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Home My WebLink AboutWebsoft Developers Inc; 2019-01-09;wsd Websoft Developers. Inc. 2020 Research Park Drive. Suite 140 · Davis. CA 95618 • Tel: 530 759.8754 • Fax· 530. 759 0923 Software as a Service AGREEMENT This Software As a Service Agreement (the '"Agreement'') is made as of ~~ 6r..111ll:1 .i ?.fl>:l~-, ("Effective Date") between the City of Carlsbad, a municipal corpor-;ti;n,~ prmcipal offices at 1200 Carlsbad Village Drive, Carlsbad, CA 92008 ("Customer") and Websoft Developers, Inc., a California S-Corporation, with its principal office at 2020 Research Park Drive, Suite 140, Davis, CA 956 I 8 ("Vendor") WHEREAS, Customer is a company or agency that desires the use of MobileMMS software application products and services; WHEREAS, Vendor and Customer desire to enter into this Agreement defining their respective rights and responsibilities and memorializing the terms and conditions pursuant to which Vendor will provide to Customer the Services for a fee. NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the parties, intending to be legally bound, hereby agree as follows: 1. DEFINITIONS a. "SaaS" is an acronym for '·Software as a Service" and means the combined hosting and support services provided in this Agreement. b. "SaaS Materials" shall mean the written materials relating to the operation and use of the Vendor Software including, but not limited to, user manuals, user guides, technical manuals, release notes, and online help files regarding use of the Vendor Software provided as part of the Service, and any other materials prepared in connection with any Vendor Software modification, correction, or enhancement, and shall include any updated versions of Saas Materials as may be provided by Vendor from time to time (1) in the course of providing the Service; (2) as part of an online tutorials or help files provided with the Service; or (3) in the course of providing web seminars in which Customer or Customer's Users enroll. c. "Application Support Services" shall mean the support not included in the Product Support Services and defined in Schedule C. d. "Base Components" means the hardware, software, and hosting environment as specified in Sc hedule D that Vendor makes available for use by Customer as part of the Service. e. "Hosting" means the provision of products and services in a hosted, virtualized environment, accessible via the internet. f. "Vendor Software" means Vendor proprietary software applications and user interfaces as defined in Schedule A, attached hereto, and made available to Customer by Vendor as part of the Service. Vendor Software may contain thfrd-party components licensed to Vendor. g. "Customer Data" means all data, files, including hypertext markup language files, documents, audio and visual information, graphics, scripts, programs, applets or spatial applications: GIS/CAD/mapping services: database design : application development: web design: ho.sting Page 1 of 41 wsd Websoft Developers, Inc. 2020 Research Park Drive, Suite 140 ·Davis.CA 95618 · Tel: 530 759.8754 · fax 530.759 0923 servlets that Customer creates, installs, uploads to or transfers in or through the Service or provides in the course of using the Service, excluding identification and other information provided by Customer relative to Customer Users. h. "Electronic Communications" shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically to or from the Service. 1. "Infrastructure Support Services" shall mean the support provided by Vendor for the maintenance and stability of the computer hardware and hosting environment provided as part of the Service. J. "Product Support Services" shall mean the support provided by Vendor to remediate, correct, or abate errors in the out of the box Vendor Software that is provided as part of the Service as defined in Schedule B, attached hereto. Support for customer specific configurations and customizations (if any) are handled by Application Support Services defined in Schedule C, attached hereto. k. "Purchase Order Form(s)" refers to a Customer document, in either electronic or written form, issued by Customer to confirm Customer's purchase of the Service. l. "Service" shall mean the software and infrastructure in a hosted environment provided and maintained by Vendor to which Customer is being granted access under this Agreement via a web site or another designated internet protocol ("IP") address. Service or Services includes Product Support Services and Application Support Services described in this Agreement. m. "Term" means any Initial Term and/or Renewal Term as defined in Section 6 of this Agreement. n. "Third Party Products" means application software products provided by non- affiliated third party vendors, including operating system and application software with which the Vendor Software interfaces and which provides certain functionality essential to the operation of the Vendor Software. Third Party Products are licensed to Vendor for incorporation and use in the hosted environment as part of the Service as set forth in the Statement of Work. For the sake of clarity, the term Third-Party Products does not refer to third-party software components, if any, incorporated into Vendor Software. o. "User(s)" means Customer's employees, representatives, consultants, contractors and/or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer or on Customer's behalf. p. "Data Breach" -means any access, destruction, loss, theft, use, modification or disclosure of Customer Data by an unauthorized party or that is in violation of Contract terms and/or applicable state or federal law. q. ''Recovery Point Objective (RPO)'' -means the point in time to which Customer Data can be recovered and/or systems restored when service is restored after an interruption. The Recovery Point Objective is expressed as a length of time between the interruption spatial applications: GIS/CAD/mapping services: database design : application development : web design : hosting Page 2 of41 wsd Websoft Developers. Inc. 2020 Research Park Drive. Suite l~0 ·Davis.CA 95618 · Tel: 5)0 759.8754 · Fax: 530.759.0923 and the most proximate backup of Data immediately preceding the interruption. The RPO is detailed in the Service Level Agreement ("SLA.") r. "Recovery Time Objective (RTO)" -means the period of time within which information technology services, systems, applications and functions must be recovered following an unplanned interruption. The RTO is detailed in the SLA. 2. PROVISION OF SERVICES In consideration of the fees paid by Customer under this Agreement, Vendor agrees to provide Customer access to the Service. Specific components of the Service to be provided to Customer are as outlined in the Schedules annexed hereto. 3. SAAS AVAILABILITY If SaaS monthly availability averages less than 99.9% (excluding agreed-upon maintenance downtime), for three (3) or more months in a rolling twelve-month period, Customer may terminate the contract for material breach. Vendor shall provide advance written notice to Customer in the manner set forth in this Agreement of any major upgrades or changes that will affect the Saas availability. 4. DAT A AVAILABILITY Customer Data shall be available twenty-four (24) hours per day, 365 days per year (excluding agreed-upon maintenance downtime). If Customer Data availability, on a per month basis, averages less than 99.9% (excluding agreed-upon maintenance downtime), Customer can terminate the contract for material breach. 5. INSTALLATION SCHEDULE Vendor will implement the infrastructure described in Schedule A, attached hereto, to provide Customer the Services described in this Agreement. This schedule is contingent on: (i) the Vendor Software having been installed and accepted by Customer (ii) Customer providing: all data required by Vendor in order to implement the infrastructure as defined in Schedule D. (iii) Customer completing all tasks and activities required as a prerequisite in order for the system to be placed into production use. Example of these types of activities are, but not limited to, validation activities, document approval, data migration, user training etc. (iv) Customer providing their internal infrastructure and connectivity needed to access the Services. spatial applications : GIS/CAD/mapping services: database design : application development : web design : hosting Page 3 of 41 wsd Websoft Developers. Inc. 2020 Research Park Drive. Su,te 140 ·Davis.CA 95618 · Tel: 530.759.8754 · Fax. 530 759.0923 Failure of Customer to achieve all the contingencies described above as well as all other reasonable tasks required of Customer will require an adjustment in the schedule and may require the payment of additional fees by Customer. 6. LICENSE GRANTS Subject to the terms and conditions of this Agreement, Vendor grants to Customer during the Term of this Agreement the nontransferable, nonexclusive worldwide right to permit Users to (a) use the Service, including the Base Components thereof, (b) display and print Customer Data, and (c) use the SaaS Materials solely in connection with the Service, all solely for Customer's own internal business operations, provided such internal business operations shall not include commercial time- sharing, rental, outsourcing, service bureau or similar use. For purpose of this license grant, "Customer" shall include any outsourced or other third-party consultants or similar personnel supporting Customer as part of its typical business practices, acting under Customer's direction and for whom Customer is fully responsible hereunder. Customer acknowledges and agrees that the license granted. for the items listed in Schedule A herein, is not a concurrent user license and that the rights granted to Customer in this Agreement are subject to all of the following agreements and restrictions: (i) the maximum number of Users that Customer authorizes to access the Service shall not exceed the number of licenses Customer has been granted, as set forth in Schedule A; (ii) licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who are no longer permitted to access the Service; (iii) Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Service or the SaaS Materials available to any third party other than an authorized User; (iv) Customer shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service, including without limitation the Vendor Software and or SaaS Materials that are provided as a part thereof, or access the Service or SaaS Materials in order to build a similar or competitive product or service; (v) Customer shall not create Internet "links" to the Service or "frame" or "min-or" any part of the Service, including any content contained in the Service, on any other server or device; (vi) except as expressly stated herein, no part of the Service or Saas Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (vii) Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Service; (viii) Customer acknowledges and agrees that Vendor or its Third Party Vendors shall own all right, title and interest in and to all intellectual property rights in the Service and the Saas Materials and any suggestions, enhancement requests, feedback, or recommendations provided by Customer or its Users relating to the Service or the Saas Materials, including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other intellectual property rights, derivatives or improvements thereof; (ix) unauthorized use, resale or commercial exploitation of any part of the Service or Saas Materials in any way is expressly prohibited; (x) Customer does not acquire any rights in the Service or SaaS Materials, express or implied, other than those expressly granted in this Agreement and all rights not expressly granted to Customer are reserved by Vendor and Third Party Vendors; spatial applications: GIS/CAD/mapping services: database design : application development : web design: hosting Page 4 of 41 wsd W,bsofi Dm lopm. loc. 2020 Research Park Drive, Suite 140 ·Davis.CA 95618 · Tel: 530.759.8754 · Fruc 530.759.0923 and (xi) this Agreement is not a sale and does not convey any rights of ownership in or related to the Service, Vendor Software, Third Patty Products, or SaaS Materials to Customer. 7. LICENSES FROM CUSTOMER Subject to the terms and conditions of this Agreement, Customer grants to Vendor and its Third Party Vendors the non-exclusive, nontransferable worldwide right to copy, store, record, transmit, display, view, print or otherwise use (a) Customer Data solely to the extent necessary to provide the Service and SaaS Materials to Customer, and (b) any trademarks that Customer provides Vendor for the purpose of including them in Customer's user interface of the Service ("Customer Trademarks"). Customer acknowledges and agrees that Customer Data and information regarding Customer and Customer's Users that is provided to Vendor and its Third-Party Vendors in connection with this Agreement may be (a) processed by Vendor and its Third Party Vendors to the extent necessary to provide the Service and. In addition, Customer acknowledges and agrees that it is Customer's obligation to inform Customer's Users and customers of the processing of Customer Data and information regarding Customer and Customer's Users pursuant to this Agreement and to ensure that such Users and customers have given any necessary consent to such processing as required by all applicable data protection legislation. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data and information regarding Customer and Customer's Users. Customer agrees that the license to the Customer Data shall survive termination of this Agreement solely for the purpose of storing backup Customer Data in accordance with the terms of this Agreement. By providing Customer with the Services, Vendor does not acquire any right, title and/or interest in the content material (including but not limited to text, Customer-provided software, scripts, trademarks, logos, HTML coding, domain names, links, graphics. audio, video, and any data) that Customer makes available for use by Users by means of the Services (collectively "Content"). Except as expressly set forth in the Schedules as being the responsibility of Vendor, Customer is solely responsible for all Content. 8. PROPRIETARY RIGHTS Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that the content or information presented to the Customer through the Service may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except where expressly provided otherwise by Vendor, nothing in the Service, the SaaS Materials, or the Agreement shall be construed to confer any license to any of Vendor's (or its third-party manufacturer's, author's, developer's, vendor's, and service provider's ("Third Party Vendors"), intellectual property rights, whether by estoppel. implication, or otherwise. Without limiting the generality of the foregoing, any names or trademarks of the Vendor Software listed on Schedule A and other Vendor service marks, logos and product service names are marks of Vendor (the "Vendor Marks"). Customer agrees not to display or use the Vendor marks, or the marks of any Third-Party Vendor, in any spatial applications : GIS/CAD/mapping services : database design : application development : web design : hosting Page 5 of 41 wsd Websoft Dmlopm. lac. 2020 Research Park Drive. Suite 140 ·Davis.CA 95618 · Tel: 530 759.8754 · Fax: 530.759.0923 manner without the owner's express prior written permission. Vendor reserves the right to subcontract any or all services provided hereunder to third patties. 