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HomeMy WebLinkAboutSurvivr, PBC - VR Hardware Sales and License Agreement DocuSign Envelope ID:7F22FA4C-3E38-451 E-ACDF-2724AB79A399 VR HARDWARE SALES AND LICENSE AGREEMENT THIS HARDWARE SALES AND LICENSE AGREEMENT(this 1.8 "SURVIVR Services"means the SURVIVR software "Agreement") is entered into on this 25th day of November, and services set forth in an Order, including applicable 2020(the"Effective Date")by and between SURVIVR,PBC, Scenarios. a Delaware public benefit corporation,with offices at 8330 LBJ Fwy,Ste B 1165,Dallas,TX 75243("SURVIVR"),and City of 1.9 "User Data"means any data provided by or obtained Yakima, a Washington State Municipality with Police from Customer and its End Users in connection with all uses of Department offices at 200 S 3`d Street, Yakima, WA 98901 the SURVIVR Services. ("Customer"). 2. ORDER PROCESS RECITALS 2.1 Submission of Purchase Orders. From time to time WHEREAS, SURVIVR has developed, licenses and sells during the Term, Customer may order SURVIVR Hardware virtual reality training programs and related hardware designed Products from SURVIVR by submitting an order in written to train law enforcement, first responders, military and similar form ("Order") to SURVIVR. Any Orders received from personnel in handling various real world scenarios; Customer by SURVIVR shall be deemed to have been authorized by Customer. Such Order will include, at a WHEREAS, Customer wishes to purchase certain minimum, (a) unit description and quantity; (b) shipping SURVIVR Hardware Products and access the SURVIVR destination; (c)requested shipping and delivery date(although Services, which shall include SURVIVR providing certain SURVIVR's standard lead time is 8 to 12 weeks);and(d)other Scenarios and related content that interact within the SURVIVR instructions or requirements pertinent to the Order. For the sake Hardware Products; of convenience only, Customer may use its standard purchase order form for all Orders; provided, however, that this NOW, THEREFORE, in consideration of the mutual Agreement will exclusively govern and control the purchase of SURVIVR Hardware Products from SURVIVR, and any covenants set forth below,the parties hereby agree as follows: additional or contradictory terms and conditions contained on Customer's purchase order form will be of no effect,regardless AGREEMENT of SURVIVR's acknowledgment or acceptance of such Order. 1. DEFINITIONS 2.2 Forecasts,Order Acceptance and Cancellations. 1.1 "Analytics" means statistics, metrics and other (a) Forecasts. If requested by SURVIVR,Customer will analyses that are based on or derived from the SURVIVR generate and provide to SURVIVR a non-binding forecast of its Products,User Data,or Scenarios and other related systems and anticipated purchases of SURVIVR Hardware Products during technologies (including without limitation, aggregate the following two calendar quarters. measurements of SURVIVR Service usage and performance relating Customer's and its End Users use thereof). 2.3 Order Acceptance. SURVIVR will have ten (10) business days after receipt of an Order to accept or reject such 1.2 "Documentation" means the technical and user Order,in whole or in part, in its sole discretion. Orders will be documentation related to the SURVIVR Products provided to deemed accepted by SURVIVR only upon the earlier of(a) Customer by SURVIVR. written notice of acceptance from SURVIVR; or (b) actual shipment of SURVIVR Hardware Products by SURVIVR, 1.3 "End User"means an employee of Customer that uses provided that any acceptance by actual shipment will apply the SURVIVR Products. only to those SURVIVR Hardware Products actually shipped. 1.4 "Maintenance Period" means the period for which No Order will be binding upon SURVIVR unless accepted by Customer has an active subscription to the SURVIVR Services SURVIVR in accordance with this Section 2.3. Without and for which fees have been paid. limiting the foregoing, no order may have a requested scheduled delivery date of less than 30 days after,the date of the 1.5 "Scenario" means a virtual reality training scenario Order. made available by SURVIVR as part of the SURVIVR 2.4 Order Cancellations. Customer may cancel any Services. Order without penalty by giving written notice of cancellation 1.6 "SURVIVR Hardware Products" means the to SURVIVR, provided that such notice is received by SURVIVR hardware products as set forth in an Order. SURVIVR no later than sixty(60)days prior to the scheduled delivery date. 1.7 "SURVIVR Products" means, collectively, the SURVIVR Hardware Products and the SURVIVR Services. 