Attachment_B_-Collin_County_SaaS_Subscription_Agreementv5.pdf

ATTACHMENT B-Collin County SaaS Subscription Agreement

SUBSCRIPTION AGREEMENT

This SUBSCRIPTION AGREEMENT (this “Agreement”) is made effective as of ______ [___], 20[___] (the “Effective Date”), by and between COLLIN COUNTY GOVERNMENT (“Collin

County”), and [__________], [a/an] [__________] (“VENDOR”). VENDOR and Collin County are individually a “Party” and collectively the “Parties.”

A. VENDOR owns an Internet-based application known as [__________] (the “Software”).

B. Collin County desires to obtain access to the Software via the Internet.

C. This Agreement sets forth the terms and conditions on which VENDOR shall provide, and

Collin County shall receive, the functionality made available by the Software via the Internet (the

“Subscription Services”).

In consideration of the terms and conditions of this Agreement and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties, intending to be legally bound, agree as follows:

1. Definitions. The following definitions apply for purposes of this Agreement:

1.1 “CIO” means the then-current Chief Information Officer of Collin County.

1.2 “Confidential Information” means all information and materials (tangible and intangible) disclosed by Collin County to VENDOR. For the avoidance of doubt, all Collin County Data shall be the Confidential Information of Collin County.

1.3 “Consent” means the prior, express, and written consent of a Party, which consent may be withheld, delayed, or conditioned in such Party’s sole discretion.

1.4 “Collin County Data” means all data entered by Collin County, or received by

VENDOR, as part of, or in connection with, Collin County’s use of the Subscription Services.

1.5 “Director” means the then-current Director of Collin County’s Information

Technology (IT) Department.

1.6 “Error” means a failure of the Subscription Services to perform as intended and/or with VENDOR’s documentation for the Subscription Services.

1.7 “Major Incident” means an Error that has a critical impact on the use of, or access to, the Subscription Services, resulting in the inability to continue to use or access the Subscription Services as required or intended. There is no reasonable workaround, and such Error is potentially catastrophic in nature. The business impact to Collin County is severe, creating a stop point in major and essential business processes. Essential business processes of the Subscription Services cannot continue until a solution to the

Error is implemented.

1.8 “Minor Incident” means an Error that has a moderate restriction on the use of, or access to, the Subscription Services, resulting in the restricted ability to continue to use or access the

Subscription Services as required or intended.

1.9 “Operating Hours” means the operating hours as identified by the Director and is subject to change by such director upon 30 days prior notice to VENDOR.

1.10 “Routine Incident” means an Error that has a slight restriction on the use of, or access to, the Subscription Services, resulting in the ability to continue to use or access the Subscription

Services as required or intended.

1.11 “Resources” means any and all hardware and software necessary to provide the

Subscription Services, including servers owned and/or controlled by VENDOR.

1.12 “Support” means VENDOR’s being available to (i) answer questions from, and provide general advice to, Collin County concerning the Subscription Services and (ii) receive reports from

Collin County of possible Errors concerning the Subscription Services and using best efforts to correct such actual Errors.

1.13 “Third Party” means a person or entity that is not a Party.

2. Subscription Services.

2.1 Access and Use. VENDOR grants to Collin County a limited, non-exclusive, and non-transferable license to access and use the Subscription Services. VENDOR shall obtain and be solely responsible for the cost, installation, use, and operation of the Resources, including maintaining, backing-up, and providing security for the Resources. VENDOR may not subcontract, delegate, or assign the provision of any portion of the Subscription Services to any Third Party without Collin County’s Consent, and in the event such Consent is obtained by VENDOR from Collin County, VENDOR shall enter into a written agreement with the applicable Third Party for the provision of such services and shall promptly provide a copy of each such written agreement to Collin County.

2.2 Collin County Hardware. Collin County shall be responsible for providing high speed Internet connection, hardware, and software that is compatible with the Subscription Services (the

“Collin County Environment”). If upgrades to the Resources require Collin County to upgrade the Collin

County Environment, then VENDOR shall notify Collin County in writing at least 90 days in advance of such upgrade.

3. Collin County Data.

3.1 Ownership and Use. Collin County shall own all right, title, and interest in and to the Collin County Data, including all intellectual property rights in and to the Collin County Data.

VENDOR may use the Collin County Data only as expressly required in order to provide the Subscription

Services. VENDOR may not add, delete, update, or otherwise modify the Collin County Data, unless expressly authorized by Collin County in writing. VENDOR disclaims any and all rights in and to the

Collin County Data. VENDOR shall keep all Collin County Data confidential and secure behind a firewall and shall maintain regular backups of the Collin County Data, all of which shall be based on best practices and approved by Collin County. VENDOR shall not provide or use the Collin County Data for corporate gain, statistical use, or provide the Collin County Data to any other organization or person without the

Consent of the Director.