9. LICENSE FEE, TERM AND PAYMENT The initial term ("Initial Term'') of this Agreement will commence on the Effective Date and will terminate on the Contract End Date as defined in Schedule E. Each 12-month period after the Effective Date will be defined as a "Service Year", e.g. Months 1-12 will constitute Service Year l and months 13-24 will constitute Service Year 2, etc.). The Initial Term may be renewed (a "Renewal Term") upon mutual agreement of the parties in writing. Invoices shall be payable within thirty (30) days after receipt thereof. In addition to any remedies Vendor may have pursuant to this Agreement or at law for non-payment, delinquency in payment may result in a delay or suspension of the right to use the Service. Customer further agrees to pay all foreign, federal, states, and local taxes, if applicable, to Customer's access to, use, or receipt of the Service. Annual recurring charges do not include the usage-based backup and storage service fees, which are calculated, reported and charged annual in arrears. Charges are based on the actual volumes of data backed up in the previous month and volumes retained from previous months. Pricing for backup services includes restores for the purpose of data recovery only. Data recovery is defined as the restoration of data that has been lost or corrupted due to system crashes, erroneous deletions, or other unplanned events from a recent copy of the data previously backed-up on tape. In the event that a client requests Vendor to restore data for reasons other than data recovery and/or from tapes older than one-month, additional charges may apply. Schedule E, attached hereto, outlines the pricing for both the implementation of the software and the annual licensing. J 0. TERMS OF SERVICE l 0.1. Service Extensions or Updates Customer agrees that, unless explicitly stated otherwise, any new features that augment or enhance the Service. and or any new service su bsequently purchased by Customer pursuant to an amendment accepted by Vendor referencing this Agreement will be subject to this Agreement. 10.2. Customer Must Have Internet Access In order to use the Service, Customer must have or must obtain access to the World Wide Web, either directly or through devices that access web-based content. Customer must also provide all equipment necessary to make (and maintain) such connection to the World Wide Web in accordance with the requirements set out in Schedule D. 10.3. Email and Notices Customer agrees to provide Vendor with Customer's e-mail address (es), and to accept emails (or other Electronic Communications) from Vendor at the e-mail address Customer specifies. Notwithstanding any provision in the Agreement to the contrary, acknowledgement by an officer of Customer is not required with respect to e-mail communications pertaining to the Customer's spatial applications : GIS/CAD/mapping services : database design : application development : web design : hosting Page 6 of41 wsd Websoft Developers, Inc. 2020 Research Park Drive, Suite 140 ·Davis.CA 95618 · Tel: 530.759.8754 · Fax. 530.759 0923 routine use of the Service, including without limitation communications relating to the support, maintenance, or the updating of the Service. Customer further agrees the Vendor may provide any and all required notices including legal notices to Customer through either e-mail (or other electronic transmission), or by mail or express delivery service in accordance with Section 18. l 0.4. Passwords, Access, and Notification Customer may designate up to the number of Users that corresponds to the number of permitted Users set forth in Schedule A. Customer will provide and assign unique password and user names to each authorized User for each license purchased. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and or user names with unauthorized users. Customer will be responsible for the confidentiality and use of Customer's (including its employees') passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer's account. Vendor will act as though any Electronic Communications it receives under Customer's passwords, User name, and/or account number will have been sent by Customer. Customer agrees to notify Vendor if Customer becomes aware of any loss or theft or unauthorized use of any of Customer's passwords, user names, and/or account number. The foregoing shall also apply to any Purchase Order Forms submitted by the Customer for further User licenses. 10.5. Customer's Responsibilities Customer agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. Customer will ensure that any use of the Service by Customer's Users is in accordance with the terms of this Agreement. Customer agree to notify Vendor immediately of any unauthorized use of any password or account or any other known or suspected breach of security or any known or suspected distribution of Customer Data. Customer acknowledges and agrees that the Service is subject to the U.S. Export Administration Laws and Regulations. Customer agrees that no part of the Service or information obtained through use of the Service, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government. Proscribed countries are set forth in the U.S. Export Administration Regulations and are subject to change without notice, and Customer must comply with the list as it exists in fact. Customer certifies that neither Customer nor any Users are on the U.S. Department of Commerce's Denied Persons List or affiliated lists or on the U.S. Department of Treasury's Specially Designated Nationals List. Customer agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to expo11 or re-export as may be required. Any unauthorized use of the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. spatial applications : GIS/CAD/mapping services : database design : ;ipplication development: web design : hosting Page 7 of 41 wsd Webwft De.dopm. loo. 2020 Research Park Drive. Suite 140 · Davis, CA 95618 · Tel. 530.759.8754 · Fax 530 759.0923 In addition to its responsibilities in this Agreement, Customer is responsible for all Customer responsibilities indicated in the Schedules attached hereto or entered into pursuant hereto and all other responsibilities not designated as responsibilities of Vendor. Customer is solely responsible for obtaining all licenses and permissions necessary related to the Content, including without limitation licenses for any third-party software included in the Content. Customer shall not resell the Services directly or indirectly to third parties. l 0.6. Transmission of Data Customer understands that the technical processing and transmission of Customer's Electronic Communications is fundamentally necessary to Customer's use of the Service. Customer expressly consents to Vendor's interct!ption and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer's Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by Vendor. Customer acknowledges and understands that changes to Customer's Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Customer further understands that Electronic Communications may be accessed by unauthorized parties when communicated across the internet, network communications facilities, telephone, or other electronic means. Customer agrees that Vendor is not responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by Vendor. 10.7. Vendor's Support Vendor will make commercially reasonable efforts to promote Customer's successful utilization of the Service, including but not limited to maintenance and support of the Base Components, providing Customer with user guides and on-line help, and product support as set forth in Schedule B. Infrastructure Support Services shall be provided as set forth in Schedule D. Infrastructure Support Services pertain to the maintenance of the computer hardware and hosting environment provided as part of the Service. Vendor will also provide Product Support for Vendor Software employed as part of the Service as set forth in Schedule B annexed hereto. Product Support pertains to support designed to remedy errors in Vendor Software that cause it to deviate from the specifications as described in the SaaS Materials. Vendor also offers "for a fee" extended support options and Professional Services consultation, which services may include, among other things, training services, business and regulatory process consulting, submission processing support, submission migration services and system configuration. l 0.8. SaaS and Customer Data Security Vendor shall certify to Customer: ( 1) the sufficiency of its security standards, tools, technologies and procedures in providing Saas under this Agreement, and, (2) undergo an annual Statement on Standards for Attestation Engagements (SSAE) No. 16 Service Organization Control (SOC) 2 Type II audit. Audit results and Vendor's plan to correct any negative findings shall be made available to Customer upon request. spatial applications: GIS/CAD/mapping services : database design : application development : web design : hosting Page a of 41 wsd W,bwft Dmlopm '"'· 2020 Research Park Drive. Suite 140 ·Davis.CA 95618 · Tel: 530. 759.8754 · Fax. 530.759.0923 Vendor shall implement and maintain all appropriate administrative, physical, technical and procedural safeguards at all times during the term of this Agreement to secure such Customer Data from Data Breach, protect the Customer Data and the SaaS from hacks, introduction of viruses, disabling devices, malware and other forms of malicious or inadvertent acts that can disrupt Customer's access to its Customer Data. Vendor assumes responsibility for the security and confidentiality of the Customer Data under its control. No Customer Data shall be copied, modified, destroyed or deleted by Vendor other than for normal operation or maintenance of SaaS during the Agreement period without prior ,vritten notice to and written approval by Customer. Remote access to Customer Data from outside the continental United States, including remote access to Customer Data by authorized SaaS support staff in identified support centers, is prohibited unless expressly approved in writing and in advance by Customer. 10.9. Encryption Confidential, sensitive and/or personal information shall be encrypted. 10.10. Data Location Unless expressly stated otherwise and approved in advance by Customer, the physical location of Vendor's data center where the Customer Data is stored shall be within the continental United States. l 0.11. Rights to Customer Data The paities agree that as between them, all rights, including all intellectual property rights, in and to Customer Data shall remain the exclusive property of Customer, and Vendor has a limited, non- exclusive license to access and use the Customer Data as provided to Vendor solely for performing its obligations under the Agreement. Nothing herein shall be construed to confer any license or right to the Customer Data, including user tracking and exception. Unauthorized use of Customer Data by Vendor or third parties is prohibited. For the purposes of this requirement, the phrase "unauthorized use" means the data mining or processing of data, stored or transmitted by the service, for unrelated commercial purposes, advertising or advertising-related purposes, or for any other purpose other than security or service delivery analysis that is not explicitly authorized. l 0.12. Confidential lnfonnation Each party may have access to information that is confidential to the other party ("Confidential Information"). For purposes of this Agreement, Confidential Infonnation shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Customer's Confidential Information shall include, but not be limited to, Customer Data. A party's Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was m the other party's lawful possession prior to the disclosure without any obligation of spatial applications: GIS/CAD/mapping services: database design : application development : web design : hosting Page 9 cf 41 wsd Web,oft Dm lopm, '"' 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel 530 759.8754 · Fax 530.759 0923 confidentiality and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party"s Confidential Information, as established by written records. The parties agree to use commercially reasonable efforts not to make each other· s Confidential Information available in any fom1 to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that Vendor may disclose Customer's Confidential Infonnation to its Third Party Vendors solely to the extent necessary to provide products or services under this Agreement and only if Third Parties Vendors agree to be bound by the same Confidentiality obligations that apply to Vendor under the terms of this Agreement. This Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the "Responding Party") shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure, so as to permit such party an opportunity to obtain a protective order or take other appropriate action. The Responding Party will cooperate in the other party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Infonnation. If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed. Notwithstanding anything to the contrary in this Agreement, Content is not included in Confidential Information as defined above. To the extent Vendor has any access to Content in the course of providing the Services, Vendor·s entire obligation to keep Content confidential is as follows: Vendor shall not, intentionally (i) access Customer's Content or (ii) disclose Customer's Content to any third party, except to the extent: (a) Customer makes its Content publicly available, (b) as necessary for Vendor to provide, or obtain third-party supplier support for, the Services or to provide information requested by Customer, or ( c) as specifically authorized by Customer in writing. Vendor's obligation to protect Content from unauthorized use, access or disclosure is: (i) to provide the Security Services specifically set forth in this Agreement and (ii) maintain and enforce the then-current standard Vendor security policies and standards applicable to the Services as practiced at the service locations from which Vendor is providing the Services to Customer. The obligations in this Section shall not apply to the recipient of Confidential Information and/or Vendor with respect to Content to the extent disclosure of Confidential Information or Content is required to comply with laws or respond to requests by a regulatory or j udicial body and/or as otherwise required for legal process. 1 L DATA BREACH Upon discovery or reasonable belief of any Data Breach, Vendor shall notify Customer by the fastest means available and also in writing. Vendor shall provide such notification within forty- eight (48) hours after Vendor reasonably believes there has been a Data Breach. Vendor's notification shall identify: spatial applications : GIS/CAD/mapping services : database design : application development : web design : hosting Page 10 of 41 wsd Websoft Developers. Inc. 2020 Research Park Drive, Suite 140 · Davis, CA 9561 8 · Tel: 530.759.8754 · Fax: 530.759.0923 a. The nature of the Data Breach; b. The Customer Data accessed, used or disclosed; c. The person(s) who accessed, used, disclosed and/or received Customer Data (if known); d. What Vendor has done or will do to quarantine and mitigate the Data Breach; and e. What corrective action Vendor has taken or will take to prevent future Data Breaches. Vendor will provide daily updates, or more frequently if required by Customer, regarding findings and actions performed by Vendor until the Data Breach has been effectively resolved to Customer's satisfaction. Vendor shall quarantine the Data Breach, ensure secure access to Customer Data, and repair Saas as needed. 