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HomeMy WebLinkAboutAgreement_General_10/12/2023_Pediatric Emergency Srvc �$of r8o� o � a RESG VILLAGE OF TEQUESTA TEQUESTA FIRE-RESCUE MEMORANDUM FILE NO. Admin. 23-75 DATE: September 26, 2023 TO: Jeremy Allen, Village Manager and Council Members FROM: Fire Chief, James Trubem� SUBJECT: Pediatric Emergency Standards, Inc. - Handtevy Please find the attached Pediatric Emergency Standards quotation for $3,990.00 for an annual subscription to access to the Handtevy Medication Management Software. The effective dates of the agreement are 10/21/2023 — 10/20/2024. Handtevy is a first-of-its- kind hybrid pediatric resuscitation system that uses both age and length as options to initiate care. The Handtevy system is our primary coordination tool for Pediatric emergencies. h a n d tevy Quote Company Info: Pediatric Emergency Standards,Inc. Expiration Date: 10/25/2023 11870 State Rd 84 Suite C5 Quote Number. Q-09643 Davie,FL 33325 Phone: (954)944.1114 FAX: (954)653-3792 Account Name: Tequesta Fire Rescue Client Contact: Andre Dodd Account# 101159 Account Rep: Nfichael Gener Bill To: 357 Tequesta Drive Ship To: 357 Tequesta Drive Tequesta,Florida 33469 Tequesta,Florida 33469 Product Description Quantity List Price Discount, Unit Price Total Code PCS23 Customization and Setup for Handtevy 1.000 $995.00 100.00 $0.00 $0.00 Mobile(One Time Fee) PCA23 Annual access to Handtevy Nbbfle,Access 1.000 $3,990.00 0.00 $3,990.00 $3,990.00 to Medication Management Software, Unlimited Clinical Updates Included,Clinical and Technical support Subtotal $4,985.00 Discount $995.00 Total Price $3,990.00 Tax $0.00 Shipping and Handling $0.00 Total $3,990 00 To place an order,please email or fax a copy of the signed Quote and Purchase Order to: Sales CaHandtevT com or(954)653-3792. PES requires execution of a Purchase Order for all sales above$5,000 before applicable freight and taxes.The undersigned,on behalf of Customer,represents that he or she has the authority to sign this Quote and/or-Purchase Order,and is bound hereby and agrees to the terms,conditions and pricing denoted and attached. Taxes,shipping and handling fees are estimates only and are subject to change at the time of order. Customer may provide PES with a tax exemption certificate,if applicable. It is our customers responsibility to provide the most up-to-date and accurate protocol set Additional fees will apply in the event a protocol set was submitted in error once customization has been initiated. (Print Name) t (Tide) (Au nzed Sign ) (Effective Date) Page 1 of 1 PEDIATRIC EMERGENCY STANDARDS,INC. TERMS AND CONDITIONS 1. DEFINITIONS. a. "Agreement."The Quote,these Terms and Conditions,and the Purchase updating of the Customized Offerings when Customer or its medical staff, Order or the signed Quote and these Terms and Conditions shall constitute employees and/or contractors make modifications to Customer's Protocols. an agreement of the parties and be collectively referred to as the c Improvements.Customer agrees that any improvements or modifications "Agreement." to the PES Offerings shall belong to PES. Customer hereby grants, b. "Customer'shall be identified as such on the Quote. transfers and assigns(and agrees to grant,transfer and assign)to PES any C. "Customer Data"means data entered by Customer relating to its patients and all of Customer's right,title and interest in and to such improvements that is entered into or transmitted through the PES Apps. or modifications.PES shall not be restricted in any manner in its use of any intellectual property created by it hereunder for Customer.The foregoing d. "Customer Protocols" means the medical practices, protocols, and grant,transfer and assignment(and agreement to grant,transfer and assign) guidelines adopted or used by Customer for patient care,including all drug also applies to any enhancement or improvement recommended orally or concentrations,drug dosages,equipment sizes,and other practices adopted in writing by Customer to PES. by Customer,formally or informally,from time to time. d. Exclusions. The foregoing license does not include the right to, and C. "Customized"or"Customization"means changes to the PES Apps created Customer has no right to: (i)decompile,reverse engineer,disassemble, by PES at Customer's request and for Customer's benefit in order for pest,copy or display the PES Offerings in whole or in part or otherwise Customer to operate the PES Apps in a manner consistent with Customers reduce the PES Apps to a human perceivable form in whole or in part;(ii) Protocols. publish,release,rent,lease,sublicense,loan,sell,distribute or transfer all f. "Customized Offerings"means the PES Offerings that have been approved or an onion of the PES Offerings to another person or entity; tit use or by Customer after Customization. y P g P ty'( ) g. "Effective Date" means the date Customer delivers a signed Purchase reproduce the PES Offerings for the use or benefit of anyone other than t Order to PES. connection with Customer's business enterprise;(iv)alter,modify or create te h. "Initial Term"means the thirteen(13)month period commencing on the derivative works of the PES Offerings in whole or in part;(v)use or permit Effective Date. the use of the PES Offerings for commercial time-sharing arrangements or i. "PES"means Pediatric Emergency Standards,Inc. providing service bureau,data processing,rental,or other services to any j. "PES Apps" means the software application(s) licensed by Customer third party,or(vi)use the PES Offerings or any part or aspect thereof for pursuant to this Agreement as referenced on the Quote. any unlawful purpose or to mislead or harass anyone.Use of or access to k. "PES Materials"means any durable goods provided by PES to Customer the PES Offerings in violation of the terms hereof is strictly prohibited.The rights granted Customer hereunder do not constitute a sale of any PES