1. 238481161 v2 DocuSign Envelope ID:7F22FA4C-3E38-451E-ACDF-2724AB79A399 3. SHIPMENT;DELIVERY 5.2 Taxes. All prices are exclusive of all taxes and duties after delivery to the designated destination (other than taxes 3.1 Packing and Shipment. SURVIVR will handle and based on SURVIVR's income)that SURVIVR may be required pack all SURVIVR Hardware Products so as to reasonably to collect or pay upon shipment or availability of the SURVIVR protect them from loss or damage, in conformance with Products. Customer will pay such taxes or duties unless standard commercial practice. SURVIVR will use Customer is exempt from such taxes or duties(or will reimburse commercially reasonable efforts to make the SURVIVR SURVIVR for such payments that SURVIVR makes). Upon Hardware Products available for shipping on or before the request and where applicable, Customer will provide shipping date agreed upon by the parties (the "Shipping SURVIVR with a resale exemption certificate. Date"). If SURVIVR cannot make the SURVIVR Hardware Products available, by the Shipping Date, SURVIVR will (a) 6. LICENSES notify Customer of the delay; and (b) make the SURVIVR Hardware Products available as soon as reasonably practicable. 6.1 SURVIVR Products. All shipments of SURVIVR Products will be EXW SURVIVR's shipping site. Customer will be responsible for all (a) SURVIVR Services. Subject to the terms and costs associated with shipping and delivery. conditions of this Agreement, SURVIVR grants to Customer a nonexclusive, non-transferable (except as permitted under 3.2 Title and Risk of Loss. Subject to Section 6.2,title to Section 13.8) license, during the Term, to access and use, and SURVIVR Hardware Products will pass to Customer upon to permit each End User to access and use, the SURVIVR delivery to a common carrier. As between the parties,title to, Services, solely for such End User's use and solely for their and ownership in, SURVIVR Services (including all internal training purposes,in accordance with the specifications intellectual property rights related thereto) will remain with set forth in any Documentation. Customer shall be responsible SURVIVR. Subject to Section 4, Customer is responsible for for placement of the SURVIVR Hardware Products in such a all risks of loss or damage to the SURVIVR Hardware Products location with internet access, and will provide such internet after SURVIVR's delivery of such SURVIVR Hardware access,that will allow SURVIVR to provide remote SURVIVR Products to a common carrier as described above. Customer Services(including updates to the Scenarios and software in the will be responsible for any costs of insuring the SURVIVR SURVIVR Hardware Products). Hardware Products. (b) Documentation. Subject to the terms and conditions 4. INSPECTION;ACCEPTANCE. Customer will have five of this Agreement, SURVIVR grants to Customer a (5)business days after receipt of SURVIVR Hardware Products nonexclusive, non-transferable (except as permitted under (the "Return Period") to notify SURVIVR in writing of any Section 13.8)royalty-free license during the Term to reproduce discrepancies in the shipment. In all cases under this the Documentation solely to the extent necessary to use the Agreement,SURVIVR will only accept returns from Customer SURVIVR Products in accordance with the terms herein. of SURVIVR Hardware Products that are incorrect (wrong product) or"dead on arrival" (nonfunctional when delivered), (c) Restrictions.Customer acknowledges and agrees that returned with a Return Material Authorization ("RMA") the SURVIVR Products and their design and structure number issued by SURVIVR, and accompanied by a notice (including any software) constitute valuable trade secrets of specifying the pertinent discrepancy. No returns will be SURVIVR and its suppliers. Accordingly,except to the extent accepted unless notice is provided during the Return Period, expressly permitted in