Attachment_2_-_General_Terms_and_Conditions-Defined_Terms.docx

IFB 25-08 Stamps

ATTACHMENT 2: GENERAL TERMS AND CONDITIONS/DEFINED TERMS

I. GENERAL TERMS AND CONDITIONS

1. WORK

Work. Contractor shall provide the Work described in this Agreement, including the Statement of Work and the Specifications. Except as set forth in the Statement of Work, Contractor is responsible for providing all facilities, materials and resources (including personnel, equipment and software) necessary and appropriate for delivery of the Work and to meet Contractor's obligations under this Agreement. Unless otherwise approved by the Court in writing in advance, Work may not be performed outside of the United States.

Stop Work Orders.

Effect. The Court may, at any time, by written Stop Work Order to Contractor, require Contractor to stop all, or any part, of the Work for a period of up to ninety (90) days after the Stop Work Order is delivered to Contractor, and for any further period to which the Parties may agree. Upon receipt of a Stop Work Order, Contractor shall promptly comply with the terms of the Stop Work Order and take all reasonable steps to end the incurrence of any costs, expenses or liabilities allocable to the Work covered by the Stop Work Order during the period of work stoppage. Within ninety (90) days after a Stop Work Order is delivered to Contractor, or within any extension of that period mutually agreed to by the Parties, the Court shall either: (i) cancel the Stop Work Order; or (ii) terminate the Work covered by the Stop Work Order. The Court shall not be liable to Contractor for loss of profits because of a Stop Work Order issued under this provision.

Expiration or Cancellation. If a Stop Work Order is canceled by the Court or the period of the Stop Work Order or any extension thereof expires, Contractor shall promptly resume the Work covered by such Stop Work Order. The Court shall make an equitable adjustment in the delivery schedule, and the applicable Statement of Work shall be modified, in writing, accordingly, if: (i) the Stop Work Order directly and proximately results in an increase in the time required for the performance of any part of the Statement of Work; and (ii) Contractor asserts its right to such equitable adjustment within thirty (30) days after the end of the period of work stoppage.

Change Orders. From time to time during the term of this Agreement, the Parties may mutually agree in writing to a change to the Work, which may require an extension or reduction in the schedule and/or an increase or decrease in the fees and expenses and/or the Work (each, a “Change”), including: (a) a change to the scope or functionality of the Deliverables; or (b) a change to the scope of the Work. In the event the Parties agree on a Change, the Parties will seek to mutually agree on a change order identifying the impact and setting forth any applicable adjustments in the Statement of Work and/or payments to Contractor. An authorized representative of each Party shall promptly sign the mutually agreed upon change order to acknowledge the impact and to indicate that Party’s agreement to the adjustments.

Third Party or Court Services. Notwithstanding anything in this Agreement to the contrary, the Court shall have the right to perform or contract with a Third Party to provide any services or goods within or outside the scope of the Work, including services to augment or supplement the Work. In the event the Court performs or contracts with a Third Party to perform any such service, Contractor shall cooperate in good faith with the Court and any such Third Party, to the extent reasonably required by the Court. Such cooperation shall include, without limitation, providing such information as a person with reasonable commercial skills and expertise would find reasonably necessary for the Court or a Third Party to perform its services relating to the Work.

Data and Security. If Contractor is granted access to Court Data, Confidential Information or Court Work Locations in the performance of the Work;

Data Security. Contractor shall comply with the Data Safeguards. Contractor personnel and Subcontractors shall not attempt to access, and shall not allow access to the Court 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 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) disclose the breach in accordance with Applicable Law and (3) take measures satisfactory to the Court to prevent such breach or potential breach from recurring.

Safety and Security Procedures. Contractor shall maintain and enforce, at the Contractor Work Locations, industry-standard safety and physical security policies and procedures. While at each Court Work Location, Contractor shall comply with the safety and security policies and procedures in effect at such Court Work Location.

Security Assessments. At least once a year, or 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 or any Statement of Work. 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 and all necessary corrective actions. The Court and Court Contractors may, at the Court’s expense, perform the assessments described in this Section and “snap” assessments (e.g., safety and data/physical security assessments) of the Court Work Locations.

