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HomeMy WebLinkAboutC21-312 Visible Digital SolutionsDocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 AGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND VISIBLE DIGITAL SOLUTIONS LLC THIS AGREEMENT ("Agreement") is effective as of 9/19/2021 by and between VISIBLE DIGITAL SOLUTIONS a LLC (hereinafter "Contractor") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, Eagle County Sheriff's victim services in order to serve the community require assistance in the creation, design, updating and hosting of electronic Victim Advocacy Cards (eVACs) (the "Project"); for services to occur at Eagle County Sheriff's Office, located at 885 Chambers Avenue, Eagle Colorado and WHEREAS, Contractor is authorized to do business in the State of Colorado and has the time, skill, expertise, and experience necessary to provide the Services as defined below in paragraph 1 hereof; and WHEREAS, this Agreement shall govern the relationship between Contractor and County in connection with the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Contractor and County agree as follows: 1. Services or Work. Contractor agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the services or work described in Exhibit A ("Services" or "Work") which is attached hereto and incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this Agreement. a. Contractor agrees to furnish the Services no later than December 31It, 2021 and in accordance with the schedule established in Exhibit A. If no completion date is specified in Exhibit A, then Contractor agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below Contractor represents that it has the expertise and personnel necessary to properly and timely perform the Services. b. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. 2. County's Representative. The Sheriff Office's designee shall be Contractor's contact with respect to this Agreement and performance of the Services. 3. Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions of paragraph 11 hereof, shall continue in full force and effect through the 31It day C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 of December, 2022. 4. Extension or Modification. This Agreement may be extended for up to three additional one year terms upon written agreement of the parties. Any amendments or modifications shall be in writing signed by both parties. No additional services or work performed by Contractor shall be the basis for additional compensation unless and until Contractor has obtained written authorization and acknowledgement by County for such additional services in accordance with County's internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Services, and no claim that County has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement, Contractor's rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. 5. Compensation. County shall compensate Contractor for the performance of the Services in a sum computed and payable as set forth in Exhibit A. The performance of the Services under this Agreement shall not exceed $1,200. Contractor shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours unless specifically authorized in writing by County. a. Payment will be made for Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Contractor. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. b. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any payment made by County to Contractor was improper because the Services for which payment was made were not performed as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Contractor shall forthwith return such payment(s) to County. Upon termination or expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County. C. County will not withhold any taxes from monies paid to the Contractor hereunder and Contractor agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. d. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Contractor in respect of any period after December 31 of any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 6. Subcontractors. Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Contractor. Contractor shall not enter into any subcontractor agreements for the performance of any of the Services or additional services without County's prior written consent, which may be withheld in County's sole discretion. County shall have the 2 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 right in its reasonable discretion to approve all personnel assigned to the subject Project during the performance of this Agreement and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the Project. Contractor shall require each subcontractor, as approved by County and to the extent of the Services to be performed by the subcontractor, to be bound to Contractor by the terms of this Agreement, and to assume toward Contractor all the obligations and responsibilities which Contractor, by this Agreement, assumes toward County. County shall have the right (but not the obligation) to enforce the provisions of this Agreement against any subcontractor hired by Contractor and Contractor shall cooperate in such process. The Contractor shall be responsible for the acts and omissions of its agents, employees and subcontractors. 