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Amendment No 2 to Data Sharing Agreement - Continued Use & Support of Data Co – Abernethy Schwartz Partners LLC
ELIZABETH A. MARADIK JOSEPH R. MOLNAR GARY A. GILOT JORDAN V. GATHERS MURRAY L. MILLER 1316 COUNTY-CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 PHONE 574/ 235-9251 FAX 574/ 235-9171 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS March 22, 2022 Ms. Ashley Lewis Abernethy Schwartz Partners LLC dba BlueConduit 2531 Jackson Ave., #337 Ann Arbor, MI 48103 ashley@blueconduit.com; nya@blueconduit.com; blueconduitbreach@southbendin.gov RE: Amendment No. 2 to Data Sharing Agreement Dear Ms. Lewis: At its March 22, 2022 meeting, the Board of Public Works approved the above referenced amendment for the continued use and support of the data collection application and development of Service Line Inventory Software for the EPA’s Lead Copper Rule in the amount of $70,000. Enclosed please find the original of the amendment for your signature. Please sign and return the original amendment to lhensley@southbendin.gov. Please retain a copy for your records. If you have any further questions, please call this office at (574) 235-9251. Sincerely, /s/ Theresa Heffner Theresa Heffner, Clerk Enclosures TH/lh ORDER SCHEDULE A-2 (All amounts are in USD) This Order Schedule (“Schedule A-2”), effective as of March 22, 2022 (“Effective Date”), is being submitted under the terms and conditions of the March 22, 2022 Master License Agreement (“Agreement”) between Abernethy Schwartz Partners LLC (“BlueConduit”) and The City of South Bend, Indiana, by and through the South Bend, Indiana Board of Public Works , (“Licensee”). Unless specifically defined in this Order Schedule or unless the context indicates otherwise, all terms shall have the same meaning as defined in the Agreement. The Software purchased under this Order Schedule is as follows, and as specified in the product Documentation: 1. BlueConduit LCR and LSLR Platform 2. Documentation: Online in-app documentation provided 3. License Key: Electronic license key provided annually Definitions: “Authorized End User” means a single, named Licensee employee, under Licensee’s control, that is authorized to use BlueConduit’s Software and agrees to abide by the terms of this Agreement. The Software license purchased under this Order Schedule (the “Schedule A-2 License”) is as follows: 1. BlueConduit LCR and LSLR Platform Licensed Components · ● Customer Onboarding and Initial Data Upload: BlueConduit will onboard South Bend and provide guidance on the data upload process, which will create a repository of service line information that will be accessible through the Platform. ● Recommended Inspection List: BlueConduit will generate a list of homes for South Bend to conduct initial inspections to verify the public and private side service line materials. This list will be accessible through the Platform. It is anticipated that this Recommended Inspection List may include ~150 parcels. ○ The cost of the property inspections will be assumed by South Bend. ● Inventory Compliance: The Platform will allow South Bend to view, edit, and update service line materials for every service line in the distribution system. The Platform will allow users to create reports and files that help satisfy regulatory requirements. ● Prioritized Replacement List: Home-level service line material predictions will be available in the Platform. These predictions may be viewed in list form or via a GIS overlay. ● Updated Prioritized Lists: Through the platform, BlueConduit will update material predictions as parcel-level inspections/replacements data is recorded into the Data Collection System. ● Interactive service line map: BlueConduit will create a public-facing map showing the service line materials data. This map will support EPA compliance for a publicly accessible inventory. · Type of License: SaaS Annual Subscription · Number of Licenses: One (1) *Unlicensed Software. Licensee has a license to use only the Capabilities specifically identified herein. Licensee may have access to unlicensed Capabilities, but this access does not imply a license to these unlicensed Capabilities and Licensee. The term license period is 24 months, beginning April 1, 2022 and ending March 31, 2024 (“License Period”), and the license fee is $70,000 (“License Fee”) for the Schedule A-2 Licenses.** Payment Terms: BlueConduit or its affiliate shall invoice Licensee as follows: 1. $20,000 upon execution of this Schedule net 30 days 2. $25,000 for annual access to the software, with first payment due April1, 2022 and second payment on one-year anniversary (April 1, 2023). Invoicing details: Bill to Address: 2531 Jackson Ave #337, Ann Arbor, MI 48103 Ship to Address: Accounts Payable Contact Purchasing/Renewal Contact Name Ashley Lewis Name Nya Dreyfuss Email ashley@blueconduit.com Email nya@blueconduit.com Phone 301-257-8961 Phone 216-206-7829 Is a Purchase Order Required: Yes* x No ☐ Is a Sales Tax Exemption or Direct Pay Certificate Required: Yes* ☐ No x *If yes, please send the Purchase Order and/or Certificate to Accounts.Receivable@BlueConduit.com Invoice Submission Method (complete as appropriate) Email accountspayable@southbendin.gov Portal Mailing Address Code Enforcement Office, 227 W. Jefferson Blvd. Suite 1200 S. South Bend, IN 46601 This Order Schedule A-2 may only be renewed by mutual written agreement of the Parties. Authorized Signatories: Each individual below represents that he or she has the authority to execute this Order Schedule and bind its employer to the provisions of this Schedule A-2. IN WITNESS WHEREOF, the parties have executed this Schedule A-2 as of the Effective Date above. Date: _______________________ BLUECONDUIT By: ________________________ Its: ________________________ March 22, 2022 Page 1 of 8 Data Sharing Agreement Between BlueConduit and the City of South Bend, Indiana This Data Sharing Agreement (“Agreement”) is entered into by and between Abernethy Schwartz Partners LLC d/b/a BlueConduit (“BlueConduit”) and the City of South Bend, Indiana, an Indiana municipal corporation, acting by and through the City of South Bend, Indiana Board of Public Works (“City”), (each a “Party” and collectively referred to as the “Parties). In consideration of the mutual understandings and covenants set forth herein, the Parties agree as follows: I.PURPOSE BlueConduit and the City desire to enter into this Agreement in order to share data regarding lead service line inventory and related information. Data sharing is necessary to provide and improve services and resources needed to meet citizen needs, to achieve continuous improvement across programs, and to make informed public policy decisions. This Agreement will enable the sharing of data and define the terms and conditions governing the sharing, maintenance, use, secure storage, and disclosure of confidential data among agencies. This Agreement provides authorization for the use of these confidential data in the manner detailed herein. II.TERM This Agreement is effective beginning on the signature date of the last signing Party through such date as either Party desires to terminate the Agreement, as set forth in the Termination section of this Agreement. III.DEFINITIONS A.Authorized user means a recipient’s employees, agents, assigns, representatives, independent contractors, or other persons or entities authorized by the data recipient to access, use or disclose information through this agreement. B.Confidential information means information that is protected from public disclosure by law or is designated by the disclosing Party as confidential in writing or, if disclosed orally, is identified as confidential at the time of disclosure. Examples of confidential information are social security numbers and healthcare information that is identifiable to a specific person. C.Data storage means electronic media with information recorded on it, such as CDs/DVDs, computers, and similar devices. D.Data transmission means the process of transferring information across a network from a sender (or source), to one or more destinations. E.Direct identifier Direct identifiers in research data or records include names; postal address information (other than town or city, state, and zip code); telephone numbers, fax numbers, email addresses; social security numbers; medical record numbers; health plan beneficiary numbers; account numbers; certificate/license numbers/ vehicle identifiers and serial numbers, including license plate numbers; device identifiers and serial numbers; web universal resource locators (URLs); internet protocol (IP) address Page 2 of 8 numbers; biometric identifiers, including finger and voice prints; and full face photographic images and any comparable images. F.Disclosure means to permit access to or release, transfer, or other communication of confidential information by any means including oral, written, or electronic means, to any Party except the Party identified or the Party that provided or created the record. G.Encryption means the use of algorithms to encode data making it impossible to read without a specific piece of information, which is commonly referred to as a “key”. Depending on the type of information shared, encryption may be required during data transmissions, and/or data storage. H.Identifiable data or records contains information that reveals or can likely associate the identity of the person or persons to whom the data or records pertain. Research data or records with direct identifiers removed, but which retain indirect identifiers, are still considered identifiable. I.Indirect identifiers are indirect identifiers in research data or records that include all geographic identifiers smaller than a state, including street address, city, county, precinct, ZIP code, and their equivalent postal codes, except for the initial three digits of a ZIP code; all elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death; and all ages over 89 and all elements of dates (including year) indicative of such age, except that such age and elements may be aggregated into a single category of age 90 or older. J.Information Provider means the Party providing data pursuant to this Agreement. K.Information Recipient means the Party receiving data pursuant to this Agreement. L.Limited dataset means a data file that includes potentially identifiable information. A limited dataset does not contain direct identifiers. M.Providing Party means the Party providing a requested data set pursuant to this Agreement. N.Requesting Party means the Party requesting a data set pursuant to this Agreement. O.Restricted confidential information means confidential information where especially strict handling requirements are dictated by statutes, rules, regulations or contractual agreements. Violations may result in enhanced legal sanctions. IV.DATA FLOW A.The Requesting Party shall meet or coordinate with the Providing Party to define the data needed and any applicable data security requirements. B.The Providing Party shall inform the Requesting Party of the estimated date when the relevant Data Set shall be delivered and shall also at this time request any clarification or information needed to comply with the request. Page 3 of 8 C.Data will be shared electronically and will follow procedures specified in any applicable data security requirements. Data shall be transmitted securely and in a confidential manner to a designated Information Recipient employee. The data will be securely transferred to and stored on Information Recipient’s servers and accessible only to authorized users of the Information Recipient. D.The Parties agree to provide data in the most reasonably useful format. Such cooperation shall include, but not be limited to, providing information needed to understand the meaning of data to make it clearly usable. E.The requested data are deemed the Information Provider’s Confidential Information, as also set forth in the Master License Agreement executed by the Parties. To the extent that any part of the Information Provider’s data comprises Personally Identifiable Information (“PII”) or PII that has been de-identified, such information shall be kept strictly confidential notwithstanding the termination or expiration of this Agreement. F.All Parties will meet or exceed applicable Federal, State, and local statutes, regulations, and other requirements pertaining to the security, confidentiality, and privacy of data. Parties will utilize their best efforts to follow industry best practices related to secure transmission, encrypted storage, and limited staff access to confidential data. Methods employed are subject to review and approval by each Party. G.All Parties will comply with all applicable federal and state laws and regulations protecting the privacy of citizens. H.All Parties will be notified in the event the security, confidentiality, or integrity of the data exchanged is, or is reasonably believed to have been, compromised. Notification will take place within twenty-four (24) hours of discovery. Appropriate course(s) of action will be determined based on inputs from Party representatives. I.This Agreement does not authorize exchange of data received pursuant to this Agreement between any Party and any entity not a Party to this Agreement, including but not limited to, third-party contractors. J.BlueConduit shall link address information only with service line material data for purposes of any public-facing access points. All other public or semi-public reports shall include only aggregated and anonymized data. No direct identifiers shall be disclosed. Notwithstanding the foregoing