Project Staff. If specified in or unless otherwise provided for in the Statement of Work:

Contractor Project Manager. The Contractor Project Manager shall serve, from the Effective Date, as the Contractor project manager and primary Contractor representative under this Agreement. The Contractor Project Manager shall (i) have overall responsibility for managing and coordinating the performance of Contractor’s obligations under this Agreement, including the performance of all Subcontractors; and (ii) be authorized to act for and bind Contractor and Subcontractors in connection with all aspects of this Agreement. The Contractor Project Manager shall respond promptly and fully to all inquiries from the Court Project Manager.

Contractor Key Personnel. The Court reserves the right to interview and approve proposed Contractor Key Personnel prior to their assignment to the Court. Contractor shall not replace or reassign any Contractor Key Personnel unless the Court consents in advance in writing or such Contractor Key Personnel (i) voluntarily resigns or takes a leave of absence from Contractor, (ii) has his/her employment, professional or other for-hire relationship terminated by Contractor, (iii) fails to perform his or her duties and responsibilities pursuant to this Agreement, or (iv) dies or is unable to work due to his or her disability. If Contractor needs to replace any Contractor Key Personnel for any of the foregoing reasons, Contractor shall (1) notify the Court promptly, (2) provide resumes for proposed replacement Contractor Key Personnel within two (2) Business Days after so notifying the Court, and (3) be responsible for all costs and expenses associated with any replacement of any Contractor Key Personnel member (including, without limitation, any costs and expenses associated with training, project orientation or knowledge transfer reasonably required for replacement personnel to provide the applicable Work).

Subcontractors. Contractor shall not subcontract or delegate any of the obligations under this Agreement except as approved by the Court in writing in advance. The Court may withdraw its approval of a Subcontractor if the Court determines in good faith that the Subcontractor is, or will be, unable to effectively perform its responsibilities. If the Court rejects any proposed Subcontractor in writing, Contractor will assume the proposed Subcontractor’s responsibilities. No subcontracting shall release Contractor from its responsibility for performance of its obligations under this Agreement. Contractor shall remain fully responsible for the performance of Subcontractors hereunder, including, without limitation, all work and activities of Subcontractors providing services to Contractor in connection with the Work. Contractor shall be the sole point of contact with Subcontractors under this Agreement, and Contractor shall be solely responsible for Subcontractors, including, without limitation, payment of any and all charges resulting from any subcontract. The Court’s consent to any subcontracting or delegation of Contractor’s obligations will take effect only if there is a written agreement with the Subcontractor, stating that the Contractor and Subcontractor: (i) are jointly and severally liable to the Court for performing the duties in this Agreement; (ii) affirm the rights granted in this Agreement to the Court; (iii) make the representations and warranties made by the Contractor in this Agreement; (iv) appoint the Court as an intended Third Party beneficiary under Contractor’s written agreement with the Subcontractor; and (v) shall comply with and be subject to the terms of this Agreement, including with respect to Intellectual Property Rights, Confidential Information and Data Safeguards.

Project Staff. Contractor shall appoint to the Project Staff: (i) individuals with suitable training and skills to provide the Work, and (ii) sufficient staffing to adequately provide the Work. Contractor shall make commercially reasonable efforts consistent with sound business practices to honor the specific request of the Court with regard to assignment of its employees. The Court may require Contractor to remove any personnel from the Project Staff that interact with any personnel of the Court or Court Contractors (including, without limitation, the Contractor Project Manager) upon providing to Contractor a reason (permitted by law) for such removal. Contractor may, with the Court’s consent, continue to retain such member of the Project Staff in a role that does not interact with any personnel of the Court or Court Contractors. The Contractor Project Manager and the Court Project Manager shall work together to mitigate any impact on the schedule as set forth in a Statement of Work caused by any replacement of a Project Staff member. Contractor shall be responsible for all costs and expenses associated with any Project Staff replacement. Contractor shall assure an orderly and prompt succession for any Project Staff member who is replaced.