12. DISASTER RECOVERY/BUSINESS CONTINlJITV In the event of disaster or catastrophic failure that results in significant Customer Data loss or extended loss of access to Customer Data, Vendor shall notify Customer by the fastest means available and also in writing. Vendor shall provide such notification within twenty-four (24) hours after Vendor reasonably believes there has been such a disaster or catastrophic failure. In the notification, Vendor shall inform Customer of: a. The scale and quantity of the Customer Data loss; b. What Vendor has done or will do to recover the Customer Data and mitigate any deleterious effect of the Customer Data loss; and c. What corrective action Vendor has taken or will take to prevent future Customer Data loss. d. If Vendor fails to respond immediately and remedy the failure, Customer may exercise its options for assessing damages or other remedies under this Agreement. Vendor shall restore continuity of SaaS, restore Customer Data in accordance with the RPO and RTO, restore accessibility of Customer Data, and repair SaaS as needed to meet the performance requirements. Vendor shall immediately conduct an investigation of the disaster or catastrophic failure and shall share the report of the investigation with Customer. 13. SUSPENSIONrIERMINA TlON 13.1. Suspension for Delinquent Account Vendor reserves the right to suspend Customer's access and/or use of the Service for any account for which any payment is due but remains unpaid after thirty day's written notice of such delinquency. Customer agrees that Vendor shall not be liable to Customer, or to any third party, spatial applications : GIS/CAD/mapping services: database design : application development : web design : hosting Page11of41 wsd Wcb~ft Dmlopm. '"'· 2020 Resear~h Park Drive. Suite 140 ·Davis.CA 95618 · Tel: 530 759 8754 · fax: 530 759 0923 for any suspension of the Service resulting from Customer's non-payment of the fees as described in this Section. 13.2. Suspension for Ongoing Harm Customer agrees that Vendor may, with reasonably contemporaneous telephonic or electronic majl notice to Customer, suspend Customer's access to the Service if Vendor objectively and reasonably concludes that Customer's use of the Service is causing immediate and ongoing harm to Vendor or others. Vendor will use commercially reasonable efforts to resolve the issues causing the suspension of Service. Customer agrees that Vendor will not be liable to Customer or to any third party for any suspension of the Service under such circumstances as described in this Section. 13.3. In the Event of a Breach Either party may terminate this Agreement upon sixty (60) days' written notice to the other party in the event of a breach of any material obligation under this Agreement, provided that the alleged breach is not fully cured during the sixty (60) day notice period. Upon termination or expiration of this Agreement. Customer shall have no rights to continue use of the Service. Customer may cancel this Agreement, to be effective at the end of the initial Term, by providing Vendor with at least thirty (30) days' prior written notice. During a renewal Term, Customer may cancel this Agreement at any time upon the giving of at least thirty (30) days written notice. 13.4. Handling of Customer Data In the Event of Termination Customer acknowledges and agrees that following termination of this Agreement, Customer shall return all SaaS Materials (except that it may retain a copy for archival purposes or as otherwise provided in this Agreement) to Vendor and Vendor may immediately deactivate Customer's account. Furthermore, unless otherwise agreed-upon by the Parties in \.\Titing, Vendor shall remove or overwrite all applicable Content from Vendor's systems following the effective date of termination or cancellation, in accordance with Vendor's standard procedures. Customer shall provide Vendor with reasonable and prompt access to Customer's premises to allow Vendor to retrieve the hardware and software and /or, in accordance with Vendor's instructions, return to Vendor all hardware and software that Vendor has provided to Customer in connection with the Services (other than hardware and software that Customer has purchased from Vendor). In the event that Customer fails to either return the hardware or software, or allow Vendor to retrieve it, within thirty (30) days of the effective date of termination or cancellation, Vendor may charge Customer the then-current fair market value of the hardware and software. Prior to any such deletion or destruction, however, Vendor shall either (1) grant C ustomer reasonable access to the Service for the sole purpose of Customer retrieving Customer Data or (2) transfer all Customer Data to other media for delivery to Customer. Customer agrees that Vendor shall not be liable to Customer or to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that Vendor is in compliance with the terms of this Section. Notwithstanding the foregoing, nothing shall preclude Vendor from maintaining one copy of Customer Data if required by law. spatial applications : GIS/CAD/mapping services : database design : application development : web design : hosting Page 12 or 41 wsd W,b,oft De,eiopeffl. '"' 2020 Research Park Drive. Suite 140 ·Davis.CA 95618 · Tel: 530.759.8754 · Fax: 530.759 0923 14. MODIFICATION/DISCONTINUATION/MAINTENANCE I 4.1. Modification to or Discontinuation of the Service Vendor reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof), provided such modification does not diminish the functionality of the Service to the Customer on which the Customer materially relies. Notwithstanding the foregoing, except for routinely scheduled down time, or as otherwise provided in this Agreement, Vendor shall use commercially reasonable efforts to notify Customer prior to any such modification; further, Vendor shall consider the Customer's validation needs and requirements in connection with any modification of the Service and, except as otherwise noted in Section 13 .2, shall validate the Service as modified to the same extent provided in the Schedules. Customer acknowledges that Vendor reserves the right to discontinue offering the Service at the conclusion of Customer's then current Term. Customer agrees that Vendor will not be liable to Customer or any third party for any modification or discontinuance of the Service as described in this Section 13. 14.2. Maintenance In order to perform maintenance, including infrastructure and application upgrades, there will be routinely scheduled down time as set forth in Schedule D. Customer shall give Vendor one (1) week notice in the event that such routinely schedule maintenance conflicts with its operations at a critical time. Upon the receipt of such notice, the parties shall work together to find a mutually convenient time to perform such maintenance. Vendor further reserves the right on approximately a quarterly basis to issue new releases in which Vendor adds functionality to the Service. Customer acknowledges that these periodic major releases can take several hours to complete (up to eight hours). The time necessary to provide such periodic releases shall not be counted in any System Availability calculations. Vendor shall consult with the Customer and, unless otherwise agreed upon, shall install such major releases during routinely scheduled down time as set forth above. These patches, fixes and service releases shall be performed in accordance with the Application Support Services described in Schedule C -Application Support and in accordance with the change control process. In the event that Vendor, in its sole discretion, determines that any unscheduled maintenance is necessary, Vendor will use commercially reasonable efforts to notify Customer as soon as it becomes aware of such need. 15. WARRANTIES 15.1. Warranty of Functionality Vendor warrants to Customer during the Term of this Agreement that the Service will comply with the material functionality described in the SaaS Materials and that such functionality will be maintained in all material respects in subsequent upgrades to the Service. Customer's sole and exclusive remedy for Vendor's breach of this warranty shall be that Vendor shall use commercially reasonable efforts to correct such errors or modify the Service to achieve the material functionality described in the Saas Materials within a commercially reasonable period of time. Vendor shall have no obligation with respect to a warranty claim, and Customer may not terminate the spatial applications : GIS/CAD/mapping services : database design : application development : web design : hosting Page 13 of 41 wsd w,,~n Dmlopm. '"' 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · ra.x. 530.759.0923 Agreement, where any alleged nonconformity is due to User error as reasonably determined by the parties after investigation and analysis by Vendor's Product Support Center. Vendor does not warrant that the Service will be will be free of non-material errors, bugs, or minor interruption, or that all such errors will be corrected. 15.2. Data Maintenance and Backup Warranty Vendor warrants during the Term of this Agreement, that it will, at a minimum, utilize and maintain the backup procedures listed in Schedule D annexed hereto (and hereby incorporated by reference). In the event of a breach of this provision, Vendor will use commercially reasonable efforts to correct C ustomer Data or restore Customer Data as fast as practically possible, but in no case, longer than three (3) business days ( or as otherwise agreed in writing between the parties depending upon the back-up options selected by Customer). Provided Vendor complies with the terms of this Section and the procedures set forth in Schedule D, it shall be deemed to have satisfied its obligation with respect to this warranty. 15.3. Non-Infringement Warranty Vendor warrants that it is the sole owner of and or has full power and authority to grant the license and use of the Service and other rights granted by the Agreement to Customer with respect to the Service and that neither the performance by Customer in its utilization of the Service, nor the license of and authorized use by Customer of the Service as described herein, will in any way constitute an infringement or other violation of any U.S. copyright, trade secret, trademark, patent, invention, proprietary information, non-di sclosure, or other rights of any third party. 16. DISCLAIMER OF WARRANTIES EXCEPT AS OTHERWISE STATED IN SECTION 14 ABOVE, VENDOR DOES NOT RE PRESENT THAT CUSTOMER'S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPED OR ERROR FREE, OR THAT THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THE SERVICE WILL OPERA TE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DAT A NOT PROVIDED BY VENDOR OR THE OPERATION OF THE SERVICES WILL BE SECURE OR THAT VENDOR AND ITS THIRD PARTY VENDORS WI LL BE ABLE TO PREVENT THIRD PARTIES FROM ACCESSfNG CUSTOMER DATA OR CUSTOMER'S CONFIDENTIAL fNFORMATION, OR ANY ERRORS WILL BE CORRECTED OR ANY STORED CUSTOMER DA TA WILL BE ACCURATE OR RELIABLE. THE WARRANTIES STA TED IN SECTION 14 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY VENDOR. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR. PURPOSE. EXCEPT AS STATED IN IN THIS AGREEMENT, THE SERVICE IS PROVIDED TO CUSTOMER ON AN '·AS IS" AND ·'AS AVAILABLE'' BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR spatial applications: GIS/CAD/mapping services: database design : application development: web design ; hosting Page 14 of 41 wsd W,bsoft Dowlopocs. '"' 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · Fax: 530.759.0923 DETER.MINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR THE CUSTOMER'S PURPOSE. 17. LIMJTATIONS OF LIABILITY 17 .1. No Consequential Damages NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES fNCLUDING WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, LOST REVENUE AR1SfNG OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE SERVICE, THE USE OF THE SERVICE OR THE INABILITY TO USE SERVICE), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 17.2. DIRECT DAMAGE LIMITATIONS 17.2.1 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VENDOR OR ANY THIRD PARTY VENDORS ARI SING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, fNCLUDING ANY LICENSE, USE, OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER IN THE TWELVE (I 2) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THERE SHALL BE ONLY ONE AGGREGATE LIABILITY CAP UNDER THIS AGREEMENT EVEN IF THERE ARE MULTIPLE CLAIMS; EACH CLAIM SHALL REDUCE THE AMOUNT AVAILABLE IN THE AGGREGATE LIABILITY CAP. 17.2.2 EXCEPT FOR A FAILURE OF VENDOR TO COMPLY WITH ITS OBLIGATIONS WITH RESPECT TO BACKUP SERVICES, AND SUBJECT TO SECTION 16.2.1 ABOVE, VENDOR SHALL NOT BE LIABLE FOR ANY DAMAGES RES UL TING FROM THE LOSS OR CORRUPTION OF ANY DAT A OR CONTENT WHETHER RES UL TING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE fNTERRUPTIONS OR OTHER WISE. 17.3. EXCLUSIONS THE LIMITATIONS OF LIABILITY SET FORTH fN SECTIONS 16.I AND 16.2 SHALL NOT APPLY WITH RESPECT TO: (I) DAMAGES TO PERSONS AND/OR TANG IBLE PROPERTY OCCASIONED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY, (II) BREACHES BY CUSTOMER OF LICENSE TERMS APPLICABLE TO VENDOR PROVIDED SOFTWARE AND THIRD PARTY PRODUCTS AS SET FORTH fN SECTION 2 ABOVE, (III) CUSTOMER'S UNAUTHORIZED USE OF VENDOR'S OR THIRD PARTY VENDOR'S INTELLECTUAL PROPERTY, MATERIALS OR ASSETS; (IV) spatial applications : GIS/CAD/mapping services: database design : application development : web design : hosting Page 15 of 41 wsd Websoft Dmlope~. '"'· 2020 Rcs~arch Park Drive, Suite 140 ·Davis.CA 9S618 · Tel: 530.759.8754 · Fax. 530.759.0923 DAMAGES INCURRED AS A RESULT OF A BREACH BY A PARTY OF ITS OBLIGATIONS UNDER SECTION 10.12 THAT RESULT IN THE DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE OTHER PARTY, OR (V) CLAIMS THAT ARE THE SUBJECT OF INDEMNIFICATION PURSUANT TO SECTION 18 (WHICH ARE SUBJECT TO THE LIMITS, IF ANY CONTAINED THEREIN). DAMAGES AS LIMITED BY THIS SECTION 17 ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY IF ANOTHER REMEDY IS PROVIDED AND SUCH REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE. 18. INDEMNIFICATION 18.1. Personal Injury and Property Damage Each party (the "Indemnifying Party") agrees to defend at its expense and indemnify and hold harmless the other party and its affiliates, directors, officers, employees, agents, successors and assigns ( each an ·'Indemnified Party"), in accordance with the procedures described in this Section, from and against any and all losses, costs, damages, liabilities and expenses including without limitation, reasonable legal fees and expenses paid to or for the benefit of an unaffiliated third party (collectively, "Losses") arising from or in connection with any third party claim for: (i) the death or bodily injury of any person caused by the negligence or willful misconduct of the Indemnifying Party; or (ii) the damage, loss or destruction of any real or tangible personal property caused by the negligence or willful misconduct of the Indemnifying Party. 