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Home My WebLink AboutWebsoft Developers Inc; 2023-08-28;2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 1 of 43 Software as a Service AGREEMENT This Software As a Service Agreement (the “Agreement”) is made as of the 28th day of August, 2023., (“Effective Date”) between the City of Carlsbad, a municipal corporation, with principal 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 95618 (“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 Schedule 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 third-party components licensed to Vendor. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 2 of 43 g. "Customer Data" means all data, files, including hypertext markup language files, documents, audio and visual information, graphics, scripts, programs, applets or 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. i. “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 9 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 3 of 43 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 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. DATA 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 4 of 43 (iv) Customer providing their internal infrastructure and connectivity needed to access the Services. 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 "mirror" 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 DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 5 of 43 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; 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 Party 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, DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 6 of 43 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 manner without the owner’s express prior written permission. Vendor reserves the right to subcontract any or all services provided hereunder to third parties. 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 1 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. 10. TERMS OF SERVICE 10.1. 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 subsequently 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 7 of 43 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 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. 10.4. 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 8 of 43 Customer agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to export 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. 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. 10.6. 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 interception 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, DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 9 of 43 training services, business and regulatory process consulting, submission processing support, submission migration services and system configuration. 10.8. 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. 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 written 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. 10.11. Rights to Customer Data The parties 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 10 of 43 10.12. Confidential Information Each party may have access to information that is confidential to the other party (“Confidential Information”). For purposes of this Agreement, Confidential Information 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 in the other party’s lawful possession prior to the disclosure without any obligation of 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 form to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that Vendor may disclose Customer’s Confidential Information 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 Information. 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 11 of 43 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 judicial body and/or as otherwise required for legal process. 11. 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: 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 CONTINUITY 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 12 of 43 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. SUSPENSION/TERMINATION 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, 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 mail 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 writing, 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 DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 13 of 43 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 Customer 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. 14. MODIFICATION/DISCONTINUATION/MAINTENANCE 14.1. 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 14 of 43 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 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 Customer 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-disclosure, or other rights of any third party. 16. DISCLAIMER OF WARRANTIES EXCEPT AS OTHERWISE STATED IN SECTION 14 ABOVE, VENDOR DOES NOT REPRESENT 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 DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 15 of 43 SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THE SERVICE WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY VENDOR OR THE OPERATION OF THE SERVICES WILL BE SECURE OR THAT VENDOR AND ITS THIRD PARTY VENDORS WILL BE ABLE TO PREVENT THIRD PARTIES FROM ACCESSING CUSTOMER DATA OR CUSTOMER’S CONFIDENTIAL INFORMATION, OR ANY ERRORS WILL BE CORRECTED OR ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE. THE WARRANTIES STATED 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 MERCHANTABILITY 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 DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR THE CUSTOMER’S PURPOSE. 17. LIMITATIONS 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 INCLUDING WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, LOST REVENUE ARISING 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 16 of 43 17.2. DIRECT DAMAGE LIMITATIONS 17.2.1 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VENDOR OR ANY THIRD PARTY VENDORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING 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 (12) 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 RESULTING FROM THE LOSS OR CORRUPTION OF ANY DATA OR CONTENT WHETHER RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS OR OTHERWISE. 17.3. EXCLUSIONS THE LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 16.1 AND 16.2 SHALL NOT APPLY WITH RESPECT TO: (I) DAMAGES TO PERSONS AND/OR TANGIBLE 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 IN SECTION 2 ABOVE, (III) CUSTOMER’S UNAUTHORIZED USE OF VENDOR’S OR THIRD PARTY VENDOR’S INTELLECTUAL PROPERTY, MATERIALS OR ASSETS; (IV) 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 17 of 43 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 Services 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 this 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. 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 10.5 and 10.8. 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 DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 18 of 43 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, 10.12, 16, 17, 18, 19, 20, 25 and 26. 