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HomeMy WebLinkAboutKittitas County (MSA) (FINAL - READY FOR EXECUTION) (2) Master Solutions Agreement 1 This Master Solutions Agreement (the "Agreement"), dated as of the last date last signed below (the "Effective Date"), is between Trace3, LLC, a California limited liability company ("Trace3"), and the entity named as "Client" below ("Client" or “County”). Trace3 and Client are each referred to herein individually as a "Party" and collectively as the "Parties." Summary: Client desires Trace3 to provide to Client certain information technology consulting services (the "Services"), hardware, and/or software products (the "Products" and together with the Services, the "Deliverables") as described in this Agreement and one or more Purchase Orders or SOWs (each as defined below) issued hereunder (each, a “Project”). Agreement: This Agreement consists of this signature page, and the following Annexes, which are incorporated into this Agreement: Annex A: MSA General Terms Contact Information: Client Trace3 General Contacts Kittitas County 205 W. 5th Ave. Ste. 13 Ellensburg, WA 98926 Attention: IT Department, Infrastructure Manager, Bill Davis E-mail: Bill.davis@co.kittitas.wa.us (509) 933-8293 Trace3, LLC 7505 Irvine Center Drive, Suite 100 Irvine, CA 92618 Attention: Legal Department Fax: (949) 333-2400 E-mail: legal@trace3.com Signature: Client and Trace3 hereby agree to the terms of this Agreement by signing below: KITTITAS COUNTY TRACE3, LLC By:____________________________________ Name:______________________________ Title:_______________________________ Date:_______________________________ By:____________________________________ Name:______________________________ Title:_______________________________ Date:______________________________ Master Solutions Agreement A-1 Revised August 2022 MSA Annex A – MSA General Terms 1. DEFINITIONS (a) "Confidential Information" means confidential and/or proprietary information related to technology and business activities, including, but not limited to, business outlooks, revenue, pricing, trade secrets, computer hardware, programs and software (including, but not limited to, code, software output, screen displays, file hierarchies, graphics and user interfaces), formulas, data, inventions, techniques, product designs, strategies, third party confidential information, and all other information that is clearly marked or identified as confidential or proprietary when disclosed to the receiving Party or could be reasonably understood by the receiving Party to be confidential or proprietary. (b) “County Data” means all data, records, and information, in any form, that is created, collected, received, maintained, processed, stored, or transmitted by Trace3 or its Subcontractors on behalf of, or provided by or on behalf of, the County in connection with this Agreement, including any County Confidential Information. (c) "Deliverable Specifications" means the requirements (including levels of accuracy, quality, completeness, timeliness, responsiveness, resource efficiency and productivity) set forth in a SOW or Purchase Order and used to measure the completeness or adequacy of the Deliverables. (d) "Fees" means amounts payable by Client to Trace3 for the provision of the Deliverables. (e) "Invoice" means a written invoice submitted by Trace3 to Client for the payment of Fees. (f) “Personnel” means the employees, agents, and representatives of Trace3 who perform work or provide Deliverables under this Agreement, and, where the context requires, Subcontractor Personnel. (g) "Purchase Order" means a written order to purchase Deliverables, issued and signed by Client and accepted by Trace3 in its sole discretion. (h) "SOW" means a mutually agreed upon written Statement of Work signed by the Parties, which authorizes and specifies the pricing terms, technical specifications and performance requirements for Trace3 to provide and deliver the Deliverables, as may be modified from time to time by way of the project change process described in Section 3 (Project Change Process). (i) “Subcontractor” means any third party to whom Trace3 delegates any of its duties or obligations under this Agreement or any SOW or Purchase Order, at any tier. (j) “Subcontractor Personnel” means the employees, agents, and representatives of a Subcontractor. 2. DELIVERABLES (a) Scope of Deliverables. Trace3 will provide certain Deliverables to Client in accordance with the terms and conditions of this Agreement and one or more SOWs. Master Solutions Agreement A-2 Revised August 2022 MSA (b) Statements of Work. (i) Except as otherwise provided in this Agreement or agreed by the Parties, Trace3 will not provide any Services unless and until authorized through a SOW signed by both Parties. (ii) Each SOW will be deemed to incorporate all of the terms and conditions of this Agreement, and will contain, as applicable, a description of: (1) Deliverables, including business requirements and technical specifications; (2) schedule for provision of the Deliverables; (3) assumptions and each Party's responsibilities; (4) Fees; and (5) Deliverable Specifications. (c) Required Resources and Compatibility. Except as expressly provided in a SOW, Trace3 will be responsible for providing the personnel, equipment, technical knowledge and other resources necessary to provide the Deliverables. Client will have the right to reasonably approve or reject personnel working on a SOW; provided, that such rejection is consistent with applicable law. (d) Deliverable Specifications. (i) Trace3 will provide Deliverables which conform to the Deliverable Specifications. (ii) If Trace3 fails to meet the Deliverable Specifications due to the Client's fault, the Parties will discuss and negotiate in good faith for additional compensation, if any, for the additional time and expense incurred by Trace3 to meet the Deliverable Specifications. (e) Subcontractors. Trace3 may delegate to Subcontractors such duties under this Agreement and any SOW as Trace3 deems necessary for the successful provision of the Deliverables. Trace3 shall not subcontract any material portion of the Services or permit any Subcontractor to access County Data, County systems, County facilities, or County confidential information without County's prior written approval, such approval not to be unreasonably