7. Insurance. Contractor agrees to provide and maintain at Contractor's sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. Workers' Compensation insurance as required by law. ii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. b. Other Requirements. i. The commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. A certificate of insurance consistent with the foregoing requirements is attached hereto as Exhibit B. ii. Contractor's certificates of insurance shall include subcontractors, if any as additional insureds under its policies or Contractor shall furnish to County separate certificates and endorsements for each subcontractor. iii. The insurance provisions of this Agreement shall survive expiration or termination hereof. iv. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. V. Contractor is not entitled to workers' compensation benefits except as provided by the Contractor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 8. Indemnification. The Contractor shall indemnify and hold harmless County, and any of its 3 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 officers, agents and employees against any losses, claims, damages or liabilities for which County may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by Contractor or any of its subcontractors hereunder; and Contractor shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Contractor. This paragraph shall survive expiration or termination hereof. 9. Ownership of Documents. All documents (including electronic files) and materials obtained during, purchased or prepared in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Contractor or upon earlier termination of this Agreement. 10. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date, time and receiving facsimile number for the transmission, or (v) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: Eagle County Sheriff's Office Attention: Deena Ezzell Post Office Box 850 Eagle, CO 81631 Telephone: 970-32 8-85 3 9 Facsimile: 970-328-1448 E-Mail: deena.ezzell(&eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 E-Mail: atty@eaglecounty.us CONTRACTOR: Visible Digital Solutions LLC Attention: Barry Donovan 1011 W Powers Avenue, Littleton, CO 80120 Telephone: 303-346-9001 Email: barry@visibledigitalsolutions.com 4 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 11. Termination. County may terminate this Agreement, in whole or in part, at any time and for any reason, with or without cause, and without penalty therefor with fourteen (14) calendar days' prior written notice to the Contractor. Upon termination of this Agreement, Contractor shall immediately provide County with all documents as defined in paragraph 9 hereof, in such format as County shall direct and shall return all County owned materials and documents. County shall pay Contractor for Services satisfactorily performed to the date of termination. 12. Venue, Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 13. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. 14. Other Contract Requirements and Contractor Representations. a. Contractor has familiarized itself with the nature and extent of the Services to be provided hereunder and the Property, and with all local conditions, federal, state and local laws, ordinances, rules and regulations that in any manner affect cost, progress, or performance of the Services. b. Contractor will make, or cause to be made, examinations, investigations, and tests as he deems necessary for the performance of the Services. C. To the extent possible, Contractor has correlated the results of such observations, examinations, investigations, tests, reports, and data with the terms and conditions of this Agreement. d. To the extent possible, Contractor has given County written notice of all conflicts, errors, or discrepancies. e. Contractor shall be responsible for the completeness and accuracy of the Services and shall correct, at its sole expense, all significant errors and omissions in performance of the Services. The fact that the County has accepted or approved the Services shall not relieve Contractor of any of its responsibilities. Contractor shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to contractors performing similar services. Contractor represents and warrants that it has the expertise and personnel necessary to properly perform the Services and shall comply with the highest standards of customer service to the public. Contractor shall provide appropriate supervision to its employees to ensure the Services are performed in accordance with this Agreement. This paragraph shall survive termination of this Agreement. 5 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 f. Contractor agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. g. This Agreement constitutes an agreement for performance of the Services by Contractor as an independent contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create a relationship of employer -employee, master -servant, partnership, joint venture or any other relationship between County and Contractor except that of independent contractor. Contractor shall have no authority to bind County. h. Contractor represents and warrants that at all times in the performance of the Services, Contractor shall comply with any and all applicable laws, codes, rules and regulations. i. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. j. Contractor shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. k. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. 1. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. M. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. n. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. The Contractor has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and Contractor shall not employ any person having such known interests. o. The Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24-76.5-103 prior to the effective date of this Agreement. 15. Prohibitions on Government Contracts. As used in this Section 15, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.R.S. 8-17.5-101, et. seq. If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Contractor certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Contractor will 1.1 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 participate in the E-verify Program or other Department of Labor and Employment program ("Department Program") in order to confirm the eligibility of all employees who are newly hired for employment to perform Services under this Agreement. a. Contractor shall not: i. Knowingly employ or contract with an undocumented individual to perform Services under this Agreement; or ii. Enter into a subcontract that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b. Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform Services under this Agreement through participation in the E-Verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E-verify program can be found at: https://www.uscis.gov/e-verify C. Contractor shall not use either the E-verify program or other Department Program procedures to undertake pre -employment screening of job applicants while the public contract for services is being performed. d. If Contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an undocumented individual, Contractor shall be required to: i. Notify the subcontractor and County within three (3) days that Contractor has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; and ii. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the subcontractor does not stop employing or contracting with the undocumented individual; except that Contractor shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. e. Contractor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. 8-17.5-102(5). f. If Contractor violates these prohibitions, County may terminate the Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Contractor shall be liable for actual and consequential damages to County as required by law. g. County will notify the Colorado Secretary of State if Contractor violates this provision of this Agreement and County terminates the Agreement for such breach. 7 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 [REST OF PAGE INTENTIONALL Y LEFT BLANK] C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. CONTRACTOR: COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER Signed by: By: F��S� 'a Jef faff' W6 y Manager FD Si ned by: By: 39 889621OF22476... Print Name: Barry Donovan Title: Owner 9 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 EXHIBIT A SCOPE OF SERVICES, SCHEDULE, FEES 10 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 TERMS OF SERVICE AGREEMENT PLEASE READ THE FOLLOWING TERMS OF USE AGREEMENT CAREFULLY. BY ACCESSING OR USING OUR SITES AND OUR SERVICES, YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND ALL TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT EXPRESSLY AGREE TO ALL OF THE TERMS AND CONDITIONS, THEN PLEASE DO NOT ACCESS OR USE OUR SITES OR OUR SERVICES. THIS TERMS OF SERVICE AGREEMENT IS EFFECTIVE AS OF AUGUST 1,2015. The following Terms of Service Agreement (the "TOS") is a legally binding agreement that shall govern the relationship with our users and others which may interact or interface with Visible Digital Solutions LLC, also known as VDS, located at 1011 W Powers Avenue, Littleton, CO 80120, and our subsidiaries and affiliates, in association with the use of the VDS websites and software platforms, which includes but are not limited to my.visnesscard.com, www.visnesscard.com and VisnessWare (the "Site") and its Services, which shall be defined below. 