HomeMy WebLinkAbout2024-08-27; City Council; Resolution 2024-207RESOLUTION NO. 2024-207
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, RATIFYING AND AUTHORIZING THE CITY MANAGER TO
EXECUTE A MASTER SERVICES AGREEMENT WITH NAVISITE LLC FOR
HOSTING AND PROFESSIONAL SERVICES FOR THE LAWSON HUMAN CAPITAL
SYSTEM SOFTWARE IN AN AMOUNT NOT TO EXCEED $365,988 FOR A ONE
YEAR TERM ENDING JUNE 30, 2025, AUTHORIZING THE CITY MANAGER TO
EXECUTE THE OPTIONAL THREE ONE-YEAR EXTENSIONS IF REQUIRED, AND
APPROVING THE CARRYFORWARD OF $365,988 FROM THE FISCAL YEAR
2023-24 INFORMATION TECHNOLOGY OPERATING FUND BUDGET INTO THE
FISCAL YEAR 2024-25 BUDGET
WHEREAS, the City Council of the City of Carlsbad, California, has determined that the most
effective way to operate and support the Lawson Human Capital Management Systems is through the
use of a hosted solution; and
WHEREAS, the City of Carlsbad currently contracts with Navisite LLC (Navisite) for Human
Capital Management Systems hosting services; and
WHEREAS, the current agreement expired on June 30, 2024, and Navisite continued to provide
services without the benefit of an agreement; and
WHEREAS, a new master services agreement is needed with Navisite to continue to provide the
services; and
WHEREAS, the current Human Capital Management Systems software (Version 10) is required
to have annual support; and
WHEREAS, Navisite will provide hosting and professional services to support Version 10 and
application management; and
WHEREAS, the new one-year agreement will, in addition to the hosting services, provide full
functional application support for a period ending June 30, 2025; and
WHEREAS the new agreement has an option for three one-year extensions; and
WHEREAS, the City Manager will have the authority to execute the three one-year extensions
in the appropriate year if determined to be required; and
WHEREAS, the Information Technology Department expects to have sufficient available budget
in the 2023-24 fiscal year end to fund the first year of the agreement; and
WHEREAS, the Information Technology Department has proposed the funding for the first
extension of the agreement in the fiscal year 2024-25 budget to fund these services, if required, for the
second year of the agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the master services agreement between the city and Navisite (Attachment A) is
hereby approved and ratified, and the City Manager is authorized to execute all required
documents on behalf of the city to enter into the master services agreement.
3. The City Manager is authorized to execute all required documents on behalf of the city
for the three optional one-year extensions, if determined to be appropriate.
4. That the total Hosting Services and Professional Services for the Lawson Human Capital
Management System from Navisite shall not exceed $365,988 for the one-year term
ending June 30, 2025.
5. That the City Manager, or designee, is authorized to carryforward $365,988 from the
fiscal year 2023-24 Information Technology Department Operating Fund budget surplus
to the current fiscal year Information Technology Department Operating Fund to fund
the first year of the Navisite agreement.
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Attachment "A"
IIINAVISITE
Master Services Agreement
This Master Services Agreement (this "Master Agreement") is dated as of July 1, 2024 (the "Effective Date") and
is incorporated by reference Into and made a part of each SOW (as defined below) by and between Navisite LLC
and its Affiliates, as defined below (the "Company"), and the Customer identified on the signature page to this
Master Agreement (the "Customer"). This Master Agreement, along with the applicable SOWs, are referred to herein,
collectively, as this "Agreement." By executing a SOW, the Customer agrees to the terms and conditions set forth
in this Master Agreement. The Company and Customer may be referred to herein or in any SOW each as a "Party"
and, collectively, as the "Parties." Capitalized terms used in this Agreement and not otherwise defined shall have
the meanings ascribed to them In Section 17.
Section 1: Scope of Services; Performance.
1.1 Services; Deliverables. The Company agrees to provide, and Customer agrees to accept in accordance
with the terms and conditions of this Agreement those services described in an applicable SOW (the "Services") and
the Deliverables described .therein. Company and Customer may, by mutual agreement and In accordance with this
Agreement, enter into additional sows which, upon execution by both Parties, shall become attachments to and shall
be incorporated Into this Agreement. Each SOW, together with this Master Agreement, shall be deemed to be a
separate agreement by and between the Parties.
1.2 Commencement; Method of Performing Services. Unless otherwfse provided In an applicable SOW,
the Company shall commence performance of the Services within 30 days after both Parties shall have executed and
delivered the applicable SOW. Unless otherwise set forth in the applicable SOW, the Company shall have the right
to determine the method, details, and means of performing the Services and delivering the Deliverables.
1.3 Changes to Specifications. Changes to any Specifications In an SOW shall become effective only when
a written change order describing such changes and setting forth the terms and conditions thereof (a "Change
Order") Is executed by authorized representatives of both Parties. Each Change Order shall describe any mutually-
agreed-upon changes or additions; provide a schedule for the development, Installation, Implementation of the
additional Services or Deliverables and Include the applicable fees for the aforementioned changes, modifications,
and/or customizations, The Company will not commence, and Customer shall not be liable for any charges associated
with any change request until the Company and Customer have approved a final Change Order. In the event that a
pending Change Order describes Services or Deliverables which could affect the Company's performance of other
Services or Deliverables under an outstanding SOW, the Company may delay Its performance of such Services and
delivery of such Deliverables until such time as the applicable Change Order shall have been accepted or rejected In
writing by Customer. The Company's time for performance under any such affected SOW shall be extended to
account for any delays caused by Customer's failure to accept or reject any Change Order and for any other delays
that result from the changes made pursuant to such Change Order.
Section 2: Invoicing; Payments. Unless otherwise provided in an applicable SOW, the Company will endeavor
to submit Invoices to Customer for payment for Services and/or Deliverables on a monthly basis. All Initial set-up
and other one-time fees will be invoiced upon execution of the applicable SOW. Usage-based overage charges shall
be Tnvolced ln arrears and monthly recurring fees will be invoiced for the Current month. However, In no event shall
payments due to Company exceed the fees specified In the SOW unless the parties execute an amendment to this
Agreement or the applicable SOW . Invoices may be provided to Customer by email. Customer shall pay all
undisputed involces wlthin thirty (30) days of the invoice issuance date. Monthly commitment fees for metered
services are not prorated. All Invoices shall (i) specifically refer to the SOW to which they relate and (Ii) separately
set forth reimbursable expenses (If any), but Company shall not incur any reimbursable expenses without written
consent from Customer. Disputed fees (excluding AWS and equipment purchases which must be paid when due
regardless of any dispute) must be reported by Customer to the Company in writing as follows: (1) for Invoices
Issued In arrears, within thirty (30) days of the applicable invoice date; and (2) for Invoices issued in advance, withln
sixty (60) days of the applicable invoice date. Without limiting the Company's rights under Section 9 of this
Agreement, if Customer fails to pay any undisputed invoice within fi~een (15) days of the due date, the Company
may cease all further work until such time as it receives payment In full. Furthermore, if Customer ls more than
fifteen (15) days delinquent in any payments to the Company, the Company may modify Its payment terms in its
sole and absolute discretion, including without limitation, the Company may require further assurances or security
from Customer or full payment prior to commencing any Services or delivering any Deliverables under any and all
sows or other agreements with Customer. All payments shall be made in U.S. Dollars. If Customer fails to pay any
undisputed Invoice within fifteen (15) days of the due date, Customer shall incur interest at the rate of one and one-
half percent (1.5%) per month, assuming 30-day months, but In no event in excess of the maximum rate allowed
by law.
Section 3: Compensation.
3.1 Compensation. In consideration of the Deliverables and/or the Services to be performed by the Company,
the Company shall be entitled to compensation In accordance with the payment and compensation terms described
in the SOW pertaining to such Services and/or Deliverables; provided, however, In the event that such SOW shall
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not specify payment and compensation terms, the Company shall be entitled to compensation on a time and materials
basis at its then-current rates. Customer acknowledges that prices listed In a SOW shall remain in effect for the
duratron of the term specified In the applicable SOW. In the event a SOW does not specify the duration of the pricing
listed in such SOW, the prices for the Services and Deliverables described therein shall Increase by a maximum of
five percent (5%) per annum.
3 .2 Public Cloud Hosting Fees. In addition to the compensatfon described In Section 3.1, when acting as
Customer's Public Cloud reseller, the Company wlll pass through the cost of all services provided by the Public Cloud
to the Company on Customer's behalf ("Cloud FeesH). The amount of such Cloud Fees will be as determined by the
Public Cloud provider from time-to-time and may be increased or decreased In the Public Cloud provider's sole
discretion, whether due to usage charges, changes in base rates or other factors as Public Cloud may determine.
Customer agrees that Company may change the Cloud Fees charged with respect to Publlc Cloud services at any
time based upon changes in rates Implemented by Public Cloud provider. Customer acknowledges and agrees that
the Cloud Fees can vary based on a variety of circumstances outside the control of the Company (including Without
limitation hacking attempts, poorly optimized data processing and/or lack of appropriate employee supervision) and
the Company shall not have any liability to Customer.as a result thereof. In the event Cloud Fees Increase as specified
above, the parties hereby agree to and shall execute an amendment to the applicable SOW to account for said
Increased fees.
3.3 Hardware and Software Purchases. Any and all hardware, software and other purchases by the
Company for Customer shall be agreed upon in writing by the Parties prior to the Company placing an order. In the
event of purchases of $2,000 or more ln the aggregate, upon the Company's request, Customer shall pay 50% of
the order amount prior to the Company's placement of the order. The remaining balance must be paid before
delivery, but in no event later than five (5) days after placement of the applicable order.
3.4 Delays in Services and/or Deliverables. Delays. In the event of a delay in the provision of the Services
or delivery of any Deliverables, or if additional work outside the scope of an applicable SOW Is required by the
Company, due to no fault of the Company, the Company may cease provision of the affected Services and
Deliverables until such time as the Customer and the Company have entered into an appropriate Change Order to
address such delays and additional work.