18.2. Infringement Vendor will indemnify, defend and hold harmless Customer for Losses Customer incurs as a direct result of any unaffiliated third party claim based on any claim that the Service infringes any U.S. copyright, trademark or trade secret, except to the extent resulting from (i) Customer's unauthorized modification of the Service or Customer combining the Sen·ices with other products or services if the Service would not have been infringing but for such combination or modification, (ii) Customer's use of the Service in a manner not authorized herein or for which it was not designed, (iii) Customer's failure to use an updated non-infringing version of the applicable intellectual property to the extent Customer was notified that the update cured an infringement, (iv) changes to the Service made by Vendor at the direction of the Customer or (v) Customer Data. If any item for which Vendor has an indemnification obligation under thjs Section becomes, or in Vendor's reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, Vendor will, in addition to indemnifying Customer as provided in this Section, promptly take the following actions, at no additional charge to Customer, in the listed order of priority: (a) secure the right to continue using the item or (b) replace or modify the item to make it non-infringing. If neither of such actions can be accomplished by Vendor using commercially reasonable efforts, and only in such event, Vendor will remove the item from the Service and the applicable Service fee will be equitably adjusted to reflect such removal. This Section 17.2 states Customer's sole and exclusive remedy for Vendor's infringement or misappropriation of intellectual property of a third party. spatial applications : GIS/CAD/mapping services : database design : application development : web design : hosting Page 16 of 41 wsd Wehsoft Developers, Inc. 2020 Research Park Drive. Suite 140 · Davis, CA 95618 • Tel 530 759.8754 · Fax. 530759 0923 18.3. Customer's Indemnity Customer shall defend and indemnify Vendor and its Third Party Vendors against any and all Losses incurred by Vendor and its Third Party Vendors arising out of or in connection with a claim by a third party (i) alleging that the Customer Data or the Customer Trademarks, or any use thereof, infringes the rights of, or has caused harm to, a third party, or (ii) arising out of Customer's breach of Sections 9.5 and 9.8. Customer will indemnify, defend and hold harmless Vendor, its affiliates, successors, and assigns, including the applicable officers, directors, employees, and agents thereof for damages, costs and attorneys' fees Vendor incurs from any unaffiliated third-party claim arising from Customer's Content or Customer's or any end user's use of the Services. 18.4. Indemnification Procedures The party seeking indemnification shall give prompt notice of the claim and will tender the defense; provided, however, that such party's failure to provide notification shall not affect the indemnifying party's indemnification obligations except to the extent that the failure to notify delays or prejudices the indemnifying party's ability to defend the applicable claim. The indemnifying party shall conduct the defense and shall have control of the litigation, and the indemnified party shall cooperate in defending against the claim. The indemnified party shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing. The indemnifying party shall not make any settlement of the claim that results in any liability or imposes any obligation on the indemnified party without the prior written consent of the indemnified party. If the indemnifying party fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, the party seeking indemnification shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of the indemnifying party, and the indemnifying shall promptly reimburse the indemnified party for all such costs and expenses. 19. NOTICES Except as otherwise provided in Section 10.3 above, any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by registered or certified mail return receipt requested, ( c) sent by overnight courier, ( d) sent by facsimile (with a hard copy mailed on the same date), (e) by email whose receipt is acknowledged by an officer of the receiving Party. If to Vendor, a notice shall be forwarded to Manoj Desai, at 2020 Research Park Drive, Davis, CA 95618 and if to Customer, a notice shall be forwarded to Customer at the address provided on the signature page herein. Notices shall be considered to have been given at the time of actual delivery in person, five (5) business days after posting if by mail, one (1) business day if by overnight courier service, or upon receipt of machine confirmation of successful transmission by facsimile or email as described herein. 20. SURVIVAL The following provisions shall survive any termination of this Agreement: Sections 6, I 0.12, 16, 17, 18, 19, 20, 25 and 26. spatial applications: GIS/CAD/mapping service~: database design : application development : web design : hosting Page 17 oi 41 wsd W,bsofl DMlopc~. '"'· 2020 Research Park Drive. Suite 140 · Davis. CA 95618 · Tel. 530 759.8754 • Fax 530. 759.0923 21. NO ASSIGNMENT Neither Vendor nor Customer may assign this Agreement without the prior written approval of the other party. Any purported assignment in violation of this section shall be void. 22. U.S. GOVERNMENT RESTRJCTED RI GHTS Any use of the Service by or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph I(l)(ii) of the Rights in Technical Data and Computer Software clause at OF ARS 252.227-7013 or subparagraphs 1(1) and (2) of the Commercial Computer Software -Restricted Rights at 48 CFR 52.227-19, as applicable. 23. FORCE MAJEURE Neither party will be liable to the other for any failure or delay in the perfonnance of such party's non-monetary obligations due to causes beyond its control, such as failure or delay caused, directly or indireclly, by fire, flood, earthquakes, other elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, communications line or power failures, or governmental laws, court orders, and regulations imposed after the fact. 24. SECURITY AND SECURITY POLICIES Vendor will provide the security services set forth in the Schedules (the ''Security Services''). Except to the extent caused by Vendor's failure to provide objectively reasonable Security Services, Vendor is not responsible for (i) unauthorized access to Customer's Content, or (ii) damages arising out of unauthorized access. 25. DISENTANGLEMENT As part of the implementation, Vendor will deliver a proposed termination assistance/data transfer plan to Customer within forty-five (45) business days after the Effective Date. Customer will have ten ( l 0) business days from the date of receipt of such proposed plan to accept the plan as-is or to provide feedback regarding the proposed plan in writing. The parties will then cooperate in good faith to finalize the plan within ten ( 10) business days. The termination assistance/data transfer plan will not become part of this Agreement. Instead, it is intended to further describe aspects of the Services and in the event the final plan involves any changes in scope, such changes will be addressed as part of the change control process. 26. GENERAL PROVISIONS Any action related to this Agreement will be governed by California law and controlling U.S. federal law. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Yolo or San Diego County, California. This Agreement, together with the Schedules annexed hereto, represents the parties' entire understanding relating to the use of the Service and supersedes any prior or contemporaneous, conflicting or additional, communications. spatial applications: GIS/CAD/mapping services : database design : application development; web design: hosting Page 18 of 41 wsd Websoft Dmlopm. loc. 2020 Research Park Drive. Suite 140 ·Davis.CA 95618 · Tel: 530.759.8754 · Fax. 530.759.0923 No text or information set forth on any Purchase Order Form, preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Vendor and Customer as a result of this Agreement or use of the Service. The failure of Vendor to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Vendor in writing Vendor reserves the right to assign its right to receive and collect payments hereunder. Any rights not expressly granted herein are reserved by Vendor. IN WITNESS \VHEREOF, this Agreement is duly executed by an authorized representative of both parties as of the Effective Date. VENDOR ~ By:~ Customer Mailing Address: Attn: ·----------- CUSTOMER By ~~ Elaine Lukey, ~erating Officer APPROVED AS TO FORM 1 A.-,CIIJNllx""1 11,:-G £2:Y)V Asst/Oep City A ,q City of Cartabad, CA spatial applications : GIS/CAD/mapping services : database design : application development : web design : hosting Page 19 of 41 wsd Wcbsofi Developers. Inc. 2020 Research Park Drive, Suite 140 ·Davis.CA 95618 · Tel: 530 759.8754 · Fax: 530.759.0923 SCHEDULE A -VENDOR LICENSED SOFTWARE Schedule A -Vendor Licensed Software The licenses set forth below shall be available to Customer during the term of the agreement. I. MOBlLEMMS INITIAL LICENSING Includes hosted software license for MobileMMS software with unlimited access for all City- related cross-connection activities. 2. MOBILEMMS IMPLEMENTATION Activity development to include but not limited to a. Backflow Program b. Recycling Program c. Workflow configuration using hands-on assessment-based discussions on-site with key stakeholders. d. Map integration using import of existing GIS layers e. Import existing electronic data source into form and workflow structure developed above. Link to map where possible. Include PM schedules where required. Field crew will have the ability to add/edit/delete point features such as manholes, valves, hydrants if authorized. f. Custom repo11 configuration (5 reports) including year-end reporting and field- printable forms that mimic current work orders forms if necessary. g. Daily report generation including customized metrics h. Standard report configuration using grid interface and dashboard configuration 1. Training for field crews and administrative staff 3. CUSTOMER SPECIFIC FEATURES 3.1. Backflow a. Test scheduling: Schedule tests to be delivered to customers based on interval. b. Test verification and recording: Record tests via a simple web interface that allow internal users and testers access to the system. Verifies test credentials and certifications c. Tester certification tracking: Update tester and test equipment certification d. Customer billing updating: Interface with billing system via a simplified spreadsheet- based import/export that provides meters that require backflows and new use sites. e. State reporting: Combine all relevant data to product report similar to that provide at trial inception. spatial applications : GIS/CAD/mapping services : database design : application deveiopment : web design : hosting Page 20 of 41 wsd Websoft Developers, Inc. 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · !'ax: 530.759.0923 3.2. Recycled Water a. Site monitoring: Create method to electronically test site monitoring b. Inspection scheduling: Schedule inspections based on last inspection date and inspection frequency. c. Walk-through, Annual, and Shutdown in spection tracking: Replicate test tracking methodology in existing Access database. d. Customer billing updating: Integrate updated customer information to determine which sites have added a recycled water meter and provide method to add these customer sites to the system. e. State reporting: Combine all relevant data to product report similar to that provide at trial inception. 3.3. Backflow Detailed Requirements Reference Criteria CP-7.10.1.1 System should link with Utility Bill system to pull new site info WSD City will provide a method to upload updated customer information to Websoft servers on a 7.10.1.1.1 periodic basis. This dataset will be provided in Excel or CSV format with a fixed schema detennined by both the City and Websoft. Websoft will provide a method to process this updated data and place it in the MobileMMS application. CP-7.10.1.2 System should contain the following fields: I) Account # (pull from Utility Billing) CP-7.10.1.3 2)Service Address (pull from Utility Billing) CP-7.10.1.4 3) Name/Business Name (pull from Utility Billing) CP-7. I 0.1.5 4) Meter Number (pull from Utility Billing) CP-7.10.1.6 5) Location CP-7.10.1.7 6) Date of Notice CP-7.10.l.8 7) Interval (Month site was added) CP-7.10.1.9 8) Make of Device CP-7.10.1.10 9) Model of Device CP-7.10.1.11 I 0) Backflow device size CP-7. I0.1.12 11) Serial # CP-7.10.1.13 12) Type of device CP-7.10.1.14 13) Meter size (pull from Utility Billing) CP-7.10.1.15 14) Meter # (pull from Utility Billing) CP-7.10.1.16 15) User code (type of BF, (ex. IR Irragation)(Pulled from UB) CP-7.10.1.17 Mailing address must fit in Envelope window spatial applicat ions : GIS/CAD/mapping services: database design : application development : web design : hosting Page 21 of 41 wsd W,bw fi De>dop<~, '"' 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · Fax: 530.759.0923 Reference Criteria CP-7.10.2. l Have a web form lo submit test results from certified tester/outside contractor CP-7.10.2.2 web form should integrate with system CP-7.10.2.3 Web form should contain the following fields: I) Date Tested CP-7. l 0.2.4 2) AWWA/ABPA cert # Gauge # CP-7.10.2.5 3) Finn Name CP-7. l 0.2.6 4) Tester Name CP-7. l 0.2.7 5) Telephone # CP-7. l 0.2.8 6) PSI CP-7. l 0.2.9 7) Line Valve# I (Replaced) CP-7. 10.2.10 8) Line Valve#2 (Tight, Leaked, Replaced) CP-7.10.2.1 l 9) Reduce Pressure Principle Assembly, Double check valve assembly, Test before repair Check #l (Tight, Leaked), Check #2 (Tight, Leaked) Apparent Drop, Opened at, Actual drop, (Pass, Fail) CP-7.10.2.12 I 0) New Materials and Repairs Made, Check #I, Check #2 CP-7.10.2.13 11) Test after repair, Check# l (Tight), Check #2 (Tight), Apparent drop, Open at, Actual drop, Pass WSD 10.2.14 Web form will require user login that will be previously established by the City. Test result submission access will require vendor to have valid certificate and test equipment. WSD 10.2.15 Testers will have the ability to update their profile including test equipment and certificates. Any update to tester profile will require City approval. WSD 10.2.16 Testers and City staff will be notified when tester certificates are about to expire. CP-7.10.3.1 To enter test results manually system form should contain the following fields (Same fields as the above web form, and data should be stored in the same table in the db) I) Date Tested CP-7. 10.3.2 2) A WWA/ABPA cert # CP-7.10.3.3 3) Firm Name Gauge # CP-7.10.3.4 4) Tester Name CP-7.10.3.5 5) Telephone# CP-7.10.3.6 6) PSI CP-7.I0.3.7 7) Line Valve#) (Replaced) CP-7.10.3.8 8) Line Valve#2 (Tight, Leaked, Replaced) CP-7.10.3.9 9) Reduce Pressure Principle Assembly, Double check valve assembly, Test before repair Check # I (Tight, Leaked), Check #2 (Tight, Leaked) Apparent Drop, Opened at, Actual drop, (Pass, Fail) CP-7.10.3. IO I 0) New Materials and Repairs Made, Check #I, Check #2 spatial applications: GIS/CAD/mapping services : database design : application development : web design : hosting Page 22 of 41 wsd Wcbsoft Developers, Inc. 