074-14 - Dude Solutions, Inc. - Contract Amendment 2DocuSign Envelope ID: 1FAD7CE6-A5F6-4C2D-A093-8338A607A2F1
Amendment No. 2 to Contract No. C074-14
CITY OF PORT ORCHARD PROFESSIONAL SERVICES AGREEMENT WITH
DUDE SOLUTIONS, INC.
THIS AMENDMENT to Contract No. C074-14 ("Amendment') is made effective as of the 12' day
of October, 2021, by and between the City of Port Orchard ("City"), a municipal corporation, organized
under the laws of the State of Washington, and Dude Solutions, Inc. ("DSI"), a corporation organized under
the laws of the State of Delaware, located and doing business at 11000 Regency Parkway, Cary, NC 27518
("Consultant').
WHEREAS, on August 27, 2014 the City executed a contract with Paladin Data Systems
Corporation, for the provision of SmartGov Software as a Service (SAAS) ("Underlying Agreement'); and
WHEREAS, on December 12, 2016 the contract was amended ("Amendment No. I") to remove SG
Onsite Training fee from the annual subscription: and
WHEREAS, on May 1, 2018, Paladin announced that its products and services had been acquired by
DSI ; and
WHEREAS, DSI updated the terms of service since the acquisition of Paladin in 2018 ("Exhibit 2");
and
WHEREAS, on September 8, 2021, DSI offered the opportunity for the City to lock in the annual
subscription rate for three years; and
WHEREAS, the Consultant and the City have conferred and agree that the subscription rate will
provide budget predictability; and
WHEREAS, the parties wish to memorialize their agreement to so extend the Underlying Agreement
as updated in Exhibit 2; NOW, THEREFORE,
In consideration of the mutual benefits accruing, it is agreed by and between the parties thereto as
follows:
1. The Underlying Agreement of August 27, 2014 between the parties is amended as specifically found
in the attached Proposal for Subscription Invoices for 2022, 2023 and 2024, labeled as "Exhibit 1";
2. The Underlying Agreement is amended to the terms of service in the Master Subscription Agreement
labeled as Exhibit 2;
3. Unless otherwise set forth in Exhibit 1, in all other respects, the Underlying Agreement between
the parties shall remain in full force and effect, amended as set forth herein, but only as set forth
herein.
IN WITNESS WHEREOF, the parties have executed this Amendment on the day and year set
forth above.
DocuSign Envelope ID: 1FAD7CE6-A5F6-4C2D-A093-8338A607A2F1
CITY OF PORT ORCHARD,
WASHINGTON
Robert Putaansuu, Mayor
ATTEST/AUTHENTICATED:
Adyinearson, MMC, City Clerk
APPROVED AS TO FORM:
I F
Charlotte A. Archer, City Attorney
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DUDE SOLUTIONS, INC.
CONSULTANT
E DocuSigned by:
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Signature
Brian Benfer SVP, Sales
Printed Name and Title
DocuSign Envelope ID: 1FAD7CE6-A5F6-4C2D-A093-8338A607A2F1
EXHIBIT 1
- -- Dude
J solutions
PREPARED FOR
City of Port Orchard
PREPARED BY
Dude Solutions
11000 Regency Parkway, Suite 400
Cary, NC 27518
PUBLISHED ON
September 08, 2021
11000 Regency Pkwy #400 / Cary, NC 27518
DocuSign Envelope ID: 1FAD7CE6-A5F6-4C2D-A093-8338A607A2F1
A-0
Dude
Solutions
��3-D
Software for Smarter Operations
Q-259930
Thank you for your continued support of our market leading solutions for improving efficiency in operations.
We are excited about providing you with online tools that will help you save money, increase efficiency and
improve services. Dude Solutions, Inc. is dedicated to providing best in class solutions, including the following
for City of Port Orchard.
Term: 36 months (01/01/2022 - 12/31/2024)
SG SMARTConnect Financial
1112022
12/31/2022
0.00 USD
SG SMAR I Connect Parcel
1/1/2022
12/31/2022
411,60 USD
SaaS Annual Subscription
1/1/2022
12/31/2022
14,758.76 USD
SmartGov Citizen Portal
1/1/2022
12/31/2022
4,427.64USD
Subscription
19,598.00 USD
Year 1 Total:
The Subscription invoice for Year 1 will be
issued upon acceptance of the Order Form.
dudesolutions.com 11000 Regency Pkwy #400 / Cary, NC 27518 SM
2
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• Dude
Solutions
Remaining Subscription Invoices
Software for Smarter Operations
Annuai period_Beginning1. , _investment_.
Year 1/1/2023
Year 3 1 /1 /2024
11000 Regency Pkwy #400 / Cary, NC 27518
Q-259930
20,087.95 USD
20,590.15 USD
DocuSign Envelope ID: 1FAD7CE6-A5F6-4C2D-A093-8338A607A2F1
Dude
Solutions
Software for Smarter Operations
dudesofutions.com 11000 Regency Pkwy #400 / Cary, NC 27518 VA- �
DocuSign Envelope ID: 1FAD7CE6-A5F6-4C2D-A093-8338A607A2F1
Dude
Solutions
Signature
Presented to:
Q-259930
September 08, 2021, 1 :46:22 PM
Accepted by:
)CDbal
Printed Name
Signed Name
Title
/0-1-3- 2,-Ql _
Date
Software for Smarter Operations
11000 Regency Pkwy #400 / Cary, NC 27518
DocuSign Envelope ID: 1FAD7CE6-A5F6-4C2D-A093-8338A607A2F1
r� Dude
.:J Solutions
Proposal terms
• Proposal has been prepared for City of Port Orchard ("Subscriber")
• Proposal expires in sixty (60) days
Order EQrm terms
Software for Smarter Operations
• This Order Form and its Services are governed by the terms of the Dude Solutions, Inc. Master
Subscription Agreement found at https://wwW.dUdpsolutlans.fQml prM5
inns:Ilwww.dudesolutions.comltermsl ("Terms"), unless Subscriber has a separate written agreement
executed by Dude Solutions, Inc. ("DSI") for the Services, in which case the separate written agreement
will govern. Acceptance is expressly limited to these Terms. Any additional or different terms proposed
by Subscriber (including, without limitation, any terms contained in any Subscriber purchase order) are
objected to and rejected and will be deemed a material alteration hereof.
• The Effective Date of the Agreement between Subscriber and DSI is the date Subscriber accepts this
Order Form.
During the Term, DSI shall, as part of Subscriber's Subscription Fees, provide telephone and email
suppnrt ("Suppnrr Services") during the hours of 8:00 AM and 6:00 PM EST, Monday through Friday,
excluding New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, day after
Thanksgiving, Christmas Eve and Christmas Day ("Business Hours"), except Community Development
Services, where Business Hours means 5:00 AM - 5:00 PM PST.
• Acceptance of this Order Form on behalf of a company or legal entity represents that you have authority
to bind such entity and its affiliates to the order, terms and conditions herein. If you do not have such
authority, or you do not agree with the Terms set forth herein, you must not accept this Order Form and
may not use the Service.
F-Mral4r.�. ■AT+ El M. r1.
• Prices shown above do not include any taxes that may apply. Any such taxes are the responsibility of
Subscriber. This is not an invoice. For customers based in the United States, any applicable taxes will be
determined based on the laws and regulations of the taxing authority(ies) governing the "Ship To"
location provided by Subscriber. Tax exemption certifications can be sent to
account5Epceivable@di desolutions.com{mailto:accountsreceivab[e@dudesolutions.com);.
• Billing frequency other- than annual is subject to additional processing fees,
• Please reference Q-259930 on any applicable purchase order and email to
• Dude Solutions, Inc. maintains the necessary liability coverage for its products and professional services.
Proof of insurance can be provided upon request.
dudesolutions.Com 11000 Regency Pkwy #400 / Cary, NC 27518 Im
DocuSign Envelope ID: 1FAD7CE6-A5F6-4C2D-A093-8338A607A2F1
Dude Solutions" EXHIBIT 2
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (this "Agreement") shall govern Subscriber's (as defined below) access
and use of the Services (as defined below) provided by Dude Solutions ("DSI"). BY ACCEPTING THIS AGREEMENT,
EITHER BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS
AGREEMENT OR BY OTHERWISE ACCESSING AND USING THE SERVICES, SUBSCRIBERAGREES TO THE TERMS OF THIS
AGREEMENT. AS A RESULT, PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER
LEGAL ENTITY, THE INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS
AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS "ACCOUNT" OR
"SUBSCRIBER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT
DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN,
THE INDIVIDUAL MUST NOTACCEPTTHIS AGREEMENTAND MAY NOT USE THE SERVICES.
Section 1.0 Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
1.1 "Access Credentials" means any user name, identification number, password, license or security key,
security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an
individual's identity and authorization to access and use the Service.
1.2 "Account" means Subscriber's specific account where Subscriber subscribes to access and use Service(s).
1.3 "Account User" means each employee, consultant and contractor of Subscriber that has been granted
Access Credentials.
1.4 "Affiliate" means, with respect to any legal entity, any other legal entity that (i) controls, (ii) is controlled
by or (iii) is under common control of such legal entity. A legal entity shall be deemed to "control" another legal entity
if it has the power to direct or cause the direction of the management or policies of such legal entity, whether through
the ownership of voting securities, by contract, or otherwise.
1.5 "Subscription Fee" means the fee invoiced to Subscriber by DSI prior to the Initial Term and each
applicable Renewal Term, which is required to be paid in order for Subscriber to be permitted to access and use the
Service and, if applicable the API.
1.6 "API" means DSI's proprietary application programming interface and any accompanying or related
documentation, software libraries, software tools, published specifications, and other materials, as amended from
time -to -time in DSI's sole discretion.
1.7 "Beta Service" means DSI Service or functionality that may be made available to Subscriber to try at its
option at no additional charge that is clearly designated as beta, pilot, limited release, early adoption, non -production,
sandbox, evaluation or a similar description.
1.8 "Confidential Information" means any non-public information and/or materials maintained in confidence
and disclosed in any form or medium by a party under this Agreement (the "Disclosing Party") to the other party (the
"Receiving Party"), that is identified as confidential, proprietary or that a reasonable person should have known, was
the Confidential Information of the other party given the nature of the circumstances or disclosure, or as otherwise
defined as Confidential Information, trade secrets, and proprietary business information as provided under applicable
state law and exempted from disclosure by the applicable statute. Confidential Information may include without
limitation: information about clients, services, products, software, data, technologies, formulas, processes, know-
how, plans, operations, research, personnel, suppliers, finances, pricing, marketing, strategies, opportunities and all
other aspects of business operations and any copies or derivatives thereof. Confidential Information includes
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information belonging to a third party that may be disclosed only under obligations of confidentiality. Notwithstanding
the foregoing, Confidential Information shall not include information that Receiving Party can demonstrate: (a) is or
becomes generally known to the public without breach of any obligation by Receiving Party; (b) is received from a
third party without breach of any obligation owed to Disclosing Party; or (c) is or has been independently developed
by Receiving Party without the benefit of Confidential Information.
1.9 "Content" means all of the audio and visual information, documents, content, materials, products and/or
software contained in, or made available through, the Service.
