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HomeMy WebLinkAboutKittitas equivant PSA 12082017 Final EQ Signed Rev. 06022016 1 of 15 PROFESSIONAL SERVICES AGREEMENT This Professional Services Agreement ("Agreement") is entered into as of the _2nd__ day of January___________, 2018____ ("Effective Date”) by and between CourtView Justice Solutions Inc. d/b/a , a Delaware corporation, with offices at 4825 Higbee AVE NW, Canton, OH 44718 (“”) and Kittitas County Prosecuting Attorney with offices at Kittitas County Courthouse, Ste. 213, 205 W. 5th, Ellensburg, WA (“CUSTOMER”), and describes the terms and conditions pursuant to which shall provide professional services to CUSTOMER. 1. SCOPE OF SERVICES will perform the professional services (“Services”) and deliver the deliverables (“Deliverables”) as described in the Scope of Services attached hereto as Exhibit A. 2. PLACE OF PERFORMANCE Unless otherwise provided in this Agreement, may perform the Services in whole or in part at place of business, CUSTOMER’s place of business, and/or such other locations as selects. 3. TERM This Agreement shall be effective as of the Effective Date and shall continue in full force and effect until June 30, 2019 or the Agreement has been terminated in accordance with this Agreement, whichever first occurs. 4. PRICE AND PAYMENT TERMS a. Payment is on a “time and materials” basis for labor expended and costs and expenses incurred, as described in Exhibit A. will use good faith efforts to complete the Services and deliver the Deliverables within the estimated price (“Estimated Price”) set forth in Exhibit B, but does not guarantee that the Services can be completed or the Deliverables can be delivered within the Estimated Price. b. CUSTOMER shall pay to for labor expended in performing the Services an amount computed by multiplying the applicable hourly billing rate set forth in Exhibit B by the number of hours worked. Fractional parts of an hour shall be payable on a prorated basis. c. In addition to paying for labor expended, CUSTOMER shall reimburse for the cost of all goods and materials purchased exclusively for use in performing the Services or which are incorporated into any Deliverable, as well as for all reasonable travel expenses and miscellaneous out -of-pocket expenses incurred in performing the Services. Such costs and expenses shall be subject to the administrative and overhead charge provided in Exhibit B. d. CUSTOMER shall have no obligation to pay more than the Estimated Price. shall have no obligation to provide labo r or incur costs or expenses having a Rev. 06022016 2 of 15 combined value more than the Estimated Price, even if the Services have not been completed or the Deliverables delivered, or the results desired by CUSTOMER have not been achieved. The parties may, by mutual written a greement, increase the Estimated Price. e. CUSTOMER shall make payment to according to the schedule and provisions of Exhibit B. shall have a lien upon and may retain or repossess any and all Deliverables if CUSTOMER does not make full payment to . f. Invoiced amounts are due and payable within 30 days from the date of the invoice. g. If CUSTOMER’s action or inaction results in non-receipt of payment by for the total amount of an invoice within fifteen (15) days of the due date of such invoice, interest compounded at the rate of one and one half percent (1.5%) per month, or the maximum rate permitted by law if lower, shall thereafter be added to all amou nts unpaid and outstanding. If CUSTOMER’s action or inaction results in non-receipt of payment by , shall have the right exercisable in sole discretion, in addition to its other rights and remedies, to cease further performance of the Services hereunder. h. Bill To Address. The invoice will be mailed to: Kittitas County Prosecuting Attorney’s Office Kittitas County Courthouse Ste. 213, 205 W. 5th Ellensburg, WA 98926 509-962-7520 5. RESOURCES TO BE PROVIDED BY CUSTOMER a. CUSTOMER will designate qualified CUSTOMER personnel or representatives to consult with on a regular basis in connection with the Services. CUSTOMER will furnish such documentation and other information as is reasonably necessary to perform the Services. b. CUSTOMER shall furnish access to CUSTOMER’s premises, and appropriate workspace for any personnel working at CUSTOMER’s premises, as necessary for performance of those portions of the Services to be performed at CUSTOMER’s premises. c. CUSTOMER shall provide, maintain, and make available to , at CUSTOMER’s expense and in a timely manner, the resources delineated above, and such other additional resources as may from time to time reasonably request in connection with ’s performance of the Services. Delays in the provision of these resources may result in delays in the performance of the Services, or an increase in the Price. 