SE_11856_Attachment_1_-_City_s_Proposed_Contract_Terms.docx

City and County of San Francisco Office of Contract Administration Purchasing Division City Hall, Room 430 1 Dr. Carlton B. Goodlett Place San Francisco, California 94102-4685

AGREEMENT

BETWEEN THE CITY AND COUNTY OF SAN FRANCISCO AND

[Insert name of contractor] [Insert Department Contract ID, if any]

[Insert PeopleSoft Contract ID]

This Agreement is made this [insert day] day of [insert month], 20 [insert year], in the City and County of San Francisco (“City”), State of California, by and between [name of Contractor] (“Contractor”) and City.

Recitals WHEREAS, the Office of Contract Administration (“Department”) seeks to procure a variety of networking hardware equipment, software and standard hardware and software services from an authorized HPE reseller; and WHEREAS, Contractor represents and warrants that it is qualified to provide such equipment, software licenses, software as a service, maintenance/support and related services as set forth under this Agreement; and WHEREAS, Contractor was competitively selected pursuant to an Invitation for Bids entitled OCA | TC 91116 Networking Equipment & Support issued through Sourcing Event ID 0000011856; and WHEREAS, this Contract is deemed exempt from Chapter 14B of the San Francisco Administrative Code because this is a contract primarily for Commodities and, as such, there is no Local Business Enterprise (“LBE”) subcontracting participation requirement for this Agreement; and WHEREAS, the Department has filed Ethics Form 126f2 (Notice of Submission of Proposal) because this Agreement has a value of $100,000 or more in a fiscal year and will require the approval of the Board of Supervisors; and WHEREAS, the Department will file Ethics Form 126f4 (Notification of Contract Approval) within five days of execution of the Agreement because this Agreement has a value of $100,000 or more in a fiscal year and will require the approval of the Board of Supervisors; and WHEREAS, the City’s Board of Supervisors approved this Agreement by [insert resolution number] on [insert date of Commission or Board action] in the amount of [insert Dollar Amount] for the period commencing [Insert Start Date] and ending [Insert End Date].

Now, THEREFORE, the parties agree as follows:

Definitions The following definitions apply to this Agreement:

“Acceptance.”

SaaS Application. Acceptance means notice from the City to Contractor that the SaaS Application meets the specifications and requirements contained in the Documentation and Appendices. City’s Acceptance shall be governed by the procedures set forth in Section 6.3.

Licensed Software. Acceptance means a notice from the City to Contractor that the Licensed Software meets the specifications contained in the Documentation. City’s Acceptance of the Licensed Software shall be governed by the procedures set forth in Section 4.3.

“Acceptance Period” means the period allocated by City to test the SaaS Application or Licensed Software, as the case may be, to determine whether it conforms to the applicable specifications and, if appropriate, properly operates in the defined operating environment, is capable of running on a repetitive basis, and is otherwise in compliance with the service level obligations without failure.

“Agreement” means this contract document, including all Appendices, and all applicable City Ordinances and Mandatory City Requirements which are specifically incorporated into this Agreement by reference as provided herein.

“Appendices” means the appendices listed in Article 18 (“Appendices”) herein.

“Artificial Intelligence” or “Artificial Intelligence Model” means an engineered or machine-based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.

“Artificial Intelligence System” means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.

“Authorized Users” means a person authorized by City to access the City Portal and use the SaaS Application, including any City employee, contractor, or agent, or any other individual or entity authorized by City.

“Back-Up Environment” means Contractor’s back-up Data Center for the SaaS Services.

“Business Associate” or “BAA” has the meaning given to such term under HIPAA and its implementing regulations, including 42 U.S.C. Section 17938 and 45 C.F.R. Section 160.103, as may be amended from time to time.

“City” means the City and County of San Francisco, a municipal corporation, acting by and through both its Director of the Office of Contract Administration or the Director’s designated agent, hereinafter referred to as “Purchasing.”

“City Data” means all data collected, used, maintained, processed, stored, and/or generated by or on behalf of City in connection with this Agreement, including, without limitation, data resulting from use of the SaaS Service. City Data includes, without limitation, Confidential Information and Deliverable Data.

“City Portal” means a Contractor provided online secure portal that allows City and its Authorized Users to log in to an area where they can view and download information or request assistance regarding the SaaS Application and Services.