3.5 Credits. From time to time the Company may, in its sole discretion, offer and/or grant certain incentive
credits to Customers pursuant to an applicable SOW. Such incentive credits have no cash value and may not be
redeemed in any form except as payment for future Services and/or Deliverables to be provided under the particular
SOW pursuant to which such credits were granted. Anything to the contrary notwithstanding, the maximum amount
of Incentive credits that Customer may redeem under a particular SOW Is expressly limited to an amount equal to
ten percent (10%) of the total amount payable by Customer to the Company under such SOW for Services and
Deliverables. Unless otherwise agreed by the Company in writlng, the total amount payable under an SOW for
purposes of calculating the maximum incentive credit amount shall exclude amounts paid by the Customer to cover
the Company's out of pocket expenses (including without limitation, all AWS Fees and amounts paid for hardware,
software and other purchases by the Company on behalf of Customer). In the event that the amount payable for a
usage-based Service's value is less than any maximum amount specified ln an applicable SOW, the Company may
adjust the amount of such credit downward accordingly without further action on the part of Customer. Third party
credits, including those provided by AWS, are solely provided subject to the approval of the applicable third party.
Under no circumstances will the Company guarantee or otherwise contribute these third-party credits or the value
they imply.
3.6 Taxes. Customer shall have sole responsibility for the payment of all taxes and duties imposed by all
governmental entities, including but not limited to federal, state, local, and foreign sales, use, excise, utility, gross
receipts, value added and other taxes, tax-like charges, and tax-related charges, except solely taxes imposed on the
net income of the Company.
Section 4: Acceptance.
4.1 Acceptance. Unless otherwise set forth in an applicable SOW, the Services and each Deliverable shall be
deemed to be accepted upon the earllest to occur of: (i) receipt by the Company from Customer of written notice
that the Service or Deliverable has been accepted by Customer, or (ii) the date which Is ten (10) business days after
performance of the Service or delivery of such Dellverable to Customer ("Acceptance"), unless Customer shall have
previously provided to the Company a written statement describing the nonconformance of the applicable Service or
Deliverable. In the event of a dispute, acceptance or rejection shall be determined as provided in Section 10 using
the criteria set forth In Section 4.2,
4.2 Criteria. A Deliverable may not be rejected unless It contains a material defect which would prevent such
Deliverable from functioning substantially in accordance with the applicable Specification as outllned in the SOW and
the Services may not be rejected unless the Services were not performed In a professional and workmanlike manner
substantially In accordance with the applicable Specification. Only defects affecting the function, performance or fit
of such Deliverable or its fallure to substantially satisfy other specific requirements Included In the applicable
Specification may result in rejection for noncompliance. A determination that the Services or any Deliverable fails to
comply with its Specification may not be based upon any No-Fault Condition.
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(c) Unless otherwise provided in a separate written agreement, all third-party software products shall be
licensed directly to Customer by the applicable third party pursuant to the terms and conditions of applicable license
agreements provided by such third parties. To the extent that any third-party software is sublicensed to Customer
by the Company, (i) Contractor warrants it will pass through any applicable third-party warranties to the City to the
extent Contractor is legally able to do so, and Contractor will reasonably cooperate in enforcing said warranties; and
(Ii) the foregoing provisions shall be for the benefit of the Company and Its third-party licensors.
5.4 Company Use of Customer Materials. Solely for the purpose of performing the Services and delivering
the Deliverables outlined In an executed SOW, the Company shall have the irrevocable, nonexclusive, worldwide,
royalty-free right and license during the term of this Agreement to (i) access the Customer Data, (Ii) to use, execute,
reproduce, display, perform, distribute and prepare Denvative Works based upon the Customer-Provided Materlals
and Derivative Works thereof and (Iii) to authorize or sublicense others from time to time to do any or all of the
foregoing on Its behalf.
5.5 Availability of Support for Customer-Provided Materials. During the term of this Agreement,
Customer shall ensure that any and all Customer-Provided Materials are currently supported versions and/or releases
of such Customer-Provided Materials, as determined by the supplier or vendor thereof. Customer acknowledges and
agrees that, anything to the contrary notwithstanding, the Company shall not be liable for any loss or damage
whatsoever which results from the use by the Company of any Customer-Provided Materials, whether such loss or
damage occurs because (a) such Customer-Provided Materials are not supported by the applicable suppller or vendor,
(b) such Customer-Provided Materials are no longer compatible with other applications employed by Customer or (c)
a vendor-provided patch or fix is not available to the Company without charge (each, an "EOL Event"). Customer
hereby waives all rights, claims and causes of action In connection therewith and acknowledges and agrees that In
the event that Customer continues to use any Customer-Provided Materials after an EOL Event shall have occurred,
the Company shall not be In breach of any obllgatlon under or related to this Agreement or liable or responsible for
any loss or damage whatsoever caused by such usage (or by virtue of such Customer-Provided Materials no longer
being supported) or incur any obligation for any SLA credits or any other amounts related to such Customer-Provided
Materials. In the event that an EOL Event impairs the Company's ability to perform the Services and/or deliver
Deliverables, the Company may cease provision of the affected Services and/or Deliverables until such time as the
Customer and the Company have entered into an appropriate Change Order to address such EOL Event.
5,6 Certain Warranties and Representations. Customer represents and warrants that it has obtained all
rights and licenses necessary for the Company to use all Customer Data and Customer-Provided Materials, as
contemplated by this Agreement, Including without llmitatron all consents or authorizations required under applicable
laws, rules or regulations relating to the processing of personal data by Company, and that the use by the Company
of such Customer Data and Customer-Provided Materials as contemplated by this Agreement will not (a) result In
any breach or violation of the rights of any third party by the Company, (b) cause the Company to incur any llability
or other obligation to any third party or (c) result in any violation of any laws, rules or governmental regulations. In
the event of a breach of the foregoing representations and/or warranties, the Company shall not be required to use
the applicable Customer Data and/or Customer-Supplied Materials and the Company may cease provision of the
affected Services and/or Deliverables until such time as the Customer and the Company have entered into an
appropriate Change Order to address such breach.
5.7 Certain Third-Party Software. Anything to the contrary in this Agreement notwithstanding, any So~ware
provided as part of a Deliverable may link to or be provided with Open-Source Software, which Open-Source Software
shall be subject to and licensed by Customer from the appropriate third parties pursuant to the terms and conditions
of applicable license agreements provided by such third parties. The Company provides no license directly to
Customer to use any third-party software, Including without limitation any Open-Source Software.
Section 6: Confidential Information.
6.1 Use of Confidential Information. Except as speclfically provided in this Agreement, each Party shall
treat as confldent1al all Confidential Information (as defined below) of the other Party, shall not use such Confidential
Information except as contemplated under this Agreement, and neither Party shall disclose such Confidential
Information to any third-party. However, Confidential Information may be disclosed to directors, officers, managers,
members, partners, employees, attorneys, accountants, financial advisors, contractors or representatives
(collectively, "Repre.sentativesn) of the receiving Party, but only 1f such Representatives need to know the
Confidential Information In order to assist such Party in performing under or complying with this Agreement, each
such Representative has an obligation of confidentiality to such receiving Party no less restrictive than the terms of
this Agreement and, in any event, the receiving Party shall be responsible for any breach of this Agreement by ,ts
Representatives. The foregoing notwithstanding, this Agreement will not prohibit the receiving Party from compliance
wlth information requests of a legally compulsory nature, such as subpoenas or court orders, or compliance with the
California Public Records Act (CA Government Code§ 6250 et seq.) and the California CiVil Discovery Act (California
Code of Civil Procedure § 2016.010 et seq., provided that the receiving Party uses commercially reasonable efforts
to provide the disclosing Party with notice of receipt of such information requests that involve Intellectual property
or trade secrets as soon as reasonably practicable so t hat Company may seek legal protection of sald Confidential
Information. The Parties' obligations under this paragraph shall terminate one (1) year from the latter of the
termination date of this Agreement or the date upon which such confidential Information was returned or destroyed
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in accordance with Section 6.5; provided, however obligations wfth respect to Confidential Information constituting
trade secrets and lnformation which is required to be kept confidential under applicable laws or governmental
regulations (e.g. without limitation information privacy or data protection laws) shall not explre.
6.2 Data Protection. Company shall implement and maintain commercially reasonable administrative,
technical and organizational security measures designed to safeguard against unauthorized access, disclosure or
theft of Customer Data and Confidential Information. Such security measures shall be In accordance with generally
accepted industry standards and not less stringent than the measures the Company applies to lts own data Company
shall: (i) provide the appllcable Services described In such SOW to Customer solely from data centers located In the
United States; (ii) store Customer Data and Confidential Information at rest relating to the applicable Services solely
in data centers located in the U.S.; and (Iii) notify Customer of any plans to relocate the hosted Services described
in the SOW from one data center to another data center. Company: (I) shall not authorize its personnel or contractors
to store Customer Data and Confidential Information relating to the applfcable Services on portable devices, including
personal computers, except for devices that are used and kept only at its U.S. data centers; or (ii) shall only authorize
its personnel and contractors to remotely access Customer Data and Confidential Information relating to the
applicable Services to the extent required to provide technical support to Customer. Without the prior written consent
of Customer, Company agrees not to use any infomiatlon collected in connection with Services provided to Customer
pursuant to this Agreement or any SOW for any purpose other than fulfilling the Services or Deliverables. Company
will use commercially reasonable measures and efforts to ensure compliance with the preceding sentence of this
Section by any contractors, subcontractors, or consultants retained by Company used for the purpose of performing
any pa'rt of the Services or delivering the Deliverables. Notwithstanding anything in this Section 6.2, this Agreement
or any SOW to the contrary, Customer acknowledges and agrees that (i) except for Services provided by Company
pursuant to which Company undertakes to record, store, retrieve, use or otherwise process Customer PII (as defined
below), Company ls authorized to provide Services to Customer from data centers located outside the United States;
(ii) Customer Data and Confidential Information that does not comprise Customer PII may be stored by Company In
data centers located outside the U.S.; and (iif) configuration, Installation, maintenance, planning, migration,
diagnostic, support and related services provided to Customer by Company pursuant to this Agreement or any SOW,
including, without limitation, services pertaining, affecting or relating to Customer PII, may be provided by Company
personnel and contractors located outside the U.S. using portable devices, including personal computers, located
outside the U.S.
