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Hosting Service Agreement
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This Hosting Service Agreement (the "Agreement"), is entered into on November 17, 2020 (the "Effective
Date") by and between City of Santa Ana ("Customer") and N. Harris Computer Corporation of 1 Antares Drive,
Suite 400, Ottawa, Ontario K2E 8C4 ("SmartWorks").
WHEREAS, Concurrently with the execution of this Hosting Agreement, Customer will enter into a Software
License and Services Agreement with SmartWorks to acquire a license to use certain software from SmartWorks
and to receive certain maintenance and support services, and shall enter into an agreement with SmartWorks'
authorized reseller for certain related professional services to be provided by SmartWorks.
WHEREAS, Customer has requested certain application hosting services for such software from SmartWorks
and SmartWorks has agreed to provide such hosting services to Customer on the terms and conditions set out in
this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and obligations contained here and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions
The following terms shall have the meaning set out below, all other capitalized terms not otherwise defined in this
Section shall have the meaning set forth in the Agreement:
(a) "Annual Hosting Fees" means the annual hosting fees set out in Schedule "A" to this Agreement.
(b) "Confidential Information" means, with respect to a party hereto, all information or material which:
is (A) marked "Confidential," "Restricted," or "Proprietary Information" or other similar marking, (B)
known by the parties to be considered confidential, proprietary, or is confidential under federal or state
law or (C) which should be known or understood to be confidential or proprietary by an individual
exercising reasonable commercial judgment in the circumstances. Confidential Information of
SmartWorks shall include, without limitation, the Software, the Documentation, and any information
with respect to the Hosting Services that SmartWorks may provide to Customer from time to time,
including without limitation, all information disclosed by SmartWorks or its service providers relating to
the security of its facilities, computer systems and products. Confidential Information does not include
information to the extent that such information: (i) is or becomes generally known to the public by any
means other than a breach of the obligations of a receiving party hereunder; (ii) was previously known
to the receiving party as evidenced by its written records; (iii) is rightly received by the receiving party
from a third party who is not under an obligation of confidentiality; or (iv) is independently developed
by the receiving party without reference to or use of the other party's Confidential Information and
which such independent development can be established using evidence that would be acceptable to
a court of competent jurisdiction.
(c) "Data" means all data, software, text, information, audio, video and images that are provided by or on
behalf of Customer to SmartWorks or its third party service provider and all other content transmitted,
posted, received or created through Customer's use of the Hosting Services or the Software.
(d) "Documentation" means user guides, operating manuals, education materials, product descriptions
and specifications, technical manuals, and supporting materials.
(a) "Fees" means the Annual Hosting Fees and other fees as listed in Schedule "A" of this Agreement.
(f) "Hosting Services" means the web -based hosting services to be provided by or on behalf of
SmartWorks under this Agreement that includes hosting, monitoring, and operating the Software on
hardware and related equipment at a site owned or controlled by SmartWorks and the delivery of
exclusive access via the Internet to the Customer to use the Software granted to the Customer
pursuant to the Software License Agreement and Section 2 hereof. The Hosting Services shall also
N. Hams Computer Corporation —Confidential Page 1 of 18
include storing all data entered and maintained by Users through use of the Software.
(g) "Maximum Channels" means the maximum number of channels or existing systems and connected
devices such as Supervisory Control and Data Acquisition (SCADA) and sensors in the emerging
Internet of Things (IoT) that collect data regarding electricity being consumed by a customer of
Customer or collect data regarding electricity provided by a customer to Customer, with which
Customer is authorized to use the Software as specified in Schedule "A
(h) "Maximum Meters" means the maximum number of meters with which Customer is authorized to use
the Software as specified in Schedule "A".
(i) "Software" means the software product(s) including all Upgrades and Upgrades (as those terms are
defined in the Software License and Services Agreement) that SmartWorks licensed to Customer
pursuant to the Software License Agreement and as listed in Schedule "A" of the Software License
and Services Agreement.
Q) "Software License and Services Agreement" shall have the meaning ascribed to it in the Recitals.
(k) "Third Party Components" means any third party telecommunications, energy/utility transportation,
managed facilities and/or software applications and services that SmartWorks or its service providers
has licensed or purchased and provided access to or otherwise made available to Customer as part
of the Hosting Services.
(I) "User" means an employee or legal agent of Customer that has been authorized by the Customer to
access and use the Hosting Services.
2. Authorization
Subject to the terms and conditions of this Agreement, including without limitation, payment by Customer of the
Annual Hosting Fees, SmartWorks hereby grants to Customer a personal, non-exclusive, non -transferable limited
right during the Term to allow Users to access and use the Hosting Services solely in connection with its use of the
Software as permitted pursuant to the Software License and Services Agreement.
3. Fees
In consideration of receiving the Hosting Services, Customer agrees to pay to SmartWorks the Fees as described
in this Section 3 and Schedule "A" in accordance with the payment terms set out in Schedule "A".
The Annual Hosting Fees, and any other fees set out in this Agreement are exclusive of taxes. Customer agrees
to pay all foreign, federal, state, provincial, county or local income taxes, value added taxes, use, personal, property
sales and any other taxes, tariff, duty or similar charges that may be levied by a taxing authority (excluding taxes
on SmartWorks' net income).
If any Fees are not paid when due, then at SmartWorks' discretion, such Fees may accrue late interest at the rate
of 1.5% (18% per annum) of the outstanding balance per month, or the maximum rate permitted by law, whichever
is lower, from the date such fee was due until the date paid, and/or (b) SmartWorks may suspend the Service,
including all Customer access to the Service, pursuant to Section 10 but in no event prior to giving Customer 15
days written notice.