3.2 Access by Collin County. Collin County shall have ability to access and retrieve the Collin County Data at any time. In addition and at no cost to Collin County, VENDOR shall make available to Collin County the use of FTP (or file transfer protocol) for purposes of retrieving a copy of the

Collin County Data (i) within 24 hours of any such request and (ii) on a weekly basis. Without limiting the foregoing, in the event of an emergency or time sensitive situation, VENDOR shall permit Collin County full access to the Collin County Data in accordance with the following:

(a) The Director and/or CIO will contact VENDOR during any emergency or time sensitive event, as determined in Collin County’s sole discretion, in order to access and retrieve the

Collin County Data;

(b) VENDOR shall immediately contact the Director and the CIO in the event

VENDOR believes that an emergency with respect to the Collin County Data has occurred and or may occur;

(c) In the event of an emergency or time sensitive situation, as determined in

Collin County’s sole discretion, VENDOR shall make available to Collin County the use of FTP (or file transfer protocol) and/or other means of retrieving the Collin County Data.

3.3 Destruction. VENDOR will provide the ability to dispose of, and/or destroy, Collin County Data upon request of Collin County in order to meet required retention schedules allowable by the law. VENDOR shall not retain or make additional copies of the disposition record residing in other locations or cloud environments making the record subject to disclosure upon any public record request or in the event of litigation.

3.4 Return. In connection with the termination of this Agreement, VENDOR shall provide all of the Collin County Data to Collin County in accordance with the following:

(a) All Collin County Data shall be provided through FTP (file transfer protocol) and/or other agreed upon technology 60 days prior to the termination date of this Agreement;

(b) All Collin County Data shall be provided back in a Microsoft SQL Server database format (minimum versions are 2005 or 2008R2) and/or other agreed upon database technology;

(c) All Collin County Data shall be destroyed by VENDOR upon termination, which includes all backups and/or copies of the Collin County Data in other environments or locations; and

(d) Collin County reserves the right to conduct one or more audits to ensure that all Collin County Data has been destroyed in the cloud and/or other environments or locations.

3.5 Data Breach. If VENDOR experiences a data breach or unauthorized access to the

Collin County Data, VENDOR will immediately notify the Director and the CIO. Within two weeks of such breach, detail notification is required and shall include the nature of the breach, the data comprised, the involving parties, mitigation efforts, and corrective actions to be taken by VENDOR. VENDOR shall be solely responsible for all expenses related to any data breach or unauthorized access to the Collin County data and shall be by liable for all damages, fines, to include litigation cost. Collin County shall not be responsible for any expense associated with data breaches or unauthorized access while the Collin County

Data is residing in VENDOR cloud services.

3.6 Storage in Texas. All of Collin County Data (including copies, backups, and data in the cloud) shall be stored in the state of Texas at all times, unless otherwise agreed upon by VENDOR and the Director and the CIO.

3.7 Disaster Recovery. VENDOR shall provide required disaster recovery and business continuity plans to the Director and the CIO, which plans must be agreed upon and plans must meet government requirements.

4. Support.

4.1 Upgrades. VENDOR shall provide regular upgrades to the Subscription Services and shall schedule each such upgrade in advance with Collin County.

4.2 Help Desk. VENDOR shall be available by telephone to provide Support to Collin

County on a 24/7 basis.

4.3 Support Requests. Upon VENDOR’s receipt of a support request (a “Support

Request”), VENDOR shall (i) log such Support Request in VENDOR’s support log, (ii) assign such Support

Request a unique tracking number, and (iii) use reasonable attempts to promptly address the Support

Request. VENDOR shall continuously manage the Support Request until resolved.

4.4 Response Times. Upon VENDOR’s receiving a Support Request regarding a possible Error, VENDOR shall designate such possible Error as being (i) a Major Error, (ii) a Minor Error, or (iii) a Routine Error. VENDOR shall address such possible Error in accordance with the following:

(a) Major Error. VENDOR shall (i) respond to Collin County by telephone within two hours (on a 24 hours, seven days a week basis) following VENDOR’s receiving a Support

Request regarding a Major Error and (ii) assign the appropriate personnel to commence efforts to correct the Error. If the Error is not corrected within one business day following VENDOR’s receiving the Support

Request, then VENDOR shall telephone the Director (and at least once each business day thereafter until the Error is corrected), describe in detail the efforts underway, and give a status report.

(b) Minor Error. VENDOR shall (i) respond to Collin County by telephone within four business hours following VENDOR’s receiving a Support Request regarding a Minor Error and

(ii) assign the appropriate personnel to commence efforts to correct the Error. If the Error is not corrected within two business days following VENDOR’s receiving the Support Request, then VENDOR shall telephone the Director (and at least once each business day thereafter until the Error is corrected), describe in detail the efforts underway, and give a status report.