6.3 General Knowledge. Anything to the contrary in this Agreement notwithstanding, the Company and Tts
personnel shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose,
and employ any generalized Ideas, concepts, know-how, methods, techniques, or skills gained or learned during the
course of any assignment, so long as it or they acquire and apply such information without disclosure of any
Confidential Information of Customer.
6.4 Marketing. The Company may, for the purpose of marketing Its services, divulge (by way of example and
without limitation, via a listing on its website or in other promotional materials) to Its customers and prospects that
the Company has performed Services for Customer.
6.5 Ownership; Return. Except as provided in this Agreement, Confidential Information shall remain the
property of the disclosing Party. Upon expiration or earlier termination of this Agreement, the receiving Party shall
immediately cease to use the disclosing Party's Confidential lnformation and, at the disclosing Party's written request,
either return to the disclosing Party or destroy all Confidential Information and all copies, summaries or reports
thereof that are in the possession or control of the recelvlng Party or its Representatives; provided, that the receiving
Party may retain a copy of this Agreement and any records necessary to the extent required by applicable law, rule
or regulation so long as such records are kept confidential, but with the understanding that this Agreement Is not
confidential. Any destruction pursuant to the preceding sentence shall be promptly confirmed in writing.
Section 7: Warranties; Indemnification.
7.1 Warranty; Remedies.
(a) Unless otherwise provided in an applicable Specifkatlon or as set forth below, the Company warrants for
a period of sixty (60) days from the performance of Services or delivery of a Deliverable, as applicable, that such
Services shall have been performed in a professional and workmanlike manner, consistent with generally accepted
Industry standards, and that such unmodified Deliverable wlli operate substantially in accordance with Its
Specification. Anything to the contrary notwithstanding, no warranty shall apply with respect to any No-Fault
Condition,
(b) The warranties above shall be contingent upon the continued satisfaction of all the following conditions:
(i) all software and the Customer's Environment are implemented and operated by Customer ln accordance wlth all
applicable documentation and manufacturer specifications; (ii) Customer is not In breach of any of its
representations, warranties and/or obligations set forth in this Agreement; (iii) Customer shall have notified the
Company of any warranty defect as promptly as reasonably possible after becoming aware of such defect; (iv)
Customer shall have properly Installed and used all updates made available, and any updates recommended by the
Company with respect to any third-party products that affect the performance of the Environment; (v) Customer
shall have properly maintained all associated equipment and software in accordance with appllcable written
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specifications provided by the applicable manufacturer of such equipment and software; (vi) Customer shall not have
introduced other equipment or software that causes an adverse Impact on the Environment; (vii) Customer shall
have paid all undisputed amounts due hereunder and is not in default of any provision of this Agreement; and
(viii) Customer shall have made no changes, nor permitted any changes to be made, to the Services and/or
Dellverables, other than with the express written approval of the Company.
(c) In addition, the Company does not (I) warrant that the Deliverables will run properly on any systems other
than those specified ln an applicable SOW, that the Deliverables or Services wlll meet any Customer's requirements
not specified in an appliable SOW, that the Deliverables will operate In the combinations which Customer may select
for use, that the operation of the Dellverables Will be uninterrupted or error-free, or that all Dellverable errors will
be corrected (H) provide any warranty with respect to any Third Party Products, but will assign to Customer, to the
extent permitted, any warranties given to the Company by the manufacturers or vendors of such Third Party Products
and, upon Customer's reasonable request, will reasonably assist Customer with obtaining warranty coverage, if any,
available from the applicable third-parties or (iii) provide any warranty with respect to the failure of any Services or
Dellverables or any degradation of performance resulting from Customer software or system environment
modifications, Including without limitation new reports or patches added to Customer's Environment, unless such
modifications shall have been reviewed and approved by a Company remote database administrator prior to
installation.
(d) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7.1 OR IN AN APPLICAB LE SPECIFICATION, THE
DEUVERABLES, ANY SERVICES AND ALL OTHER PRODUCTS PROVIDED HEREUNDER ARE BEING PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND AND THE COMPANY HEREBY DISCLAI MS ALL WARRANTIES, WHETHER EXPRESS
OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE DELIVERABLES AND ANY SERVICES INCLUDING, WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABI LITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-
INFRINGEMENT, AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF
PERFORMANCE, AND/OR USAGE OF TRADE.
7 .2 Exclusive Remedies. If Customer notifies the Company, within the applicable warranty period, that it
believes there has been a breach of th1s warranty, and states in reasonable detail the nature of the claimed breach,
then the Company will promptly investigate the matter. If the Company reasonably determines that there has been
a breach of the warranty herein, Customer's exclusive remedies, and the Company's sole liability, will be for (i) the
Company to promptly correct or re-perform any defective Services and/or Deliverables so that such Services and
Deliverables comply with the performance warranty or (ii) if the Company determines, after making commercially
reasonable efforts to remedy the breach, that Company Is unable or it is impractlcable to correct such breach,
Company shall refund Customer prorated prepaid fees for the affected Service, or a portion of the purchase price
paid to the Company for t he affected Deliverable as reduced In accordance with a three (3) year, straight-line
depreciation schedule commencing on the date of delivery of the Deliverable and Company may terminate the
appllcable SOW. The Parties acknowledge that the provisions of this Section 7 have been negotiated by them and
reflect a fair allocation of risk between the Partles.
7.3 Indemnification of Customer.
(a) The Company will defend, Indemnify and hold harmless Customer against any third party claim, suit, action,
and/or proceeding (a "Claim") and any costs (Including reasonable attorney's fees), liabilities, losses, expenses, and
damages resulting therefrom ("Damages") in the event that any Services or Deliverables (specifically excluding any
Open Source Software) furnished and used within the scope of this Agreement infringe a United States copyright or
patent or other intellectual property, provided that: (i) Customer notifies the Company In writing within fifteen (15)
days of the cla1m; provided that Customer's failure to so notify the Company shall not relieve the Company of any of
its indemnification obligatlons unless such failure materially and adversely affects the Company's ability to Investigate
and defend such Claim; {ii) the Company has sole control of the defense and all related settlement negotiations;
provided, that the Company may not settle any such claim in a manner that imposes any unreasonable restrictions
or obligations on Customer without Customer's prior written consent; and (iii) Customer provides the Company with
the assistance, information and authority necessary to perform the Company's obligations under this sectlon.
(b) The Company shall have no liability for any Damages or Claim of infringement based on: (i) the Company's
compliance with any of Customer's particular requirements (e.g. use of any speclflc process, design, product or
software) set forth in any applicable Specification, (Ii) use of a superseded or altered release of any Deliverable If the
Infringement would have been avoided by the use of a current unaltered release of the Deliverable to the extent that
(X) It was the obllgatlon of Customer to obtain and install the applicable current unaltered release of the Deliverable
where such release was made available to Customer for no additional cost; or (y) Company provided or made a
current unaltered release of the Deliverable available to Customer where such release was made available to
Customer for no additional cost and Customer failed to Install it; ·or (iii) the combination, operation or use of any
Deliverables furnished under this Agreement with software, hardware or other materials not furnished by the
Company, ff such Infringement would have been avoided by the use of the Deliverable without such software,
hardware or other materials; (iv) the adaptation or modification of any Deliverable without the Company's written
approval, if such infringement would have been avoided by the use of the Deliverable without such adaption or
modification; (v) a Claim based on Intellectual Property owned by the Customer or any of its Affiliates, to the extent
that the Company's use of such Intellectual Property is in connection with its performance under thls Agreement;
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(vi) misuse of any Deliverable, Services, Open Source Software or Third Party Products; (vii) any Third Party Products
or (viii) any Open Source Software (each, other than items (vii) and (viii), an "Excluded Claim").
(c) In the event a Service or Deliverable Is held or Is believed by the Company to Infringe a third party's
Intellectual Property rights, the Company shall have the option, at its expense, to (i) modify the Service or Deliverable
to be non-Infringing, (ii) obtain for Customer a license to continue using the Service or Deliverable; or (111) terminate
the license for the lnfrlnging Service or Deliverable and (x) use its best efforts to secure for Customer ninety (90)
days continued use of the Infringing Service or Deliverable following such notice of termination; and (y) refund a
portion of the purchase price paid to the Company for such Deliverable, as reduced in accordance with a three (3)
year, straight-line depreciation schedule commencing on the date of delivery of the Deliverable, or in the event of a
Service, refund any unused prepaid fees.
THIS SECTION 7.3 STATES THE COMPANY'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR THE
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY.
·7.4 Indemnification of the Company. Customer will defend, indemnify and hold harmless the Company
against all Claims and Damages to the Company arising from any (i) violation of the Company's Acceptable Use
Policy; and (ii) Excluded Claims, excepting only those for which the Company Is required to indemnify Customer.
This section shall apply provided that (I) Company must notify Customer in writing within fifteen (15) days of the
Claim, provided that Company's failure to so notify Customer shall not relieve Customer of any of its Indemnification
obligations unless such fallure materially and adversely affects Customer's ability to Investigate and defend such
Claim; (ii) Customer shall have sole control of the defense and all related settlement negotiations; provided, that
Customer may not settle any such clafm in a manner that imposes any unreasonable restrictions or obligations on
Company without Company's prior written consent; and (iii) Company provides the Customer with the assistance,
Information and authority necessary to perform the Customer's obligations under this section.
SECTION 7.4(11) STATES THE CUSTOMER'S ENTIRE LIABILITY AND COMPANY'S EXCLUSfVE REMEDY FOR THE
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY.
Section 8: Limitation of Liability.