1.10 "Documentation" means the user documentation relating to the Service, including but not limited to
descriptions of the functional, operational and design characteristics of the Service.
1.11 "Dude Solutions" or "DSI" means Dude Solutions, Inc., Dude Solutions Canada, Inc., Assetic Australia Pty
Ltd and Confirm Solutions Limited together with their affiliates, successors and assigns.
1.12 "DSI Data" means all data, information and other content provided by or on behalf of DSI to any of the
DSI Services.
1.13 "Implementation. Training and Support Program" or "ITSP" means DSI's comprehensive implementation,
training and support program provided to DSI's Subscribers with respect to the Service.
1.14 "Intellectual Property Riehts" means all ideas, concepts, designs, drawings, packages, works of
authorship, processes, methodologies, information, developments, materials, inventions, improvements, software,
and all intellectual property rights worldwide arising under statutory or common law, including without limitation, all
(i) patents and patent applications owned or licensable by a party hereto; (ii) rights associated with works of
authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work
applications and mask work registrations; (iii) rights related to protection of trade secrets and Confidential
Information; (iv) trademarks, trade names, service marks and logos; (v) any right analogous to those set forth in clauses
(i) through (iv); and (vi) divisions, continuations, renewals, reissues and extensions of the foregoing (as and to the
extent applicable) now existing, hereafter filed, issued or acquired.
1.15 "Order Form" means DSI's ordering document or online order specifying the Services to be provided
hereunder that is entered into between Subscriber and DSI or its Affiliates, including any addenda and supplements.
By entering into an Order Form, Affiliate(s) agree to be bound by the terms of this Agreement as if an original party.
1.16 "Privacy Polite" means the DSI privacy policy, as amended from time -to -time, which can be viewed at
www.dudesolutions-com/privacy.
1.17 "Professional Service" means the professional, technical, consulting and/or other services to be
performed by DSI that are ordered by Subscriber on an Order Form or provided without charge (if applicable).
1.18 "Service" means DSI's suite of Software -as -a -Service (SaaS) applications, products and services, as
updated, enhanced or otherwise modified from time -to -time that are ordered by Subscriber on an Order Form or
provided without charge (if applicable) and made available by DSI, including mobile components. For avoidance of
doubt, Service applies only to Subscriber's production instances and shall exclude all beta and early adopter programs,
user interface (UI) or user experience (UX) changes, feature or functionality improvements, and enhancements where
a workaround exists in production.
1.19 "Subscriber" means the legal entity identified on the Account.
1.20 "Subscriber Data" means all data, information and other content provided by or on behalf of Subscriber
to the Service, including that which the Account Users input or upload to the Service.
1.21 "Subscriber -Hosted Software" means DSI's suite of Software -as -a -Service (SaaS) software applications,
as updated, enhanced or otherwise modified from time -to -time that are: (i) ordered by Subscriber on an Order Form
or provided without charge (if applicable) and made available by DSI, including mobile components, and (ii) granted a
non-exclusive and non -transferable license (with no right to sublicense) to install and use software for the Term.
1.22 "Third Party" means a party other than Subscriber or DSI.
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Section 2.0 Use of the Service and API; Proprietary Rights
2.1 DSI Cloud Service; Subscriber -Hosted Software.
(a) DSI Cloud Service. Unless otherwise specified on an applicable Order Form, DSI Service shall be
provided as DSI-hosted, cloud Service. DSI grants Subscriber a non-exclusive and non -transferable right to access and
use the Service for the Term.
(b) Subscriber -Hosted Software. Where an applicable Order Form sets forth Subscriber -Hosted Software,
subject to the provisions of this Agreement, DSI grants Subscriber a non-exclusive and non -transferable license (with
no right to sublicense) to install and use the software for the Term. In respect of such Subscriber -Hosted Software:
(i) Subscriber is responsible for installing and implementing the Subscriber -Hosted Software and
any updates, enhancements or modifications, except for any Professional Services set forth on an applicable
Order Form (i.e. implementation).
(ii) Subscriber may create copies of the Subscriber -Hosted Software to the extent strictly
necessary to install and operate the Subscriber -Hosted Software for use in accordance with this Agreement,
and to create backup and archival copies to the extent reasonably required in the normal operation of
Subscriber systems. All such copies must include a reproduction of all copyright, trademarks or other
proprietary notices contained in the original copy of the Subscriber -Hosted Software.
(iii) Subscriber is responsible for providing the Environment and ensuring the Environment
functions properly, and for implementing appropriate data backup and security measures. "Environment"
means the systems, networks, servers, equipment, hardware, software and other material specified in
Documentation or an Order Form on which, or in connection with which, the Subscriber —Hosted Service will
be used.
2.2 Use of the Service and API.
(a) Service Subscription. Subject to the terms of this Agreement (including, without limitation, the
responsibilities, limitations and restrictions set forth in this Section 2.2 and payment of the Subscription Fees required
hereunder), (i) DSI shall permit Subscriber's Account Users to access and use the Service(s) during the Term, including
access and use of all of the Content contained in or made available through the Service(s), (ii) Subscriber shall be
automatically enrolled in the ITSP ("Implementation, Training and Support Proigram" ), if applicable, and (iii) DSI shall
use commercially reasonable efforts to make available to Subscriber each of the components described in the ITSP,
when applicable. Subscriber agrees that it shall use the Service(s) solely for internal business purposes, and access
and use of the Service(s) and the ITSP shall be limited to Account Users.
(b) API License. Subject to the terms of this Agreement (including, without limitation, the
responsibilities, limitations and restrictions set forth in this Section 2.2 and payment of the Subscription Fees required
hereunder), DSI hereby grants to Subscriber a limited, non-exclusive, non -transferable, revocable license (without the
right to sublicense) to use and make calls to the API solely for the purpose of (i) extracting and transferring Subscriber
Data from the Service to other Third Party applications used by the Subscriber for internal business purposes, and/or
(ii) Subscriber's internal development efforts to develop applications to work in conjunction with the functionality and
capabilities of the Service purchased by Subscriber ("Subscriber Applications"). Subscriber shall have no right to
distribute, license (whether or not through multiple tiers) or otherwise transfer the API to any Third Party or
incorporate the API in any software, product, or technology. DSI sets and enforces limits on Subscriber use of DSI API
(e.g. limiting the number of API requests that may be made or the number of Subscriber uses). Subscriber agrees to,
and will not circumvent, DSI's usage guidelines and volume limits as described in DSI's technical documentation or
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other documentation otherwise made available to Subscriber. Any usage beyond the guidelines and volume limits
must obtain DSI's prior express consent from DSI. DSI may modify, amend, change, or deprecate all or part of the API
from time -to -time (an "API Modification"). DSI shall use reasonable efforts to provide thirty (30) day notice to
Subscriber of any such API Modifications. Any changes to new API functions or changes made for legal reasons will
be effective immediately. If Subscriber does not agree to the modification, Subscriber may discontinue use of that API.
Subscriber's continued use of the API constitutes acceptance of the modifications.
(c) Account Setup. To subscribe to the Service, Subscriber must establish its Account, which may only
be accessed and used by its Account Users. To setup an Account User, Subscriber must provide DSI (and agree to
maintain, promptly update and keep) true, accurate, current and complete information for such Account User. If
Subscriber or any applicable Account User provides any information that is untrue, inaccurate, not current or
incomplete, DSI has the right to immediately suspend or terminate Subscriber's Account and usage of the Service and
API and refuse any and all future use. Each Account User must establish and maintain personal, non -transferable
Access Credentials, which shall not be shared with, or used by, any other Third Party. Subscriber may not transfer an
Account User's Access Credentials and/or its right to access and use the Service to a different user. Subscriber shall
be solely responsible for any and all activities that occur under its Account, including all acts and omissions of its
Account Users. Subscriber shall notify DSI immediately of any unauthorized use of its Account and/or any other
breach of security of the Service that it suspects or becomes aware of.
(d) Subscriber Responsibilities. Subscriber shall: (i) take appropriate action to ensure that non -Account
Users do not access or use the Service or API; (ii) ensure that all Account Users comply with all of the terms and
conditions of this Agreement, including the limitations and restrictions set out in Section 2.2(e); (iii) be solely
responsible for the accuracy, integrity, legality, reliability and appropriateness of all Subscriber Data created by
Account Users using the Service; (iv) access and use the Service solely in compliance with the Documentation and all
applicable local, state, federal, and foreign laws, rules, directives and regulations (including those relating to export,
homeland security, anti -terrorism, data protection and privacy); (v) allow e-mail notifications generated by the Service
on behalf of Subscriber's Account Users to be delivered to Subscriber's Account Users; and (vi) promptly update and
upgrade its system as requested or required in order to ensure continued performance and compatibility with
upgrades to the Service and/or API Modifications (as defined in Section 2.2(g)). Subscriber shall be responsible for any
breach of this Agreement by Account Users.
(e) Limitations and Restrictions. Subscriber agrees that it shall not, and shall not permit any Third Party
to, directly or indirectly: (i) modify, alter, revise, decompile, disassemble, reverse engineer, create derivative works or
attempt to derive the source code of the Service or API; (!!) assign, transfer, lease, rent, sublicense, distribute or
otherwise make available the Service or API, in whole or in part, to any Third Party, including on a timesharing,
software -as -a -service or other similar basis; (iii) share Access Credentials or otherwise allow access or use the Service
or API to provide any service bureau services or any services on a similar basis; (iv) use the Service or API in a way not
authorized in writing by DSI or for any unlawful purpose; (v) use the Service or API to store or transmit infringing,
libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of Third Party privacy
rights; (vi) attempt to tamper with, alter, disable, hinder, by-pass, override, or circumvent any security, reliability,
integrity, accounting or other mechanism, restriction or requirement of the Service or API; (vii) remove, obscure or
alter any copyright, trademark, patent or proprietary notice affixed or displayed by or in the Service; (vii!) perform
load tests, network scans, penetration tests, ethical hacks or any other security auditing procedures on the Service or
API; (ix) interfere with or disrupt the integrity or performance of the Service, API or the data contained therein; (x)
access or use the Service or API in order to replicate applications, products or services offered by DSI and/or
otherwise build a competitive product or service, copy any features, functions or graphics of the Service or API or
monitor the availability and/or functionality of the Service or API for any benchmarking or competitive purposes; (xi)
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under any circumstances, through a Third Party application, a Subscriber Application or otherwise, repackage or resell
the Service, API or any DSI data received via API; (xii) store, manipulate, analyze, reformat, print, and display the
Content for personal use; and (xiii) upload or insert code, scripts, batch files or any other form of scripting or coding
into the Service. Notwithstanding the foregoing restrictions, in the event Subscriber has purchased a Subscription for
Commercial Use (as such term is defined below), Subscriber shall be permitted to use the Service to provide Third
Party services in cases where such Third Parties access the Subscriber provided applications or services, but where
such Third Parties do not have the ability to install, configure, manage or have direct access to the Services. DSI hereby
agrees, subject to payment of the applicable fees, to permit such use and the terms of this Agreement, including
references to "internal use" and/or "internal business operations" shall be deemed to include and permit such use
(hereafter referred to as "Commercial Use").