Section 6.1(a) and (b)above,Customer except for returns of SURVIVR Hardware Products for repair agrees not to (a) modify, adapt, alter, translate, or create or replacement pursuant to the warranty set forth in Section derivative works from the SURVIVR Services; (b) distribute, 10.12. sublicense, lease, rent, loan, or otherwise transfer the SURVIVR Services to any third party; (c) reverse-engineer or 5. PAYMENT;TAXES disassemble the SURVIVR Hardware Products;or(d)reverse- engineer, decompile, disassemble, or otherwise attempt to 5.1 Payment. derive the source code of any software within the SURVIVR Services. Customer will not remove, alter, or obscure in any (a) SURVIVR Hardware Products. SURVIVR will way any proprietary rights notices(including copyright notices) invoice Customer for the SURVIVR Hardware Products and of SURVIVR or its suppliers on or within the SURVIVR Customer shall pay within thirty (30) days of the date of Products. Customer's receipt of invoice. 6.2 Ownership Rights. (b) Service Subscription. SURVIVR will pay Customer the subscription fees in accordance with the terms of the Order. (a) SURVIVR Products. As between SURVIVR and Unless otherwise stated in the Order, all SURVIVR Service Customer, title to, and ownership of, (a) the physical fees are due and payable within thirty(30)days of the date of manifestations of SURVIVR Hardware Products purchased by Customer's receipt of invoice. Customer hereunder(excluding any intellectual property rights related thereto) will pass to Customer as described above in 2. 238481161 v2 DocuSign Envelope ID:7F22FA4C-3E38-451 E-ACDF-2724AB79A399 Section 3.2; (b) the copyright, patent, trademark, trade secret, neglect or force majeure is caused by Customer or any other and any other intellectual property or proprietary rights relating third party to whom Customer has granted access. to the SURVIVR Products will remain at all times with SURVIVR. There are no implied licenses under this 7.2 SURVIVR Services. SURVIVR will exercise Agreement,and all rights in and to the SURVIVR Products not commercially reasonable efforts to provide online technical expressly granted to Customer in this Agreement are reserved assistance and support regarding the SURVIVR Services during by SURVIVR. SURVIVR's ordinary and customary business hours in accordance with its standard policies and procedures. (b) End-User Data. As between the parties, Customer retains all right, title and interest in and to User Data. 7.3 Additional Support. Any additional support and Notwithstanding anything to the contrary herein, Customer(on maintenance provided by SURVIVR for the SURVIVR behalf of itself and its Users) acknowledges and agrees that Products (if any) will be the subject of a separate support and SURVIVR shall have the right to: (a)collect,use,and analyze maintenance agreement. Analytics, and SURVIVR shall be free (during and after the term of this Agreement) to (i) use Analytics to improve and 8. TERM AND TERMINATION enhance the SURVIVR Service and for other development, diagnostic, and corrective purposes in connection with the 8.1 Term. This Agreement shall commence on the SURVIVR Service and any other SURVIVR Products,and(ii) Effective Date and shall remain in effect until terminated as disclose, sublicense, market, sell, and otherwise use and provided herein. The term of the Agreement is referred to as commercially exploit Analytics in aggregate or other de- the"Term". identified form in connection with its business;(b)disclose and 8.2 Termination for Breach. Either party may terminate provide access to User Data, whether or not aggregated or de this Agreement immediately upon written notice if the other identified,(i)to certain other End Users who have been granted party materially breaches the terms and conditions of this supervisory or other special access by Customer("Supervisory Agreement,provided that such breach is not cured within thirty Access Users"), who may access, use, copy, modify, prepare (30) days after a separate notice of breach is delivered to the derivatives,and share with other Customer or other Supervisory breaching party. Access Users such User Data in connection with the Service, and(ii)to certain third party partners of SURVIVR or Customer 8.3 Clearing Inventory. In