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HomeMy WebLinkAboutC23-271 Fifth Asses dba DebtBookSeptember 2022 Form ORDER FORM Fifth Asset, Inc., d/b/a DebtBook (“DebtBook”) is pleased to provide Eagle County, CO (“Customer”) with the Services subject to the terms established in this Order Form, including DebtBook’s Price Quote attached as Exhibit A and incorporated herein by this reference (the “DebtBook Quote”). This Order Form may be modified or replaced from time to time by a subsequent Order Form duly executed and delivered by each party in connection with any Renewal Term. The Services are subject to DebtBook’s General Terms & Conditions, which have been provided to Customer (the “Terms & Conditions”), and the Incorporated Documents referenced in the Terms & Conditions. Each capitalized term used but not defined in this Order Form has the meaning given in the Terms & Conditions. Order Form Details Effective Date: 8/14/2023 Billing Frequency: Annually Initial Term End Date: 8/13/2024 Payment Terms: Net 30 Initial Pricing Tier: 2 See the DebtBook Quote for more details Services. Subject to the terms described in this Order Form, DebtBook will grant Customer access to the Application Services during the Initial Term described above and, if applicable, each subsequent Renewal Term. As part of the onboarding process, DebtBook will provide Customer with the Onboarding Services and, if requested, the Implementation Services. DebtBook will also provide Customer with the Support Services throughout the Term. Fees. DebtBook will charge Customer (1) a recurring Subscription Fee for Customer’s access to the Onboarding Services, the Application Services, and the Support Services and (2) if applicable, an Implementation Fee for the Implementation Services, in each case as set forth in the DebtBook Quote and this Order Form. Generally, DebtBook sets Fees using its standard pricing schedule for the Services based on the Customer’s applicable Pricing Tier, which is based on the total number and amount of the Customer’s Application Obligations at the time of determination. DebtBook’s current pricing schedule and Pricing Tiers are set forth in the DebtBook Quote, which will remain in effect with respect to Customer throughout the Initial Term. The Initial Pricing Tier indicated above is based on Customer’s good faith estimate of its Application Obligations as of the Effective Date. The Subscription Fees to be charged as provided in the DebtBook Quote will not change during the Initial Term, regardless of any change to the actual number or amount of the Customer’s Application Obligations during the Initial Term. Implementation Services. At Customer’s request, DebtBook will provide Implementation Services to Customer for a 12-month period, with each such period beginning, if applicable, on the Effective Date and on each anniversary of the Effective Date thereafter (each, an “Implementation Period”). Customer may request Implementation Services at any time during the Term. If Implementation Services are requested for any Implementation Period, then the Implementation Fee will be based on the aggregate number and amount of the Customer’s Application Obligations at the beginning of such Implementation Period. The Implementation Fee will be due and payable at the later of (1) the beginning of the applicable Implementation Period or (2) the date on which Customer requests Implementation Services for such Implementation Period, and will entitle Customer, in each case, to Implementation Services at the applicable Pricing Tier through the end of the Implementation Period then in effect. For any Implementation Period, if the total number or amount of Customer’s Application Obligations implemented causes Customer’s applicable Pricing Tier to increase, then DebtBook will charge Customer an additional Implementation Fee such that the total Implementation Fee charged for such Implementation Period equals the Implementation Fee applicable to the increased Pricing Tier as set forth in the DebtBook Quote. Billing. Unless otherwise provided in the Order Form or the Customer Terms, all Fees will be due and payable in advance on the terms indicated above, and each invoice will be emailed to the Customer’s billing contact indicated below. DocuSign Envelope ID: 4D08559F-5764-4394-8A2C-EC7DC050C4A5 September 2022 Form Renewal Term. The Agreement is subject to renewal on the terms set forth in the Terms & Conditions. The Pricing Tier applicable for each Renewal Term will be determined based on the aggregate number and amount of the Customer’s Application Obligations at the time of renewal. Termination. The Agreement is subject to early termination on the