(f) Additional Service Guidelines. DSI reserves the right to establish or modify general practices and
limits concerning use of the Service. DSI shall use reasonable efforts to provide thirty (30) days' prior notice of any
such modification. DSI also reserves the right to block IP addresses originating a Denial of Service (DoS) attack. DSI
shall notify Subscriber should this condition exist and inform Subscriber of its action. Once blocked, an IP address shall
not be able to access the Service or API and the block may be removed once DSI is satisfied corrective action has taken
place to resolve the issue.
(g) Links to Third Party Websites. To the extent that the Service links to any Third Party website,
application or service, the terms and conditions thereof shall govern Subscriber's rights with respect to such website,
application or service, unless otherwise expressly provided DSI. DSI shall have no obligations or liability arising from
Subscriber's access and use of such linked Third Party websites, applications and services.
(h) Beta Service. From time to time, DSI may make Beta Service available to Subscribers at no charge.
Subscriber may choose to try such Beta Service or not in its sole discretion. Use of Beta Service is at Subscriber's sole
risk and may contain bugs or errors. Subscriber may discontinue use of the Beta Service at any time, in its sole
discretion. Further, DSI may discontinue any and all Beta Service availability at any time in its sole discretion without
notice. NOTWITHSTANDING THE REPRESENTATIONS, WARRANTIES AND DISCLAIMERS IN SECTION 7, BETA SERVICE
AND DOCUMENTATION, ARE PROVIDED ON AN "AS -IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF
ANY KIND. DSI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE,
AND NON -INFRINGEMENT. DSI SHALL HAVE NO INDEMNIFICATION OBLIGATIONS AND NO LIABILITY OF ANY TYPE
WITH RESPECT TO THE BETA SERVICE UNLESS SUCH EXCLUSION IS UNENFORCEABLE UNDER APPLICABLE LAW IN
WHICH CASE DSI'S LIABILITY WITH RESPECTTO THE BETA SERVICE PROVIDED SHALL NOT EXCEED $500.00.
2.3 Proprietary Rights.
(a) Subscriber acknowledges and agrees that (as between Subscriber and DSI) DSI retains all ownership
right, title, and interest in and to the Service, API, the Documentation and the Content, including without limitation
all corrections, enhancements, improvements to, or derivative works thereof (collectively, "Derivative Works"), and
in all Intellectual Property Rights therein or thereto. To the extent any Derivative Work is developed by DSI based
upon ideas or suggestions submitted by Subscriber to DSI, Subscriber hereby irrevocably assigns all rights to modify
or enhance the Service and/or API using such ideas or suggestions or joint contributions to DSI, together with all
Intellectual Property Rights related to such Derivative Works. Nothing contained in this Agreement shall be construed
to convey to Subscriber (or to any party claiming through Subscriber) any Intellectual Property Rights in or to the
Service, API, the Documentation and the Content, other than the rights expressly set forth in this Agreement.
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(b) DSI acknowledges and agrees that (as between Subscriber and DSI) Subscriber retains all ownership
right, title, and interest in and to the Subscriber Data, including all Intellectual Property Rights therein or
thereto. Notwithstanding the foregoing, Subscriber hereby grants DSI and its Affiliates a non-exclusive, royalty -free
license to: (i) access, display, copy, distribute, transmit, publish, disclose and otherwise use all or any portion of the
Subscriber Data to fulfill its obligations under this Agreement. In addition, Subscriber hereby grants DSI a non-
exclusive, royalty -free right to (i) use and incorporate Subscriber's feedback, including but not limited to suggestions,
enhancement requests, recommendations and corrections (the "Feedback") relating to the Service and (ii) use
aggregated and de -identified data generated and/or derived by DSI from the Subscriber Data (the "De -Identified
Data") in order to improve the Service and DSI's performance hereunder, including without limitation, submitting and
sublicensing such De -Identified Data to Third Parties for analytical purposes, provided that DSI shall take commercially
reasonable efforts to conduct such de -identification in a manner that ensures that such De -Identification cannot be
traced back to natural persons.
(c) Subscriber acknowledges the Services may utilize, embed or incorporate Third Party
software and/or tools (each, a "Third -Party Tool") under a license granted to DSI by one or more applicable Third
Parties (each, a "Third -Party Licensor','), which licenses DSI the right to sublicense the use of the Third -Party Tool solely
as part of the Services. Each such sublicense is nonexclusive and solely for Subscriber's internal use and Subscriber
shall not further resell, re -license, or grant any other rights to use such sublicense to any Third Party. Subscriber
further acknowledges that each Third -Party Licensor retains all right, title, and interest to its applicable Third -Party
Tool and all documentation related to such Third -Party Tool. All confidential or proprietary information of each Third -
Party Licensor is Confidential Information of DSI under the terms of this Agreement and shall be protected in
accordance with the terms of Section 8.
Section 3.0 DSI Responsibilities
3.1 Implementation, Training and Support Program (ITSP). During the Term DSI (or its agent,
representative or designee) shall provide and maintain an ITSP program. During the Term, DSI shall, as part of
Subscriber's Subscription Fees, provide telephone and email support ("Support Services").
3.2 Professional Services. DSI shall provide Professional Services that are mutually agreed upon and
described in one or more statements of work that expressly reference this Agreement and, if applicable, DSI's
Professional Services Agreement. Each statement of work shall be effective, incorporated into and forma part of this
Agreement when duly executed by an authorized representative of each of the parties. Each statement of work shall
(i) describe the fees and payment terms with respect the Professional Services being provided pursuant to such
statement of work, (ii) identify any work product that will be developed pursuant to such statement of work, and (iii)
if applicable, sets forth each party's respective ownership and proprietary rights with respect to any work product
developed pursuant to such statement of work.
3.3 Service Levels.
(a) DSI shall use commercially reasonable efforts to make the Service available 99.9% of the time for
each full calendar month during the Term, determined on a twenty-four(24) hours a day, seven (7) days a week basis
(the "Service Standard"). Service availability for access and use by Subscriber(s) excludes unavailability when due to:
(a) any access to or use of the Service by Subscriber or any Account User that does not strictly comply with the terms
of the Agreement or the Documentation; (b) any failure of performance caused in whole or in part by Subscriber's
delay in performing, or failure to perform, any of its obligations under the Agreement; (c) Subscriber's or its Account
User's Internet connectivity; (d) any Force Majeure Event; (e) any failure, interruption, outage, or other problem with
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Internet service or Non-DSI Service; (f) Scheduled Downtime; or (g) any disabling, suspension, or termination of the
Service by DSI pursuant to the terms of the Agreement. "Scheduled Downtime" means, with respect to any applicable
Service, the total amount of time (measured in minutes) during an applicable calendar month when such Service is
unavailable for the majority of Subscribers' Account Users due to planned Service maintenance. To the extent
reasonably practicable, DSI shall use reasonable efforts to provide eight (8) hours prior electronic notice of Service
maintenance events and schedule such Service maintenance events outside the applicable business hours.
(b) DSI shall use reasonable efforts to ensure the availability of API in accordance with the service levels
described in Section 3.3(a). Notwithstanding the foregoing, DSI does not guarantee any required uptime,
performance, or integrity of any product, application or service that integrates with and/or otherwise utilizes API
(including, without limitation, any such product, application or service developed by Subscriber). Moreover, DSI shall
not be liable to Subscriber or any Third Party for the unavailability of the API or the failure of API to perform in
accordance with its specifications. Subscriber shall not represent to any Third Party any availability or performance
levels with respect to API.
3.4 Protection of Subscriber Data. DSI shall maintain commercially reasonable administrative, physical,
and technical safeguards for protection of the security, unauthorized access or disclosure of Subscriber Data. All data
and information provided by Subscriber through its use of the Service is subject to DSI's Privacy Policy, which can be
viewed by clicking the "Privacy" hypertext link located within the Service. By using the Service, Subscriber accepts and
agrees to be bound and abide by such Privacy Policy. At all times during the Subscription term and upon written
request of Subscriber within thirty (30) days after the effective date of termination or expiration of this Agreement,
Subscriber data shall be available for Subscriber's export and download. Following the thirty (30) days after
termination or expiration, DSI shall not be obligated to maintain Subscriber Data and may delete or destroy what
remains in its possession or control unless prohibited by law.
(a) If applicable in the United States, if Subscriber is a "Covered Entity" under the Health Insurance
Portability and Accountability Act of 1996 (as amended from time to time, "HIPAA"), and if Subscriber must reasonably
provide protected health information as defined by HIPAA in order to use the Services, DSI shall be Subscriber's
"Business Associate" under HIPAA, and any Subscriber Data provided by Subscriber to DSI in their capacities as a
Covered Entity and Business Associate, respectively, DSI and Subscriber shall enter into a Business Associate
Agreement (the form of which shall be reasonably satisfactory to DSI).
(b) If applicable in the United Kingdom, Switzerland or European Economic Area (EEA), both parties will
comply with the applicable requirements of Data Protection Legislation. "Data Protection Legislation" means (i) the
United Kingdom's Data Protection Act 2018, and (ii) the General Data Protection Regulation ("GDPR") and any national
implementing laws, regulations or secondary legislation. DSI and Subscriber agree that DSI will not be processing any
personal data on behalf of the Subscriber as "Data Controller" (defined in accordance with the Data Protection
Legislation). DSI will collect, use, disclose, transfer and store personal information when needed to administer this
Agreement and for its operational and business purposes, in accordance with Data Protection Legislation. To the
extent personal data from the UK, Switzerland or the EEA are processed by DSI, the terms of a data processing
addendum ("DPA") must be signed by the parties. To the extent DSI processes personal data, its binding corporate
rules and the standard contract clauses shall apply, as set forth in the DPA. For standard contract clauses, Subscriber
and DSI agree that Subscriber is the data exporter and Subscriber's acceptance of this Agreement or applicable Order
Form shall be treated as its execution of the standard contract clauses.
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Section 4.0 Third Party Interactions
4.1 Relationship to Third Parties. In connection with Subscriber's use of the Service, at Subscriber's
discretion, Subscriber may: (i) participate in Third Party promotions through the Service; (ii) purchase Third Party
goods and/or services, including implementation, customization, content, forms, schedules, integration and other
services; (iii) exchange data, integrate, or interact between Subscriber's Account, the Service, API and a Third Party
provider; (iv) receive additional functionality within the user interface of the Service through use of the API; and/or
(v) receive content, knowledge, subject matter expertise in the creation of forms, content and schedules. Any such
activity, and any terms, conditions, warranties or representations associated with such Third Party activity, shall be
solely between Subscriber and the applicable Third Party. DSI shall have no liability, obligation or responsibility for
any such Third Party correspondence, purchase, promotion, data exchange, integration or interaction. DSI does not
warrant any Third Party providers or any of their products or services, whether or not such products or services are
designated by DSI as "certified," "validated," "premier' and/or any other designation. DSI does not endorse any sites
on the Internet that are linked through the Service.
4.2 Ownership. Subscriber is the owner of all Third Party content and data loaded into the Subscriber
Account. As the owner, it is Subscriber's responsibility to make sure it meets its particular needs. DSI shall not
comment, edit or advise Subscriber with respect to such Third Party content and data in any manner.
Section 5.0 Fees and Payment.