Conduct of Project Staff. (i) While at the Court Work Locations, Contractor shall, and shall cause Subcontractors to: (1) comply with the requests, standard rules and regulations and policies and procedures of the Court regarding safety and health, security, personal and professional conduct generally applicable to such Court Work Locations, and (2) otherwise conduct themselves in a businesslike manner. (ii) Contractor shall enter into an agreement with each member of the Project Staff, which assigns, transfers, and conveys to Contractor all of such Project Staff member’s right, title, and interest in and to any Developed Materials, including all Intellectual Property Rights in and to Developed Materials. (iii) Contractor shall cooperate with the Court if the Court wishes to perform a background check or drug test on any of Contractor’s employees or Subcontractors by (1) obtaining, at no additional cost, all releases, waivers, and permissions the Court may require, and (2) reimbursing the Court for the cost of each background check and drug test. (iv) Contractor shall provide prompt notice to the Court and immediately remove from Project Staff or not assign to Work any person who refuses to undergo a background check or drug test or any person whose background check or drug test result is unacceptable to Contractor or the Court.

Licenses and Approvals. Contractor shall obtain and keep current all necessary licenses, approvals, permits and authorizations required by Applicable Law to provide the Work. Contractor will be responsible for all fees and taxes associated with obtaining such licenses, approvals, permits and authorizations, and for any fines and penalties arising from its noncompliance with any Applicable Law.

Progress Reports. As directed by the Court, Contractor must deliver progress reports or meet with Court personnel on a regular basis to allow: (a) the Court to determine whether the Contractor’s performance is satisfactory and timely pursuant to the terms of this Agreement and the project is on schedule, (b) communication of interim findings, and (c) opportunities for airing difficulties or special problems encountered so that remedies can be developed quickly.

Maintenance and Support Services. If this Agreement is for IT goods or services, this section applies: Unless otherwise specified in this Agreement:

The 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 Specifications and Applicable Law (including changes in Applicable Law); (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 their Specifications and Documentation; and The Contractor shall respond to the Court within four (4) hours after the Court reports a Technical Support Incident (such hours all occurring during Standard M&S Hours) to Contractor.

2. DELIVERY, ACCEPTANCE, AND PAYMENT

Delivery. Contractor shall deliver to the Court the Deliverables in accordance with this Agreement, including the Statement of Work. Unless otherwise specified by this Agreement, Contractor will deliver all goods purchased by the Court “Free on Board Destination Freight Prepaid” to the Court at the address and location specified by the Court. Title to all goods purchased by the Court vests in the Court upon payment of the applicable purchase price. Contractor will bear the risk of loss for any Work being delivered until received by the Court at the proper location. All shipments by Contractor or its Subcontractors must include packing sheets identifying: this Agreement number, the Court’s purchase order number, item number, quantity and unit of measure, part number and description of the goods shipped, and appropriate evidence of inspection, if required. Goods for different Agreements shall be listed on separate packing sheets.

Acceptance. All Work is subject to inspection and written acceptance by the Court. The Court may reject any Work that: (a) fails to meet applicable requirements, Specifications, acceptance criteria, or is substituted for items ordered; (b) are not as warranted; (c) are performed or delivered late, or not provided in accordance with this Agreement; (d) shipped in excess or deficient quantities; or (e) contain Defects. Payment does not imply acceptance of Contractor’s invoice or Work. If the Court provides Contractor a notice of rejection for any Work, Contractor shall modify such rejected Work at no expense to the Court to correct the relevant deficiencies and shall redeliver such Work to the Court within ten Business Days after Contractor’s receipt of such notice of rejection, unless otherwise agreed in writing by the Parties. Thereafter, the Parties shall repeat the process set forth in this Section until Contractor’s receipt of the Court’s written acceptance of such corrected Work (each such Court written acceptance, an “Acceptance”); provided, however, that if the Court rejects any Work on at least two occasions, the Court may terminate that portion of this Agreement which relates to the rejected Work at no expense to the Court.

Fees and Payment. Subject to the terms of this Agreement, the Contractor shall invoice the Court, and the Court shall compensate Contractor, as set forth in Payment Provisions. The fees to be paid to Contractor under this Agreement shall be the total and complete compensation to be paid to Contractor for its performance under this Agreement. Contractor shall bear, and the Court shall have no obligation to pay or reimburse Contractor for, any and all other fees, costs, profits, taxes or expenses of any nature that Contractor incurs.