8 .1 Generally. NEITHER PARTY SHALL HAVE ANY LIABILITY UNDER THIS AGREEMENT FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITfVE OR INDIRECT DAMAGES OR LIABILITIES, INCLUDING WITHOUT LIMITATION
SUCH DAMAGES OR LIABILITIES FOR LOSS OF REVENUE, LOSS OF BUSINESS, FRUSTRATION OF ECONOMIC OR
BUSINESS EXPECTATIONS, WORK DELAYS, LOSS OF PROFITS, OR COST OF CAPITAL, REGARDLESS OF THE FORM
OF THE ACTION, WHETHER IN CONTRACT OR OTHERWISE, EVEN IF A PARTY HERETO HAS BEEN ADVISED, KNOWS,
OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE LIMITATION
ON LOST PROFITS SHALL NOT APPLY TO EITHER PARTY'S LIABILITY, IF ANY, FOR EXCEEDING THE SCOPE OF THE
LICENSES GRANTED TO SUCH PARTY BY THE OTHER PARTY AND THAT NO LIMITATION SHALL APPLY TO EITHER
PARTY'S LIABILITY, IF ANY, FOR A BREACH OF ITS CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS
HEREUNDER.
EXCEPT WITH RESPECT TO THE COMPANY'S BREACH OF ITS OBLIGATIONS RELATING TO CONFIDENTIAL
INFORMATION AND ITS INDEMNITY OBLIGATIONS SET FORTH IN SECTION 7.3, THE COMPANY'S LIABILITY FOR
DAMAGES TO CUSTOMER FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION,
SHALL NOT EXCEED THE GREATER OF THE AGGREGATE FEES PAID BY CUSTOMER FOR THE DELIVERABLES AND/OR
SERVICES UNDER THE APPLICABLE SOW DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENTS GIVING RISE TO CUSTOMER'S CLAIM (THE "LIMITATION OF LIABILITY"); PROVIDED, HOWEVER, THAT,
NOTWITHSTANDING THE FOREGOING OR ANYTHING IN THIS AGREEMENT OR ANY SOW TO THE CONTRARY, THE
PARTIES ACKNOWLEDGE AND AGREE THAT THE COMPANY'S AGGREGATE, CUMULATIVE LIABILITY FOR DAMAGES
(WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHERWISE) UNDER THIS
AGREEMENT WILL NOT EXCEED TWO (2) TIMES THE LIMITATION OF LIABILITY FOR ONE OR MORE BREACHES OF
THE COMPANY'S OBLIGATIONS RELATING TO: (I) CUSTOMER DATA COMPRISING PERSONALLY IDENTIFIABLE
INFORMATION; (II) CUSTOMER CONFIDENTIAL INFORMATION COMPRISING PERSONALLY IDENTIFIABLE
INFORMATION; AND/OR (III) DATA PROTECTION, INCLUDING, WITHOUT LIMITATION, THE COMPANY'S
OBLIGATIONS SET FORTH IN SECTIONS 6.2 AND 13 HEREOF. IN NO EVENT WILL THE COMPANY BE LIABLE TO
THIRD PARTIES FOR ANY DAMAGES WHATSOEVER.
THE LIMITATION ON THE COMPANY'S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS TO CUSTOMER FOR
CLAIMS OR DAMAGES UNDER THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.
THE EXISTENCE OF ONE OR MORE CLAIMS OR SUITS WILL NOT ENLARGE THE LIMIT. THESE LIMITATIONS APPLY
TO ALL CAUSES OF ACTION UNDER OR RELATING TO THIS AGREEMENT (CONTRACT, TORT OR OTHERWISE).
THE COMPANY EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY RELEASES THE COMPANY FROM ANY
LIABILITY ARISING FROM OR ASSOCIATED WITH A CUSTOMER'S RESERVED INSTANCE USAGE, LACK OF USAGE,
RECOMMENDATION OR PURCHASE OF RESERVE INSTANCES WHETHER BY CUSTOMER DIRECTLY OR BY THE
COMPANY AS INSTRUCTED BY CUSTOMER OR ON THE BASIS OF INFORMATION PROVIDED BY ANY THIRD-PARTY
TOOLS.
EXCEPT WITH RESPECT TO THE CUSTOMER'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER
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SECTION 6 AND ITS INDEMNITY OBLIGATIONS SET FORTH IN SECTION 7.4, THE CUSTOMER'S UABILin' FOR
DAMAGES TO COMPANY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION,
SHALL NOT EXCEED THE GREATER OF THE AGGREGATE FEES PAID BY CUSTOMER FOR THE DELIVERABLES AND/OR
SERVICES UNDER THE APPLICABLE SOW DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENTS G1V1NG RISE TO COMPANY'S CLAIM. IN NO EVENT WILL THE CUSTOMER BE LIABLE TO THIRD PARTIES
FOR ANY DAMAGES WHATSOEVER.
THE LIMITATION ON THE CUSTOMER'S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS TO COMPANY FOR
CLAIMS OR DAMAGES UNDER THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.
THE EXISTENCE OF ONE OR MORE CLAIMS OR SUITS WILL NOT ENLARGE THE LIMIT. THESE LIMITATIONS APPLY
TO ALL CAUSES OF ACTION UNDER OR RELATING TO THIS AGREEMENT (CONTRACT, TORT OR OTHERWISE).
8.2 SLA Credits. The credits stated In any applicable Service Level Agreement are Customer's sole and
exclusive remedy for the Company's failure to meet those criteria for which credits are provided. Customer is not
entitled to a credit if Customer Is in breach of this Agreement or the applicable SOW at the time of the occurrence of
the event giving rise to the credit unless and until Customer shall have remedied the breach. Anything to the contrary
notwlthstandlng, no credit will be due to the extent that the Company's failure to achieve any service level criteria
results from Customer's acts or omissions.
Section 9: Term and Termination.
9 .1 Term of Agreement. This Master Agreement shall be effective so long as any SOW shall remain
outstanding and shall remain in force until terminated as provided herein.
9 .2 Termination of Agreement. Unless otherwise specified in a particular SOW, a Party (the "Terminating
Party'') may terminate thfs Master Agreement or any SOW;
(a) if the other Party breaches any of fts material representations, warranties, covenants or obligations under
this Master Agreement or the applicable SOW and such breach results in a material adverse effect to the Terminating
Party, upon providing thirty (30) days (or five (5) business days In the case of breach for nonpayment) written notice
to the breaching Party, provided, however, that if the breaching Party shall have cured the breach or, other than in
the case of non-payment, shall have commenced and continues to diligently pursue a cure of such breach within
such thirty (30) day period with the reasonable expectation of success, this Agreement and the applicable SOW shall
continue in full force and effect. Notwithstanding the foregoing, a breach by Company of any of its obligations under
this Agreement or a SOW that materially and adversely affects a hosting Service provided by Company to Customer
must be cured by Company within fifteen (15) days of Company's receipt of Customer's notice failing which Customer
may terminate the applicable SOW upon written notice to Company.
(b) upon giving written notice to the other Party, if the other Party (i) files In any court or agency pursuant to
any statute or regulation of any state or country, a petition in bankruptcy or insolvency or for reorganization or for
an arrangement or for the appointment of a receiver or trustee of the other Party or of its assets; (ii) proposes a
written agreement of composition or extension of its debts; (iii) Is served with an involuntary petition in bankruptcy
or seeking reorganization, liquidation, dissolution, winding-up arrangement, composition or readjustment of Its debts
or any other relief under any bankruptcy, Insolvency, reorganization or other simllar act or law of any jurisdiction
now or hereafter in effect, which petition is not dismissed within sixty (50) days after the filing thereof; (iv) has any
attachment, execution, or similar process issued against It which is not dismissed or stayed within sixty (50) days
after the issuance thereof; (v) proposes to be a Party to any dissolution or liquidation; or (vi) makes an assignment
for the benefit of creditors or a trust mortgage.
9.3 Effects of Termination. In the event that this Master Agreement or a particular SOW is terminated
pursuant to Section 9.2, with respect to the termination (I) the Company will immediately cease providing the
applicable Services and Deliverables, (ii) payment of all amounts due for the applfcable Services rendered and
Deliverables delivered on or prior to such termination shall become immediately due and payable, (Iii) except as
otherwise provided in the applicable SOW, any licenses granted by the Company to Customer shall fmmedlately
terminate and Customer shall remove any materials containing the Company's Intellectual Property from its
technology infrastructure; and (Iv) Company shall Implement an orderly return of Customer Data in a mutually
agreeable format at a time agreed to by the Parties. Once the Customer acknowledges receipt of the Customer Data,
the Company shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally
prohibited, delete all Customer Data in its systems or otherwise in Its possession or under Its control.
Section 10: Dispute Resolution.
10.1 Parties' Objective. The Parties recognize that disputes as to certain matters may from time to time arise
during the term of this Agreement that relate to either Party's rights or obligations hereunder. It is the objective of
the Parties to establish procedures to facilitate the resolution of disputes arising from, concerning or in any way
relating to this Agreement fn an expedient manner by mutual cooperation and without resort to litigation. To
accomplish this objective, the Parties agree to follow the procedures set forth In this Section 10 if and when a dispute
arises under this Agreement.
10.2 Dispute Resolution. Except as set forth below, the Parties shall attempt in good faith to resolve any and
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all disputes that arise between them promptly, voluntarily and amicably. Any dispute arising between the Parties
relating to, arising out of, or In any way connected with this Agreement (a "Dispute"), whether before or after
expiration or termination of this Agreement, which is not settled by the Parties within thirty (30) days after written
notice of such Dispute 1s first given by a representative of one Party to the other Party in writing, the Parties agree
to submit to mediation prior to bringing an action In a court of competent jurisdiction unless the claim is for a breach
of intellectual Property rights or a breach of Section 6 Confidential Information or Data Protection for which the
Parties may seek injunctive relief or specific performance or any other provisional remedy to protect the Parties'
rights In any Confidential Information or enforce a Party's confidentiality, privacy obligations, or data protection under
this Agreement, if applicable.
Section 11: Insurance.
Company wlll obtain and maintain for the duration of the Agreement and any and all amendments, insurance against
claims for injuries to persons or damage to property which may arise out of or ln connection with performance of the
services by Company or Company's agents, representatives, employees or subcontractors. The insurance will be
obtained from an insurance carrier admitted and authorized to do business ln the State of California. The insurance
carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the
State of California's List of Approved Surplus Line Insurers (LASLI) with a rating In the latest Best's Key Rating Gulde
of at least ''A:X"; OR an aHen non-admitted Insurer listed by the National Association of Insurance Commissioners
(NAIC) latest quarterly listings report.