5.1 Fees. Subscriber shall pay to DSI all fees specified in Order Forms. All Subscription Fees are non-
refundable and non -cancelable, and the Subscription Fee for such Service subscription shall be invoiced upon
commencement of the Initial Term of a Service subscription. Thereafter, DSI shall make reasonable efforts to invoice
Subscriber for each applicable Subscription Fee sixty (60) days prior to its commencement. Unless Subscriber provides
written notice of termination in accordance with Section 6.1, Subscriber agrees to pay all fees no later than thirty (30)
days after the receipt of DSI's applicable invoice. Subscriber is responsible for providing complete and accurate billing
and contact information to DSI and notifying DSI promptly of any changes to such information.
5.2 Automatic Payments. Subscriber shall, upon the written request from DSI, establish and maintain
valid and updated credit card information or a valid ACH auto debit account (in each case, the "Automatic_PaVment
Method"). Upon establishment of such Automatic Payment Method, DSI is hereby authorized to charge any
applicable Subscription Fee using such Automatic Payment Method.
5.3 Overdue Charges. If any invoiced amount is not received by DSI by the due date, without limiting
DSI's rights or remedies, those overdue charges may accrue late interest at the rate of 1.5% of the outstanding balance
per month, or the maximum amount permitted by law, whichever is lower. DSI reserves the right to condition an
overdue Account's future subscription renewals and Order Forms on shorter payment terms than those stated herein.
5.4 Renewal Charges. DSI maintains the right to increase Subscription Fees and other applicable fees and
charges in connection with each Renewal Term.
5.5 Taxes. DSI's fees do not include any taxes, levies, duties or similar governmental assessments of any
nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever
(collectively, "taxes"). Subscriber is responsible for paying all Taxes associated with its purchases hereunder. If DSI
has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section 5.5, DSI shall
invoice Subscriber and Subscriber shall pay that amount unless Subscriber provides DSI with a valid tax exemption
certificate authorized by the appropriate taxing authority. Subscriber agrees to indemnify and hold DSI harmless from
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any encumbrance, fine, penalty or other expense which DSI may incur as a result of Subscriber's failure to pay any
Taxes required hereunder. For clarity, DSI is solely responsible for taxes assessable against DSI based on its income,
property and employees.
5.6 Purchases through Resellers. In the event Subscriber purchases the Services (including any renewals
thereof) through an authorized reseller of DSI, the terms and conditions of this Agreement shall apply and supersede
any other agreement except for any terms and conditions related to fees, payment or Taxes. Such terms and
conditions shall be negotiated solely by and between Subscriber and such authorized reseller. In the event Subscriber
ceases to pay the reseller, or terminates its agreement with the reseller, DSI shall have the right to terminate
Subscriber's access to the Service at any time upon thirty (30) days' prior written notice to Subscriber unless Subscriber
and DSI have agreed otherwise in writing.
Section 6.0 Term and Termination
6.1 Term. This Agreement commences on the date Subscriber establishes its Account and continues
until the Service subscription hereunder has expired or has been terminated (the "Term"). The initial term of the
Service subscription shall be set forth on the Order Form (the "Initial Term"). Thereafter, except as stated on an
applicable Order Form, the Service subscription shall automatically renew for additional periods equal to the
expiring subscription term or one year, whichever is longer (each, a "Renewal Term") unless either party has
provided written notice of its intent to terminate the Service subscription not less than forty-five (45) days prior to
the expiration of the then -current Initial or Renewal Term applicable to the Service subscription.
6.2 Termination. Either party may terminate this Agreement (including its Service subscription and
Account) prior to the expiration of the Term if (i) the other party commits a material breach of this Agreement and
fails to cure such breach within thirty (30) days after written notice of such breach is given by the non -breaching party
or (ii) Subscriber becomes the subject of a petition in bankruptcy or other similar proceeding; provided that if the
breach involves a failure of Subscriber to pay any of the fees required under this Agreement, the cure period shall be
reduced to ten (10) days. If the Agreement is terminated by Subscriber in accordance with this Section 6.2, DSI will
refund any prepaid Subscription Fees covering the remainder of the Term of all Order Forms after the effective date
of termination. If the Agreement is terminated by DSI in accordance with this Section 6.2, Subscriber will pay any
unpaid fees covering the remainder of the term on all Order Forms to the extent permitted by applicable law. In no
event will termination relieve the Subscriber of its obligation to pay any fees payable to DSI for the period prior to the
effective date of termination. Without limiting the foregoing, in the event such breach that gives rise to the right by
DSI to terminate this Agreement, DSI may elect to suspend Subscriber's access and use of the Service, API and the
Account until the breach is cured. DSI's exercise of its suspension right shall be without prejudice to DSI's right to
terminate this Agreement upon written notice to Subscriber.
6.3 Effect of Termination. Upon termination of this Agreement, (i) Subscriber's access and use of the
Service shall automatically and immediately cease, and (ii) subject to Section 3.4, DSI shall have no obligation to
maintain the Subscriber Data or to forward the Subscriber Data to Subscriber or any Third Party.
6.4 Survival. The following portions of this Agreement shall survive termination of this Agreement and
continue in full force and effect: Sections 2, 3.4, 6.3, 7, 8 and 9. Termination of this Agreement, or any of the
obligations hereunder, by either party shall be in addition to any other legal or equitable remedies available to such
party, except to the extent that remedies are otherwise limited hereunder.
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Section 7.0 Representations, Warranties and Disclaimers
7.1 Representations. Each party represents that: (i) it has full right, title and authority to enter into this
Agreement; and (ii) this Agreement constitutes a legal, valid and binding obligation of Subscriber, enforceable against
it in accordance with its terms.
7.2 Warranties.
(a) DSI represents and warrants that during the applicable subscription Term that Service will perform
materially in accordance with the applicable Documentation. For any breach of this warranty in Section 7.2(a),
Subscriber's exclusive remedy and DSI's entire liability shall be as described in Section 6.2 (Termination).
(b) DSI represents and warrants that all such Professional Services shall be performed in a professional
and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty
in Section 7.2(b), Subscriber's exclusive remedy and DSI's entire liability shall be the re -performance of the applicable
Professional Services.
(c) SERVICE, CONTENT, DOCUMENTATION, STORED DATA AND BETA SERVICE ARE PROVIDED "AS -IS"
AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY. EXCEPT AS EXPRESSLY STATED HEREIN, THE PARTIES MAKE NO
REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH,
AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT, DOCUMENTATION, STORED DATA
OR BETA SERVICES. PARTIES SPECIFICALLY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON -INFRINGEMENT TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW.
7.3 Indemnification.
(a) Indemnity by DSI. DSI shall defend and indemnify Subscriber from any loss, damage or expense
(including reasonable attorneys' fees) awarded by a court of competent jurisdiction, or paid in accordance with a
settlement agreement signed by Subscriber, in connection with any Third Party claim (each, a "Claim") alleging that
Subscriber's use of the Service as expressly permitted hereunder infringes upon any intellectual property rights,
patent, copyright or trademark of such Third Party, or misappropriates the trade secret of such Third
Party; provided that Subscriber (x) promptly gives DSI written notice of the Claim; (y) gives DSI sole control of the
defense and settlement of the Claim; and (z) provides to DSI all reasonable assistance, at DSI's expense. If DSI receives
information about an infringement or misappropriation claim related to the Service, DSI may in its sole discretion and
at no cost to Subscriber: (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for
Subscriber's continued use of the Service, or (iii) terminate this Agreement (including Subscriber's Service
subscriptions and Account) upon prior written notice and refund to Subscriber any prepaid Subscription Fee covering
the remainder of the Term of the terminated Service subscriptions. Notwithstanding the foregoing, DSI shall have no
liability or obligation with respect to any Claim that is based upon or arises out of (A) use of the Service in combination
with any software or hardware not expressly authorized by DSI, (B) any modifications or configurations made to the
Service by Subscriber without the prior written consent of DSI, and/or (C) any action taken by Subscriber relating to
use of the Service that is not permitted under the terms of this Agreement. This Section 7.3(a) states Subscriber's
exclusive remedy against DSI for any Claim of infringement or misappropriation of a Third Party's Intellectual Property
Rights related to or arising from Subscriber's use of the Service.
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(b) To the extent permitted by law, Subscriber shall defend and indemnify DSI from any loss, damage or
expense (including reasonable attorneys' fees) awarded by a court of competent jurisdiction, or paid in accordance
with a settlement agreement signed by DSI, in connection with any Claim alleging that the Subscriber Data, or
Subscriber's use of the Service or API in breach of this Agreement, infringes upon any patent, copyright or trademark
of such Third Party, or misappropriates the trade secret of such Third Party; unless applicable laws prohibit public
entities from such indemnification and provided that DSI (x) promptly gives Subscriber written notice of the Claim; (y)
gives Subscriber sole control of the defense and settlement of the Claim; and (z) provides to Subscriber all reasonable
assistance, at Subscriber's expense. This Section 7.3(b) states DSI's exclusive remedy against Subscriber for any Claim
of infringement of misappropriation of a Third Party's Intellectual Property Rights related to or arising from the
Subscriber Data or Subscriber's use of the Service.
7.4 Limitation of Liability. IN NO EVENT SHALL DSI, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO
SUBSCRIBER IN EXCESS OF THE AMOUNT OF SUBSCRIPTION FEES PAID BY SUBSCRIBER TO DSI PURSUANT TO THIS
AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE FIRST ACT OR OMISSION GIVING RISE TO THE LIABILITY.
UNDER NO CIRCUMSTANCES SHALL DSI HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR
PUNITIVE DAMAGES, EVEN IF DSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND
WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR PRODUCTS LIABILITY. NOTHING IN
THIS SECTION SHALL LIMIT SUBSCRIBER'S PAYMENT OBLIGATIONS UNDER SECTION 5.
Section 8.0 Confidentiality
8.1 Protection of Confidential Information. The Receiving Party agrees that it shall: (i) use the
Confidential Information solely for a purpose permitted by this Agreement, (ii) use the same degree of care as
Receiving Party uses with its own Confidential Information, but no less than reasonable care, to protect Confidential
Information and to prevent any unauthorized access, reproduction, disclosure, or use of any of Confidential
Information; and(iii) restrict access to the Confidential Information of the Disclosing Party to those of its employees,
contractors and agents who need such access for purposes consistent with this Agreement and who are prohibited
from disclosing the information by a contractual, legal or fiduciary obligation no less restrictive than this Agreement.
Receiving Party shall not use, reproduce, or directly or indirectly allow access to the Confidential Information except
as herein provided or export Confidential Information to any country prohibited from obtaining such information
under any applicable laws or regulations.
8.2 Compelled Disclosure. If Receiving Party is required to disclose any Confidential Information to
comply with law, to the extent legally permitted, Receiving Party shall: (a) give the Disclosing Party reasonable prior
written notice to permit Disclosing Party to challenge or limit any such legally required disclosure; (b) disclose only
that portion of the Confidential Information as legally required to disclose; and (c) reasonably cooperate with
Disclosing Party, at Disclosing Party's request and expense, to prevent or limit such disclosure.