agreed upon uses of the data, the Information Recipient may not disclose or further distribute such data unless required by law. V.CONFIDENTIALITY A.The Parties mutually agree that each Party retains all ownership rights to its respective data shared pursuant to this Agreement, and that the recipient Party shall have a license to use such data as contemplated in the Master License Agreement executed by the Parties. B.To the extent that shared data is confidential, the Parties agree that they will maintain the confidentiality of information received pursuant to Indiana Code § 5-14-3-6.5. Page 4 of 8 C.Access to confidential information must be limited to people whose work specifically requires that access to the information. Use of confidential information is limited to purposes specified elsewhere in this Agreement. D.An Information Recipient may disclose an individual’s confidential information received or created under this Agreement to that individual or that individual’s personal representative consistent with law. E.The Parties represent further that, except as specified in this Agreement or except as the Parties shall authorize by written amendment, the Parties shall not disclose, release, or otherwise grant access to the data received pursuant to this Agreement to any third Party for any purpose unless required by law. The Parties agrees that access to the data covered by this Agreement shall be limited to those individuals necessary to achieve the purpose stated in this Agreement. Said provision notwithstanding, BlueConduit recognizes that the City is a public entity subject to the Access to Public Records Act. F.If the Information Recipient must comply with state or federal public record disclosure laws, and receives a records request where all or part of the other Party’s information is responsive to the request, the Information Recipient will notify the Information Provider of the request ten (10) business days prior to disclosing to the requestor and provide an opportunity for the Information Provider to object to disclosure. VI.RESPONSIBILITIES OF THE PARTIES A.Any publications resulting from or related to the use of data received pursuant to this Agreement shall not, under any circumstances, identify any person, household, or family, except as specifically set forth in Section IV.J. above. Publications must include a disclaimer that credits the respective Party’s authors for any analysis, interpretations, or conclusions reached and specify that the conclusions expressed therein are solely those of the authors and should not be considered as representing the policy or opinion of the other Party. Information Recipient agrees to cite the Information Provider as the source of the information subject to this Agreement in all text, tables and references in reports, presentations, and other papers. Information Recipient agrees to cite its organizational name as the source of interpretations, calculations, or manipulations of the information subject to this Agreement. B.The Parties shall not share any data with any entity or person not covered by this Agreement. Any and all reports containing personally identifiable information generated as a result of studies and evaluations shall also be confidential and shall not be disclosed, discussed, or transferred to any Party outside this Agreement except in accordance with applicable laws and upon the written consent of the Parties. C.Each Party will designate one contact person to be responsible for oversight and supervision of the security, confidentiality, and appropriate use of the data on its behalf, and to act in a liaison capacity through the term of this Agreement. Each Party will immediately notify other Parties in writing of a change in the contact person. D.Each Party agrees to comply with all confidentiality requirements pursuant to federal law and applicable state laws. Each Party agrees that the Parties may immediately cease providing data if the confidentiality requirements and the terms of this Agreement are not maintained. E.The Parties agree to limit access and use of the information to the minimum amount of information, to the fewest people, for the least amount of time required to do the work. Page 5 of 8 F.The Parties agree to assure that all people with access to the information understand their responsibilities regarding it. VII.BREACH A.In the event that the Information Recipient discovers a breach or otherwise a compromise of the safeguards which affects the Information Provider’s Data, or any unauthorized use or disclosure of the Information Provider’s Confidential Information, the Information Recipient shall do the following: 1.Notify the Information Provider without undue delay at driedl@southbendin.gov or support@blueconduit.com and in any other manner mutually agreed upon and describe the circumstances surrounding such Incident, 2.Promptly investigate and mitigate the impact of the Incident, 3.Take reasonable steps to regain possession of any Confidential Information, including the Information Provider’s Data, and 4.Provide the Information Provider with a written remediation plan that is reasonably satisfactory to the Information Provider that is designed to prevent similar Incidents. B.The Information Recipient shall notify the Information Provider within 24 hours of the detection of a possible breach or immediately upon the confirmation of a breach and will cooperate with efforts by the Information Provider to help the Information Provider regain possession of Data and prevent its further unauthorized use. The Information Recipient shall give highest priority to immediately mitigating any breach and shall devote such resources as may be required to accomplish that goal. C.If an Incident affecting the Information Provider’s Data has occurred, the Information Provider shall have the right to terminate this Agreement immediately without penalty. The Information Provider may also discontinue any performance under this Agreement until the Information Provider, in its sole discretion, determines that the causes of the breach have been sufficiently mitigated. VIII.AMENDMENTS Amendments may be made at any time. However, no alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the Parties hereto. No oral understanding or agreement not incorporated herein shall be binding on any of the Parties hereto. IX.TERMINATION Either Party may terminate this Agreement at any time for any reason, including failure to comply with any condition of this Agreement, upon thirty (30) days advanced written notice. Sections IV, V, VI, and VII shall survive any termination of this Agreement. X.GOVERNANCE This Agreement is entered into pursuant to and under the authority granted by the State of Indiana and any applicable federal laws. The provisions of this Agreement shall be construed to conform to those laws, as amended from time to time. Page 6 of 8 In the event of an inconsistency in the terms of this Agreement, or between its terms and any applicable statute or rule, the inconsistency shall be resolved by giving precedence in the following order: 1.Applicable Indiana and federal statutes and rules; 2.Any other provisions of the Agreement, including materials incorporated by reference. XI.HOLD HARMLESS The Information Recipient shall indemnify, defend, and hold harmless the Information Provider from all claims, suits, causes of action, damages, costs and expenses, including attorneys’ fees, arising from any use or disclosure of data by the Information Recipient that is not permitted by this Agreement. The Parties shall cooperate in the defense of tort lawsuits, when possible. XII.SEVERABILITY If any term or condition of this Agreement is held invalid, such invalidity shall not affect the validity of the other terms or conditions of this Agreement, provided, however, that the remaining terms and conditions can still fairly be given effect. XIII.SURVIVORSHIP The terms and conditions contained in this Agreement which by their sense and context, are intended to survive the completion, cancellation, termination, or expiration of the Agreement shall survive. XIV.WAIVER OF DEFAULT Failure or delay on the part of either Party to exercise any right, power, privilege or remedy provided under this Agreement shall not constitute a waiver. No provision of this Agreement may be waived by either Party except in writing signed by the Party. XV.ENTIRE AGREEMENT This Agreement and attached Exhibit(s) contains all the terms and conditions agreed upon by the Parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement and attached Exhibit(s) shall be deemed to exist or to bind any of the Parties hereto. XVI.RELATIONSHIP BETWEEN PARTIES The Parties intend that their relationship under this Agreement shall be that of independent contractors. Nothing contained in this Agreement, nor any performance hereunder, is intended or shall be construed to create a partnership, joint venture, or employee/employer relationship between the Parties. Neither Party has the authority to create any obligation or make representations or warranty binding on the other. Page 7 of 8 XVII.NOTICE TO PARTIES Whenever any notice, statement or other communication is required under this Agreement, it shall be sent to the following addresses, unless otherwise specifically advised: Notices to BlueConduit shall be sent to: support@blueconduit.com Notices to the City shall be sent to: blueconduitbreach@southbendin.gov (Signature Page to Follow) The Parties, having read and understanding the foregoing terms of the Agreement, do by their respective signatures dated below hereby agree to the terms thereof. Page 8 of 8 The Parties, having read and understanding the foregoing terms of the Agreement, do by their respective signatures dated below hereby agree to the terms thereof. Date: _______________________ BLUECONDUIT By: ________________________ Its: ________________________ March 22, 2022 Master License Agreement Page 1 of 16 MASTER LICENSE AGREEMENT This Master License Agreement (“Agreement”) is made and effective as of March 22, 2022 (the “Effective Date”) by and between Abernethy Schwartz Partners LLC dba BlueConduit ("BlueConduit"), a Michigan limited liability corporation with its principal place of business at 2531 Jackson Ave #337, Ann Arbor, MI 48104, and the City of South Bend, Indiana, an Indiana municipal corporation, acting by and through the South Bend, Indiana Board of Public Works (“Licensee”) with an address at 227 W. Jefferson Blvd. Suite 1300 N, South Bend, IN 46601 amends and restates that certain Master License Agreement, dated November 24, 2021. BACKGROUND BlueConduit has developed certain software programs and related documentation pertaining to their use (“Documentation”) that is made available to Licensee, as it may be updated from time to time by BlueConduit more particularly described in Order Schedule A attached hereto (the “Software”), and offers related training and implementation services (the “Consulting Services”) in support of its customers’ use of the Software. The parties agree as follows: 1.SOFTWARE LICENSE AND OWNERSHIP License. BlueConduit hereby grants to Licensee a non-exclusive and non-transferable (except as provided in Section 11 (Assignment)) right to use the type and number of licenses of Software specified in an order schedule (the “Order Schedule”) attached hereto, solely for Licensee’s own business operations and consistent with the limitations and conditions set forth in this Agreement. Additional Order Schedules, designated as Schedules A-2, A-3, and so forth, may be executed by the parties and attached to this Agreement. Licensee may not: (i)Remove any copyright notices or other legends of ownership; (ii)Modify or adapt the Software or merge it into another program; (iii)Reverse engineer, disassemble, decompile, or make any attempt to discover the source code of the Software; (iv)Place the Software onto a server so that it is accessible via a public network such as the Internet; (v)Distribute, sublicense, rent, lease, or lend any portion of the Software; or Ownership. BlueConduit retains all right, title and ownership interest in the products provided under this Agreement including the Software and all enhancements, modifications and updates to the Software. No interest in the Software other than this license is granted to Licensee. Licensee retains all right, title and ownership interest in its preexisting intellectual property and data. Use by Licensee Affiliates. A Licensee Affiliate may use the Software, subject to the terms of this Agreement. Any use by a Licensee Affiliate will be subject to the following: (a) Licensee is responsible for the acts or omissions of the Licensee Affiliate as if they were Licensee’s acts or omissions; and (b) the Licensee Affiliate’s use must not constitute a violation under any applicable export law or regulation. For purposes of this Agreement, the term “Licensee Affiliate” means any individual or business entity that, either directly or indirectly, is controlled by Licensee or is under common control with Licensee. “Control” shall mean possession of the power to direct or cause the direction of the management and policies of a n organization or other entity whether through the ownership of voting securities, by contract, or otherwise. Unlicensed Software. Licensee has a license to use only the Software specifically identified on the applicable Order Schedule. Licensee may have access to unlicensed BlueConduit software products, capabilities or modules, but this access does not imply a license to these products, c apabilities or modules and Licensee shall not use them in any manner. © C o p y r i g h t B i z T r e e . 