as identified in the Quote. Offerings. PES retains all right, title, and interest in and to the PES 1. "PES Offerings."The PES Apps,the PES Materials,and the PES Services Offerings, including without limitation all software used to provide the are sometimes collectively referred to as the"PES Offerings" PES Apps(and access via the SaaS),all graphics,user interfaces,logos and in. "PES Services"means professional services provided by PES to Customer trademarks reproduced through the SaaS,and all goodwill associated with as identified in the Quote,which may include Customization,education any of the foregoing,except to the limited extent of Customer's license and training courses,and other support services. during the Term as set forth herein.Customer's permission to access or use n. "Purchase Order" means a document signed by Customer evidencing the PES Offerings may be limited or suspended immediately if,in PES's acceptance of the Quote. discretion,this Section or any other provision of this Agreement has been o. "Quote"means an offer by PES to provide certain PES Offerings at a price violated by Customer or any of its Users.Customer agrees that a violation and on terms set forth therein and in these Terms and Conditions.These of this Section will cause PES irreparable and immediate harm,and that Terms and Conditions are incorporated into the Quote. PES is entitled to injunctive relief to prevent such violation. Customer p. "Renewal Term"means a twelve(12)month period commencing on an recognizes that the PES Offerings are protected by copyright and other anniversary of the Subscription Start Date in the event that Customer elects laws. to renew this Agreement pursuant to Section 7(a)below. 3. FEES. q. "SaaS"means software-as-a-service. a. Fees.Throughout the Term,Customer shall pay PES the fees and other r. "Subscription Start Date"means the date that is(i)thirty(30)days after amounts(collectively,"Fees")for the PES Offerings as set forth in the the Effective Date,or(ii)such earlier date as agreed to in writing by PES Quote.Certain amounts set forth in the Quote,such as applicable taxes, and Customer. duties,and shipping and handling fees for PES Materials,are estimates and S. The "Term" shall begin on the Effective Date and continue until this may be subject to final pricing at the time of delivery. If applicable to Agreement is terminated or not renewed by either parry in accordance with Customer's business,Customer may provide PES with a tax exemption Section 7 below. certificate. t. "User"means any individual that is an employee of or is or works for a contractor of Customer and that uses PES Offerings,whether authorized b. Payment. In the case of PES Apps, Fees shall be due in full on the by Customer to do so or not. Subscription Start Date and each anniversary thereof. In the case of courses,payment must be made IN FULL at least twenty-four(24)hours 2. LICENSE. prior to the course start time.In all other cases,Fees are due within thirty a. License Grant.Subject to the terms of this Agreement,beginning on the (30) days of invoice. Effective Date and during the Term,PES grants Customer a personal,non- C. Suspension of Services.PES may suspend Customer's access to and use of exclusive license to access and use the PES Offerings.With respect to PES the PES Offerings if Customer fails to timely remit payment or is otherwise Apps,such license shall be in object code form only. in material default hereunder. Any notices of default/termination and b. Customization.Clinical guidelines and related clinical content contained in suspension may be combined. the PES Offerings must be approved by Customer pursuant to the d. Discounts.Items or services listed at no charge on a Quote are included as Customization process prior to use in connection with patient care. part of a package discount or a subscription offering. Customer is Between the Effective Date and the Subscription Start Date is a thirty(30) responsible for appropriately allocating the discount extended on package day grace period during which Customer shall complete the Customization pricing when fulfilling any reporting obligations. process.Both PES and Customer will make reasonable efforts to ensure e. Fee Increases for PES Apps.Fees for PES Apps may increase by up to that Customer is"live"on the PES Apps as quickly as possible,however, five percent(5%)each year,in the sole discretion of PES.Customer will in no event will the Subscription Start Date be modified for implementation be notified of any Fee increase at least thirty(30)days prior to the end of delays due to Customer.Customer shall have an ongoing obligation to the Initial Term or Renewal Term,as applicable. monitor and update the Customized Offerings to ensure consistency with Customer's Protocols, as Customer's Protocols may evolve over time. f. Fee Increases for PES Materials or PES Services.PES may institute Fee Customer shall submit a written request to PES for prompt revision and increases for PES Materials and/or PES Services without notice to its 1 customers.Any such Fee increases would not be retroactively applied. during the month for any reason other than Scheduled Downtime (as g. Taxes and Fees.Fees payable to PES are exclusive of all foreign,federal, defined below)or as a result of the Permitted Exclusions(as defined below) state,and local taxes,including,without limitation,applicable sales,use, (the hours calculated will only include those hours that the such PES Apps duty, customs, withholding, property, value-added, or similar sales-like would typically be in use).If any material portion of the total functionality taxes,tax-like charges,fees and liabilities,and credit card processing fees of the PES Apps(s)is unavailable for operational use,the PES App(s)will (but not including taxes based on PES's income)("Taxes and Fees"),all of be considered down from the time that Customer notifies PES that a PES which shall be