8.3 Records Requests. To the extent permitted by law, Subscriber shall treat as exempt from treatment
as a public record, and shall not unlawfully disclose in response to a request made pursuant to any applicable public
records law, any of DSI's Confidential Information. Upon receiving a request to produce records under any applicable
public records or similar law, Subscriber shall immediately notify DSI and provide such reasonable cooperation as
requested by DSI and permitted by law to oppose production or release of such DSI Confidential Information.
8.4 Remedies. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any
unauthorized use or disclosure of Disclosing Party's Confidential Information and agrees to reasonably cooperate with
Disclosing Party in its efforts to mitigate any resulting harm. Receiving Party acknowledges that Disclosing Party would
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have no adequate remedy at law should Receiving Party breach its obligations relating to Confidential Information
and agrees that Disclosing Party shall be entitled to enforce its rights by obtaining appropriate equitable relief,
including without limitation a temporary restraining order and an injunction.
Section 9.0 Miscellaneous
9.1 Compliance with Laws. Each party will comply with all laws and applicable government rules and
regulations insofar as they apply to such party in its performance of this Agreement's rights and obligations.
9.2 Pubes. DSI is permitted to: (1) include Subscriber's name and logo in accordance with Subscriber's
trademark guidelines; and (ii) list the Services selected by Subscriber, in public statements and client lists. Subscriber
agrees to participate in press releases, case studies and other collateral using quotes or requiring active participation,
the specific details of which shall be subject to mutual consent.
9.3 Relationship of the Parties. DSI is performing pursuant to this Agreement only as an independent
contractor. DSI has the sole obligation to supervise, manage, contract, direct, procure, perform or cause to be
performed its obligations set forth in this Agreement, except as otherwise agreed upon by the parties. Nothing set
forth in this Agreement shall be construed to create the relationship of principal and agent between DSI and
Subscriber. DSI shall not act or attempt to act or represent itself, directly or by implication, as an agent of Subscriber
or its affiliates or in any manner assume or create, or attempt to assume or create, any obligation on behalf of, or in
the name of, Subscriber or its affiliates.
9.4 Waiver. No failure or delay by either party in enforcing any of its rights under this Agreement shall be
construed as a waiver of the right to subsequently enforce any of its rights, whether relating to the same or a
subsequent matter.
9.5 Assignment. Subscriber shall have no right to transfer, assign or sublicense this Agreement or any of
its rights, interests or obligations under this Agreement to any Third Party and any attempt to do so shall be null and
void. DSI shall have the full ability to transfer, assign or sublicense this Agreement or any of its rights, interests or
obligations under this Agreement.
9.6 Force Maieure. Subject to the limitations set forth below and except for fees due for Service rendered,
neither party shall be held responsible for any delay or default, including any damages arising therefrom, due to any
act of God, act of governmental entity or military authority, explosion, epidemic casualty, flood, riot or civil
disturbance, war, sabotage, unavailability of or interruption or delay in telecommunications or Third Party services,
failure of Third Party software, insurrections, any general slowdown or inoperability of the Internet (whether from a
virus or other cause), or any other similar event that is beyond the reasonable control of such party (each, a "Force
Maieure Event"). The occurrence of a Force Majeure Event shall not excuse the performance by a party unless that
party promptly notifies the other party of the Force Majeure Event and promptly uses its best efforts to provide
substitute performance or otherwise mitigate the force majeure condition.
9.7 Entity, Governing Law, Notices and Venue. All notices, instructions, requests, authorizations,
consents, demands and other communications hereunder shall be in writing and shall be delivered by one of the
following means, with notice deemed given as indicated in parentheses: (a) by personal delivery (when actually
delivered); (b) by overnight courier (upon written verification of receipt); (c) by business mail (upon written verification
of receipt); or (d) except for notice of indemnification claims, via electronic mail to Subscriber at the e-mail address
maintained on Subscriber's Account and to DSI at notice@dudesolutions.com. The DSI entity entering into this
Agreement, the address to which notices shall be directed under this Agreement and the law that will apply in any
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dispute or lawsuit arising out of or in connection with this Agreement shall depend upon where Subscriber is
domiciled:
(a) In the United States and all other domiciles not otherwise mentioned, the DSI entity is Dude Solutions,
Inc., a Delaware corporation, notices shall be addressed to 11000 Regency Parkway, Suite 400, Cary, NC 27518,
Attn: General Counsel, governing law shall be Delaware and the courts with exclusive jurisdiction shall be
Delaware without regard to the principles of conflicts of laws, unless otherwise required by applicable law where
Subscriber is a public entity.
(b) In Canada, the DSI entity is Dude Solutions Canada, Inc., an Ontario corporation, notices shall be
addressed to Bay Adelaide Centre, 333 Bay Street, Suite 2400, PO Box 20, Toronto, ON, M5H 2T6 Attn: Dude
Solutions General Counsel, governing law shall be Ontario and the courts with exclusive jurisdiction shall be
Toronto, Ontario, Canada without regard to the principles of conflicts of laws.
(c) In the United Kingdom or a country in Europe, the DSI entity is Confirm Solutions Limited, a limited
company in England, notices shall be addressed to Central House Unit C Compass Centre North, Chatham
Maritime, Chatham, England, ME4 4YG, Attn: General Counsel, governing law shall be England and the courts
with exclusive jurisdiction shall be London, England without regard to the principles of conflicts of laws.
(d) In Australia, New Zealand, a country in Asia or the Pacific region, the DSI entity is Assetic Australia Pty
Ltd, a proprietary limited company in Australia, notices shall be addressed to Level 9, 257 Collins Street,
Melbourne, VIC 3000 Australia, Attn: General Counsel, governing law shall be Australia and the courts with
exclusive jurisdiction shall be New South Wales, Australia without regard to the principles of conflicts of laws.
9.8 Interpretation of Agreement. The Section headings contained in this Agreement are solely for the
purpose of reference, are not part of the agreement of the parties, and shall not affect in any way the meaning or
interpretation of this Agreement. Any reference to any federal, state, local or foreign statute or law shall be deemed
to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
9.9 No Third Party Beneficiaries. No person or entity not a party to the Agreement shall be deemed to be a
third party beneficiary of this Agreement or any provision hereof.
9.10 5everability. The invalidity of any portion of this Agreement shall not invalidate any other portion of
this Agreement and, except for such invalid portion, this Agreement shall remain in full force and effect.
9.11 Entire Agreement. This Agreement, including any applicable Order Form, is the entire agreement
between Subscriber and DSI regarding Subscriber's use of the Service and supersedes all prior and contemporaneous
agreements, proposals or representations, written or oral, concerning its subject matter. No modification,
amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party
against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition
stated in any purchase order or in any other order documentation is void. In the event of any conflict or inconsistency
between the documents, the order of precedence shall be (1) the applicable Order Form, (2) any schedule or
addendum to this Agreement, and (3) the content of this Agreement.
9.12 Export Compliance. The Service, Professional Service, Content or other technology DSI may
make available, and derivatives thereof may be subject to export laws and regulations of the United States and other
jurisdictions. Each party represents that it is not named on any U.S. government denied -party list. Subscriber shall
not permit any Account User to access or use any Service, Content or other DSI technology in a U.S.-embargoed
country or region or in violation of any U.S. export law or regulation.
9.13 Anti -Corruption. Neither party has received or been offered any illegal or improper bribe,
kickback, payment, gift, or thing of value from an employee or agent of the other party in connect with this Agreement.
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Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
If Subscriber learns of any violation of the above restriction, Subscriber shall immediately notify DSI.
9.14 Cooperative Use. With Subscriber's approval, the market research conducted by Subscriber during its
selection process for the Services may be extended for use by other jurisdictions, municipalities, and government
agencies of Subscriber's state. Any such usage by other entities must be in accordance with ordinance, charter, and/or
procurement rules and regulations of the respective political entity.
9.15 Modifications. DSI may revise the terms of this Agreement from time -to -time and shall post the most
current version of this Agreement on its website. If a revision meaningfully reduces Subscriber's rights, DSI shall notify
Subscriber.
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PROFESSIONAL SERVICES ADDENDUM
THIS PROFESSIONAL SERVICES ADDENDUM ("Addendum") is an addendum to the Master Subscription Agreement (the
"Agreement") between Dude Solutions, Inc. ("DSI") and Subscriber, as defined in the Agreement. This Addendum applies
only to the extent that Subscriber and DSI execute an Order Form which includes a Statement of Work ("SOW") for the
provision of Professional Services to be provided by DSI for Subscriber.
BY ACCEPTING THIS ADDENDUM, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER
FORM THAT REFERENCES THIS ADDENDUM OR BY OTHERWISE ACCESSING AND USING THE PROFESSIONAL SERVICES,
SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT. AS A RESULT, PLEASE READ ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT CAREFULLY.
1. DEFINITIONS.
1.1 "Deliverable" means a deliverable under an SOW or Order Form.
1.2 "SOW" means a statement of work describing Professional Services to be provided hereunder, that is entered
into between Subscriber and DSI or which is incorporated into an Order Form that is entered into between Subscriber
and DSI. A DSI Affiliate that executed an SOW with Subscriber will be deemed to be DSI as such term is used in this
Agreement. SOWS or Order Forms are deemed incorporated herein by reference.
All other capitalized terms used but not defined herein shall have the respective meanings set forth in the Agreement.
2. PROFESSIONAL SERVICES.
2.1 Scope. DSI will provide such Professional Services and supply Deliverables to Subscriber in accordance with the terms
of the Agreement and all applicable SOWs or Order Form. Unless otherwise specified in an applicable SOW or Order
Form: (i) DSI will perform the Professional Services based on the schedule set forth in the SOW; (ii) any estimate of hours
or cost are reasonable and good faith estimates only; and (iii) each task is performed as firm fixed price work. DSI shall
only be obliged to supply Professional Services as expressly set forth in the SOW and shall not be obliged to supply any
Professional Services and/or Deliverables until both Parties have approved the applicable SOW.
2.2 Unused Professional Services. Unless otherwise specified in the applicable SOW, an unused order for Professional
Services will expire 12 months from the date of order, and Subscriber will not be entitled to receive a refund for any fees
prepaid for such expired Professional Services.
2.3 Relationship to Other Services. The Addendum is limited to Professional Services and does not convey any right to
use any other DSI Services. Subscriber agrees that Professional Services is not contingent on the delivery of any future
Service functionality or features other than Deliverables, subject to the terms of the applicable SOW or Order Form, or
on any oral or written public comments by DSI regarding future Serice functionality or features.
2.4 Subscriber Cooperation. Subscriber will cooperate reasonably and in good faith with DSI in its performance of
Professional Services by: (i) providing access to Subscriber Data, (ii) allocating sufficient resources and timely performing
any tasks reasonably necessary to enable DSI to perform its obligations under the SOW or Order Form, and (iii) actively
participate in scheduled project meetings. Any delays in the performance of Professional Services or delivery of
Deliverables caused by Subscriber may result in additional applicable charges for resource time.
2.5 Acceptance. Any Deliverables shall be described in the SOW or Order Form. Unless otherwise specified in the
applicable SOW, Deliverables will be considered accepted upon written notice thereof (e-mail sufficient) from Subscriber
or two (2) business days from delivery if Subscriber has not first provided written notice of rejection, provided
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Subscriber may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth
in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the
material failure to conform to its specifications. In response to rejection, DSI may revise and redeliver the Deliverable,
and thereafter the procedures of this Section will repeat.