6. CONFIDENTIALITY Concurrently with the execution of this Agreement , the parties shall execute a Non- Rev. 06022016 3 of 15 Disclosure Agreement (“NDA”) in the form and content of Exhibit C attached hereto and incorporated by reference. The NDA is independent of this Agreement and shall survive the termination of this Agreement. Nothing in this Agreement or in any such NDA shall be deemed to restrict or prohibit from providing to others services and deliverables the same as or similar to the Services and Deliverables as described in the Agreement. 7. INTELLECTUAL PROPERTY a. As used herein, “Intellectual Property” shall mean inventions (whether or not patentable), works of authorship, trade secrets, techniques, know-how, ideas, concepts, algorithms, and other intellectual property incorporated into any Deliverable wh ether or not first created or developed by in providing the Services. b. CUSTOMER and shall each retain ownership of, and all right, title , and interest in and to, their respective pre-existing Intellectual Property. No license therein, whether express or implied, is granted by this Agreement or as a result of the Services performed hereunder. To the extent the parties wish to grant to the other rights or interests in pre - existing Intellectual Property, separate license agreements on mutu ally acceptable terms will be executed. c. grants to CUSTOMER a royalty-free, paid up, worldwide, perpetual, non - exclusive, non-transferable license to use any Intellectual Property incorporated into any Deliverable, solely for CUSTOMER’s use of that Deliverable for its internal business purposes. shall retain ownership of and unrestricted right to use any Intellectual Property derived in any fashion or manner hereunder, including from its pre-existing Intellectual Property. The Services performed and any Deliverables produced pursuant to this Agreement are not “works for hire.” 8. TAXES a. In no event whatsoever shall be liable for sales, use, business, gross receipts or any other tax that may be levied by any State or Federal Government entity against a contractor to such governmental entity other than taxes upon income earned by for the goods and/or services provided pursuant this Agreement. This exclusion of tax liability is also applicable to any goods and/or services that may be provided by under any later amendment hereto regardless of changes in legislation or policy. b. In the event a taxing authority conducts an audit of this Agreement and determines that an additional tax should have been imposed on the Services or Deliverables provided by to CUSTOMER (other than those taxes levied on ’s income), CUSTOMER shall reimburse for any such additional tax, including interest and penalties thereon. Similarly, if a taxing authority determines that a refund of tax is due as it relates to the Services or Deliverables provided by to CUSTOMER (except those taxes relating to ’s income), shall reimburse CUSTOMER such refund, including any interest paid thereon by the taxing authority. Rev. 06022016 4 of 15 9. TERMINATION FOR DEFAULT a. Either party may terminate this Agreement if (i) the other party fails to perform a material obligation of the Agreement and such failure remains uncured for a period of 30 days after receipt of notice from the non-breaching party specifying such failure, or (ii) a party ceases to conduct business, becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency which is not dismissed within 90 days or makes an assignment for the benefit of creditors. In addition, may terminate this Agreement effective immediately upon written notice to CUSTOMER if CUSTOMER fails to make any payment in full as and when due hereunder. b. Upon termination for whatever reason and regardless of the nature of the default (if any), CUSTOMER agrees to pay in full for all goods and/or services provided to, and accepted by, CUSTOMER under this Agreement and/or any task order hereto as of the effective date of the Agreement within 30 days of the invoice date. 10. INDEMNIFICATION agrees to defend, indemnify, and hold harmless CUSTOMER from and against third party claims, judgments, and awards, as well as the reasonable costs related thereto (hereinafter collectively referred to as "Damages") to the ext ent such Damages result from the gross negligence or willful acts or omissions of occurring in the performance of its obligations hereunder; provided, such defense and payments are conditioned on the following: (1) that shall be notified in writing by CUSTOMER within 5 business days following its receipt of any such claim, and (2) that shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise . shall not be responsible for any Damages or liability resulting, in whole or in part, from the negligence or willful misconduct of CUSTOMER its employees, consultants or agents. 