4. Term
Unless terminated earlier in accordance with the terms hereof, this Agreement shall commence on the Effective
Date and shall continue for a period of one (1) year (the "Initial Term'). Thereafter, this Agreement shall be
N. Harris Computer Corporation — Confidential Page 2 of 18
automatically renewed for successive one (1) year periods (each a "Renewal Term") subject to a four percent
(4%) increase in the Annual Hosting Fees unless either party provides written notice to the other party of its
intention not to renew within one hundred and twenty (120) days of the end of the then current term. The Initial
Term and Renewal Term(s) shall collectively be referred to as the "Term".
5. Restrictions on Use
(a) Except as expressly provided herein, Customer may not give away, rent, lease or otherwise sell, re -sell,
sublicense, distribute or transfer the license rights granted under this Agreement or otherwise use the Hosting
Services or the Software except as expressly permitted by this Agreement and the Software License Agreement
without the prior written consent of SmartWorks.
(b) Customer agrees that it will not reverse engineer, decompile, translate or otherwise attempt to derive, or permit
or help others to derive the source code relating to all or any part of the software used as part of the Hosting
Services, or attempt to otherwise convert or alter the software used as part of the Hosting Services into human
readable code, except to the extent applicable law expressly prohibits the foregoing restriction.
(c) No third party, other than duly authorized legal agents or employees of Customer authorized pursuant to Section
2 hereunder, shall have access to or use of the Hosting Services.
(d) Customer shall not copy, frame or mirror any part or content of the Hosting Services, other than copying or
framing on Customer's own intranets or otherwise for Customer's own internal business purposes.
(a) Customer shall not access or use the system (including, without limitation, the network infrastructure and cloud
services) used to provide the Hosting Services separately from the Hosting Services and shall not use third -party
tools to access the system used to provide the Hosting Services.
(f) Customer shall not access the Hosting Services in order to (i) build a competitive product or service; (ii) copy
any ideas, features, functionality or graphics of the Software; or (iii) knowingly allow access to any competitor of
SmartWorks.
(g) The Customer shall not transmit, upload, post, distribute, store or otherwise publish, through use of the Hosting
Services, any data, material or Information that: (i) contains a software virus, Trojan horse, worm or other harmful
or deleterious computer code, files or programs that may adversely affect any hardware or software, or that
intercepts or misappropriates any data or information; (ii) is threatening, defamatory, libelous, harassing, profane,
is an invasion of privacy, offensive, obscene or harmful; (iii) infringes or otherwise violates any patent, copyright,
trademark, trade secret or other intellectual property or proprietary right of any third party; (iv) violates any law,
statute, ordinance or regulation; or (v) includes unsolicited bulk e-mails, advertisements or solicitations.
(h) Customer shall not knowingly transmit any data to the system used by SmartWorks or its third party service
provider to provide the Hosting Services that contains software viruses or other harmful or deleterious computer
code, files or programs.
(i) Customer shall not interfere with or disrupt services or networks connected to the system used to provide the
Hosting Services and shall not attempt to gain unauthorized access to the Hosting Services or such services or
networks connected to the system used to provide the Hosting Services.
0) Customer shall not use the Hosting Services for unlawful, obscene, offensive or fraudulent Data or activity, such
as advocating or causing harm, evading filters, sending abusive or deceptive messages.
(k) Customer shall not provide the results of using the Hosting Services for the purposes of monitoring its availability,
performance, functionality, benchmarking or competitive analysis to any third party.
(1) In addition to its termination rights under Section 10, SmartWorks may restrict or limit Customer's access to the
Hosting Services if SmartWorks reasonably determines that Customer has engaged in or is likely to engage in
N. Harris Computer Corporation — Confidential Page 3 of 18
(whether knowingly or unknowingly) any prohibited conduct described herein and such conduct, in SmartWorks'
reasonable opinion poses any risk of any kind or nature to SmartWorks or its service providers' network, business
or other customers. As promptly as practicable after becoming aware of Customer's engagement in any such
prohibited conduct, SmartWorks will use reasonable efforts to notify Customer of the restriction or limitation to
Customer's access to the Hosting Services and will promptly restore Customer's access after SmartWorks has had
reasonable assurance that such conduct has been permanently discontinued. In addition to and without limiting
the foregoing, SmartWorks reserves the right to refuse to post or to remove in whole or in part any information or
materials provided or submitted by or on behalf of Customer in connection with its use of the Hosting Services that
SmartWorks determines, in its reasonable discretion, are either in violation of this Agreement or pose any risk of
any kind or nature to SmartWorks or its service provider's network, business or other customers.
6. Hosting Services
(a) SmartWorks and/or its service provider shall provide all facilities, equipment, and software required to deliver
the Hosting Services for up to the Maximum Meters and Maximum Channels.
(b) SmartWorks shall use commercially reasonable efforts to make the Hosting Services available to Users twenty
four (24) hours per day, seven (7) days per week; subject to the terms further defined in Schedule "B". The
system resources that are used by SmartWorks to provide the Hosting Services may be used for the
applications of other SmartWorks customers or third parties.
(c) SmartWorks reserves the right to have additional User acceptance criteria that may be applied to Users prior
to their ability to have access to the Hosting Services. SmartWorks shall inform Customer of such criteria but
SmartWorks shall be free to implement such criteria at any time without prior written warning to the Customer
and/or to Users. Where Users do not accept such and/or agree to such criteria, SmartWorks reserves its rights
to not grant to such Users access to the Hosting Services. SmartWorks reserves its rights to restrict access
to the Hosting Services to Users for any violation of any additional terms and conditions to which such Users
accept/agree to access the Hosting Services.
(d) SmartWorks shall provide installation, configuration, system administration and maintenance of the facilities
and equipment and software required to operate and ensure availability of the Hosting Services. Customer,
not SmartWorks, shall be responsible for creating and maintaining all User account information and for
performing all other application level system administration functions that are available within the Hosting
Services.