the responsibility of Customer.To the extent permitted by App(s)is non-functional and the time that such PES App(s)is serviced and applicable law, Customer is responsible for and will remit (or will made available for use. A minimum of ninety-nine percent (99°/a) reimburse PES upon PES's request)such Taxes and Fees as may be paid performance is based on the network hardware being operational. by PES on Customer's behalf. A PES App will be not considered down if the reason for the unavailability It. Appropriation of Funds.If Customer is a city,county or other government is a result of:(i)Scheduled Downtime or(ii)a Permitted Exclusion. entity,the parties agree that Customer may terminate the PES Apps and If the SLA is not met in any calendar month(other than as a result of PES Services at the end of the Customer's fiscal term for a failure by Scheduled Downtime or a Permitted Exclusion), PES shall provide Customer's governing body to appropriate sufficient funds to enable Customer,as its sole and exclusive remedy,a credit equal to two percent Customer to acquire the PES Apps and/or PES Services for the next fiscal (2%)of the prorated monthly Fee for the month that the PES App(s)was year. Notwithstanding the foregoing, this provision shall not excuse unavailable(the"Prorated Monthly Fee"),plus an additional one percent Customer from past payment obligations or other Fees earned and unpaid (1%)of the Prorated Monthly Fee for each one percent(1%)that applicable as of the end of such Customer's fiscal term.Moreover,Customer agrees Uptime is less than 99%,up to an aggregate maximum credit of six percent to provide PES with reasonable documentation evidencing such non- (6%)of the Prorated Monthly Fee. PES shall calculate Uptime and any appropriation of funds. service level downtime using its system logs and other records. i. Third Party Paver. If a third parry pays some or all Fees on behalf of C. Scheduled Downtime. If PES determines that it must intentionally Customer("Third Party Payer'), the Third Party Payer must submit a interrupt the PES Apps or that there is a potential for the PES Apps to Purchase Order directly.Customer shall immediately pay(and shall remain be interrupted to conduct system maintenance(collectively,"Scheduled jointly and severally liable)for payment if the Third party Payer does not Downtime"),PES will use good-faith efforts to notify Customer of such timely pay the Fees. Scheduled Downtime at least forty-eight(48)hours in advance,and will j. Late Fees.In the event that any Fees are not paid within thirty(30)days of use commercially reasonable efforts to ensure that Scheduled Downtime when due,such overdue amounts may,in the sole discretion of PES and to occurs during the hours of 12:00 a.m.to 6:00 a.m. Central Time. the extent permitted by applicable law,accrue interest until paid in full at d. Permitted Exclusions. Notwithstanding any other provision of this a rate equal to the lesser of(i)one and one-half(L5%)percent per month, Agreement to the contrary,performance issues resulting from any of the or(ii) the maximum legal rate. Customer's payment will not waive or following shall be considered a"Permitted Exclusion"for purposes of the extend any obligation ofCustomer to make ongoing payments,as and when SLA:(i)any force majeure or other event caused by factors outside of due. PES's reasonable control; (ii) any actions or inactions of Customer or k. Audit Rights. PES may reasonably audit Customer's use of the PES any third parties; (iii) any third party or Customer-provided network, Offerings and charge Customer a higher Fee if Customer's usage includes hardware,device or equipment failure; or(iv)general Internet operations facilities, Users, patient populations, or services beyond the scope problems.PES shall only be responsible for hardware and software upon determined in development of the Quote. which its PES Apps are hosted and its internet service provider up to the point its internet service provider connects with the public internet. 1. implemental Quotes and Purchase Orders. PES and Customer may Customer-provided network hardware support (i.e. fileservers, execute and exchange additional or supplemental Quotes and/or Purchase workstations,hubs,routers,etc.)is the responsibility of Customer. Orders that will be subject to these Terms and Conditions and become part e. Customer Must Request Service Credit. To receive a credit pursuant to of this Agreement. Section 5(b),Customer must notify PES by email or otherwise in writing 4. DELIVERY. of its request,with receipt confirmation,within thirty(30)days of service a. PES Apps. PES shall provide Customer access to PES Apps through a interruption. reasonable system of electronic downloads. PES shall grant Customer 6. CUSTOMER DATA/PRIVACY. access promptly following completion of the Customization process. a. Ownership and Use of Data.Except as provided below,unless it receives b. PES Materials.Delivery dates for PES Materials are not guaranteed.In the Customer's prior written consent, PES shall not: (i)access,process,or absence of shipping instructions from Customer,PES will obtain shipping otherwise use Customer Data; or(ii) intentionally grant any third parry rates on the Customer's behalf and for Customer's account.Delivery shall access to Customer Data, including without limitation, PES's other be FOB PES,point of shipment,and title and risk of loss shall pass to the customers, except PES subcontractors that are subject to a reasonable Customer once delivered to Customer's point of shipment.PES will not be nondisclosure agreement. As between PES and Customer,all Customer liable for any loss or damage of any kind due to delays in delivery or non- Data shall be owned by Customer.Notwithstanding the foregoing,PES delivery resulting from any cause including,but not limited to,acts of God, may use and disclose Customer Data to fulfill its obligations under this labor disputes,governmental