11.1 Coverages and Limits. Company will maintafn the types of coverages and minimum lfmits Indicated below
unless Customer Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will
not constitute any limitations or cap on Company's indemnification obligations under this Agreement. Customer, Its
officers, agents and employees make no representation that the limits of the insurance specified to be carried by
Company pursuant to this Agreement are adequate to protect Company.
(a) Commercial General Liability (CGL) Insurance. Insurance written on an "occurrence" basis with limits no
less than $2,000,000 per occurrence and $4,000,000 in the aggregate.
(b) Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the
California Labor Code. Workers' Compensation will not be required if Company has no employees and provides, to
Customer's satisfaction, a declaration stating this.
(c) Professional Liability. Errors and Omissions Liability and Cyber Liability Insurance with limits of not less
than $10,000,000 per claim and in the aggregate. Company agrees to maintain coverage for a period of three years
following the date of completion of the Services.
11.2 Additfonal Provisions; Company will ensure that che policies of insurance required under this Agreement
contain, or are endorsed to contain, the following provisions:
(a) The Customer will be named as an additional insured on Commercial General Uabllity which shall provide
primary coverage to the Customer.
(b) Company will obtain occurrence coverage, excluding Professional Liability. Errors and Omissions Liability
and Cyber Liability Insurance, which will be written as claims-made coverage,
{c) This insurance will be in force during the life of the Agreement and any extensions of it and will not be
canceled without Company providing Customer at least thirty (30) days prior wrltten notice sent by certified mail
pursuant to the Notice provisions of this Agreement.
11.3 Providing Certificates of Insurance. As soon as reasonably practicable following the Parties' execution of
this Agreement, Company will furnish certificates of Insurance for the referenced coverages to Customer.
11.4 Failure to Maintain Coverage. If Company fails to maintain any of these insurance coverages, then Customer
will have the option to declare Company in breach of its obligation under this Agreement.
Section 12: Customer Obligations, Etc.
12.1 Non-Solicitation. During the Term of this Agreement and continuing for a period of twelve (12) months
thereafter, Customer agrees that It will not, and will ensure that its Affiliates do not, (i) knowingly directly or
Indirectly, solicit or attempt to solicit for engagement, either as employees, consultants or otherwise, any persons
employed by the Company or contracted by the Company to provide Services to Customer, except insofar as such
solicitation or attempt to solicit for engagement results solely from a general solicitation of employment not
specifically directed towards employees or subcontractors of the Company and (Ii) knowingly directly or Indirectly,
hire or otherwise engage, either as employees, consultants or otherwise, any persons employed by the Company
who performed Services for Customer or who Customer became acquainted with during the performance of Services
by the Company hereunder, except insofar as such solicitation or attempt to solicit for engagement results solely
from a general solicitation of employment not specifically directed towards employees, consultants, or subcontractors
of the Company.
12.2 Access and Cooperation. Customer will provide the Company with access to Customer's Environment
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for the purpose of performing the Services and invoicing. Customer must cooperate with the Company's reasonable
Investigation of outages, security problems, and any suspected breach of the Agreement. Customer is responsible
for keeping its account permissions, billing, and other account information up to date. Customer agrees that its use
of any Environment provided or managed by the Company will comply with the Company's Acceptable Use Policy.
Customer is solely responsible for the suttabllity of the Services as specified by Customer and Customer's compliance
with any applicable laws, Including export laws and data privacy laws. The Company will not use or disclose Customer
Data except as materially required to perform the Services or as required by law. Customer must use reasonable
security precautions in connection with lts use of the Services, including where applicable appropriately securing and
encrypting personally identifiable or other sensitive data stored on or transmitted using the Environment. Customer
Data is, and at all times shall remain, Customer's exclusive property.
12.3 Third Party Support and Software. For t'he Term, if Customer uses any non-Company provided software
on lts Environment, Customer represents and warrants to the Company that Customer has the legal right to use such
sohware and to grant to the Company the right to use such software on Customer's behalf. If the Company has
agreed to install, patch or otherwise manage sohware In reliance on Customer's license with a third party then
Customer hereby consents to the Company's posting or sharing of Customer's name, contact information and
environment log files with third party support services (including without limitation Oracle or Microsoft support
services) as the Company may deem necessary to perform its obligations under this Agreement, provided that such
disclosure shall be subject to Customer's prior written consent, whlch shall not be unreasonably withheld, conditioned
or delayed, in the event that the Company should be required to disclose any other Confidential Information of
Customer to such third parties. The Company may agree to install Third Party Products (for example, Oracle EBS
sohware) on Customer's behalf as part of the Services. Where such activity requires the acceptance of an End User
License Agreement (or similar terms), and only applicable when Customer's data is being hosted on the Company's
servers or in the Company's environment. Customer hereby authorizes the Company to accept such terms on
Customer's behalf, agree to be bound by and adhere to such terms, and acknowledge that Customer, and not the
Company, Is bound by such terms. The Company will promptly identify and provide Customer with a copy of any
such terms the Company accepts upon Customer's behalf upon written request.
Section 13: Privacy and Security.
13.1 Obligations. Without limiting the provisions of Section 8 or obligations under Section 61 Company will
Implement commercially reasonable administrative, technical and physical controls to protect Customer Data and
Confidential Information in its possession against unauthorized access, use, acquisition, loss or disclosure. Customer
acknowledges and agrees that Customer controls the transfer or upload of Customer Data to the Services and
Customer's Environment and that Customer controls and directs the processing, use and disclosure of Customer Data
through the Services. The Company stores and processes Customer Data only at Customer's direction and
Instruction. The Company Is not responsible for any data loss, disclosure, transfer, storage or processing that occurs
as a result of Customer's acts or omissions or Customer's vlolation of any provision of this Agreement or appliable
laws, rules or regulations.
13.2 Audit Rights. Company shall, at least annually, engage an independent third party to assess the
Company's information security controls (the "Security Audit "). The Audit shall be conducted according to
recognized information security Industry standards. Upon reasonable written notice, the Company shall provide
Customer with a copy of Its most recent Security Audit report. Such report and the results of such Security Audit
are Confidential Information of the Company.
13.3 Security Breaches. Company shall promptly notify Customer of any incident resulting In the unauthorized
access, acquisition, destruction, or loss or alteration of Customer Data (a "Security Incident~). In the event that
a Security Incident affecting Customer Data occurs as the result of a breach by the Company of Its obligations under
Section 6.2 of this Agreement, the Company shall; (a) promptly, and in any event within 72 hours of the Company's
discovery of the Security Incident, notify Customer by telephone, unless shorter time is required by applicable law;
(b) use its best efforts to promptly quarantine the data breach and ensure that Customer can securely access the
customer Data; (c) promptly implement necessary remedial measures to ensure a similar Security Incident does not
reoccur as soon as reasonably practicable; (d) promptly start an investigation of the Security Incident, (e) take all
appropriate actions to mitigate any material risk that may arise from the Security Incident; and (f) upon Customer's
reasonable written request, provide Customer with a written report on outcome of Its investigation and responsive
actions taken related to the Security Incident. Information regarding any Security Incidents or other notifications
pursuant to this Section 13 comprise the Company's Confidential Information, provided, however, that Customer
may disclose the occurrence of a Security Incident to the extent (a) Customer Is exercising lts legal rights, or (b)
disclosure is required by Applicable Law or pre-existing contractual obligations to third parties. The forgoing
notwithstanding, Customer shall disclose information relating to a Security Incident only to the extent required by
applicable laws, rules or regulations, court order, as necessary to comply with pre-existing contractual obligations
to third parti'es, or to exercise Its legal rigl1ts; provided, however, that Customer shall provide prior written notice
thereof to the Company to the extent not prohibited by law. The Company shall cooperate in good faith regarding
the timing and manner of any notification to affected parties concerning a Security Incident and disclosures to
appropriate governmental entities, which cooperation shall be at Customer's sole cost and expense, except to the
extent such Security Incident arises out of the acts or omissions of the Company.
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Section 14: Miscellaneous.
14.1 Delay; Force Majeure. Either Party shall be excused from delays in performing or from its failure to
perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of
such Party; provided that, in order to be excused from delay or failure to perform, such Party must act diligently to
remedy the cause of such delay or failure.
14.2 No Agency. The Company is acting solely as an independent contractor, Customer does not undertake by
this Agreement or otherwise to perform any obligation of the Company, whether by regulation or contract. In no
way is the Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other
provisions of this Agreement notwithstanding.
14.3 Section Headings; Exhibits. The section and subsection headings used herein are for reference and
convenience only and shall not enter into the interpretation hereof. The agreements and other documents referred
to herein and attached or to be attached hereto, or to t he SOW are incorporated herein to the same extent as if set
forth in full herein.
14.4 No Waiver. No delay or omission by either Party hereto to exercise any right or power occurring upon any
noncompliance or default by the other Party with respect to any of the terms of this Agreement shall Impair any such
right or power or be construed to be a waiver thereof. A waiver by either of the Parties hereto of any of the covenants,
conditions, or agreements to be performed by the other shall not be const rued to be a waiver of any succeeding
breach thereof or of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies
provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies avaflable
to either Party at law, In equity, or otherwise.
14.S Language; Governing Law; Currency. This Agreement shall be entered into by the Parties in the English
language. In the event of any translation, the English language version shall be determinative. The validity,
construction and performance of this Agreement will be governed by and construed In accordance with the laws of
the State of California, applicable to contracts executed in and performed entirely within such Sate, without reference
to any choice of law principles of such State. The application to this Agreement of the United Nations Convention on
Contracts for the International Sale of Goods is hereby expressly excluded. Customer specifically and irrevocably
consents to the personal and subject matter jurisdiction and venue of the federal and state courts of the County of
San Diego, State of California and such courts shall have exclusive jur1sdiction with respect to all matters concerning
this Agreement or the enforcement of any of the foregoing.