11. LIMITED WARRANTY a. warrants that the Services provided under this Agreement shall be performed with that degree of skill and judgment normally exercised by recognized professional firms performing the same or substantially similar services . In the event of any breach of the foregoing warranty, provided CUSTOMER has delivered to timely notice of such breach as hereinafter required, shall, at its own expense, at its discretion either (1) re-perform the non-conforming Services and correct the non- conforming Deliverables to conform to this standard, or (2) refund to CUSTOMER that portion of the Price received by attributable to the non-conforming Services and/or Deliverables. No warranty claim shall be effective unless CUSTOMER has delivered to written notice specifying in detail the non-conformities within 90 days after performance of the non-conforming Services or tender of the non - conforming Deliverables. The remedy set forth in this section 11(a) is the sole and exclusive remedy for breach of the foregoing warranty. b. SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES, OR WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR Rev. 06022016 5 of 15 PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE, ANY WARRANT Y OF ERROR-FREE PERFORMANCE, OR ANY WARRANTY OF THIRD PARTY PRODUCTS, OR FUNCTIONALITY OF THE CUSTOMER’S HARDWARE, SOFTWARE, FIRMWARE, OR COMPUTER SYSTEMS. c. CUSTOMER represents and warrants to that CUSTOMER has the right to use and furnish to for use in connection with this Agreement any information, specifications, data or Intellectual Property that CUSTOMER has provided or will provide to in order for to perform the Services and to create the Deliverables identified in Exhibit A. 12. LIMITATION OF LIABILITY a. CUSTOMER hereby agrees that total liability to CUSTOMER for any and all liabilities, claims or damages arising out of or relating to this Agreement, regardless of cause or the legal theory asserted, including but not limited to breach of contract or warranty, tort, strict liability, statutory liability or otherwise, shall not, in the aggregate, exceed fees paid to during the previous 12-month period. The parties acknowledge and agree to the foregoing liability risk allocation . Any claim by CUSTOMER against relating to this Agreement must be made in writing and presented to within six (6) months after the date on which this Agreement expires or is otherwise terminated. b. In no event shall either or CUSTOMER be liable to the other for any punitive, exemplary, special, indirect, incidental or consequential damages , including, but not limited to, lost profits, lost business opportunities, loss of use or equipment down ti me, and loss of or corruption of data, arising out of or relating to this Agreement, regardless of the legal theory under which such damages are sought, and even if the parties have been advised of the possibility of such damages or loss, and notwithstanding any failure of essential purpose of any limited remedy. 13. NOTICES f. Any communication or notice permitted under the terms of this Agreement or required by law must be in writing, and will be deemed given and effective: (i) when delivered personally with proof of receipt, (ii) when sent by e-mail, (iii) when delivered by overnight express, or (iv) three (3) days after the postmark date when mailed by certified or registered mail, postage prepaid, return receipt requested and addressed to a party at its address for notices. Each party's address for notices is stated below. Such address may be changed by a notice delivered to the other party in accordance with the provisions of this Section. Customer Prosecuting Attorney General Manager Kittitas County Prosecuting Attorney’s Office Ste. 213, 205 W. 5th 4825 Higbee Avenue NW Ellensburg, WA 98926 Suite 101 Canton, Ohio 44718 Tel. No. 509-962-7520 Tel. No. 330.470.4280 Rev. 06022016 6 of 15 Fax No. 509-962-7022ENTER] Fax No. 330.494.2483 Copy to: Copy to: Office Administrator Contract Manager Kittitas County Prosecuting Attorney’s Office Ste. 213, 205 W. 5th 4825 Higbee Avenue NW Ellensburg, WA 98926 Suite 101 Kittitas County Prosecuting Attorney’s Office Canton, Ohio 44718 14. RIGHTS AND REMEDIES NOT EXCLUSIVE Unless otherwise expressly provided herein, no right or remedy of a party expressed herein shall be deemed exclusive, but shall be cumulative with, and not in substitution for, any other right or remedy of that party. 15. SEVERABILITY If any term, condition or provision in this Agreement i s held to be illegal, invalid or unenforceable, in whole or in part, the parties shall work in good faith to agree such modification that will to the maximum extent possible preserve the original intention of said term, condition, or provision. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law. 16. ASSIGNMENT Neither party may sell, assign, transfer, or otherwise convey any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other party, except for the sale of assets, merger, or consolidation. 17. SUBCONTRACTORS may engage the services of independent contractors to assist in the performance of its duties hereunder. 