3. FEES & PAYMENT TERMS.
3.1 Payment. Subscriber will pay DSI the fees specified in each SOW or Order Form contained therein. Unless the SOW
or Order Form provides otherwise, Subscriber will pay DSI within thirty (30) calendar days from the date of invoice.
3.2 Incidental Expenses. Subscriber will reimburse DSI for travel and out-of-pocket expenses incurred in connection with
Professional Services. If an estimate of incidental expenses is provided in the applicable SOW or Order Form, DSI will not
exceed such estimate without the written consent of Subscriber.
4. TERM AND TERMINATION.
4.1 Term. Each SOW Term shall begin on the effective date specified in the applicable SOW or Order Form and end on
the date that the Professional Services are completed.. Unless earlier terminated as set forth below, the terms of this
Addendum will continue until termination or expiration of the applicable SOW. Termination shall be in accordance with
the Agreement.
4.2 Termination. Either party may terminate a SOW or. these PS Terms for the other's material breach of such SOW or
PS Terms, as applicable, on thirty (30) days' written notice, provided that if the other party cures the breach before
expiration of such notice period, the SOW will not terminate. Additionally, all SOWS will immediately terminate upon
termination or expiration of the Agreement.
4.3 Effect of Termination. Upon termination of a SOW: (1) if such SOW provides for an hourly or per unit fee, Subscriber
will pay DSI such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee,
Subscriber will pay DSI the reasonable value of the Professional Services rendered by DSI up to the termination date.
Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW.
S. PROPRIETARY RIGHTS AND LICENSES.
5.1 Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential
Information.
5.2 Subscriber Data. Subscriber does not grant to DSI any rights in or to Subscriber's intellectual property except such
licenses as are required for DSI to perform its obligations under the Agreement.
5.3 License for Deliverables. Upon payment of fees due under an applicable SOW or Order Form, DSI grants Subscriber
a worldwide, perpetual, non-exclusive, non -transferable, royalty -free license to copy, maintain, use and run (as
applicable) solely for its internal business purposes associated with its use of DSI's Services any Deliverables created by
DSI solely for Subscriber under this Agreement. DSI and Subscriber each retain all right, title and interest in their
respective Intellectual Property and DSI retains all ownership rights in the Deliverables.
6. WARRANTY.
DSI represents and warrants that all Professional Services shall be performed in a professional and workmanlike manner
in accordance with generally accepted industry standards. For any breach of this warranty in Section 5, Subscriber's
exclusive remedy and DSI's entire liability shall be the re -performance of the applicable Professional Services.
7. DISCLAIMER.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH SECTION 5 ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY
LAW, DSI AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE DELIVERABLES
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OR THE PERFORMANCE OF PROFESSIONAL SERVICES HEREUNDER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON -INFRINGEMENT. DSI DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE
DELIVERABLES OR THE RESULTS SUBSCRIBER MAY OBTAIN BY USING THE DELIVERABLES. IN PARTICULAR, DSI DOES NOT
WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE DELIVERABLES, THAT THE DELIVERABLES WILL
CONTINUE TO FUNCTION WITH ANY SUBSCRIPTION SERVICES AFTER THE EXPIRATION OF THE APPLICABLE WARRANTY
PERIOD, OR THAT DSI WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD
PARTY ACCESS.
8. NON -EXCLUSIVITY OF PROFESSIONAL SERVICES.
Notwithstanding the Confidentiality obligations set forth in Section 8 of the Agreement, Subscriber acknowledges and
agrees that (i) multiple Subscribers may require similar Professional Services or Deliverables and that DSI may be
developing similar Professional Services and Deliverables for other third parties, (ii) DSI may currently or in the future be
developing information internally, or receiving information from other parties, that is similar to the Confidential
Information of Subscriber, (iii) nothing will prohibit DSI from developing or having developed for it customizations,
configurations, feature, concepts, systems or techniques that are similar to the Deliverables, and (iv) nothing will
prohibit DSI from re -using with another Subscriber or making generally available as part of subscription services all or
part of any customization, configuration, feature, concept, system or technique developed hereunder.
9. IP INDEMNITY
9.1 Indemnification by DSI. Subject to this Addendum, DSI will (i) defend, or at its option settle, any claim, demand,
action or legal proceeding ("Claim") made or brought against Subscriber by a third party alleging that the use of the
Deliverable(s) as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii)
pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based
upon such alleged infringement or (b) those damages agreed to by DSI in a monetary settlement of such Claim. DSI's
obligations to defend or indemnify will not apply to the extent that a Claim is based on (1) Subscriber Data, Subscriber's
or a third party's technology, software, materials, data or business processes; (II) a combination of the Deliverable(s)
with non-DSI products or services; or (III) any use of the Deliverable(s) not in compliance with this Addendum. In the
event of a Claim, DSI may, in its discretion and at no cost to Subscriber (A) modify the Deliverable(s) so that they are no
longer the subject of an infringement claim, (B) obtain a license for Subscriber's continued use of the Deliverable(s) in
accordance with this Addendum, or (C). to suspend use of the Deliverable in question and refund to Subscriber a pro
rata portion of the fees paid for every month during which Subscriber is prevented from using the infringing Deliverable
as a result of such infringement, during the first three years after delivery of such Deliverable.
9.2 Indemnification by Subscriber. Subject to this Addendum, Subscriber will (i) defend, or at its option settle, any Claim
made or brought against DSI by a third party alleging that (1) Subscriber Data, Subscriber's or a third party's technology,
software, materials, data or business processes; (II) a combination of the Deliverables with non-DSI products or services;
or (III) Subscriber's use of the Deliverables , other than as authorized in this Addendum, violates applicable law or
regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any
final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement
of such Claim.
For clarity, THIS SECTION 8 STATES DSI'S SOLE OBLIGATION, AND SUBSCRIBER'S SOLE REMEDY, WITH REGARDS TO
CLAIMS THAT THE DELIVERABLES INFRINGE ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL DSI, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO SUBSCRIBER IN
EXCESS IF THE TOTAL AMOUNT PAID BY SUBSCRIBER UNDER THE APPLICABLE SOW TO WHICH THE CLAIM RELATES. THE
ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF
LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BYLAW. UNDER NO
CIRCUMSTANCES SHALL DSI HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR
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OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES,
EVEN IF DSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS
BASED ON CONTRACT, TORT, STRICT LIABILITY OR PRODUCTS LIABILITY. NOTHING IN THIS SECTION SHALL LIMIT
SUBSCRIBER'S PAYMENT OBLIGATIONS UNDER SECTION 3.
11. MISCELLANEOUS
11.1 Order of Precedence. In the event of a conflict, the provisions of an authorized SOW will prevail over those of this
Addendum. Neither party's acts nor omissions related to Professional Services, to a SOW, or to this Addendum, including
without limitation breach of a SOW or of this Addendum, will give the other party any rights or remedies not directly
related to the SOW in question.
11.2 Independent Contractor. The parties are independent contractor and nothing in this Agreement should be
construed to create a partnership, agency, joint venture, fiduciary or employment relationship between the parties.
Neither party is authorized to make any representation or commitment on behalf of the other party. Each Party assumes
full responsibility for the actions of its personnel while performing Services and such party will be solely responsible for
the supervision, daily direction, control of its personnel and for the payment of all of their compensation.
11.3 No Third -Party Beneficiaries. There are no third -party beneficiaries to this Agreement.
11.4 Force Majeure. Neither party will be responsible for failure or delay of performance of a SOW if caused by an act of
nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the
obligated party; government restrictions (including the denial or cancellation of any export or other license); or other
event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect
of a force majeure event. If such event continues for more than thirty (30) days, either party may cancel unperformed
Professional Services upon written notice.
11.5 Non -Solicitation. During the Term of this Addendum and for twelve (12) months thereafter, Subscriber will not
solicit for employment, nor knowingly employ (either as an employee, contractor or agent), any of DSI's employees or
subcontractors.
11.6 Subcontractors. DSI may, in its reasonable discretion, use subcontractors inside or outside the United States to
perform any of its obligations hereunder. DSI will be responsible for the performance of Professional Services by its
personnel (including employees and contractors) and their compliance with DSI's obligations under this Addendum,
except as otherwise specified herein.
11.7 Severability. If any provision of this Addendum is held by a court of competent jurisdiction to be contrary to law,
the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original
provision to the fullest extent permitted by law, and the remaining provisions of this Addendum will remain in effect.
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Dude solutions
SUBSCRIBER DATA PROCESSING ADDENDUM
This Data Processing Agreement ("DPA") Subscriber forms part of, and is subject to, the Master Subscription Agreement or
other written or electronic terms of service or subscription agreement between Dude Solutions, Inc. or its Affiliate that is
party to such agreement ("DSI") and the Subscriber defined thereunder together with all Subscriber Affiliates who are
signatories on an Order Form for their own Service pursuant to such Agreement (such agreement, the "Agreement"). This
DPA shall be effected on the effective date of the Agreement unless this DPA is separately executed in which case it is
effective on the date of the last signature ("Effective Date").
WHEREAS
(A) Subscriber acts as a Data Subscriber. DSI offers a suite of Software -as -Service (SaaS) applications, products and services
provided as DSI-hosted, cloud Service.
(B) Subscriber wishes to contract certain Services, which may include processing of Subscriber's Personal Data to DSI.
(C) The parties seek to implement a data processing agreement that complies with the requirements of the current legal
framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the
Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
(D) The Parties agree to comply with the following provisions with respect to Personal Data, each acting reasonably and in
good faith.
IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation. All capitalized terms not defined herein shall have the meaning set forth in the
Agreement. In the event of a conflict between the terms and conditions of this Agreement and the Agreement, the
terms and conditions of this Agreement shall supersede and control. Unless otherwise defined herein, capitalized terms
and expressions used in this Agreement shall have the following meaning:
1.1. "Authorized Employee" means an employee of DSI who has a need to know or otherwise access Personal Data to
enable DSI to perform its obligations under this DPA or the Agreement;
1.2. "Authorized Individual" means an Authorized Employee or Subprocessor.
1.3. "Data Privacy Laws" means EU General Data Protection Regulation 2016/679 of the European Parliament and of
the Council ("GDPR") and the U.K. Data Protection Act 2018 and the United Kingdom General Data Protection Act
("UK GDPR"), or to the extent applicable, the data protection or privacy laws of any other country designed to
replace the foregoing and having equivalent effect;
1.4. "EEA" means the European Economic Area, including the European Union, Iceland, Lichtenstein and Norway;
1.5. "Instructions" means the directions, either in writing, in any form or medium, or by using a software or tool, issued
by Subscriber to DSI.
1.6. "Personal Data" means any Personal Data (i) of Data Subjects in the EEA or the United Kingdom or (ii) held by
Subscriber if the Subscriber is in the EEA or United Kingdom Processed by DSI or any Subprocessor on behalf of
Subscriber pursuant to the Agreement. For avoidance of doubt, De -Identified Data or otherwise aggregated or
anonymized data is not Personal Data.
1.7. "Service" shall have the meaning set forth in the Agreement.