14.6 Entire Agreement. This Agreement and each together with any exhibits or addenda annexed thereto or
hereto, and any subsequent SOW shall constitute the entire agreement between the Parties relating to the subject
matter hereof and thereof and, unless specifically referenced In this Agreement or an applicable SOW, supersede all
prior or simultaneous representations, discussions, proposals, negotiations, letters of intent, and all prior non-
disclosure, non-competition, non-solicitation and other agreements, whether oral, written or based on a course of
dealing or performance, with respect to the subject matter hereof or thereof. Any extraneous terms on Customer's
purchase order or other documents shall be void and of no effect. Each SOW shall be treated as a separate
agreement. No amendment, change, waiver, or discharge hereof shall be valid unless it is ln writing and ls executed
by the Party against whom such amendment, change, waiver, or discharge is sought to be enforced.
14.7 Notices. All notices, demands, requests or other communications that may be or are required to be given,
served or sent by any Party pursuant to this Agreement will be in writing, will reference this Agreement and shall be
transmitted by express courier or hand delivery or facsimile transmission. Each notice that is delivered or transmitted
in the manner described In this section shall be deemed sufficiently given, served, sent and received for all purposes
at such time as it is delivered to the addressee (With the delivery receipt or the affidavit of messenger or courier
being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon
presentation, whichever shall occur first. The name of the persons who are authorized to give written notice or to
receive written notice on behalf of Customer and on behalf of Company under this Agreement are:
For Customer:
Name
Tltle
Dept
Address
Phone
Maria Callander
IT Director
IT
CITY OF CARLSBAD
1635 Faraday Ave
Carlsbad, CA 92008
442.339.2454
For company:
Name
Title
Address
Phone
Senior Corporate Counsel
NaviSite Legal Department
400 Minuteman Road
Andover, MA 01810
1 (978)-682-8300
Each Party will notify the other immediately of any changes of address that would require any notice or delivery to
be directed to another address.
14.8 Injunctive Relief. It is hereby agreed and acknowledged that it will be impossible to measure in money
the damage that would be suffered if the Parties fail to comply with their obligatlons under Section 6 and/or Section
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Exhibit "A"
IIINAVISITE
Acceptable Use Policy
Navisite Proprietary and Confidential
Docuslgn Envelope ID: BEFE8801-B4F7-4633-99FD-02993F2997 4C
IIINAVISITE Acceptable Use Policy
Additionally, you
1. are responsible for any misuse of accounts on your systems located at Navisite;
2. must implement measures and procedures to ensure that your accounts are· not accessed or used
in an unauthorized manner;
3. shall not transfer or allow the transfer of Remote-access accounts from one individual to another,
nor share or alJow such accounts to be shared between individuals;
4. shall ensure that each user has an individual remote-access account that uniquely and accurately
identifies the owner of the account; aud
5. assume all responsibility for the consequences of the use of your accounts by an unauthorized
individual.
Violations and Remedies
In order to protect its customers' data security, to ensw·e that its customers have access to their
systems and data and to prevent breaches by other customers from affecting such security and
access, Navisite reserves the 1igbt to suspend or tenuinate at any time your account if, in the sole
discretion of Navisite, you fail to adhere to this Navisite Customer Acceptable Use Policy or
Navisite reasonably believes that your use of any facilities or services has resulted or will
negatively impact other customers' security or use of or access to their respective systems or data
(including without limitation, actions by customers that may result in denial of service attacks or
other outages, privacy violations or intellectual property infringement) . Navisite will endeavor to
provide you with advance notice prior to restricting your access to your environment and services,
to the extent that the circumstances of the situation shall merit, but shall not be required to do so
in all cases. Navisite bas the right to seek legal remedies for any damages, costs or expenses that
may be incurred as a result of a violation of any of these policies by you or your employees, agents,
representatives, affiliates, customers, clients or users.
Depending on the nature of the violation or alleged violation, Navisite may be notified of violations
in any number of ways, including by an external organization, agency, entity or individual that is
affected by your activities or, when a violation is detected internally, by a source within Navisite.
Navisite retains the sole tight to determine whether a violation of this policy has occurred. 1n
general, Navisite will attempt to work with you to address violations of th.is policy in accordance
with the steps outlined below but is not required to do so. However, based on the severity of the
violation or the number or nature of complaints received, Navisite, in its sole discretion, has the
absolute right to immediately terminate all services and facilities access.
Upon notification of a violation, Navisite will attempt to contact you and describe the violation. In
general, your contact will be called or emailed with the information. Navisite will define a specific
timefran1e within which you must rectify the violation. A letter may be sent to your contact
fonnally notifying you of the violation and setting forth the time frame for you to remedy the
violation. If, in Navisite's sole discretion, the violation or complained-of violation is such that
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NAVISITE
Application Analytics -Navisite will furnish Customer with online access to the analytics platform user
interface on a subscription basis for viewing key application performance metrics. Current modules include
System Analysis, Monitors, Security and Compliance, and Administration, but others may be added in the
future.
Custom Object Support -Navisite will provide technical support, including break/ fix support, for "Custom
Objects" (e.g., interfaces, reports, screens, programs, and other objects) that are not part of the Applications
delivered by the provider of that software for which the Customer has documentation (e.g., technical and/or
functional specification). Creation of new Custom Objects or enhancements to existing Custom Objects are
not included in the scope of this Section, but may be addressed via a separate professional services
engagement
• Technical Upgrades -Major and Minor technical upgrades are not in scope.
Operational Procedures
Navisite will draft and maintain an Operational Run Book specific to the Customer's use of the services. The Run
Book will include content mutually agreed to by the parties on subjects such as:
• The operational integration between Navisite and Customer support teams;
• Instructions for how to access the services;
• Customer Support procedures to include:
Reporting, escalation, and contact information;
Key support roles to include Customer Application Owner and Authorized Callers;
Communication protocol for exception management (e.g., escalations);
• Change Management communication and coordination; and,
Backup and restoration procedures.
Disaster Recovery
A "Contingency Event" consists of an unplanned event or condition that renders Customer unable to use the services
for purposes of providing access to the Applications in productive use, excluding any Customer-provisioned elements
such as telecommunications services, hardware, or software separately ordered by Customer that Navisite is not
managing as part of its defined Services.
If Navisite experiences a Contingency Event it will provide for restoration of access to the Applications in productive
use, after the occurrence of the Contingency Event, through a VPN or other encrypted network connection. The
Recovery Time Objective ("RTO'') defines the target amount of time that the Applications remain unavailable. The
Recovery Point Objective ("RPO") represents the target point in time, prior to a Contingency Event, to which data can
be recovered. Navisite has the capability to provide multiple levels of service for RTO and RPO based on the business
requirements. The specific RTO and RPO for the applications in scope are defined in the Service Level table below.
SERVICE SCHEDULE I PROPRIETARY AND CONFIDENTIAL 6
Docusign Envelope ID: BEFE8801-B4F7-4633-99FD-02993F29974C
NAVJSITE
RTO = 48 hours data for productive use (RTO) and the amount of missed
maximum data loss (RPO).
96% of Service Requests Service Desk ticketing system
submitted will be completed on or 2%
before the Committed By Date
Contract Variations for Application Management Services
The contract variations stated below supersede the content stated in the section above
• Navisite will perform Functional Support through its Customer Service Center ("CSC") staffed from 7:00 AM
to 7:00 PM, Central Time, Monday through Friday, excluding Navisite holidays (which will not number more
than ten (13) per calendar year) ("CSC Hours"). Functional Support consists of responding to Helpline Issues
regarding the functioning and use of the Applications submitted by Customer's "Authorized CSC Contacts".
• Notwithstanding anything in this Service Schedule to the contrary, Customer acknowledges and agrees that
Navisite will not perform an annual disaster recovery test pursuant to this Service Schedule
SERVICE SCHEDULE I PRO P RIETARY AN D CONFIDENTIA L 8
Docuslgn Envelope ID: BEFE8801-B4F7-4633-99FD-02993F29974C
INAVISITE
Navisite's database maintenance includes:
• SOP for startup/shutdown of all databases
• SOP for change management of database configuration
• Management of all database initialization and configuration parameters
• Troubleshooting of database issues
Database Tuning
Navisite will work with the customer to identify critlcal databases and perform proactive tuning and performance
recommendations. The tuning assessment may include aspects of:
• Database memory management
• File 1/0 statistics
• Process wait statistics
• Database initialization and configuration parameters
Identification of IQ/CPU/Memory intensive SOL statements
• Identification and recommendations for change of data file, transaction log files, server configuration changes
and potential performance improvements
Patching Management
• Covers patches, service packs, point releases and hotfixes inclusive to the database systems presented in
this agreement.
Navisite works with customers to cooperatively identify and apply service packs in accord with customer
needs and requirements.
The Customer is responsible for all functional testing of their application.
Refreshes
Navisite will refresh Database instances upon Customer request. Clones may include any or all of the various
components of an environment. Navisite refresh service includes an SOP for the refresh process.
Space Management
Navisite will work with Customer to manage utilization of storage resources within the database and at the file system
level for all managed products. Navisite will be responsible for:
• Determining and implementing optimal data file model
Setting database growth parameters
Determining ideal layout for data files on the file system
• Monitoring free space
• Managing objects including tables, indexes, and temporary database files
Change Control/Code Migration
Changes recommended by Navisite will be submitted to Customer, via Navisite ticket system, for Customer specific
change control requirements and approvals. Approved changes will be scheduled at a mutual agreed upon time. All
requests submitted by Customer users of Navisite ticket system is presumed to have completed Customer change
control processes and have all the necessary approvals.
Nav,site will manage the migration of specified code into the Customer's environment. Navisite will work with
Customer to develop a code migration SOP and Navisite will deploy code as defined in the SOP. Customer is
responsible for providing detailed installation documents/instructions for code deployment, validating the deployment,
and for all changes to the code and data as a result of a code deployment request.
Database Schema Management
Navisite will work with Customer to define and integrate the following database schema elements on an "as needed''
basis:
• Creation and maintenance of new schema objects (tables, indexes, stored procedures, etc.)
• Creation and maintenance of linked servers, user privileges, roles, synonyms, grants, etc.
