. Upon request, LIV will provide Client with a certificate evidencing the required insurance coverages. 10.4 Notice of Policy Changes. The insurance policies required under this section must all provide that they will not be terminated, cancelled, or allowed to expire without 30 days' prior written notice to the insured. If so notified, LIV will notify Client of the change, timely procure replacement coverage, and provide a replacement certificate to Client. MASTER SERVICES AGREEMENT-10 56428.0002.12966312.1 EXHIB r PAGE"LOB 'bk I p v SECTION 11. INDEMNIFICATION, 11.1 LIV's Indemnification Obligations. LIV shall indemnify, defend, and hold harmless Client and its officers, directors, employees, agents, successors and permitted assigns (each, a "Client Indemnitee") from and against all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") awarded against a Client Indemnitee in a final judgment and arising out of or resulting from any third party claim, suit, action or proceeding (each, a "Third-Party Action"): 11.1.1 For bodily injury, death, or damage to real or tangible, personal property resulting from LIV's willful,fraudulent, or negligent acts or omissions; or 11.1.2 That alleges that Vault or the Services, or any use of Vault or the Services in accordance with this Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets; provided that this Section 11.1.2 will not apply to the extent that the alleged infringement arises from: (a) use of Vault or the Services in combination with data, software, hardware, equipment, or technology not provided by LIV or authorized by LIV in writing; (b) modifications to Vault or the Services not made by LIV; or(c) Client Data. 11.2 Client's Liability. Client shall not be required to indemnify or hold LIV harmless against liabilities arising from this Agreement. However, as between Client and LIV, and to the extent permitted by law and Constitution of the State of Idaho and legally available funds, Client is responsible for and shall bear the risk of loss for, shall pay directly, and shall defend against any and all claims, liabilities, proceedings, actions, expenses, damages or losses arising under or related to: 11.2.1 Any Losses arising out of or related to Client's breach of any of Client's representations,warranties, or obligations under this Agreement; and 11.2.2 Any Losses awarded against LIV in a final judgment and arising out of or resulting from any Third-Party Action: (a) For bodily injury, death of any person or damage to real or tangible, personal property resulting from Client's grossly negligent or willful acts or omissions; (b) Resulting from any claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; or (c) Based on Client's or any Authorized User's (a) use of Vault or the Services in combination with data, software, hardware, equipment, or technology not provided by LIV or authorized by LIV in writing, or(b) modifications to Vault or the Services not made by LIV. 11.3 Indemnification Procedures. The party seeking indemnification under this Agreement must promptly notify the indemnifying party in writing of any Action and cooperate MASTER SERVICES AGREEMENT- 11 56428.0002.12966312.1 I 'a with the indemnifying party at the indemnifying party's sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend that Action, at the indemnifying party's sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemnified party without the indemnified party's prior written consent, .which shall not be unreasonably withheld or delayed. The indemnified party's failure to perform any obligations under this Section 11.3 will not relieve the indemnifying party of its obligations under this Section 11.3 unless, and then solely to the extent that, the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense. 11.4 Infringement Remedy. If a Third-Party Action that would entitle Client to indemnification under Section 11.1.2 is made or appears possible, Client shall permit LIV, at LIV's sole discretion, to (a) modify or replace Vault or the Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for Client to continue to use the item in question. If LIV determines that neither alternative is reasonably available, LIV may terminate this Agreement, either in its entirety or with respect to the affected component or part, effective immediately on written notice to Client. SECTION 11.1.2 AND THIS SECTION 11.4 SET FORTH CLIENT'S SOLE REMEDIES AND LIV'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIM THAT VAULT OR THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. LIV'S