authority or edict,war,civil[rarest,terrorist Agreement or as required by applicable law or by proper legal or acts,delays in manufacture, failure of Customer to obtain any required governmental authority.To the extent that it is not prohibited from doing license or permit,or the inability of PES to obtain goods from its usual so by law or the terms of such legal or governmental demand,PES shall sources.Any such delay shall not be considered a breach of any obligation give Customer prompt notice of any such legal or governmental demand by PES,and the delivery dates shall be extended for the length of such and reasonably cooperate with Customer in any effort to seek a protective delay. order or otherwise to contest such required disclosure, at Customer's 5. SERVICE LEVEL AGREEMENT. expense. a. Hosting.PES shall be responsible for hosting and managing PES Apps. b. Anonymized Data.Notwithstanding any provision herein,PES may use, reproduce,license,or otherwise exploit Anonymized Data,provided that b. Service Level Agreement.For each calendar month during the Term.PES Anonymized Data does not contain and is not PHI(as defined in the Health shall use commercially reasonable efforts to ensure that the PES Apps Insurance Portability and Accountability Act or 1996 and its related accessed by Customer via SaaS will maintain a level of uptime equal to or regulations, as each may be amended). "Anonymized Data" means better than ninety-nine percent(99%)(the"Service Level Agreement"or Customer Data with PHI and the names and addresses of Customer and its "SLA')."Uptime"will be calculated using the following formula:Uptime Users removed. =(T-TNF)x 100/T where"T"is the total number of hours that the PES 7. TERM;TERMINATION. App(s)is typically used per month(determined by multiplying the number a. Renewal Upon Payment of Fees. of hours per day that the PES App(s)is typically used by the number of Thirty(30)days prior to each anniversary days per week that the PES App(s)is typically used,and multiplyingthe of the Subscription Start Date,PES shall invoice Customer for Fees for the y p pP() y r next twelve(12)month period.Payment of such Fees by Customer shall result by 45 weeks in a month),and"TNF"is the number of hours the PES constitute a renewal of this Agreement for an additional twelve(12)month App(s)or any component of the PES App(s)licensed by Customer under Renewal Term,during which time this Agreement may only be terminated the applicable Purchase Order is not functional or otherwise unavailable 2 either(i)by mutual agreement of the parties,or(ii)for Cause pursuant to EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES RELATED Section 7(c)below. THERETO,INCLUDING BUT NOT LIMITED TO,WARRANTIES OF b. Non-Renewal.Customer may elect not to pay Fees for a Renewal Term,in MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A which event this Agreement and Customer's access to the PES Apps shall PARTICULAR PURPOSE,AND OTHERWISE. terminate at the end of the Initial Term or Renewal Term then in effect. b. Disclaimers regarding Technology.Customer acknowledges that accessing PES may elect not to renew this Agreement for a Renewal Term by data online involves risks of unavailability of information and Customer providing Customer with at least thirty(30)days advance written notice, assumes such risks. Customer has sole responsibility for obtaining, in which event this Agreement and Customer's access to the PES Apps maintaining and securing its connections to the Internet.PES makes no shall terminate at the end of the Initial Term or Renewal Term then in representations to Customer regarding the reliability, performance or effect. security of any network or provider.PES cannot control the flow of data to C. Termination for Cause.Either parry may terminate this Agreement,and or from its network and other portions of the internet as such flow depends, Customer's use of the PES Offerings,for"Cause"to the event that: in large part,on the performance of internet service providers or third parties. At times,actions or inactions of such third parties may impair or disrupt i. Either party breaches a material provision of this Agreement(which Customer's connections to the internet(or portions thereof).Accordingly, shall include non-payment of Fees) and such breach is not cured PES disclaims any and all liability resulting from or related in any way to within 30 days after written notice is provided to the breaching party. any unavailability of a PES App, including as a result of Scheduled Customer's access to the PES Offerings may be suspended during Downtime or a Permitted Exclusion,and Customer acknowledges that its the 30-day cure period if the breach would cause potential damage sole remedies in any such event are as set forth in Section 5(b).For these to PES or otherwise renders Customer's continued use thereof reasons, Customer further agrees to instruct its Users and all medical unsafe; personnel to have hard copies of Customer's Protocols and the PES ii. Either party files a petition in bankruptcy, whether voluntary or Materials or other backup options immediately available at all times in case involuntary, or an assignment for the benefit of creditors,in which access to the PES Apps is interrupted or otherwise becomes unavailable. event termination shall be effective immediately;or C. Disclaimers regarding Clinical Content. iii. Customer breaches or threatens to breach any of the provisions of:(A) i. PES makes no representations or warranties with respect to the Section 2(d) with respect to exclusions to Customer's license clinical content contained in the PES Offerings and in the Customized hereunder;or(B)Section 10 regarding confidentiality.Termination Offerings approved by Customer. pursuant to this Section 7(c)(iii) shall be immediate upon written ii. Clinical guidelines and related clinical content contained in the PES notice by PES. Offerings