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 RESTRICTED RIGHTS 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 DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 19 of 43 disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph I(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs I(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 performance of such party’s non-monetary obligations due to causes beyond its control, such as failure or delay caused, directly or indirectly, 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 (10) 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 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. 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 DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 20 of 43 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 WHEREOF, this Agreement is duly executed by an authorized representative of both parties as of the Effective Date. VENDOR CUSTOMER By:____________________ By:_____________________ Customer Mailing Address: ___________________________ APPROVED AS TO FORM ___________________________ CINDIE K McMAHON, City Attorney ___________________________ Attn:_______________________ BY:____________________________ Deputy City Attorney ATTEST: _______________________________ SHERRY FREISINGER City Clerk DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 Davis, CA 95617 P.O. Box 4008 Websoft Developers, Inc. Manoj Desai Director of Information Technology for websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 21 of 43 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. 1. MOBILEMMS 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 report 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 i. 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 22 of 43 e. State reporting: Combine all relevant data to product report similar to that provide at trial inception. 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 inspection 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 7.10.1.1.1 City will provide a method to upload updated customer information to Websoft servers on a periodic basis. This dataset will be provided in Excel or CSV format with a fixed schema determined 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: 1) 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-7.10.1.5 4) Meter Number (pull from Utility Billing) CP-7.10.1.6 5) Location CP-7.10.1.7 6) Date of Notice CP-7.10.1.8 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 10) Backflow device size CP-7.10.1.12 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) DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 23 of 43 Reference Criteria 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 CP-7.10.2.1 Have a web form to 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: 1) Date Tested CP-7.10.2.4 2) AWWA/ABPA cert # Gauge # CP-7.10.2.5 3) Firm Name CP-7.10.2.6 4) Tester Name CP-7.10.2.7 5) Telephone # CP-7.10.2.8 6) PSI CP-7.10.2.9 7) Line Valve#1 (Replaced) CP-7.10.2.10 8) Line Valve#2 (Tight, Leaked, Replaced) CP-7.10.2.11 9) Reduce Pressure Principle Assembly, Double check valve assembly, Test before repair Check #1 (Tight, Leaked), Check #2 (Tight, Leaked) Apparent Drop, Opened at, Actual drop, (Pass, Fail) CP-7.10.2.12 10) New Materials and Repairs Made, Check #1, Check #2 CP-7.10.2.13 11) Test after repair, Check #1 (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) 1) Date Tested CP-7.10.3.2 2) AWWA/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-7.10.3.7 7) Line Valve#1 (Replaced) CP-7.10.3.8 8) Line Valve#2 (Tight, Leaked, Replaced) DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 24 of 43 Reference Criteria CP-7.10.3.9 9) Reduce Pressure Principle Assembly, Double check valve assembly, Test before repair Check #1 (Tight, Leaked), Check #2 (Tight, Leaked) Apparent Drop, Opened at, Actual drop, (Pass, Fail) CP-7.10.3.10 10) New Materials and Repairs Made, Check #1, Check #2 CP-7.10.3.11 11) Test after repair, Check #1 (Tight), Check #2 (Tight), Apparent drop, Open at, Actual drop, Pass 7.11.1.1 System generates list of unprotected sites, when site gets a back flow 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. 1) 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 10) Hazard info field 7.11.3.11 11) Recommendations 7.11.4.1 If the inspection reveals that the site needs a backflow device a letter is generated from the system using the following fields. 1) 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 WSD1 GIS Integration WSD1.1 Provide platform to view City GIS layers with ability to customize theme WSD1.2 Each user to customize layers that are displayed WSD1.3 Geocode locations and devices and display on map as themed layer WSD1.4 Provide automated method to update GIS layers by uploading files to Websoft servers DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 25 of 43 Reference Criteria WSD2 Mobile platform WSD2.1 Provide internet-connected browser-based interface for use on tablet, laptop, or desktop device WSD2.2 Provide disconnected app for Android and IOS devices that does not contain mapping information. Will automatically synchronize when connected to the internet. 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 following 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-7.12.2.5 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 10) 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 DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 26 of 43 Reference Criteria 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-7.12.2.28 28) Work Phone 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 Rec's R-7.12.2.33 33) Comments R-7.12.3.1 Record shutdown test results in database with the follow fields: 1) 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) DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 27 of 43 Reference Criteria 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 following fields: 1) Inspection Date R-7.12.3.27 2) Inspection Type R-7.12.3.28 3) Protocol 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 10 Data Logger Fields with a name field and a notes field R-7.12.3.36 Reinspect Form with the following fields: 1) Reinspect date R-7.12.3.37 2) Reinspect time R-7.12.3.38 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 DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 28 of 43 SCHEDULE B – PRODUCT SUPPORT 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 Support 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 support@mobile-mms.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 am 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 Provided by Level 1 Level 1 support includes the following activities: receipt, logging, tracking and managing support requests from end users; initial assessment of issues; escalation to Level 2 issues requiring application and business expertise. Customer DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 29 of 43 Support Level Description Provided by Level 2 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. Application Support handles Level 2 questions, typically those required in- depth knowledge of the support applications. Vendor as part of Application Support Coverage, further described in Schedule C Level 3 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 tandem 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 of time 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: DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 30 of 43 Priority Level Customer Impact and Response Response Time (% of time) Critical 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. 