“City’s Project Manager” means the individual specified by City pursuant to Section 4.2.1 hereof, as the Project Manager authorized to administer this Agreement on City’s behalf.

“CMD” means the Contract Monitoring Division of the City.

“Confidential Information” means confidential City information including, but not limited to, personal identifiable information (“PII”), protected health information (“PHI”), or individual financial information (collectively, “Proprietary or Confidential Information”) that is subject to local, state or federal laws restricting the use and disclosure of such information. Confidential Information includes, without limitation, City Data.

“Contractor” means [insert name and address of contractor].

“Contractor Project Manager” means the individual specified by Contractor pursuant to Section 4.2.1 hereof, as the Project Manager authorized to administer this Agreement on Contractor’s behalf.

“Contractor’s Website” means the Website that provides Authorized User access to the SaaS Application Services.

“Data Breach” means any access, destruction, loss, theft, use, modification or disclosure of City Data by an unauthorized party or that is in violation of the Agreement terms and/or applicable local, state or federal law.

“Data Center(s)” means a physical location within the United States where Contractor (or its subcontractor) houses and operates the hardware (including computers, computer servers, routers, and other related equipment and devices) on which Contractor (and or its subcontractor) hosts via the Internet the SaaS Application and City Data pursuant to this Agreement.

“Deliverable Data” means any data that is required to be delivered to City as a Deliverable, or as a part of a Deliverable, under this Agreement.

“Deliverables” means Contractor’s or its subcontractors’ work product, including any partially completed work product and related materials, resulting from the Goods or Services provided by Contractor to City during the course of Contractor’s performance of the Agreement, including without limitation, all Goods and/or Services described in the “Calculation of Charges,” attached as Appendix B.

“Disabling Code” means computer instructions or programs, subroutines, code, instructions, data or functions (including but not limited to viruses, worms, date bombs or time bombs), including but not limited to other programs, data storage, computer libraries and programs that self-replicate without manual intervention, instructions programmed to activate at a predetermined time or upon a specified event, and/or programs purporting to do a meaningful function but designed for a different function, that alter, destroy, inhibit, damage, interrupt, interfere with or hinder the operation of City’s access to the SaaS Services through Contractor’s Website and/or Authorized User’s processing environment, the system in which it resides, or any other software or data on such system or any other system with which it is capable of communicating.

“Documentation” means technical publications provided by Contractor to City relating to use of the SaaS Application, such as reference, administrative, maintenance, and programmer manuals.

“End Users” means any Authorized User who accesses or uses any Goods or Services provided by Contractor to City during the course of Contractor’s performance of the Agreement.

“Errors, Defects and Malfunctions” means either a deviation between the function of the Software and the Documentation furnished by Contractor for the Software, or a failure of the Software which degrades the use of the Software.

“Fix” means repair or replacement of source, object or executable code in the Software to remedy an Error, Defect or Malfunction.

“Generative Artificial Intelligence” means Artificial Intelligence that can generate derived synthetic content, such as text, images, video, and audio, that emulates the structure and characteristics of the Artificial Intelligence’s training data.

“Goods” or “Commodities” means the products, materials, equipment or supplies to be provided by Contractor under this Agreement.

“Health Care Component” has the meaning given to such term under HIPAA and its implementing regulations, including 45 C.F.R. Section 164.103, as may be amended from time to time.

“Hybrid Entity” has the meaning given to such term under HIPAA and its implementing regulations, including 45 C.F.R. Section 164.103, as may be amended from time to time.

“Internet” means that certain global network of computers and devices commonly referred to as the “internet,” including, without limitation, the World Wide Web.

“Licensed Software” or “Software” means one or more of the proprietary computer software programs identified in and/or available for purchase under Appendix B, all related materials, Documentation, all corrections, patches or updates thereto, and other written information received by City from Contractor, whether in machine-readable or printed form.

“Mandatory City Requirements” means those City laws set forth in the San Francisco Municipal Code, including the duly authorized rules, regulations, and guidelines implementing such laws, which impose specific duties and obligations upon Contractor.

“Object Code” means the machine-readable form of the Licensed Software provided by Contractor.

“Open-Source Software” means software with either freely obtainable source code, a license for modification, or permission for free distribution.