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · rax: 530.759.0923 Reference Criteria CP-7.10.3.11 11) Test after repair, Check # I (Tight), Check #2 (Tight). Apparent drop, Open at, Actual drop, Pass 7.1 I. I. I System generates list of unprotected sites, when site gets a back tlow device they come off the list. 7.11.3.1 After the site is inspected a survey form is filled out and data is entered into db, the following fields are needed. I) Account # 7.11.3.2 2) Contact 7.11.3.3 3) Phone # 7.11.3.4 4) Site Address 7.11.3.5 5) Survey Date 7.11.3.6 6) Inspector 7.11.3.7 7) Re-Survey Date 7.11.3.8 8) Business type 7.11.3.9 9) check boxes for the following: CC Sink, CC Drain, Dental Equipment, Faucet Hose Adapters, Hazardous Substances, Holding Tanks, Hose Bibs, Hot Water Heaters, Irrigation System, Low Inlets, Pumps, Soda Dispensers, Solar Panels, Swamp Cooler, Toilet Tank, Water Cooled AC, Well, X-Ray Equipment 7.11.3.10 I 0) Hazard info field 7.11.3.11 11) Recommendations 7.11.4.1 If the inspection reveals that the site needs a backtlow device a letter is generated from the system using the following fields. I) Account# 7.11.4.2 2) Cross Connection Control Technician Name 7.11.4.3 3) Site address 7.11.4.4 4) Mailing address 7.11.4.5 Send Install Letter-Install Repair notice menu 7.11.6.1 Same as 7.10.2.3 process WSDI GIS Integration WSDI.I Provide platform to view City GIS layers with ability to customize theme WSDl.2 Each user to customize layers that are displayed WSDl .3 Geocode locations and devices and display on map as themed layer WSDl.4 Provide automated method to update GIS layers by uploading files to Websoft servers WSD2 Mobile platform WSD2.I Provide internet-connected browser-based interface for use on tablet, laptop, or desktop device WSD2.2 Provide disconnected app for Android and !OS devices that does not contain mapping information. Will automatically synchronize when connected to the internet. spatial applications : GIS/CAD/mapping services : database design : application development: web design : hosting Page 23 of 41 wsd W,bsoO Dm lop,r.;, '"' 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · f'ax: 530.759.0923 3.4. Recycled Water Detailed Requirements Reference Criteria R-7.12.1.1 Ability to search database by site type and date to create schedule for shutdown test on already existing sites R-7.12.2.1 New sites need to be added to database with the fo llowing fields- 1) Use Site R-7.12.2.2 2) Address R-7.12.2.3 3) Location R-7.12.2.4 4) Drawing # R-7.1 2.2.5 5) RW # (provided by County) R-7.12.2.6 6) Site # (generate by CC, have a button in current db that show the large #, and crew then selects the next #) R-7.12.2.7 7) Use Site Type R-7.12.2.8 8) Acreage R-7.12.2.9 9) Quadrant R-7.12.2.10 I 0) Potable Meters R-7.12.2.11 11) Recycled Meters R-7.12.2.12 12) Walk Thru Interval R-7.12.2.13 13) Zone R-7.12.2.14 14) Shutdown Method R-7.12.2.15 15) 4 year Shutdown ( check box) R-7.12.2.16 16) Annual Shutdown (check box) R-7.12.2.17 17) Description R-7.12.2.18 18) Comment R-7.12.2.19 19) Site Supervisor R-7.12.2.20 20) Title R-7.12.2.21 21) Company R-7.12.2.22 22) Mailing Address R-7.12.2.23 23) City R-7.12.2.24 24) State R-7.12.2.25 25) Zip R-7.12.2.26 26) Site Supervisor Attendance Date R-7.12.2.27 27) SS Cert # R-7.1 2.2.28 28) Work Phone spatial applications : GIS/CAD/mapping services: database design : application development : web design: hosting Page 24 of 41 wsd Websofi Dm lopm, Joe. 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · Fax: 530.759.0923 Reference Criteria R-7.12.2.29 29) Cell Phone R-7.12.2.30 30) Fax R-7.12.2.31 31) Email R-7.12.2.32 32) Date SS Info Ree's R-7.12.2.33 33) Comments R-7.12.3.1 Record shutdown test results in database with the follow fields: !)Use Site R-7.12.3.2 2) Address R-7.12.3.3 3) Inspection Date R-7.12.3.4 4) CMWD Inspector R-7.12.3.5 5) DEH Inspector R-7.12.3.6 6) Other Inspector R-7.12.3.7 7) Other Inspector 2 R-7.12.3.8 8) Walk Through (Check box) R-7.12.3.9 9) 4 Yr Shutdown (Check box) R-7.12.3.10 10) RC TDS R-7.12.3.11 11) Potable TDS R-7.12.3.12 12) Acreage R-7.12.3.13 13) Shutdown Units R-7.12.3.14 14) Shutdown Test Failed (Check box) R-7.12.3.15 15) Failure Detail R-7.12.3.16 16) Site Repair Needed R-7.12.3.17 17) Repair completed date R-7.12.3.18 18) Description of area R-7.12.3.19 19) Separations (Check box) R-7.12.3.20 20) Sprinklers Marked (Check box) R-7.12.3.21 21) Valve Boxes (Check box) R-7.12.3.22 22) Tags (Check box) R-7.12.3.23 23) Signs (Check box) R-7.12.3.24 24) RC RP (Check box) R-7.12.3.25 25) Comments R-7.12.3.26 Inspection Detail form with the fo llowing fields: I) Inspection Date R-7.12.3.27 2) Inspection Type R-7.12.3.28 3) Protocol spatial applications: GIS/CAD/mapping services: database design : application development: web design : hosting Page 25 of 41 wsd Woboo• Dmlop,~. Io, 2020 Research Park Driv~, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · Fax: 530.759.0923 I Reference Criteria R-7.12.3.29 4) Separations (Check box) R-7.12.3.30 5) Sprinklers Marked (Check box) R-7.12.3.31 6) Valve Boxes (Check box) R-7.12.3.32 7) Tags (Check box) R-7.12.3.33 8) Signs (Check box) R-7.12.3.34 9) RC RP (Check box) R-7.12.3.35 IO Data Logger Fields with a name field and a notes field R-7.1 2.3.36 Reinspect Form with the following fields: I) Reinspect date R-7.12.3.37 2) Reinspect time R-7.1 2.3.38 3) Reinspect detail R-7.12.3.39 4) Reinspect date 2 R-7.12.3.40 5) Reinspect time 2 R-7.12.3.41 6) Reinspect detail 2 R-7. 12.3.42 7) Reinspect date 3 R-7.12.3.43 8) Reinspect time 3 R-7.12.3.44 9) Reinspect detail 3 R-7.12.4.1 System prints letter for owner/customer to make repairs R-7.12.5.1 Fill out fields beginning 7.12.3.26 R-7.12.6.1 System pulls data for DEH report spatial applications: GIS/CAD/mapping services : database design : application development : web design : hosting Page 26 of 41 wsd Websoft Developers. Inc. 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · Fax. 530.759.0923 SCHE DULEB-PRODUCTSUPPORT During the Term of this Agreement and for so long as Customer is entitled to receive the Service hereunder, Vendor shall provide the following Product Support Services through its Supp01t Centers ("SC") for the Service infrastructure and Vendor Software as follows a. The SC will be the primary point of contact for all product support inquiries. The SC may be contacted via email at _____ @_.com. b. The SC will receive, log, and respond to inquiries from the Customer concerning errors or defects in the Vendor Software that cause the Vendor Software to deviate from the applicable Saas Materials. c. The SC is and will be staffed with qualified product support engineers who have experience with the Vendor Software and SaaS Materials and are familiar with the environments in which they operate. The SC will endeavor to provide timely and accurate answers to the Customer's inquiries through Vendor's Product Support team. The SC shall endeavor to rectify Vendor Software errors that impact Customer's use and operation of the Vendor Software as set forth below. However, Vendor does not warrant that the Vendor Software will be error free, will work in combination with third party software not provided by Vendor, or will perform in an uninterrupted manner. d. For as long as the Agreement remains in effect, Customer shall have unlimited telephone, e-mail, Website forum, and, where applicable, remote access support for the Vendor Software during the hours of operation of the SC. Excluding legal holidays in the respective geography, telephone support shall be available Monday through Friday. Telephone and electronic mail support for both Product and Infrastructure inquiries will be during normal business hours as 8:00 an1 to 5:00 pm PST: e. Support inquiries, whether initiated by electronic mail, telephone, or otherwise, will be recorded by Vendor in the SC call-tracking system. All inquiries will be assigned a tracking number that will be used to communicate with the Customer and to track the progress of a specific support call or inquiry. f. Product Support inquiries shall be limited to Level 3 support. As used herein below, the following definitions apply: Support Level Description Level I support includes the following activities: receipt, logging, tracking and managi ng support requests from end users; initial assessment of issues; escalation to Level 2 issues requiring application and business expertise. Provided by Customer spatial applications : GIS/CAD/mapping services: database design : application development: web design : hosting Page 27 of 41 wsd Wobsofi D"clop,~. '"' 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · Fax: 530.759.0923 Support Level Description Level 2 support includes the following activities: receipt of issues escalated from Level I; replication of issues; troubleshooting and diagnosis of issues; resolving issues; and escalation to Level 3 issues requiring development expertise. Level 2 will also include the receipt, logging, tracking and managing support requests. Provided by Vendor as part of Application Support Coverage, further described in Schedule C t Application Support handles Level 2 questions, typically those required in- depth knowledge of the support applications. ----Level3 Level 3 support includes the following activities: receipt of and the diagnosis of complex issues escalated from Level 2. Level 3 issues are those that require developer level expertise or product questions that are not answered in the product documentation. Level 3 support is provided by the Product Support Team working in Ltandem with the Application Support Team. Vendor g. The Customer and the SC contact will work together to assign a priority level when the support inquiry is initiated in accordance with the Priority Level descriptions herein. The Priority Level describes the impact that the problem is having on the Customer's ability to effectively use the Vendor Software. The Priority Level initially assigned can be modified if circumstances warrant it and the appropriate representatives of the Customer and Vendor agree. In this instance, Vendor will agree to a target time-scale with the Customer for recovery of Services, although it may take longer to effectuate a resolution. As used herein below, the following definitions apply: Response Time is the average time within which Vendor will take to first respond to a support inquiry. Service Restoration is defined as the period ohime until service is restored to a usable state. The service may not be restored to 100% of its original functionality or capacity but is restored to a sufficient state to reasonably continue business operations via corrective action or development of a workaround. A workaround is defined as a nonstandard method for performing a given operation which produces the same result that would be achievable if the portion of the Software affected by the problem were functioning according to the Documentation. h. Priority Levels and SC average response times are as follows: spatial applications: GIS/CAD/mapping services: database design : application development : web design : hosting Page 28 of 41 wsd Websoft Developers, Inc. 2020 Research Park Drive, Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · Fax: 530. 759.0923 Priority Customer Impact and Response Level t- Major Minor Cosmetic A major application or system is unavailable; or a complete business unit is non- operational; or part of a business unit is non-operational in a critical business period; or there is a single failure in an element critical to the overall business and no problem by-pass is available. Critical items shall be worked on continuously during regular business hours until a resolution is achieved and will take priority over all other issues. The SC will provide a status update every four (4) hours for Critical issues or more frequently if requested by customer. Part of a major application or system is unavailable; part of a business unit is non- operational and no problem by-pass is available. Items assigned a priority level of "Major" will be worked on in order of priority as mutually agreed upon by Licensee and Vendor support personnel. Major items take priority over Minor items and shall be worked on continuously during regular business hours until a resolution is achieved. The SC will provide a status update daily for Major issues or more frequently if requested by customer. A problem has occurred which would normally be categorized as Critical or Major, but a problem by-pass is available. Inconvenience is increased, but functionality is not highly affected and workaround is an acceptable alternative. Minor items will be worked on after Critical and Major items have been resolved and based on priority as mutually agreed upon by Vendor and Licensee support personnel. The SC will provide a status update weekly for Minor issues or more frequently if requested by Customer. A minor application, hardware component, system or service problem which does not have a serious business impact. This also includes a user perceived problem which does not require an immediate response and may be dealt with by a routine upgrade or maintenance release. Such workarounds and patches may be held in abeyance pending a combined release. Response Time (% of time) 2 hours (99%) 4 hours (95%) 4 hours (95%) All times specified may be impacted by availability of Customer internal support, if required, to assist in investigation or resolution. Although Vendor will endeavor to provide a resolution for all errors within the times indicated above, Vendor does not guarantee that all errors will be resolved within these times or that a Resolution will be provided at all. Vendor shall have the right to modify the foregoing support policies as agreed by Vendor and Customer, provided ( l) Vendor provides Customer with at least thirty (30) days written notice of such changes, and (ii) such changes do not materially diminish Vendor's overall technical support obligations to Customer as set forth herein i. The following services are excluded from the Product Support Services: • Support for software not listed in Schedule A spatial applications: GIS/CAD/mapping services: database design: application development: web design : hosting Page 29 of 41 wsd Websoft Developers, Inc. 2020 Research Park Drive. Suite 140 · Davis, CA 95618 · Tel: 530.759.8754 · Fax: 530.759.0923 • End user training • Level 1 Product Support spatial applications : GIS/CAD/mapping services : database design : application development : web design : hosting Page 30 of 41 wsd Websoft Developers. Inc. 2020 Research Park Drive. Suite 140 ·Davis.CA 95618 · Tel: 530.759.8754 · Fax· 530.759 0923 SCHEDULE C -APPLICATION MAINTENANCE AND SUPPORT 1. SUPPORTED SOFTWARE The Support Services includes application support for the solution comprised of the following Software: Software Software defined in Schedule A Third party software integrated with the Software 2. APPLICATION SUPPORT SCOPE Application support activities are defined as the activities required to support and maintain a solution which are excluded from the scope of standard product support (Schedule 8). The Application Support scope