3. REPRESENTATIONS AND WARRANTIES Contractor represents and warrants to the Court as follows:

Authorization/Compliance with Laws. (a) Contractor has full power and authority to enter into this Agreement, to grant the rights and licenses herein and to perform its obligations under this Agreement, and that Contractor’s representative who signs this Agreement has the authority to bind Contractor to this Agreement; (b) the execution, delivery and performance of this Agreement have been duly authorized by all requisite corporate action on the part of Contractor; (c) Contractor shall not and shall cause Subcontractors not to enter into any arrangement with any Third Party which could reasonably be expected to abridge any rights of the Court under this Agreement; (d) this Agreement constitutes a valid and binding obligation of Contractor, enforceable in accordance with its terms; (e) Contractor is qualified to do business and in good standing in the State of California; (f) Contractor, its business, and its performance of its obligations under this Agreement comply with all Applicable Laws; and (g) Contractor pays all undisputed debts when they come due.

Child Support Compliance Act. If the Contract Amount is $100,000 or more this section applies: (a) Contractor recognizes the importance of child and family support obligations and fully complies with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with section 5200) of Part 5 of Division 9 of the Family Code; and (b) Contractor provides the names of all new employees to the New Hire Registry maintained by the California Employment Development Department.

Conflict Minerals. If this Agreement is for goods that contain these minerals and Contractor did not provide to Court a Conflict Minerals certification as part of the solicitation process, this section applies: Contractor certifies either: (a) it is not a “scrutinized company” as defined in PCC 10490(b), or (b) the goods or services the Contractor will provide to the Court are not related to products or services that are the reason the Contractor must comply with Section 13(p) of the Securities Exchange Act of 1934.

Darfur Contracting Act. If Contractor did not provide to Court a Darfur Contracting Act certification as part of the solicitation process, this section applies: Contractor certifies that either (a) it does not currently, and it has not within the previous three years, business activities or other operations outside of the United States, or (2) it is a “scrutinized company” as defined in PCC 10476, but it has received written permission for the Court to submit a bid or proposal pursuant to PCC 10477(b), or (3) it has, or it has had within the previous three years, business activities or other operations outside of the United States, but it is not a “scrutinized company” as defined in PCC 10476.

Domestic Partners, Spouses, and Gender Discrimination. If the Contract Amount is $100,000 or more this section applies: Contractor is in compliance with Public Contract Code section 10295.3, which places limitations on contracts with contractors whose benefits provisions discriminate between employees with spouses and employees with domestic partners.

Drug Free Workplace. Contractor provides a drug-free workplace as required by California Government Code sections 8355 through 8357.

Not an Expatriate Corporation. Contractor is not an expatriate corporation or subsidiary of an expatriate corporation within the meaning of Public Contract Code section 10286.1, and is eligible to contract with the Court.

Four-Digit Date Compliance. Contractor will provide only Four-Digit Date Compliant Work to the Court. “Four-Digit Date Compliant” Work can accurately process, calculate, compare, and sequence date data, including without limitation date data arising out of or relating to leap years and changes in centuries.

Good Standing. If Contractor is a corporation, limited liability company, or limited partnership, and this Agreement is performed in whole or in part in California, this section applies: Contractor is, and will remain for the Term, qualified to do business and in good standing in California.

No Gratuities or Conflict Of Interest. Contractor: (a) has not directly or indirectly offered or given any gratuities (in the form of entertainment, gifts, or otherwise), to any Court Personnel with a view toward securing this Agreement or securing favorable treatment with respect to any determinations concerning the performance of this Agreement; and (b) has no interest that would constitute a conflict of interest under Public Contract Code sections 10365.5, 10410 or 10411; Government Code sections 1090 et seq. or 87100 et seq.; or California Rules of Court, rule 10.103 or 10.104, which restrict employees and former employees from contracting with the Court.

No Harassment/Non-Discrimination. Contractor does not engage in unlawful harassment, including sexual harassment, with respect to any persons with whom Contractor may interact in the performance of this Agreement, and Contractor takes all reasonable steps to prevent harassment from occurring. Contractor complies with the federal Americans with Disabilities Act (42 U.S.C. 12101 et seq.), and California’s Fair Employment and Housing Act (Government Code sections 12990 et seq.) and associated regulations (Code of Regulations, title 2, sections 7285 et seq.). Contractor does not unlawfully discriminate against any employee or applicant for employment because of age (40 and over), ancestry, color, creed, disability (mental or physical) including HIV and AIDS, marital or domestic partner status, medical condition (including cancer and genetic characteristics), national origin, race, religion, request for family and medical care leave, sex (including gender and gender identity), and sexual orientation. Contractor has notified in writing each labor organization with which Contractor has a collective bargaining or other agreement of Contractor’s obligations of non-discrimination. The Contractor shall include the non-discrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement.