“Party” or “Parties” means, respectively, City and Contractor either individually or collectively.

“Patch” means a temporary repair or replacement of code in the Software to remedy an Error, Defect or Malfunction. Patches may be made permanent and released in Subsequent Releases of the Software.

“Performance Credit” means credit due to City by Contractor with regard to Contractor’s service level obligations in Appendix C.

“Personal Identifiable Information (PII)” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household. Personal information includes, but is not limited to, the following if it identifies, relates to, describes, is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular individual or household as further defined in the California Consumer Privacy Act.

“Precedence” means that, notwithstanding the terms of any other document executed by the Parties as a part of this Agreement, the terms of this Agreement shall control over any discrepancy, inconsistency, gap, ambiguity, or conflicting terms set forth in any other Contractor pre-printed document.

“Preexisting Data” means data owned by either Party that exists prior to the Agreement start date.

“Priority Category” means a priority assigned to an Error, Defect or Malfunction, designating the urgency of correcting an Error, Defect or Malfunction. Assignment of a Priority Category to an Error, Defect or Malfunction is based on City’s determination of the severity of the Error, Defect or Malfunction and Contractor’s reasonable analysis of the priority of the Error, Defect or Malfunction.

“SaaS Application/SaaS Software/Software” means any licensed and hosted computer program and associated documentation, as listed in this Agreement and Appendices, and any modification or Upgrades or modifications to the program(s), residing in Contractor’s servers that provides the SaaS Services that may be accessed by Authorized Users through the Internet. The SaaS Application may include Contractor provided Third-Party Software. All Software, revisions and versions provided by Contractor shall be subject to the terms and conditions of this Agreement, including any amendments thereto.

“SaaS Application Patch” means an update to the SaaS Application comprised of code inserted (or patched) into the code of the SaaS Application, and which may be installed as a temporary fix between full releases of a SaaS Application Revision or SaaS Application Version. Such a patch may address a variety of issues including without limitation fixing a Software bug, installing new drivers, addressing new security vulnerabilities, addressing software stability issues, and upgrading the Software. SaaS Application Patches are included in the annual payments made by City to Contractor for the SaaS Services under this Agreement.

“SaaS Implementation and Training Services” means the services by which Contractor will implement all necessary Software configurations and modules necessary to make the SaaS Application available and accessible to City.

“SaaS Issue” means a problem with the SaaS Services identified by City that requires a response by Contractor to resolve.

“SaaS Maintenance Services” means the activities to investigate, resolve SaaS Application and Services issues and correct product bugs arising from the use of the SaaS Application and Services in a manner consistent with the published specifications and functional requirements defined during implementation.

“SaaS Services” means the Services performed by Contractor to host any SaaS Application listed in this Agreement or Appendices to provide the functionality listed in the Documentation.

“SaaS Severity Level” means a designation of the effect of a SaaS Issue on City. The severity of a SaaS Issue is initially defined by City and confirmed by Contractor. Until the SaaS Issue has been resolved, the Severity Level may be raised or lowered based on Contractor’s analysis of impact to business.

“SaaS Software Error” means any failure of SaaS Software to conform in all material respects to the requirements of this Agreement or Contractor’s published specifications.

“SaaS Software Error Correction” means either a modification or addition that, when made or added to the SaaS Software, brings the SaaS Software into material conformity with the published specifications, or a procedure or routine that, when observed in the regular operation of the SaaS Software, avoids the practical adverse effect of such nonconformity.

“SaaS Software Revision” means an update to the current SaaS Software Version of the SaaS Software code that consists of minor enhancements to existing features and code corrections. SaaS Software Revisions are provided and included with the annual service payments made by City to Contractor for the SaaS Service.

“SaaS Software Version” means the base or core version of the SaaS Software that contains significant new features and significant fixes and is available to City. SaaS Software Versions may occur as the SaaS Software architecture changes or as new technologies are developed. The nomenclature used for updates and upgrades consists of major, minor, build, and fix and these correspond to the following digit locations of a release, a,b,c,d, an example of which would be NCC 7.4.1.3, where the 7 refers to the major release, the 4 refers to the minor release, the 1 refers to the build, and the 4 refers to a fix. All SaaS Software Versions are provided and included as part of this Agreement upon request or approval from City for the upgrade.

