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Digital Cheetah® Solutions, Inc. Orange County Animal Services 3 Confidential & Proprietary
<br />by Client from the Support Plans made available by Digital Cheetah. Digital
<br />Cheetah will automatically renew support (for the same Support Plan
<br />selected by Client during the prior period) by invoicing Client for the fee
<br />applicable to the next subsequent twelve month period (each, a “Support
<br />Period”). Renewal will be effective upon Digital Cheetah’s receipt of Client’s
<br />payment. If Client does not remit payment by the commencement date of
<br />the new Support Period, support will be cancelled. Client may also change
<br />the Support Plan or cancel support at the end of a Support Period by
<br />notifying Digital Cheetah per the process specified by Digital Cheetah.
<br />b. Availability of Professional Services. If Client requests that Digital
<br />Cheetah provide Client with consulting, training, or other professional
<br />services, Digital Cheetah will prepare a statement of work describing the
<br />services to be performed, the obligations of each party, applicable charges,
<br />and any other applicable terms. To be effective, each statement of work
<br />must be signed by both parties. The parties agree that the specified
<br />Professional Services to be completed pursuant to any statement of work
<br />primarily involve the configuration of Client’s subscription to the Services
<br />and integration of Client Data with and into the Services using Digital
<br />Cheetah’s know-how, ideas, concepts, information, and Digital Cheetah
<br />Technology. Unless otherwise expressly specified in a statement of work, no
<br />deliverable provided in connection with the Professional Services provided
<br />pursuant to the Agreement constitutes a “work made for hire” under this
<br />Agreement. In the event that any such deliverable is held to be a work made
<br />for hire, Client hereby assigns to Digital Cheetah all right, title and interest
<br />therein or, to the extent such assignment is not permitted or effective,
<br />hereby grants to Digital Cheetah a perpetual, irrevocable, exclusive,
<br />worldwide, fully-paid, sub-licensable (through multiple layers), assignable
<br />license to any such deliverable.
<br />4. Intellectual Property Ownership Rights.
<br />a. Ownership by Client. As between Client and Digital Cheetah, Client or
<br />its licensors own all right, title, and interest in and to the Client Data. Client
<br />grants Digital Cheetah the right to use the Client Data solely to provide the
<br />Hosted Services and prevent or address service, support or technical
<br />problems. Client represents and warrants that Client has all rights in the
<br />Client Data necessary to grant these rights of use, and that such use does
<br />not violate any law or this Agreement. No title to or ownership of any
<br />proprietary rights related to the Client Data is transferred to Digital Cheetah
<br />pursuant to this Agreement. Client reserves all rights not expressly granted
<br />to Digital Cheetah.
<br />b. Ownership by Digital Cheetah. As between Digital Cheetah and Client,
<br />Digital Cheetah or its licensors own all right, title, and interest in and to the
<br />Digital Cheetah Technology and the Hosted Services, including
<br />documentation as well as maintenance and support solutions for the Hosted
<br />Services. No title to or ownership of any proprietary rights related to the
<br />foregoing is transferred to Client pursuant to this Agreement. Digital
<br />Cheetah reserves all rights not expressly granted to Client.
<br />5. Fees and Payment.
<br />a. Fees. Client agrees to pay Digital Cheetah subscription and other fees
<br />as set forth in the applicable Order Form. In addition, Client will pay Digital
<br />Cheetah for professional services at Digital Cheetah’s then current time and
<br />materials rates unless otherwise specified in the statement of work. Client
<br />agrees to reimburse Digital Cheetah for all miscellaneous out-of-pocket
<br />expenses incurred by Digital Cheetah in performing professional services as
<br />well as for reasonable travel expenses provided such expenses have been
<br />pre-approved by Client.
<br />b. Payment Terms. Fees are due within 30 days from the date of Digital
<br />Cheetah’s invoice (or as otherwise set forth in the invoice). All payments will
<br />be made in U.S. dollars. Amounts charged by Digital Cheetah do not include
<br />applicable taxes or similar fees now in force or enacted in the future
<br />resulting from any transaction under this Agreement. Client is responsible
<br />for all such amounts and will pay them in full (except for taxes based on
<br />Digital Cheetah’s net income). Notwithstanding the foregoing, if Client is
<br />entitled to an exemption from any applicable taxes, Client is responsible for
<br />presenting Digital Cheetah with a valid exemption certificate (in a form
<br />reasonably acceptable to Digital Cheetah). Digital Cheetah will give effect to
<br />any valid exemption certificate provided in accordance with the foregoing
<br />sentence to the extent it applies following Digital Cheetah’s receipt of the
<br />certificate. In addition to Digital Cheetah’s other rights under this
<br />Agreement, Digital Cheetah may suspend Client’s access to the Services, or
<br />cancel the Services, if Client’s account remains past due ten days after Digital
<br />Cheetah provides Client written notice of a past due invoice. Past due
<br />amounts will incur interest at a rate equal to the lower of 1.5% per month
<br />(18% per annum) or the highest rate permitted by law.
<br />6. Warranties; Disclaimer.
<br />a. By Digital Cheetah.
<br />i. Non-Infringement. Digital Cheetah warrants that (A) it has the right
<br />to enter into and grant the rights described in this Agreement, and (B) the
<br />Hosted Services do not violate, misappropriate or infringe any United States
<br />copyrights, trade secrets or other intellectual property rights of any person
<br />or entity. In the event of any failure to conform to this warranty, Digital
<br />Cheetah will indemnify Client as set forth in Section 8.a (regarding Digital
<br />Cheetah’s indemnification).
<br />ii. Hosted Services Warranty. Digital Cheetah warrants that the Hosted
<br />Services will perform materially in accordance with the applicable
<br />Documentation. If the Hosted Services are nonconforming, Digital Cheetah
<br />will fix, provide a work around, or otherwise correct the Hosted Services. If
<br />Digital Cheetah is unable do so within a reasonable period of time, Digital
<br />Cheetah will terminate Client’s access to the Hosted Services, this
<br />Agreement will terminate, and Digital Cheetah will refund to Client prepaid
<br />Subscription Fees on a prorated basis beginning with Client’s notice of
<br />nonconformity.
<br />iii. Professional Services Warranty. Digital Cheetah warrants that the
<br />Professional Services provided pursuant to the Agreement will be
<br />performed in a timely and professional manner, consistent with generally-
<br />accepted industry standards; provided that Client’s sole and exclusive
<br />remedy for any breach of this warranty will be, at Digital Cheetah’s option,
<br />re-performance of the Professional Services or termination of the applicable
<br />statement of work and return of the portion of the fees paid to Digital
<br />Cheetah by client for the nonconforming portion of the Professional
<br />Services.
<br />b. By Client. Client warrants that (i) Client has the right to enter into and
<br />grant the license described in this Agreement, and (ii) Client Data does not
<br />violate, misappropriate or infringe any right of privacy or publicity or any
<br />United States copyrights, trade secrets or other intellectual property rights
<br />of any person or entity.
<br />c. Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
<br />PROVISIONS OF SECTION 6.a CONSTITUTE CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND
<br />DIGITAL CHEETAH’S SOLE AND EXCLUSIVE LIABILITY, FOR BREACH OF THE WARRANTIES SET
<br />FORTH IN THIS AGREEMENT. EXCEPT AS SET FORTH IN SECTION 6.a OF THIS AGREEMENT,
<br />SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DIGITAL CHEETAH
<br />AND ITS SUPPLIERS AND LICENSORS (COLLECTIVELY, “SUPPLIERS”) EXPRESSLY DISCLAIM
<br />ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
<br />IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
<br />DIGITAL CHEETAH MAKES NO WARRANTY THAT THE HOSTED SERVICES WILL BE
<br />UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. Digital Cheetah does not and
<br />cannot control the flow of data to or from Digital Cheetah’s network and
<br />other portions of the Internet. Such flow depends in large part on the
<br />performance of Internet services provided or controlled by third parties. At
<br />times, actions or inactions of such third parties can impair or disrupt Client’s
<br />connections to the Internet (or portions thereof). Digital Cheetah agrees to
<br />use commercially reasonable efforts to take all actions it deems appropriate
<br />to remedy and avoid such events. However, Digital Cheetah cannot
<br />guarantee that such events will not occur. Accordingly, Digital Cheetah
<br />disclaims any and all liability resulting from or related to such events. Digital
<br />Cheetah also disclaims any liability or warranty for Other Services.
<br />7. CONFIDENTIALITY.
<br />a. Client Confidential Information. Digital Cheetah acknowledges that
<br />any nonpublic information of Client (including Client Data) which Client
<br />discloses to Digital Cheetah or to which Digital Cheetah has access in the
<br />course of performing its obligations under this Agreement is confidential
<br />and proprietary to Client (“Client Confidential Information”). Digital Cheetah
<br />agrees to: (i) treat all Client Confidential Information with the same degree
<br />of care as it accords its own confidential information, but not less than
<br />reasonable care; (ii) use the Client Confidential Information only in
<br />connection with performing its obligations under this Agreement; and (iii)
<br />not disclose or disseminate the Client Confidential Information to any third
<br />party except as permitted herein. Digital Cheetah agrees that the only
<br />employees, agents, and contractors who will have access to Client
<br />Confidential Information will be those with a need to know who have agreed
<br />to abide by the obligations set forth in this Section pursuant to a written
<br />confidentiality agreement.
<br />DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F
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