3-LASC IT Terms and Conditions 2.0 (2020-01).docx

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

IT TERMS AND CONDITIONS 2.0

Data and Security.

A. Data Security.

(1) Contractor shall comply with Data Safeguards, defined as industry-standard safeguards against the destruction, loss, misuse, unauthorized disclosure, or alteration of the Court’s data or Confidential Information, and such other related safeguards that are set forth in applicable laws, a statement of work, or pursuant to the Court’s policies or procedures.

(2) Contractor personnel and subcontractors shall not attempt to access, and shall not allow access to the Court’s data and other Confidential Information that is not required for providing the Work by such personnel or subcontractors. In the event Contractor or a subcontractor discovers or is notified of a breach or potential breach of security relating to the Court’s data or other Confidential Information, Contractor shall promptly, at its own expense: (i) notify the Court Project Manager of such breach or potential breach; and (ii) if the applicable Court data or other Confidential Information was in the possession of Contractor or subcontractors at the time of such breach or potential breach, Contractor shall (1) investigate and cure the breach or potential breach and (2) take measures satisfactory to the Court to prevent such breach or potential breach from recurring.

B. Security Assessments.

Upon the Court’s request, Contractor shall, at its expense, perform, or cause to have performed an assessment of Contractor’s compliance with the safety and security policies set forth in this Agreement. Contractor shall provide to the Court the results, including any findings and recommendations made by Contractor’s assessors, of such assessment, and, at its expense, take any corrective actions. The Court may, at the Court’s expense, perform the assessments described in this subsection and “snap” assessments (e.g., safety and data/physical security assessments) of the court facilities.

Intellectual Property.

C. Contractor shall perform its obligations under this Agreement in a manner that the Work (including each Deliverable) and any portion thereof, does not infringe, or constitute an infringement, misappropriation or violation of, any intellectual property right. Contractor has full Intellectual Property Rights and authority to perform all of its obligations under this Agreement, and Contractor is and will be either the owner of, or authorized to use for its own and the Court’s benefit, all Contractor Materials, Third Party Materials, and Licensed Software used and to be used in connection with the Work.

D. Contractor/Third Party Materials.

The Court shall have the right to approve in writing the introduction of any Contractor materials or third party materials into any work prior to such introduction. Contractor grants to the Court, together with all Court Contractors, without additional charge, a perpetual, irrevocable, royalty-free, fully paid-up, worldwide, non-exclusive license to use, reproduce, perform, display, transmit, distribute, modify, create derivative works of, make, have made, sell, offer for sale and import Contractor materials and third party materials (including Source Code) and to sublicense such rights to other entities, in each case for California judicial branch business and operations.

E. Rights in Developed Materials.

Notwithstanding any provision to the contrary, upon their creation the developed materials (and all Intellectual property rights therein) will be the sole and exclusive property of the Court. Contractor hereby irrevocably assigns, transfers and conveys to the Court without further consideration all worldwide right, title and interest in and to the developed materials, including all intellectual property rights therein. Contractor further agrees to execute, and shall cause Contractor’s Project Director and/or subcontractors to execute, any documents or take any other actions as may be reasonably necessary or convenient to perfect the Court’s or its designee’s ownership of any developed materials and to obtain and enforce intellectual property rights in or relating to developed materials. Contractor shall promptly notify the Court upon the completion of the development, creation or reduction to practice of any and all developed materials.

F. Retention of Rights.

The Court retains all rights, title and interest (including all intellectual property rights) in and to any Court materials owned, licensed, made, conceived, or reduced to practice by the Court or a Court contractor, any materials developed or acquired separate from this Agreement, and all modifications, enhancements, derivative works, and intellectual property rights in any of the foregoing. Subject to rights granted herein, Contractor retains all rights, title and interest (including all intellectual property rights) in and to any Contractor materials owned or developed prior to the provision of Work, or developed by Contractor independently from the provision of the Work and without the use of Court Materials or confidential information.

G. Third Party Rights.

Contractor hereby assigns to the Court all of Contractor’s licenses and other rights (including any representations, warranties, or indemnities that inure to Contractor from third parties) to all third party materials incorporated into the work. If such licenses and rights cannot be validly assigned to or passed through to the Court by Contractor without a third party’s consent, then Contractor will use its best efforts to obtain such consent (at Contractor’s expense) and will indemnify and hold harmless the Court against all claims arising from Contractor’s failure to obtain such consent.

Upgrade.

Contractor shall promptly provide the Court with all upgrades, including without limitation: (i) all upgrades generally made available by Contractor to its other customers; (ii) upgrades as necessary so that the Work complies with the Agreement and any applicable laws (including changes in applicable laws); (iii) upgrades as necessary so that the Work operates under new versions or releases of the Court’s operating system or database platform; and (iv) all on-site services necessary for installation of upgrades. Without limiting any other obligation of Contractor under this Agreement, Contractor represents and warrants that it will maintain services, equipment, software or any other part of the Work so that they operate in accordance with the Agreement.

Malicious Code.