the event of any termination who have been granted special access by Customer ("Third of this Agreement, SURVIVR in its sole discretion and by Party Partner Users"), who may access, use, copy, modify, giving notice to Customer, may accept return of any new and prepare derivatives, and share with Customer Supervisory unused SURVIVR Hardware Products in Customer's inventory Access Users, such User Data in connection with the Service; at the time of such termination in exchange for a refund of the (c) use User Data to protect the rights, property or safety of purchase price paid, less any applicable re-stocking or other SURVIVR or others or to investigate or enforce suspected agreed upon fees. breaches of this Agreement;and(d)use User Data as otherwise provided in this Agreement or as otherwise mutually agreed 8.4 Effect of Termination. Upon the termination or upon by the parties. expiration of this Agreement, and subject to the following sentence, (a)all licenses granted to either party hereunder will 7. SUPPORT AND MAINTENANCE expire, unless expressly designated as surviving; and (b) each 7.1 SURVIVR Hardware. Customer shall at all times party will retain all records associated with this Agreement for maintain the SURVIVR Hardware Products in good operating a minimum of six (6) years after termination, or as otherwise required by the Washington State Secretary of State's records condition and repair, normal wear and tear excepted. In the event that Customer is unable to access or use the SURVIVR retention schedule, whichever is longer. If a Party is asked to Service as a result of defective SURVIVR Hardware Products disclose records as part of a Public Records Request under RCW 42.56, and those records have been indicated to be during the Maintenance Period, Customer shall notify SURVIVR, at which point SURVIVR will repair or ship Confidential Information, the Disclosing Party (as defined replacement SURVIVR Hardware Products to the extent below) will provide notice of the request to the other Party as necessary within fifteen (15) business days of receipt of the outlined in Section 9.3 below. SURVIVR will have no defective SURVIVR Hardware Products from Customer. If continuing obligation to provide or support the SURVIVR Customer has met its maintenance responsibility in this Section, Services. Sections 1, 5, 6.1(c)Error! Reference source not found., 6.22, 8.3, 8.4, 9, 10.3, 11, 12, 13, and any payment including having paid all applicable fees during the Maintenance Period,then the replacement will be at no cost to obligations incurred prior to termination or expiration of this Customer; otherwise, Customer will pay SURVIVR the Agreement will survive such termination or expiration. applicable fees and costs for repairing or replacing such 9. CONFIDENTIALITY SURVIVR Hardware Products. Customer shall be responsible for any and all damage to the SURVIVR Hardware Products as 9.1 Definition. Each party(the"Disclosing Party")may a result of unauthorized downloads,vandalism, abuse, neglect from time to time during the Term disclose to the other party or force majeure,regardless of whether such vandalism,abuse, 3. 238481161 v2 DocuSign Envelope ID:7F22FA4C-3E38-451E-ACDF-2724AB79A399 (the "Receiving Party") certain information regarding the "Warranty Period"), the SURVIVR Hardware Products will Disclosing Party's business, including technical, marketing, substantially conform to the specifications set forth in the financial, employee, planning, and other confidential or accompanying Documentation. In the event that a SURVIVR proprietary information ("Confidential Information"). The Hardware Product fails to meet the requirements of the Disclosing Party will mark all Confidential Information in foregoing warranty, SURVIVR will, at its option, (a) repair tangible form as "confidential" or "proprietary" or with a such product to correct the defect; (b) replace the defective similar legend. The Disclosing Party will identify all product at no additional charge to Customer;or(c)accept return Confidential Information disclosed orally as confidential at the of the product (provided that Customer obtains a Return time of disclosure. Regardless of whether so marked or Material Authorization number)and issue a refund equal to the