18. GOVERNING LAW; VENUE This Agreement shall be governed by and construed under the laws of the State of Delaware, without regard to its laws relating to conflict or choice of laws. 19. INTERPRETATION The captions and headings used in this Agreement are solely for the convenience of the parties, and shall not be used in the interpretation of the text of this Agreement . Each party has read and agreed to the specific language of this Agreement; therefore no conflict, ambiguity, or doubtful interpretation shall be construed against the drafter. Rev. 06022016 7 of 15 20. DISPUTES The parties will seek a fair and prompt negotiated resolution within ten (10) days of the initial notice of the dispute (“Dispute”). If the Dispute has not been resolved after such time, the parties will escalate the issue to more senior levels. If the parties are unable to resolve any dispute at the senior management level, then any controversy, claim or Dispute arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect . Before commencing any such arbitration, the parties agree to enter into negotiations to resolve the Dispute. If the parties are unable to resolve the Dispute by good faith negotiation, either party may refer the matter to arbitration. The arbitrator(s) shall be bound to follow the provisions of this Agreement in resolving the Dispute, and may not award any damages excluded by this Agreement. The decision of the arbitrator(s) shall be final and binding on the parties, and any award of the arbitrator(s) may be entered or en forced in any court of competent jurisdiction. The prevailing party will be entitled to recover its reasonable attorneys' fees and costs, in addition to any other relief ordered by the arbitrator(s). Such fees and costs will include those incurred in con nection with the enforcement of any resulting judgment or order, and any post judgment order will provide for the right to receive such attorneys' fees and costs. Any request for arbitration of a claim by either party against the other relating to this Agreement must be filed no later than six (6) months after the date on which concludes performance under this Agreement. Nothing herein shall prevent either party from seeking a preliminary or permanent injunction to preserve the status quo or prevent irreparable harm during the arbitration process. 21. MULTIPLE COPIES OR COUNTERPARTS OF AGREEMENT This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one a nd the same instrument. This Agreement shall not be effective until the execution and delivery between each of the parties of at least one set of the counterparts. 22. FORCE MAJEURE Neither party shall be liable for any failure of or delay in performance of its obligations (except for payment obligations) under this Agreement to the extent such failure or delay is due to acts of God, acts of a public enemy, fires, floods, power outages, wars, civil disturbances, epidemics, pandemics, sabotage, terrorism, accidents, insurrections, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees' demands are reasonable and/or within the party's power to satisfy), failure of common carriers, Internet Service Providers, or other communication devices, acts of cyber criminals, terrorists or other criminals, acts of any governmental body (whether civil or military, foreign or domestic), failure or delay of third parties or governmental bodies from whom a party is obtainin g or must obtain approvals, authorizations, licenses, franchises or permits, inability to obtain labor, materials, power, equipment, or transportation, or other circumstances beyond its reasonable control (collectively referred to herein as "Force Majeure Occurrences"). Any such delays shall not be a breach of or failure to perform this Agreement or any part thereof and the date on which the obligations hereunder are due to be fulfilled shall be extended for a period equal to the time lost as a result of such delays. Neither party shall be liable to the Rev. 06022016 8 of 15 other for any liability claims, damages , or other loss caused by or resulting from a Force Majeure Occurrence. 23. RELATIONSHIP OF PARTIES is an independent contractor in all respects with regard to this Agreement. Nothing contained in this Agreement shall be deemed or construed to create a partnership, joint venture, agency, or other relationship other than that of contractor and customer. 24. THIRD PARTY BENEFICIARIES This Agreement does not create, and shall not be construed as creating, any rights or interests enforceable by any person not a party to this Agreement. 25. WAIVER OR MODIFICATION Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective . Delay or failure by either party to exercise any right hereunder, or to enforce any provision of this Agreement will not be considered a waiver thereof and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action . No single waiver will constitute a continuing or subsequent waiver, nor shall a waiver of any one provision of the Agreement be deemed to be a waiver of any other pro vision. 