1]PTO0129NREel all 11IIXT/[y11611i]9911 ilk] 1111 VDS offers individuals, businesses and other organizations a service in which VDS creates andhosts their digital business card(s)/brochures(s), also known as Visness Cards or eVACs (electronic Victim Advocacy Cards). Any and all parties associated with the organization listed in the signature portion of this agreement shall be deemed as "users" of the herein contained Services provided for the purposeof this TOS. The user acknowledges and agrees that the Services provided and made available through our website and applications, which includes some mobile applications and 11 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 that those applications may be made available on various social media networking sites and numerous other platforms and downloadable programs, are the sole property of VDS. At its discretion, VDS may offer additional website Services and/or products, or update, modify or revise any current content and Services, and this Agreement shall apply to any and all additional Services and/or products and any and all updated, modified or revised Services unless otherwise stipulated. VDS does hereby reserve the right to cancel and cease offering any of the aforementioned Services and/or products. You, as the end user, acknowledge, accept and agree that VDS shall not be held liable for any such updates, modifications, revisions, suspensions or discontinuance of any of our Services and/or products. Your continued use of the Services provided, after such posting of any updates, changes, and/or modifications shall constitute your acceptance of such updates, changesand/or modifications, and as such, frequent review of this Agreement and any and all applicable terms and policies should be made by you to ensure you are aware of all terms and policies currently in effect. Should you not agree to the updated, modified, revised or modified terms, you must stop using the provided Services. Furthermore, the user understands, acknowledges and agrees that the Services offered shall be provided "AS IS" and as such VDS shall not assume any responsibility or obligation for the timeliness, missed delivery, deletion and/or any failure to store user content, communication orpersonalization settings. SUBSCRIPTION TERMS I authorize VDS to invoice our organization for payment of services in the amount of $699 annually until cancelled and a one-time set up and design fee of $500, and agree to promptly make payment for said services. This payment is for design, publishing, maintenance and hosting of my Visness Card(s) and or eVACs. I understand that cancellations are permitted, however all subscriptions run for a minimum period of twelve months and I understand that payment for twelve consecutive months is required to subscribe to the service. I understand that this 12 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 authorization will remain in effect until the schedule renewal or end date indicated on the invoice, or until I cancel it in writing, whichever comes first, and I agree to notify the business inwriting of any changes in my account information or termination of this authorization at least 30 days prior to the next billing date. If the above noted payment date falls on a weekend or holiday,I understand that the payment may be executed on the next business day. CAUTIONS FOR GLOBAL USE AND EXPORT AND IMPORT COMPLIANCE Due to the global nature of the internet, through the use of our network you hereby agree to comply with all local rules relating to online conduct and that which is considered acceptable Content. Uploading, posting and/or transferring of software, technology and other technical datamay be subject to the export and import laws of the United States and possibly other countries. Through the use of our network, you thus agree to comply with all applicable export and importlaws, statutes and regulations, including, but not limited to, the Export Administration Regulations ( http://www.access.gpo.gov/bis/ear/ear data.html), as well as the sanctions control program of the United States (ttp://www.treasury.gov/resource- center/sanctions/Programs/Pages/Programs.aspx). Furthermore, you state and pledge that you: • are not on the list of prohibited individuals which may be identified on any government exportexclusion report http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm) nor a member of any other government which may be part of an export -prohibited country identified inapplicable export and import laws and regulations; • agree not to transfer any software, technology or any other technical data through the use ofour network Services to any export -prohibited country; 13 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 • agree not to use our website network Services for any military, nuclear, missile, chemical orbiological weaponry end uses that would be a violation of the U.S. export laws; and • agree not to post, transfer nor upload any software, technology or any other technical datawhich would be in violation of the U.S. or other applicable export and/or import laws. lots] ►1AI012»_TOAOX8I all ►d_1D1M_\%11W_1:i1aV]:04181 MIIJ_1►VON 211TJ10:61 VDS shall not lay claim to ownership of any content submitted by any user, or make such content available for inclusion on our website Services. Therefore, you hereby grant and allowfor VDS the below listed worldwide, royalty -free and non- exclusive licenses, as applicable: • The content submitted or made available for inclusion on the publicly accessible areas of VDS's sites and/or Visness Cards/eVACS, the license provided to permit to use, distribute, reproduce, modify, adapt, publicly perform and/or publicly display said Content on our network Services is for the sole purpose of providing and promoting the specific area to which this content was