Intellectual Property. 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.

No Interference. To the best of Contractor’s knowledge, this Agreement does not create a material conflict of interest or breach under any of Contractor’s other contracts.

Iran Contracting Act. If the Contract Amount is $1,000,000 or more and Contractor did not provide to Court an Iran Contracting Act certification as part of the solicitation process, this section applies: Contractor certifies either (a) it is not on the current list of persons engaged in investment activities in Iran (“Iran List”) created by the California Department of General Services pursuant to PCC 2203(b), and is not a financial institution extending $20,000,000 or more in credit to another person, for forty-five (45) days or more, if that other person will use the credit to provide goods or services in the energy sector in Iran and is identified on the Iran List, or (b) it has received written permission from the Court to enter into this Agreement pursuant to PCC 2203(c).

No Litigation. No Claim or governmental investigation is pending or threatened against or affecting Contractor or Contractor’s business, financial condition, or ability to perform this Agreement.

Malicious Code. No Work will contain any Malicious Code. 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.

National Labor Relations Board Orders. No more than one, final unappealable finding of contempt of court by a federal court has been issued against Contractor within the immediately preceding two-year period because of Contractor’s failure to comply with an order of a federal court requiring Contractor to comply with an order of the National Labor Relations Board. Contractor swears under penalty of perjury that this representation is true.

Sales and Use Tax. Contractor collects and remits sales and use taxes as and to the extent required under the Revenue and Taxation Code.

Sweatshop Labor. If this Agreement provides for the laundering of apparel, garments or corresponding accessories, or for furnishing equipment, materials, or supplies other than for public works, this section applies: Contractor certifies that no apparel, garments or corresponding accessories, equipment, materials, or supplies furnished to the Court under this Agreement have been laundered or produced in whole or in part by sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor, or with the benefit of sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor. Contractor adheres to the Sweatfree Code of Conduct as set forth on the California Department of Industrial Relations website located at www.dir.ca.gov, and PCC 6108. Contractor agrees to cooperate fully in providing reasonable access to Contractor’s records, documents, agents, and employees, and premises if reasonably required by authorized officials of the Department of Industrial Relations, or the Department of Justice to determine Contractor’s compliance with the requirements under this section and shall provide the same rights of access to the Court.

Tax Delinquency. If this Agreement is for non-IT goods or services, this section applies: Contractor must provide notice to the Court immediately if Contractor has reason to believe it may be placed on either (a) the California Franchise Tax Board’s list of 500 largest state income tax delinquencies, or (b) the California Board of Equalization’s list of 500 largest delinquent sales and use tax accounts. The Court may terminate this Agreement immediately “for cause” pursuant to Section 8.3 below if (i) Contractor fails to provide the notice required above, or (ii) Contractor is included on either list mentioned above.

Unruh Civil Rights Act and California Fair Employment and Housing Act. If the Contract Amount is $100,000 or more and Contractor did not provide to Court an Unruh Civil Rights Act and California Fair Employment and Housing Act certification as part of the solicitation process, this section applies: Contractor certifies that it is (a) in compliance with the Unruh Civil Rights Act (Section 51 of the California Civil Code); (b) in compliance with the California Fair Employment and Housing Act (Chapter 7 (commencing with Section 12960) of Part 2.8 of Division 3 of the Title 2 of the California Government Code); and (c) Contractor does not have any policy against any sovereign nation or peoples recognized by the government of the United States, including, but not limited to, the nation and people of Israel, that is used to discriminate in violation of the Unruh Civil Rights Act (Section 51 of the Civil Code) or the California Fair Employment and Housing Act (Chapter 7 (commencing with Section 12960) of Part 2.8 of Division 3 of Title 2 of the Government Code).