terms set forth in the Terms & Conditions. Additional Customer Terms. The terms attached to this Order Form as Exhibit B constitute “Customer Terms” for the purposes of the Agreement and are incorporated into this Order Form by this reference. Entire Agreement. By executing this Order Form, each party agrees to be bound by this Order Form, the Terms & Conditions, the Incorporated Documents, and any Customer Terms. This Order Form, the Customer Terms, the Terms & Conditions, and the Incorporated Documents constitute the complete “Agreement” between the parties and supersede any prior discussion or representations regarding the Customer’s purchase and use of the Services. Intellectual Property. Except for the limited rights and licenses expressly granted to Customer under this Order Form and the Terms & Conditions, nothing in the Agreement grants to Customer or any third party any intellectual property rights or other right, title, or interest in or to the DebtBook IP. Important Disclaimers & Limitations. EXCEPT FOR THE WARRANTIES SET FORTH IN THE TERMS & CONDITIONS, DEBTBOOK IP IS PROVIDED “AS IS,” AND DEBTBOOK DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES’ LIABILITIES UNDER THE AGREEMENT ARE LIMITED AS SET FORTH IN THE TERMS & CONDITIONS. Notices. Any Notice delivered under the Agreement will be delivered to the address below each party’s signature below. DocuSign Envelope ID: 4D08559F-5764-4394-8A2C-EC7DC050C4A5 September 2022 Form Authority; Execution. Each of the undersigned represents that they are authorized to (1) execute and deliver this Order Form on behalf of their respective party and (2) bind their respective party to the terms of the Agreement. This Order Form and any other documents executed and delivered in connection with the Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. To the extent permitted by applicable law, electronic signatures may be used for the purpose of executing the Order Form by email or other electronic means. Any document delivered electronically and accepted is deemed to be “in writing” to the same extent and with the same effect as if the document had been signed manually. FIFTH ASSET, INC., D/B/A DEBTBOOK By: Name: Tyler Traudt Title: CEO EAGLE COUNTY, CO By: Name: Title: Notice Address PO Box 667950 Charlotte, NC 28266 Attention: Chief Executive Officer tyler.traudt@debtbook.com Notice Address 500 Broadway PO Box 850 Eagle, CO 81632 Attention: Anna Earl anna.earl@eaglecounty.us Billing Contact Eagle County Finance PO Box 850 Eagle, CO 81632 Attention: Julia Bankert financeinvoices@eaglecounty.us DocuSign Envelope ID: 4D08559F-5764-4394-8A2C-EC7DC050C4A5 County Manager Jeff Shroll September 2022 Form Exhibit A DebtBook Quote [See attached.] DocuSign Envelope ID: 4D08559F-5764-4394-8A2C-EC7DC050C4A5 Eagle County, CO Eagle C o unt y, C O 50 0 B roadway E agle , CO 8 1 631 US Julia Banke rt julia.banke rt@e agle county.us (97 0 ) 328 -8 60 0 Anna Earl anna.e arl@ eaglecounty.us (97 0 ) 328 -351 4 Quote create d: June 28 , 20 23 Quote e xpire s: July 28 , 20 23 Quote created by: Jake M cGlone Account E xe cutive jake.mcglone@ de btbook.com C o mme nt s f ro m Jake Mc Glo ne Pro d ucts & S e rv ice s It e m & D e s c ript io n S KU Q u ant it y Unit Pric e T o t al 23 Subscription Fee Tie r 2 23ST2- 1 1 $1 3,0 0 0 .0 0   / year $1 3,0 0 0 .0 0 / ye ar 23 Guide d I mple me ntation Fe e Tier 2 23GI 2- 1 1 $0 .0 0  $0 .0 0 T o tal $1 3,000.00 This represents the annual subscription fee your organiz ation pays for the Application Services, O nboarding Services, and Support Services. This includes unlimited users and external sharing. This covers the cost of our G uided Implementation process for y our organiz ation. DocuSign Envelope ID: 4D08559F-5764-4394-8A2C-EC7DC050C4A5 September 2022 Form Exhibit B Additional Customer Terms 1. Definitions. In addition to the definitions set forth in DebtBook’s General Terms & Conditions, which are incorporated herein by reference, each of the following terms has the meaning set forth below: a. “Authorized Person” means DebtBook’s employees, contractors, subcontractors or other agents who need to access County Data to enable DebtBook to perform the services required. b. “County” means Eagle County, CO. c. “County Data” means all data created or in any way originating with the County, and all data that is the output of computer processing of or other electronic manipulation of any data that was created by or in any way originated with the County or was shared with the County by another law enforcement agency, whether such data or output is stored on the County’s hardware, DebtBook’s hardware or exists in any system owner, maintained or otherwise controlled by the County or by DebtBook. For the avoidance of doubt, “County Data” does not include Aggregated Statistics. d. “Data Breach” means the unauthorized access by a non-Authorized Person(s) that results in the use, disclosure or theft of County Data. e. “Security Incident” means the potentially unauthorized access by non-authorized persons to personal data or non-public data DebtBook believes could reasonably result in the use, disclosure or theft of County Data within the possession or control of DebtBook. A Security Incident may or may not turn into a Data Breach. 