consists of the following activities. Other related activities may be considered in scope as agreed in writing by Vendor and Customer. Single Point of Contact • Serve as single point of contact for application and infrastructure issues • Receive, log, escalate and respond to inquiries from the Customer concerning infrastructure availability or connectivity concerns. • Forward infrastructure issues to Vendor IT Infrastructure Support Services team on behalf of Customer. System Enhancements • Modifications to existing customizations • New customizations/extensions • Modifications to current configurations • New Customer specific configurations Issue Triage • Field support questions on Customer-specific configurations and customizations. • Serve as single point of contact for Third Party software support issues. • Interface with Vendor support groups for technology issues which must be researched through the vendor support team. • Interface with Product Support and Product Team. • Interface with Customer IT organizations and network issues • Level 2 Application Support spatial applications: GIS/CAD/mapping services: database design: application development: web design : hosting Page 31 of 41 wsd W,bsoft De-clopm. I"'· 2020 Research Park Driv~. Suite 140 · Davis, CA 95618 · Tel: 530 759.8754 · rax: SJ0.759.0923 System Maintenance • Defect correction for Customer specific configuration and customization errors (Including Critical and non-Critical issues) • Apply software patches and minor releases as required with appropriate documentation. • Engage Vendor Hosting Center professional staff when required to support application support activities in the scope of this agreement. • Report on license compliance for Software defined in Schedule A, and notify client if license restrictions are exceeded. System Administration • Support of tools and utilities. • Perform system administration functions such as security, user/group administration, and dictionary maintenance. • Developers to support ongoing Customer based technical modifications and enhancements. • Support of data migration activities. Customer Specific Scope Items • Provide Level 2 support for third party tools integrated with Customer's system such as publishing tools in use by Customer. Customer agrees to ensure that the third party vendors will provide Level 3 support to the Vendor support team and to ensure that Vendor resources are provided sufficient training on the third party tools to provide effective Level 2 support. spatial applications: GIS/CAD/mapping services: database design ; application development: web design: hosting Page 32 of 41 wsd Webroft Dmlopc,s. '"' 2020 Research Park Drive, Suite 140 ·Davis.CA 95618 · Tel 530.759.8754 · Fax: 530.759.0923 3. APPLICATION SUPPORT SERVICE DESCRIPTION The application support service consists of a pool of hours offered in minimum and maximum hours per month to be utilized by Customer. The Application Support Services selected by Customer are defined in Section 15, Application Support Services Parameters, of this Schedule C. Vendor and the Customer can use the pool of hours to perform any of the activities described in Section 4, as long as the effort of those activities fit within the allocated pool of hours. Changes to the system are documented in a Change Control Request which will provide estimates, risks etc. and must be agreed to by a designated Customer approver and managed through an agreed change management process (including roll-out). Vendor will provide the maintenance pool hours selected in Section 15 of this Schedule C for Customer to provide application support to the systems defined in Section 1 -Supported Software. Customer may change the maintenance pool hours on a quarterly basis as agreed with Vendor unless otherwise agreed by Vendor and Customer. Vendor requires 30 days advance notice to change the Application Support service maintenance pool hours. Up to 90 days advance notice may be required to increase the level of the Application Support Service, depending on Vendor's resource availability. If Customer desires a change in the Application Support Service, the parties will define any changes in the form of an amendment hereto. 4. SUPPORT FEES The Application Support fees for the Support Period are included in the SaaS payment schedule. The application support levels may be adjusted on a quarterly basis to a level that reflects the estimated support requirements for the period. It is accepted by both parties that there will be a requirement for greater support in the pre and post go-live phases. This requirement will be reflected in the estimated support hours in Table 6 -Customer Application Support Services. If more than the maximum hours per month of application support are required on short notice, additional support is available on a time and materials basis. Application Support service hours required in excess of those currently selected by Customer shall not be performed by Vendor and therefore costs will not be incurred without Customer approval. Additional application support time will be allocated via approval of an amendment hereto by Customer and Vendor. Any travel and living expenses associated with the delivery of the Services will be invoiced separately at cost. Vendor Support Team Members will only travel to Customer facilities if requested by Customer in writing. spatial applications : GiS/CAD/mapping services : database design : application development : web design : hosting Page 33 of 41 WS d WcbsoO De-elope". Joe. 2020 Research Park Drive. Suite 140 · Davis. CA 956 I 8 · Tel: 530 759.8754 · rax: 530 759.0923 5. RENEWAL OF SERVICES Renewal of services applies to additional support services above the minimum level specified in section 16 Application Support Services of this Schedule C. After the initial Support Period, application support services may be renewed by Customer on an annual basis; provided that, (i) Customer pays to Vendor the then-current Support Fees charged by Vendor to its clients for the applicable renewal period on or before thirty (30) days prior to the expiration of the current annual Support Period; and (ii) Vendor shall not be obligated to provide support services after the Initial Term, unless otherwise mutually agreed in writing by the parties. Prior to the commencement of each annual renewal period, Vendor shall be entitled to increase Support Fees to the then-current Support Fees charged by Vendor to its clients for Application Support and shall provide Customer with written notice of such fee increase (which written notice may be in the form of an invoice from Vendor for support services for the renewal period). 6. SUPPORT SERVICES AV AJLABILITY Application Support services availability shall be identical to the Product Support service availability defined in Schedule A. 7. OTHER TERMS The terms and conditions defined in the current effective Master Services Agreement between Customer and Vendor shall apply to this Schedule C. 8. SUPPORT PROCESS Vendor and Customer will follow the following process when handling application support issues Customer will contact the Vendor support team via email or telephone hotline. Customer will provide all relevant information regarding the problem, circ umstances leading to the problem, confirmation of Customer's configuration details, and results of any investigations made, including any attempts to reproduce the problem. Vendor will log the call in the Vendor Call Management System, assign a Support Call Reference number, and pass this infomrntion to Customer staff for future reference. Vendor will apply the priorities defined in the Priority Level Table in Schedule B, Section h to Application Support Service issues. If the issue is a Problem Report or System Question Vendor staff will assign a severity to the repo11ed problem and identify the next action(s) to be taken. Vendor staff will troubleshoot and identify the most effective resolution to the issue or if needed escalate the call to the technical specialist. spatial applications: GIS/CAD/mapping services : database design : application development : web design : hosting Page 34 of 41 wsd Websoft Dewlope~. '"' 2020 Research Park Drive. Suite 140 ·Davis.CA 95618 · Tel: 530.759 8754 · Fax: 530 759.0923 Vendor staff will monitor the support request until it is resolved or it is agreed with the Customer staff that no further action can be taken. If the issue is a request to modify a Customer system (Change Request) Vendor staff will initiate the Change Control process The effort to implement the request will be estimated and accommodated in accordance with the change control process agreed by Vendor and Customer. Vendor staff and Customer will agree on an implementation schedule If access to Customer systems is only available via a Customer supplied laptop or other hardware Vendor may only be able to work on a single issue at a time if access to the Customer system is required to resolve the issues. 9. METHODOLOGY Any system enhancements or configuration changes work will follow the methodology defined in Vendor's Quality Management System. 10. SYSTEM CHANGE CONTROL PROCESS Vendor and Customer shall follow Vendor's change control process. 11. REPORTING Four reports will be sent to Customer via electronic mail each month -A Summary Report of all issues; an Open Issue Detail report of open issues; a Service Level Agreement Report of all service level agreement issues; and a Monthly Support Usage report. Descriptions of the Vendor issue reports are listed in Table I -Vendor Application Support Issue Reports. Table 2 -Vendor Application Support Issue Reports Report Description Summary Report Open Issue Detail Report Service Level Agreement Report Monthly Support Usage A summary report of all Application Support issues A detail report of all non-closed Application Support issues including assigned severity level and time taken to close out issue A detail report of all Service Level Agreement incidences including assigned ~ severity level and time taken to close out issue Details on monthly usage of support hours listed by support issue 12. CUSTOMER RESPONSIBILITIES Customer will designate a System Contact (Customer System Contact). spatial applications : GIS/CAD/mapping services: database design : application development : web design : hosting Page 35 of 41 wsd Wcbsoft Dmlop<<s loo 2020 Rtstarch Park Drive, Suite 140 · Oa\·is, CA 9:5618 • Tel: 530 759.8754 · Fax 530.759.0923 The Customer System Contact will be responsible for managing Customer resources required to fulfill Application Support team requests. The Customer System Contact will serve as Vendor's point of contact for all Application Support Issues. The Customer System Contact will be trained on and will be familiar with the Customer's System as detailed in Schedule A. The Customer System Contact will meet with the Vendor Regional Support Manager (or his designee) on a monthly or other mutually agreed upon schedule. The Customer System Contact will manage and set priorities on all Customer issues including Change Requests. The Customer System Contact will escalate Application Support issues to C ustomer management when required. The Customer System Contact will request and obtain approval on any amendment to this Schedule C for additional Application Support services prior to performing additional services, if desired by Customer. The Customer will provide a steering committee governance body which will meet on an agreed upon schedule to monitor program performance and serve as an escalation mechanism to mitigate risk. 13. ESCALATION PATH 13 .1. Vendor Escalation Path The following path is defined for issues requmng escalation within Vendor's management structure: 2nd Level i Vendor Global Support Manager j Involved with the daily support activities. Liaise with support team members and progress problem resolution. Accelerate escalation procedure if required. Main Escalation contact after Regional Support Manager has been contacted. May allocate additional resources and may agree to on- site assistance if required. 13.2. Customer Management Escalation Path Customer will designate a System Manager and Program Manager. The following path is defined for issues requiring escalation within the Customer management structure: spatial applications : GIS/CAD/mapping services : database design: application development : web design : hosting Page 36 of 41 wsd W,bsoft o,.,,,,,~. '"' 2020 Research Park Drive. Suite 140 ·Davis.CA 95618 · Tel. 530 759.8754 • Fax 530.759.0923 Priority Notified Party Responsibilities I t" Level 2nd Level l / System Manager r Program Manage, 1 Involved with the daily support activities. Liaise with support team members and progress problem resolution. Accelerate escalation procedure if required. Main Escalation contact after Regional Support Manager has been contacted. I May allocate additional resources and may agree to on-1 site assistance if required. 14. APPLICATION SUPPORT SERVICE MODELS Application Support Service Description Maintenance Pool-40 Maintenance Pool-60 ~ Maintenance Pool-80 Maintenance Pool-160 System Replication Replicated System Installation Hosting Support Additional Time Zone 24x7 Emergency Support 40 Hrs/Mo of Application Support Services 60 Hrs/Mo of Application Support Services 80 Hrs/Mo of Application Support Services --+--- 160 Hrs/Mo of Application Support Services Vendor Hosted system for support issue triage. Hosted outside of -t{;~t:~,::\:: ::::e e;;i;:;1::n<:f customer system --=------< j covers single point of contact (POC), & Vendor Software { maintenance, (including patch and maintenance release installation). Does not cover enhancements or configuration change requests. Additional Timezone support. One Timezone is included in base ees. Item covers support coverage in additional timezones. 4x7 critical issue coverage Table 4 -Application Support Services NOTE: Table 4 -Application Support Services is a list of available Application Support Services. See the payment schedule for a list of services selected by Customer. 15. APPLICATION SUPPORT HOURS The hours available for each Application Support Maintenance Pool are listed below. App Support Service Maintenance Pool-40 A\'erage Hrs/Mo 40 Average Total Hrs/Quarter Hrs/Yr 120 Minimum Hours/ Month 24 Maximum Hours/ Month spatial applications: GIS/CAD/mapping services : database design : application development : web design : hosting Page 37 of 41 wsd Websofi Do,dopm. '"' 2020 Research Park Drive. Suitt 141) · Davis, CA 95618 · Tel. 530 759.8754 · Fax. 530 759 0923 App Support Scn•icc . • • • • I Maintenance Pool-80 Maintenance Pool-160 Average Hrs/Mo Ta.hie 5 -Application Support Hours Average Total Hrs/Quarter Hrs/Yr 180 720 --~---~ 240 60 480 920 240 480 Minimum Hours/ Month Maximum Hours/ Month 112 208 Monthly usage of Application support hours shall not exceed the specified Maximum Hours/Month for the selected Application Support Service unless agreed upon by Vendor and Customer. The number of hours deducted from the Application Support Maintenance Pool shall not be less than the Minimum Hours/Month for the specified Application Support service regardless of actual usage. 