Work. (a) the Work will be rendered with promptness and diligence and will be executed in a workmanlike manner, in accordance with the practices and professional standards used in well-managed operations performing services similar to the Work; (b) Contractor will use efficiently the resources or services necessary to provide the Work; and provide the Work in the most cost efficient manner consistent with the required level of quality and performance; (c) the Work will be merchantable for its intended purpose, and provided free and clear of all liens, claims, and encumbrances; (d) all Work will be free from all defects in materials and workmanship, and will be in accordance with Specifications, Documentation, Applicable Laws, and other requirements of this Agreement; and (e) all goods purchased by the Court from Contractor will be new. The foregoing representation and warranty in Section 3.22(d) shall commence upon the Court’s Acceptance of the applicable Work, and shall continue for a period of one year following such Acceptance unless otherwise provided for in Agreement. In the event any Work does not conform to the foregoing provisions of this Section 3.22, Contractor shall promptly correct all non-conformities.

Miscellaneous. The rights and remedies of the Court provided in this Section 3 will not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. The representations and warranties that Contractor makes in this Section 3 shall be true and accurate as of the Effective Date, and shall remain true during the term of this Agreement and the Termination Assistance Period. Contractor shall promptly notify the Court if any representation or warranty becomes untrue.

4. INTELLECTUAL PROPERTY If this Agreement is for IT goods and/or services, this section applies:

Contractor/Third Party Materials. Contractor shall set forth in an exhibit to each Statement of Work all Contractor Materials and Third Party Materials that Contractor intends to use in connection with that Statement of Work. 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 Court business and operations.

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 (for itself, Project Staff and Subcontractors) 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 Project Staff and 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.

Retention of Rights. The Court retains all rights, title and interest (including all Intellectual Property Rights) in and to the Court Materials. Subject to rights granted herein, Contractor retains all rights, title and interest (including all Intellectual Property Rights) in and to the Contractor Materials.

Third Party Rights. Contractor hereby assigns to 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 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 and Court Personnel against all Claims arising from Contractor’s failure to obtain such consent.

5. CONFIDENTIALITY

General Obligations. During the Term and at all times thereafter, Contractor will: (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any Third Party without obtaining the Court’s express prior written consent on a case-by-case basis. Contractor will disclose Confidential Information only to Project Staff (including Subcontractors) with a need to know in order to provide the Work hereunder and who have executed a confidentiality agreement with Contractor at least as protective as the provisions of this Section 5. The provisions of this Section 5 shall survive beyond the expiration or termination of this Agreement. Contractor will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as Contractor protects its own confidential or proprietary information of a similar nature, and with no less than reasonable care and industry-standard care. The Court owns all right, title and interest in the Confidential Information. Contractor will notify the Court promptly upon learning of any unauthorized disclosure or use of Confidential Information and will cooperate fully with the Court to protect such Confidential Information.

Removal/Return. Contractor will not remove any Confidential Information from Court facilities or premises without the Court’s express prior written consent. Upon the Court’s request and upon any termination or expiration of this Agreement, Contractor will promptly (a) return to the Court or, if so directed by the Court, destroy all Confidential Information (in every form and medium), and (b) certify to the Court in writing that Contractor has fully complied with the foregoing obligations.

Breach of Confidentiality. Contractor acknowledges that there can be no adequate remedy at law for any breach of Contractor’s obligations hereunder, that any such breach will likely result in irreparable harm, and therefore, that upon any breach or threatened breach of the confidentiality obligations, the Court shall be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to its other remedies at law.

6. INDEMNIFICATION

General Indemnity. Contractor shall indemnify, defend (with counsel satisfactory to the Court), and hold harmless Court and Court Personnel against all Claims founded upon: (a) a latent or patent defect in any goods, (b) an act or omission of Contractor, its agents, employees, independent contractors, or Subcontractors in the performance of this Agreement, (c) a breach of a representation, warranty, or other provision of this Agreement, and/or (d) an infringement or misappropriation of any trade secret, patent, copyright or Third Party Intellectual Property Rights (collectively, the “Covered Items”). This indemnity applies regardless of the theory of liability on which a claim is made or a loss occurs. This indemnity will survive the expiration or termination of this Agreement, and acceptance of any goods, services, or Deliverables. Contractor shall not make any admission of liability or other statement on behalf of an indemnified party or enter into any settlement or other agreement which would bind an indemnified party, without the Court’s prior written consent, which consent shall not be unreasonably withheld; and the Court shall have the right, at its option and expense, to participate in the defense and/or settlement of a claim through counsel of its own choosing. Contractor’s duties of indemnification exclude indemnifying a party for that portion of losses and expenses that are finally determined by a reviewing court to have arisen out of the sole negligence or willful misconduct of the indemnified party.