2 0 0 6 . A l l r i g h t s r e s e r v e d . P r o t Master License Agreement Page 2 of 16 Licensee Responsibilities. Licensee is responsible for all activity occurring under Licensee’s user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Licensee’s use of the Software, including those related to data privacy, international communications, and the transmission of technical or personal data. 2.LICENSE FEE AND TAXES Licensee shall pay the license fee for the number of licenses as specified in the applicable Order Schedule, including the renewal terms (“License Fee”) and other charges, within thirty (30) days of the date of the invoice. These fees and charges will be documented on an invoice sent to Licensee by BlueConduit or one of its affiliates. If the parties have agreed to Consulting Services under a Statement of Work (as defined below) or Order Schedule, BlueConduit will invoice for fees and expenses on a monthly basis, in accordance with the Statement of Work/Order Schedule. Licensee shall be solely responsible for any sales, use, privilege, value added, excise or other transaction taxes, however designated, that may be levied based on this Agreement. Each party will be liable for its own income taxes. 3.TERM, TERMINATION, AND RENEWAL This Agreement takes effect upon the Effective Date and remains effective for the term specified in any Order Schedule, so long as parties are engaged in an ongoing Statement of Work, or unless extended or terminated as provided herein. Each party may terminate this Agreement in the event of a material breach by the other party that is not cured within thirty (30) days after the non-breaching party gives written notice. Each party may terminate this Agreement for convenience upon providing the other party with ninety (90) days prior written notice. Upon termination, Licensee shall immediately cease use of BlueConduit Software. Termination of this Agreement by either party will not limit a party from pursuing any other remedies available to it, including injunctive relief, nor will termination release Licensee from its obligation to pay all fees that Licensee has agreed to pay under this Agreement, except as follows: If Licensee terminates this Agreement for BlueConduit’s uncured material breach of a provision of this Agreement other than Section 7 (which contains a separate provision providing a refund): (i) BlueConduit shall reimburse Licensee on a pro rata basis for any remaining prepaid License Fees for the remaining License Period after the date of Licensee’s written notification of BlueConduit’s breach (“BlueConduit Breach Date”), (ii) fees paid up to the BlueConduit Breach Date shall not be refunded, and (iii) Licensee shall have no further obligation to pay the remaining unpaid License Fees after the BlueConduit Breach Date. If Licensee terminates this Agreement for Convenience Licensee shall have no further obligation to pay the remaining unpaid License Fees after the termination effective date. This Agreement and Order Schedules may only be renewed by mutual written agreement of the Parties. 4.SOFTWARE MAINTENANCE AND SUPPORT SERVICES BlueConduit’s standard maintenance and associated support services for the Software (“Maintenance and Support”) are described in Schedule B attached hereto. Any software, bug fixes, documentation, or other items provided as part of Maintenance and Support will automatically be licensed to Licensee under this Agreement. Maintenance and Support is included in the License Fees. 5.CONSULTING, IMPLEMENTATION, AND TRAINING SERVICES If the parties execute a Statement of Work or Order Schedule for Consulting Services under this Agreement, then Schedule F will apply and BlueConduit shall provide the Consulting Services described in that Statement of Work or Order Schedule under the terms and conditions of Schedule F and this Agreement. Master License Agreement Page 3 of 16 “Statement of Work” means a mutually executed statement of work defining the Consulting Services that BlueConduit shall provide to Licensee. Consulting Services will be performed on a time and materials basis, plus reasonable out-of-pocket travel expenses and any other project expenses. The fees for Consulting Services will be as listed in the Statement of Work/Order Schedule. 6.CONFIDENTIALITY In the course of performing under this Agreement, either party (the “Disclosing Party”) may provide Confidential Information to the other party (the “Recipient”). For the purposes of this Agreement, “Confidential Information” means all (i) technical and non-technical information including patent, trade secret and proprietary information, techniques, sketches, drawings, models, inventions, know -how, processes, apparatus, equipment and algorithms, and (ii) information relating to costs, prices, names, finances, marketing plans, business opportunities, personnel, research, development or know -how; provided that information is designated by the Disclosing Party as confidential in writing or, if disclosed orally, is identified as confidential at the time of disclosure. All technical and non-technical information related to the Software shall be deemed to be the Confidential Information of BlueConduit. All of Licensee’s non-public business information shall be deemed to be Confidential Information of Licensee. The Recipient, during and after the term of this Agreement: (a) shall use the same level of care to protect the confidentiality of the Disclosing Party’s Confidential Information as it does to protect its own Confidential Information, but not less than a reasonable degree of care; (b) shall not use any of the Disclosing Party’s Confidential Information except for the purpose of fulfilling its obligations or exercising its rights under this Agreement; (c) shall not, or permit others to, disclose, duplicate, transfer, sell, lease, or otherwise make any Disclosing Party Confidential Information available to others without the prior written consent of the Disclosing Party; and (d) shall not remove, or permit to be removed, any noti ce indicating the confidential nature of the Disclosing Party’s Confidential Information. The Recipient shall return the Disclosing Party’s Confidential Information at the earlier of the termination of this Agreement or upon the request of the Disclosing Party, except that the Recipient may retain a limited number of electronic backup copies of the Confidential Information a s are automatically created and retained by its standard backup processes and systems. The Recipient shall comply with its nondisclosure obligations under this Section with regard to these copies and shall destroy them in accordance with its normal destruction processes. The Recipient will not be obligated under this Section for information that: (A) is or becomes generally known or available through no act, or failure to act, of the Recipient; (B) is independently developed by the Recipient without use or reference to the Disclosing Party’s Confidential Information; (C) is lawfully obtained by the Recipient from a third party who has the right to make such disclosure; (D) is approved in writing by the Disclosing Party for disclosure; or (E) to the extent required by Indiana’s Public Access Laws (“APRA”) (Ind. Code § 5-14-1.5, as amended from time to time). If the Recipient receives a request to disclose all or any part of the Disclosing Party’s Confidential Information by a subpoena or order issued by a court or other governmental agency, to the extent permitted by applicable law, the Recipient shall: (a) immediately notify the Disclosing Party of the existence, terms and circumstances surrounding the request; (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow the request; and (c) if disclosure is required , cooperatewith the Disclosing Party, at the Disclosing Party’s expense, to obtain an order or other reliable assurance that confidential treatment will be accorded to the portion of Confidential Information as the Disclosing Party may designate. After the Effective Date, the parties shall treat any information that was previously disclosed under any standalone non-disclosure or confidentiality agreement between them (the “Existing NDA”) in accordance with this Section; the Existing NDA is hereby terminated and of no further force or effect. 7.DATA SHARING The parties acknowledge that the Licensee, among other things, has entered into this Agreement to establish and maintain a database of lead service line inventory in accordance with the U.S. Environmental Protection Agency (“EPA”) revisions to the Lead and Copper Rule (“LCR”) announced December 16, 2021. Master License Agreement Page 4 of 16 To that end, the parties will enter into a commercially reasonable Data Sharing Agreement to govern the rights and responsibilities of the Parties as to the protection and handling of data shared between the parties to accomplish the goals of this Agreement and associated Work Orders. 8.LIMITED WARRANTY, REMEDY, AND DISCLAIMER BlueConduit warrants that for a period of ninety (90) days after the Effective Date the Software will perform substantially in accordance with its Documentation. (The Parties acknowledge that their rights and obligations regarding Software performance after this period are governed by Section 4 (Software Maintenance and Support Services).) BlueConduit does not warrant that the operation of the Software will be completely uninterrupted or error-free. Licensee must provide a detailed written notice of any alleged warranty failure promptly within the warranty period. BLUECONDUIT’S SOLE OBLIGATION AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY FAILURE OF THIS WARRANTY IS THE CORRECTION OR REPLACEMENT, AT BLUECONDUIT’S OPTION, OF THE NONCONFORMING SOFTWARE; IF BLUECONDUIT IS UNABLE TO CORRECT OR REPLACE THE SOFTWARE, THEN BLUECONDUIT WILL REFUND THE FEES PAID FOR THE NONCONFORMING SOFTWARE. To the extent permitted by law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, AND THE PARTIES DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. IF LICENSEE REQUESTS THAT PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE BE PROVIDED, THIS SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. 9.INFRINGEMENT INDEMNITY BlueConduit will defend and indemnify Licensee, and its directors, officers, employees and agents, at BlueConduit’s expense, against any third-party claim or suit against Licensee based on an alleged violation of a trade secret, patent or copyright that arises out of Licensee’s use of the Software in accordance with this Agreement, and BlueConduit will pay all costs, settlements, or judgments finally awarded, provided (i) Licensee gives BlueConduit prompt written notice of any claim; (ii) BlueConduit has the right to control the defense of the litigation; and (iii) Licensee takes such actions as BlueConduit may reasonably request, at BlueConduit’s expense. If a judgment is obtained against Licensee’s use of any part of the Software, or if BlueConduit believes that there is a likelihood of a claim of infringement, BlueConduit may, at BlueConduit’s option and expense: (x) modify or substitute the affected Software (but provide License e with substantially the same functionality); (y) obtain the right to Licensee’s continued use; or (z) terminate the license and take back the affected Software. In the event of such termination, BlueConduit will refund the License Fees paid for the affected Software for the balance of the applicable License Term. THE RIGHTS GRANTED TO LICENSEE UNDER THE PARAGRAPH ABOVE WILL BE LICENSEE’S EXCLUSIVE REMEDY AND BLUECONDUIT’S SOLE OBLIGATION AND LIABILITY FOR ANY ALLEGED INFRINGEMENT OF A TRADE SECRET, PATENT, COPYRIGHT, OR OTHER PROPRIETARY RIGHT. BLUECONDUIT HAS NO LIABILITY TO LICENSEE, INCLUDING UNDER THE PARAGRAPH ABOVE, FOR ANY CLAIM OF INFRINGEMENT CAUSED BY: (A) MODIFICATION OF THE SOFTWARE WITHOUT THE APPROVAL OF BLUECONDUIT; (B) ANY LICENSEE OR THIRD-PARTY APPLICATION OR OTHER TECHNOLOGY; (C) COMPLIANCE WITH LICENSEE’S DESIGN REQUIREMENTS OR SPECIFICATIONS; (E) USE OF SOFTWARE OTHER THAN AS PERMITTED UNDER THIS AGREEMENT, OR IN A MANNER FOR WHICH IT WAS NOT INTENDED 10.LIMITATION OF LIABILITY IN NO EVENT SHALL BLUECONDUIT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR LOST OR IM PUTED PROFITS OR LOST DATA. BLUECONDUIT’S AGGREGATE, CUMULATIVE LIABILITY ARISING IN CONNECTION WITH THE LICENSES PURCHASED UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES Master License Agreement Page 5 of 16 IN THE AMOUNT EQUIVALENT TO THE LICENSE FEES ACTUALLY RECEIVED BY BLUECONDUIT FROM LICENSEE DURING THE ONE-YEAR PERIOD PRECEDING THE FIRST ACT GIVING RISE TO LIABILITY. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION APPLY TO ALL CLAIMS OR CAUSES OF ACTION ON WHATEVER BASIS AND UNDER WHATEVER THEORY BROUGHT AND IRRESPECTIVE OF WHETHER BLUECONDUIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. THESE LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY IN THIS AGREEMENT, AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY SPECIFIED REMEDIES. Nothing in this Section is intended to exclude or lim it any liability that cannot be excluded or limited under the governing law. 11.FORCE MAJEURE BlueConduit will not be responsible for any delay or failure in performance caused by acts of God or any government or any other cause beyond BlueConduit’s reasonable control. 