26. ENTIRE AGREEMENT; CONFLICTING PROVISIONS The Agreement and any schedules and exhibits thereto contain the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes and replaces any and all pri or or contemporaneous proposals, discussions, agreements, CUSTOMER issued purchase order or document of like intent or purpose, understandings, commitments, representations of any kind, whether oral or written, relating to the subject matter hereof or the Services to be provided hereunder . It is expressly agreed that if CUSTOMER issues a purchase order or other document for the services provided under this Agreement, such instrument will be deemed for CUSTOMER’s internal use only, and no terms, conditions, or provisions contained therein shall have any effect on the rights, duties or obligations of the parties under, or in any way modify this Agreement, regardless of any failure by to object to such terms, conditions or provisions. In the event that any provision in any attachment conflicts with any provision of this Agreement, then this Agreement shall be deemed to control, and such conflicting provision to the extent it conflicts shall be deemed removed and replaced with the governing provision herein. 27. SURVIVAL All provisions of this Agreement, which by their nature should survive termination of this Agreement, will so survive. Rev. 06022016 9 of 15 28. AUTHORIZATION Each of the parties represents and warrants that the Agreement is a valid and binding obligation enforceable against it and that the representative executing the Agreement is duly authorized and empowered to sign the Agreement. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have entered into this Agreement as of the Effective Date. CUSTOMER By: _______________________________ By: _______________________________ Title: _____________________________ Title: ______________________________ Date: _____________________________ Date: ______________________________ Ratification of contracts required by Kittitas County Board of Commissioners: Ratification of contract demonstrated by signatures obtained below: ATTEST: SIGNED/DATED:________________ _________________________` ______________________________ Julie Kjorsvik, Clerk for Board Laura Osiadacz, Chairman ______________________________ Obie O’Brien, Vice-Chairman _______________________________ Paul Jewell, Board Member Jeffrey Harmon General Manager January 19, 2018 Rev. 06022016 10 of 15 Exhibit A SCOPE OF SERVICES Professional Services will be performed pursuant to the Statement of Work which is attached to this Agreement and incorporated into this Exhibit A. Rev. 06022016 11 of 15 Exhibit B PRICE AND PAYMENT Future Services Rates The Rates noted above in this Agreement are discounted to reflect a total project cost. Future rates for services beyond the current term will be at then current rate, unless otherwise agreed by the parties. reserves the right to adjust these rates without prior notification to the CUSTOMER. All rates quoted do not include travel expenses. The CUSTOMER will be responsible for all travel expenses. Rev. 06022016 12 of 15 EXHIBIT C NON-DISCLOSURE AGREEMENT This Nondisclosure Agreement (“NDA”) is entered into as of the 2nd___ day of January___________, 2018__ ("Effective Date”) by and between CourtView Justice Solutions Inc. d/b/a a Delaware corporation, with offices at 4825 Higbee Ave NW, Canton, OH 44718 (“”), and Kittitas County Prosecuting Attorney’s Office with offices at Kittitas County Courthouse, Ste. 213, 205 W. 5th, Ellensburg, WA 98926 (“CUSTOMER”), and describes the terms and conditions pursuant to which and CUSTOMER will share confidential information. WHEREAS, the parties have entered into a Professional Services Agreement and each party (the “Disclosing Party”) desires to disclose certain confidential and proprietary information to the other party (the “Receiving Party”) in connection therewith. NOW, THEREFORE, in consideration of the mutual terms, conditions and covenants set forth herein, the parties agree as follows: 1. Confidential Information. For purposes of this NDA, “Confidential Information” means inventions, ideas, intellectual property, formulae, patterns, compilations, programs, methods, techniques, processes, data, designs, algorithms, source code, object code, research plans, business plans, financial forecasts, business opportunities, agreements, vendor lists, pricing lists, customer lists, personnel lists, financial statements, and similar information, whether written or oral, that derives independent economic value from not being generally known to the public and is the subject of reasonable efforts to maintain its secrecy. Notwithstanding the foregoing, Confidential Information shall not include information that (a) is or becomes generally available to the public other than as a result of disclosure thereof by the Receiving Party, (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party) which is not prohibited from disclosing such Confidential Information to the Receiving Party by a legal, contractual or fiduciary obl igation to the Disclosing Party, or (c) Receiving Party can demonstrate is independently developed by Receiving Party without use, directly or indirectly, of any Confidential Information. Disclosing Party shall designate Confidential Information as such prior to, during or immediately after disclosure. Disclosing Party shall mark any physical materials as Confidential Information and shall identify any oral information as Confidential Information at the time of disclosure. The foregoing notwithstanding, the terms of this NDA also pertain to information not otherwise identified as Confidential Information if Receiving Party otherwise knows or should reasonably be expected to know of its confidential nature. 