This Software and Services Agreement (the Agreement) applies to and governs access to and use of the standalone PulsePoint AED System (without use of the corresponding PulsePoint Respond System) and is entered into between the PulsePoint Foundation, a California 501 (c)(3) non-profit corporation, (The Foundation), and the contracting entity (Customer).

1. PULSEPOINT AED (System)

1.1 Licensed Software. The Licensed Software (as hereinafter defined) is a software-as-a-service (SaaS) that collects and manages AED location information so that emergency responders, including nearby citizens trained in CPR and off-duty professionals, can find an AED close to them when a cardiac emergency occurs. The primary purpose of the Licensed Software is to: (1) provide administrative control over a community’s Public Access Defibrillation (PAD) program, (2) provide individuals the ability to report and update AED locations via mobile applications, (3) make AED locations and other device details available to emergency dispatchers allowing them to direct callers to nearby AEDs, and (4) provide an application program interface (API) allowing PulsePoint partners, such as computer-aided dispatch vendors and emergency medical dispatch solution providers, to programmatically access AED information stored in the registry for emergency use. (the Licensed Software). The Foundation owns all rights to the Licensed Software.

2. SYSTEM SERVICES.

2.2 System Support. The Foundation provides web-based, email, and telephone System Support (collectively, the System Support) at no additional cost to designated contacts of Customer. System Support consists of help with System navigation or troubleshooting arising from the use of the System, as designed. System Support excludes supporting Customer procured hardware, operating systems, and Internet connectivity.

2.2.1 Web-based System Support is provided through web-based, self-help educational resources available within the System 24/7/365. The Foundation provides numerous educational resources which should be used before requesting email or telephone System Support. These include user guide(s), training videos, and frequently asked questions (FAQs).

2.2.2 Tiered email and telephone System Support is available to supplement Web-based System Support. The Foundation's Support Center is staffed during prime Customer business hours, Monday to Friday, 7AM to 6PM PT, excluding major holidays.

During non-prime hours (6PM to 7AM PT Monday to Thursday, and 6PM CT on Friday through 7AM PT the following Monday, and on major holidays), inquiries regarding major system outages are supported by technical staff. General support inquiries started outside of prime hours will be addressed the next business day.

3. CUSTOMER REQUIREMENTS.

3.1 Named User Identification and Authentication. The System requires a unique user name and password for the individual Customer representative (Named User) to access the System. Customer is responsible for administration and management of the Named User account, including the appropriate technical and administrative safeguards to prevent unauthorized access. The Foundation shall have no responsibility for unauthorized access to Customer's data or Confidential Information (as hereinafter defined) that results from Customer's failure to prevent unauthorized access.

4. LICENSE AND FEES.

4.1 License. Subject to the terms and conditions of this Agreement, The Foundation hereby grants to Customer a non-exclusive, non-transferable (except as provided in this Agreement) license to use the System for lawful business purposes.

4.2 Fees. The Licensed Software is provided free of charge.

5. TERM AND TERMINATION.

5.1 Termination. Either party may terminate the Agreement upon the other party's material breach of this Agreement, if within 30 days of receipt of written notification of breach; the breaching party has failed to cure its breach. The Foundation may terminate service immediately upon Termination of the Agreement.

Notwithstanding anything in this Section 5 or in this Agreement to the contrary, Customer may terminate this Agreement and Customer obligations hereunder, without cause, for any reason, or for no reason, and in Customer's sole and absolute discretion.

Upon Termination, all of Customer's licenses and rights to the System shall terminate, and Customer shall immediately cease use of the System.

6. PROPRIETARY RIGHTS OF THE FOUNDATION IN THE LICENSED SOFTWARE AND DOCUMENTATION.

6.1 Nature of Rights and Title. Customer acknowledges that the System and documentation supplied by The Foundation to Customer are proprietary and shall remain the sole and exclusive property of The Foundation and nothing in this Agreement shall be construed as transferring any aspect of such rights to Customer or any third party.

6.2 Unauthorized Acts. Customer agrees to notify The Foundation promptly of the unauthorized possession, use, or knowledge of any item supplied under this Agreement and of other proprietary information made available to Customer under this Agreement, by any person or organization not authorized by this Agreement to have such possession, use or knowledge. Customer's compliance with this subparagraph 6.2 shall not be construed in any way as a waiver of The Foundation's right, if any, to recover damages or obtain other relief against Customer for its negligent or intentional acts in regard to The Foundation's proprietary rights, or for breach of Customer's contractual obligations under this Agreement.

6.3 Remedies. If Customer attempts to use, copy, license, sub-license or otherwise transfer the Licensed Software or access to the System supplied by The Foundation under this Agreement, in a manner contrary to the terms of this Agreement or in competition with The Foundation or in derogation of The Foundation's proprietary rights, whether or not these rights are explicitly stated, determined by law, or otherwise, The Foundation shall have the right to obtain injunctive relief enjoining such action, in addition to any other remedies available to the Foundation under this Agreement, applicable law or in equity. Customer acknowledges that monetary damages would be inadequate.

6.4 Infringement Indemnification. The Foundation shall indemnify, defend and hold harmless Customer from and against any and all loss, cost, damage or liability, including reasonable attorneys' fees and expenses, arising out of or relating to any claim or cause of action for patent, copyright, and/or other intellectual property infringement (each, an Infringement Claim) asserted against Customer by virtue of the System, Software or documentation or Customer's use or possession of the System, Software or documentation pursuant to this Agreement. The Foundation shall defend or settle at its sole expense all suits and proceedings arising out of the foregoing; provided that Customer gives The Foundation prompt notice of any such Infringement Claim of which it learns. In all events, Customer shall have the right to participate at its own expense in the defense of any such suit or proceeding through counsel of its own choosing.