12.ASSIGNMENT Either party may assign this Agreement as part of the sale of that part of its business which includes the Software, or pursuant to any merger, consolidation or other reorganization, upon prior written notice to the other party. Any other assignment of this Agreement requires the agreement of the other party, which shall not unreasonably be withheld. An assignee of either party, if authorized hereunder, shall have all of the rights and obligations of the assigning party set forth in this Agreement. Any purported assignment in violation of this Section is void. 13.NOTICES All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by personal delivery, overnight delivery service, or certified mail, return receipt requested, to the parties at the respective addresses set forth above or to such other address as the party to receive the notice has designated by notice to the other party. 14.GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana without regard to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 15.SEVERABILITY In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or mor e of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear. 16.NO WAIVER No waiver by any party of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by any party of any right under this Agreement shall be construed as a waiver of any other right. Master License Agreement Page 6 of 16 17.AUDIT Upon thirty (30) days’ notice to Licensee and no more than once per year, BlueConduit will have the right to conduct an on-site audit during Licensee’s normal business hours to verify compliance with the terms and conditions of the Agreement. Licensee shall cooperate with BlueConduit by: (a) making applicable records available; (b) providing copies of the records requested; and (c) directing all agents to cooperate. 18.PUBLICITY Licensee authorizes BlueConduit to use Licensee’s name in BlueConduit’s customer list.. 19.PERSONAL DATA PROTECTION BlueConduit shall comply, and shall require BlueConduit personnel to comply, with applicable data protection law at all times in performing its obligations under this Agreement and will process personal data as described in Schedule C attached hereto and the Data Sharing Agreement entered into between the Parties. 20.NO THIRD-PARTY BENEFICIARIES This Agreement is an agreement between BlueConduit and Licensee, and confers no rights upon any of the parties’ employees, agents, contractors or customers, or upon any other person or entity. 21.COMPLETE AGREEMENT This Agreement, including all Schedules and Statements of Work hereto, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous discussions or agreements (whether written or oral) between the parties regarding such subject matter. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by both parties. In the event Licensee issues a purchase order or other document covering the subject matter of this Agreement, it is agreed that such purchase order or document is for Licensee’s internal purposes only , any terms or conditions on a purchase order in any way different from or in addition to the terms and conditions of this Agreement will have no effect, and BlueConduit hereby rejects these terms and conditions. 22.SURVIVAL Sections 3 (Term and Termination), 6 (Confidentiality), 8 (Infringement Indemnity), 9 (Limitation of Liability), 12 (Notices), 13 (Governing Law), and 21 (Survival), will survive any termination or expiration of this Agreement. 23.COUNTERPARTS; ELECTRONIC COPIES This Agreement may be signed in one or more counterparts, each of which is an original, and all of which together constitute only one agreement between the parties. Delivery of an executed counterpart by facsimile, electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement. Master License Agreement Page 7 of 16 24.AUTHORIZED SIGNATORIES Each individual below represents and warrants that he or she has the authority to execute this Agreement and bind its employer to the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date, with full knowledge of its content and significance and intending to be legally bound by the terms hereof. Date: _______________________ BLUECONDUIT By: ________________________ Its: ________________________ March 22, 2022 Master License Agreement Page 8 of 16 ORDER SCHEDULE A-1 (All amounts are in USD) This Order Schedule A-1 (“Schedule A-1”), effective as of March 22, 2022, (“Effective Date”), is being submitted under the terms and conditions of the March 22, 2022 Master License Agreement (“Agreement”) between Abernethy Schwartz Partners LLC (“BlueConduit”) and the City of South Bend, acting by and through the South Bend, Indiana Board of Public Works , (“Licensee”). Unless specifically defined in this Order Schedule or unless the context indicates otherwise, all terms shall have the same meaning as defined in the Agreement. The Software purchased under this Order Schedule is as follows, and as specified in the product Documentation: BlueConduit Data Collection App Documentation: Online in-app documentation provided License Key: Electronic license key provided annually Definitions: “Authorized End User” means a single, named Licensee employee, under Licensee’s control, that is authorized to use BlueConduit’s Software and agrees to abide by the terms of this Agreement. The Software license purchased under this Order Schedule (the “Schedule A-1 License”) is as follows: 1.cBlueConduit Data Collection App •Purchased Capabilities*: •Support user management o Roles & Permissions o User management (creation, deletion, role changes, password reset) o Organization management (the owner or administrators of the water system’s app may invite users from affiliate organizations with different permissions) •Form System o Support multiple form types o Administrators •Form Searchable by: o Parcel address o Parcel ID o Service Line ID o Geographic associations (districts/neighborhood) •Form Unique Identifiers and Associations o Associate multiple Service Line ID to a single parcel o Associate multiple parcels to a single Service Line ID •Form Fields o Inspections Form Fields: Describing the service line as it was found o Replacement Form Fields o Contractor Field Forms •Form Components o Date picker o Multiple Choice o so only numbers entered o Free text short and long, but meant to be used minimally (multiple choice preferred) o Required and optional fields •Form Non-Text Attachment Uploads Master License Agreement Page 9 of 16 o Ability to upload photos associated with form entries (e.g., picture of service line exposed) o Ability to upload other associated documents (e.g. permits, work records, historical records, etc) •Form Access o Link from Table: o Link from Map: •Auditability o Logging of all data mutations indexed by user and timestamp (i.e., you can see who changed what and when) o Logs of events are written to unified store •Batch Upload o Ability to upload a spreadsheet of existing data, in particular format, to automatically enter information to add and edit form entries. •Type of License: SaaS Annual Subscription •Number of Licenses: One (1) *Unlicensed Software. Licensee has a license to use only the Capabilities specifically identified herein. Licensee may have access to unlicensed Capabilities, but this access does not imply a license to these unlicensed Capabilities and Licensee shall not use them in any manner. The term license period is 24 months, beginning April 1, 2022 and ending March 31, 2024 (“License Period”), and the license fee is $25,000 (“License Fee”) for the Schedule A-1 Licenses.** BlueConduit agrees and acknowledges that Licensee has completed full payment of the aforementioned $25,000. Payment Terms: BlueConduit or its affiliate shall invoice Licensee as follows: 1.$25,000 upon execution of this Schedule, which Licensee shall pay by ___________ Invoicing details: Bill to Address: 2531 Jackson Ave #337, Ann Arbor, MI 48103 Ship to Address: Accounts Payable Contact Purchasing/Renewal Contact Name Ashley Lewis Name Nya Dreyfuss Email ashley@blueconduit.com Email nya@blueconduit.com Phone 301-257-8961 Phone 216-206-7829 Is a Purchase Order Required: Yes* ☒ No ☐ Is a Sales Tax Exemption or Direct Pay Certificate Required: Yes* ☐ No ☒ *If yes, please send the Purchase Order and/or Certificate to Accounts.Receivable@BlueConduit.com Master License Agreement Page 10 of 16 Invoice Submission Method (complete as appropriate) Email accountspayable@southbendin.gov Portal Mailing Address Code Enforcement Office, 227 W. Jefferson Blvd. Suite 1200 S. South Bend, IN 46601 Renewal Terms: This Schedule A-1 may be renewed by mutual written agreement of the Parties. Authorized Signatories: Each individual below represents that he or she has the authority to execute this Order Schedule and bind its employer to the provisions of this Schedule A-1. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date, with full knowledge of its content and significance and intending to be legally bound by the terms hereof. Date: _______________________ BLUECONDUIT By: ________________________ Its: ________________________ March 22, 2022 Master License Agreement Page 11 of 16 SCHEDULE B MAINTENANCE AND SUPPORT SERVICES 1.DESCRIPTION OF SUPPORT A.Remedial Support Licensee may contact BlueConduit’s Support Center HOTLINE for Remedial Support (as defined herein), via telephone at 248-761-2005 and/or via email at Support@BlueConduit.com (collectively the “Support Center HOTLINE”) to request Remedial Support of the Software. This request shall include an estimate of the severity level. The Support Center HOTLINE operates during business hours, 8 AM – 5 PM Eastern Time (US), Monday through Friday, excluding legal holidays. Extended coverage is available for an additional fee. The Support Center HOTLINE may also be used to notify BlueConduit of problems associated with the Software. Upon receipt by BlueConduit of notice from Licensee through the Support Center HOTLINE that the Software has failed to perform substantially in accordance with the Documentation (an “Error”), BlueConduit will provide remedial support to address such Errors in accordance with the severity levels defined in this section (“Remedial Support”). BlueConduit will determine the actual severity level and respond, with appropriately qualified personnel, and rectify such Error in accordance with the severity of the problem, as defined below: Severity 1: Produces an emergency situation in which the Software is inoperable or fails catastrophically. RESPONSE: BlueConduit will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 1 problem as soon as reasonably possible, but in any event a response via telephone or email will be provided within two (2) business hours. SOLUTION: BlueConduit will continue to provide commercially reasonable efforts to resolve Severity 1 problems in less than two (2) business days provided that Licensee responds promptly to BlueConduit’s Support Center HOTLINE questions related to the problem. The resolution will be delivered to Licensee as a workaround or as an emergency Software fix (“Workaround”). If BlueConduit delivers an acceptable Workaround, the severity classification will drop to Severity 2 or 3. Severity 2: Produces a detrimental situation in which performance (throughput or response) of the Software degrades substantially under reasonable loads, such that there is a severe impact on use; the Software is usable, but materially incomplete; one or more mainline functions or commands is inoperable; or the use is otherwise significantly impacted. RESPONSE: BlueConduit will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 2 problem as soon as reasonably possible, but in any event a response via telephone or email will be provided within four (4) business hours. SOLUTION: BlueConduit will exercise commercially reasonable efforts to resolve Severity 2 problems within five (5) business days provided that Licensee responds promptly to BlueConduit’s Support Center HOTLINE questions related to the problem. The resolution will be delivered to Licensee in the same format as Severity 1 problems. If BlueConduit delivers an acceptable Workaround for a Severity 2 problem, the severity classification will drop to Severity 3. Severity 3: Produces an inconvenient situation in which the Software is usable, but does not provide a function in the most convenient or expeditious manner, and the Authorized End User suffers little or no significant impact. RESPONSE: BlueConduit will provide a response by a qualified member of its staff to begin to diagnos e and to correct a Severity 3 problem as soon as reasonably possible, but in any event a response via telephone or email will be provided within four (4) business hours. SOLUTION: BlueConduit will exercise commercially reasonable efforts to resolve Sever ity 3 problems within five (5) business days provided that Licensee responds promptly to BlueConduit’s Support Center Master License Agreement Page 12 of 16 HOTLINE questions related to the problem. BlueConduit will exercise commercially reasonable efforts to resolve Severity 3 problems in future maintenance releases. In the event BlueConduit fails to meet the resolution times established above for Severity levels 1, 2 and 3 for Remedial Support, Licensee shall have the right to escalate the unresolved Error in the Software and/or Services to BlueConduit’s VP of Global Support. Such escalation request will be submitted by Licensee to BlueConduit’s Support Center HOTLINE. B.Maintenance 1.At no additional costs for Licensee and Licensee‘s Affiliates, BlueConduit will provide Software updates and enhancements to Licensee as the same are offered by BlueConduit to its licensees of the Software under maintenance generally ("Updates"). 