(e) SmartWorks shall comply with the terms and conditions regarding access and use of Data as set out in Section
12 of this Agreement.
(f) Customer acknowledges that in order to provide the Hosting Services SmartWorks or its service provider may
be required to purchase access to Third Party Components. Customer further acknowledges that the
availability of such Third Party Components is based solely on the best information available to SmartWorks
and its service providers as of the Effective Date including third party representations and government
regulations and is subject to change during the Term with little or no advance notice. If any necessary Third
Party Components are determined by SmartWorks to be unavailable as a result of changes to any third party
availability, governmental regulations or other condition or circumstance outside of SmartWorks' control, then
(a) SmartWorks shall not be in breach hereof or otherwise liable for anyfailure or inability to provide the Hosting
Services as a result of such unavailability of any Third Party Components; and (b) SmartWorks may in its sole
discretion modify, change or replace the applicable Third Party Components and otherwise attempt to mitigate
the impact of the such unavailability of Third Party Components, and reserves the right to pass on any price
increases by revising the Hosting Fees, subject to the right to terminate set out in Section 10, providing
SmartWorks provides written notice of 3rd party requirements
(g) The infrastructure deployed to support the Customer's Hosting Services solution is based upon the scope of
Hosting Services solution as defined in Schedule "A" and/or a statement of work executed by Customer and
N. Harris Computer Corporation — Confidential Page 4 of 18
SmartWorks (or its authorized reseller) for the implementation and other professional services to be performed
by SmartWorks. Should the technical demands of the infrastructure materially change due to changes such
as total number of meters, interval lengths, or number of virtual meters, SmartWorks reserves the right to
reassess and redefine the infrastructure required for acceptable performance and adjust the Annual Hosting
Fees accordingly.
7. Customer Responsibilities
(a) Customer Equipment. Customer agrees that it shall be responsible, at its sole expense, for providing all
Internet access, including but not limited to obtaining, installing and maintaining all equipment, hardware,
network, Internet or direct telecommunications connections and software applications (e.g. web browser) at
Customer's facilities required for Users to access and use the Hosting Services. SmartWorks shall not be
responsible for the operation of any Internet, network or other communication services. Customer further
acknowledges that access to and the operation of the Hosting Services requires Customer's and Users'
hardware to be of sufficient quality, condition and repair, and Customer agrees to and/or to ensure that Users'
maintain their applicable hardware in the appropriate quality, condition and repair at its sole cost and expense.
(b) Passwords. Customer agrees to comply with all SmartWorks and its service providers' security policies and
procedures made available to it and as may be amended from time to time. Customer and its Users shall be
responsible for keeping any and all passwords and user ID's assigned to its Users secret and confidential.
Customer agrees that it is and shall remain solely and completely liable for any communications or other uses
that are made using Customer's or its Users' passwords and user ID's, as well as any obligation that may
result from such use. Customer agrees to notify SmartWorks promptly in writing if it believes that a password
has been stolen or might otherwise be misused, of any unauthorized use of any password or user ID, or any
other breach of security suspected by Customer related to the Hosting Services.
(c) Users. The Customer is responsible for: (i) the actions of Users using the Hosting Services in accordance
with this Agreement; (ii) ensuring that Users agree to any further terms and conditions as may be provided by
SmartWorks from time to time for Users; and (iii) informing SmartWorks of any information about Users' actions
that may affect either the Hosting Services or third party data contained in or used by the Hosting Services, or
SmartWorks' ability to provide the Hosting Services as contemplated by this Agreement.
(d) Compliance with Laws. Customer represents and warrants to SmartWorks that it and its Users will at all
times be in compliance with all applicable local, state, provincial, federal and international laws, rules and
regulations including but not limited to those laws regarding restrictions on exports (including the U.S. Export
Administration Regulations, end -user, end use and destination restrictions by Canadian, U.S. and other
governments related to SmartWorks and its service provider's products, services and technologies),
defamation, libel, harm to reputation, invasion of privacy, misuse or failure to protect personal information,
violation of secrecy, confidentiality, unfair competition and other situations which could generate liability.
(e) Data Security. Customer acknowledges and agrees that use of or connection to the Internet is inherently
insecure and provides opportunity for unauthorized access by a third party to Customer's and its Users' (as
well as SmartWorks' and its service providers') computer systems, networks and any and all information stored
therein. Customer is solely responsible for ensuring that (i) Customer's computer systems are secure and
protected from unwanted interference (such as "hackers" and viruses), (ii) all transmissions are screened for
viruses or other harmful code prior to transmission to SmartWorks' servers; and (III) Data is encrypted. If any
Data could be subject to governmental regulation or may require security measures beyond those specified
by SmartWorks for the Hosting Services, Customer will not input or provide such content or Data unless
SmartWorks has otherwise first agreed in writing to implement additional security and other measures. By
using the Hosting Services, Customer acknowledges that it meets Customer's requirements and data
(including personal information) processing instructions.
SMARTWORKS AND ITS THIRD PARTY SERVICE PROVIDER DO NOT GUARANTEE THE PRIVACY,
SECURITY, AUTHENTICITY, AND NON -CORRUPTION OF ANY INFORMATION TRANSMITTED OR
STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. SMARTWORKS AND ITS THIRD PARTY
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SERVICE PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY ADVERSE CONSEQUENCES
WHATSOEVER OF CUSTOMER'S OR ITS USERS' CONNECTION TO OR USE OF THE INTERNET, AND
SMARTWORKS AND ITS THIRD PARTY SERVICE PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY
USE BY CUSTOMER OR ANY USER OF CUSTOMER'S INTERNET CONNECTION IN VIOLATION OF ANY
LAW. RULE OR REGULATION.