(c) Routine Error. VENDOR shall respond to Collin County by telephone within two business days following VENDOR’s receiving a Support Request regarding a Routine Error.

VENDOR shall thereafter assign the appropriate personnel to commence efforts to correct the Error in accordance with VENDOR’s standard Error correction efforts for Routine Errors. If the Error is not corrected within ten business days following VENDOR’s receiving the Support Request, then VENDOR shall telephone the Director (and at least once each five business days thereafter until the Error is corrected), describe in detail the efforts underway, and give a status report.

4.5 Source Code. Collin County shall have the right to cause VENDOR to place the source code version of the Software in escrow with a mutually acceptable escrow agent at VENDOR’s cost.

The release conditions for such placement shall permit, at a minimum, Collin County to obtain such source code in the event VENDOR fails to comply with the Support requirements in this Agreement.

5. Service Levels.

5.1 Description. VENDOR shall comply with the following service levels (the

“Service Levels”):

(a) VENDOR shall cause the Subscription Services to be available 90.0% of the time during Operating Hours as measured on a monthly basis (the “Availability”).

(b) VENDOR shall provide Collin County the required level of performance and response time to the Subscription Services in order for Collin County to conduct Collin County’s business efficiently and effectively, but in no event less than the response times set forth in Section 4.4.

(c) VENDOR shall notify, at least two weeks in advance, the Director and the

CIO for all scheduled outages. All scheduled outage notification must include the start and completion dates, time, impact, risk, back out plan of the schedule outages, and any technology updates that impact

(or will impact) Collin County at any time. VENDOR shall notify the Director and the CIO of all unscheduled outages immediately when such outage occurs. VENDOR will provided the Director and the

CIO within two hours the details of the unscheduled outages, to include, impact to the County and resolution. Unscheduled outages should always be minimized and should not occur no more than four times in a 12-month fiscal year.

(d) VENDOR will provide the proper infrastructure and other Resources and security to properly maintain access to Collin County Data and the Subscription Services.

5.2 Service Level Credit. Customer shall receive a 20% service level credit for each month that a Service Level is not met (the “Service Level Credit”). The Service Level Credit shall be applied to the following month’s Fees.

6. Fees. Collin County shall pay VENDOR the amounts set forth in Schedule 1 (the “Fees”) in accordance with the payment terms and conditions contained therein. To the extent Schedule 1 permits increases in the Fees, VENDOR may not increase the Fees more than once in any calendar year and any annual increase may not exceed 3% of the Fees paid in the previous year.

7. Confidentiality.

7.1 Use and Disclosure. Without the Consent of Collin County or as otherwise contemplated by this Agreement, VENDOR shall never disclose, copy, or use any Confidential Information in any manner.

7.2 Degree of Care and Ownership. VENDOR shall treat the Confidential Information with the same degree of care as VENDOR accords to VENDOR’s own Confidential Information, but in no case less than reasonable care. VENDOR shall promptly advise Collin County if VENDOR learns of any unauthorized use, disclosure, or copying of the Confidential Information. Collin County shall continue to own all of the Confidential Information. VENDOR shall promptly return to Collin County all Confidential

Information in VENDOR’s possession or control upon the earlier to occur of (i) a written request by Collin

County or (ii) termination of this Agreement for any reason by any Party.

7.3 Remedies. A breach of this Section 7 by VENDOR may cause irreparable harm and injury to Collin County for which money damages are inadequate. In the event of such breach, Collin

County shall be entitled to seek injunctive relief, without the requirement of posting a bond or any other security, in addition to all other available remedies.

8. Audits. The Director and the CIO reserve the right to request third-party audits and/or certifications related to infrastructure and security, including penetration testing and vulnerability assessments, of the Subscription Services. All reports from these audits will be provided to Collin County.

Collin County, or a Third Party provider selected by Collin County, has a right to perform an onsite inspection of VENDOR’s cloud, infrastructure, and security practices on a specified basis. Collin County has the right to review the Resources and security specifications in written format. Collin County has the right to audit the performance records of the Subscription Services, as well as access to daily and weekly service quality statistics.

9. Indemnification. VENDOR shall reimburse, defend, indemnify, and hold harmless Collin

County and Collin County’s affiliates and Collin County’s and Collin County’s affiliates’ partners, officers, employees, contractors, and agents for, from, and against any and all claims, damages, losses, deficiencies, liabilities, penalties, charges, costs, and expenses resulting from, relating to, or arising out of, any claims that the Software or Subscription Services violate, misappropriate, or infringe any Third Party’s intellectual property rights.