withheld, conditioned, or delayed. Trace3 shall identify each proposed Subcontractor, the services to be performed, work location, and whether the Subcontractor will access County Data or systems. Trace3 shall ensure that each approved Subcontractor is bound in writing by obligations at least as protective of County as those in this Agreement, including obligations relating to confidentiality, data protection, information security, public records and records retention, audit, accessibility, intellectual property, insurance, and indemnification. Trace3 remains fully responsible for all acts, omissions, performance, security, and compliance of its Subcontractors at every tier as if they were acts or omissions of Trace3. County approval of a Subcontractor does not relieve Trace3 of any obligation or liability under this Agreement. Trace3 shall promptly notify County of any proposed change to an approved Subcontractor or subcontracted scope. Trace3 will be responsible to Client for the completion of all work by Subcontractors and full payment of all charges by such Subcontractors. Master Solutions Agreement A-3 Revised August 2022 MSA (f) Products. (i) Purchase Orders. (1) Client may purchase Products under this Agreement through the issuance of Purchase Orders to Trace3. Such Purchase Orders will be deemed to incorporate all of the terms and conditions of this Agreement. (2) Each Purchase Order for Products will reference this Agreement and contain the Deliverable Specifications for such Products (including, without limitation, the type of Products ordered, quantity, price, shipping instructions and requested delivery date). Trace3 will not ship any Products without prior receipt of a Purchase Order. (3) Purchase Orders for Products will be subject to written acceptance by Trace3 and delivery schedules will be established in accordance with Product availability and Client's credit status. (ii) Delivery; Title & Risk of Loss. Delivery of Products is “F.O.B. Destination, freight and insurance prepaid and added.” Title and risk of loss or damage for Products will pass to Client on delivery of such Products by Trace3 or a Products distributor or manufacturer, as applicable, to Client's delivery address. Products are deemed accepted by Client for risk of loss purposes upon actual receipt of delivery by Client at Client's delivery address. Client will reimburse Trace3 for all costs relating to the shipment and insurance of any Products. Trace3 will make reasonable efforts, but will not be obligated, to deliver the Products in accordance with Client's shipping instructions and choice of carrier. Trace3 will make commercially reasonable efforts to deliver all Products on or before the due date as specified in any Purchase Order for such Products. Trace3 will make reasonable efforts to expedite delivery of any "ASAP orders." (iii) Product Prices. Quoted prices for Products may be changed by Trace3 upon 30 days prior written notice to Client (the "Notice Period"). Purchase Orders received by Trace3 (a) before commencement of the Notice Period and which are not shipped prior to the expiration of the Notice Period, and (b) during the Notice Period which specify a delivery date within 30 days following the expiration of the Notice Period, will be invoiced at the previously existing lower price for the Products. (iv) Change Requests, Cancellation and Rescheduling. Any and all changes to previously submitted Purchase Orders sought to be made by Client must be provided in writing from Client and are subject to approval by Trace3. (1) Purchase Orders for Products (including, but not limited to, Products shipped directly from third party OEMs or Distributors) and software may not be cancelled or returned after Trace3 has shipped a product or placed a corresponding order to an applicable third party OEM or Distributor, except upon pre- authorization by Trace3. (2) If Client is permitted by Trace3 to cancel all or any portion of a Purchase Order, it will pay a restocking charge equal to the amount of any restocking charge imposed by the applicable manufacturer or distributor, if any. (3) If Trace3 is unable to meet the requested delivery schedule, it will provide notice to Client as soon as it is reasonably aware of such situation. Master Solutions Agreement A-4 Revised August 2022 MSA (4) No Products may be returned except in the event Client and Trace3 mutually agree in writing. 3. PROJECT CHANGE PROCESS (a) Project Change Process. Unless otherwise mutually agreed by the Parties, any change or modification of a Project, a phase of the Project (a "Project Phase") or the Deliverable Specifications set forth in any SOW or Purchase Order will be coordinated by the Parties in accordance with the procedures described below (the "Project Change Process"). (b) Change Requests. Either Party may initiate requests to change or modify a Project, a Project Phase or the Deliverable Specifications set forth in any SOW or Purchase Order (each, a "Change Request"). The Party requesting a Change Request will submit a written Change Request to the other Party in a clear and concise manner (each, a “Change Request Form”). Upon execution of a mutually acceptable Change Request Form, and receipt thereof by both Parties, the obligations of the Parties with respect to such Change Request will be incorporated under this Agreement and the applicable SOW or Purchase Order. (c) Suspension of Services. If (i) Trace3 is unable provide the Deliverables due to the Client's action or inaction, or (ii) any amount owing by Client under this Agreement is 30 or more days overdue, Trace3 may, in its discretion and without any liability to Client, suspend provision of the Deliverables to Client. 4. TERM OF AGREEMENT This Agreement will begin on the Effective Date and will remain in effect until terminated in accordance with Section 14 (Termination). 