identified, however, any information that the Receiving Party purchase price of the non-conforming SURVIVR Hardware knew or should have known, under the circumstances, was Product. The foregoing states Customer's sole and exclusive considered confidential or proprietary by the Disclosing Party, remedy,and SURVIVR's entire liability,for breach of warranty will be considered Confidential Information of the Disclosing under this Agreement. Party. Regardless of whether or not so marked or identified,all technical information pertaining to the SURVIVR Products is 10.3 WARRANTY DISCLAIMER. EXCEPT AS SET the Confidential Information of SURVIVR. Notwithstanding FORTH ABOVE IN SECTION 10.2, THE SURVIVR anything to the contrary in this Agreement, Confidential PRODUCTS ARE PROVIDED "AS IS" WITHOUT Information does not include information that (a) is already WARRANTIES OF ANY KIND. WITHOUT LIMITING known by the Receiving Party at the time of disclosure; (b) THE FOREGOING, SURVIVR DISCLAIMS becomes, through no act or fault of the Receiving Party, WARRANTIES AND REPRESENTATIONS OF ANY KIND, publicly known;(c) is received by the Receiving Party without WHETHER EXPRESS, IMPLIED, OR STATUTORY, restriction on the Receiving Party's disclosure or use, from a INCLUDING WITHOUT LIMITATION THE IMPLIED third party which itself had no obligation to keep such WARRANTIES OF MERCHANTABILITY AND FITNESS information confidential; or(d) is independently developed by FOR A PARTICULAR PURPOSE. THIS DISCLAIMER the Receiving Party without reference to the Confidential DOES NOT INCLUDE THE WARRANTY OF TITLE,NON- Information of the Disclosing Party. INFRINGEMENT, QUIET ENJOYMENT OR ACCURACY. SURVIVR DOES NOT WARRANT THAT THE 9.2 Restrictions. Each party will hold the other party's OPERATION OF THE SURVIVR PRODUCTS WILL BE Confidential Information in confidence and shall not disclose UNINTERRUPTED, ERROR-FREE, OR SECURE. BOTH such Confidential Information to third parties, nor use such PARTIES ACKNOWLEDGE THAT THEY HAVE NOT Confidential Information, for any purposes other than the ENTERED INTO THIS AGREEMENT IN RELIANCE UPON purposes of this Agreement. When disclosing the Confidential ANY WARRANTY OR REPRESENTATION OTHER THAN Information to a third party in a manner permitted by the THOSE SET FORTH ABOVE IN SECTION 10.1. foregoing sentence,each party will ensure that such third party receives such Confidential Information subject to 11. INDEMNIFICATION confidentiality restrictions no less restrictive than those set forth in this Section 9. 11.1 By SURVIVR. Subject to Customer's obligations set forth below in Section 11.2, SURVIVR will defend Customer 9.3 Exceptions. A party may disclose Confidential with respect to any claim, suit, or proceeding (a "Claim") Information of the other party to the extent required to be brought against Customer by a third party to the extent that such disclosed by a court or governmental agency pursuant to a Claim alleges that the SURVIVR Products infringe any U.S. statute, regulation, or valid order; provided, however, that the patent, copyright,trademark, or trade secret belonging to such Receiving Party first notifies the Disclosing Party and gives the third party. However, SURVIVR will have no obligation Disclosing Party the opportunity to seek a protective order, or hereunder for any such suit, claim, or proceeding if such suit, to contest such required disclosure. claim, or proceeding arises out of or is related to (a) the modification of the SURVIVR Products by any party other than 10. WARRANTIES; LIMITED WARRANTY; WARRANTY SURVIVR; or(b)the combination of the SURVIVR Products DISCLAIMER with any other hardware,firmware,or software not supplied by SURVIVR, where the suit, claim,or proceeding in question is 10.1 Mutual Warranties. Each party hereby represents directed at the combination. SURVIVR will pay any resulting and warrants(i)that it is duly organized,validly existing and in damages, costs, and expenses finally awarded to a third party, good standing under the laws of its jurisdiction of incorporation but SURVIVR will not be liable for such amounts, or for or organization; and (ii) that this Agreement, when executed settlements incurred by Customer, without SURVIVR's prior and delivered,will constitute a valid and binding obligation of authorization. If the SURVIVR Products become, or in such party and will be enforceable against such party in SURVIVR's opinion are likely to become, the subject of any accordance with its terms. infringement claim, SURVIVR may, at its option and expense, either(x)procure for Customer the right to continue using the 10.2 Limited Warranty. SURVIVR warrants that for a SURVIVR Products; (y) replace or modify the SURVIVR period of one year following delivery to Customer (the Products so they become non-infringing;or(z)accept return of 4. 