placed and/or made available for viewing. This license shall be available so long as you are a member of VDS's sites, and shall terminate at such time when you elect to discontinue your membership. Photos, audio, video and/or graphics submitted or made available for inclusion on the publiclyaccessible areas of VDS's sites and/or Visness Cards/eVACs, the license provided to permit to use, distribute, reproduce, modify, adapt, publicly perform and/or publicly display said Content on our network Services are for the sole purpose 14 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 of providing and promoting the specific area in which this content was placed and/or made available for viewing. This license shall be available so long as you are a member of VDS's sites and shall terminate at such time when you elect to discontinue your membership. • For any other content submitted or made available for inclusion on the publicly accessible areas of VDS's sites and/or Visness Cards/eVACs, the continuous, binding and completely sub -licensable license which is meant to permit to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and/or publicly display said content, whether in whole or in part, and the incorporation of any such Content into other works in any arrangement or medium currentused or later developed. Those areas which may be deemed "publicly accessible" areas of VDS's sites and/or Visness Cards/eVACs are those such areas of our network properties which are meant to be available tothe general public, and which would include message boards and groups that are openly available to visitors. INDEMNITY All users herein agree to the extent permitted by law hold VDS, our subsidiaries, affiliates, agents, employees, officers, partners and/or licensors blameless or not liable for any claim or demand, which may include, but is not limited to, reasonable attorney fees made by any third party, which may arise from any content a user of our site may submit, post, modify, transmit orotherwise make available through our Services, the use of VDS or your connection with these Services, your violations of the Terms of Service and/or your violation of any such rights of another person. COMMERCIAL REUSE OF SERVICES 15 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 The user herein agrees not to replicate, duplicate, copy, trade, sell, resell nor exploit for anycommercial reason any part, use of, or access to VDS's sites and/or Visness Cards/eVACs. MODIFICATIONS VDS shall reserve the right at any time it may deem fit, to modify, alter and or discontinue, whether temporarily or permanently, our service, or any part thereof, with or without prior notice. In addition, we shall not be held liable to you or to any third parry for any such alteration, modification, suspension and/or discontinuance of our Services, or any part thereof. ADVERTISERS Any correspondence or business dealings with, or the participation in any promotions of, advertisers located on or through our Services, which may include the payment and/or delivery of such related goods and/or Services, and any such other term, condition, warranty and/or representation associated with such dealings, are and shall be solely between you and any suchadvertiser. Moreover, you herein agree that VDS shall not be held responsible or liable for anyloss or damage of any nature or manner incurred as a direct result of any such dealings or as a result of the presence of such advertisers on our websites. LINKS Either VDS or any third parties may provide links to other websites and/or resources. Thus, you acknowledge and agree that we are not responsible for the availability of any such external sites or resources, and as such, we do not endorse nor are we responsible or liable for any content, products, advertising or any other materials, on or available from such third -party sites or resources. Furthermore, you acknowledge and agree that VDS shall not be responsible or liable, directly or indirectly, for any such damage or loss which may be a result of, caused or allegedlyto be caused by or 16 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 in connection with the use of or the reliance on any such content, goods or Services made available on or through any such site or resource. PROPRIETARY RIGHTS You do hereby acknowledge and agree that VDS's Services and any essential software that maybe used in connection with our Services ("Software") shall contain proprietary and confidential material that is protected by applicable intellectual property rights and other laws. Furthermore, you herein acknowledge and agree that any Content which may be contained in any advertisements or information presented by and through our Services or by advertisers is protected by copyrights, trademarks, patents or other proprietary rights and laws. Therefore, except for that which is expressly permitted by applicable law or as authorized by VDS or such applicable licensor, you agree not to alter, modify, lease, rent, loan, sell, distribute, transmit, broadcast, publicly perform and/or created any plagiaristic works which are based on VDS Services (e.g. Content or Software), in whole or part. VDS herein has