7. CONFIDENTIALITY AND DATA USE.

7.1 Confidential Information. The parties agree that any Confidential Information provided under this Agreement shall be held and maintained in strict confidence. Each party agrees to protect the Confidential Information of the other party in a manner consistent with the protections used to protect its own Confidential Information, including, without limitation, informing its employees of its obligations under this Agreement and taking such steps as are reasonable in the circumstances, or as reasonably requested by the other party, to prevent any unauthorized disclosure, copying or use of Confidential Information. Confidential Information means any proprietary material that the disclosing party designates as confidential (collectively, the Confidential Information). Confidential Information shall also include, without limitation, all information in any form which relates to the business, expertise and/or operations of the disclosing party, including without limitation, information in any form generally understood to be trade secret, proprietary or confidential and/or that is related to products and services, commercial and financial information, system functionality charts and descriptions, program code logic, trade secret information, and information about health care providers, customers and/or business partners. The Foundation will not use Confidential Information except as expressly provided in this Agreement. Confidential Information does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (ii) becomes publicly known without the fault of the receiving party, (iii) is independently developed by the receiving party, (iv) is approved for release in writing by the disclosing party, (v) is disclosed without restriction by the disclosing party to a third party, or (vi) is disclosed pursuant to applicable statutory or other legal or accreditation obligation beyond the control of the receiving party.

7.2 Unauthorized Disclosure. The recipient of any Confidential Information shall, upon discovery of any unauthorized use or disclosure of such Confidential Information, or any other breach of these confidentiality obligations by the recipient, fully cooperate with the disclosing party to assist the disclosing party to regain possession of the Confidential Information and prevent the further unauthorized use or disclosure of the Confidential Information.

7.3 Data Use. The Foundation recognizes the importance in identifying issues and improvements surrounding the functionality, integration, performance, and reliability of the System. Customer agrees that The Foundation may collect, maintain, and use technical information related to the System, including, but not limited to, its usage, functionality, integration, performance, and reliability. The Foundation may use this information to improve its products or to provide customized services or technologies. Notwithstanding, Customer understands and agrees that data received by The Foundation from Customer through the System is public data subject to routine disclosure to anyone, and may be freely used and reused without any legal restrictions on access or usage.

8. LIMITED WARRANTY.

For the duration of this Agreement (the Warranty Period), The Foundation will investigate, document and deliver any amendments or alterations to the Licensed Software or other System components that may be required to correct errors which significantly affect performance.

THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT IS THE ONLY WARRANTY MADE BY THE FOUNDATION. THE FOUNDATION EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. THE FOUNDATION DOES NOT WARRANT THAT THE LICENSED SOFTWARE OR SYSTEM WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT, EXCEPT AS REQUIRED HEREIN TO ADDRESS ERRORS THAT SIGNIFICANTLY AFFECT PERFORMANCE, ERRORS IN THE LICENSED SOFTWARE OR SYSTEM WILL BE CORRECTED. THE FOUNDATION'S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF THE FOUNDATION FOR ANY CLAIMS AND/OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE OR PERFORMANCE OF THE LICENSED SOFTWARE OR SYSTEM.

9. LIMITATION OF LIABILITY.

THE FOUNDATION'S LIABILITY FOR ANY ACTIONS, CLAIMS OR DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT OR THE SYSTEM IS LIMITED TO THE AMOUNTS PAID BY CUSTOMER IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. IN NO EVENT SHALL THE FOUNDATION HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION. THE FOUNDATION WILL NOT BE LIABLE FOR LOSS, CORRUPTION OR COMPROMISE OF THE CONFIDENTIALITY OF CUSTOMER-PROVIDED DATA.

10. REFERENCE AND SPONSORSHIP.

Customer agrees that The Foundation may identify Customer as a customer or user of the System on its website, App Store page and similar sites, and other marketing materials, and describe the project and the services provided by the Foundation to Customer. Nothing herein constitutes an endorsement of The Foundation by Customer.

11. GENERAL.

11.1 Assignment. This Agreement and any related obligation of one party, may not be assigned in whole or in part without the prior written consent of the other party, which shall not be unreasonably withheld. Any attempt by either party to assign any of the rights, duties or obligations of this Agreement without such consent shall be void. After and upon approved assignment, this Agreement shall bind and inure to the benefit of the parties and their respective successors, assignees, transferees, and legal representatives.

11.2 Amendment. This Agreement can only be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of Customer and The Foundation, and variance from the terms and conditions of this Agreement in any order or other written notification from the Customer will be of no effect.

11.3 Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

11.4 Governing Law and Venue. This Agreement will be governed by the laws of the State of California and any action must be brought in the United States District Court for the Northern District of California, or the State of California District Court in Contra Costa County, California.

11.5 Entire Agreement. Customer acknowledges that its authorized representative has read this Agreement, understands it, and agrees on behalf of Customer to be bound by its terms and conditions. Further, Customer agrees that this Agreement constitutes the complete and exclusive statement of the agreement between the parties, which supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.

11.6 Notices. All notices, demands, requests and other communications made or required pursuant to the terms of this Agreement shall be in writing and shall be (i) personally delivered, sent by nationally recognized courier service, or sent by certified mail, return receipt requested, and shall be deemed to have been received upon the earlier of actual receipt or five (5) business days after deposit with the nationally recognized courier service or deposit in the mail; (ii) sent by facsimile and deemed to have been received on the date of the facsimile confirmation; (iii) sent by electronic means and shall be deemed to have been received upon return of a read receipt.

Unless another address for a party has been specified by providing notice as set forth herein, such notices, demands, requests and other communications permitted or allowed under this Agreement must be sent to Customer at the address set forth below and to The Foundation, Attn: Legal, PO Box 12594, Pleasanton, CA 94588-2594.

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