2. Restrictions on Use and Disclosure. Confidential Information furnished directly or indirectly by the Disclosing Party to the Receiving Party or to any directors, officers, employees, agents, attorneys, accountants, advisors, affiliates, and other representatives and potential financing sources of the Receiving Party (collectively, “Representatives”), whether obtained by or furnished to the Receiving Party prior, contemporaneously , or subsequent to the date hereof, shall be kept confidential and shall not, without the Disclosing Party's express prior written consent, be disclosed by the Receiving Party or its Representatives in any manner whatsoever, in whole or in part, and shall not be used by the Receiving Party or its Representatives other than in connection with the Proposed Transaction. Without limitation of the foregoing, each party ag rees that it will not use the Confidential Information independently or with third parties, directly or indirectly, to solicit the Rev. 06022016 13 of 15 business of any person or entity, to provide services to any person or entity, or otherwise to compete with the Disclosing Party. The obligations of this paragraph shall survive for five (5) years from date that Disclosing Party first discloses such Confidential Information to the Receiving Party. 3. Standard of Care. Each party agrees to reveal the Confidential Information only to its Representatives who need to know the Confidential Information for the purpose of the Proposed Transaction, who are informed of the confidential nature of the Confidential Information and who agree to act in accordance with the terms and conditio ns of this NDA. The Receiving Party shall be responsible for any breach of this NDA by its Representatives. Each party agrees to take all reasonable precautions necessary to safeguard the Confidential Information from disclosure to any person or entity other than its Representatives. The parties agree that no disclosure of Confidential Information under this NDA shall constitute a waiver of any applicable privilege, including but not limited to the privileges pertaining to attorney-client communications and attorney work product. Each party also agrees not to use or disclose any Confidential Information in violation of securities or insider trading laws and to take reasonable steps to ensure compliance by its employees and agents. The Receiving Party shall be responsible for compliance with laws pertaining to the export of the Confidential Information. 4. Term. This NDA shall be effective as of the date written in the introductory paragraph hereof and shall continue until the earliest of (a) the termination of the Proposed Transaction, (b) notice of termination by one party to the other, or (c) the one-year anniversary hereof. Any termination or expiration of this NDA shall be subject to the survival provision below. 5. Records. Each party to this NDA shall keep a written record of Confidential Information furnished to it by the Disclosing Party and of the location of such Confidential Information . All copies of the Confidential Information shall be returned to the Disclosing Party immediately (a) in the event the Proposed Transaction is not consummated, (b) upon the termination of this NDA, or (c) at any other time upon the Disclosing Party’s request. 6. No Ownership or Warranty. Nothing contained in this NDA shall be construed as granting any ownership rights, by license or otherwise, in any Confidential Information disclosed by a party . The Receiving Party acknowledges that the Disclosing Party makes no express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the Receiving Party agrees that the Disclosing Party shall have no liability hereunder with respect to the Confidential Information, or errors or omissions therein. The Receiving Party agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and shall be entitled to rely solely on the representations and warranties, if any, made to it by the Disclosing Party in any final written agreement regarding the Proposed Transaction. 