granted you personally or your organization, non -transferable and non-exclusive rights and/or license to make use of your Visness Card/eVAC on your devices, as long as you donot, and shall not, allow any third party to duplicate, alter, modify, create or plagiarize work from, reverse engineer, reverse assemble or otherwise make an attempt to locate or discern any source code, sell, assign, sublicense, grant a security interest in and/or otherwise transfer any such right in the Software. Furthermore, you do herein agree not to alter or change the Software in any manner, nature or form, and as such, not to use any modified versions of the Software, including and without limitation, for the purpose of obtaining unauthorized access to our Services. Lastly, you also agree not to access or attempt to access our Services through any means other than through the interface which is provided by VDS for use in accessing our Services. 17 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 WARRANTY DISCLAIMERS ►cell taLa 10n ill RONa3a&w%Ty u[•1LT11111140eLW_Vv_[e]:ial:redI • THE USE OF VDS SERVICES AND SOFTWARE ARE AT THE SOLE RISK BY YOU. OUR SERVICES AND SOFTWARE SHALL BE PROVIDED ON AN "AS IS" AND/OR "AS AVAILABLE" BASIS. VDS AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. • VDS AND OUR SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO SUCH WARRANTIES THAT (i) VDS SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) VDS SERVICES OR SOFTWARE SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR- FREE; (iii) THAT SUCH RESULTS WHICH MAY BE OBTAINED FROM THE USE OF THE VDS SERVICES OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (iv) QUALITY OF ANY PRODUCTS, SERVICES, ANY INFORMATION OR OTHER MATERIAL WHICH MAY BE PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS; AND (v) THAT ANY SUCH ERRORS CONTAINED IN THE SOFTWARE SHALL BE CORRECTED. • ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAIN BY WAY OF VDS SERVICES OR SOFTWARE SHALL BE ACCESSED BY YOUR SOLE DISCRETION AND SOLE RISK, AND AS SUCH YOU SHALL BE SOLELY RESPONSIBLE FOR. • NO ADVICE AND/OR INFORMATION, DESPITE WHETHER WRITTEN OR ORAL, THAT MAY BE OBTAINED BY YOU FROM VDS OR BY WAY OF OR FROM OUR 18 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED 1►aImmm03113 • A SMALL PERCENTAGE OF SOME USERS MAY EXPERIENCE SOME DEGREE OF EPILEPTIC SEIZURE WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS THAT MAY BE CONTAINED ON A COMPUTER SCREEN OR WHILE USING OUR SERVICES. CERTAIN CONDITIONS MAY INDUCE A PREVIOUSLY UNKNOWN CONDITION OR UNDETECTED ELILEPTIC SYMPTOM IN USERS WHO HAVE SHOWN NO HISTORY OF ANY PRIOR SEIZURE OR EPILEPSY. SHOULD YOU, ANYONE YOU KNOW OR ANYONE IN YOUR FAMILY HAVE AN EPILEPTIC CONDITION, PLEASE CONSULT A PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING OUR SERVICES: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS. LIMITATION OF LIABILITY YOU EXPLICITLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT NEITHER PARTY OR THEIR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES WHICH MAY BE RELATED TO THELOSS OF ANY PROFITS, GOODWILL, USE, DATA AND/OR OTHER INTANGIBLE LOSSES, EVEN THOUGH WE MAY HAVE BEEN ADVISED OF SUCH POSSIBILITY THAT SAID DAMAGES MAY OCCUR, AND RESULT FROM: • THE USE OR INABILITY TO USE OUR SERVICE; 19 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 • THE COST OF PROCURING SUBSTITUTE GOODS AND SERVICES; • UNAUTHORIZED ACCESS TO OR THE ALTERATION OF YOUR TRANSMISSIONS AN D/O R DATA; • STATEMENTS OR CONDUCT OF ANY SUCH THIRD PARTY ON OUR SERVICE; EXCLUSION AND LIMITATIONS THERE ARE SOME JURISDICTIONS WHICH DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS OF SECTIONS WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. THIRD PARTY BENEFICIARIES You herein acknowledge, understand and agree, unless otherwise expressly provided in thisTOS, that there shall be third -party beneficiaries to this agreement. NOTICE VDS may furnish you with notices, including those with regards to any changes to the TOS, including but not limited to email, regular mail, MMS or SMS, text messaging, postings on our website Services, or other reasonable means currently known or any which may be hereinafter developed. Any such notices may not be received if you violate any aspects of the TOS by accessing our Services in an unauthorized manner. Your acceptance of this TOS constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed our 20 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 Services in an authorized manner. TRADEMARK INFORMATION You herein acknowledge, understand and agree that all of the VDS trademarks, copyright, tradename, service marks, and other VDS logos and any brand features, and/or product and service names are trademarks and as such, are and shall remain the property of VDS. You herein agree not to display and/or use in any manner the VDS logo or marks. COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS NOTICE &PROCEDURES VDS will always respect the intellectual property of others, and we ask that all of our users do the same. With regards to appropriate circumstances and at its sole discretion, VDS may disableand/or terminate the accounts of any user who