2. Fees. a. Fees for Services for any Renewal Term may be increased no more than three percent (3%) on an annualized per-user basis absent a written amendment to the Agreement. DebtBook shall provide County with notice of such increases in fees no later than 60 days prior to the expiration of the then current Term or Renewal Term. b. 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 DebtBook 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). 3. Insurance. DebtBook agrees to provide and maintain at DebtBook’s sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. i. Workers’ Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non-owned vehicles. iii. 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. iv. Tech Errors and Omissions including Cyber Liability with prior acts coverage for all deliverables, Services and additional services required hereunder, in a form and with insurer or insurers satisfactory to County, with limits of liability of not less than $3,000,000 per claim and $3,000,000 in the aggregate. The insurance shall provide coverage for (i) liability arising from theft, dissemination and/or use of confidential information stored or transmitted in electronic form; (ii) Network Security Liability arising from unauthorized access to, use of or tampering with computer systems including DocuSign Envelope ID: 4D08559F-5764-4394-8A2C-EC7DC050C4A5 September 2022 Form hacker attacks, inability of an authorized third party to gain access to your Software or Services including denial of access or Services unless caused by a mechanical or electrical failure; (iii) liability arising from the introduction of a computer virus into, or otherwise causing damage to, County or a third person’s computer, computer system, network or similar computer related property and the data, software and programs thereon. v. Crime Coverage shall include employee dishonesty, forgery or alteration and computer fraud. If Consultant is physically located on County premises, third party fidelity coverage extension shall apply. The policy shall include coverage for all directors, officers and employees of the Consultant. The bond or policy shall include coverage for extended theft and mysterious disappearance. The bond or policy shall not contain a condition requiring an arrest or conversion. Limits shall be a minimum of $1,000,000 per loss. b. Other Requirements. i. The automobile and 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 A. ii. DebtBook’s certificates of insurance shall include subcontractors, if any as additional insureds under its policies or DebtBook 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. DebtBook is not entitled to workers’ compensation benefits except as provided by DebtBook, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by DebtBook or some other entity. DebtBook is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 4. Notification of Legal Requests. DebtBook shall contact the County upon receipt of any electronic discovery, litigation holds, discovery searches and expert testimonies related to the County’s Data under this contract, or which in any way might reasonably require access to the data of the County. DebtBook shall not respond to subpoenas, service of process and other legal requests related to the County without first notifying the County, unless prohibited by law from providing such notice. 5. Access to Security Logs and Reports. Upon the County’s reasonable request, DebtBook shall provide the County within a timely manner access to Security Logs and Reports, Data Center Audit or Vulnerability Scanning reports. 6. Data Center Audit or Vulnerability Scanning. To ensure the security of County Data maintained by DebtBook, DebtBook shall engage an independent third party or utilize independent third-party software services to perform an independent audit or vulnerability scanning of its data centers at least annually at its expense. DebtBook will provide County a redacted version of the audit report upon request. DebtBook may remove its proprietary information from the redacted version. This audit or vulnerability scanning shall include at minimum a scan of the organizations Internet perimeter, web application firewall, physical access to data center, crawling and testing web applications to identify vulnerabilities including for cross-site scripting and SQL injection. Any items that don’t meet standards or are marked as critical must be addressed and corrected by DebtBook in a timely manner, as mutually agreed upon by the parties. 