Certain Remedies. If any Covered Item provided under this Agreement becomes, or in Contractor’s or the Court’s reasonable opinion is likely to become, the subject of any Claim arising from or alleging infringement, misappropriation or other violation of, or in the event of any adjudication that such Covered Item infringes, misappropriates or otherwise violates any Intellectual Property Right of a Third Party, Contractor at its own expense shall take the following actions in the listed order of preference: (a) secure for the Court the right to continue using the applicable Covered Item; or (b) if commercially reasonable efforts are unavailing, replace or modify the infringing Covered Item to make it noninfringing; provided, however, that such modification or replacement shall not degrade the operation or performance of the Covered Item.

7. INSURANCE

General Requirements. General Requirements for Contractor’s insurance that is required during the term of this Agreement:

Contractor will maintain the required insurance for its operations with an insurance company or companies that are rated “A- VII” or higher by A.M. Best’s key rating guide and authorized to do business in the State of California. If Contractor is a public agency, the insurance may be provided through a joint power authority formed for the purpose of jointly self-insuring the cost of claims and insurance costs; and For all insurance policies required by this Section 7, Contractor will declare any deductible or self-insured retention (SIR). Any deductible or SIR shall be clearly stated on the appropriate certificate of insurance; and If self-insured, Contractor agrees to administer its self-insurance program in a commercially reasonable manner to ensure the availability of funds to cover losses required to be insured against by the Contractor under the terms of this Section 7; and Contractor, prior to commencement of the Work, will provide the Court with certificates of insurance and signed insurance policy endorsements, on forms acceptable to the Court, as evidence that the required insurance is in effect. Where applicable, each certificate of insurance and signed insurance policy endorsement shall specifically provide verification that the State of California, the Judicial Council of California, and the Superior Court of California, County of San Bernardino, and their respective elected and appointed officials, judges, officers, and employees have been added as additional insureds on the insurance policy being referenced; and The Certificates of Insurance shall be addressed as follows:

Superior Court of California, County of San Bernardino Attn: Contracts and Procurement 247 West Third Street, 11th Floor San Bernardino, CA 92415-0066 All insurance policies required under this Section 7 shall be in force until the end of the term of this Agreement or completion of the Work, whichever comes later; and If the insurance expires during the term of this Agreement, the Contractor shall immediately renew or replace the required insurance and provide a new current certificate of insurance and signed insurance policy endorsements, or Contractor may be declared in breach of this Agreement. The Court reserves the right to withhold all progress and retention payments until the breach is cured to the satisfaction of the Court. Contractor must provide renewal insurance certificates and signed policy endorsements to the Court no more than ten (10) days following the expiration of the previous insurance certificates and signed policy endorsements; and In the event the Contractor fails to keep in effect the specified insurance coverage, the Court may, in addition to any other remedies it may have, terminate this Agreement upon the occurrence of such event, subject to the provisions of this Agreement; and The Commercial General Liability and Automobile Liability insurance required by the “Insurance Requirements” herein below, as well as any Excess/Umbrella Liability insurance that Contractor maintains in compliance with the terms of this Section 7 shall be endorsed to include the State of California, the Judicial Council of California, and the Superior Court of California, County of San Bernardino, and their respective elected and appointed officials, judges, officers, and employees as additional insureds, but only with respect to liability assumed by Contractor under the terms of this Agreement or liability arising out of the performance of the Work; and Contractor, and any insurer by policy endorsement providing insurance required under the terms of this Section 7, shall waive any right of recovery or subrogation it may have against the State of California, the Judicial Council of California, and the Superior Court of California, County of San Bernardino, and their respective elected and appointed officials, judges, officers, and employees for direct physical loss or damage to the work, or for any liability arising out of the Work performed by Contractor under this Agreement; and All insurance policies required under this Section 7 shall be endorsed to provide that coverage will not be materially changed or canceled without thirty (30) days’ prior written notice to the Court. Notice to the Court of cancellation or material change is the responsibility of the Contractor; and Contractor shall be responsible for and may not recover from the State of California, the Judicial Council of California, or the Superior Court of California, County of San Bernardino any deductible or self-insured retention that is connected to the insurance required under this Section 7; and The insurance required under this Section 7 shall be endorsed to be primary and non-contributing with any insurance or self-insurance maintained by the State of California, the Judicial Council of California, or the Superior Court of California, County of San Bernardino; and The cost of all insurance required by this Section 7 is the sole responsibility of Contractor, and is a component part of Contractor’s agreed compensation; and Contractor will require insurance from Subcontractors and their Sub-subcontractors with substantially the same terms and conditions as required of the Contractor under “Insurance Requirements” herein below and with limits of liability, which in the opinion of Contractor are sufficient to protect the interests of the Contractor, the State of California, the Judicial Council of California, and the Superior Court of California, County of San Bernardino.