2.Updates will be provided on an as-available and business-ready basis, unless explicitly requested by Licensee, and may include the items listed below: •Bug fixes; •Performance enhancements to Software. C.Hotline Support Licensee may contact BlueConduit’s Support Center HOTLINE for Hotline Support (as defined below) in the event their Authorized End User(s) are having problems or difficulties with the Software, such as creating or solving models. Licensee and Licensee’s Affiliates shall appoint no more than eight (8) contact persons total (not exceeding the number of Licenses) being employees of Licensee or Licensee’s Affiliates, who are Authorized End User(s) with Desktop or SaaS Designer (Modelers, App Builders, and Visualizers) licenses (“Product Administrators”) to request support of the Software. Excluding Remedial Support (as defined above), general questions associated with the use of the Software and Consulting Services, shall be defined as “Hotline Support” and shall be deemed as Severity 3 or lower, as per the Severity levels outlined in Section B above. BlueConduit shall only accept and respond to Hotline Support requests coming from Product Administrators. Licensee acknowledges and accepts that any problems or requests from the SaaS User or Viewer Authorized End User(s) shall be handled by Licensee internally and addressed to the Licensee’s SaaS Authorized End User(s). BlueConduit shall respond to a reasonable number of Hotline Support requests from Licensee ’s Product Administrators, at BlueConduit’s discretion. BlueConduit reserves the right to limit the number of or decline any requests and charge Licensee for such support. Licensee acknowledges that this Hotline Support is meant to be occasional, short-term help with problems or difficulties related to use of the Software and that it is not designed to replace any Consulting Services or to act as comprehensive or unlimited support. Hotline Support excludes Consulting Services, as defined in the Agreement, and BlueConduit reserves the right to charge Licensee for any such number of hours of Consulting Services that Licensee incurs through the Hotline Support. Any additional support time that is required will be charged at an hourly rate, subject to Licensee’s written approval being received before it is incurred. 2.LIMITATIONS ON MAINTENANCE AND SUPPORT A.BlueConduit will provide support services for the current release of Software. B.Support services do not include resolution of issues if and to the extent caused by or resulting from Licensee’s other software, network connectivity, infrastructure, or similar issues. Without limiting the foregoing, BlueConduit shall have no obligation to provide support, if and to the extent (i) the use of the Software is not in accordance with the Agreement , the system requirements, or the operation instructions, or (ii) problems result from the improper use by Licensee unless Licensee agrees in advance in writing to bear the extra costs for such support, or (iii) system failures or interruptions result from services or conduct of a third-party. Master License Agreement Page 13 of 16 D.Support services do not include any of the following: (1) custom programming services; (2) on -site support, (3) training; (4) out-of-pocket and reasonable expenses if and to the extent these expenses relate to on-site support. E.BlueConduit will make recommendations to Licensee on possible methods to improve Licensee knowledge such as training, tutorials, etc., that may or may not require additional cost for Licensee. Master License Agreement Page 14 of 16 SCHEDULE C Subscription Terms for SaaS Products 1.Standard Support Services. Direct support for the SaaS Products is limited to the list of named SaaS Product Administrators, as defined in Schedule B, who will collect and facilitate support requests from Licensee’s SaaS Products users, and interface directly with BlueConduit's SaaS Products support contact. 2.Updates and Maintenance for SaaS Products. BlueConduit may perform scheduled maintenance for SaaS Products that will be announced at least one (1) day in advance; and during such time SaaS Products will be unavailable to Licensee. BlueConduit may perform additional unscheduled updates, repairs or maintenance, which may temporarily degrade the quality of the SaaS Products or result in a partial or complete outage of the SaaS Products. BlueConduit shall endeavor to provide notice of such activities, however, BlueConduit provides no assurance that Licensee will receive advance notification. 3.Disclaimers. LICENSEE AGREES THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED TO ACCESS AND INTERACT WITH THE SAAS PRODUCTS, INCLUDING TELEPHONE, COMPUTER NETWORKS, AND THE INTERNET, OR TO TRANSMIT INFORMATION, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SAAS PRODUCTS. BLUECONDUIT SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF LICENSEE’S ACCESS TO OR USE OF THE SAAS PRODUCTS OR T HE IMPACT SUCH INTERFERENCE OR PREVENTION MAY HAVE ON LICENSEE’S ABILITY TO USE THE SAAS PRODUCTS. BLUECONDUIT SHALL NOT BE RESPONSIBLE FOR THE DELETION, CORRUPTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY LICENSEE DATA. 4.Licensee’s Responsibilities. Licensee shall: (a) notify BlueConduit immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (b) report to BlueConduit immediately, and use reasonable efforts to stop immediately, any copying or distribution of the SaaS Products that is known or suspected by Licensee. Licensee shall designate and keep in place a qualified individual to create user accounts and otherwise administer Licensee’s use of the SaaS Products (an “Authorized Administrator”). 5.Audit. Upon request by Licensee, BlueConduit agrees to complete, within forty-five (45) days of receipt, an audit questionnaire provided by Licensee or Licensee's designee regarding BlueConduit's information security program. BlueConduit will maintain annual SSAE-16 Type II audit reports with SOC2 Type II audit reports on availability, security, confidentiality, privacy and processing integrity (the “Audit Reports”) for datacenters that provide the Services (including storage of any Licensee data) to Licensee. Upon Licensee’s request, BlueConduit shall provide Licensee with the Audit Reports for its review. Master License Agreement Page 15 of 16 SCHEDULE D Terms for Consulting Services These terms apply to all Consulting Services and Sections 1 through 4 below supersede the corresponding terms in the main body of this Agreement. 1.TERMINATION OF CONSULTING RELATIONSHIP a.By the Licensee or BlueConduit. At any time, either the Licensee or BlueConduit may terminate, without liability, the Consulting Services for any reason, with or without cause, by giving (thirty) 30 days advance written notice to the other party. b.Termination obligations. In the event of termination, Licensee shall pay BlueConduit for all performed Consulting Services and approved travel expenses up to the date of termination. 2.LIMITED WARRANTY, REMEDY, AND DISCLAIMER BlueConduit warrants that Consulting Services will be performed by reasonably skilled personnel in a professional and workmanlike manner. Licensee must provide a detailed written notice of any alleged warranty failure within thirty (30) days after the nonconforming service is performed, and Licensee’s right to make such claim will terminate after that period. BLUECONDUIT’S SOLE OBLIGATION AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY FAILURE OF THIS WARRANTY IS THE REPERFORMANCE OF THE NONCONFORMING SERVICES. IF BLUECONDUIT IS UNABLE TO REPERFORM SERVICES IN A CONFORMING MANNER THEN BLUECONDUIT WILL REFUND THE FEES PAID FOR THE NONCONFORMING SERVICES. To the extent permitted by law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND THE PARTI ES DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. 3.LIMIT OF LIABILITY IN NO EVENT SHALL BLUECONDUIT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR LOST OR IMPUTED PROFITS OR LOST DATA. BLUECONDUIT’S AGGREGATE, CUMULATIVE LIABILITY ARISING IN CONNECTION WITH CONSULTING SERVICES UNDER A STATEMENT OF WORK SHALL BE LIMITED TO DIRECT DAMAGES IN THE AMOUNT EQUIVALENT TO THE CONSULTING SERVICES FEES ACTUALLY RECEIVED BY BLUECONDUIT FROM LICENSEE UNDER THAT STATEMENT OF WORK. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION APPLY TO ALL CLAIMS OR CAUSES OF ACTION ON WHATEVER BASIS AND UNDER WHATEVER THEORY BROUGHT AND IRRESPECTIVE OF WHETHER BLUECONDUIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. THESE LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY IN THIS AGREEMENT, AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY SPECIFIED REMEDIES. Nothing in this Section is intended to exclude or limit any liability that cannot be excluded or limited under the governing law. 4.INTELLECTUAL PROPERTY a.Licensee Intellectual Property. Licensee shall maintain all ownership, rights, and title to its preexisting intellectual property and data (“Licensee Data”). Master License Agreement Page 16 of 16 b.BlueConduit Intellectual Property. The Parties acknowledge that BlueConduit may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, services, training, ideas, skills, designs, know -how or other intellectual property owned by BlueConduit or its licensors, and BlueConduit may also create additional intellectual property based thereon, in the performance of the Consulting Services (all of the foregoing, the “BlueConduit Intellectual Property”). BlueConduit shall maintain all ownership, rights, and title to its BlueConduit Intellectual Property. Licensee agrees that all proprietary rights to the BlueConduit Intellectual Property, as it existed as of the date hereof and as it may be modified or created in the course of providing the Consulting Services, including patent, copyright, trademark, and trade secret rights, to the extent they are available, are the sole and exclusive property of BlueConduit, free from any claim or retention of rights thereto on the part of Licensee, and Licensee hereby assigns to BlueConduit any rights it may have or obtain in any of the foregoing. Licenses to BlueConduit Software shall be covered under the terms of an Order Schedule. 5.INSURANCE a.BlueConduit shall maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, to the extent this Agreement creates exposure generally covered by the following insurance policies, BlueConduit shall maintain, at its expense, at least the following insurance: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than one million dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for hired and non-owned vehicles in an amount not less than one million dollars ($1,000,000) for each accident; (c) Workers’ Compensation at statutory limits; (d) Professional Liability covering errors and omissions and wrongful acts in the performance of the Consulting Services, in an amount not less than two million dollars ($2,000,000) per occurrence ; and (e) Cyber Liability in the amount of five million dollars ($2,000,000). b.Specific Requirements. Upon Licensee’s request, BlueConduit shall (a) cause each of these policies to name Licensee and its Affiliates and assignees as additional insureds, and (b) furnish to Licensee certificates of insurance and other documentation relating to the policies as Licensee may reasonably request. ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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. 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). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 3/9/2022 (734) 741-0044 (734) 741-1850 24732 Abernethy Schwartz Partners, LLC 315 2nd Street Apt 205 Ann Arbor, MI 48103 24074 A 1,000,000 BWG60481756 10/21/2021 10/21/2022 300,000 15,000 1,000,000 2,000,000 2,000,000 1,000,000A BWG60481756 10/21/2021 10/21/2022 2,000,000B USO60481756 10/21/2021 10/21/2022 2,000,000 10,000 C Professional Liab.MPL428196821 10/21/2021 Each Claim 2,000,000 Cyber Liability 3/8/2022 to 2023; North American Specialty Insurance Company #C-4MAB-126115-CYBER-2022; Aggregate Policy Limit of Liability $2,000,000; Retention $10,000 South Bend Municipal Utilities 125 W Colfax Ave South Bend, IN 46601 ABERSCH-01 NEUHOCH Hylant - Southeast Michigan 24 Frank Lloyd Wright Dr, Ste J4100 Ann Arbor, MI 48105 AnnArbor-office@hylant.com General Ins Co of America Ohio Casualty Insurance Company Lloyd's 10/21/2022 X X X X X X X Master License Agreement Page 1 of 15 MASTER LICENSE AGREEMENT This Master License Agreement (“Agreement”) is made and effective as of November 24, 2021 (the “Effective Date”) by and between Abernethy Schwartz Partners LLC dba BlueConduit ("BlueConduit"), a Michigan limited liability corporation with its principal place of business at 2531 Jackson Ave #337, Ann Arbor, MI 48104, and South Bend Municipal Utilities, with an address at 125 Colfax Ave, South Bend, IN 46601 (“Licensee”). BACKGROUND BlueConduit has developed certain software programs and related documentation pertaining to their use (“Documentation”) that is made available to Licensee, as it may be updated from time to time by BlueConduit more particularly described in Order Schedule A attached hereto (the “Software”), and offers related training and implementation services (the “Consulting Services”) in support of its customers’ use of the Software. The parties agree as follows: 1.SOFTWARE LICENSE AND OWNERSHIP License. BlueConduit hereby grants to Licensee a non-exclusive and non-transferable (except as provided in Section 11 (Assignment)) right to use the type and number of licenses of Software specified in an order schedule (the “Order Schedule”) attached hereto, solely for Licensee’s own business operations and consistent with the limitations and conditions set forth in this Agreement. Additional Order Schedules, designated as Schedules A-2, A-3, and so forth, may be executed by the parties and attached to this Agreement. Licensee may not: (i)Remove any copyright notices or other legends of ownership; (ii)Modify or adapt the Software or