must be approved by Customer pursuant to the d. Purchase Order Cancellation or Change.After the Effective Date,Purchase Customization process prior to use in connection with patient care. Orders may not be cancelled,changed,suspended or deferred without the Customer shall have an ongoing obligation to monitor and update the express,written consent of PES.Customer agrees to pay all Fees and costs Customized Offerings to ensure consistency with Customer's associated with any cancellation, change, suspension or deferral of a Protocols,as Customer's Protocols may evolve over time.Customer Purchase Order including, without limitation, for PES's Customization shall submit a written request to PES for prompt revision and updating work and FES's efforts to mitigate damages. If PES agrees to allow of the Customized Offerings when Customer or its medical staff, cancellation of a Purchase Order,then this Agreement shall terminate as of employees and/or contractors make modifications to Customer's the date of such mutual agreement, otherwise, this Agreement and Protocols. Customer's obligation to pay Fees shall continue for the remainder of the iii. Customer hereby acknowledges that the Customized Offerings are not Tom' a substitute for the judgment of licensed medical professionals.The C. Returns.PES Materials may be returned for a refund within thirty(30)days Customized Offerings are tools that may assist medical professionals of the delivery date;provided, that returned PES Materials will not be in the delivery of care to patients.All medical judgments are reserved accepted if they have been used or are not in good condition.Customized to licensed clinicians. Failure to render care consistent with PES Offerings are non-refundable.If accepted,returned PES Materials are recognized standards of care may result in injury to the patient. subject to a fifteen percent(15%)restocking fee.Return shipping fees are iv. Customer must determine for itself whether the PES Offerings will Customer's responsibility. If Customer desires to return PES Materials, meet its needs,and PES makes no representations or warranties in that Customer must first call PES Customer Service at 866.867.3192 and obtain regard. a Return Goods Authorization Number (RGA#). Customer must then repackage PES Materials and mail them to Pediatric Emergency Standards, 10. CONFIDENTIALITY. Inc.,11870 State Road 84,Suite C5,Davie,Florida 33325.PES Materials a. Confidential Information. For purposes of this Agreement, the term that are returned without prior authorization will be refused,and the carrier "Confidential Information"means:(i)any non-public information of PES will charge Customer freight in both directions.If PES accepts returned or Customer including,without limitation,information regarding the PES items and issues a refund pursuant to this Section,then this Agreement Offerings, information relating to current and planned products and shall terminate as of such refund date. services of PES and its technology, techniques, know-how, research, f. Effect of Termination.Upon any termination of this Agreement pursuant engineering, designs, finances, accounts, procurement requirements, to this Section 7,Customer's license to use and access to the PES Offerings manufacturing,customer lists,business forecasts and marketing plans;(ii) will immediately cease and all Fees due hereunder shall be immediately PES's security controls,policies,procedures,audits,or other information due and payable;provided,however,that,in the event Customer terminates concerning PES's internal security posture; (iii) patient information this Agreement pursuant to Section 7(c)(i)as a result of an uncured breach obtained by Customer,(iv)any other information of a party that is disclosed by PES or pursuant to Section 7(c)(ii)in the event PES files a petition in in writing and is conspicuously designated as"Confidential"at the time of bankruptcy or makes an assignment for the benefit of creditors,then disclosure or that is disclosed orally and is identified as"Confidential"at Customer shall be relieved of any further obligation to pay Fees and PES the time of disclosure; and (v) this Agreement, including the Quote. shall refund to Customer prorated Fees already paid by Customer for the Notwithstanding the foregoing,Confidential Information does not include remainder of the Term. The applicability of certain provisions in this information that: (A) is in the other parry's possession at the time of Agreement shall survive termination as set forth in Section 18(e)below. disclosure;(B)is independently developed without use of or reference to 8. SERVICE AND REPAIRS. Updates to the PES Apps shall be made Confidential Information; (C)becomes known publicly, before or after available to Customer at no additional charge.All service and/or repairs disclosure,other than as a result of a parry's improper action or inaction; are performed wholly or in part at the discretion of PES.PES Materials (D)is approved for release in writing by the disclosing party;or(E)is damaged in delivery will be replaced at no cost to the Customer.Damage required to be disclosed by law. caused by wear and tear,abuse or accident is at the expense of Customer. b. Nondisclosure.The parties shall not use Confidential Information for any The remedies provided herein are exclusive. purpose other than to fulfill their respective obligations under this 9. DISCLAIMERS. Agreement.Each party:(i)shall ensure that its employees or contractors are bound by confidentiality obligations no less restrictive than those a. Disclaimer of Warranties.EXCEPT AS PROVIDED HEREIN,THE PES contained herein;and(ii)shall not disclose Confidential Information to any OFFERINGS ARE PROVIDED ON AN "AS IS" BASIS, AND PES third party without prior written consent from the disclosing party.Without 3 limiting the generality of the foregoing,the receiving party shall protect right,at its option,to