“Scheduled SaaS Maintenance” means the time (in minutes) during the month, as measured by Contractor, in which access to the SaaS Services is scheduled to be unavailable for use by City due to planned system maintenance and major version upgrades.

“Services” means the work performed by Contractor under this Agreement including all services, labor, supervision, materials, equipment, actions and other requirements to be performed and furnished by Contractor under this Agreement.

“Source Code” means the human readable compliable form of the Licensed Software to be provided by Contractor.

“Specifications” mean the functional and operational characteristics of the Licensed Software as described in Contractor’s current published product descriptions and technical manuals.

“Subsequent Release” means a release of the Software for use in a particular operating environment which supersedes the Software. A Subsequent Release is offered and expressly designated by Contractor as a replacement to a specified Software product. A Subsequent Release will be supported by Contractor in accordance with the terms of this Agreement. Multiple Subsequent Releases may be supported by Contractor at any given time.

“Successor Service Provider” means a new service provider, if any, selected by City in the event the SaaS Services are terminated under this Agreement.

“Support Services” means the Software support service required under this Agreement. Support Services include correcting an Error, Defect or Malfunction; providing telephone and/or online support concerning the installation and use of the Software; training in the installation and use of the Software; on-site consulting and application development services; detection, warning and correction of viruses; and disabled/disabling code.

“Third-Party Software” means any third-party software included as part of the SaaS Software provided to City under this Agreement described in Appendix C.

“Training data” means data used for training an AI system through fitting its learnable parameters.

“Transition Services” means that assistance reasonably requested by City to effect the orderly transition of the SaaS Services, in whole or in part, to City or to Successor Service Provider.

“Upgrade” means either an enhancement to the Software code to add new features or functions to the system or software programming revisions containing corrections to Errors, Defects and Malfunctions that have been reported by users or discovered by the Contractor.

“Value-Added Reseller” means a company that buys products and/or services that are the subject matter of this Agreement, improves it in some way (“adds value”), and then resells it.

“Warranty Period” means a period commencing with the installation of the Software product during which reported Errors, Defects and Malfunctions for Software products are corrected without charge in accordance with the provisions below.

“Workaround” means a change in the procedures followed or end user operation of the software to avoid an Error, Defect or Malfunction without significantly impairing functionality or degrading the use of the Software.

Term of the Agreement Term. The term of this Agreement shall commence on [insert Contractor’s start date] and expire on [insert expiration date], unless earlier terminated as otherwise provided herein.

Options to Extend. City has the option to extend the Agreement for a period of two (2) years. City may exercise this option at City’s sole and absolute discretion by modifying this Agreement as provided in Section 14.5, “Modification of this Agreement.” Extensions may be for the whole or partial period provided for above.

Financial Matters Certification of Funds; Budget and Fiscal Provisions.

Termination in the Event of Non-Appropriation. This Agreement is subject to the budget and fiscal provisions of Section 3.105 of City’s Charter. Charges will accrue only after prior written authorization certified by the Controller, and the amount of City’s obligation hereunder shall not at any time exceed the amount certified for the purpose and period stated in such advance authorization. This Agreement will terminate without penalty, liability or expense of any kind to City at the end of any fiscal year if funds are not appropriated for the next succeeding fiscal year. If funds are appropriated for a portion of the fiscal year, this Agreement will terminate, without penalty, liability or expense of any kind at the end of the term for which funds are appropriated. City has no obligation to make appropriations for this Agreement in lieu of appropriations for new or other agreements. City budget decisions are subject to the discretion of the Mayor and the Board of Supervisors. Contractor’s assumption of risk of possible non-appropriation is part of the consideration for this Agreement.

THIS SECTION CONTROLS AGAINST ANY AND ALL OTHER PROVISIONS OF THIS AGREEMENT.

Maximum Costs. City’s payment obligation to Contractor cannot at any time exceed the amount certified by City’s Controller for the purpose and period stated in such certification. Absent an authorized emergency per City Charter or applicable Code, no City representative is authorized to offer or promise, nor is City required to honor, any offered or promised payments to Contractor under this Agreement in excess of the certified maximum amount without the Controller having first certified the additional promised amount and the Parties having modified this Agreement as provided in Section 14.5, “Modification of this Agreement.”

Authorization to Commence Work. Contractor shall not commence any work under this Agreement until City has issued formal written authorization to proceed, such as a purchase order, task order or notice to proceed. Such authorization may be for a partial or full scope of services.

Compensation.

Contract Not to Exceed Amount. The amount of this Agreement shall not exceed [insert whole dollar amount in numbers and words in bold -- no pennies and no “.00”], the price schedule of which appears in Appendix B, “Calculation of Charges.” City shall not be liable for interest or late charges for any late payments. City will not honor minimum service order charges for any Goods or Services covered by this Agreement.

Payment Limited to Satisfactory Services and/or Delivery of Goods. Contractor is not entitled to any payments until City approves the Services and/or Goods delivered. Payments to Contractor by City shall not excuse Contractor from its obligation to replace the unsatisfactory Services and/or delivery of Goods even if the unsatisfactory character was apparent or could have been detected at the time such payment was made. Non-conforming Services and/or Goods may be rejected by City and in such case must be replaced by Contractor without delay at no cost to City.

Withhold Payments. If Contractor fails to provide the Services and/or Goods in accordance with Contractor’s obligations under this Agreement, City may withhold any and all payments due to Contractor until such failure to perform is cured, and Contractor shall not stop work as a result of City’s withholding of payments as provided herein.

Invoicing. Contractor shall invoice the City for the Commodities and/or Services provided under this Agreement on a timely basis, and in no event later than thirty (30) days after delivery of the Commodities and/or Services or as specified in Appendix B, Calculation of Charges, except for the last invoice of the fiscal year which must be submitted within fifteen (15) days before the end of July. Invoices submitted by Contractor must be in a form acceptable to the Controller and City and include a unique invoice number and a specific invoice date. Payment shall be made by City as specified in Section 3.3.6, or in such alternate manner as the Parties have mutually agreed upon in writing. All invoices must show the PeopleSoft Purchase Order ID Number, PeopleSoft Supplier Name and ID, Item numbers (if applicable), complete description of Services performed and/or Goods delivered, sales/use tax (if applicable), unit cost, unit of measure, quantities, extended cost, contract payment terms and contract price. Where Contractor’s pricing is based on a percentage mark-up or discount over manufacturer’s list price, invoices must also include the manufacturer list price and Contractor’s percentage mark-up or discount over manufacturer’s list price. Where Contractor’s pricing is based on a percentage mark-up over cost, invoices must also include Contractor’s cost and Contractor’s percentage mark-up over Contractor’s cost. Invoices that do not include all required information or contain inaccurate information will not be processed for payment.

Reserved (LBE Payment and Utilization Tracking System).

Payment Terms.

Payment Due Date. Unless City notifies the Contractor that a dispute exists, Payment shall be made within thirty (30) calendar days, measured from (1) the rendering of the Services and/or delivery of Goods or (2) the date of receipt of the invoice, whichever is later. Payment is deemed to be made on the date City issued a check to Contractor or, if Contractor agreed to electronic payment, the date City has posted electronic payment to Contractor.

Payment Discount Terms. The Payment Discount Terms for this Agreement are as follows: [___] %/[___]Days, Net [___]. The Payment Discount period begins upon date of completion of delivery of the Services on a purchase order for which payment is sought, or upon date of receipt of properly prepared invoices covering such items, whichever is later. Payment is deemed to be made, for the purpose of earning the discount, on the date City issued a check to Contractor or, if Contractor has agreed to electronic payment, the date City posted electronic payment to Contractor.

No additional charge shall accrue against City in the event City does not make payment within any time specified by Contractor.

Reserved (Grant Funded Contracts).

Audit and Inspection of Records. Contractor agrees to maintain and make available to City, during regular business hours, accurate books and accounting records relating to its Services and Goods. Contractor will permit City to audit, examine and make copies of such books and records, and to make audits of all invoices, materials, payrolls, records or personnel and other data related to all other matters covered by this Agreement, whether funded in whole or in part under this Agreement. Contractor shall maintain such data and records in an accessible location and condition for a period of not less than five years after final payment under this Agreement or until after final audit has been resolved, whichever is later. Contractor shall include the same audit and inspection rights and record retention requirements in all subcontracts.

Submitting False Claims. The full text of San Francisco Administrative Code Section 21.35, including the enforcement and penalty provisions, is incorporated into this Agreement. Any contractor or subcontractor who submits a false claim shall be liable to City for the statutory penalties set forth in that section.

License Grant of License.

Grant of License. Subject to the terms and conditions of this Agreement, Contractor hereby grants City a non-exclusive and non-transferable limited term license to use the Licensed Software specified in Appendix B. City acknowledges and agrees that the Licensed Software is the proprietary information of Contractor and that this Agreement grants City no title or right of ownership in the Licensed Software.

Contractor agrees that in the event it discontinues its obligations under the terms of this Agreement, except as expressly provided for in Article 11 (Termination; Disposition of Content; Survival”), or ceases to market and/or provide maintenance and Support Services for the Licensed Software, and there is no successor in interest by merger, operation of law, assignment, purchase, or otherwise, it will provide City, without charge, one (1) copy of the then-current Source Code for all of the programs and all supporting Documentation for the Licensed Software then operating and installed at City’s locations. If City should obtain the Source Code and the Documentation pursuant to this section, the only use made of the Source Code and the Documentation will be for the proper maintenance of the Licensed Software in connection with City’s use of the Licensed Software as provided for, and limited by, the provisions of this Agreement.

License Term. The license granted under this Agreement shall commence upon acceptance of the Licensed Software and shall continue in perpetuity unless sooner terminated in accordance with the provisions of this Agreement.

Restrictions on Use. City is authorized to use the Licensed Software only for City’s municipal purposes. City agrees that it will, through its best efforts, not use or permit the Licensed Software to be used in any manner, whether directly or indirectly, that would enable any other person or entity not authorized by this Agreement, to use the Licensed Software.

Disaster Recovery Copy. For the purpose of any bona fide City disaster recovery plan or with respect to the use of computer software in its municipal operations, City may make one copy of the Licensed Software for archival purposes and use such archival copy to restore use of the Licensed Software on a site owned or controlled by City. The use of such archival copy shall be limited to (1) the purpose of conducting limited testing of the disaster recovery plan’s procedures and effectiveness, and (2) during any period subsequent to the occurrence of an actual disaster during which City cannot operate the Licensed Software on the existing site.

Transfer of Products. City may move the Licensed Software and supporting materials to another City site.

Documentation. Contractor shall provide City with the Licensed Software specified in this Agreement, and a minimum of two copies of the Documentation per installation. Contractor hereby grants to City permission to duplicate all printed Documentation for City’s municipal use.

Proprietary Markings. City agrees not to remove or destroy any proprietary markings or proprietary legends placed upon or contained within the Licensed Software or any related materials or Documentation.

Authorized Modification. City shall also be permitted to develop, use and modify Application Program Interfaces (“APIs”), macros and user interfaces. For purposes of this Agreement, such development shall be deemed an authorized modification. Contractor shall make no claim under this Agreement to ownership of any APIs, macros or other interfaces developed by or at the direction of City. Contractor has no general objection to City’s use of third-party programs in conjunction with the Software licensed under this Agreement. Contractor recognizes that City has and will license third party programs that City will use with Contractor’s products. Based on information provided to Contractor as to the execution of the Agreement, Contractor agrees that such use does not constitute an unauthorized modification or violate the licenses granted under this Agreement.

Delivery.

Delivery. One copy of each of the Licensed Software products in computer readable form shall be shipped to City or made available for City to download not later than the date specified on a Purchase Order issued to Contractor. Program storage media (magnetic tapes, disks and the like) and shipping shall be provided at no charge by Contractor.

Installation. If applicable, Contractor shall install the programs by the date specified on a Purchase Order issued to Contractor.

Risk of Loss. If any of the Licensed Software products are lost or damaged during shipment or before installation is completed, Contractor shall promptly replace such products, including the replacement of program storage media if necessary, at no additional charge to City. If any of the Licensed Software products are lost or damaged while in the possession of City, Contractor will promptly replace such products without charge, except for program storage media, unless supplied by City.