merge it into another program; (iii)Reverse engineer, disassemble, decompile, or make any at tempt to discover the source code of the Software; (iv)Place the Software onto a server so that it is accessible via a public network such as the Internet; (v)Distribute, sublicense, rent, lease, or lend any portion of the Software; or Ownership. BlueConduit retains all right, title and ownership interest in the products provided under this Agreement including the Software and all enhancements, modifications and updates to the Software. No interest in the Software other than this license is granted to Licensee. Licensee retains all right, title and ownership interest in its preexisting intellectual property and data. Use by Licensee Affiliates. A Licensee Affiliate may use the Software, subject to the terms of this Agreement. Any use by a Licensee Affiliate will be subject to the following: (a) Licensee is responsible for the acts or omissions of the Licensee Affiliate as if they were Licensee’s acts or omissions; and (b) the Licensee Affiliate’s use must not constitute a violation under any applicable export law or regulation. For purposes of this Agreement, the term “Licensee Affiliate” means any individual or business entity that, either directly or indirectly, is controlled by Licensee or is under common control with Licensee. “Control” shall mean possession of the power to direct or cause the direction of the management and policies of a n organization or other entity whether through the ownership of voting securities, by contract, or otherwise. Unlicensed Software. Licensee has a license to use only the Software specifically identified on the applicable Order Schedule. Licensee may have access to unlicensed BlueConduit software products, capabilities or modules, but this access does not imply a license to these products, capabilities or modules and Licensee shall not use them in any manner. Licensee Responsibilities. Licensee is responsible for all activity occurring under Licensee’s user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regu lations in © C o p y r i g h t B i z T r e e . 2 0 0 6 . A l l r i g h t s r e s e r v e d . P r o t e c Master License Agreement Page 2 of 15 connection with Licensee’s use of the Software, including those related to data privacy, international communications, and the transmission of technical or personal data. 2.LICENSE FEE AND TAXES Licensee shall pay the license fee for the number of licenses as specified in the applicable Order Schedule, including the renewal terms (“License Fee”) and other charges, within thirty (30) days of the date of the invoice. These fees and charges will be documented on an invoice sent to Licensee by BlueConduit or one of its affiliates. If the parties have agreed to Consulting Services under a Statement of Work (as defined below) or Order Schedule, BlueConduit will invoice for fees and expenses on a monthly basis, in accordance with the Statement of Work/Order Schedule. Licensee shall be solely responsible for any sales, use, privilege, value added, excise or other transaction taxes, however designated, that may be levied based on this Agreement. Each party will be liable for its own income taxes. 3.TERM AND TERMINATION This Agreement takes effect upon the Effective Date and remains effective for so long as Licensee has an active license to the Software, the parties are engaged in an ongoing Statement of Work, or unless extended or terminated as provided herein. Each party may terminate this Agreement in the event of a material breach by the other party that is not cured within thirty (30) days after the non-breaching party gives written notice. Upon termination, Licensee shall immediately cease use of BlueConduit Software. Termination of this Agreement by either party will not limit a party from pursuing any other remedies available to it, including injunctive relief, nor will termination release Licensee from its obligation to pay all fees that Licensee has agreed to pay under this Agreement, except as follows: If Licensee terminates this Agreement for BlueConduit’s uncured material breach of a provision of this Agreement other than Section 7 (which contains a separate provision providing a refund): (i) BlueConduit shall reimburse Licensee on a pro rata basis for any remaining prepaid License Fees for the remain ing License Period after the date of Licensee’s written notification of BlueConduit’s breach (“BlueConduit Breach Date”), (ii) fees paid up to the BlueConduit Breach Date shall not be refunded, and (iii) Licensee shall have no further obligation to pay the remaining unpaid License Fees after the BlueConduit Breach Date. 4.SOFTWARE MAINTENANCE AND SUPPORT SERVICES BlueConduit’s standard maintenance and associated support services for the Software (“Maintenance and Support”) are described in Schedule B attached hereto. Any software, bug fixes, documentation, or other items provided as part of Maintenance and Support will automat ically be licensed to Licensee under this Agreement. Maintenance and Support is included in the License Fees. 5.CONSULTING, IMPLEMENTATION, AND TRAINING SERVICES If the parties execute a Statement of Work or Order Schedule for Consulting Services under this Agreement, then Schedule F will apply and BlueConduit shall provide the Consulting Services described in that Statement of Work or Order Schedule under the terms and conditions of Schedule F and this Agreement. “Statement of Work” means a mutually executed statement of work defining the Consulting Services that BlueConduit shall provide to Licensee. Consulting Services will be performed on a time and materials basis, plus reasonable out-of-pocket travel expenses and any other project expenses. The fees for Consulting Services will be as listed in the Statement of Work/Order Schedule. 6.CONFIDENTIALITY In the course of performing under this Agreement, either party (the “Disclosing Party”) may provide Confidential Information to the other party (the “Recipient”). For the purposes of this Agreement, “Confidential Information” means all (i) technical and non-technical information including patent, trade secret and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment and algorithms, and (ii) information relating to costs, prices, names, Master License Agreement Page 3 of 15 finances, marketing plans, business opportunities, personnel, research, development or know-how; provided that information is designated by the Disclosing Party as confidential in writing or, if disclosed orally, is identified as confidential at the time of disclosure. All technical and non -technical information related to the Software shall be deemed to be the Confidential Information of BlueConduit. All of Licensee’s non-public business information shall be deemed to be Confidential Information of Licensee. The Recipient, during and after the term of this Agreement: (a) shall use the same level of care to protect the confidentiality of the Disclosing Party’s Confidential Information as it does to protect its own Confidential Information, but not less than a reasonable degree of care; (b) shall not use any of the Disclosing Party’s Confidential Information except for the purpose of fulfilling its obligations or exercising its rights under this Agreement; (c) shall not, or permit others to, disclose, duplicate, transfer, sell, lease, or otherwise make any Disclosing Party Confidential Information available to others without the prior written consent of the Disclosing Party; and (d) shall not remove, or permit to be removed, any notice indicating the confidential nature of the Disclosing Party’s Confidential Information. The Recipient shall return the Disclosing Party’s Confidential Information at the earlier of the termination of this Agreement or upon the request of the Disclosing Party, except that the Recipient may retain a limited number of electronic backup copies of the Confidential Information a s are automatically created and retained by its standard backup processes and systems. The Recipient shall comply with its nondisclosure obligations under this Section with regard to these copies and shall destroy them in accordance with its normal destruction processes. The Recipient will not be obligated under this Section for information that: (A) is or becomes generally known or available through no act, or failure to act, of the Recipient; (B) is independently developed by the Recipient without use or reference to the Disclosing Party’s Confidential Information; (C) is lawfully obtained by the Recipient from a third party who has the right to make such disclosure; or (D) is approved in writing by the Disclosing Party for disclosure. If the Recipient receives a request to disclose all or any part of the Disclosing Party’s Confidential Information by a subpoena or order issued by a court or other governmental agency, to the extent permitted by applicable law, the Recipient shall: (a) immediately notify the Disclosing Party of the existence, terms and circumstances surrounding the request; (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow the request; and (c) if disclosure is required , cooperate as requested by the Disclosing Party, at the Disclosing Party’s expense, to obtain an order or other reliable assurance that confidential treatment will be accorded to the portion of Confidential Information as the Disclosing Party may designate. After the Effective Date, the parties shall treat any information that was previously disclosed under any standalone non-disclosure or confidentiality agreement between them (the “Existing NDA”) in accordance with this Section; the Existing NDA is hereby terminated and of no further force or effect. 7.LIMITED WARRANTY, REMEDY, AND DISCLAIMER BlueConduit warrants that for a period of ninety (90) days after the Effective Date the Software will perform substantially in accordance with its Documentation. (The Parties acknowledge that their rights and obligations regarding Software performance after this period are governed by Section 4 (Software Maintenance and Support Services).) BlueConduit does not warrant that the operation of the Software will be completely uninterrupted or error-free. Licensee must provide a detailed written notice of any alleged warranty failure promptly within the warranty period. BLUECONDUIT’S SOLE OBLIGATION AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY FAILURE OF THIS WARRANTY IS THE CORRECTION OR REPLACEMENT, AT BLUECONDUIT’S OPTION, OF THE NONCONFORMING SOFTWARE; IF BLUECONDUIT IS UNABLE TO CORRECT OR REPLACE THE SOFTWARE, THEN BLUECONDUIT WILL REFUND THE FEES PAID FOR THE NONCONFORMING SOFTWARE. To the extent permitted by law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, AND THE PARTIES DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. IF LICENSEE REQUESTS THAT PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE BE PROVIDED, THIS SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. Master License Agreement Page 4 of 15 8.INFRINGEMENT INDEMNITY BlueConduit will defend and indemnify Licensee, and its directors, officers, employees and agents, at BlueConduit’s expense, against any third-party claim or suit against Licensee based on an alleged violation of a trade secret, patent or copyright that arises out of Licensee’s use of the Software in accordance with this Agreement, and BlueConduit will pay all costs, settlements, or judgments finally awarded, provided (i) Licensee gives BlueConduit prompt written notice of any claim; (ii) BlueConduit has the right to control the defense of the litigation; and (iii) Licensee takes such actions as BlueConduit may reasonably request, at BlueConduit’s expense. If a judgment is obtained against Licensee’s use of any part of the Software, or if BlueConduit believes that there is a likelihood of a claim of infringement, BlueConduit may, at BlueConduit’s option and expense: (x) modify or substitute the affected Software (but provide Licensee with substantially the same functionality); (y) obtain the right to Licensee’s continued use; or (z) terminate the license and take back the affected Software. In the event of such termination, BlueConduit will refund the License Fees paid for the affected Software for the balance of the applicable License Term. THE RIGHTS GRANTED TO LICENSEE UNDER THE PARAGRAPH ABOVE WILL BE LICENSEE’S EXCLUSIVE REMEDY AND BLUECONDUIT’S SOLE OBLIGATION AND LIABILITY FOR ANY ALLEGED INFRINGEMENT OF A TRADE SECRET, PATENT, COPYRIGHT, OR OTHER PROPRIETARY RIGHT. BLUECONDUIT HAS NO LIABILITY TO LICENSEE, INCLUDING UNDER THE PARAGRAPH ABOVE, FOR ANY CLAIM OF INFRINGEMENT CAUSED BY: (A) MODIFICATION OF THE SOFTWARE WITHOUT THE APPROVAL OF BLUECONDUIT; (B) ANY LICENSEE OR THIRD-PARTY APPLICATION OR OTHER TECHNOLOGY; (C) COMPLIANCE WITH LICENSEE’S DESIGN REQUIREMENTS OR SPECIFICATIONS; (E) USE OF SOFTWARE OTHER THAN AS PERMITTED UNDER THIS AGREEMENT, OR IN A MANNER FOR WHICH IT WAS NOT INTENDED 9.LIMITATION OF LIABILITY IN NO EVENT SHALL BLUECONDUIT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR LOST OR IM PUTED PROFITS OR LOST DATA. BLUECONDUIT’S AGGREGATE, CUMULATIVE LIABILITY ARISING IN CONNECTION WITH THE LICENSES PURCHASED UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES IN THE AMOUNT EQUIVALENT TO THE LICENSE FEES ACTUALLY RECEIVED BY BLUECONDUIT FROM LICENSEE DURING THE ONE-YEAR PERIOD PRECEDING THE FIRST ACT GIVING RISE TO LIABILITY. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION APPLY TO ALL CLAIMS OR CAUSES OF ACTION ON WHATEVER BASIS AND UNDER WHATEVER THEORY BROUGHT AND IRRESPECTIVE OF WHETHER BLUECONDUIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. THESE LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY IN THIS AGREEMENT, AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY SPECIFIED REMEDIES. Nothing in this Section is intended to exclude or lim it any liability that cannot be excluded or limited under the governing law. 10.FORCE MAJEURE BlueConduit will not be responsible for any delay or failure in performance caused by acts of God or any government or any other cause beyond BlueConduit’s reasonable control. 11.ASSIGNMENT Either party may assign this Agreement as part of the sale of that part of its business which includes the Software, or pursuant to any merger, consolidation or other reorganization, upon notice to the other party. Any other assignment of this Agreement requires the agreement of the other party, which shall not unreasonably be withheld. An assignee of either party, if authorized hereunder, shall have all of the rights and obligations of the assigning party set forth in this Agreement. Any purported assignment in violation of this Section is void. Master License Agreement Page 5 of 15 12.NOTICES All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by personal delivery, overnight delivery service, or certified mail, return receipt requested, to the parties at the respective addresses set forth above or to such other address as the party to receive the notice has designated by notice to the other party. 13.GOVERNING LAW This Agreement shall be governed by and construed in accor dance with the laws of the State of Michigan without regard to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any litigation related to this Agreement must be brought in a state or federal court located in Washtenaw County, Michigan, as permitted by law, except that a party may elect to seek injunctive or similar relief in any court having jurisdiction over the other party. The parties hereby consent to the personal jurisdiction of these courts. 14.SEVERABILITY In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceabilit y shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear. 15.NO WAIVER No waiver by any party of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by any party of any right under this Agreement shall be construed as a waiver of any other right. 16.AUDIT Upon thirty (30) days’ notice to Licensee and no more than once per year, BlueConduit will have the right to conduct an on-site audit during Licensee’s normal business hours to verify compliance with the terms and conditions of the Agreement. Licensee shall cooperate with BlueConduit by: (a) making applicable records available; (b) providing copies of the records requested; and (c) directing all agents to cooperate. 17.PUBLICITY (i)Licensee authorizes BlueConduit to use Licensee’s name and logo in BlueConduit’s customer list. (ii)Licensee shall, within thirty (30) days after execution of this Agreement, cooperate with BlueConduit to issue a joint press release announcing the contract award and intended use and value to be derived from Licensee’s use of the Software. 18.PERSONAL DATA PROTECTION BlueConduit shall comply, and shall require BlueConduit personnel to comply, with applicable data protection law at all times in performing its obligations under this Agreement and will process personal data as described in Schedule C attached hereto. 19.NO THIRD-PARTY BENEFICIARIES This Agreement is an agreement between BlueConduit and Licensee, and confers no rights upon any of the parties’ employees, agents, contractors or customers, or upon any other person or entity. Master License Agreement Page 6 of 15 20.COMPLETE AGREEMENT This Agreement, including all Schedules and Statements of Work hereto, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous discussions or agreements (whether written or oral) between the parties regarding such subject matter. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by both parties. In the event Licensee issues a purchase order or other document covering the subject matter of this Agreement, it is agreed that such purchase order or document is for Licensee’s internal purposes only , any terms or conditions on a purchase order in any way different from or in addition to the terms and conditions of this Agreement will have no effect, and BlueConduit hereby rejects these terms and conditions. 21.SURVIVAL Sections 3 (Term and Termination), 6 (Confidentiality), 8 (Infringement Indemnity), 9 (Limitation of Liability), 12 (Notices), 13 (Governing Law), and 21 (Survival), will survive any termination or expiration of this Agreement. 22.COUNTERPARTS; ELECTRONIC COPIES This Agreement may be signed in one or more counterparts, each of which is an original, and all of which together constitute only one agreement between the parties. Delivery of an executed counterpart by facsimile, electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement. 23.AUTHORIZED SIGNATORIES Each individual below represents and warrants that he or she has the authority to execute this Agreement and bind its employer to the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date, with full knowledge of its content and significance and intending to be legally bound by the terms hereof. BLUECONDUIT LICENSEE Authorized Signature Authorized Signature Print Name and Title Print Name and Title James Clay CoSB Buyer Master License Agreement Page 7 of 15 ORDER SCHEDULE A-1 (All amounts are in USD) This Order Schedule A-1 (“Schedule A-1”), effective as of [_______], 2021 (“Effective Date”), is being submitted under the terms and conditions of the November 24, 2021 Master License Agreement (“Agreement”) between Abernethy Schwartz Partners LLC (“BlueConduit”) and South Bend Municipal Utilities, (“Licensee”). Unless specifically defined in this Order Schedule or unless the context indicates otherwise, all terms shall have the same meaning as defined in the Agreement. The Software purchased under this Order Schedule is as follows, and as specified in the product Documentation: BlueConduit Data Collection App Documentation: Online in-app documentation provided License Key: Electronic license key provided annually Definitions: “Authorized End User” means a single, named Licensee employee, under Licensee’s control, that is authorized to use BlueConduit’s Software and agrees to abide by the terms of this Agreement. The Software license purchased under this Order Schedule (the “Schedule A-1 License”) is as follows: 1.cBlueConduit Data Collection App •Purchased Capabilities*: •Support user management o Roles & Permissions o User management (creation, deletion, role changes, password reset) o Organization management (the owner or administrators of the water system’s app may invite users from affiliate organizations with different permissions) •Form System o Support multiple form types o Administrators •Form Searchable by: o Parcel address o Parcel ID o Service Line ID o Geographic associations (districts/neighborhood) •Form Unique Identifiers and Associations o Associate multiple Service Line ID to a single parcel o Associate multiple parcels to a single Service Line ID •Form Fields o Inspections Form Fields: Describing the service line as it was found o Replacement Form Fields o Contractor Field Forms •Form Components o Date picker o Multiple Choice o so only numbers entered o Free text short and long, but meant to be used minimally (multiple choice preferred) o Required and optional fields •Form Non-Text Attachment Uploads o Ability to upload photos associated with form entries (e.g., picture of service line exposed) Master License Agreement Page 8 of 15 o Ability to upload other associated documents (e.g. permits, work records, historical records, etc) •Form Access o Link from Table: o Link from Map: •Auditability o Logging of all data mutations indexed by user and timestamp (i.e., you can see who changed what and when) o Logs of events are written to unified store •Batch Upload o Ability to upload a spreadsheet of existing data, in particular format, to automatically enter information to add and edit form entries. •Type of License: SaaS Annual Subscription •Number of Licenses: One (1) *Unlicensed Software. Licensee has a license to use only the Capabilities specifically identified herein. Licensee may have access to unlicensed Capabilities, but this access does not imply a license to these unlicensed Capabilities and Licensee shall not use them in any manner. The term license period is 24 months, beginning December 20, 2021 and ending December 20, 2023 (“License Period”), and the license fee is $25,000 (“License Fee”) for the Schedule A-1 Licenses.** Payment Terms: BlueConduit or its affiliate shall invoice Licensee as follows: 1.$25,000 upon execution of this Schedule, which Licensee shall pay by December 31, 2021 Invoicing details: Bill to Address: Ship to Address: Accounts Payable Contact Purchasing/Renewal Contact Name Name Email Email Phone Phone Is a Purchase Order Required: Yes* ☐ No ☐ Is a Sales Tax Exemption or Direct Pay Certificate Required: Yes* ☐ No ☐ *If yes, please send the Purchase Order and/or Certificate to Accounts.Receivable@BlueConduit.com Invoice Submission Method (complete as appropriate) Email Portal Mailing Address Renewal Terms: •At least 90 days prior to the end of the then-current License Period, BlueConduit may provide written notice of the renewal terms for the Schedule A-1 Licenses (including the price increase, payment terms, and the extended License Period). •Licensee has 30 days from the notice date to provide a written objection, and if it d oes not do so the renewal terms will be effective and the License Period will be extended as specified in BlueConduit’s notice. Authorized Signatories: Each individual below represents that he or she has the authority to execute this Order Schedule and bind its employer to the provisions of this Schedule A-1. IN WITNESS WHEREOF, the parties have executed this Schedule A-1 as of the Effective Date above. Master License Agreement Page 9 of 15 BLUECONDUIT LICENSEE Authorized Signature Authorized Signature Print Name and Title Print Name and Title Date Date 29 November 2021 James Clay CoSB Buyer Master License Agreement Page 10 of 15 SCHEDULE B MAINTENANCE AND SUPPORT SERVICES 1.DESCRIPTION OF SUPPORT A.Remedial Support Licensee may contact BlueConduit’s Support Center HOTLINE for Remedial Support (as defined herein), via telephone at [_________] and/or via email at Support@BlueConduit.com (collectively the “Support Center HOTLINE”) to request Remedial Support of the Software. This request shall include an estimate of the severity level. The Support Center HOTLINE operates during business hours, 8 AM – 5 PM Eastern Time (US), Monday through Friday, excluding legal holidays. Extended coverage is available for an additional fee. The Support Center HOTLINE may also be used to notify BlueConduit of problems associated with the Software. Upon receipt by BlueConduit of notice from Licensee through the Support Center HOTLINE that the Software has failed to perform substantially in accordance with the Documentation (an “Error”), BlueConduit will provide remedial support to address such Errors in accordance with the severity levels defined in this section (“Remedial Support”). BlueConduit will determine the actual severity level and respond, with appropriately qualified personnel, and rectify such Error in accordance with the severity of the problem, as defined below: Severity 1: Produces an emergency situation in which the Software is inoperable or fails catastrophically. RESPONSE: BlueConduit will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 1 problem as soon as reasonably possible, bu t in any event a response via telephone or email will be provided within two (2) business hours. SOLUTION: BlueConduit will continue to provide commercially reasonable efforts to resolve Severity 1 problems in less than two (2) business days provided that Licensee responds promptly to BlueConduit’s Support Center HOTLINE questions related to the problem. The resolution will be delivered to Licensee as a workaround or as an emergency Software fix (“Workaround”). If BlueConduit delivers an acceptable Workaround, the severity classification will drop to Severity 2 or 3. Severity 2: Produces a detrimental situation in which performance (throughput or response) of the Software degrades substantially under reasonable loads, such that there is a severe impact on use; the Software is usable, but materially incomplete; one or more mainline functions or commands is inoperable; or the use is otherwise significantly impacted. RESPONSE: BlueConduit will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 2 problem as soon as reasonably possible, but in any event a response via telephone or email will be provided within four (4) business hours. SOLUTION: BlueConduit will exercise commercially reasonable efforts to resolve Severity 2 problems within five (5) business days provided that Licensee responds promptly to BlueConduit’s Support Center HOTLINE questions related to the problem. The resolution will be delivered to Licensee in the same format as Severity 1 problems. If BlueConduit delivers an acceptable Workaround for a Severity 2 problem, the severity classification will drop to Severity 3. Severity 3: Produces an inconvenient situation in which the Software is usable, but does not provide a function in the most convenient or expeditious manner, and the Authorized End User suffers little or no significant impact. RESPONSE: BlueConduit will provide a response by a qualified member of its staff to begin to diagnos e and to correct a Severity 3 problem as soon as reasonably possible, but in any event a response via telephone or email will be provided within four (4) business hours. SOLUTION: BlueConduit will exercise commercially reasonable efforts to resolve Sever ity 3 problems within five (5) business days provided that Licensee responds promptly to BlueConduit’s Support Center Master License Agreement Page 11 of 15 HOTLINE questions related to the problem. BlueConduit will exercise commercially reasonable efforts to resolve Severity 3 problems in future maintenance releases. In the event BlueConduit fails to meet the resolution times established above for Severity levels 1, 2 and 3 for Remedial Support, Licensee shall have the right to escalate the unresolved Error in the Software and/or Services to BlueConduit’s VP of Global Support. Such escalation request will be submitted by Licensee to BlueConduit’s Support Center HOTLINE. B.Maintenance 1.At no additional costs for Licensee and Licensee‘s Affiliates, BlueConduit will provide Software updates and enhancements to Licensee as the same are offered by BlueConduit to its licensees of the Software under maintenance generally ("Updates"). 