• Object storage clause definition for space management
• Database object reorganization
lfN SERVICE SCHEDULE I PROPRIETARY AND CONFIDENT I AL 10
Docusfgn Envelope ID: BEFE8801-B4F7-4633-99FIJ..02993F29974C
[NAVISITE
Database Backup Management
Navisite will work with Customer to define and implement a database backup strategy that meets the business
requirements for recovery. Navisite will develop, test, deploy and maintain database backup scripts utilizing native
toolsets or infrastructure backup solutions based on business requirements. Navisite's backup management includes:
Creating, testing, deploying, and maintaining all database backup scripts
Monitoring database backup jobs to ensure successful completion
• Testing database backups to ensure successful recovery with minimal data loss on a yearly basis.
Infrastructure may be provided by Customer or Navisite depending on other services purchased.
• Documenting the backup and recovery strategy and process in the Backup and Recovery SOP
Database High Availability Support
Navisite will work with Customer to implement and support the high availability features of the database environment
when available. Navisite's 24x7 High Availability support is dependent on specific platforms and will be scoped and
designed during the sales engagement.
Customer Obligations for SQL Administration Managed Services
• Customer will provide logical access to systems containing databases
• Customer will allow Navisite to post all necessary information to vendor support services for remediation of
issues.
• Provide Navisite a list of users that need access and what level of access to the environment.
• Provide Navisite a list of any escalation contacts and procedures for the database environment.
• Customer to provide server(s) for monitoring tools when remotely managed and not hosted in a Navisite data
center.
• Customer is responsible for all hardware, software, and administration related to any non-provided toolsets
for backup, and/or replication when remotely managed and not hosted in a Navisite data center.
Contract Variations for Managed Database Services
The contract variations stated below supersede the content stated in the section above
• None
SERVICE SCHEDULE I PROPRIETARY AND CO NFID EN TIA L 11
Docusign Envelope ID: BEFE8801-B4F7-4633-99FD-02993F29974C
IDNAVISITE
N
Common Services
24x7x365 Network Operations Center
Navisite's Network Operations Center (NOC) provides Customer with 24x7x365 support for all contracted services.
All support requests initiated by the Customer will be handled by Navisite support staff. The support staff will have
access to Customer support personnel, if needed, to support timely troubleshooting and resolution activities.
When a critical event and/or a "down" environment occurs, Navisite will begin the support process immediately upon
notification of such event, which is defined as an "acknowledgement" by a Navisite support staff member through a
ticket update and/or "callback" each within 15 minutes of any such event. Navisite will adhere to a 24x7 escalations
and response plan SOP as defined by Customer and Navisite.
All support requests must come through Navisite ticket system, which can be facilitated via our web portal, email or
phone call.
Network Operations Center Services
• Level I support services with escalation to L2/L3 personnel
• Email, Web-Based or Phone Ticket Submission Options
• Critical Event Monitoring & Alerting
• Standard Support for Non-Critical Issues 8 AM EST -6 PM EST Monday through Friday, Excluding Customer
Holidays
Non-Urgent Tickets Submitted During Non-Standard Support Hours will be Responded to the Next Business
Day
Urgent Tickets (Defined via table below) will be Supported 24x7
Security Measures
Dedicated Accounts: Each Navisite user is given a unique account, ensuring that access and actions can be
tracked and audited per individual. This enhances accountability and security by preventing shared account
usage.
Multi-Factor Authentication (MFA): Navisite employs Microsoft MFA to secure access to their network. This
involves multiple layers of verification, with passwords and the user's mobile device.
Restricted Authentication :
o Geofencing: Navisite employs geofencing technology to restrict c:1ccess based on geographical
locations. This means that only users accessing the system from predefined, authorized locations
can authenticate and gain access.
o IP Address Restrictions: By restricting authentication to specific IP addresses, Navisite adds another
layer of security, ensuring that login attempts from unauthorized or suspicious IP addresses are
blocked. This helps in preventing unauthorized access from outside the designated geolocations.
• Continuous Monitoring and Automated Alerts: Navisite employs continuous, real-time monitoring of all
activities and access attempts within the geofenced area. This ensures that any suspicious or unauthorized
activity is detected immediately.
o Automated Alerts: The system is configured to send automated alerts to security personnel whenever
there is an attempt to access from an unauthorized location or IP address. This allows for swift
response to potential security incidents.
o Constant Vigilance: The combination of real-time monitoring and automated alerts ensures that any
anomalies are quickly identified and addressed, maintaining the integrity and security of Customer's
data.
• Data Security -Encryption of Data in Transit: Network connection between App and DB server is isolated.
End users use the VPN tunnel which is isolated and encrypted.
o Isolated Network Connection: The network connection between the application server (App) and the
database server (DB) is isolated, meaning it is separated from other network traffic. This isolation
helps to prevent unauthorized access and eavesdropping
o Encrypted VPN Tunnel: End users access the system through a Virtual Private Network (VPN) tunnel.
A VPN tunnel encrypts the data transmitted between the user's device and the network, providing an
additional layer of security. This ensures that even if the data is intercepted, it remains unreadable to
unauthorized parties.
SERVICE SCHEDULE I PROPR I ETARY AND CONF I DENTIAL 13
Docusign Envelope ID: BEFE8801-84F7-4633-99FD-02993F29974C
[1NAVISITE
• Network Segmentation and Zero Trust Architecture:
a Network Segmentation with VLANs: Virtual Local Area Networks (VLANs) are used to segment the
network logically. This means creating separate, isolated networks within the same physical
infrastructure. By using VLANs, different types of data.(e.g., the Customer's data versus other hosted
systems) can be separated, reducing the risk of unauthorized access and improving security
management.
Service Reporting
Navisite will make available monthly service-level information on the Customer portal detailing the quality of certain
production services, This information may include certain availability data, data on service requests, trouble reports,
if applicable, as well as other information. Navisite will provide Level 11 management and support services to
Customers to assist them with questions and problem resolution pertaining to the Hosting Environment. Support calls
will be assigned a priority, tracked and resolved as described below.
Customer will contact the NOC for all requests. Support requests shall be made by the Super User via the portal or,
if urgent in nature, by phone. Each request will be assigned a priority and associated actions. Due to the differing
priorities relating to the reasons a Customer might call for support, Navisite has structured a response plan to address
the most critical issues first. When a Customer request is sent in, it should identify the severity of the request by using
the severity type described below. Navisite staff taking the incident/request will assign the actual priority.
Priority Description
Urgent Critical infrastructure components or Customer server down or degraded; significantly
operational impact.
High Incidents that result in a severe service disruption of the application-production
environment and demand immediate attention. No single workaround exists. Business risk
is high.
Medium Non-Critical Network components or services down or degraded. Incidents that result in
loss of application functionality with some operational impact.
Low Network components or services or application functionality unavailable, but workaround
possible with no operational impact; non-critical, deferred maintenance acceptable.
Navisite agrees to maintain "trouble tickets" to track all Customer requests. Regardless of the priority or whether an
item is billable, it will be entered into this system. The system will be used, among other things, to track who is working
on each task, status and date completed.
Navisite will , according to support priority and response times set forth above, receive and log the service request,
diagnose the issue and, if applicable, create an action plan and schedule to address that issue and execute the action
plan to resolve the problem upon approval by Customer.
Customer Requirements & Obligations
Customer acknowledges that the scope of services and fees set forth in this Service Schedule is based upon
information that Customer has provided to Navisite. Navisite's obligation to perform the Services and to deliver any
Deliverables under this Service Schedule shall be subject to Customer's fulfillment of the following obligations and
requirements in addition to the Customer obligations mentioned previously in the Services sections of this Service
Schedule:
[N
• Customer shall have a valid license to use or contract through Navisite and to allow Navisite to use all third-
party software components necessary for Navisite to perform the Services and for Customer to use all
operating systems, applications and databases defined in this Service Schedule. Each Party will promptly
notify the other Party if it becomes aware of a licensing problem.
• For all Customer supplied hardware and software, Customer shall purchase and maintain all maintenance
and vendor support services and will list Navisite as a support contact. Customer is solely responsible for
SERVICE SCHEDU LE I PROPRIETARY AND CONFIDENTIAL 14
DocusIgn Envelope ID: BEFE8801-B4F7-4633-99FD-02993F29974C
1NAVISITE
N
complying with the terms and conditions of all software license agreements that control the Customer-
Supplied Software.
• Customer will provide Navisite both primary and secondary points of contact for all systems, applications,
networking, business and database support. In the event all Customer points of contact are unavailable,
Customer shall have made prior arrangements with Navisite to make other support contact arrangements or
shall have agreed with Navisite on an applicable escalation process standard operating procedure (SOP).
• Customer will provlde Navisite with a list of users that need access to and what access to the environment
Customer will provide written notice to Navisite of any Customer initiated changes to systems that may affect
Navisite provided services
Customer will provide Navisite the required assistance, information gathering, and cooperation to deliver all
necessary information within a reasonable period of time for Navisite to perform the Services described in
this agreement.
Customer will provide Navisite the required assistance to initiate connectivity using a Navisite specified IPsec
site-to-site VPN tunnel or dedicated circuit between Navisite and Customer location(s).
Customer is responsible for supplying computers and other hardware to be used at Customer's site,
Customer's WAN and Customer's telecommunications devices and to maintain the foregoing in good working
order and condition. Customer bears the entire risk of the performance or non-performance of all Customer-
Supplied Software, computers, WAN, LAN and telecommunication devices.
• Customer will provide logical access and system/application accounts for all necessary Navisite personnel
to properly deliver the service,
• Unless otherwise specified, Customer is responsible for all Active Directory user, device, and group
management including Group Policy Objects (GPOs).
• Customer herby represents and warrants that it is the data controller of its Customer data and will notify
Navisite of any regulatory requirements for protection of Customer data.
In the event Customer fails to meet these requirements, Navisite will not be held responsible for any failure to meet
the agreed upon SLA related to the service being provided.
SERVICE SCHEDULE I PROPRIETARY A N D CONFIDEN T IAL 15
Docusign Envelope ID: BEFE8801-B4F7-4633-99FD-02993F29974C
r,NAVISITE
N
CREDIT EXCEPTIONS
If at any time Customer is in default under the Agreement, Customer will not be entitled to any credit.