participate in the settlement or defense of any such Confidential Information with the same degree of care it uses to protect its Claim,with its own counsel and at its own expense;provided,however, own confidential information of similar nature and importance,but with no that the Indemnifying Party will have the right to control such settlement less than reasonable care. A receiving party shall promptly notify the or defense.The Indemnifying Party will not enter into any settlement that disclosing party of any misuse or misappropriation of Confidential imposes any liability or obligation on the Indemnified Party without the information of which it becomes aware. Indemnified Party's prior written consent.The parties will cooperate in any c. iniunction.Customer agrees that breach of this Section would cause PES settlement or defense and give each other full access to all relevant irreparable in' information,at the Indemnifying Party's expense. p injury, for which monetary damages would not provide adequate compensation.In such instance,PES will be entitled to injunctive 12. GOVERNMENT REGULATIONS.Each parry agrees to comply with relief against such breach or threatened breach,without PES proving actual all applicable import,export and anti-corruption statutes and regulations of damages or posting a bond or other security, provided that if a judge the United States in connection with the manufacture,sale and distribution determines that a bond is required,the patties agree that One Thousand of the PES Offerings including,without limitation,the Foreign Corrupt Dollars(S 1,000)shall be a reasonable bond. Practices Act.Each party agrees to indemnify and hold harmless the other d. Open Records Laws and other Disclosure Requests. PES acknowledges from all claims,demands,damages,costs,fines,penalties,attorneys'fees that Customer may be required to disclose certain Confidential Information and all other expenses arising from a party's failure to comply with this if mandated by court order or, in the case of a Customer that is a Section and/or applicable laws,rules and/or regulations governing the PES governmental entity,pursuant to applicable open records laws or lawful Offerings. public records requests.At such time as Customer becomes aware that it 13. LIMITATION OF LIABILITY. may be required to disclose Confidential Information, it agrees to (i) a. LIMITATION OF DAMAGES. UNDER NO CIRCUMSTANCES provide PES with prompt written notice in order to allow PES to protect its SHALL PES OR CUSTOMER BE LIABLE FOR ANY Confidential Information, object to the disclosure, and/or to seek a CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR protective order,and(ii)cooperate with PES in such efforts.In addition to INCIDENTAL DAMAGES, INCLUDING CLAIMS FOR DAMAGES the obligations of this Section with respect to Confidential Information FOR LOST PROFITS,GOODWILL,USE OF MONEY,INTERRUPTED generally,Customer agrees to provide additional protection to PES source OR IMPAIRED USE OF THE PES OFFERINGS,AVAILABILITY OF code information pursuant to Section l0(e)below. DATA, STOPPAGE OF WORK, OR IMPAULMENT OF OTHER e. Source Code.THE SOURCE CODE FOR THE PES APPS SHALL BE ASSETS. CONSIDERED HIGHLY CONFIDENTIAL iNFORMATION UNDER b. LIMITATION OF LIABILITY.PES'S MAXIMUM LIABILITY FOR THIS AGREEMENT AND MAY NOT, UNDER ANY ALL CLAIMS OF LIABILITY ARISING OUT OF OR IN CIRCUMSTANCE,BE DISCLOSED BY CUSTOMER TO ANY THIRD CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED PARTY EXCEPT PURSUANT TO A VALID COURT ORDER. FIVE (5) TIMES THE FEES PAID BY OR ON BEHALF OF f Return of Confidential Information.Immediately upon termination of this CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY Agreement or upon request, each parry agrees to promptly return all PRECEDING THE APPLICABLE CLAIM. Confidential Information and copies thereof belonging to the other party. C. Insurance.Each party shall be responsible to carry insurance in appropriate If Customer is a governmental entity and required to retain certain amounts to cover the activities conducted by it under this Agreement.Upon Confidential Information after termination of this Agreement, then written request, PES agrees to provide Customer with evidence of its Customer shall retain only that portion of the Confidential Information that it is strictly required to retain under applicable law, return all other insurance coverages. information to PES,and execute a reasonable non-disclosure agreement in 14. DISPUTE RESOLUTION. connection with the retained Confidential Information. a. Limitation of Action. Except for claims arising from Customer's non- 11. INFRINGEMENT. payment or underpayment of amounts owed to PES,any and all claims a. IF Infringement. PES shall defend and indemnify Customer from any arising out of or related to this Agreement shall be barred,unless instituted damages, costs, liabilities, expenses (including reasonable and actual either(i)within two(2)years from the date that the complaining party attorney's fees)actually incurred or finally adjudicated as to any third parry knew or should have known of the facts giving rise to a claim,or(ii)the claim or action alleging that the PES Apps infringe or misappropriate any applicable Florida statute of limitations,whichever is shorter, third party's patent,copyright,trade secret or other intellectual property b. Governing Law. This Agreement and any claim or controversy arising rights enforceable in the applicable jurisdiction(each a"Claim"). hereunder(whether in contract, tort, or otherwise, including statutory, b. IP Remedies.If any PES Offering becomes,or in FES's opinion is likely consumer protection,or common law)shall be governed by the laws of the to become,the subject of an infringement or misappropriation claim,PES State of Florida,without regard to conflicts of law.The UN Convention for may,at its option and expense,either(i)procure for Customer the right to the International