repeatedly violates our TOS and/or infringes the rights of others. If you feel that your work has been duplicated in such a way that would constitute copyright infringement, or if you believe your intellectual property rights have been otherwise violated, you should provide to us the following information: • The electronic or the physical signature of the individual that is authorized on behalf of the owner of the copyright or other intellectual property interest; • A description of the copyrighted work or other intellectual property that you believe has been infringed upon; • A description of the location of the site which you allege has been infringing upon your work; • The physical address, telephone number, and email address; 21 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 • A statement, in which you state that the alleged and disputed use of your work is notauthorized by the copyright owner, its agents or the law; • And finally, a statement, made under penalty of perjury, that the aforementioned information in your notice is the truth and accurate, and that you are the copyright or intellectual property owner, representative or agent authorized to act on the copyright or intellectual property owner'sbehalf. • The VDS Agent for notice of claims of copyright or other intellectual property infringement canbe contacted as follows: Mailing Address: Visible Digital Solutions LLC Attn: Copyright Agent 1011 W Powers Avenue, Littleton, CO 80120Telephone: 303-346-9001 Email: servicekvisnesscard.com GENERAL INFORMATION ENTIRE AGREEMENT This TOS constitutes the entire agreement between you and VDS and shall govern the use of ourServices, superseding any prior version of this TOS between you and us with respect to VDS Services. You may also be subject to additional terms and conditions that may apply when you use or purchase certain other VDS Services, affiliate 22 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 Services, third -party content or third -party software. CHOICE OF LAW AND FORUM It is at the mutual agreement of both you and VDS with regard to the TOS that the relationship between the parties shall be governed by the laws of the state of Colorado without regard to its conflict of law provisions and that any and all claims, causes of action and/or disputes, arising out of or relating to the TOS, or the relationship between you and VDS, shall be filed within the courts having jurisdiction within the County of Arapahoe, Colorado or the U.S. District Court located in said state. You and VDS agree to submit to the jurisdiction of the courts as previously mentioned, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts. WAIVER AND SEVERABILITY OF TERMS At any time, should either party fail to exercise or enforce any right or provision of the TOS, such failure shall not constitute a waiver of such right or provision. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that thecourt should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. VIOLATIONS Please report any and all violations of this TOS to VDS as follows: Mailing Address: Visible Digital Solutions LLC Attn: Copyright Agent 1011 W Powers Avenue, Littleton, 23 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 CO 80120Telephone: 303-346-9001 Email: servicekvisnesscard.com EXHIBIT B INSURANCE CERTIFICATE 24 C21-312 DocuSign Envelope ID: FE48267D-AA6C-46A9-BC7B-2D3A2D3E48B9 ACORO® CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DDIYYYY) `� 09/08/2021 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: HISCOX Inc. PHONE FAX o Et): (ggg ) 202-3007 A/C No A/C No. 520 Madison Avenue E-MAILADDREss, contact@hISCOX.COm 32nd Floor New York, NY 10022 INSURER(S)AFFORDING COVERAGE NAIC# INSURER A: Hiscox Insurance Company Inc 10200 INSURED INSURER B : Visible Digital Solutions 1011 W Powers Ave INSURER C INSURER D : Littleton CO 80120 INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUBR POLICYNUMBER POLICY EFF MM/DD POLICY EXP MM/DD LIMITS X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 3,000,000 FN_/7 CLAIMS -MADE OCCUR DAMAGE TO RENTED PREMISES Ea occurrence) $ 100,000 MED EXP (Any one person) $ 5,000 PERSONAL & ADV INJURY $ 3,000,000 A Y UDC-4512626-CGL-21 07/09/2021 07/09/2022 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 3,000,000 X POLICY PRO ❑ LOC JECT PRODUCTS - COMP/OP AGG $ S/T Gen. Agg. $ OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident $ BODILY INJURY (Per person) $ ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ HIRED NON -OWNED AUTOS ONLY AUTOS ONLY UMBRELLA LIAB OCCUR EACH OCCURRENCE $ HCLAIMS-MADE AGGREGATE $ EXCESS LIAB ID ED RETENTION $ 1 $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N PER OTH- STATUTE ER ANYPROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ OFFICER/MEMBEREXCLUDED? NIA E.L. DISEASE - EA EMPLOYEE $ (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Eagle County is named as additional insured CERTIFICATE HOLDER CANCELLATION Eagle County 200 Broadway SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Eagle CO 81631 THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE 7 @ 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logre2aW�ggistered marks of ACORD