1 hour (99%) Major 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. 2 hours (99%) Minor 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. 4 hours (95%) Cosmetic 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. 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 (1) 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: DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 31 of 43  Support for software not listed in Schedule A  End user training  Level 1 Product Support DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 32 of 43 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 B). 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 DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 33 of 43  Level 2 Application Support DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 34 of 43 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 35 of 43 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 36 of 43 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 AVAILABILITY 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, circumstances 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 information 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 reported 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. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 37 of 43 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 1 - Vendor Application Support Issue Reports. Table 2 - Vendor Application Support Issue Reports Report Description Summary Report A summary report of all Application Support issues Open Issue Detail Report A detail report of all non-closed Application Support issues including assigned severity level and time taken to close out issue Service Level Agreement Report A detail report of all Service Level Agreement incidences including assigned severity level and time taken to close out issue Monthly Support Usage Details on monthly usage of support hours listed by support issue DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 38 of 43 12. CUSTOMER RESPONSIBILITIES Customer will designate a System Contact (Customer System Contact). 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 Customer 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 requiring escalation within Vendor’s management structure: Priority Notified Party Responsibilities 1st Level Vendor Regional Support Manager Involved with the daily support activities. Liaise with support team members and progress problem resolution. Accelerate escalation procedure if required. 2nd Level Vendor Global Support Manager 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: DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 39 of 43 Priority Notified Party Responsibilities 1st Level System Manager Involved with the daily support activities. Liaise with support team members and progress problem resolution. Accelerate escalation procedure if required. 2nd Level Program Manager Main Escalation contact after Regional Support Manager has been contacted. May allocate additional resources and may agree to on- site assistance if required. 14. APPLICATION SUPPORT SERVICE MODELS Application Support Service Description App Support Service Description Maintenance Pool-20 20 Hrs/Mo of Application Support Services Maintenance Pool-40 40 Hrs/Mo of Application Support Services Maintenance Pool-60 60 Hrs/Mo of Application Support Services Maintenance Pool-80 80 Hrs/Mo of Application Support Services Maintenance Pool-160 160 Hrs/Mo of Application Support Services System Replication Vendor Hosted system for support issue triage. Hosted outside of production system environment Replicated System Installation Installation service for replica of customer system Hosting Support Covers single point of contact (POC), & Vendor Software maintenance, (including patch and maintenance release installation). Does not cover enhancements or configuration change requests. Additional Time Zone Additional Timezone support. One Timezone is included in base fees. Item covers support coverage in additional timezones. 24x7 Emergency Support 24x7 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 Average Hrs/Mo Average Hrs/Quarter Total Hrs/Yr Minimum Hours/ Month Maximum Hours/ Month Maintenance Pool-20 20 60 240 12 28 DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers ---- 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 40 of 43 App Support Service Average Hrs/Mo Average Hrs/Quarter Total Hrs/Yr Minimum Hours/ Month Maximum Hours/ Month Maintenance Pool-40 40 120 480 24 56 Maintenance Pool-60 60 180 720 36 84 Maintenance Pool-80 80 240 960 48 112 Maintenance Pool-160 160 480 1,920 112 208 Table 5 - Application Support Hours 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 160 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 values will be defined in a no-cost amendment to this Agreement no later than the start of Service Year 1. Support Period Quarter Support Service Qty Contracted Hrs Per Month Period Start Date Period End Date Service Year 1 - Q1 MP-160 2 320 The date the Production Environment is Production Ready, as defined in Section 20.3 Completion of 90 days of agreement DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 41 of 43 Support Period Quarter Support Service Qty Contracted Hrs Per Month Period Start Date Period End Date Service Year 1 - Q1 MP-80 (HP-J)[1] 1 80 First day of next 90 days of agreement Completion of 90 days of agreement Service Year 1 - Q2 MP-160 2 320 First day of next 90 days of agreement Completion of 90 days of agreement Service Year 1 – Q2 MP-80 (HP-J)[1] 1 80 First day of next 90 days of agreement Completion of 90 days of agreement Service Year 1 - Q3 MP-160 1.5 240 First day of next 90 days of agreement Completion of 90 days of agreement Service Year 1 – Q3 MP-40 (HP-J)[1] 1 40 First day of next 90 days of agreement Completion of 90 days of agreement Service Year 1 - Q4 MP-160 1 160 First day of next 90 days of agreement Completion of 90 days of agreement Service Year 1 – Q4 MP-40 (HP-J)[1] 1 40 First day of next 90 days of agreement Completion of 90 days of agreement Service Year 1 Q1-Q4 24x7 Emergency Coverage 1 N/A First day of next 90 days of agreement Completion of 90 days of agreement Table 6 – Customer Application Support Services DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 42 of 43 SCHEDULE D – INFRASTRUCTURE Vendor and Customer have agreed on the following services and architecture: DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers 2020 Research Park Drive, Suite 140 Davis, CA 95618 Tel: 530.759.8754 | Fax: 530.759.0923 Page 43 of 43 SCHEDULE E – LICENSING AND IMPLEMENTATION COSTS Vendor will charge Customer an annual licensing fee of $32,450 for use of the software as 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 (1) initial payment. The initial implementation fee will be billed upon project initiation. DocuSign Envelope ID: 8BE5927A-F1C6-4BF1-B9A1-5F4E03957B16 websoft developers