238481161 v2 DodoSign Envelope ID:7F22FA4C-3E38-451E-ACDF-2724AB79A399 the SURVIVR Products and issue a refund equal to the AGGREGATED TO DETERMINE SATISFACTION OF purchase price of such SURVIVR Products, less a reasonable THE LIMIT. THE EXISTENCE OF TWO OR MORE allowance based on the period of use. The foregoing CLAIMS OR SUITS WILL NOT ENLARGE THIS LIMIT. IN indemnification obligations are Customer's sole and exclusive NO EVENT WILL SURVIVR HAVE ANY LIABILITY remedy, and SURVIVR's entire liability, for any claims of WHATSOEVER UNDER THIS AGREEMENT ,TO infringement by the SURVIVR Products. CUSTOMERS OR END USERS. THE PARTIES ACKNOWLEDGE THAT THE PRICES SPECIFIED IN THIS 11.2 By Customer. Customer will defend SURVIVR with AGREEMENT REFLECT THE ALLOCATION OF RISK respect to any Claim brought against SURVIVR by a third party SET FORTH IN THIS AGREEMENT AND THAT SURVIVR to the extent that such Claim arises from or is related to (a)the WOULD NOT ENTER INTO THIS AGREEMENT Customer's operation of its business or its marketing,resale,or WITHOUT THE FOREGOING LIMITATIONS OF ITS distribution of the SURVIVR Products,or(b)Customer's or its LIABILITY AND THE WARRANTY DISCLAIMERS Customers' or End Users' use of the SURVIVR Products, CONTAINED HEREIN. excluding any Claims for which SURVIVR is obligated to indemnify Customer under Section 11.1. Customer will pay 13. GENERAL any resulting damages, costs, and expenses finally awarded to a third party,but Customer will not be liable for such amounts, 13.1 Governing Law. This Agreement will be governed in or for settlements incurred by SURVIVR, without Customer's all respects by the laws of the State of Washington, without prior authorization. giving effect to any conflict of laws principles that require the application of the laws of a different state. The United Nations 11.3 Indemnification Procedure. The party seeking Convention on Contracts for the International Sale of Goods indemnification (the "Indemnified Party") shall (a) give the does not apply to this Agreement. indemnifying party (the "Indemnifying Party") notice of the relevant claim; (b) cooperate with the Indemnifying Party, at 13.2 Compliance with Laws. At its sole expense, each the Indemnifying Party's expense,in the defense of such claim; party will comply with all applicable laws and regulations and (c) give the Indemnifying Party the right to control the regarding its activities related to this Agreement. defense and settlement of any such claim. The Indemnified Party will have the right to participate in the defense with 13.3 Independent Contractors. Each party will perform counsel of its choice at its own expense. its obligations hereunder as an independent contractor and, except as expressly provided to the contrary in this Agreement, 12. LIMITATION OF LIABILITY will be solely responsible for its own obligations. Nothing contained herein will be construed to imply a joint venture or EXCEPT FOR ANY BREACHES OF SECTIONS 6 OR 9,OR principal or agent relationship between the parties, and neither IN CONNECTION WITH ANY INDEMNIFICATION party will have any right, power, or authority to create any OBLIGATIONS UNDER SECTION 1,IN NO EVENT WILL obligation on behalf of the other. EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES 13.4 Severability; Waiver. If any provision of this ARISING OUT OF OR RELATED TO THIS AGREEMENT Agreement is held to be invalid or unenforceable for any reason, (WHETHER FROM BREACH OF CONTRACT, BREACH the remaining provisions will continue in full force without OF WARRANTY, OR FROM NEGLIGENCE, STRICT being impaired or invalidated in any way. The failure of either LIABILITY, OR ANY OTHER FORM OF ACTION),EVEN party to insist upon strict performance of any