Sale of Goods and the Uniform Computer Information continue using such PES Offering;(ii)replace or modify the PES Offering Transactions Act will not apply.In any dispute,each parry will bear its own so that it becomes non-infringing;or(iii)terminate Customer's right to use attorneys'fees and costs. the PES Offering and issue Customer a refund for any Fees for periods after C. Mediation.In the event of any dispute,claim or disagreement arising out such termination. Notwithstanding the foregoing, PES will have no of or relating to this Agreement,the parties shall first submit the dispute, obligation or otherwise with respect to any infringement or claim or disagreement to non-binding mediation administered by the misappropriation claim based upon:(A)any use of the PES Apps not in American Arbitration Association (the "AAA') in accordance with its accordance with this Agreement or for purposes not intended by PES;(B) Commercial Mediation Procedures.The place of mediation shall be Fort any use of the PES Offerings in combination with other products, Lauderdale,Broward County,Florida.The mediation shall be conducted equipment,software,or data not supplied or authorized by PES,(C)any by one(1)mediator selected in accordance with AAA rules,unless the use of any release of the PES Apps other than the most current release made parties otherwise mutually agree to a panel of three(3)mediators. available to Customer at no additional charge;or(D)any modification of a PES Offering made by any person other than PES or an authorized d. Binding Arbitration.If the dispute,claim or disagreement is not resolved representative or agent thereof.In any such case Customer will defend PES within sixty(60)days after the initial mediation meeting,then either party from any such claim against PES. may submit the dispute, claim or disagreement to binding arbitration administered by the AAA in accordance with the provisions of its C. Sole IP Liability.This Section is PES's sole obligation and liability,and Commercial Arbitration Rules and,except as provided in Section 14(e) Customer's sole remedy, for potential or actual intellectual property below,such arbitration shall be the sole means of dispute resolution.The infringement relating to the PES Offerings. place of arbitration shall be Fort Lauderdale,Broward County,Florida.The d. Procedures. The party seeking indemnification(the"Indemnified Party") arbitration shall be conducted by one(1)arbitrator selected in accordance must give prompt written notice of such Claim to the other party (the with the AAA rules,unless the parties otherwise mutually agree to a panel "Indemnifying Party"), accompanied by copies of any written of three(3)arbitrators. documentation regarding the Claim received by the Indemnified Party.The C. Imunctiom. Notwithstanding anything in this Agreement to the contrary, Indemnifying Party shall compromise or defend,at its own expense and each party shall be entitled to seek injunctive or other equitable relief with its own counsel,any such Claim.The Indemnified Party will have the without first submitting the matter to mediation or arbitration in accordance 4 with the provisions of this Section 14,even if a similar or related matter g. Signatures. Electronic signatures on any portion of this Agreement(or has already been referred to mediation or arbitration in accordance with the copies of signatures sent via electronic means) are the equivalent of terms of this Section 14.Venue for any action permitted to be brought in handwritten signatures and are fully enforceable. court under this Section shall be the appropriate state and federal courts located in Fort Lauderdale,Broward County,Florida. 15. SEVER4BILITY.If a provision of this Agreement is held to be invalid or otherwise unenforceable,such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law,and the remaining provisions of this Agreement will continue in full force and effect. 16. NOTICE.Notices provided under this Agreement must be in writing and delivered to PES's or Customer's principal place of business as forth in the Purchase Order and/or Quote by: (a) certified mail, return receipt requested;(b)hand delivery;(c)e-mail with a confirmed read receipt;or (d)reputable overnight carrier service.In the case of delivery by e-mail, the notice must be followed by a copy of the notice being delivered by a means provided in(a),(b)or(d).The notice will be deemed given on the day the notice is received by the party receiving such notice. 17. DESIGN CHANGES.Except as otherwise agreed expressly in writing, PES may at any time furnish improvements to a product's design and/or construction.PES may also furnish suitable substitutes for materials that are unobtainable because of priorities or regulations established by governmental authorities or the non-availability of products from suppliers. 18. MISCELLANEOUS. a. Merger Clause.In entering into this Agreement,neither party is relying upon any representations or statements of the other that are not fully expressed herein or therein; rather each party is relying on its own judgment and due diligence and expressly disclaims reliance upon any representations or statement not expressly set forth in this Agreement.In the event Customer issues User instructions,internal memoranda,or any other document addressing any of the PES Offerings, it is hereby specifically agreed and understood that such writing is for the Customer's internal purposes only, and that any terms, provisions, and conditions contained therein shall in no way modify this Agreement. b. Assignment&Successors.Neither parry may assign,subcontract,delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder,nor may it contract with third parties to perform any of its obligations hereunder except as contemplated in this Agreement,without the other party's prior written consent,except that either party may,without the prior consent of the other,assign