1.8. "Standard Contractual Clauses" means the Agreement executed by and between Subscriber and DSI and attached
hereto as Schedule A pursuant to the European Commission's decision (C(2010)593) of February 5, 2010 on
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standard contractual clauses for the transfer of personal data to processors established in third countries which do
not ensure an adequate level of protection.
1.9. "Subprocessor" means an authorized third -party appointed by or on behalf of DSI to Process Personal Data;
1.10. The terms, "Commission", "Subscriber", "Data Subject", "Member State", "Personal Data Breach", "Processing"
and "Supervisory Authority" shall have the same meaning as in the GDPR, and their associated terms shall be
construed accordingly.
2. Subscriber Processing of Personal Data
2.1. Subscriber shall, at all times Process Personal Data, and provide instructions for the Processing of Personal Data in
compliance with the Data Privacy Laws. Subscriber shall ensure that its Instructions comply with all laws, rules and
regulations applicable in relation to the Personal Data and that the Processing of Personal Data in accordance with
Subscriber's Instructions will not cause DSI to be in breach of the Data Privacy Laws. Subscriber is solely responsible
for the accuracy, quality and legality of (i) Personal Data provided to DSI by or on behalf of Subscriber, (ii) the
means by which Subscriber acquired any such personal Data, and (iii) the Instructions it provides to DSI regarding
the Processing of such Personal Data. Subscriber shall not provide or make available to DSI any Personal Data in
violation of the Agreement or which is otherwise inappropriate for the nature of the Service, and shall indemnify
DSI from all claims and losses in connection therewith.
2.2. DSI shall process Personal Data only (i) for purposes set forth in the Agreement, (ii) in accordance with the terms
and conditions set forth in this DPA and any other documented Instructions provided by Subscriber, and (iii) in
compliance with the Directive and the GDPR. Subscriber hereby instructs DSI to Process Personal Data in
accordance with the foregoing and as part of any Processing initiated by Subscriber in its use of Service.
3. Data Processing Detail
3.1. Data Subjects. Subscriber may transfer Personal Data to DSI, the extent of which is determined in Subscriber's sole
discretion, and which may include Personal Data relating to: the following categories of Data Subjects: (i) the
Subscriber's Authorized individuals, employees, contractors or other Representatives, and (ii) Subscriber's end
users/customers..
3.2. Categories of Data. The Subscriber may transfer the following types ofPersonal Data for the purposes set out in this
DPA:
3.2.1. identification and contact data (e.g. name, address, GPS location, contact details);
3.2.2. general organizational data (such as your department, job title, area of responsibility);
3.2.3. IT data (IP addresses, passwords, access rights, cookies data and usage data);
3.2.4. special categories of personal data (including, for example, data concerning health); and
3.2.5. other information voluntarily disclosed by Subscriber.
3.3. Nature, Subject Matter, and Purpose of Processing. DSI processes Subscriber Personal Data only for the
performance of Service pursuant to the Agreement.
3.4. Duration of Processing. The duration of the Processing shall be for the Term of the Agreement. Following
Termination, DSI may return or delete the Personal Data in accordance with the Agreement except as required to
be retained by the laws of the EEA member states.
4. Authorized Employees
4.1. DSI shall use commercially reasonable measures to ensure the reliability and training of any employee, agent or
contractor of any Authorized Employee who may access the Personal Data. DSI shall ensure that Authorized
Employees are aware of the Confidential Information nature of the Personal Data and are bound by confidentiality
agreements to DSI, during and after their engagement with DSI. DSI shall use commercial reasonable measures to
limit access to Personal Data to only Authorized Individuals.
Subprocessor
5.1. Subscriber acknowledges and agrees that DSI may (1) engage the Subprocessors listed in Schedule B to this
Agreement to access and Process Personal Data in connection with the Service and (2) continue to use those
Subprocessors already engaged at the date of this Agreement, subject to DSI's compliance with the obligations
herein.
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5.2. DSI shall ensure that all Subprocessors have executed confidentiality agreements that prevent them from disclosing
or otherwise Processing any Personal Data both during and after their engagement by DSI.
5.3. DSI shall ensure that each Subprocessor is governed by a written contract that imposes data protection obligations
at least as protective as this Agreement.
5.4. If Subscriber has entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data),
the above authorizations will constitute Subscriber's prior written consent to the subcontracting by DSI of the
processing of Personal Data if such consent is required under the Standard Contractual Clauses.
Security
6.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes
of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons,
DSI shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to
the risk of Processing Personal Data.
6.2. Adherence to an approved certification mechanism will be sufficient to demonstrate DSI's (or Subprocessors')
compliance with its security obligations under this Agreement.
7. Transfers of Personal Data
7.1. If DSI transfers Personal Data outside of the EEA or the United Kingdom to any countries, DSI makes that transfer
pursuant to the Standard Contractual Clauses set forth in Schedule B to this Agreement.
Data Subject Rights
8.1. DSI shall, to the extent permitted by law, promptly notify Subscriber upon receipt of a request by a Data Subject to
exercise the Data Subject's right of: access, rectification, erasure, data portability, restriction or cessation of
Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes
automated decision -making (herein referred as "Data Subject Requests"). If DSI receives a Data Subject Request in
relation to Subscriber's data, DSI will advise the Data Subject to submit their request to Subscriber and Subscriber
will be responsible for responding to such request, including, where necessary, by using the functionality of the
Service.
8.2. DSI shall, at the request of the Subscriber, and taking into account the nature of the Processing applicable to any
Data Subject Request, apply appropriate technical and organizational measures to assist Subscriber in complying
with Subscriber's obligation to respond to such Data Subject Request and/or in demonstrating such compliance,
where possible, provided that (i) Subscriber is itself unable to respond without DSI's assistance and (ii) DSI is able to
do so in accordance with all applicable laws, rules, and regulations. Subscriber shall be responsible to the extent
legally permitted for any costs and expenses arising from any such assistance by DSI.
Actions and Access Requests
9.1. DSI shall provide Subscriber with reasonable cooperation and assistance, where Subscriber must comply with its
obligations under the GDPR, conduct a data protection impact assessment and/or to demonstrate such compliance,
provided that Subscriber does not otherwise have access to the relevant information. To the extent legally
permitted, Subscriber shall be responsible for any costs and expenses arising from any DSI assistance.
9.2. DSI shall provide Subscriber with reasonable cooperation and assistance with respect to Subscriber's cooperation
and/or prior consultation with any Supervisory Authority, where necessary and required by the GDPR.
9.3. To the extent legally permitted, Subscriber shall be responsible for any costs and expenses arising from any DSI
assistance.
10. Audit Rights
10.1. DSI shall maintain records sufficient to demonstrate its compliance with its obligations under this
Agreement.
10.2. If Subscriber reasonably considers that information made available pursuant to Section 9.1 is insufficient to
demonstrate compliance with this Agreement, DSI will allow an audit by Subscriber (or auditors appointed) in
relation to DSI's processing of Employee Personal Data. Any such audit will be carried out remotely (unless
otherwise agreed by the Parties or expressly required by a Supervisory Authority) and in accordance with DSI's
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reasonable security requirements. All results of the audit shall be subject to the confidentiality obligations of the
parties under the Agreement and the applicable Data Privacy Law.
11. Personal Data Breach
11.1. DSI shall notify Subscriber, without undue delay upon DSI's confirmation of any Personal Data Breach
affecting Employee Personal Data.
11.2. DSI shall provide Subscriber with information regarding such Personal Data Breach as required by the
applicable Data Privacy Laws or as otherwise reasonably requested by Subscriber to enable Subscriber to comply
with its obligations under the Data Privacy Laws.
11.3. DSI shall use commercially reasonable efforts to: (i) identify the cause of such Personal Data Breach, and (ii)
remediate the cause of such Personal Data Breach within DSI's systems, to the extent such remediation is within
DSI's reasonable control.
11.4. The obligations described in Sections 11.2 and 11.3 shall not apply in the event that a Personal Data Breach
results from the actions or omissions of Subscriber.
12. Limitation of Liability
12.1. The total liability of each of Subscriber and DSI (and their respective employees, directors, officers, affiliates,
successors, and assigns), arising out of or related to this Agreement, whether in contract, tort, or other theory of
liability, shall not, when taken together in the aggregate, exceed the limitation of liability set forth in the
Agreement.
IN WITNESS WHEREOF, the Subscriber and DSI have executed this Agreement as of the Effective Date:
Dude Solutions, Inc. (and its Affiliates, "DSI")
Signed:
Name: Kelly Caputo
Title: General Counsel
8/17/2021 1 8:44:06 PM PDT
Date:
Email: corpsec@dudesolutions.com
Tel.: 877-868-3833
CJ r�
1 Sulascriiaer")
Signed:
Name: ?OI' YAJ'ony-O
Title:
Date:
Email:
Tel: {
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SCHEDULE A: Standard Contract Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third
countries which do not ensure an adequate level of data protection.
Subscriber, as the data exporter, and DSI, as the data importer, each a 'party'; together 'the parties',
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to
the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the
data importer of the personal data specified in Appendix 1.
Clause 1- Definitions
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory
authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24
October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of
such data (1);
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for
processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not
subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the sub -processor' means any processor engaged by the data importer or by any other sub -processor of the data
importer who agrees to receive from the data importer or from any other sub -processor of the data importer personal data
exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance
with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals
and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the
Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against
accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the
processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2- Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in
Appendix 1 which forms an -integral part of the Clauses.
Clause 3-Third- a qy be nef ici ary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j),
Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third -party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause
8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any
successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result
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of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against
such entity.
3. The data subject can enforce against the sub -processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause
8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased
to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data
exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in
which case the data subject can enforce them against such entity. Such third -party liability of the sub -processor shall be
limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so
expressly wishes and if permitted by national law.
Clause 4 - ObIigations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in
accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to
the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant
provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data
importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable
data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures
specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate
to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or
access, in particular where the processing involves the transmission of data over a network, and against all other unlawful
forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing
and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or
as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection
within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub -processor pursuant to Clause 5(b) and Clause
8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the
suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a
summary description of the security measures, as well as a copy of any contract for sub -processing services which has to be
made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it
may remove such commercial information;
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(i) that, in the event of sub -processing, the processing activity is carried out in accordance with Clause 11 by a sub -processor
providing at least the same level of protection for the personal data and the rights of data subject as the data importer
under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5 - Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses;
if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to
comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received
from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is
likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify
the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of
data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing
the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise
prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement
investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been
otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data
subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data
transferred;
(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by
the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in
possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter,
where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub -processing,
unless the Clauses or contract contain commercial information, in which case it may remove such commercial information,
with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases
where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub -processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub -processor will be carried out in accordance with Clause 11;
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(j) to send promptly a copy of any sub -processor agreement it concludes under the Clauses to the data exporter.
Clause 5 - Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to
in Clause 3 or in Clause 11 by any party or sub -processor is entitled to receive compensation from the data exporter for the
damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter,
arising out of a breach by the data importer or his sub -processor of any of their obligations referred to in Clause 3 or in
Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data
importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any
successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which
case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub -processor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and
2, arising out of a breach by the sub -processor of any of their obligations referred to in Clause 3 or in Clause 11 because both
the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the
sub -processor agrees that the data subject may issue a claim against the data sub -processor with regard to its own
processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has
assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case
the data subject can enforce its rights against such entity. The liability of the sub -processor shall be limited to its own
processing operations under the Clauses.