2.Updates will be provided on an as-available and business-ready basis, unless explicitly requested by Licensee, and may include the items listed below: •Bug fixes; •Performance enhancements to Software. C.Hotline Support Licensee may contact BlueConduit’s Support Center HOTLINE for Hotline Support (as defined below) in the event their Authorized End User(s) are having problems or difficulties with the Software, such as creating or solving models. Licensee and Licensee’s Affiliates shall appoint no more than eight (8) contact persons total (not exceeding the number of Licenses) being employees of Licensee or Licensee’s Affiliates, who are Authorized End User(s) with Desktop or SaaS Designer (Modelers, App Builders, and Visualizers) licenses (“Product Administrators”) to request support of the Software. Excluding Remedial Support (as defined above), general questions associated with the use of the Software and Consulting Services, shall be defined as “Hotline Support” and shall be deemed as Severity 3 or lower, as per the Severity levels outlined in Section B above. BlueConduit shall only accept and respond to Hotline Support requests coming from Product Administrators. Licensee acknowledges and accepts that any problems or requests from the SaaS User or Viewer Authorized End User(s) shall be handled by Licensee internally and addressed to the Licensee’s SaaS Authorized End User(s). BlueConduit shall respond to a reasonable number of Hotline Support requests from Licensee ’s Product Administrators, at BlueConduit’s discretion. BlueConduit reserves the right to limit the number of or decline any requests and charge Licensee for such support. Licensee acknowledges that this Hotline Support is meant to be occasional, short-term help with problems or difficulties related to use of the Software and that it is not designed to replace any Consulting Services or to act as comprehensive or unlimited support. Hotline Support excludes Consulting Services, as defined in the Agreement, and BlueConduit reserves the right to charge Licensee for any such number of hours of Consulting Services that Licensee incurs through the Hotline Support. Any additional support time that is required will be charged at an hourly rate, subject to Licensee’s written approval being received before it is incurred. 2.LIMITATIONS ON MAINTENANCE AND SUPPORT A.BlueConduit will provide support services for the current release of Software B.Support services do not include resolution of issues if and to the extent caused by or resulting from Licensee’s other software, network connectivity, infrastructure, or similar issues. Without limiting the foregoing, BlueConduit shall have no obligation to provide support, if and to the extent (i) the use of the Software is not in accordance with the Agreement , the system requirements, or the operation instructions, or (ii) problems result from the improper use by Licensee unless Licensee agrees in advance in writing to bear the extra costs for such support, or (iii) system failures or interruptions result from services or conduct of a third-party. Master License Agreement Page 12 of 15 D.Support services do not include any of the following: (1) custom programming services; (2) on-site support, (3) training; (4) out-of-pocket and reasonable expenses if and to the extent these expenses relate to on-site support. E.BlueConduit will make recommendations to Licensee on possible methods to improve Licensee knowledge such as training, tutorials, etc., that may or may not require additional cost for Licensee. Master License Agreement Page 13 of 15 SCHEDULE C Subscription Terms for SaaS Products 1.Standard Support Services. Direct support for the SaaS Products is limited to the list of named SaaS Product Administrators, as defined in Schedule B, who will collect and facilitate support requests from Licensee’s SaaS Products users, and interface directly with BlueConduit's SaaS Products support contact. 2.Updates and Maintenance for SaaS Products. BlueConduit may perform scheduled maintenance for SaaS Products that will be announced at least one (1) day in advance; and during such time SaaS Products will be unavailable to Licensee. BlueConduit may perform additional unscheduled updates, repairs or maintenance, which may temporarily degrade the quality of the SaaS Products or result in a partial or complete outage of the SaaS Products. BlueConduit shall endeavor to provide notice of such activities, however, BlueConduit provides no assurance that Licensee will receive advance notification. 3.Disclaimers. LICENSEE AGREES THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED TO ACCESS AND INTERACT WITH THE SAAS PRODUCTS, INCLUDING TELEPHONE, COMPUTER NETWORKS, AND THE INTERNET, OR TO TRANSMIT INFORMATION, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SAAS PRODUCTS. BLUECONDUIT SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF LICENSEE’S ACCESS TO OR USE OF THE SAAS PRODUCTS OR THE IMPACT SUCH INTERFERENCE OR PREVENTION MAY HAVE ON LICENSEE’S ABILITY TO USE THE SAAS PRODUCTS. BLUECONDUIT SHALL NOT BE RESPONSIBLE FOR THE DELETION, CORRUPTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY LICENSEE DATA. 4.Licensee’s Responsibilities. Licensee shall: (a) notify BlueConduit immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (b) report to BlueConduit immediately, and use reasonable efforts to stop immediately, any copying or distribution of the SaaS Products that is known or suspected by Licensee. Licensee shall designate and keep in place a qualified individual to create user accounts and otherwise administer Licensee’s use of the SaaS Products (an “Authorized Administrator”). 5.Audit. Upon request by Licensee, BlueConduit agrees to complete, within forty-five (45) days of receipt, an audit questionnaire provided by Licensee or Licensee's designee regarding BlueConduit's information security program. BlueConduit will maintain annual SSAE-16 Type II audit reports with SOC2 Type II audit reports on availability, security, confidentiality, privacy and processing integrity (the “Audit Reports”) for datacenters that provide the Services (including storage of any Licensee data) to Licensee. Upon Licensee’s request, BlueConduit shall provide Licensee with the Audit Reports for its review. Master License Agreement Page 14 of 15 SCHEDULE D Terms for Consulting Services These terms apply to all Consulting Services and Sections 1 through 4 below supersede the corresponding terms in the main body of this Agreement. 1.TERMINATION OF CONSULTING RELATIONSHIP a.By the Licensee or BlueConduit. At any time, either the Licensee or BlueConduit may terminate, without liability, the Consulting Services for any reason, with or without cause, by giving (thirty) 30 days advance written notice to the other party. b.Termination obligations. In the event of termination, Licensee shall pay BlueConduit for all performed Consulting Services and approved travel expenses up to the date of termination. 2.LIMITED WARRANTY, REMEDY, AND DISCLAIMER BlueConduit warrants that Consulting Services will be performed by reasonably skilled personnel in a professional and workmanlike manner. Licensee must provide a detailed written notice of any alleged warranty failure within thirty (30) days after the nonconforming service is performed, and Licensee’s right to make such claim will terminate after that period. BLUECONDUIT’S SOLE OBLIGATION AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY FAILURE OF THIS WARRANTY IS THE REPERFORMANCE OF THE NONCONFORMING SERVICES. IF BLUECONDUIT IS UNABLE TO REPERFORM SERVICES IN A CONFORMING MANNER THEN BLUECONDUIT WILL REFUND THE FEES PAID FOR THE NONCONFORMING SERVICES. To the extent permitted by law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND THE PARTIES DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. 3.LIMIT OF LIABILITY IN NO EVENT SHALL BLUECONDUIT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR LOST OR IMPUTED PROFITS OR LOST DATA. BLUECONDUIT’S AGGREGATE, CUMULATIVE LIABILITY ARISING IN CONNECTION WITH CONSULTING SERVICES UNDER A STATEMENT OF WORK SHALL BE LIMITED TO DIRECT DAMAGES IN THE AMOUNT EQUIVALENT TO THE CONSULTING SERVICES FEES ACTUALLY RECEIVED BY BLUECONDUIT FROM LICENSEE UNDER THAT STATEMENT OF WORK. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION APPLY TO ALL CLAIMS OR CAUSES OF ACTION ON WHATEVER BASIS AND UNDER WHATEVER THEORY BROUGHT AND IRRESPECTIVE OF WHETHER BLUECONDUIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. THESE LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY IN THIS AGREEMENT, AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY SPECIFIED REMEDIES. Nothing in this Section is intended to exclude or limit any liability that cannot be excluded or limited under the governing law. 4.INTELLECTUAL PROPERTY a.Licensee Intellectual Property. Licensee shall maintain all ownership, rights, and title to its preexisting intellectual property and data (“Licensee Data”). Master License Agreement Page 15 of 15 b.BlueConduit Intellectual Property. The Parties acknowledge that BlueConduit may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, services, training, ideas, skills, designs, know -how or other intellectual property owned by BlueConduit or its licensors, and BlueConduit may also create additional intellectual property based thereon, in the performance of the Consulting Services (all of the foregoing, the “BlueConduit Intellectual Property”). BlueConduit shall maintain all ownership, rights, and title to its BlueConduit Intellectual Property. Licensee agrees that all proprietary rights to the BlueConduit Intellectual Property, as it existed as of the date hereof and as it may be modified or created in the course of providing the Consulting Services, including patent, copyright, trademark, and trade secret rights, to the extent they are available, are the sole and exclusive property of BlueConduit, free from any claim or retention of rights thereto on the part of Licensee, and Licensee hereby assigns to BlueConduit any rights it may have or obtain in any of the foregoing. Licenses to BlueConduit Software shall be covered under the terms of an Order Schedule. 5.INSURANCE a.BlueConduit shall maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, to the extent this Agreement creates exposure generally covered by the following insurance policies, BlueConduit shall maintain, at its expense, at least the following insurance: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than one million dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for hired and non-owned vehicles in an amount not less than one million dollars ($1,000,000) for each accident; (c) Workers’ Compensation at statutory limits; (d) Professional Liability covering errors and omissions and wrongful acts in the performance of the Consulting Services, in an amount not less than two million dollars ($2,000,000) per occurrence ; and (e) Cyber Liability in the amount of five million dollars ($2,000,000). b.Specific Requirements. Upon Licensee’s request, BlueConduit shall (a) cause each of these policies to name Licensee and its Affiliates and assignees as additional insureds, and (b) furnish to Licensee certificates of insurance and other documentation relating to the policies as Licensee may reasonably request. BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 3/15/22 Name Kim Thompson Department Utilities/Water BPW Date 3/22/22 Phone Extension 5969 Review and Approval Required Prior to Submittal to Board Diversity Compliance and Inclusion Officer Officer Name BPW Attorney Attorney Name Clara McDaniels Dept. Attorney Attorney Name Purchasing Check the Appropriate Item Type – Required for All Submissions Professional Services Agreement Contract Proposal Open Market Contract Amendment/Addendum Special Purchase, QPA Bid Opening Bid Award Req. to Advertise Title Sheet Quote Opening Quote Award Reject Bids/Quotes Proposal Opening C/O & PCA No. PCA Chg. Order, No. Traffic Control Resolution Other: Ease./Encroach Required Information Company or Vendor Name Abernethy Schwartz Partners LLC dba BlueConduit New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name Project Number Funding Source Water O&M Account No. 620-06-604-608-431000 Amount $70,000 Terms of Contract 24 months Purpose/Description Continued use and support of data collection application and development of service line inventory software as required by the EPA’s Lead and Copper Rule. For Change Orders Only Amount of Increase Decrease $ ($ ) Previous Amount $ Current Percent of Change: Increase Decrease % ( %) New Amount $ Total Percent of Change: Increase Decrease % ( %) Time Extension Amount: New Completion Date: