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Digital Cheetah® Solutions, Inc. Orange County Animal Services 4 Confidential & Proprietary
<br />b. Digital Cheetah Confidential Information. The terms of this
<br />Agreement (including pricing), the Hosted Services, Digital Cheetah
<br />Technology, and other nonpublic information of Digital Cheetah constitute
<br />confidential information of Digital Cheetah (“Digital Cheetah Confidential
<br />Information”). Client agrees to: (i) treat all Digital Cheetah Confidential
<br />Information with the same degree of care as it accords to its own
<br />confidential information, but not less than reasonable care; (ii) use the
<br />Digital Cheetah Confidential Information only in connection with accessing
<br />the Hosted Services as permitted under this Agreement; and (iii) not disclose
<br />or disseminate the Digital Cheetah Confidential Information to any third
<br />party except as permitted herein. Client agrees that the only Client
<br />employees, agents, and contractors (including third party service providers
<br />providing services to Client) who will have access to Digital Cheetah
<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 />c. Exceptions to Confidentiality. Information will not be deemed
<br />Confidential Information of either Client or Digital Cheetah under this
<br />Agreement if such information: (i) is or becomes rightfully known to the
<br />recipient without any obligation of confidentiality or breach of this
<br />Agreement; (ii) becomes publicly known or otherwise ceases to be secret or
<br />confidential, except through a breach of this Agreement by the recipient of
<br />such Confidential Information; or (iii) is independently developed by the
<br />recipient of such Confidential Information. The foregoing exclusions do not
<br />apply to Personal Data in the Client Data. The recipient of such Confidential
<br />Information may disclose such Information pursuant to the requirements of
<br />a governmental agency or by operation of law, provided that the recipient
<br />gives the disclosing party reasonable prior written notice sufficient to permit
<br />the disclosing party to contest such disclosure.
<br />d. Compliance with North Carolina’s Public Records Law. Both parties
<br />recognize and agree to adhere to North Carolina’s public records law set
<br />forth at Chapter 132 of the North Carolina General Statutes (the “Act”).
<br />Client acknowledges that Digital Cheetah is entitled under the Act to certain
<br />exceptions governing disclosure of trade secrets. Therefore, Client agrees
<br />that, upon receiving any request under the Act for disclosure of Digital
<br />Cheetah information, Client will (i) provide Digital Cheetah with reasonable
<br />written notice prior to responding to the request sufficient to permit Digital
<br />Cheetah to contest such disclosure and (ii) cooperate with Digital Cheetah
<br />as reasonably requested by Digital Cheetah. Digital Cheetah agrees to
<br />indemnify and hold harmless Client and its officers, employees, and agents
<br />from all costs, damagers, and expenses incurred by Client which arise out of
<br />an individual claimant’s action against Client that such claimant was denied
<br />access to the requested public records as required by the Act and such costs,
<br />damages, and expenses were caused by Digital Cheetah’s intentional failure
<br />to comply with the Act.
<br />8. Indemnification; Conditions to Indemnification.
<br />a. Indemnification. Digital Cheetah will defend Client from and against
<br />all claims, suits or actions arising out of or resulting from any action against
<br />Client that is based on any third party claim that the Hosted Services infringe
<br />that party’s United States patents, copyrights, or trade secrets, and will pay
<br />the amount of any final judgment awarded (including reasonable attorney’s
<br />fees and costs) or final settlement made with respect to such claim. In
<br />addition to Digital Cheetah’s obligation of indemnification, if the Hosted
<br />Services becomes or, in Digital Cheetah's opinion, is likely to become the
<br />subject of a claim of infringement, Digital Cheetah may, at its option, either
<br />procure for Client the right to continue to access the Hosted Services or replace
<br />or modify the Hosted Services so that they are non-infringing. If neither of the
<br />foregoing alternatives is commercially reasonable, in Digital Cheetah’s
<br />judgment, Digital Cheetah may terminate this Agreement, including
<br />terminating access to the Hosted Services. Notwithstanding the foregoing,
<br />Digital Cheetah will have no liability of any kind for any infringement or claim
<br />(i) based on the Client Data or the Other Services or (ii) which results from
<br />use of the Hosted Services in a manner prohibited under this Agreement or
<br />for which the Hosted Services were not designed.
<br />b. Conditions to Indemnification; Entire Obligation. To qualify for
<br />indemnification under any provision of this Agreement, Client is required to:
<br />(i) promptly notify Digital Cheetah in writing of the existence of any such
<br />action; (ii) grant Digital Cheetah sole control of the defense, negotiation,
<br />compromise and settlement of such claim; provided however, that any such
<br />settlement does not impose any obligation of payment or admission of guilt,
<br />or any other material obligation (except customary obligations of
<br />confidentiality) on Client without Client’s prior written consent; and (iii)
<br />cooperate with Digital Cheetah with respect to any such claim. Client may
<br />elect to participate in any such action with an attorney of its own choice and at
<br />its own expense. The foregoing states the entire obligation and liability of Digital
<br />Cheetah with respect to any third party claim.
<br />9. Limitation of Liability.
<br />a. Disclaimer of Consequential and Other Damages. Under no
<br />circumstances and under no legal theory (whether in contract, tort,
<br />negligence or otherwise) will either party to this Agreement, or their
<br />affiliates, officers, directors, employees, agents, service providers, suppliers
<br />or licensors be liable to the other party or any third party for any lost profits,
<br />lost sales or business, lost data, business interruption, loss of goodwill, or
<br />for any type of indirect, incidental, special, exemplary, consequential or
<br />punitive loss or damages, or any other loss or damages incurred by such
<br />party or third party in connection with this Agreement, the Hosted Services
<br />or the Professional Services, regardless of whether such party has been
<br />advised of the possibility of or could have foreseen such damages.
<br />b. Limitation on Liability. Notwithstanding anything to the contrary in
<br />this Agreement, Digital Cheetah’s aggregate liability to Client, Users or any
<br />third party arising out of this Agreement or otherwise in connection with
<br />any provision, use or employment of any of the services provided
<br />hereunder, including the Hosted Services, shall in no event exceed the
<br />Subscription Fees for the Hosted Services paid by Client during the twelve
<br />months prior to the first event or occurrence giving rise to such liability.
<br />Client acknowledges and agrees that the essential purpose of this Section
<br />9.b is to allocate the risks under this Agreement between the parties and
<br />limit potential liability given the Subscription Fees, which would have been
<br />substantially higher if Digital Cheetah were to assume any further liability
<br />other than as set forth herein. Digital Cheetah has relied on these limitations
<br />in determining whether to provide Client with the rights to access and use
<br />the Hosted Services (and any other services) provided for in this Agreement.
<br />c. Exceptions in Some Jurisdictions. Some jurisdictions do not allow the
<br />exclusion of implied warranties or limitation of liability for incidental or
<br />consequential damages, which means that some of the above limitations
<br />may not apply to Client. In these jurisdictions, Digital Cheetah’s liability will
<br />be limited to the maximum extent permitted by applicable law.
<br />10. Termination.
<br />a. Subscription Term. This Agreement will commence on the Effective
<br />Date and remain in effect for a period of one year (“Initial Subscription
<br />Term”). After expiration of the Initial Subscription Term, this Agreement will
<br />automatically terminate unless it unless it is renewed for successive one
<br />year terms (each a “Renewal Subscription Term” and, together with the
<br />Initial Subscription Term, referred to as the “Subscription Term”) in a writing
<br />signed by both parties.
<br />b. Termination.
<br />i. By Client for Convenience. Client may terminate this Agreement
<br />for its convenience at any time during a Subscription Term on at least 60
<br />days’ written notice to Digital Cheetah. However, no refunds or credits for
<br />Subscription Fees or other fees or payments will be provided to Client in that
<br />event.
<br />ii. By Either Party for Cause. Either party may terminate this
<br />Agreement on 30 days’ written notice to the other party if the other party is
<br />in material breach under this Agreement and fails to cure such material
<br />breach within 30 days after delivery of such written notice. If Client
<br />terminates for Digital Cheetah’s uncured breach, Digital Cheetah will refund
<br />to Client prepaid Subscription Fees on a prorated basis beginning with
<br />Client’s notice of breach.
<br />c. Effect of Termination and Survival. Upon any termination or
<br />expiration of this Agreement, (i) Digital Cheetah will immediately cease
<br />providing access to the Hosted Services, (ii) each party will destroy the other
<br />party’s Confidential Information, and (iii) all undisputed payments owed
<br />under this Agreement will immediately become due and payable. Upon
<br />Client’s request made within 30 days after the effective date of termination
<br />or expiration of this Agreement, Digital Cheetah will make Client Data
<br />available to Client for export or download as provided in the
<br />Documentation. After a period of 90 days from termination, Digital Cheetah
<br />will have no obligation to maintain or provide any Client Data and will have
<br />the right to delete or destroy all copies of Client Data in the Digital Cheetah
<br />systems or otherwise in Digital Cheetah’s possession or control, unless
<br />prohibited by law. The terms of any sections of this Agreement which by
<br />DocuSign Envelope ID: 56121ADE-D942-49A9-92C3-68C8FC32C05F
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