• Customer is limited to receiving an aggregate credit of 50% of the minimum fees due to Navisite for the
applicable calendar month under all SLAs between Customer and Navisite.
• Credit will not be issued under this SLA for any covered outage that, as determined by Navisite in its
reasonable judgment, results from any of the following:
Customer-initiated changes, whether implemented by Customer or Navisite on behalf of Customer;
Customer exceeding system capacity;
viruses, except to the extent that such outage results from a failure to apply a generally available and
approved countermeasure within six hours of a documented outbreak;
Customer-required revisions to operating-system software or hardware or software configurations that
are not tested and approved by Navisite;
problems caused by Customer-supplied website content or software (e.g., faulty common gateway
interfaces or third-party applications);
Customer's failure to adhere to Navisite's change-management process and procedures;
acts or omissions of Customer; its employees, agents, third-party contractors or vendors; or anyone
gaining access to Navisite's network or to Customer's website at the request of Customer;
Acts of God or natural disasters;
any event or condition not wholly within the control of Navisite;
a violation of Navisite's Acceptable-Use Policy;
the negligence or willful misconduct of Customer or others it authorized to use the Services;
any failure of any component for which Navisite is not solely responsible, including, without limitation, all
Customer-provided or Customer-managed electrical-power sources, networking equipment, computer
hardware, computer software or website content;
any failure of Customer-provided local-access facilities;
any scheduled maintenance announced at least 48 hours in advance, up to an accumulated total of 8
hours per month;
any emergency maintenance announced at least 60 mfnutes in advance, up to an accumulated total of 2
hours per month; or
any failures that cannot be corrected because Customer is inaccessible.
SERVICE SCHEDULE I PROPRIETARY AND CONFIDENTIAL 17
Oocusign Envelope ID: BEFE8801-B4F7-4633-99FD-02993F29974C
NAVISITE
Service Level Objectives (SLOs)
Service Level Objectives
Service Response Time Notes
Urgent Priority Tickets 15 min response time to Navisite will work continuously to resolve the issue
start working on the ticket. and will provide the customer with status updates
every 1 hour on any critical ticket.
High Priority Tickets 2 hours response time to Tickets can be submitted 24x7 by the customer
start working on the ticket. and should be addressed per the ticket priority.
Medium Priority Tickets 1 business day response Tickets can be submitted 24x7 by the customer
time to start working on the and should be addressed per the ticket priority.
ticket.
Low Priority Tickets 2 business days response Tickets can be submitted 24x7 by the customer
time to start working on the and should be addressed per the tfcket priority.
ticket.
Clones/Refreshes Up to 3 days to complete Tickets can be submitted 24x7 by the customer
the clone/refresh process. and should be addressed per ticket priority.
24-hour notice and 24 hours delivery time if the
time taken for clone is less than 12 hours.
48 hours delivery time if the time taken for clone is
more than 12 hours.
Critical Clones/Refreshes 2 hours response time to The clones requested to reproduce SEV1 issues in
start the clone process. PROD can be considered critical. Clones required
for training, consultant visits, etc. are to be treated
as non-critical and will be supported based upon
the assigned priority.
Navisite will work continuously to deliver the clone
and will provide the customer with status updates
every 1 hour.
Ticket Priority Description
Urgent Critical infrastructure components or Customer server down or degraded;
significantly operational impact.
High Incidents that result in a severe service disruption of the application-production
environment and demand immediate attention. No single workaround exists_
Business risk is high.
Medium Non-Critical Network components or services down or degraded. Incidents that
result in loss of application functionality with some operational impact.
Low Network components or services or application functionality unavailable, but
workaround possible with no operational impact; non-critical, deferred
maintenance acceptable.
N SERVICE SCHEDULE I PROPR I ETARY AND CONF I DENTIAL 18
Docusign Envelope ID: BEFE8801-B4F7-4633-99FD-02993F29974C
liNAVISITE
N
Service Fees
The fees for the Services described in this Service Schedule (with respect to all environments described herein) will
be as set forth on Exhibit A to this Service Schedule (the "Service Fees"). Any additional or modified Services will be
subject to additional fees in accordance with our Statement of Rates or as otherwise set forth in the Master Service
Schedule.
Service Schedule Term
This Service Schedule shall take effect as of the "Effective Date" appearing on the signature page hereto. The duration
of the initial term of this Service Schedule shall be 12 months from the Effective Date. The initial term may be extended
by Customer for up to three (3) successive 12-month renewal terms upon the execution of a mutually agreed upon
amendment to this Service Schedule unless Navisite has provided Customer at least 180 days' prior written notice
indicating its desire to allow this Service Schedule to expire as of the end of the then-current term.
In the event that Customer terminates this Service Schedule other than in compliance with Section 9.2 of the Master
Agreement, Customer shall, in addition to any other rights or remedies available to Navisite under the Master
Agreement, pay to Navisite the remaining amounts owed under the then current term of this Service Schedule.
[Signatures Appear on Following Page]
SERVICE SCHEDULE I PROPRIETARY AND CONFIDENTIAL 19
Docusign Envelope ID: BEFE8801-84F7-4633-99FD-02993F29974C
NAVISITE
Year 2 Optional Extension $21 1,955.00 $172,292.40 $384,287.40 $0
Year 3 Optional Extension $222,594.72 $180,907.02 $403,501.77 $0
Year 4 Optional Extension $233,724.29 $189,952.37 $423,676.86 $0
'Note (f) -On the first day of each calendar year and only after Customer has been receiving Services for twelve (12)
months under the applicable Service Schedule(s) and/or Statement of Work, pricing for Services and Deliverables
shall increase by five percent (5%) of their current pricing.
Cloud Consumption invoicing will commence upon transfer or creation of accounts, organizations, or subscriptions to
or by Navisite.
Cloud Service Estimated Yearly Fee Applicable Yearly Fees Metered Billing Enabled
Amazon Web Services $0 $0 D
Google Cloud Platform $0 $0 □
Microsoft Azure $0 $0 □
Oracle Cloud Infrastructure $0 $0 □
Navicloud $0 $164,088 □
Notes
The intent of the Applicable Yearly Fee and associated scope of services provided in this Service Schedule above
are to ensure the availability and performance of the in-scope environments in addition to performing the support
functions described above. From time to time, Customer may request tasks that fall out of the defined scope of this
Service Schedule. These are requests that would follow the change order approval process and would Incur additional
fees by the Customer. This type of work would be considered project and/or development work. Examples of these
types of work efforts would include, but are not limited to major upgrades, platform changes, software development,
development of new interfaces, application functionality, workflow or reports, etc. In general, the intent is that these
are requests that may require some combination of a scope to be defined, deliverables, a project plan, a project
manager and/or will take longer than two days to complete. Before performing this work, Navislte and Customer will
mutually agree that the request falls outside of the scope.
Notes
The foregoing charges will apply to any Service Schedule between Navisite and Customer only for standard
maintenance services included in the applicable Service Schedule. Any additional services above and beyond such
standard services will incur fees as set forth in Navisite's change order approval process between Customer and
Navisite.
My company requires a
Purchase Order Number
for processing invoices:
Accounts Payable
Contact Information:
~ Yes
□ No
Name:
Email:
Phone Number:
Billing Address:
Billing Address 2:
City, State, ZIP:
If Yes, Purchase Order Number is:
Pending
IT Dept
renewals@carlsbadca.gov
442.339.2791
1635 Faraday Ave
Click or tap here to enter text.
Carlsbad CA, 92008
N SERVICE SCHEDU L E I PROPRIETARY AND CONFIDENTIAL 22
Docusign Envelope ID: BEFE8801-B4F7-4633-99FD-02993F29974C
rJNAVISITE
Windows
Server
Non 2012 R2 2012
lnfor S3 Landmark c1 0qilmd01vw206 Production 4 16 222 Datacenter R2
Windows
Server
2012 R2 2012
lnfor S3 Landmark c1 0qilmp01 vw206 Production 6 16 148 Data center R2
DEV ADFS for Internal Windows
ADFS c10qadfp03vw606 Production 8 12 198 Standard 2016
DEV Web Application
Proxy for External Windows
ADFS c1 0qadfp04vw606 Production 2 4 198 Standard 2016
Windows
Auto Imported c10qilmd01vw208 Production 4 16 169 Standard 2019 -Windows
Auto Imported c10qadcp02vw208 Production 2 8 98 Standard 2019
Windows
Auto Imported c1 0qilmp01 vw208 Production 6 16 146 Standard 2019
Windows
Auto Imported c10qadco01vw208 Production 2 8 98 Standard 2019
Windows
Auto Imported c1 0aitsp01 vw208 Production 2 4 196 Standard 2019
Note -The Quantities specified in Exhibit B for Storage/Backups are estimates based on discovery information.
Customer agrees to pay Navisite for all additional allocated Storage/Backups beyond these estimates at the agreed
upon per GB rate.
Note -Notwithstanding anything to the contrary in the Master Agreement or this Service Schedule and any
amendments thereto, all software licenses purchased at the request of Customer will be invoiced for the entire term(s)
of the software license agreement
The Applications within scope of support are:
Applications and Modules Umt of Measure Quantity Notes
lnfor S3 Named Users 1,800 Up to 1,800 users.
Lawson HR Module Named Users 50 Up to 50 users.
N SERVICE SCHEDULE I PROPRIETARY AN D CONFIDENTIAL 24
Docusign Envelope ID: BEFE8801-84F7-4633-99FD-02993F29974C
INAVISITE
fN
Exhibit C -Rate Card
The following rate card provides pricing for services of system components that may be added to the Customer
environment at Customer request. Applicable services will be itemized and presented to Customer as part of the
quarterly true up. The quarterly true up does not include net new services, which should be addressed with the account
team via a Service Schedule.
Description of Services Unit Monthly Fee One Time Fee
Emergency Services Per Hour $275 $0
Security Incident Response Per Hour $275 $0
SERVICE SCHEDULE I PROPRIETARY AND CONFIDENTIAL 25