LIABILITY UNDER SECTION 11.1.2 AND THIS SECTION 11.4 IS SUBJECT TO THE LIABILITY LIMITS SET FORTH IN Section 12. SECTION 12. ASSUMPTION OF RISK; LIMITATION OF LIABILITY 12.1 Risks Inherent to Internet. Client acknowledges that: (a) the Internet is a worldwide network of computers; (b) communication on the Internet may not be secure; (c) the Internet is beyond LIV's control; and (d) LIV does not own, operate or manage the Internet. Client also acknowledges that there are inherent risks associated with using Vault and the Services, including the risk of breach of security, the risk of exposure to computer viruses and the risk of interception, distortion, or loss of communications. Client assumes the general risks arising from utilization of the internet knowingly and voluntarily. Without limiting the foregoing, Client hereby assumes the risk of, and LIV will have no responsibility or liability of any kind under this Agreement for: (1) errors in Vault or the Services resulting from misuse, negligence, revision, modification, or improper use of all or any part of Vault or the Services by any entity other than LIV or its authorized representatives, employees, contractors, or consultants; (2) Client's use of any version of Vault other than the then-current unmodified version provided to Client; (3) Client's failure to timely or correctly install any updates to Vault; (4) problems caused by connecting or failure to connect to the Internet; (5) failure to provide and maintain the technical and connectivity configurations for the use and operation of Vault that meet LIV's recommended requirements; (6) nonconformities resulting from or problems to or caused by non-LIV products or services; or (7) data or data input, output, accuracy, and MASTER SERVICES AGREEMENT-12 56428.0002.12966312.1 suitability, which will be deemed to be under Client's exclusive control. The assumption of risk stated in clause (1) of the preceding sentence will only apply if LIV has taken commercially reasonable steps to prevent and safeguard against the types of errors listed in that clause (1). 12.2 Exclusion of Certain Damages; Limitation of Liability. IN NO EVENT WILL LIV BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LIV WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. 12.3 Exceptions. The exclusions and limitations in Section 12.2 do not apply to: (a) damages or other liabilities arising out of or relating to a party's failure to comply with its obligations under Section 8 (Confidential Information); (b) damages or other liabilities arising out of or relating to a party's willful misconduct or intentional acts; (c) Third-Party Actions for death or bodily injury or damage to real or tangible personal property resulting from a party's willful or grossly negligent acts or omissions; and (d) a party's obligation to pay attorneys' fees and court costs in accordance with Section 14.5. SECTION 13. FORCE MAJEURE 13.1 Neither party will be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including (a) acts of God; (b) flood, fire or explosion; (c) war, invasion, riot or other civil unrest; (d) actions, embargoes or blockades in effect on or after the date of this Agreement; (e) national or regional emergency; (f) strikes, labor stoppages or slowdowns or other industrial disturbances; (g) compliance with any law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; (h) shortage of. adequate power or telecommunications or transportation facilities; or (i) any other event that is beyond the reasonable control of such party (each of the foregoing, a "Force Majeure Event"), 13.2 A party whose performance is affected by a Force Majeure Event must give notice to the other party, stating the period of time the occurrence is expected to continue and must use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. The non-affected party may terminate this Agreement or any affected SOW if such failure or delay continues for a period of 60 days or more and, if the non-affected party is the Client, receive a refund of any amounts paid to the LIV in advance for the affected Services. MASTER SERVICES AGREEMENT-13 56428.0002.12966312.1 t Unless this Agreement is terminated in accordance with this Section 13, the Term will be automatically extended by a period equal to the period of suspension. SECTION 14. MISCELLANEOUS 14.1 Notices. All notices permitted or required under this Agreement must be in writing and may be delivered (i) in person;with the date of notice being the date of personal delivery; (ii) by U.S. Mail, postage prepaid for