5. INSPECTION AND ACCEPTANCE (a) Products. Client may conduct inspection and acceptance testing to establish conformance to Deliverable Specifications of delivered Products. If any Products fail such acceptance tests, Client will provide Trace3 with a written notice of the defect which will describe the portion of such tests which the Products failed. Upon Client’s request, Trace3 will coordinate the examination, repair or replacement of such defective Products by the applicable Product distributor or manufacturer at Client's designated location (at no charge to Client if the Products do not meet the Deliverable Specifications). Acceptance will be deemed to have occurred if Client does not provide notice of non-compliance with the Deliverable Specifications within 15 business days following the date of Product delivery. (b) Services. (i) Completion Certificate. Unless otherwise mutually agreed by the Parties, Trace3 will present Client with a completion certificate (a "Completion Certificate") upon the completion of the provision of all of the Services of any Project or Project Phase, as applicable. If Client reasonably determines that Trace3 has completed provision of the Services described in the Completion Certificate in substantial conformance with the applicable Service Specifications, Client will sign the Completion Certificate acknowledging acceptance of the completed Services and will return the signed Completion Certificate to Trace3 within fifteen business days from the date of Client's receipt of the Completion Certificate. Master Solutions Agreement A-5 Revised August 2022 MSA (ii) Non-Completion Notice. If Client reasonably believes Trace3 has not completed provision of the Services described in the Completion Certificate in substantial conformance with the applicable Deliverable Specifications, Client will notify Trace3 in writing of its specific reasons for rejecting completion and delivery of the Services within five business days from Client's receipt of the Completion Certificate (a "Non- Completion Notice"). Trace3 will promptly address and remedy Client's issues described in the Non- Completion Notice and will re-submit the Completion Certificate for Client's signature. (iii) Absent (i) Client's timely delivery of either a signed Completion Certificate or a Non-Completion Notice within the period set forth in Section 5(b)(i), and (ii) Client's confirmation of acceptance or rejection of the Services within fifteen (15) business days after Trace3 provides written notice of such failure, the Services will be deemed accepted. 6. DOCUMENTATION Trace3 will provide Client one copy of any documentation or written Deliverables required under the applicable Purchase Order or SOW. Upon completion of a Purchase Order or SOW, Trace3 will archive all material documentation, written Deliverables and other material work product generated in connection with such Purchase Order or SOW (including any material project memorandums, status reports, test data, drawings, presentations and reports) and will retain such documentation for a period of two years following the completion of work. 7. TRADEMARKS Neither Party will use, without prior written consent of the other, any trademark or trade name of the other, or any other word or device likely to be confused therewith as part of the other's corporate, firm or trade name in connection with any form of advertisement or otherwise. 8. COMPENSATION (a) Fees. Client will pay Trace3 the Fees set forth in the applicable SOW or Purchase Order for providing the Deliverables. The Fees include all elements of cost (direct labor, overhead, general and administrative expenses and profit) incurred by Trace3 in providing the Deliverables. (b) Purchase Orders. Prior to Trace3 commencing the provision of Deliverables, Client will provide Trace3 with a Purchase Order, reflecting an obligation to purchase all Deliverables described in the applicable SOW and the total cost for such Deliverables. (c) Expenses. Trace3 will invoice Client for any expenses incurred in connection with the provision of Deliverables, at cost and without mark-up, to the extent allowed by the applicable SOW or Purchase Order. Upon Client's written request, Trace3 will provide supporting documentation for such expenses. 9. INVOICING AND PAYMENTS (a) Invoicing. (i) Products. Trace3 will invoice Client for all Fees for Products and related installation Services upon shipment of such Products from Trace3 or a Products distributor or manufacturer, as applicable, including whole or partial orders. Master Solutions Agreement A-6 Revised August 2022 MSA (ii) Services. Unless a SOW specifies otherwise, Trace3 will invoice Client for all Fees for Services (other than installation Services for Products), whether billed on a fixed-fee or time and materials basis, weekly, bi-weekly or monthly as determined by Trace3 in its sole discretion. (b) Payment Terms. All Invoices are due and payable by Client net 30 days from the date of such Invoice. (c) Credit Cards. Payment via Visa, Mastercard, American Express, other credit card, virtual card (e.g., American Express BIP), or any card or program similar to any of the foregoing will be accepted only if preapproved by Trace3 in writing. Any such payments will be subject to a processing fee reasonably based upon expenses incurred by Trace3 in accepting such payment. (d) Late Payments. Trace3 reserves the right to charge Client interest on any delinquent balance computed on a daily basis for each day the payment is delinquent at the lesser of (x) 18% per year, or (y) the maximum rate permitted by law. Trace3 reserves the right to refuse (a) the provision of Deliverables to Client if any delinquent Invoices are outstanding, and (b) payment terms if, in Trace3's sole discretion, such terms would create an unreasonable credit risk for Trace3. In such event, provision of Deliverables to Client will be available only on a C.O.D. or cash-in- advance basis. No payment by Client or receipt by Trace3 of an amount less than the entire amount of an Invoice will be deemed to be other than on account of the earliest due amount, nor will any endorsement or statement on any check or letter accompanying any check or payment be deemed an accord and satisfaction, and Trace3 may accept such check or payment without prejudice to Trace3's right to recover the balance of any amount due or pursue any other remedy provided for in this Agreement. Trace3 will have the right in its sole discretion to apply any payment received from Client to any account of Client then not current and due and delinquent. (e) Disputed Amounts. Client will review provided Invoices and notify Trace3 in writing within 15 business days of receipt of an Invoice of any question, objection or dispute Client may have with such Invoice (a "Dispute Notice"). If any items are disputed, only