7. [Reserved]. 8. Export of Data. The County shall have the ability to export County Data in piecemeal or in entirety at its discretion without interference from DebtBook. This includes, to the extent applicable to, and supported by, DocuSign Envelope ID: 4D08559F-5764-4394-8A2C-EC7DC050C4A5 September 2022 Form the Application Services, the ability for the County to export data to or from other vendors or service providers in a CSV format and image file format or other mutually agreeable format. 9. Business Continuity and Disaster Recovery. As a part of the Services, DebtBook is responsible for maintaining a backup of County Data and for an orderly and timely recovery of such data in the event that the Services may be interrupted. DebtBook shall maintain a contemporaneous backup of County Data that can be recovered within 24 hours at any point in time. Additionally, DebtBook shall store a backup of County Data in an off-site “hardened” facility no less than weekly, maintaining the security of County Data, the security requirements of which are further described herein. 10. Compliance with Protection Against Discrimination on the Basis of Disability. a. DebtBook is responsible for addressing accessibility issues in any software, including but not limited to any implementation, configuration, or documentation provided or licensed by DebtBook and delivered to the County. b. DebtBook shall ensure that all end user deliverables adhere to the Governor’s Office of Information Technology’s Technology Accessibility for Persons with Disabilities Standards and must be able to update any software/systems in the event of updates to those standards. If the DebtBook has agreed to perform maintenance for the County, DebtBook’s obligations apply to its performance of maintenance. c. Contract must ensure that accessibility and usability are addressed at every stage of the project. DebtBook shall provide accessibility conformance reports for any software with which users will interact when requested by County. Remediation of accessibility issues which pose a very minor inconvenience to disabled users but do not prevent them from using the software may be waived by the County’s sole discretion. Correction of accessibility issues may require, among other things, writing new core code, shutting off inaccessible features, providing users with Third Party Software in addition to their assistive technology, or providing disabled users with an alternative pathway to the inaccessible feature or the business process that it automates. DebtBook shall collaborate with the County to prioritize accessibility defects based on severity. If the County determines that accessibility issues exist but cannot be resolved or mitigated, DebtBook may terminate the Agreement. 11. Data Ownership. DebtBook acknowledges and agrees that County owns all rights, title, and interest in County Data. DebtBook shall not access County user accounts or County Data, except (1) in the course of data center operations, (2) in response to service or technical issues, (3) for proactive service and problem resolution, (4) as required by the express terms of the Agreement, or (5) at the County’s written request. 12. Data Confidentiality. DebtBook agrees to keep confidential all County Data, and agrees not to sell, assign, distribute, or disclose any such confidential information to any other person or entity without seeking written permission from the County. 13. Data Protection. Protection of County Data shall be an integral part of the business activities of DebtBook to ensure there is no inappropriate or unauthorized use of County Data at any time. To this end, DebtBook shall safeguard the confidentiality, integrity and availability of County Data and comply with the following conditions: a. DebtBook shall implement and maintain commercially reasonable and appropriate administrative, technical and organizational security measures to safeguard against unauthorized access, disclosure or theft of County Data. Such security measures shall be in accordance with recognized industry practice. b. DebtBook shall enforce separation of job duties, require commercially reasonable non- disclosure agreements, and limit staff knowledge of County Data to that which is absolutely