8. Warranty and Warranty Disclaimer
(a) Limited Warranty. SmartWorks warrants to Customer that the Hosting Services shall be performed at the
service level availability, as stated in this Agreement, provided that all use of the Hosting Services is for the
purposes and in accordance with the terms and conditions of this Agreement. The foregoing limited warranty
will not apply if there has been misuse, modification, damage not caused by SmartWorks or its third party
service provider, failure to comply with instructions provided by SmartWorks or if otherwise stated in this
Agreement. Customer's sole remedy in the event the Hosting Services do not conform to the foregoing limited
warranty is for SmartWorks to use commercially reasonable efforts to correct such non-conformance and the
right to terminate this Agreement in accordance with Section 10.
(b) Warranty Disclaimer. TO THE GREATEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS
LIMITED WARRANTY SET OUT IN SECTION 8(A), THE HOSTING SERVICES, THE SOFTWARE, AND ANY
OTHER PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED TO
CUSTOMER "AS IS" AND THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS OR
CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF
LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER
PRODUCT, SERVICE OR MATERIAL PROVIDED HEREUNDER OR IN CONNECTION HEREWITH.
SMARTWORKS, ITS THIRD PARTY SERVICE PROVIDER, LICENSORS AND SUPPLIERS DISCLAIM ANY
IMPLIED WARRANTIES OR CONDITIONS REGARDING THE SOFTWARE, THE HOSTING SERVICES,
AND ANY OTHER PRODUCTS, SERVICES AND MATERIALS PROVIDED HEREUNDER OR IN
CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE
QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON -
INFRINGEMENT.
SMARTWORKS, ITS THIRD PARTY SERVICE PROVIDER, LICENSORS AND SUPPLIERS DO NOT
REPRESENT OR WARRANT THAT THE HOSTING SERVICES OR THE SOFTWARE SHALL OPERATE
ERROR FREE OR UNINTERRUPTED, SHALL MEET ANY OR ALL OF CUSTOMER'S PARTICULAR
REQUIREMENTS, OR THAT SMARTWORKS OR ITS THIRD PARTY SERVICE PROVIDER W ILL PREVENT
THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS TO THE HOSTING
SERVICES OR SYSTEM USED TO PROVIDE THE HOSTING SERVICES.
WITHOUT LIMITING THE FOREGOING, SMARTWORKS DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES WHATSOEVER WITH REGARD TO PRODUCTS OR SERVICES FROM THIRD PARTIES
(INCLUDING WITHOUT LIMITATION THE THIRD PARTY COMPONENTS, THE HARDWARE, THE
OPERATION OF THE INTERNET, NETWORK OR OTHER COMMUNICATION SERVICES) AND ASSUMES
NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO THE FOREGOING OR THE
APPROPRIATENESS OF YOUR DATA MANAGEMENT SYSTEM OR THE ACCURACY OF DATA
CONTAINED IN SUCH SYSTEM.
NO AGREEMENTS VARYING OR EXTENDING ANY EXPRESS WARRANTIES SET FORTH IN THIS
AGREEMENT SHALL BE BINDING ON EITHER PARTY UNLESS IN WRITING AND SIGNED BY AN
AUTHORIZED SIGNING OFFICER OF SMARTWORKS,
9, Limitations on Liability
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AGREES THAT THE ENTIRE
COLLECTIVE LIABILITY OF SMARTWORKS AND ITS THIRD PARTY SERVICE PROVIDER AND
CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO THE HOSTING SERVICES, AND ANY OTHER
N. Harris Computer Corporation — Confidential Page 6 of 18
PRODUCTS, MATERIALS OR SERVICES SUPPLIED BY SMARTWORKS IN CONNECTION WITH THIS
AGREEMENT FOR DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT OR IN TORT, INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE, SHALL
BE LIMITED TO ACTUAL DIRECT DAMAGES AND SHALL NOT EXCEED IN THE AGGREGATE (2x) ANNUAL
HOSTING FEES PAID BY CUSTOMER TO SMARTWORKS UNDER THIS AGREEMENT DURING THE THEN -
CURRENT TERM OF THE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION (AND IN NO
EVENT BEING GREATER THAN 12 MONTHS).
CUSTOMER FURTHER AGREES THAT IN NO EVENT SHALL SMARTWORKS OR ITS THIRD PARTY
SERVICE PROVIDER BE LIABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT
OR IN TORT, INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE, FOR ANY INDIRECT, PUNITIVE,
CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING
WITHOUT LIMITATION FOR LOST PROFITS, LOSS OF REVENUE, FAILURE TO REALIZE ANTICIPATED
SAVINGS, LOST OR DAMAGED DATA, LOSS OF GOODWILL, BUSINESS OPPORTUNITIES OR
REPUTATION, OR ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGES, OR
SUCH LOSSES OR DAMAGES ARE FORESEEABLE.
10. Suspension and Termination
(a) Suspension of Hosting Services. In addition to any other rights that SmartWorks may have under this
Agreement, at law or in equity, SmartWorks may suspend, limit or terminate Customers' use of the Hosting Services
if SmartWorks determines there is a material breach of this Agreement, a security breach, or violation of law by
Customer or any User. If SmartWorks'service provider determines that the cause of the suspension can reasonably
be remedied, SmartWorks will provide notice of the actions Customer and its Users must take to reinstate the
Hosting Services. If such action is not taken within a reasonable time, SmartWorks may terminate this Agreement
effectively immediately upon written notice to Customer to that effect.
(b) This Agreement may be terminated as follows:
If SmartWorks is in material breach of any of its obligations or any provision under this Agreement,
Customer must notify the breaching party in writing of such default (a "Default Notice"). Upon receipt of a
Default Notice, SmartWorks must correct the default at no additional cost to Customer within ninety (90)
days, or issue a written notice of its own disputing the alleged default within thirty (30) days, of the date of
receipt of a Default Notice. If SmartWorks fails to correct the default within such ninety (90) day period,
and did not issue a notice disputing the alleged default within such thirty (30) day period, Customer may
terminate this Agreement upon written notice to SmartWorks to that effect
If Customer has failed to pay any amounts when due under this Agreement, SmartWorks shall have the
right to (i) suspend performance of the Hosting Services (including Customer access to the Hosting
Services) until all amounts are paid in full; and/or (ii) terminate this Agreement effective immediately upon
written notice to Customer to that effect.