all its rights under this Agreement to (i)a purchaser of all or substantially all of its assets,or(ii)a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which either party is participating (collectively, a "Change in Control");provided however,that the non-assigning party is given notice of the Change in Control and the assignee is not a competitor of the non-assigning party hereunder. C. Force Maieure.No delay,failure,or default,other than a failure to pay Fees when due,will constitute a breach of this Agreement to the extent caused by acts of war,terrorism,hurricanes,earthquakes,other acts of God or of nature,strikes or other labor disputes,riots or other acts of civil disorder, embargoes, or other causes beyond the performing parry's reasonable control (collectively, "Force Maieure"). In such event, however, the delayed party must promptly provide the other party notice of the Force Majeure.The delayed party's time for performance will be excused for the duration of the Force Majeure,but if the Force Majeuue event lasts longer than thirty (30) days, the other party may immediately terminate any unfulfilled Purchase Order. d. Waiver&Breach.Neither party will be deemed to have waived any of its rights under this Agreement,unless it is an explicit written waiver made by an authorized representative.No waiver of a breach will constitute a waiver of any other breach. C. Survival of Terms.Unless otherwise stated,all of PES's and Customer's respective obligations, representations and warranties under this Agreement which are not,by the express their terms,fully to be performed during the Term shall survive the termination of this Agreement.Without limiting the foregoing,the provisions of Terms and Conditions Sections 2(d),6,9, 10,13,and 14 shall survive any termination of this Agreement f. Authority.An individual executing or delivering a Quote or a Purchase Order hereunder acknowledges that he or she has the authority to act on behalf of the Customer or PES,as the case may be,and bind such party to the terms hereof. 5 PUBLIC RECORDS. In accordance with Sec. 119.0701, Florida Statutes, CONTRACTOR must keep and maintain this Agreement and any other records associated therewith and that are associated with the performance of the work described in the Proposal or Bid. Upon request from the Village's custodian of public records, CONTRACTOR must provide the Village with copies of requested records, or allow such records to be inspected or copied, within a reasonable time in accordance with access and cost requirements of Chapter 119, Florida Statutes. A CONTRACTOR who fails to provide the public records to the Village, or fails to make them available for inspection or copying, within a reasonable time may be subject to attorney's fees and costs pursuant to Sec. 119.0701, Florida Statutes, and other penalties under Sec. 119.10, Florida Statutes. Further, CONTRACTOR shall ensure that any exempt or confidential records associated with this Agreement or associated with the performance of the work described in the Proposal or Bid are not disclosed except as authorized by law for the duration of the Agreement term, and following completion of the Agreement if the CONTRACTOR does not transfer the records to the Village. Finally, upon completion of the Agreement, CONTRACTOR shall transfer, at no cost to the Village, all public records in possession of the CONTRACTOR, or keep and maintain public records required by the Village. If the CONTRACTOR transfers all public records to the Village upon completion of the Agreement, the CONTRACTOR shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the CONTRACTOR keeps and maintains public records upon completion of the Agreement, the CONTRACTOR shall meet all applicable requirements for retaining public records. Records that are stored electronically must be provided to the VILLAGE, upon request from the Village's custodian of public records, in a format that is compatible with the Village's information technology systems. IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, PLEASE CONTACT THE VILLAGE CLERK, RECORDS CUSTODIAN FOR THE VILLAGE, AT (561) 768-0440, OR AT Imcwilliams@teguesta.org, OR AT 345 TEQUESTA DRIVE, TEQUESTA, FLORIDA 33469. Pursuant to Article XII of the Palm Beach County Charter, the Office of the Inspector General has jurisdiction to investigate municipal matters, review and audit municipal contracts and other transactions, and make reports and recommendations to municipal governing bodies based on such audits, reviews, or investigations. All parties doing business with the Village shall fully cooperate with the inspector general in the exercise of the inspector general's functions, authority, and power. The inspector general has the power to take sworn statements, require the production of records, and to audit, monitor, investigate and inspect the activities of the Village, as well as contractors and lobbyists of the Village in order to detect, deter, prevent, and eradicate fraud, waste, mismanagement, misconduct, and abuses. "The Village of Tequesta strives to be an inclusive environment. As such, it is the Village's policy to comply with the requirements of Title II of the American with Disabilities Act of 1990 ("ADA") by ensuring that the Contractor's [ agreement/bid documents and specifications] are accessible to individuals with disabilities. To comply with the ADA, the Contractor shall provide a written statement indicating that all [ agreement /bid documents and specifications], from Contractor, including files, images,graphics, text, audio, video, and multimedia, shall be provided in a format that ultimately conforms to the Level AA Success Criteria and Conformance Requirements of the Web Content Accessibility Guidelines 2.0 (Dec. 11, 2008) ("WCAG 2.0 Level AA"), published by the World Wide Web Consortium ("WK"), Web Accessibility Initiative ("WAI"), available at www.w3.org/TR/WCAG/."