7. Compelled Disclosure. Each Party to this NDA acknowledges the competitive value and confidential nature of the Confidential Information and that use of such Confidential Information by Receiving Party or disclosure thereof to any third party could be competitive ly harmful to the Disclosing Party. In the event the Receiving Party or any party to which it transmits the Confidential Information pursuant to this NDA becomes legally compelled to disclose any of the Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt notice so that the Disclosing Party may seek a protective order or other appropriate remedy . In the event that such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by written opinion of counsel is legally required, and the Receiving Party shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information. Rev. 06022016 14 of 15 8. Remedies. Each party to this NDA acknowledges and agrees that, given the nature of the Confidential Information and the competitive damage that would result if the Confidential Information is used by the Receiving Party other than as is p rovided for herein or disclosed to any third party, money damages would not be a sufficient remedy for any breach of this NDA, and that, in addition to all other remedies, the aggrieved party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. The parties further agree to waive any requirement for the securing or posting of any bond in connection with such remedy. 9. Miscellaneous. 9.1. The obligations assumed by the parties pursuant to paragraphs 2, 3, 6, 7, 8, 9.4, 9.8 and 9.9 hereof shall survive the expiration or earlier termination of this NDA. 9.2. In the event suit is brought to enforce or interpret any part of this NDA, the prevailing party shall be entitled to recover as an element of the costs of suit, and not as damages, reasonable attorneys’ fees to be fixed by the Court. 9.3. No provision of this NDA may be waived unless in writing, signed by all of the parties hereto . Waiver of any one provision of this NDA shall not be deemed to be a continuing waiver or a waiver of any other provision. This NDA may be modified or amended only by a written agreement executed by all of the parties hereto. 9.4. This NDA shall be governed and construed in accordance with the laws of the State of Delaware, without regard to choice of law principles. 9.5. Neither this NDA nor any duties or obligations hereunder shall be assigned or transferred by a party without the prior written approval of the other party, which approval shall not be unreasonably conditioned, withheld, or denied. 9.6. All notices under this NDA will be in writing and will be delivered by personal service, facsimile or certified mail, postage prepaid, or overnight courier to such address as may be designated from time to time by the relevant party, which initially shall be the address set forth on the signature page to this NDA. Any notice sent by certified mail will be deemed to have been given five (5) days after the date on which it is mailed. All other notices will be deemed given when received. No objection may be made to the manner of delivery of any notice actually received in writing by an authorized agent of a party. 9.7. If any provision of this NDA is held by a court of competent jurisdiction to be invalid, void , or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any manner. 9.8 Neither party shall make any public announcement concern ing this NDA or any Agreement between the parties without the advance approval of the other party. Notwithstanding the foregoing, if the parties are unable to agree on a mutually acceptable announcement, a party may nevertheless issue a press release if it is advised by counsel that such release is necessary to comply with applicable securities or similar laws. 9.9 Each party represents and warrants that the person signing on its behalf has the requisite authority to bind the respective party to the terms and conditions contained herein. Rev. 06022016 15 of 15 9.10. This NDA contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior discussions, representations, and understandings, whether oral or written. 9.11 To the extent that the CUSTOMER is a public entity covered by the Washington State Public Disclosure Act (PDA), there is not an ability to use Delaware Law and this agreement as a shield to non-compliance with that law. However, the PDA does have protections for proprietary and confidential information, which protections can/must be sought through court order. Should any public disclosure request received by the CUSTOMER appear to require more than providing our records, and might infringe upon the confidential or proprietary information of equivant, the CUSTOMER will immediately notify equivant of such concern, such that equivant can take legal action under the PDA to secure protections of such information. The CUSTOMER shall provide any assistance authorized by the PDA in seeking such judicial protection of information. IN WITNESS WHEREOF, the parties have caused this NDA to be duly executed and delivered as of the day and year set forth above. CUSTOMER By: _______________________________ By: ___________________________ Title: _______________________________ Title: ___________________________ Date: _______________________________ Date: ___________________________ Jeffrey Harmon General Manager January 19, 2018