SmartWorks may terminate this Agreement effective immediately upon written notice to Customer if
Customer has breached its obligations of confidentiality or any intellectual property right or proprietary right
of SmartWorks or its service provider or in accordance with Section 10(a) in the event of a material breach
by Customer.
iv. Either party may terminate this Agreement effective immediately upon written notice to the other party if the
other party: (i) becomes insolvent; (ii) becomes the subject of any proceeding under any bankruptcy,
insolvency or liquidation law, whether domestic or foreign, and whether voluntary or involuntary, which is
not resolved favorably to the subject party within ninety (90) days of commencement thereof; or (iii)
becomes subject to property seizure under court order, court injunction or other court order which has a
material adverse effect on its ability to perform hereunder.
N. Hams Computer Corporation —Confidential Page 7 of 18
v. This Agreement shall automatically terminate in the event that the Software License and Services
Agreement is terminated.
vi. If any such modification, change or replacement of the original Third Party Components pursuant to Section
6(f) includes a material price increase with respect to the Hosting Services enabled by such Third Party
Components or impairs Customer's ability to utilize such Hosting Services in substantially the same manner
as they were utilized prior to the modification, change or replacement, Customer may terminate this
Agreement by providing written notice to SmartWorks within twenty (20) days after Customer's receipt of
notification of such material price increase or discovery of such impairment.
11. Effects of Termination
In the event of termination or expiration of this Agreement:
(a) All rights granted to Customer in this Agreement shall immediately terminate and SmartWorks will immediately
cease to perform or provide the Hosting Services.
(b) Customer will pay all amounts due under this Agreement up to and through the date of termination and all
costs reasonably incurred in collecting the amounts due to SmartWorks (including court costs, attorney fees,
and repossession charges to the extent not prohibited by law).
(c) Customer shall return to SmartWorks or at SmartWorks' option purge or destroy all copies of any Confidential
Information of SmartWorks in its possession or under its control (except as required under any statute or
legislation related to retention requirements), and provide a duly authorized certificate of an officer of Customer
confirming same within thirty (30) days.
(d) Except as otherwise provided in this Agreement, termination of this Agreement shall not affect any right of
action of either party arising from anything which was done or not done, as the case may be, prior to the
termination taking effect.
(a) Any cancellation and/or termination of this Agreement prior to the end of the Initial Term shall result in the
following: an acceleration of all Annual Hosting Fees due for each year of the Initial Term not already invoiced
and/or paid, which amount will be due immediately. This section will not affect SmartWorks' right to collect
any further invoiced amounts for other Professional Service Fees.
(f) Conditional upon Customer's payment of all Fees that are due to SmartWorks, SmartWorks will furnish the
Customer with a copy of the Data in a format to be mutually agreed upon between the parties in writing
(typically a .csv file). The anticipated services to provide a copy of the Data are one to two days and will be
billed at SmartWorks' then current daily rate. Upon receipt of notice from Customer confirming receipt of the
Data, SmartWorks shall destroy all copies of the Data and delete all Data on the database and an Officer of
SmartWorks shall certify the destruction and deletion to the Customer. Subject to any legal requirement that
SmartWorks must retain a copy of the Data, SmartWorks shall not delete the Data for 90 days from the date
of termination except: (1) where SmartWorks has provided the Data to Customer pursuant to this Subsection;
or (ii) where it has received written instructions from Customer to delete the Data. Following 90 days from the
date of termination if Customer has not communicated with SmartWorks regarding the Data, SmartWorks shall
have the right to delete all Data at any time as either required by law or as determined by SmartWorks in its
sole discretion. Notwithstanding the foregoing, SmartWorks shall be permitted to delete all Data without
providing notification to Customer and SmartWorks shall not be required to adhere to the time frames detailed
above where SmartWorks is required by law to delete such Data.
12. Ownership
(a) By SmartWorks. SmartWorks its service providers and licensors are and shall at all times remain the owner
of all copyright, trademarks, trade secrets, patents and any other intellectual property rights in and to the
Hosting Services, Software, Documentation, and related documentation, materials, logos, names and other
support materials provided to the Customer pursuant to the terms of this Agreement. Customer shall acquire
N. Harris Computer Corporation — Confidential Page 8 of 18
no right whatsoever to all or any part of the Hosting Services, underlying system or software except the limited
right to access and use the Hosting Services in accordance with the terms of this Agreement and the Software
License Agreement SmartWorks, its service providers and its licensors reserve all rights not expressly granted
to Customer. Customer must fully reproduce any copyright or other notice marked on any part of the
documentation or other materials on all authorized copies and must not alter or remove any such copyright or
other notice. Customer shall report to SmartWorks any infringement or misappropriation of SmartWorks
Intellectual Property Rights or other rights in the Hosting Services or the Documentation of which Customer
becomes aware. Customer hereby grants to SmartWorks a royalty -free, worldwide, irrevocable, perpetual
license to use and incorporate into the Hosting Services, and underlying system and software any suggestions,
ideas, enhancement requests, recommendations or other feedback provided by Customer relating to the
operation of the Hosting Services.