10. Term and Termination.

10.1 Term. This Agreement shall be effective for an initial term beginning on the

Effective Date and ending at 12:01 a.m. on the [first] anniversary of the Effective Date (the “Initial Term”).

Upon expiration of the Initial Term, this Agreement shall automatically renew for subsequent terms of one year each (each a “Renewal Term”), at Collin County’s sole discretion.

10.2 Termination. Either Party may immediately terminate this Agreement by giving written notice to the other Party if such other Party is in material breach of this Agreement and fails to cure such material breach within 30 days following receipt of written notice from the non-breaching Party of such breach. Notwithstanding the foregoing 30-day cure period, Collin County may immediately terminate this Agreement by giving written notice to VENDOR if VENDOR breaches Section 7.

11. General.

11.1 Relationship of Parties. Nothing in this Agreement shall create or be deemed to create the relationship of partners, joint ventures, employer-employee, joint employees, or principal-agent between the Parties. Neither Party shall have any authority to assume or create any obligation or responsibility whatsoever, express or implied, on behalf or in the name of the other Party or to bind the other Party in any manner whatsoever nor shall either Party make any representation, warranty, covenant, agreement, or commitment on behalf of the other Party.

11.2 Binding Effect. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and the Parties’ respective successors and permitted assigns. This Agreement may be changed, waived, or discharged only pursuant to a written agreement between the Parties. The waiver or failure of a Party to exercise in any respect any right provided for under this Agreement shall not be deemed a waiver of any further right under this Agreement by such Party. Each Party shall pay all of such Party’s own expenses relating to the negotiation and preparation of this Agreement, including the fees and expenses of such Party’s counsel.

11.3 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision never comprised a part of this Agreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this

Agreement. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.

11.4 Notices. Any notices or communications to be given under this Agreement by a

Party to the other Party shall be deemed to have been duly given if given in writing and (i) personally delivered, (ii) sent by nationally recognized overnight courier, (iii) sent by facsimile (with electronic confirmation), or (iv) sent by electronic mail (with confirmation through any of methods (i), (ii), or (iii) above), in each case, at the address for such other Party set forth on the signature page. Notices delivered personally, by courier, by facsimile, or by electronic mail shall be deemed communicated as of actual receipt (or refusal) by the addressee. Any Party may change such Party’s address for notice under this

Agreement by giving prior written notice to the other Party of such change in the manner provided in this

Section 11.4. All notices to third parties and all other publicity concerning the transactions contemplated by this Agreement shall be jointly planned and coordinated by the Parties, (a) unless such notices or other publicity are mandated by law and (b) except that VENDOR shall be entitled to announce and refer to

Collin County as a licensee and client of VENDOR.

11.5 Governing Law. This Agreement shall be performed in, governed by, and construed and enforced in accordance with the laws of the state of Texas, without regard to Texas’ conflict of laws principles.

11.6 Entire Agreement. This Agreement (i) embodies the entire agreement and understanding between the Parties relating to the subject matter of this Agreement and (ii) supersedes all prior agreements and understandings relating to the subject matter of this Agreement. This Agreement may be signed simultaneously in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Faxed or .pdf copies of manually signed signature pages to this Agreement are fully binding and enforceable without the need for delivery of the original manually signed signature page. This Agreement does not create, and shall not be construed as creating, any right enforceable by anyone not a Party. VENDOR may not assign this Agreement without

Collin County’s Consent.

11.7 Interpretation. In the interpretation of this Agreement, except where the context otherwise requires, (i) “including” or “include” does not denote or imply any limitation, (ii) “or” has the inclusive meaning “and/or,” (iii) “and/or” means “or” and is used for emphasis only, (iv) “$” refers to

United States dollars, (v) the singular includes the plural, and vice versa, and each gender includes each other gender, (vi) captions or headings are only for reference and are not to be considered in interpreting this Agreement, and (vii) “Section” refers to a section of this Agreement, unless otherwise stated in this

Agreement.

11.8 Survival. This Section 11 and Sections 1, 3, and 7 through 9 shall survive termination of this Agreement.

11.9 Expenses for Enforcement. In the event either party hereto is required to employ an attorney to enforce the provisions of this agreement or is required to commence legal proceedings to enforce the provisions hereof, the prevailing party shall be entitled to recover from the other, reasonable attorney's fees and court costs incurred in connection with such enforcement, including collection.

(Balance of page intentionally blank—Signatures on next page)

This Agreement is entered into by the Parties to be effective on the Effective Date.

VENDOR:

[__________], [a/an] [__________]

By:

Name:

Title:

Address:

Facsimile: [__________]

Attention: [__________]

COLLIN COUNTY:

COLLIN COUNTY GOVERNMENT

By:

Name:

Title:

Address:

Facsimile: [__________]

Attention: [__________]

Schedule 1

Fees

[To be provided]