provision of this IF SUCH PARTY HAS BEEN ADVISED OF THE Agreement, or to exercise any right provided for herein, shall POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION not be deemed to be a waiver for the future of such provision or OF LIABILITY SHALL APPLY NOTWITHSTANDING right, and no waiver of any provision or right shall affect the THE FAILURE OF ESSENTIAL PURPOSE OF ANY right of the waiving party to enforce any other provision or right LIMITED REMEDY HEREIN. herein. EXCEPT FOR ANY BREACHES OF SECTIONS 6 OR 9,OR 13.5 Notices. Any notice or communication permitted or IN CONNECTION WITH ANY INDEMNIFICATION required hereunder will be in writing and will be delivered in OBLIGATIONS UNDER SECTION 11, IN NO EVENT person or by overnight delivery service,or mailed by certified WILL SURVIVR'S AGGREGATE, CUMULATIVE or registered mail, postage prepaid, return receipt requested, LIABILITY ARISING OUT OF OR RELATED TO THIS and addressed as set forth in the preamble to this Agreement or AGREEMENT EXCEED THE SUM OF ALL FEES to such other address as either party may provide from time to ACTUALLY PAID TO SURVIVR BY CUSTOMER AND time to the other. Notices will be effective upon receipt. REVENUE SHARE PAYMENTS OWED BY SURVIVR TO COMPANY DURING THE TWELVE(12)MONTH PERIOD 13.6 Force Majeure. If performance of this Agreement,or IMMEDIATELY PRECEDING THE FIRST EVENT GIVING any obligation hereunder (other than the obligation to pay) is RISE TO LIABILITY. THIS LIMITATION OF LIABILITY prevented,restricted,or interfered with by any act or condition IS CUMULATIVE, WITH ALL PAYMENTS BEING whatsoever beyond the reasonable control of the affected party 5. 238481161 v2 DocuSign Envelope ID:7F22FA4C-3E38-451 E-ACDF-2724AB79A399 (including without limitation the failure of any suppliers to (50%) of its voting securities are transferred, subject to all of perform), the party so affected, upon giving prompt notice to the terms of this Agreement.. Any purported assignment, the non-affected party,will be excused from such performance delegation, or transfer in violation of this Section 13.8 will be to the extent of such prevention,restriction,or interference. null and void. 13.7 Export Control. Customer hereby agrees to comply 13.9 Amendments. Any amendments, modifications, with all export laws and regulations of the U.S.Department of supplements, or other changes to this Agreement must be in Commerce and all other U.S. agencies and authorities, writing and signed by duly authorized representatives of each including the Export Administration Regulations promulgated party. by the Bureau of Export Administration (as codified in 15 C.F.R. Parts §§ 730-774), and not to export or re-export the 13.10 Entire Agreement. This Agreement and the Exhibits SURVIVR Products in violation of such laws or regulations,or hereto constitute the entire agreement between the parties with without all required licenses and authorizations. respect to the subject matter hereof,and supersedes all prior or contemporaneous representations,understandings,agreements, 13.8 Assignment. No right or obligation of a party under or communications between the parties,whether written or oral, this Agreement will be assigned, delegated, or otherwise relating to the subject matter hereof transferred, whether by agreement, operation of law, or otherwise,without the express prior written consent of the other 13.11 Counterparts. This Agreement may be executed in provided,however,that either party may assign this Agreement any number of counterparts, each of which will be deemed to without such consent in connection with any merger, be an original, and all of which together will constitute one consolidation,any sale of all or substantially all of such party's instrument. assets or any other transaction in which more than fifty percent 6. 238481161 v2 ly Do5uSign Envelope ID:7F22FA4C-3E38-451E-ACDF-2724AB79A399 IN WITNESS WHEREOF,the parties have caused their duly authorized representatives to execute this Agreement as of the Effective Date. "SURVIVR" "Customer" SURVIVR PBC CITY OF YAKIMA CDoeuSigned by: Lr:,4. fici4i ��j u^ 5FD1424A50914D8... l�l''^' By By Brian Hoang Robert Harrison Printed Name Printed Name CEO City Manager Title Title CITY CONTRACT NO:RESOLUTION NO: ii 7. 238481161 v2