(b) Customer Data. As between SmartWorks and Customer, all Data will remain the sole and exclusive property
of Customer. Customer is solely responsible for ensuring the accuracy, quality, integrity, reliability,
appropriateness and right to view and use the Data. Subject to the terms and conditions of the Agreement,
Customer grants to SmartWorks a world-wide, non-exclusive, royalty -free license to access the Data for the
purpose of performing the Hosting Services. Access to the Data shall only be by SmartWorks' employees
and/or subcontractors whosejob function requires access. Except as specified in this Agreement, SmartWorks
may not access the Data for any other purpose without the express written consent of Customer. Access to
Data by any outside party shall only be in accordance with the terms of this Agreement or where required by
law.
Customer grants to SmartWorks a world-wide, non-exclusive, royalty -free license to aggregate or compile Data
with the customer data of other customers using the Hosting Services so long as such aggregation or
compilation omits any data that would enable the identification of Customer, its clients or any individual,
company or organization ("Aggregated Data"). ) SmartWorks shall have a worldwide, perpetual, royalty -free
license to use, modify, distribute and create derivative works based on such Aggregated Data, including all
reports, statistics or analyses created or derived therefrom. Additionally, Customer grants SmartWorks the
right to access Data to provide feedback to Customer concerning its use of the Hosting Services.
Customer authorizes SmartWorks to disclose the fact that Customer is a customer of SmartWorks and uses
the Hosting Services.
If and to the extent (i) SmartWorks and its third party service provider are processing personal data on behalf
of Customer acting as Customer's subprocessor, and (ii) the European General Data Protection Regulation
(EU/2016/679) ("GDPR") applies to such processing of personal data, to the extent legally required Customer
shall enter into a data processing agreement.
SmartWorks' third party service provider and its affiliates, and their contractors and subprocessors, may
wherever they do business, store and otherwise process business contact information ("BCI") of Customer
and its Users, for example, name, business telephone, address, email, and user IDs for business dealings with
them. Where notice to or consent by the individuals is required for such processing, Customer will notify and
obtain such consent. SmartWorks' third party service provider may use personnel and resources in locations
worldwide and third party suppliers to support the delivery of its products and services. SmartWorks' third
party service provider collects Account Data, defined as information other than Data and BCI that Customer
provides to the third party service provider to enable SmartWorks' or Customer's use of the third party service
provider's products or that it collects using tracking technologies, such as cookies and web beacons, regarding
SmartWorks' or Customer's use of the third party service provider's products. Additional details are available
at the link to SmartWorks' third party service provider's Online Privacy Statement set out in Schedule "A".
(c) Data and Privacy Policy of Customer
The Customer represents and warrants to SmartWorks that:
N. Harris Computer Corporation — Confidential Page 9 of 18
i. Data that is either provided to or acquired by SmartWorks from Customer is owned exclusively by
Customer and that the Customer has full right and title to provide the Data to SmartWorks and its third
party service provider;
ii. Data that is either provided to or acquired by SmartWorks is subject to a privacy policy in effect as of
the Effective Date and Customer's customers have provided to Customer their written consent for its
collection, use and storage by SmartWorks and its third -party service providers in accordance with
this Agreement and in any jurisdiction in North America;
iii. Customer complies with all applicable privacy legislation as of the Effective Date in the performance
of its obligations hereunder in respect of any Data collected, used, transferred, created or disclosed
pursuant to this Agreement; and
iv. Customer will not provide SmartWorks with data of any kind for which SmartWorks or its third party
service provider either has no need or does not have the right to collect, use and store under the terms
of this Agreement.
(d) Audit Rights
In order to assist SmartWorks with the protection of its proprietary information and Confidential Information
and to enable SmartWorks to verify Customer's compliance with the terms and conditions of this Agreement,
Customer shall permit SmartWorks and its independent auditor to visit during normal business hours any
premises at which the Hosting Services are used or being accessed and shall provide SmartWorks with access
to its records including usage data. SmartWorks shall provide Customer with reasonable notice of any such
audit, but in no event less than 15 business days.
13. Confidential Information
The parties agree to keep confidential any and all Confidential Information with respect to the other party which it
has received or may in the future receive in connection with this Agreement and shall only disclose such
Confidential Information of the other party (i) to its agents, employees or representatives who have a need to know
such information, for the purpose of performance under this Agreement and exercising the rights granted under
this Agreement, and who have entered into a non -disclosure agreement at least as protective of the other party's
Confidential Information as this Agreement, or (ii) to the extent required by applicable law or during the course of
or In connection with any litigation, arbitration or other proceeding based upon or in connection with the subject
matter of this Agreement, provided that the receiving party shall give the disclosing party reasonable notice prior
to such disclosure and shall comply with any applicable protective order or equivalent. The parties each agree to
hold the other party's Confidential Information in confidence and to take all reasonable steps, which shall be no
less than those steps it takes to protect its own confidential and proprietary information, to protect the Confidential
Information of the other party.
In addition to any other restrictions on SmartWorks' use of the Data, the confidentiality obligations above apply
except to the extent that both parties agree that the Data may be subject to privacy laws providing for the owners
of the Data to review such Data or to challenge the collection and storage of the Data. Customer shall indemnify
and reimburse SmartWorks in relation to all reasonable fees and other disbursements paid by SmartWorks to
comply with such requests, whether by an individual or a government body, or to challenge such requests at either
SmartWorks' or Customer's request. Customer represents and warrants to SmartWorks that as of the Effective
Date no individual, government body or third party has requested a review of the Data or challenged the collection
and storage of the Data to be stored in the Software.
14. Indemnity
Customer is solely responsible for its Data, its use, and its Users' use, of the Hosting Services in any way, and all
legal liability arising out of or relating thereto. Customer shall defend, indemnify and hold SmartWorks and its third
N. Harris Computer Corporation — Confidential Page 10 of 18
party service providers, if applicable, and each of their respective officers, directors, employees and agents (the
"Indemnities") harmless from and against any and all losses, costs, damages and expenses (including reasonable
attorney's fees) that the Indemnities may suffer in connection with any demands, claims, actions, suits or
proceedings arising out of or in connection with (i) the use of the Hosting Services including but not limited to any
Third Party Components by Customer or its Users; (ii) any breach by Customer or its Users of this Agreement; or
Ili) Customer's Data, including but not limited to any third party claims that the inclusion, use, reference,
incorporation of or linking to any third party materials or the Customer's Data violates such third party's copyright
and/or other intellectual property, privacy or other rights, or that such use is illegal.