certified or registered mail, return receipt requested, with the date of notice being the date of the postmark on the return receipt; (iii) by nationally recognized delivery service such as Federal Express, with the date of notice being the date of delivery as shown on the confirmation provided by the delivery service; (iv) by e-mail, with confirmation of sending of the e-mail and a copy of the e-mail dispatched the same day by one of the methods in clauses (ii) and (iii), with the date of notice being the date of the e-mail. Notices must be addressed to the following addresses, or such other address as one party shall provide the other parties: To LIV: Life Safety Inspection Vault LLC Attn.: Manager 146 East Chubbuck Road,Suite C Chubbuck, ID 83202 Phone: (208) 254-7718 E-mail: Cole.harding@livsafe.com To Client: City of Attn.: 14.2 Interpretation. Headings in this Agreement are for convenience only and will not affect its meaning. For purposes of this Agreement, (a) the words "include," "includes," and "including" will be deemed to be followed by the words "without limitation"; (b)the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. This Agreement must be construed simply according to its fair meaning and without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Each Registration Form, each SOW, and all exhibits other documents referred to in this Agreement must be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim in the body of this Agreement. 14.3 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by either party of MASTER SERVICES AGREEMENT-14 56428.0002.12966312.1 =.^XNR`_ ►_y�____ „ire ZZ i �31 . any default in performance by the other party, or any waiver by either party of any breach, or series of breaches, of any of the terms, covenants, or conditions of this Agreement will constitute a waiver of any subsequent breach of any such terms, covenants, or conditions. 14.4 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties will negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement will be consummated as originally contemplated to the greatest extent possible. 14.5 Choice of Law; Attorneys' Fees. The parties intend for this Agreement to be construed and enforced under the laws of the State of , except for its choice of law provisions. The parties specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. The prevailing party in any proceeding will be entitled to recover in any judgment its reasonable attorneys'fees as may be allowed by the court,together with such court costs and damages as may be provided by Law. 14.6 Assignment. Neither Client nor LIV may assign any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the other party's prior written consent, which consent. may not be unreasonably withheld, delayed, or conditioned. Any purported assignment or delegation in violation of this Section 14.6 is void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. 14.7 Export Regulation. Vault and the Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Client shall not, directly or indirectly,export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), before exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US. 14.8 US Government Rights. Each of the Documentation and the software components that constitute Vault and the Services is a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212.Accordingly, if Client is an agency of the US Government or any contractor therefor, Client only receives those MASTER SERVICES AGREEMENT- 15 56428.0002.12966312.1 r , o" rights with respect to Vault, the Services, and the Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and its contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors. 14.9 Entire Agreement. This Agreement, together with any other documents incorporated into this Agreement by reference, the Registration Form(s), and all SOW(s) constitutes the parties' sole and entire agreement with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. If there is any inconsistency between the statements made in the body of this Agreement, the Registration Forms(s), the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its exhibits; (ii) second, the applicable SOW; (iii) third, any Registration Form; and (iv) fourth, any other documents incorporated herein by reference. 14.