the Fees for disputed items may be withheld from payment, and only until such dispute is resolved. In no event will Client be entitled to withhold payment for any undisputed items which are on the same Invoice as a disputed item. The Parties will negotiate in good faith to attempt to resolve such dispute. In the event such dispute is mutually agreed upon and resolved, Client will immediately (and in no event later than two business days following such resolution) pay the disputed amount. In the event a dispute is not resolved within 10 days following Trace3's receipt of the Dispute Notice despite the Parties’ good faith efforts, the Parties may submit such dispute to senior executives within their respective organizations for resolution. (f) Taxes. All Fees for Deliverables will be exclusive of all national, federal, state, local, international (with respect to Deliverables provided outside of the United States), property or any other governmental use, sales, excise, occupational, ad valorem, VAT or import (with respect to Deliverables provided outside of the United States) taxes and duties, and any other similar taxes or duties. If any such tax, fee or charge is imposed on a transaction under this Agreement, such tax will be paid by Client in addition to the invoiced Fees. If Trace3 is required to pay any such tax, fee or charge Client will reimburse Trace3 for such payment. All taxes, fees and charges with respect to Trace3's income or gross receipts derived from its provision of Deliverables hereunder (including franchise, employment and income taxes of Trace3), will be the obligation of and paid by Trace3. (g) Non-Appropriation of Funds: If the County does not appropriate sufficient funding for this Agreement for any future fiscal period, the County will not be obligated to make payments for services performed after the end of Master Solutions Agreement A-7 Revised August 2022 MSA the last fiscal period for which sufficient funding was appropriated. No penalty or expense shall accrue to the County in the event this provision applies; provided, however, that the County shall remain obligated to pay for all Products ordered, in transit, delivered, or accepted, and for all non-cancellable costs incurred by Trace3 (including any restocking fees, shipping charges, and OEM cancellation charges), prior to the effective date of non- appropriation. The County shall provide Trace3 with not less than thirty (30) days’ advance written notice of any non-appropriation event. 10. AUDIT During the term of this Agreement and for a period of two years following the completion of work under any SOW, Trace3 will maintain, in accordance with recognized accounting practices, complete books and records relating to all Deliverables, SOWs, Purchase Orders and Invoices, and of all costs and Fees reimbursable or payable by Client under the terms of this Agreement. Client will have the right to examine and audit only such records as directly pertain to Client and the transactions contemplated by this Agreement and any SOW or Purchase Order issued hereunder at any reasonable time during such period. The accuracy of Trace3's Invoices will be determined by such audits (provided, that, Trace3 will have the right to conduct its own audits to confirm the accuracy of any audit perform by Client or under Client’s direction) and each Party will immediately pay any overcharges or undercharges, as applicable, to the other Party. Client will bear all costs associated with such audits. 11. OWNERSHIP AND INTELLECTUAL PROPERTY (a) Ownership. Any and all software, data and related intellectual property developed by Trace3 arising directly out of the provision of Deliverables (the "Developed Intellectual Property") will be the exclusive property of Client. All software, data and related intellectual property previously developed and owned by Trace3 or any third party, or licensed to Trace3 by any third party, and used in the provision of Deliverables (the "Retained Intellectual Property") is and will remain the exclusive property of Trace3 or such third party. Notwithstanding the foregoing, Trace3 retains all right, title, and interest in and to its tools, methodologies, techniques, know-how, and general skills and experience, including any improvements to the Retained Intellectual Property, and Client hereby grants Trace3 a perpetual, irrevocable, royalty-free, worldwide, non-exclusive license to use, copy, modify, and create derivative works of the Developed Intellectual Property for Trace3’s internal business purposes, provided that Trace3 does not disclose any County Data or Client Confidential Information in doing so. (b) Assignment; License. Trace3 hereby assigns and will assign to Client the Developed Intellectual Property. Trace3 will execute any and all documents necessary to assign any Developed Intellectual Property to Client and to assist Client to protect such Developed Intellectual Property, including, signing patent or copyright applications and assignments in favor of Client; provided, that the preparation and filing of such applications or assignments will be at Client's sole expense. Further, Trace3 hereby grants to Client a royalty-free, nonexclusive, unrestricted, irrevocable, world-wide license to use, duplicate, or disclose for any purpose whatsoever and to authorize others to do so, all Retained Intellectual Property (including writings, recordings, pictorial reproductions, drawings, computer programs and works of any similar nature) required to be furnished to Client under this Agreement, in each case solely for Client’s own governmental and operational purposes; provided that Client will not resell, sublicense, or otherwise commercially exploit the Retained Intellectual Property. Master Solutions Agreement A-8 Revised August 2022 MSA 12. CONFIDENTIALITY (a) Permitted Use. The Party receiving Confidential Information (the “Receiving Party”) will handle, use, treat and utilize the disclosing Party's (the “Disclosing Party”) Confidential Information as follows: (i) hold all such Confidential Information in strict confidence; (ii) use such Confidential Information only for the purpose of performing its obligations under this Agreement; (iii) reproduce such Confidential Information only to the extent necessary to perform its obligations under this Agreement; (iv) restrict disclosure of such Confidential