Clause 7 - Mediation and iurisdiction
1. The data importer agrees that if the data subject invokes against it third -party beneficiary rights and/or claims
compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek
remedies in accordance with other provisions of national or international law.
Clause 8 - Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such
deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub -
processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter
under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub -
processor preventing the conduct of an audit of the data importer, or any sub -processor, pursuant to paragraph 2. In such a
case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
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Clause 9 - Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely. -
Clause 10 - Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business
related issues where required as long as they do not contradict the Clause.
Clause 11 - Sub -processing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under
the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations
under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub -
processor which imposes the same obligations on the sub -processor as are imposed on the data importer under the
Clauses'. Where the sub -processor fails to fulfil its data protection obligations under such written agreement the data
importer shall remain fully liable to the data exporter for the performance of the sub -processor's obligations under such
agreement.
2. The prior written contract between the data importer and the sub -processor shall also provide for a third -party
beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation
referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually
disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal
obligations of the data exporter or data importer by contract or by operation of law. Such third -party liability of the sub -
processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub -processing of the contract referred to in paragraph 1 shall be
governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of sub -processing agreements concluded under the Clauses and notified by the data
importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's
data protection supervisory authority.
Clause 12 - Obligation after the termination of personal data-processing services
1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub -
processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the
data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation
imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that
case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not
actively process the personal data transferred anymore.
2. The data importer and the sub -processor warrant that upon request of the data exporter and/or of the supervisory
authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
' This requirement may be satisfied by the sub -processor co-signing the contract entered into between the data exporter and the data importer.
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APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Standard Contract Clauses.
Data Exporter:The data exporter is the Subscriber in the DPA and Agreement.
Data Importer:The data importer is Dude Solutions, Inc. and its Affiliates ("DSI"), who offers a suite of Software -as -a -Service
applications, products and services provided as DSI-hosted cloud Service.
Data subjects
Data Subjects are Subscriber's Authorized Users, including individuals, employees, contracts or other Representatives and
Subscriber's end users/customers. .
Categories of data
Data Exporter may submit:
a) identification and contact data (e.g. name, address, GPS location, contact details);
b) general organizational data (such as your department, job title, area of responsibility);
c) IT data (IP addresses, passwords, access rights, cookies data and usage data);
d) special categories of personal data (including, for example, data concerning health); and
e) other information voluntarily disclosed by Subscriber.
Processing operations
Personal Data may be Processed for the following purposes: (1) to provide the Service, (2) to meet DSI's service level
commitments and provide technical support, and (3) otherwise to fulfill the obligations set out in the Agreement.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the signed Standard Contract Clauses.
Description of the technical and organizational security measures implemented by the data importer in accordance with
Clauses 4(d) and 5(c)as set forth at: https://www.dudesolutions.com/terms
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SCHEDULE B: Subprocessors
DSI uses its Affiliates, certain platform subprocessors, infrastructure suppliers and other third party business partners to
provide Service to its Subscribers.
The complete list of Subprocessors is set forth at: htt��/www.dudesolutions.comll2rivacy
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Dude 5oiutionsTM
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this "Agreement") is made as of the date of signature below (the "Effective
Date") by and between Dude Solutions, Inc. (together with its affiliates, "Company") and "Party B" identified below
to protect Confidential Information (defined in Section 1) that they may disclose to each other concerning an existing
or potential business relationship between them ( the "Purpose"). The party disclosing Confidential Information under
this Agreement is referred to herein as a "Disclosing Party," and a party receiving Confidential Information under this
Agreement is referred to herein as a "Receiving Party."
AGREEMENT
In consideration of furnishing the other party with Confidential Information, the mutual covenants contained herein
and, if applicable, for other good and valuable consideration, Company and Party B each agree as follows:
1. The term "Confidential Information" shall mean all non-public information maintained in confidence by
Disclosing Party and received by Receiving Party in any form or medium, that is identified as confidential, proprietary
or that a reasonable person should have known, was the Confidential Information of the other party given the nature
of the circumstances or disclosure. Confidential Information may include without limitation: information about
clients, services, products, software, data, technologies, formulas, processes, know-how, plans, operations, research,
personnel, suppliers, finances, pricing, marketing, strategies, opportunities and all other aspects of business
operations and any copies or derivatives thereof. Confidential Information includes information belonging to a third
party that may be disclosed only under obligations of confidentiality. Notwithstanding the foregoing, Confidential
Information shall not include information that Receiving Party can demonstrate: (a) is or becomes generally known to
the public without breach of any obligation by Receiving Party; (b) is received from a third party without breach of any
obligation owed to Disclosing Party; or (c) is or has been independently developed by Receiving Party without the
benefit of Confidential Information.
2. The parties acknowledge that each party considers the Confidential Information it discloses to be valuable,
confidential and a potential trade secret. Receiving Party shall (i) use such information solely for the Purpose, and not
for Receiving Party's own or any third party's benefit; (ii) use the same degree of care as Receiving Party uses with its
own Confidential Information, but no less than reasonable care, to protect Confidential Information and to prevent
any unauthorized access, reproduction, disclosure, or use of any of Confidential Information; and (iii) restrict access
to Confidential Information to its officers, directors, agents, contractors, employees or representatives (collectively,
the "Representatives") who have a need to know such information and who are prohibited from disclosing the
information by a contractual, legal or fiduciary obligation no less restrictive than this Agreement, including any legal
entity the Receiving Party controls, or is controlled by. Receiving Party shall not use, reproduce, or directly or indirectly
allow access to the Confidential Information except as herein provided or export Confidential Information to any
country prohibited from obtaining such information under any applicable laws or regulations.
3. If Receiving Party is required to disclose any Confidential Information to comply with law, to the extent legally
permitted Receiving Party shall: (a) give the Disclosing Party reasonable prior written notice to permit Disclosing Party
to challenge or limit any such legally required disclosure; (b) disclose only that portion of the Confidential Information
as legally required to disclose; and (c) reasonably cooperate with Disclosing Party, at Disclosing Party's request and
expense, to prevent or limit such disclosure.
4. Each party retains all right, title and interest in its Confidential Information and neither party acquires any
intellectual property rights under the Agreement. Receiving Party shall not remove any intellectual property right
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notice from Confidential Information and shall include such notice on any copies. Any feedback provided by Receiving
Party to Disclosing Party related to Disclosing Party's products or services may be used without restriction in the
further development of such products and services. Nothing in this Agreement shall be deemed a license to Receiving
Party to use the intellectual property.
5. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any unauthorized use or
disclosure of Disclosing Party's Confidential Information and agrees to reasonably cooperate with Disclosing Party in
its efforts to mitigate any resulting harm. The parties agree that Disclosing Party shall be entitled to seek equitable
relief, including an injunction and specific performance without posting bond to prevent unauthorized use or
disclosure of Confidential Information, in addition to any other remedies available to Disclosing Party at law or in
equity. The parties each waive the defense that an adequate remedy at law exists for any breach or threatened breach
of this Agreement.
6. All Confidential Information is provided "AS IS" without warranty of any kind; and Disclosing Party hereby
disclaims all warranties, express or implied by law. Receiving Party agrees that Disclosing Party shall not be liable for
any damages arising from Receiving Party's use of Confidential Information.
7. This Agreement shall terminate the later of one (1) year from the Effective Date unless earlier terminated by
either party upon ten (10) days prior written notice. Notwithstanding expiration or termination, Receiving Party's
obligations of confidentiality shall survive for an additional three (3) year period; provided however with respect to
any Confidential Information (a) that applicable law requires a longer period of confidentiality (i.e. personally
identifiable information), these obligations shall continue in accordance with applicable laws; or (b) identified by the
Disclosing Party as trade secret, these obligations shall continue for as long as they are considered trade secret in
accordance with applicable laws.
8. At the request of Disclosing Party, the Receiving Party will promptly cease any using of Disclosing Party's
Confidential Information and return to Disclosing Party all of Disclosing Party's Confidential Information, together with
all copies thereof and all notes, drawings, abstracts and other information relating to the Confidential Information
prepared by Receiving Party or any of its Representatives, in any form or medium, and whether or not then in the
possession of Receiving Party or in the possession of any of its Representatives. Further, upon request of Disclosing
Party, Receiving Party will provide Disclosing Party with a statement, signed by a duly authorized representative of the
Receiving Party, verifying that Receiving Party has complied with the terms of this Agreement. Notwithstanding the
above, neither party shall be required to erase, delete, alter or destroy back-up media made in the ordinary course of
business.
9. This Agreement constitutes the entire agreement between the parties and supersedes all previous
agreements, understandings and communications between the parties related to the subject matter, and may be
modified only in writing signed by duly authorized representatives of each of the parties. Failure to insist upon strict
compliance with any provision of this Agreement shall not be deemed waiver of such provision or any other
provision hereof. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal,
invalid or unenforceable, the remaining provisions shall remain in full force and effect.
10. The Company entering into this Agreement, the address to which notices shall be directed under this
Agreement and the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement
shall depend upon where Party B is domiciled:
a. In the United States and all other domiciles not otherwise mentioned, the Company entity is Dude
Solutions, Inc., a Delaware corporation, notices shall be addressed to 11000 Regency Parkway, Suite 400, Cary, NC
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27518, attn: General Counsel, governing law shall be Delaware and the courts with exclusive jurisdiction shall be
Delaware without regard to the principles of conflicts of laws, unless otherwise required by applicable law where
Party B is a public entity.
b. In Canada, the Company is Dude Solutions Canada, Inc., an Ontario corporation, notices shall be
addressed to Bay Adelaide Centre, 333 Bay Street, Suite 2400, PO Box 20, Toronto, ON, M5H 2T6 attn: Dude
Solutions General Counsel, governing law shall be Ontario and the courts with exclusive jurisdiction shall be
Toronto, Ontario, Canada without regard to the principles of conflicts of laws.
C. In the United Kingdom or a country in Europe, the Middle East or Africa, the Company entity is Confirm
Solutions Limited, a limited company in England, notices shall be address to Central House Unit C Compass Centre
North, Chatham Maritime, Chatham, England, ME4 4YG, attn: General Counsel, governing law shall be England
and the courts with exclusive jurisdiction shall be London, England without regard to the principles of conflicts of
laws.
d. In Australia, New Zealand, a country in Asia or the Pacific region, the Company entity is Assetic
Australia Pty Ltd, a proprietary limited company in Australia, notices shall be address to Level 9, 257 Collins Street,
Melbourne, VIC 3000 Australia, attn: General Counsel, governing law shall be Australia and the courts with
exclusive jurisdiction shall be New South Wales, Australia without regard to the principles of conflicts of laws.
11. This Agreement may be executed and transmitted in counterparts, each of which may be enforceable as an
original, but all of which together shall constitute but one agreement.
12. The execution of this Agreement shall not create any agency, partnership, joint venture, association or any
other relationship between the parties other than as independent contracting parties.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date:
("Company") ("Party B")
Company ID: Company ID:
Signed: Signed:
Name: Name:
Title: Title:
Date: Date:
Send notices to Party B at:
Address:
Address:
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