Insurance Requirements. From the beginning of the performance of the Work, Contractor will maintain, at a minimum and in full force and effect, the following insurance:

Commercial General Liability. Commercial General Liability insurance (and if required Excess/Umbrella Liability insurance) for all of its operations written on an occurrence form with limits of not less than $1 million per occurrence and a $1 million annual aggregate limit of liability. The policy shall include coverage for liabilities arising out of premises, operations, independent contractors, products and completed operations, personal and advertising injury, and liability assumed under an insured contract. This insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought subject to the insurance policy limit of liability. The foregoing notwithstanding, if this Agreement includes Construction Work the limits for Commercial General Liability must be not less than $2 million per occurrence and a $4 million annual aggregate limit of liability ; and Commercial Automobile Liability. If one or more automobiles is used in the performance of the Work this section applies: Commercial Automobile Liability insurance covering liability arising out of the operation, use, loading, or unloading of a motor vehicle, including owned, hired, and non-owned motor vehicles, assigned to or used in connection with the Work, with limits of not less than $1 million combined single limit per accident; and Workers’ Compensation and Employers Liability. If Contractor employs or will employ one or more persons this section applies: Statutory Workers’ Compensation insurance for all of the employees who are engaged in the Work, including special coverage extensions where applicable and Employers Liability insurance with limits not less than $1 million for each accident, $1 million disease policy limit, and $1 million as the disease limit for each employee; and Professional Liability Insurance. If this Agreement includes professional services this section applies: Professional Liability insurance covering Contractor’s acts, errors, and omissions committed or alleged to have been committed, which arise out of rendering or failure to render the Work required under this Agreement. The policy shall provide limits of not less than $1 million per claim or per occurrence and $1 million annual aggregate. If the policy is written on a “claims made” form, Contractor shall continue the coverage, either through policy renewals or the purchase of an extended discovery period, if such extended discovery period is available, for not less than one (1) year from the date of the completion of the Work. The retroactive date or “prior acts date” of any such “claims made” policy must be no later than the date that Work commenced under this Agreement; and Commercial Crime Insurance. If this Agreement includes Work where Contractor may have access to the Court’s financial assets this section applies: Commercial Crime insurance endorsed to cover loss of money, securities, or other property, with intrinsic value, belonging to the Court, if the loss is the result of the dishonest acts of the Contractor or its employees, whether acting alone or in collusion with others. The policy shall provide limits of not less than $100,000 per occurrence.

Builders Risk/Installation Coverage. If this Agreement includes Construction Work this section applies: Builder’s Risk or Installation Insurance that covers the work to be performed under this Contract for direct physical loss or damage while in the course of transportation, erection, installation and completion with limits of liability equal to the final completed value of the Project.

Contractor’s Pollution Liability Insurance. If this Agreement includes Construction Work that involves asbestos, lead, or mold remediation this section applies: Contractors Pollution Liability insurance written on an occurrence form with limits of liability not less than $1 million per occurrence and $1 million per project aggregate. The policy will include coverage for claims for Bodily Injury or Property Damage, and remediation costs resulting from a pollution incident caused by or exacerbated by the performance of the Work at the project site.

8. TERM/TERMINATION

Term. This Agreement shall commence on the Effective Date and continue until expiration or terminated in accordance with the terms of this Agreement.

Termination for Convenience. The Court may terminate, in whole or in part, this Agreement and/or any Statement of Work for convenience (without cause) upon thirty (30) days prior written notice. The Court’s notice obligations under the foregoing sentence shall not apply to any Stop Work Orders issued by the Court under this Agreement or any Statement of Work.