Information to its directors, officers and employees, agents, representatives and subcontractors having a need to know (and advise such persons of the obligations assumed herein); and (v) not disclose such Confidential Information to any third party without prior written approval of the Disclosing Party, except as set forth in Section 12(b) (Subcontractors). In addition, with respect to any equipment, component, hardware, software or other items delivered to the Receiving Party by the Disclosing Party, the Receiving Party will not reverse engineer, disassemble, decompile or otherwise analyze the physical construction of any such items. The restrictions on the Receiving Party's use and disclosure of Confidential Information as set forth above will not apply to any Confidential Information to the extent it: (i) is wholly and independently developed by the Receiving Party without the use of Confidential Information of the Disclosing Party; (ii) is or has become generally available to the public without breach of this Agreement by the Receiving Party; (iii) at the time of disclosure to the Receiving Party, was known to such Receiving Party free of restriction and evidenced by documentation in the Receiving Party's possession; (iv) is approved for release by written authorization of the Disclosing Party, but only to the extent of and subject to such conditions as may be imposed in such written authorization; (v) is disclosed in response to a valid order of a court or other governmental body, but only to the extent of and for the purposes of such order; provided, that the Receiving Party will first notify the Disclosing Party of such order and permit the Disclosing Party to seek a protective order against disclosure; or (vi) is disclosed in response to a request for production of documents, if required to comply with the Washington Public Records Act, Chapter 42.56 RCW. Prior to disclosure of Confidential Information in response to a public records request, the Receiving Party will give written notice of the request to the Disclosing Party, and allow the Disclosing Party reasonable time in which to pursue a protective order or other remedy, prior to the disclosure. (b) Subcontractors. Trace3 will ensure any of its subcontractors utilized in connection with this Agreement will be required to abide by its obligations with respect to Confidential Information. (c) Personnel Screening and Restricted-System Access. Trace3 shall ensure that all Personnel, including Subcontractor Personnel, who access County facilities, County systems, County Data, or County confidential information are appropriately screened, trained, supervised, and bound by written confidentiality and security obligations consistent with the nature of their assigned duties and applicable law. Before granting Personnel access to any County system or data, Trace3 shall provide information and certifications reasonably requested by County to Master Solutions Agreement A-9 Revised August 2022 MSA verify compliance with this Agreement and the applicable SOW. County may deny, limit, suspend, or revoke access in its sole discretion where necessary to protect County systems, data, operations, or legal compliance. Where an SOW identifies access to Criminal Justice Information, Protected Health Information, Federal Tax Information, payment-card data, or other restricted information or systems, Trace3 and its Personnel and Subcontractor Personnel shall comply with the additional screening, training, access, security, audit, confidentiality, and subcontracting requirements identified in that SOW and any applicable County policy, security addendum, or law. No Personnel may access a restricted County system or restricted County data unless and until County has confirmed that all applicable prerequisites for that access have been satisfied. (d) Obligations and Return of Confidential Information. The Receiving Party's obligation hereunder will continue during the term of this Agreement and survive for a period of one year following termination of this Agreement for any reason. All Confidential Information will remain the sole property of the Disclosing Party, and all materials containing any such Confidential Information (including all copies thereof) will be returned to the Disclosing Party or destroyed upon completion of work or delivery under any outstanding SOW or Purchase Order, upon the Receiving Party's determination that it no longer has a need for such Confidential Information, or upon the Disclosing Party’s request. Upon the Disclosing Party’s request, the receiving Party will certify in writing that all materials containing such Confidential Information (including all copies thereof) have been returned to the Disclosing Party or have been destroyed. (e) Publicity. Neither Party will distribute any news releases, articles, brochures, speeches or advertisements concerning this Agreement or any SOW or Purchase Order, nor use the other Party's name, without such other Party's prior written consent. (f) Injunctive Relief. As legal remedies may be insufficient for a breach of this Section 12 (Confidentiality), an injured Party will be entitled to seek injunctive relief in addition to any other legal or equitable remedies without the necessity of proving an inadequate remedy at law exists and without the requirement of bond. 13. GOVERNING LAW; FORUM In the event that any litigation should arise concerning this Agreement, the venue for such action shall be in the Superior Court of the State of Washington in and for the County of Kittitas. This Agreement shall be governed by the laws of the State of Washington. 