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HomeMy WebLinkAboutAGR-6744.A.1 - PHARMLOGS, LLC. - SOFTWARE APPLICATION SERVICES FIRST AMENDMENT TO AGREEMENT [Software Application Services] THIS FIRST AMENDMENT TO AGREEMENT (the “First Amendment”) is made and entered into as of __________________, 2025 by and between the CITY OF ORANGE, a municipal corporation (“City”), and PHARMLOGS LLC, a California limited liability company (“Contractor”), with reference to the following: A. City and Contractor entered into an Agreement (Agreement No. 6744.A) dated as of April 22, 2022, which is incorporated herein by this reference (the “Original Agreement”); and B. City and Contractor desire to amend the Original Agreement to modify, amend and supplement certain portions of the Original Agreement by extending the service term by three years. NOW, THEREFORE, the parties hereby agree as follows: Section 1. Defined Terms. Except as otherwise defined herein, all capitalized terms used herein shall have the meanings set forth for such terms in the Original Agreement. Section 2. Cross-References. City and Contractor agree that all references in this First Amendment are deemed and construed to refer to the Original Agreement, as implemented by this First Amendment. Section 3. Scope of Services. The Scope of Services is hereby, modified and supplemented to include the services described on Exhibit A attached hereto and incorporated herein by this reference. Section 4. Term. Section Number 2 of the License & Maintenance portion of the Original Agreement is hereby amended to establish a First Extension Term commencing on May 1, 2025 and terminating on April 30, 2028. Section 5. Compensation. The total not-to-exceed compensation set forth in Section Number 2 of the License & Maintenance portion of the Original Agreement for the services to be rendered thereunder for the First Extension Term is THIRTY THOUSAND DOLLARS and 00/100 ($30,000.00). Section 6. Authority of City Manager. Pursuant to Section 3.08.430 of the Orange Municipal Code, the City Manager is authorized to approve and execute amendments to the Agreement to adjust the compensation as provided herein. Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD AGR-6744.A.1 April 16 2 Section 7. Integration. This First Amendment amends, as set forth herein, the Original Agreement and, except as specifically amended hereby, the Original Agreement shall remain in full force and effect. To the extent that there is any conflict or inconsistency between the terms and provisions of this First Amendment and the terms and provisions of the Original Agreement, the terms and provisions of this First Amendment shall control and govern the rights and obligations of the parties. IN WITNESS of this First Amendment, the parties enter into this First Amendment on the year and day first above written. “CONTRACTOR” “CITY” PHARMLOGS LLC, a California limited CITY OF ORANGE, a municipal corporation liability company *By: By: Printed Name: Denny Munson Thomas C. Kisela, City Manager Title: CEO *By: ATTEST: Printed Name: Title: Pamela Coleman, City Clerk APPROVED AS TO FORM: Nathalie Adourian Senior Assistant City Attorney *NOTE: If Contractor is a corporation, the City requires the following signature(s): -- (1) the Chairman of the Board, the President or a Vice-President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR -- The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to the City. √ Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD EXHIBIT “A” SUPPLEMENTAL SCOPE OF SERVICES [Behind this page.] Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 1 Prepared by: Denny Munson (714) 496-9752 dmunson@pharmlogs.com Prepared For: CITY OF ORANGE FIRE DEPARTMENT Prepared On: April 4, 2025 Expires On: May 01, 2025 The quote provides pricing information for the continued portal membership of PharmLogs.com. The site maintenance, custom development and support services which are detailed in the attached statement of work. The quotation is valid until MAY 01, 2025 and may be accepted at any time prior to that date. STATEMENT OF WORK Site Maintenance • Maintain Database • Host Application • Maintain Data • Create/Modify Alerts & Reminders o Set time that reminder should send alert o Set administrators to which the alert summary should go to • Implement/Maintain Standard Reports o Reconcile Reports o Automated Daily Summary o Monthly Activity Report Annual Support • Full Site Administrative Support • Data Archival • Rolling 30 Day Backup of Files and Database • Basic site admin as needed (Admin users, locations, alerts) Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 2 Pricing Summary SETUP & Annual License Description Quantity Price/Unit/Term Month Total Annual Total Drug Inventory & Log 23 $1.00/Day/Year/Location $699.58 $8,395.00 Setup 1 $0 1 Time Fee 0 $0 Total $8,395.00 Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 3 This quotation is subject to mutually acceptable terms and conditions. Upon agreement and payment of initial fee, the Pharmlogs.com portal will become active and testing and implementation will begin. Upon agreement the client agrees to the privacy and the terms of Non-Disclosure as outlined in attached Terms of Use Agreement (Pg. 4) The totals are paid on an annual basis starting on the date of the signing of this agreement. AGREED AND ACCEPTED: City of Orange Fire Department BY SIGNATURE DATE AGREED AND ACCEPTED DENNY MUNSON/PHARMLOGS Denny Munso n – PHARMLOGS.COM BY SIGNATURE DATE Payment Terms: Annual, Net 30 Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 4 Terms of Use Agreement Revised: (4/5/2025) The PharmLogs web application (the "Site"), a web-based software application created by Denny Munson, and all sub web services of the Site, subject to your compliance with the terms and conditions set forth below. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE. BY ACCESSING OR USING THE SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITE. Denny Munson MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED AGREEMENT ON THE SITE. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT. 1. Copyright, Licenses, and Idea Submissions The entire contents of the Site are protected by international copyright and trademark laws. The owner of the copyrights and trademarks are Denny Munson, its affiliates or other third -party licensors. YOU MAY NOT MODIFY, COPY, REPRODUCE, REPUBLISH, UPLOAD, POST, TRANSMIT, OR DISTRIBUTE, IN ANY MANNER, THE MATERIAL ON THE SITE, INCLUDING TEXT, GRAPHICS, CODE AND/OR SOFTWARE. You may print and download portions of material from the different areas of the Site solely for your own non-commercial use provided that you agree not to change or delete any copyright or proprietary notices from the materials. You agree to grant to Denny Munson a non -exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products and services) you submit to any public areas of the Site (such as blogs, comments, forums and newsgroups) or by e-mail to Denny Munson by all means and in any media now known or hereafter developed. You also grant to Denny Munson the right to use your name in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse against Denny Munson for any alleged or actual infringement or misappropriation of any proprietary right in your communications to Denny Munson . TRADEMARKS Publications, products, content or services referenced herein or on the Site are the exclusive trademarks or service marks of Denny Munson. Other product and company names mentioned in the Site may be the trademarks of their respective owners. 2. Use of the Site. You understand that, except for information, products or services clearly identified as being supplied by Denny Munson , Denny Munson does not operate, control or endorse any information, products or services on the Internet in any way. Except for Denny Munson- identified information, products or services, all information, products and services offered through the Site or on the Internet generally are offered by third parties, that are not affiliated with the Site. You also understand that Denny Munson cannot and does not guarantee or warrant that files available for downloading through the Site will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE INTERNET. DENNY MUNSON PROVIDES THE SITE AND RELATED INFORMATION "AS IS" AND DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NONINFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICE, ANY MERCHANDISE INFORMATION OR SERVICE PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY, AND Denny Munson SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 5 ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES, MERCHANDISE AND OTHER INFORMATION PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY. DENNY MUNSON DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. YOU UNDERSTAND FURTHER THAT THE PURE NATURE OF THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU. YOUR ACCESS TO SUCH MATERIALS IS AT YOUR RISK. Denny Munson HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS. YOUT UNDERSTAND THAT EMAILS & TEXT MESSAGES FROM THE SITE TAKE TIME TO PROCESS THROUGH THIRD PARTY EMAIL SERVERS THAT ARE NOT CONTROLLED BY PHARMLOGS AND CAN DELAY NOTIFICATIONS. LIMITATION OF LIABILITY IN NO EVENT WILL Denny Munson BE LIABLE FOR (I) ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, OR ANY INFORMATION, OR TRANSACTIONS PROVIDED ON THE SERVICE, OR DOWNLOADED FROM THE SERVICE, OR ANY DELAY OF SUCH INFORMATION OR SERVICE. EVEN IF Denny Munson OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE AND/OR MATERIALS OR INFORMATION DOWNLOADED THROUGH THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, Denny Munson LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. Denny Munson makes no representations whatsoever about any other web site which you may access through this one or which may link to this Site. When you access a non-Denny Munson web site, please understand that it is independent from Denny Munson, and that Denny Munson has no control over the content on that web site. In addition, a link to a Denny Munson web site does not mean that Denny Munson endorses or accepts any responsibility for the content, or the use, of such web site. 3. Indemnification. You agree to indemnify, defend and hold harmless Denny Munson, its officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Service from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement (including negligent or wrongful conduct) by you or any other person accessing the Site. 4. Third Party Rights. The provisions of paragraphs 2 (Use of the Service), and 3 (Indemnification) are for the benefit of Denny Munson and its officers, directors, employees, agents, licensors, suppliers, and any third -party information providers to the Service. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf. 5. Term Termination. This Agreement may be terminated by either party, with a written and signed 30 day notice, for any reason. The provisions of paragraphs 1 (Copyright, Licenses and Idea Submissions), 2 (Use of the Site), 3 (Indemnification), 4 (Third Party Rights) and 6 (Miscellaneous) shall survive any termination of this Agreement. 