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, all of which constitute one and the same Agreement. Delivery of an executed counterpart signature page of this Agreement by facsimile, electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement. The parties are signing this Agreement as of the Effective Date. LIFE SAFETY INSPECTION VAULT LLC, CITY OF an Idaho limited liability company a municipal corporation of the State of By: By: Name: Name: Title: Title: MASTER SERVICES AGREEMENT-16 56428.0002.12966312.1 i ', I` >c � . , ,.. _....' :17.,:rrs, 7: IA m n , a1 - E 4." t • a. r \ / I p _ va • % ti • L " F,• ; i ,. , ,.....e. �. D CD • a 0,11 . . , ' , --, J �� .. 14,.... Lca. l ' U> , Z v - ice, ( , s , i Co ,, t , t li_ O. I ..fli ,) , O t) a) C o C 0 E m a) Q. —O a) c a) al > > .o C `) Q. (D c - a) N a) c `�-• u) O a) o = N Q. .t0 O f6 U (•t c O vi .0 E i 2 `` .' O +r co O 'a as 1 N a) N O N >, a) u UCA (i ` U ��' C N � OOa — . N4) -0 = 0 3( ' U ) � OC a-a J Q -O U • Q 3 r'- ( i 'a - a O E 4 a))u in fl. c �O -p CA C +' a) bA C �) C ++ c '$� bA C CD C •C "5 .Q (U .. U) CC— v) v) •( a) a) .Ca) E O • E u o v a) '7 `0 :N u - co U) N c N L 0 Q- Q1 f/) u a) O Cl). � C 0 > C = O Vi C C. 0 0 OD io C 0 >> U , CI) L C C e I- - Q - r N M %1 '' i `' /- ,-,---'.' i1i, `I} f \16`, 0 J )]ofl �.• ; to, i _,' .hlt‘'.-41 r A (jam . A _ I U ail ;15i. � ', i� 1 S � - it i (1) 1 I I.. ---ice 8 1 A i 3 I i ' Ia U E to 0 U1 CC O o a •c p �b4C341111111111111) tn p V Q w -. N D f6 p > CO ® = >' � 0.. IliN U 4 -a rg L. E aL+ in kni k- ga (i1 E o n nil " r—-, u U U a�i -C �' / ci) >, a co O urroO - vI (0, z., U1 O ® N-- -13 ILI I- v, U �. U N M N L, Z E.' t a) A p. v !1 o p v, 0 C N 1. 1. .z p `I f o co c 1,c N p J F. E v1 ;IAE VI a) v) Q N LX-irrii:ti �c r ' -"2&.fIV:ei., tO a) U � N C v O - = C O A A ® cr6 Ill i ij Ca ca -Q A ' a E CI L (NO O N. • CO aU v H U n It 1 , i 1000000 ; h r 111111 1 _ I u C _€ S' a 5 " s I I a 3 ill t E a F ` 1 t3 r- w 42.1 0 C Milli 2 L N C L CC F i xpp i i i e i{ 0 C ; d € 3 1 I 5 1 , - U a) a s ';'i Q 'V I e i T .. S $ B $ E .> • — Y fm i x )g - E . a a U / aJ ce i E ' 1./ • n3 fa c ai O. E3o XI •va L • C _ 0..611 INC in a) C ,oc fa 1 r1' IC :0 P%/, O C w L 4-, a) Q) Cl) fJ a) E N' 8O 4- U 0 • a-+ 005... OL C fL Q- N O E F. E N (1 C i-+ ff3 f0 0 E ..c fa O 11 IA O U N I- - ix s_ L- C i Cif} V 7 etEl O C fYl li �0 In fL 0 L- ot u O S= RI T Cl) N f6 Q t (Q Z > }' CL 0 o 0 U C >, Illu u fII > _ Q fQ RI o @, Q fa ® O fcf) 6.,,, --- , I EEC ciiNT A f Gir �`.','Zi r ti:�_� L1` ,' •j. r, �� 0 d A U -D CO - .a."'a v= N N .Q � � C " O ✓ N .Q C .„7.1 0 N -C -1 N CX U L u = !0 O D. ' iil C.!. IL a, C (10) m u x :1 f:v - -.. )':,',.", : '1 . ` [1: i y - F r!' S 4 I ..44, asap,; . N 'O 4: 5&Nt .. I cif S •, l" �� T �-e,js•Agf.r.'j.-0l '4. w4 J � .0)� or a `0o 1 i a, L E G twin f° 1' c - a) v v m Q c ® '5 > .N . N w .a _2 E TO U + tail 2 .o E as 4.0 v 9 E a- .. m M U 11' a, an a, C as 1 V y L Q. E _.0 ' I+il 1 r 0 ES t,'tt O O E cs = 2 r R' d' ... I > a a, 113 A v a, Q .R4 li J co a O. E a -a7. O c . ll.- I 1` ® a Q O iS @ 0 C CI I IL ll.. .2, f�a p i 1 4 ; , 11 ,II . 1 ' t•4 \• II 1, I . - . I i !m" cn L J I 1 ari era ��i • 1 a, w o r I. (m' 6.C. L Imo-' S Li) J . >, v m m . I-n __- - oo a, U fD E ..0 11 i ' . I 4 \41.tailio 1 Lam, (O 4.4 C 16 a • CO 2 C Iiirigli U •N III N t _ �..`_ C �p N a) > a) = � O "� C O O L.. C. O0 O U O0 t 0• C• i 0 COO U) C =p c 10 a)a) J� . Q O N p vi N .N U U .� L w o 0 4.6 O 6J 0 0 N 0 a) L- pIii 'O c_ U Z p g 41 Qi 111 '4' Q O taA t z,y,,it,,_, ,_.v,,.,,:i;,(f., - • Rim 140 ail;, 4 ,fill 31 o 10 ,:,•4,,(1.,.9 i,r • ii): 2.' 0 •— 4-, . .' E 't7) oa .- • a) ,,_ > 4- a (a a) 4- . ,_ o LL,2 " > D , 4—' 0 *E O >, 4-, : M. r3 4' -C C Z' ' E 6, C. .-'. •``' D E u Z -- c E,_ ,_. cu 2 a) o 2 w E -o4- '2 t:_., 01 (7' 0 LL 4 -2 ,. IX a o ra (,) „, U D a. tin u Lu. E c w ij-m I f Li 11. — it Z ij.l. m5 - •-•.' a. i In 0 CCI 47- . ---._ "- ----.7-N. '-' !0 C..._ , \:-----." . Z , CI: ,_.. E ...) a) t Nmil: ww in a) -c? - ic•ii. cu. a) t_m c E Li C 0 CU Li y_ Ca •- at 6, a) a) > o 0 03 . ' -C a) a (f) > c I U CU co III o vi 0 E ° 01 ' N. CC, o, bo 4-, C. W Z • 4 g E _ •- ''sni i I,. i liolo 'Li D Z D' •Li., 74 tn. ce. ra.) L1J Z0, o_ a ..s ..-, 1 j . c.9 , (r,------,--t - II 11 /1 i, I i Etij . , y4 r- { 4r N9 N N 1 '3. ••- •t s'y}i of ' i ,...„ . 1. 1t 1,"‘ -:4c-H- FF .�.r ® • N -j - i N0 w U \ o 0 INC) • CI Billiil as \ Q U m. a al 5 T -, i P. '01 "a o CI r`...s.,... g A Q� .L - Q) I I ' CIO L !t) o ,- wow .O > C .- C Q N,,,.....s.L113 a) - a) - L INC) .t- ! . i : , . i , 1 I . ... , k.y. >, ilit i ! . flow 3:0 - , i - - -- .WI I I WI , i I lial, I . I , I ! 11 1 1 ! .. i 0 Z E E u u U a; 6 itC 4_ X tt/C S) Fi I -: Bri > ••?. 11 RI § a oo 42 t= m--.-i, e,_4 N in 0 6 ...I LO DJ 0? If) in > u-1 1-17:L....XHiBiT A ,..