15. General
Governing Law; Venue: This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined
and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall
be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of
this Agreement.
(a) Notice
Any notice required or permitted to be given to any party to this Agreement shall be given in writing and shall be
delivered either personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or
facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received
on the day on which it is delivered or transmitted (or on the next succeeding business day if delivered or received
by facsimile after 5:00 p.m. local time on the date of delivery or receipt, or if delivered or received by facsimile on a
day other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third business day
following the date of mailing, and addressed, in the case of the SmartWorks, to:
N. HARRIS COMPUTER CORPORATION
1 Antares Drive, Suite 400
Ottawa, Ontario K2E 8C4
Attention: CEO / Legal
Telephone: 613-226-5511, extension 2149
and in the case of the Customer, to:
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
With copy to Executive Director, Public Works Agency (at same address)
Each party may change its particulars respecting notice, by issuing notice to the other party in the manner
described in this Section 15(c).
(b) Currency: Unless otherwise indicated, all dollar amounts referred in this Agreement are in lawful money of
the United States of America.
(c) Use of Name. Customer agrees to the following promotional activities in relation to the purchase of
SmartWorks' solutions, products and services: (i) Customer permits SmartWorks to issue a mutually agreed
upon press release announcing Customer's purchase of SmartWorks' products and services; and (ii)
Customer grants SmartWorks the right to reasonably include the Customer's name and logo in published lists
N. Harris Computer Corporation — Confidential Page 11 of 18
referencing the users of the products and services of SmartWorks. Customer may unilaterally withdraw their
consent to the above promotional activities at any time by providing written notice to SmartWorks of said
revocation.
(d) Entire Agreement: This Agreement together with the Schedules attached to this Agreement constitute the
entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations, negotiations, understandings, arrangements, and
communications between the parties, both written and oral, relating to the subject matter hereof. No terms
and conditions in any Customer orders, or in any other documentation employed by or on behalf of Customer
in connection with this Agreement, regardless of the date of such documentation, will affect the terms of this
Agreement, even if such document is accepted by the receiving party, with such provisions being deemed
deleted. This Agreement may only be modified by a written amendment signed by an authorized
representative of each of the parties.
(a) Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior,
concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective
unless made in writing and signed by an authorized representative of the waiving party.
(f) Assignment: Customer may not assign any of its rights or duties under this Agreement without the prior
written consent of SmartWorks, such consent not to be unreasonably withheld. This Agreement shall inure to
the benefit of and be binding upon the parties to this Agreement and their respective successors and permitted
assigns.
(g) Severability: If any provision of this Agreement is determined by a court of competent jurisdiction to be
invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent
necessary in order to render such provision valid and enforceable. If such provision may not be so saved, it
shall be severed and the remainder of this Agreement shall remain in full force and effect.
(h) Allocation of Risk: Customer acknowledges and agrees that the warranty disclaimer and limitation of liability
contained in this Agreement are fundamental elements of the basis of the bargain between SmartWorks and
Customer and set forth an allocation of risk reflected in the fees and payments due hereunder.
(1) Relationship: The parties are and shall at all times remain independent contractors in the performance of
this Agreement and nothing herein shall be deemed to create a joint venture, partnership or agency
relationship between the parties. Neither party will have the power to bind the other party or to contract in
the name of or create any liability against the other party in any way for any purpose. Neither party will be
responsible for the acts or defaults of the other party or of those for whom the other party is law responsible.
(j) Equitable Relief: Customer acknowledges and agrees that it would be difficult to compute the monetary loss
to SmartWorks arising from a breach or threatened breach of this Agreement by Customer and that,
accordingly, SmartWorks will be entitled to specific performance, injunctive or other equitable relief in addition
to or instead of monetary damages in the event of a breach or threatened breach of this Agreement by
Customer.
(k) Force Majeure: No default, delay or failure to perform on the part of SmartWorks shall be considered a
breach of this Agreement where such default, delay or failure is due to a force majeure or to circumstances
beyond its control. Such circumstances will include, without limitation, strikes, riots, civil disturbances, actions
or inactions concerning government authorities, epidemics, war, terrorist acts, embargoes, severe weather,
fire, earthquakes, floods, acts of any governmental body, acts of God or the public enemy or default of a
common carrier, unavailability of Third Party Components or other disasters or events.
(1) Survival: Sections 1 (Definitions), 3 (Fees), 5 (Restrictions on Use), 6(f) (Compliance with Laws), 6(g)
(Security), 8(b) (Warranty Disclaimer), 9 (Limitations on Liability), 11 (Effects of Termination), 12 (Ownership),
13 (Confidential Information), 14 (Indemnity), 15 (General) and any other provision of this Agreement which
is required to ensure that the parties fully exercise their rights and their obligations hereunder shall survive
any termination or expiration of this Agreement unless and until waived expressly in writing by the party to
whom they are the benefit.
(m) Counterparts: This Agreement may be executed in counterparts (whether by facsimile signature, PDF via
email, or otherwise), each of which when so executed shall constitute an original and all of which together
shall constitute one and the same instrument.
[Signatures on Following Page]
N. Harris Computer Corporation - ConFldential Page 12 of 18
IN WITNESS WHEREOF, SmartWorks and the Customer have duly executed this Agreement to be effective on
the Effective Date first written above.