16. APPLICATION SUPPORT SERVICES Customer has selected the Application Support Services specified in Table 2 -Customer Application Support Services. Customer has elected to have a Replicated System as defined in Section 3, Application Support Services. The Support Period shall be the Initial Term of this Agreement. The minimum support services provided will be Maintenance Pool-160 (Average of I 60 hrs per month) Customer's minimum application support services are set forth below in Table 6 -Customer Application Support Services The Period Start Date and Period End Date val ues will be defined in a no-cost amendment to this Agreement no later than the start of Service Year I . Support Period Quarter 1 Support Service MP-160 Qty Contracted Period Start j Hrs Per Date Month Production I Environment is Production Ready, as defined in Section 20.3 Period End Date . . . . . . ' spatial applications : GIS/CAD/mapping services: database design : application development: web design : hosting Page 38 of 41 wsd Wobsoft Dmlopor.;, lac 2020 Research Park Drive. Suite 140 · Davis, CA 95618 · Tel. 530.759.8754 · Fax: 530.759.092.3 Support Suppot1 Service Qty Contracted Period Start Period End Period Hrs Per Date Date Quarter Month . . ' : ' • First day of next Completion of90 90 days of days of agreement I agreement --- Service Year I -MP-160 2 320 Q2 First day of next Completion of 90 90 days of days of agreement agreement Service Year I -MP-80 (HP-J)( I] 80 Q2 First day of next Completion of 90 90 days of days of agreement agreement Service Year I -MP-160 1.5 240 Q3 First day of next Completion of 90 90 days of days of agreement agreement ----- Service Year I -MP-40 (HP-J)[I) 40 Q3 First day of next Completion of90 ~ Service Year I - 90 days of days of agreement agreement ----- MP-160 160 Q4 First day of next Complofoo of90 I Sen,ke Yea, I --I M P-40 (HP-J)[ I] ti-90 days of days of agreement agreement 40 Q4 I First day of next Compler;oo of90 I ~ NI A 90 days of days of agreement agreement Service Year I 24x7 Emergency Coverage Q l-Q4 l F;r.;1 day ofooxt Completion of90 90 days of t ays of agreement agreement Table 6 - Customer Application Support Services spatial applications: GIS/CAD/mapping services : database design : application development: web design : hosting Page 39 of 41 wsd W,bsofi Dmlop<~. '"'· 2020 Research Park Drive. Suite 140 · Davis, CA 95618 · Tel. 530.759.8754 · Fax: 530 7590923 SCHEDULE D -INFRASTRUCTURE Vendor and Customer have agreed on the following services and architecture: spatial applications : GIS/CAD/mapping services : database design : application development : web design : hosting Page 40 of 41 wsd Websoft Developers. Inc. 2020 Research Park Drive, Suite 140 ·Davis.CA 95618 · Tel: 530.759.8754 · Fax: 530.759.0923 SCHEDULE E-LICENSING AND IMPLEMENTATION COSTS Vendor will charge Customer an annual licensing fee of $19,500 for use of the software as described in Schedule A. In addition, Vendor will charge Customer a one-time fee of$19,500 to implement the features described in Schedule A. The effectiveness of this Agreement shall commence on the Effective Date. Unless renewed in writing and pursuant to the renewal provisions of this Agreement, this Agreement will expire three (3) years from the Effective Date (Contract End Date). Recurring yearly fees, if any, will be billed annually with one (I) initial payment. The initial implementation fee will be billed upon project initiation. spatial applications : GIS/CAD/mapping services : database de~ign : application development : web design : hosting Page 41 cf 41 WEBSDEV-01 FRANCISCON ACORD' CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 9/26/2018 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 BYTHEPOLICIES 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). PRODUCER License # OE67768 ij2~!~cT Gigi Yuen IOA Insurance Services tlJ8,Nr;o, Ext): (925) 660-3514 50008 I FAX 3875 Hopyard Road (AIC, No):(925) 416-7869 Suite 200 i~DAJ~ss· Gigi.Yuen@ioausa.com Pleasanton, CA 94588 INSURERISl AFFORDING COVERAGE NAIC# INSURER A: Travelers Property Casualty Company of America 25674 INSURED INSURER e: Travelers Indemnity Company of Connecticut 25682 Websoft Developers, Inc. INSURERC: 2020 Research Park Drive, Suite 140 INSURER D: Davis, CA 95618 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER· REVISION NUMBER· 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. INSR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER ,!,~~ICY EFF POLICY EXP LIMITS LTI> •••en >An,n 1nnNVYV1 A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 ~ □ CLAIMS-MADE 0 OCCUR DAMAGE TO RENTED 300,000 ZLP1 OT27035 07/01/2018 07/01/2019 PREMISES IEa occurrence\ $ ~ MED EXP (Anv one person) $ 10,000 PERSONAL & ADV INJURY ~ $ 1,000,000 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ ~ POLICY □ m§l-f □LOG PRODUCTS -COMP/OP AGG $ 2,000,000 OTHER: $ B AUTOMOBILE LIABILITY ~ COMBINED SINGLE LIMIT (Ea accident\ $ 1,000,000 ANY AUTO BA7K789184 07/01/2018 07/01/2019 BODILY INJURY (Per person) $ ~ OWNED ~ SCHEDULED AUTOS ONLY ~ AUTOS BODILY INJURY (Per accident) $ X HIRED X ~8ra~"m1.~ Fp';,9~fc~d1;,~t?AMAGE $ AUTOS ONLY ~ $ A X UMBRELLA LIAB ~ OCCUR EACH OCCURRENCE $ 1,000,000 EXCESS LIAB CLAIMS-MADE CUP7K80586A 07/01/2018 07/01/2019 AGGREGATE $ 1,000,000 OED I I RETENTION$ $ A WORKERS COMPENSATION XI ~?fruTE I I OTH-AND EMPLOYERS' LIABILITY ER YIN UB6K578371 07/01/2018 07/01/2019 1,000,000 ANY PROPRIETOR/PARTNER/EXECUTIVE [HJ E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA 1,000,000 (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ 1,000,000 A Professional Liab. ZPL14501461 07/01/2018 07/01/2019 Per Claim 2,000,000 A Professional Liab. ZPL 14501461 07/01/2018 07/01/2019 Aggregate 2,000,000 DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) All Operations of the Named Insured. General Liability: Please see Additional Insured Endorsement attached; such coverage is Primary & Non-Contributory basis with Waiver of Subrogation included, as required by written contract. Umbrella policy is follows form over General Liability, Auto Liability, and Employers Liability (Workers Comp). Workers' Compensation: Please see Waiver of Subrogation Endorsement attached. Waiver of Subrogation is in favor of the aforementioned Additional Insured, as required by written contract. GENERAL LIABILITY ADDITIONAL INSURED INCLUDES THE FOLLOWING PERSON(S) OR ORGANIZATION(S): SEE A TT ACHED ACORD 101 CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Carlsbad Municipal Water District c/o City of Carlsbad AUTHORIZED REPRESENTATIVE 1635 Faraday Avenue ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights rese, The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: WEBSDEV-01 FRANCISCON ------------------- LO C #: 1 -------- ADDITIONAL REMARKS SCHEDULE AGENCY License # 0E67768 IOA Insurance Services POLICY NUMBER SEE PAGE 1 CARRIER I, NAICCODE SEE PAGE 1 SEEP 1 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 25 FORM TITLE: Certificate of Liability Insurance Description of Operations/LocationsNehicles: NAMED INSURED Websoft Develo~ers, Inc. 2020 Research ark Drive, Suite 140 Davis, CA 95618 EFFECTIVE DATE: SEE PAGE 1 Page 1 of 1 Carlsbad Municipal Water District, Carlsbad Housing Authority, City of Carlsbad, its elected or appointed officers, officials, and employees, and/or as required per written contract ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD " Websoft Developers, Inc. COMMERCIAL GENERAL LIABILITY Policy Number: ZLP1 0T27035 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TECHNOLOGY XTEND ENDORSEMENT This endorsement modifies insurance provided under the fol lowing: COMMERCIAL GENERAL LIABILITY COVERAGE PART GENERAL DESCRIPTION OF COVERAGE -This endorsement broadens coverage. However, cover- age for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to this Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general coverage description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this endorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered. A. Reasonable Force Property Damage - Exception To Expected Or Intended In- jury Exclusion B. Non-Owned Watercraft Less Than 75 Feet C. Aircraft Chartered With Pilot D. Damage To Premises Rented To You E. F. G. H. I. Increased Supplementary Payments Who Is An Insured -Employees And Volunteer Workers -First Aid Who Is An Insured -Employees -Su- pervisory Positions Who Is An Insured -Newly Acquired Or Formed Organizations Blanket Additional Insured -Owners, Managers Or Lessors Of Premises PROVISIONS A. REASONABLE FORCE PROPERTY DAMAGE - EXCEPTION TO EXPECTED OR INTENDED INJURY EXCLUSION The following replaces Exclusion a., Ex- pected Or Intended Injury, in Paragraph 2., of SECTION I -COVERAGES -COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY: a. Expected Or Intended Injury Or Damage "Bodily injury" or "property dam- J. Blanket Additional Insured -Lessors Of Leased Equipment K. Blanket Additional Insured -Persons Or Organizations For Your Ongoing Opera- tions As Required By Written Contract Or Agreement L. Blanket Additional Insured -Broad Form Vendors M. Who Is An Insured -Unnamed Subsidi- aries N. 0. P. Q. R. Who Is An Insured -Liability For Con- duct Of Unnamed Partnerships Or Joint Ventures Medical Payments -Increased limits Contractual Liability -Railroads Knowledge And Notice Of Occurrence Or Offense Unintentional Omission S. Blanket Waiver Of Subrogation age" expected or intended from the standpoint of the insured. This exclu- sion does not apply to "bodily injury" or "property damage" resulting from the use of reasonable force to protect any person or property. B. NON-OWNED WATERCRAFT LESS THAN 75 FEET The following replaces Paragraph (2) of Exclusion g., Aircraft, Auto Or Watercraft, in Paragraph 2. of SECTION I -COVERAGES - COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY: CG D4 17 01 12 © 20 1 2 The Travelers Indemnity Company. All rights reserved. Page 1 of 6 Includes copyrighted material of Insurance Services Office, Inc. with its permission. (2) A watercraft you do not own that is: (a) Less than 75 feet long; and (b) Not being used to carry any per- son or property for a charge. C. AIRCRAFT CHARTERED WITH PILOT The following is added to Exclusion g., Aircraft, Auto Or Watercraft in Paragraph 2. of SECTION I COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY: This exclusion does not apply to an aircraft that is: (a) Chartered with a pilot to any in- sured; (b) Not owned by any insured; and (c) Not being used to carry any person or property for a charge. D. DAMAGE TO PREMISES RENTED TO YOU 1. The first paragraph of the excep- tions in Exclusion j., Damage To Property, in Paragraph 2. of SECTION I -COVERAGES -COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY is deleted. 2. The following replaces the last paragraph of Paragraph 2., Exclu- sions, of SECTION I -COVERAGES - COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY: Exe I us ions c., g. and h., and Para- graphs (1), (3) and (4) of Exclusion j., do not apply to "premises damage". Exclusion f.(1)(a) does not apply to "premises damage" caused by fire unless Exclusion f. of Section I - Coverage A -Bodily Injury And Property Damage Liability is re- placed by another endorsement to this Coverage Part that has Exclu- sion -All Pollution Injury Or Dam- age or Total Pollution Exclusion in its title. A separate limit of insur- ance applies to "premises damage" as described in Paragraph 6. of Sec- tion Ill -Limits Of Insurance. 3. The following replaces Paragraph 6. of SECTION Ill LIMITS OF INSURANCE: 6. Subject to 5. above, the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages because of "premises damage" to any one premises. The Damage To Premises Rented To You Limit will be: a. The amount shown for the Damage To Premises Rented To You Limit on the Declarations of this Coverage Part; or b. $300,000 if no amount is shown for the Damage To Premises Rented To You Limit on the Declarations of this Coverage Part. 4. The fol lowing replaces Paragraph a. of the definition of "insured contract" in the DEFINITIONS Section: a. A contract for a lease of premises. However, that portion of the con- tract for a lease of premises that indemnifies any person or organiza- tion for "premises damage" is not an "insured contract"; 5. The fol lowing is added to the DEFINITIONS Section: "Premises damage" means "property damage" to: a. Any premises while rented to you or temporarily occupied by you with permission of the owner; or b. The contents of any premises while such premises is rented to you, if you rent such premises for a pe- riod of seven or fewer consecutive days. 6. The fol lowing replaces Paragraph 4.b.(1)(b) of SECTION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS: (b) That is insurance for "premises damage"; or 7. Paragraph 4.b.(1)(c) of SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS is deleted. E. INCREASED SUPPLEMENTARY PAYMENTS 1. The following replaces Paragraph 1.b. of SUPPLEMENTARY PAYMENTS COVERAGES A AND B of SECTION I - COVERAGES: b. Up to $2,500 for cost of ba i I bonds required because of acci- dents or traffic law violations aris- ing out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We do not have to furnish these bonds. 2. The fol lowing replaces Paragraph 1.d. of SUPPLEMENTARY PAYMENTS COVERAGES A AND B of SECTION I - COVERAGES: d. Al I reasonable expenses incurred by the insured at our request to assist us in the investigation or defense Page 2 of 6 © 2012 The Travelers Indemnity Company. All rights reserved. CG D4 17 01 12 Includes copyrighted material of Insurance Services Office, Inc. with its permission. of the claim or "suit", including actual loss of earnings up to $500 a day because of time off from work. F. WHO IS AN INSURED -EMPLOYEES AND VOLUNTEER WORKERS -FIRST AID 1. The following is added to the defi- nition of "occurrence" in the DEFINITIONS Section: Unless you are in the business or occupation of providing professional health care services, "occurrence" also means an act or omission committed by any of your "em- ployees" or "volunteer workers", other than an employed or volunteer doctor, in providing or failing to provide first aid or "Good Samari- tan services" to a person. 2. The following is added to Paragraph 2.a.(11 of SECTION II -WHO IS AN INSURED: Unless you are in the business or occupation of providing profess i ona I health care services, Paragraphs (1 )(al, (bl, (cl and (dl above do not ap- ply to "bodily injury" arising out of providing or failing to provide first aid or "Good Samaritan services" by any of your "employees" or "volunteer workers", other than an employed or volunteer doctor. Any of your "employees" or "volunteer workers" providing or failing to provide first aid or "Good Samari- tan services" during their work hours for you wi 11 be deemed to be acting within the scope of their employment by you or performing duties related to the conduct of your business. 3. The following is added to Paragraph 5. of SECTION III LIMITS OF INSURANCE: For the purposes of determining the applicable Each Occurrence Limit, all related acts or omissions commit- ted by any of your "employees" or "volunteer workers" in providing or failing to provide first aid or "Good Samaritan services" to any one per- son wi 11 be deemed to be one "oc- currence". 4. The following is added to the DEFINITIONS Section: "Good Samaritan services" means any emergency medical services for which no compensation is demanded or received. G. WHO IS AN INSURED EMPLOYEES SUPERVISORY POSITIONS The fol lowing is added to Paragraph 2.a.