14. TERMINATION (a) Termination. Either Party may terminate this Agreement or any SOW or Purchase Order: (i) Termination for Breach. Immediately upon written notice to the other Party if the other Party defaults on any of its material obligations under this Agreement or any SOW or Purchase Order, and such default is not cured within 30 days after written notice is received by the defaulting Party specifying, in reasonable detail, the nature of the default; (ii) Termination for Insolvency. Immediately upon written notice to the other Party if the other Party becomes (1) unable to pay its debts as they become due, or (2) the subject of a proceeding, whether voluntary or involuntary, under the bankruptcy or insolvency laws of the United States or any other jurisdiction, unless, in Master Solutions Agreement A-10 Revised August 2022 MSA the case of an involuntary proceeding, such proceeding is dismissed or withdrawn within 30 days of the date such proceeding is initiated; or (iii) Termination for a Force Majeure Event. Immediately upon written notice to the other Party if a Force Majeure Event prevents either Party from performing its obligations (other than payment obligations) under this Agreement for more than 30 consecutive days. (b) Procedure upon Termination. Upon termination of this Agreement for any reason under Section 14(a) (Termination): (i) Trace3 will return to Client, or destroy, as Client requests, all Client property in Trace3's possession; and (ii) Trace3 will be entitled to payment (1) as described in Sections 2(f)(iv) (Change Requests, Cancellation and Rescheduling), (2) for Deliverables provided and reasonable expenses incurred in connection with Trace3’s performance of the applicable SOWs or Purchase Orders up until the date of such termination, and (3) as otherwise described in this Agreement or any applicable SOW or Purchase Order. If such Deliverables are compensated on (x) a time and materials or hourly basis, then Client will compensate Trace3 for all such Deliverables provided in accordance with the agreed hourly rate payment provisions and any expenses incurred by Trace3 up until the date of termination, or (y) a fixed fee basis, then Client will compensate Trace3 for: (A) any completed Project Phase in accordance with the payment terms for such Project Phase; and (B) Project Phase that has not been fully completed on a pro-rata basis for the portion of completed work. (c) Other Remedies. Any termination under Section 14(a) (Termination) will not serve to limit any other remedies to which a Party may otherwise be entitled to under this Agreement or at law or equity. 15. INSURANCE Trace3 shall secure and maintain in effect at all times during performance of work under this Agreement such insurance as will protect Trace3, its employees, and agents from all claims, losses, harm, costs, liabilities, damages and expenses arising out of Trace3’s performance under this Agreement, including but not limited to personal injury (including death) or property damage. All insurance shall be issued by companies admitted to do business in the State of Washington and have a rating of A- , Class VII or better in the most recently published edition of Best’s Reports unless otherwise approved by Client. If an insurer is not admitted, all insurance policies and procedures for issuing the insurance policies must comply with Chapter 48.15 RCW and 284-15 WAC. At a minimum, Trace3 shall maintain and provide proof of the following: (a) Commercial General Liability Insurance – Coverage limits not less than: • $1,000,000 per occurrence, for all covered losses • $2,000,000 general aggregate • $1,000,000 products & completed operations aggregate Master Solutions Agreement A-11 Revised August 2022 MSA • $1,000,000 personal and advertising injury, each offense The policy must be endorsed to include the Client and its officials, employees and agents as additional insureds. (b) Automobile Liability Policy – Automobile Liability for owned, non-owned, hired, and leased vehicles, with an MCS 90 endorsement and a CA 9948 endorsement attached if ‘pollutants’ are to be transported. Coverage limits not less than: $1,000,000 combined single limit (c) Worker's Compensation Coverage –Trace3 shall provide Workers Compensation and Employer’s Liability insurance on a state-approved policy form providing benefits as required by law with employer’s liability limits no less than $1,000,000 per accident or disease. (d) Technology Errors & Omissions Insurance – Which has a limit of not less than $2,000,000, including endorsements for (i) internet services, (ii) network security/privacy injury & identity theft coverage, and (iii) media extension. (e) Cyber Liability Insurance – Network Privacy and Security Insurance of at least $1,000,000 per occurrence / $1,000,000 aggregate. Trace3 shall furnish to the Client a Certificate of Insurance, with endorsement where required above, as evidence that policies providing insurance required by this Agreement are in full force and effect. Trace3’s insurance policies required above must apply on a primary non-contributing basis in relation to any other insurance or self-insurance available to the Client. Trace3 agrees to provide notice to the Client at least thirty (30) days prior to cancellation, or any material alteration or non-renewal, of any of the above-required insurance coverages. Trace3 shall assume full responsibility for all loss or damage to any tools, machinery, equipment, or motor vehicles owned or utilized by Trace3, or Trace3’s agents, employees, suppliers or subcontractors, as well as to any temporary structures, scaffolding and/or protective fences, except to the extent such loss or damage is caused by the negligence or willful misconduct of the Client or its employees or agents. For the avoidance of doubt, title to and risk of loss for Products shall pass to the Client upon delivery to the Client’s designated delivery location. Trace3 shall have sole responsibility for ensuring the insurance coverage and limits required herein are also obtained by any subcontractors. Notwithstanding any other provision(s) of this Agreement, Trace3 shall not commence performing under this Agreement and Client will have no payment obligations until and unless the following are provided to the Client: (1) a copy of the Certificate(s) of Insurance with all required endorsements, properly completed and in the amounts required, and (2) where requested by the Client, a copy of the required insurance policies, including all required endorsements. 