N. HARRIS COMPUTER CORPORATION
Signature
Eric Chabot
Name
Executive Vice -President
Title
October 1, 2020
Date
CITY OF SANTA ANA
n� Sig
Kristine Ridge
Name
City Manager
Title
t 1-1U -2b
Date
APPROVED AS TO FORM
Ate. Ig.-f.w..'L
An M. Funk
Assistant City Attorney
ATTEST
Lai hmtn� - -
Daisy Gomez
Clerk of the Council
RECOMMENDED FOR APPROVAL
qNabil Saba
Executive Director
Public Works Agency
N. Harris Computer Corporation — Confidential Page 13 of 18
Schedule "A"
Fees and Payment Schedule
Customer shall pay the Annual Hosting Fees set out in the table below
Annual Recurring Fees (includes support services)
Annual Hosting Fee: $12,720
The Annual Hosting Fees are based on the maximum meters, channel and Interval lengths set out in the table
below
12e\7 JJ I =1 .12 I =1 1.1 IT, &3
The Annual Hosting Fees will be due in advance of the Initial Term and each Renewal Term, and is non-refundable.
Professional Services Fees stated above, and any applicable travel and lodging expenses, will be invoiced as
incurred and shall be due and payable thirty (30) days from the date of invoice.
ADDITIONAL PROFESSIONAL SERVICE(S) FEES:
Additional Professional Services may be provided on -site or via the telephone. Additional Professional Services
work provided via telephone is billed at the rate of two hundred and thirty ($230) per hour. Additional Professional
Services work performed on -site does not include travel, lodging and per diem expenses. Professional Services
performed one year or more after the execution date of this Agreement shall be billed at the then current
SmartWorks Professional Services rates. Help line support and Support Services do not include training or other
Professional Services.
Customer shall incur a seven -hundred fifty dollar ($750) daily surcharge for any Professional Services provided on
weekends or SmartWorks recognized holidays; plus the corresponding standard Professional Services fees and
any applicable travel charges per paragraph 4.
Additional Professional Services may include, but are not limited to, the following: software installation,
configuration, data validation, system setup, system balancing, interface setup, interface testing, process training,
application training and business requirements gathering.
RESET OF TERM TO MATCH FISCAL YEAR:
Customer may request that SmartWorks match the annual invoicing of the Annual Subscription Fees with
Customer's fiscal year. In order for Customer to elect to match annual invoicing with their fiscal year, Customer
must make said request to SmartWorks in writing and during the Initial Term of this Agreement. If such election is
N. Hams Computer Corporation — Confidential Page 14 of 18
(b) Any Service Level Credit payable to Customer under this Agreement will be issued to Customer in
the last calendar month of the Term. This Section 3 sets forth SmartWorks' sole obligation and liability
and Customer's sole remedy for any Service Level Failure.
4. Routine Scheduled Downtime.
For the purposes of this Schedule B, "Routine Scheduled Downtime" means a period of time during which
SmartWorks conducts routine system maintenance and for which SmartWorks has provided Customer
written notice a minimum of three business days prior to such period, which will be between 6PM and
midnight Central Time on weekdays and or any time on weekends, as agreed by the parties.
5. Factors Outside SmartWorks's Reasonable Control.
For the purposes of this Schedule B, outages due to force majeure events include power surges or network
or device failure external to SmartWorks' data centers. In the event of a force majeure event, SmartWorks
shall be entitled to take any actions determined, in its sole discretion, necessary or advisable to prevent,
remedy, mitigate, or otherwise address actual or potential harm, interruption, loss, threat, security, or like
concern to SmartWorks' hosting infrastructure resulting from such force majeure event ("Emergency Work").
SmartWorks shall provide advance notice of such Emergency Work to Customer when practicable and
possible. SmartWorks shall not be held responsible for any deterioration of performance or un-Availability
during such force majeure events or Emergency Work.
6. Unauthorized Actions.
SmartWorks shall not be responsible for any un-Availability that results from Customer's unauthorized action
or lack of action when required, or from Customer's employees, agents, contractors, or vendors, or anyone
gaining access to the Services by means of Customer passwords or equipment, or otherwise resulting from
Customer failure to follow appropriate security practices. Although SmartWorks will use commercially
reasonable efforts to mitigate the effects of any such events, SmartWorks cannot guarantee that such events
will not occur. Accordingly, SmartWorks disclaims any and all liability resulting from or relating to such events.
7. Failure to Adhere to Requirements.
SmartWorks shall not be responsible for any un-Availability which results from Customer's failure to adhere
to any required configurations, follow any policies for acceptable use, or use of the Services in a manner
Inconsistent with the features and functionality of the Services (for example, attempts to perform operations
that are not supported, exceeding prescribed quotas, if applicable, or suspected abusive behavior) or
inconsistent with SmartWorks' published guidance.
N. Harris Computer Corporation —Confidential Page 17 of 18
Schedule C
Security
1. Harris shall store and process Data in accordance with industry standard practices.
2. Response to Legal Orders, Demands or Requests for Data.
a. Where permitted by law SmartWorks shall:
i. Promptly notify the Customer of any subpoenas, warrants, or other legal orders, demands or
requests received by SmartWorks seeking Data;
ii. Consult with the Customer regarding its response;
iii. Cooperate with the Customer's reasonable requests, at Customer's expense, in connection
with efforts by the Customer to intervene and quash or modify the legal order, demand or
request; and
iv. Upon the Customer's request, provide the Customer with a copy of its response.
b. If the Customer receives a subpoena, warrant, or other legal order, demand ("requests") or request
seeking Data maintained by SmartWorks, Customer will promptly provide a copy of the request to
SmartWorks. SmartWorks will, where permitted by law, promptly supply Customer with copies of
records or information required for the Customer to respond, and will cooperate with Customer's
reasonable requests, and at Customer's expense, in connection with its response.
N. Harris Computer Corporation — Confidential Page 18 of 18