6. Miscellaneous This Agreement shall all be governed and construed in accordance with the laws of The United States of America applicable to agreements made and to be performed in The United States of America. You agree that any legal action or proceeding between Denny Munson and you for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in The United States of America . Any cause of action or claim you may have with respect to the Service must be commenced within one (1) year Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 6 after the claim or cause of action arises or such claim or cause of action is barred. Denny Munson's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. Denny Munson may assign its rights and duties under this Agreement to any party at any time without notice to you. You agree not to disclose terms, pricing or any associated costs to outside parties. Any rights not expressly granted herein are reserved. License & Maintenance This License Maintenance Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Customer”) and applies to the purchase of all Pharmlogs Maintenance Services (hereinafter collectively referred to as “Maintenance Services”) ordered by Customer. 1. Term and Termination – This Agreement shall be effective as of the time frame Customer signs PharmLogs purchase agreement. This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by Denny Munson (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Denny Munson or hinders Denny Munson ’s ability to perform the Maintenance Services hereunder. 2. Contract Term – The Initial Term of this Agreement is three (3) years (the “Initial Term”), commencing upon May 1, 2022 and terminating on April 30, 2025 (the “Expiration Date”); provided, however, that City has the right to extend the term of this Agreement for the following extensions and upon the following terms: • First Extension (the “First Extension Term”) commencing May 1, 2025, and terminating April 30, 2028, in an amount not to exceed THIRTY THOUSAND DOLLARS and 00/100 ($30,000.00) without the prior written authorization of City; • Second Extension (the “First Extension Term”) commencing May 1, 2028, and terminating April 30, 2031, in an amount not to exceed THIRTY THOUSAND DOLLARS and 00/100 ($30,000.00) without the prior written authorization of City; • The City Manager is hereby authorized on behalf of City to give written notice to Contractor of City’s intention to exercise each Extension (if at all) no later than thirty (30) days prior to the Expiration Date of the then-current term. Except as specifically set forth herein, the terms and conditions of each Extension will be the same as the Initial Agreement. • Any Extension shall be memorialized in the form of an amendment to this Agreement. The City Manager is hereby authorized to approve and execute amendments to this Agreement reflecting the exercise of each Extension and the amount of compensation (including the amount of funds to be made available for additional work or services) payable to Contractor for each respective Extension. 3. Maintenance Services – Denny Munson agrees to provide Customer with Maintenance Services as described in this Agreement. Maintenance Services include: o Updates to text, images, and other minor changes to Customer’s PharmLogs Application . o Enhancements to existing code to facilitate speed and efficiency o Database Maintenance & Backups o Daily Reports Backup Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 7 4. Fees; Limitations on Refunds and Cancellation Fees – Customer agrees to pay Denny Munson any and all fee(s) as billed in accordance with this Agreement. Initial fees are due on NET30 on the signing of this agreement. Recurring annual fees must be received NET30 of the anniversary of this agreement. THE CUSTOMER AGREES TO PAST DUE FEES OF $25.00 PER DAY PAST NET30. THE CUSTOMER FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CUSTOMER, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE CUSTOMER FURTHER AGREES TO PAY UPON CANCELLATION THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO DENNY MUNSON AS PROVIDED IN THE AGREEMENT. DENNY MUNSON IS HEREBY AUTHORIZED TO CHARGE CUSTOMER’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CUSTOMER TO DENNY MUNSON. 5. Customer Responsibilities –(If Non-Hosted Application) For the purposes of providing these services, Customer agrees: o To provide Denny Munson with access to the Site’s web s erver for creating new pages, and making changes for the purpose of providing Installation and Maintenance Services. o To provide the MSSQL Server o To provide all domain related information as it relates to the customer’s Site. o To provide Denny Munson with access to the MSSQL Server Database Server which will host the Site’s SQL Database. o To properly convey to Denny Munson the information that needs to be changed or added. 6. Customer Responsibilities – HOSTED o To provide Denny Munson with all pertinent inventory & drug information. o To provide Denny Munson with all pertinent locations, users and roles each user will be assigned to within the PharmLogs application o To properly convey to Denny Munson the information that needs to be changed or added. 7. Customer Acknowledgements – Customer understands, acknowledges and agrees that: o Denny Munson is not responsible for changes made to the Site by other parties. o Denny Munson is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed. o Recovery or repair of Customer’s website is not guaranteed. o Customer is responsible for database backups and the Site’s file directories backups o Customer is responsible for setting up client email services for the site’s users 8. Additional Services – Additional services not listed herein will be provided for a fee of $130.00 per hour. Denny Munson is not responsible for developing new content or writing new copy for Customer. Customer will be charged an additional fee for writing content, based on the hourly rate of $130.00 per hour. 9. Indemnification – Customer shall indemnify and hold harmless Denny Munson (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Denny Munson as a result of any claim, judgment, or adjudication against Denny Munson related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to Denny Munson (the “Customer Content”), or (b) a claim that Denny Munson’s use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Denny Munson must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations. 