(11 of SECTION II -WHO IS AN INSURED: Paragraphs (1)(al, (bl and (cl above do not apply to "bodily injury" or "personal in- jury" to a co-"employee" in the course of the co-"employee's" employment by you arising out of work by any of your "em- ployees" who hold a supervisory position. H. WHO IS AN INSURED -NEWLY ACQUIRED OR FORMED ORGANIZATIONS The fol lowing replaces Paragraph 4. of SECTION 11 -WHO IS AN INSURED of the Commercial General Liability Coverage Form, and Paragraph 3. of SECTION II - WHO IS AN INSURED of the Global Com- panion Commercial General Liability Cov- erage Form, to the extent such coverage forms are part of your policy: Any organization you newly acquire or form, other than a partnership or joint venture, of which you are the sole owner or in which you maintain the majority ownership interest, will qualify as a Named Insured if there is no other insur- ance which provides similar coverage to that organization. However: a. Coverage under this provision is af- forded only: (1 l Unt i I the 180th day after you ac- quire or form the organization or the end of the policy period, whichever is earlier, if you do not report such organization in writing to us within 180 days after you acquire or form it; or (21 Until the end of the policy period, when that date is I ater than 180 days after you acquire or form such organization, if you report such organization in writing to us within 180 days after you acquire or form it, and we agree in writing that it will continue to be a Named Insured unt i I the end of the po Ii cy period; b. Coverage A does not apply to "bodily injury" or "property damage" that oc- curred before you acquired or formed the organization; and c. Coverage B does not apply to "per- sonal injury" or "advertising injury" arising out of an offense committed before you acquired or formed the or- ganization. CG 04 17 01 12 © 2012 The Travelers Indemnity Company. All rights reserved. Page 3 of 6 Includes copyrighted material of Insurance Services Office, Inc. with its permission. I. BLANKET ADDITIONAL INSURED -OWNERS, MANAGERS OR LESSORS OF PREMISES J. The fo 11 owing is added to SECTION II - WHO IS AN INSURED: Any person or organization that is a premises owner, manager or lessor is an insured, but only with respect to li- ability arising out of the ownership, maintenance or use of that part of any premises leased to you. The insurance provided to such prem- ises owner, manager or lessor does not apply to: I a. Any "bodily injury" or "property damage" caused by an "occurrence" that takes place, or "personal in- jury" or "advertising injury" caused by an offense that is committed, after you cease to be a tenant in that premises; or b. Structural alterations, new construc- tion or demolition operations per- formed by or on behalf of such premises owner, manager or lessor. BLANKET ADDITIONAL INSURED -LESSORS OF LEASED EQUIPMENT The fol lowing is added to SECTION II - WHO IS AN INSURED: Any person or organization that is an equipment lessor is an insured, but only with respect to liability for "bodily in- jury", "property damage", "personal in- jury" or "advertising injury" caused, in whole or in part, by your acts or omis- sions in the maintenance, operation or use by you of equipment leased to you by such equipment lessor. The insurance provided to such equipment lessor does not apply to any "bodily in- jury" or "property damage" caused by an "occurrence" that takes place, or "per- sonal injury" or "advertising injury" caused by an offense that is committed, after the equipment lease expires. K. BLANKET ADDITIONAL INSURED -PERSONS OR ORGANIZATIONS FOR YOUR ONGOING OPERATIONS AS REQUIRED BY WRITTEN CONTRACT OR AGREEMENT The fo 11 owing is added to SECTION II - WHO IS AN INSURED: Any person or organization that is not otherwise an insured under this Cover- age Part and that you have agreed in a written contract or agreement to in- clude as an additional insured on this Coverage Part is an insured, but only with respect to liability for "bodily in- jury" or "property damage" that: a. Is caused by an "occurrence" that takes place after you have signed L. b. and executed that contract or agree- ment; and Is caused, in whole or in part, by your acts or omissions in the performance of your ongoing operations to which that contract or agreement applies or the acts or omissions of any person or organization performing such opera- tions on your behalf. The limits of insurance provided to such insured will be the limits which you agreed to provide in the written contract or agreement, or the limits shown in the Declarations, whichever are less. BLANKET ADDITIONAL INSURED BROAD FORM VENDORS The fo 11 owing is added to SECTION II - WHO IS AN INSURED: Any person or organization that is a ven- dor and that you have agreed in a written contract or agreement to include as an additional insured on this Coverage Part is an insured, but only with respect to li- ability for "bodily injury" or "property damage" that: a. b. Is caused by an "occurrence" that takes place after you have signed and exe- cuted that contract or agreement; and Arises out of "your products" which are distributed or sold in the regular course of such vendor's business. The insurance provided to such vendor is subject to the fol lowing provisions: a. b. The limits of insurance provided to such vendor will be the limits which you agreed to provide in the written contract or agreement, or the limits shown in the Declarations, whichever are less. The insurance provided to such vendor does not apply to: (1) Any express warranty not author- ized by you; (2) Any change in "your made by such vendo~ products" (3) Repackaging, unless unpacked solely for the purpose of inspec- tion, demonstration, testing, or the substitution of parts under instruc- tions from the manufacturer, and then repackaged in the original con- tainer; (4) Any failure to make such inspec- tions, adjustments, tests or servic- ing as vendors agree to perform or normally undertake to perform in the regular course of business, in connection with the distribution or sale of "your products"; Page 4 of 6 © 20 1 2 The Travelers Indemnity Company. All rights reserved. CG D4 17 01 12 Includes copyrighted material of Insurance Services Office, Inc. with its permission. (5) Demonstration, installation, ser- vicing or repair operations, ex- cept such operations performed at such vendor's premises in connection with the sale of "your products"; or (6) "Your products" which, after dis- tribution or sale by you, have been labeled or relabeled or used as a container, part or in- gredient of any other thing or substance by or on behalf of such vendor. Coverage under this provision does not apply to: a. Any person or organization from whom you have acquired "your products", or any ingredient, part or container entering into, accompany- ing or containing such products; or b. Any vendor for which coverage as an additional insured specifically is scheduled by endorsement. M. WHO IS AN INSURED UNNAMED SUBSIDIARIES The following is added to SECTION II - WHO IS AN INSURED: Any of your subsidiaries, other than a partnership or joint venture, that is not shown as a Named Insured in the Dec- larations is a Named Insured if: a. You maintain an ownership interest of more than 50% in such subsidi- ary on the first day of the po Ii cy period; and b. Such subsidiary is not an insured under s i mi I ar other insurance. No such subsidiary is an insured for "bodily injury" or "property damage" that occurred, or "personal injury" or "advertising injury" caused by an of- fense committed: a. Before you maintained an ownership interest of more than 50% in such subsidiary; or b. After the date, if any, during the policy period that you no longer maintain an ownership interest of more than 50% in such subsidiary. N. WHO IS AN INSURED -LIABILITY FOR CONDUCT OF UNNAMED PARTNERSHIPS OR JOINT VENTURES The following replaces the last para- graph of SECTION 11 -WHO IS AN INSURED: No person or organization is an insured with respect to the conduct of any cur- rent or past partnership or joint venture that is not shown as a Named Insured in the Declarations. This paragraph does not apply to any such partnership or joint venture that otherwise qualifies as an in- sured under Section II -Who Is An In- sured. 0. MEDICAL PAYMENTS -INCREASED LIMITS The following replaces Paragraph 7. of SECTION 111 -LIMITS OF INSURANCE: 7. Subject to 5. above, the Medical Ex- pense Limit is the most we will pay under Coverage C for all medical ex- penses because of "bodily injury" sus- tained by any one person, and will be the higher of: (a) $10,000; or (b) The amount shown on the Declara- tions of this Coverage Part for Medical Expense Limit. P. CONTRACTUAL LIABILITY -RAILROADS 1. The following replaces Paragraph c. of the definition of "insured contract" in the DEFINITIONS Section: c. Any easement or I icense agree- ment; 2. Paragraph f.(1) of the definition of "in- sured contract" in the DEFINITIONS Sec- tion is deleted. Q. KNOWLEDGE AND NOTICE OF OCCURRENCE OR OFFENSE The following is added to Paragraph 2., Duties In The Event of Occurrence, Offense, Claim or Suit, of SECTION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS: e. The following prov1s1ons apply to Paragraph a. above, but only for the purposes of the insurance provided under this Coverage Part to you or any insured listed in Paragraph 1. or 2. of Section II -Who Is An Insured: (1) Notice to us of such "occurrence" or offense must be given as soon as practicable only after the "oc- currence" or offense is known to you (if you are an individual), any of your partners or members who is an individual (if you are a part- nership or joint venture), any of your managers who is an individual (if you are a limited liability com- pany), any of your trustees who is an individual (if you are a trust), any of your "executive officers" or directors (if you are an organiza- tion other than a partnership, joint venture, limited liability company or trust) or any "employee" author- CG D4 17 01 12 © 2012 The Travelers Indemnity Company. All rights reserved. Page 5 of 6 Includes copyrighted material of Insurance Services Office, Inc. with its permission. ized by you to give notice of an "occurrence" or offense. (2) If you are a partnership, joint venture, limited liability company or trust, and none of your part- ners, joint venture members, managers or trustees are indi- viduals, notice to us of such "occurrence" or offense must be given as soon as practicable only after the "occurrence" or offense is known by: (al Any individual who is: (i) A partner or member of any partnership or joint venture; (ii) A manager of any limited liability company; (iii) A trustee of any trust; or (iv) An executive officer or director of any other or- ganization; that is your partner, joint venture member, manager or trustee; or (bl Any "employee" authorized by such partnership, joint venture, limited liability com- pany, trust or other organiza- tion to give notice of an "occurrence" or offense. (3) Notice to us of such "occur- rence" or offense wi 11 be deemed to be given as soon as practicable if it is given in good faith as soon as practicable to your workers' compensation in- surer. This applies only if you subsequently give notice to us of the "occurrence" or offense as soon as practicable after any of the persons described in Paragraphs e. (1) or (2) above discovers that the "occurrence" or offense may result in sums to which the insurance provided under this Coverage Part may apply. However, if this policy includes an en- dorsement that provides limited cover- age for "bodily injury" or "property damage" or pollution costs arising out of a discharge, release or escape of "pollutants" which contains a require- ment that the discharge, release or es- cape of "pollutants" must be reported to us within a specific number of days after its abrupt commencement, this Paragraph e. does not affect that requirement. R. UNINTENTIONAL OMISSION The fol lowing is added to Paragraph 6., Representations, of SECTION IV COMMERCIAL GENERAL LIABILITY CONDITIONS: The unintentional omission of, or uninten- tional error in, any information provided by you which we relied upon in issuing this policy will not prejudice your rights under this insurance. However, this pro- vision does not affect our right to collect additional premium or to exercise our rights of cancellation or nonrenewal in accordance with applicable insurance laws or regulations. S. BLANKET WAIVER OF SUBROGATION The fol lowing is added to Paragraph 8., Transfer Of Rights Of Recovery Against Oth- ers To Us, of SECTION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS: If the insured has agreed in a contract or agreement to waive that insured's right of recovery against any person or organiza- tion, we waive our right of recovery against such person or organization, but only for payments we make because of: a. "Bodily injury" or "property damage" caused by an "occurrence" that takes place; or b. "Personal injury" or "advertising in- jury" caused by an offense that is committed; subsequent to the execution of the con- tract or agreement. Page 6 of 6 © 2012 The Travelers Indemnity Company. All rights reserved. CG D4 17 01 12 Includes copyrighted material of Insurance Services Office, Inc. with its permission. (1) co ~ POLICY NUMBER: ZPL-10127035 COMMERCIAL GENERAL LIABILITY 8 0 .. u u .. l- o 0 0 0 .. ::i;: * r-- (') (X} CJ) 0 st m 0 I-I- ('I 0 0 u 0 * THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY . OTHER INSURANCE -ADDITIONAL INSUREDS -PRIMARY AND NON-CONTRIBUTORY WITH RESPECT TO CERTAIN OTHER INSURANCE This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART The following is added to Paragraph 4. a., Primary Insurance, of SECTION IV .COMMERCIAL GENERAL ... llABILITY .. CONDITJONS: However, if you specifically agree in a writ- ten contract or agreement that the insurance afforded to an additional insured under this Coverage Part must apply on a primary ba- sis, or a primary and non-contributory basis, this insurance is primary to other insurance that is available to such additional insured which covers such additional insured as a named insured, and we will not share with that other insurance, provided that: (l)-The "bodily injury'1 or ''property -damage'' -- for which coverage is sought is caused by an "occurrence" that takes place; and (2) The "personal injury" or "advertising in- jury" for which coverage is sought arises out of an offense that is committed; subsequent to the signing and execution of that contract or agreement by you. CG 04 25 07 08 © 2008 The Travelers Companies, Inc. Page 1 of 1 ..... TRAVELERSJ ONE TOWER SQUARE HARTFORD, CT 06183 WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 99 03 76 ( A)-001 POLICY NUMBER: (UB6K578371) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT -CALIFORNIA (BLANKET WAIVER) We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. The additional premium for this endorsement shall be 04. 000 % of the California workers' compensation pre- mium. Person or Organization ANY PERSON OR ORGANIZATION FOR WHICH THE INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. Schedule Job Description This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective Insured Insurance Company DATE OF ISSUE: Policy No. UB6K578371 Endorsement No. Premium Countersigned by ____________ _ ST ASSIGN: Page 1 of 1