16. INDEMNITY (a) To the fullest extent permitted by law, each party agrees to indemnify, defend, and hold the other party and its departments, elected and appointed officials, employees, agents and volunteers, harmless from and against any Master Solutions Agreement A-12 Revised August 2022 MSA and all third-party claims, damages, losses and expenses, including but not limited to court costs, attorney's fees and alternative dispute resolution costs, for any personal or bodily injury, sickness, disease, or death, for any damage to or destruction of any real or tangible personal property (including the loss of use resulting therefrom), to the extent caused by indemnifying party’s negligence; and for any other third-party claims, damages, losses, and expenses sustained by the non-indemnifying party, which (1) are caused in whole or in part by any negligent act or omission, of the indemnifying party, its employees, agents or volunteers, or indemnifying party’s subcontractors, their employees, agents or volunteers; or (2) are directly or indirectly arising out of, resulting from, or otherwise connected with the negligent performance of this Agreement by the indemnifying party; or (3) are based upon the indemnifying party’s or its subcontractors’ negligent use of, presence upon or proximity to the property of the non-indemnifying party. This indemnification obligation of each party shall not apply to the extent the claim, damage, loss or expense is caused by the negligence of the other party. This indemnification obligation shall not be limited in any way by the Washington State Industrial Insurance Act, RCW Title 51, or by application of any other workmen's compensation act, disability benefit act or other employee benefit act, and each party hereby expressly waives any immunity afforded by such acts. The foregoing indemnification obligations are a material inducement to the parties to enter into this Agreement, and have been mutually negotiated by the parties. (b) Each party, when in the role of the non-indemnifying party, reserves the right, but not the obligation, to participate in the defense of any claim, at the non-indemnifying party’s own cost and expense, and such participation shall not constitute a waiver of the other party’s indemnity obligations contained in any section of this Agreement. (c) In the event Trace3 enters into subcontracts to the extent allowed under this Agreement, Trace3 shall require each such subcontractor to indemnify the County on a basis substantially similar to Trace3’s indemnity obligations to the County. Trace3 may request waiver of this requirement by the County for particular subcontractors. Any such waiver shall be at the County’s discretion, and if granted, must be in writing. 17. INDEPENDENT CONTRACTOR Trace3 is an independent contractor and not an agent, servant, employee, legal representative, partner or joint venturer of Client. Nothing in this Agreement will be deemed to create a joint venture or partnership between the Parties. Trace3 has the sole right and obligation to supervise, manage and direct all work to be provided under this Agreement. Trace3 has no authority to represent or bind Client. 18. TRACE3 COMMITMENTS, AND REPRESENTATIONS Trace3 represents and warrants as follows: a) Trace3 is duly organized, validly existing and in good standing under the laws of the state of its formation, and is qualified to do business in the State of Washington, and has all requisite power and authority to enter into and to perform its obligations under this Agreement. b) Trace3 has the authority to execute this Agreement, to make the representations and warranties set forth herein, and to perform its obligations hereunder. c) This Agreement has been validly executed by an authorized representative of Trace3 and constitutes a valid and Master Solutions Agreement A-13 Revised August 2022 MSA legally binding and enforceable obligation of Trace3. d) Trace3 holds, or will obtain prior to commencing work under this Agreement, such licenses, permits and other authorizations from federal, state and local governmental authorities, or from any applicable industrial or professional certification or licensing bodies, as are necessary for the lawful performance of its obligations under this Agreement, and will maintain such throughout the term of this Agreement. e) Trace3 is not in violation of any applicable law, ordinance or regulation the consequence of which will or may materially affect Trace3's ability to perform its obligations under this Agreement. Trace3 is not subject to any order or judgment of any court, tribunal or governmental agency which materially and adversely affects its operations or assets in the State of Washington, or its ability to perform its obligations under this Agreement. f) Trace3 is not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by any Federal or State department or agency. g) None of the representations or warranties expressly made by Trace3 in this Agreement contains any untrue statement of a material fact or omits a material fact necessary to make the statements of fact contained therein not misleading as of the date made. 19. FORCE MAJEURE Neither Party will be liable to the other Party for any alleged loss or damages resulting from its performance under this Agreement (other than payment obligations), including the provision of the Deliverables, being delayed by acts of the other Party, acts of civil or military authority, governmental priorities, fire, floods, epidemics, quarantine, energy crises, strikes, labor trouble, war, riots, accidents, shortages, delays in transportation, or any other causes beyond the reasonable control of such Party (each, a "Force Majeure Event"). Each Party will (a) continue to use commercially reasonable efforts to perform its obligations under this Agreement to the extent possible, and (b) notify the other Party when the Force Majeure Event has abated. 20. WARRANTIES (a) Services. Trace3 represents and warrants that it (i) is competent, experienced and trained to provide all Services herein, and (ii) in providing Services, it will use commercially reasonable efforts to provide the Deliverables resulting from such Services in a timely manner in accordance with the applicable Deliverable Specifications. Further, Trace3 warrants that the Services provided by it under this Agreement will not, from the date of Client's final acceptance of such Service through 90 days thereafter, deviate in any material respect from the Deliverable Specifications for such Services; provided, that such warranty will not apply to Services (1) provided by Trace3 in a manner specifically requested by Client to which Trace3 objected, or (2) materially amended, revised or modified by a party other than Trace3, including, but not limited to, Client. If Client notifies Trace3 of a breach of this warranty, Trace3 will correct and redeliver the affected Service at no additional