10. Disclaimer of All Other Warranties – DENNY MUNSON DOES NOT WARRANT THAT THE MAINTENANCE SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, DENNY MUNSON Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 8 PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS. 11. Limited Liability – IN NO EVENT SHALL DENNY MUNSON BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. DENNY MUNSON MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. 12. Customer Representations – Customer makes the following representations and warranties for the benefit of Denny Munson: o Customer represents to Denny Munson and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Denny Munson are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Denny Munson and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer. o Customer guarantees to Denny Munson and unconditionally guarantees that Customer’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services. o Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Denny Munson for inclusion on the website above are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Denny Munson and its subcontractors from any liability or suit arising from the use of such elements. o From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Denny Munson and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce. 13. Confidentiality & Non -Disclosure– The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, financial information or pricing information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Co nfidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 9 provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Denny Munson and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date. Each party agrees not to disclose pricing and terms of this agreement with outside parties. Any changes to the Site by Customer or Customer’s Third Party need to be explicitly approved by Denny Munson in writing. 14. Force Majeure – Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event. 15. Relationship of Parties – Denny Munson, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Customer does not undertake by this Agreement, or otherwise, to perform any obligation of Denny Munson, whether by regulation or contract. In no way is Denny Munson to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding. 16. Notice and Payment – Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph. 17. Jurisdiction/Disputes – This Agreement shall be governed in accordance with the laws of the State of Tennessee. All disputes under this Agreement shall be resolved by litigation in the courts of the State of California including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it. 18. Agreement Binding on Successors – The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns. 19. Assignability – Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Denny Munson. Denny Munson reserves the right to assign subcontractors as needed to this project to ensure on-time completion. 20. Waiver – No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement. 21. Severability – If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement. 22. No Inference Against Author – No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision. 23. Disputes – Customer and Denny Munson agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 10 arbitration in Riverside County, California and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years of experience in the practice of law and at least five (5) years of experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of California sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of California or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court. 24. No Agreement No Use – Customer and Denny Munson agree that if the maintenance and/or license agreement is not maintained, then the Customer will not use the software. Denny Munson retains the right to remove the Site files from the server while leaving customer’s reports, while maintenance agreement is not maintained. The client also agrees that the removal of the Site’s files does not constitute a breach of this agreement. 25. Read and Understood – Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions. Recommended Equipment Links *** ALL EQUIPMENT & PRICES SUBJECT TO CHANGE *** PRINTERS Brother P-Touch PTP750w (TOP Recommended) (AMAZON) Wireless & USB, A/C & Battery Powered LABELS/PRINTER TAPE Labelife Compatible Label Tape Replacement for Brother TZ Tape 9mm 0.35" Laminated White Label Maker Tape TZe-221 TZ221 for P Touch PT-D200 PT-D210 PT-H100 PT-D400 PT-1290 PT-1750, 9mm x 8m, 5-Pack (Recommended for single vials) (AMAZON) BARCODE SCANNERS Symcode 2D QR Code Scanner (Top Recommended) (AMAZON) ADDITIONAL SERVICES Service Description Price Custom Programming Customized code to fit customer operations up to 80 hours/year $150/hour > 80 hrs. Annually Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD 11 Customer Training Train the Trainer $1,500.00 Custom Reports Build customized reports for specific data needed by the client Negotiated As Needed Docusign Envelope ID: 007C23D6-E756-49F2-B6D0-8A19444228FD