necessary to perform job duties. c. All County Data obtained by DebtBook in the performance of the Agreement shall become and remain the property of the County. d. All County Data shall be encrypted in transit with controlled access, with the level of protection and encryption identified for County upon request. Unless otherwise stipulated, DebtBook is responsible for encryption of the County Data. DocuSign Envelope ID: 4D08559F-5764-4394-8A2C-EC7DC050C4A5 September 2022 Form e. At no time shall any data or processes — that either belong to or are intended for the exclusive use of the County or its officers, agents, or employees — be copied, disclosed, or retained by DebtBook or any party related to DebtBook for subsequent use in any transaction that does not include the County. For the avoidance of doubt, this paragraph is not intended to apply to Feedback. f. DebtBook shall not use any County Data collected in connection with the Services for any purpose other than fulfilling the Agreement. 14. Security Incident or Data Breach Notification. a. DebtBook shall inform the County of any security incident or data breach. b. Incident Response. DebtBook may need to communicate with outside parties regarding a security incident, which may include contacting law enforcement, fielding media inquiries and seeking external expertise as mutually agreed upon, defined by law or contained in the contract. Discussing security incidents with the County should be handled on an urgent as-needed basis, as part of vendor communication and mitigation processes as mutually agreed upon, defined by law, or contained in the contract. c. Security Incident Reporting Requirements. DebtBook shall report a security incident to the appropriate County identified contact immediately and in any event within 72 hours or such shorter time as required by applicable law. d. Breach Reporting Requirements. If DebtBook has actual knowledge of a confirmed data breach that affects the security of any County Data that is subject to applicable data breach notification law, DebtBook shall (1) promptly notify the appropriate County identified contact within 72 hours or sooner, unless shorter time is required by applicable law, and (2) take commercially reasonable measures to address the data breach in a timely manner. In the case of a data breach originating from the County’s responsibilities, DebtBook will work with the County to identify and resolve the Breach, but the County will be responsible for any remediation steps as required by law. 15. Data Breach Responsibilities. a. DebtBook shall (1) cooperate with the County as reasonably requested by the County to investigate and resolve the data breach, (2) promptly implement necessary remedial measures, if necessary, and (3) document responsive actions taken related to the data breach, including any post-incident review of events and actions taken to make changes in business practices in providing the services, if necessary. d. Unless otherwise stipulated, if a data breach is a direct result of DebtBook’s breach of its contract obligation to encrypt personal data or otherwise prevent its release, DebtBook shall bear the costs associated with (1) the investigation and resolution of the data breach; (2) notifications to individuals, regulators or others required by state law; (3) a credit monitoring service required by state (or federal) law; (4) a website or a toll-free number and call center for affected individuals required by state law — all not to exceed the average per record per person cost calculated for data breaches in the United States; and (5) complete all corrective actions as reasonably determined by DebtBook based on root cause; all [(1) through (5)] subject to the Agreement’s limitation of liability. 16. Termination. a. County may terminate the Agreement, in whole or in part, at any time and for any reason, with or without cause, and without penalty therefor with 30 calendar days’ prior written notice to DebtBook. If the County terminates the Agreement under this paragraph, the County shall not be entitled to a refund of any Fees previously paid to DebtBook. b. Either party may terminate this Agreement in the event that the other party commits a material breach of this Agreement and fails to cure such material breach within 20 days after receiving written notice of the same. c. In the event of a termination of the contract, DebtBook shall follow the data return and deletion procedures set forth in Section 6(c) of the Terms & Conditions. d. During any period of Service Suspension, DebtBook shall not take any action to intentionally erase any County Data. DocuSign Envelope ID: 4D08559F-5764-4394-8A2C-EC7DC050C4A5