charge to Client within a reasonable period of time. (b) Products. Client acknowledges and understands that all Products to be provided under this Agreement are manufactured by one or more third parties (and not Trace3). Accordingly, Trace3's sole responsibility to Client with respect to any Products or components and parts thereof provided under this Agreement will be to pass Master Solutions Agreement A-14 Revised August 2022 MSA through to Client such original Product manufacturer's available product warranty, if any. (c) EXCLUSIVE WARRANTIES. THE WARRANTIES PROVIDED IN THIS SECTION 19 (WARRANTIES) (A) CONSTITUTE THE SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO THE DELIVERABLES, AND (B) ARE IN LIEU OF ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 21. LIMITATION OF LIABILITY NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY SOW OR PURCHASE ORDER ISSUED HEREUNDER, FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND ANY SOW OR PURCHASE ORDER ISSUED HEREUNDER AND THE PROVISION OF ALL DELIVERABLES HEREUNDER AND THEREUNDER, IN NO EVENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS. 22. UNETHICAL PRACTICES; FCPA; EXPORTS (a) Unethical Practices. Each Party will (i) not engage in any deceptive, misleading or illegal practices, and (ii) not disparage or discredit the other Party or, by words, actions or inaction or otherwise willfully or negligently damage the reputation of the other Party or its products or services. (b) FCPA. Each Party will perform under this Agreement in a manner consistent with and comply with all requirements of the Foreign Corrupt Practices Act. (c) Exports. The Parties acknowledge that Deliverables and/or Confidential Information provided under this Agreement may be subject to U.S. and applicable foreign export laws and regulations. Each Party will comply with all applicable U.S. and foreign export laws and regulations and anti-boycott laws. 23. SEVERABILITY If any provision of this Agreement or any SOW or Purchase Order is held invalid, illegal or unenforceable in any jurisdiction, for any reason, then, to the full extent permitted by law (a) all other provisions hereof and thereof will remain in full force and effect in such jurisdiction and will be construed in order to carry out the intent of the Parties as nearly as may be possible, (b) such invalidity, illegality or unenforceability will not affect the validity, legality or enforceability of any other provision hereof or thereof, and (c) any court or arbitrator having jurisdiction over this Agreement or any SOW or Purchase Order will have the power to reform such provision to the extent necessary for such provision to be enforceable under applicable law. 24. ASSIGNMENT This Agreement is binding upon and inures to the benefit of the Parties and their permitted successors and assigns. Assignment of this Agreement is prohibited without the written consent of both Parties, except that each Party reserves the right to assign this Agreement to the successor in a merger or acquisition of such Party or other similar business combination transaction involving such Party. Master Solutions Agreement A-15 Revised August 2022 MSA 25. ENTIRE AGREEMENT; MODIFICATIONS; WAIVERS (a) Entire Agreement. This Agreement, including any SOWs and Purchase Orders executed in connection herewith, represents the entire agreement between the Parties regarding the subject matter contained herein, and supersedes any and all other agreements between the Parties regarding the subject matter hereof. (b) Modifications. Any changes to the terms and conditions in this Agreement must be in set forth in a written agreement signed by each Party. (c) Waivers. No delay or failure by a Party in exercising or enforcing any of its rights or remedies hereunder, and no course of dealing or performance with respect thereto, will constitute a waiver thereof. The express waiver by a Party of any right or remedy in a particular instance will not constitute a waiver thereof in any other instance. No waiver or discharge of any provision of this Agreement will be effective unless made in writing signed by both Parties that specifically identifies this Agreement and the provision intended to be waived or discharged. Each such waiver or discharge will be effective only in the specific instance and for the specific purpose for which given. 26. ORDER OF PRECEDENCE Any inconsistency between this Agreement and any SOW or Purchase Order will be resolved by giving precedence to: (a) first, this Agreement; (b) second, the applicable SOW; and (c) third, to the applicable Purchase Order, but only to the extent that such Purchase contains language specifying its intent to supersede this Agreement and is signed by both Parties. Except as provided in the immediately preceding sentence, no conflicting terms contained in any Purchase Order will be binding on the Parties. 26. COMPLIANCE WITH LAWS Each Party will comply with all federal, state and local laws, ordinances, rules, regulations and orders applicable to such Party with respect to the provision and receipt of the Deliverables, and obligations under this Agreement. Each Party will advise the other Party of any laws or regulations or changes in laws or regulations affecting the provision and receipt of the Deliverables hereunder. 27. NOTICES If a Party is required to give notice to the other Party, such notice will be deemed given when: (i) delivered by hand; (ii) mailed by registered or certified mail, return receipt requested, postage prepaid; (iii) sent by a third party courier service where receipt is verified by the receiving Party's acknowledgment; or (iv) sent by fax where transmission is confirmed, and addressed as set forth on the signature page to this Agreement. 28. SURVIVAL Except for the provisions of Sections 6 (Documentation), 10 (Audit), 11 (Ownership and Intellectual Property), 12 (Confidentiality), 13 (Governing Law; Forum), 14 (Termination), 21 (Limitation of Liability), 22 (Unethical Practices; FCPA; Exports), and 29 (Survival) which are intended to survive the termination of this Agreement until the earlier of the expiration of (a) the applicable period set forth in such provision, or (b) the applicable statute of limitations, the terms, conditions and warranties contained in this Agreement will survive for one month following the termination of this Agreement.