H. No Work will contain any Malicious Code, defined as any (i) program routine, device or other feature or hidden file, including any time bomb, virus, software lock, trojan horse, drop-dead device, worm, malicious logic or trap door that may delete, disable, deactivate, interfere with or otherwise harm any of the Court’s hardware, software, data or other programs, and (ii) hardware-limiting, software-limiting or services-limiting function (including any key, node lock, time-out or other similar functions), whether implemented by electronic or other means.

I. Contractor shall immediately provide to the Court written notice in reasonable detail upon becoming aware of the existence of any Malicious Code. Without limiting the foregoing, Contractor shall use best efforts and all necessary precautions to prevent the introduction and proliferation of any Malicious Code in the Court’s IT Infrastructure or networks or in the Contractor systems used to provide Work. In the event Contractor or the Court discovers the existence of any Malicious Code, Contractor shall use its best efforts, in cooperation with the Court, to effect the prompt removal of the Malicious Code from the Work and the Court’s IT Infrastructure and the repair of any files or data corrupted thereby, and the expenses associated with the removal of the Malicious Code and restoration of the data shall be borne by Contractor. In no event will Contractor or any Subcontractor invoke any Malicious Code.

Four-Digit Date Compliance.

Contractor represents and warrants that it will provide only Four-Digit Date Compliant deliverables and services to the Court. “Four-Digit Date Compliant” deliverables and services can accurately process, calculate, compare, and sequence date data, including date data arising out of or relating to leap years and changes in centuries. This warranty and representation is subject to the warranty terms and conditions of this Agreement and does not limit the generality of warranty obligations set forth elsewhere in this Agreement.

Liquidated Damages.

J. In the event that Contractor fails to complete Work in accordance with the Agreement within the time parameters specified, and fails to provide suitable substitutions of Work acceptable to the Court, the Parties agree that the delay will interfere with the proper implementation of the Court’s operations or programs to the loss and damage of the Court. From the nature of the case, it may be impracticable and extremely difficult to fix the actual damages sustained in the event of any such delay. The Court and Contractor, therefore, presume that in the event of any such delay, the amount of damage which will be sustained from such delay and payable to the Court as liquidated damages, and not as a penalty, will be $500 for each and every day’s delay in excess of the allotted time parameters set forth in the Agreement. In the event Contractor fails to pay such liquidated damages, the Court may deduct the amount from any money payable to Contractor under the Agreement.

(1) If Contractor is delayed by reason of force majeure events, change orders or stop orders, or additional Work requested by the Court, or delays directly caused by the Court, the time of Contractor’s performance may be extended by written agreement by the Court’s Project Manager. Contractor will be relieved of paying liquidated damages for the period of such extension.

(2) Although the Court, at its option, may waive the payment of liquidated damages, nothing herein will be construed as affording Contractor any additional time for performance. The Court will notify Contractor in writing of any claim for liquidated damages pursuant to this section on or before the date the Court deducts such sums from money payable to Contractor.

Pass Through of Warranties.

Where Contractor resells hardware or software it purchased from a third party, and such third party offers additional or more advantageous warranties than those set forth herein, Contractor will pass through any such warranties to the Court and will reasonably cooperate in enforcing them. Such warranty pass-through will be supplemental to, and not relieve Contractor from, Contractor’s warranty obligations set forth in the Agreement.

Special Warranty Provisions Relating to Software.

K. In addition to the other warranties set forth herein, where the Agreement involves the furnishing of software (regardless of whether such software is installed on the Court’s systems or accessible via an online interface), Contractor warrants that such software (i) is free of harmful code (e.g., viruses, worms) and will run without material interruption; (ii) will perform in accordance with its license and accompanying documentation; and (iii) will not cause any material fault, loss, or malfunction in the Court’s existing systems. The Court’s approval of designs or specifications furnished by Contractor will not relieve the Contractor of its obligations under this warranty.

L. Contractor warrants that Contractor will not cause any unplanned interruption in the operations of, or accessibility to, any software furnished under the Agreement or any portion thereof through any device, method, or means including, without limitation, the use of any virus, worm, “lockup,” “time bomb,” or “key lock” device or program, or other disabling code, which (i) has the potential or capability of causing any unplanned interruption in the operations of, or accessibility of any Goods or Services or any portion thereof; (ii) could alter, destroy, or inhibit use of any Goods or Services or any portion thereof; or (iii) which could block access to or prevent use of any Goods or Services or any portion thereof by the Court or its users (collectively, “Disabling Device(s)”). Contractor further represents and warrants that it has not purposely placed, nor is it aware of, any Disabling Device on any portion of the Goods or Services furnished to the Court under the Agreement, nor shall Contractor knowingly permit any subsequently delivered portion of the Goods or Services to contain any Disabling Device. Without limiting the foregoing, if the Court believes that harmful code may be present in any software delivered hereunder, Contractor will, upon the Court’s request, provide a master copy of the software for comparison and correction.

Subcontracting of Software Maintenance and Support.

The Court acknowledges and agrees that Contractor is the authorized reseller of software owned by the manufacturer and, as such, software maintenance and support may be provided by the manufacturer. The Court approves the provision of software maintenance by the manufacturer and agrees that the prohibition against subcontracting is not applicable to the relationship between the manufacturer and Contractor.

END OF IT TERMS AND CONDITIONS

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