Acceptance Testing. After Contractor has installed and configured the Licensed Software pursuant to this Agreement, City shall have a period of no less than thirty (30) days (“Acceptance Testing Period”) from the date of installation to verify that the Licensed Software substantially performs to the specifications contained in the Documentation. In the event that City determines that the Licensed Software does not meet such specifications, City shall notify the Contractor in writing, and Contractor shall modify or correct the Licensed Software so that it satisfies the Acceptance criteria. The date of Acceptance will be that date upon which City provides Contractor with written notice of satisfactory completion of Acceptance testing. If City notifies Contractor after the Acceptance Testing Period that the Licensed Software does not meet the Acceptance criteria of this section, then City shall be entitled to terminate this License in accordance with the procedures specified in Section 11.2 (“Termination for Default; Remedies”) herein, and shall be entitled to a full refund of the license fee.

Reserved (Training).

Contractor’s Default. Failure or refusal of Contractor to perform or do any act herein required shall constitute a default. In the event of any default, in addition to any other remedy available to City, this Contract may be terminated by City upon ten (10 ) days written notice. Such termination does not waive any other legal remedies available to City.

Warranties: Right to Grant License. Contractor hereby warrants that it has title to and/or the authority to grant a license of the Licensed Software to City.

Warranties: Conformity to Specifications. Contractor warrants that when the Licensed Software specified in the Agreement and all updates and improvements to the Licensed Software are delivered to City, they will be free from defects as to design, material, and workmanship and will perform in accordance with the Contractor’s published specifications for the Licensed Software for a period of thirty (30) days from City’s Acceptance of such Licensed Software.

Nondisclosure. City agrees that it shall treat the Licensed Software with the same degree of care as it treats like information of its own, which it does not wish to disclose to the public, from the date the Licensed Software is Accepted by City until the license is terminated as provided herein. The obligations of City set forth above, however, shall not apply to the Licensed Software, or any portion thereof, which:

is now or hereafter becomes publicly known;

is disclosed to City by a third party which City has no reason to believe is not legally entitled to disclose such information;

is known to City prior to its receipt of the Licensed Software;

is subsequently developed by City independently of any disclosures made hereunder by Contractor;

is disclosed with Contractor’s prior written consent;

is disclosed by Contractor to a third party without similar restrictions.

Confidential Information. In the performance of Services, Contractor may have access to City’s proprietary or Confidential Information, the disclosure of which to third parties may damage City. If City discloses proprietary or Confidential Information to Contractor, such information must be held by Contractor in confidence and used only in performing the Agreement. Contractor shall exercise the same standard of care to protect such information as a reasonably prudent contractor would use to protect its own proprietary or Confidential Information.

Goods Provided Reserved (Primary and Secondary Contractors).

Term Agreement – Indefinite Quantities. This is a term, indefinite quantities Agreement to supply the Goods identified in this Agreement. Unless otherwise specified herein, Goods will be required in quantities and at times as ordered during the period of the Agreement. Estimated Goods are approximate only. City, in its sole discretion, may purchase any greater or lesser quantity. Purchasing may also make purchases from other suppliers when Purchasing determines, in its sole discretion, that City has an immediate need for the Goods or that it is not practical to purchase against this Agreement. City will not honor minimum order charges under this Agreement.

Independent Contractor. For the purposes of this Section 5.3, “Contractor” shall be deemed to include not only Contractor, but also any agent or employee of Contractor. Contractor acknowledges and agrees that at all times, Contractor or any agent or employee of Contractor shall be deemed to be an independent contractor and is wholly responsible for the manner in which it delivers the Goods required by this Agreement.

Goods.

Awarded Goods. If during the term of the Agreement, a contract item is determined to be unacceptable for a particular use, and such is documented by a City Department and as determined by Purchasing, Contractor agrees that the item will be canceled and removed from the Agreement without penalty to City. City’s sole obligation to Contractor is payment for deliveries made prior to the cancellation date. City shall give Contractor ten (10) calendar days’ notice prior to any cancellation. City will purchase the required replacement item from any source and in the manner as determined by Purchasing. If a contracted item has been discontinued by the manufacturer or is deemed temporarily unavailable, Contractor shall search the marketplace and find an acceptable equal substitute in the time required for delivery and at the Agreement price. Contractor must notify Purchasing in writing, which can include email, certified mail, or other trackable mail, of any changes in the description of article, brand, product code or packaging. Any changes made without the approval of City will constitute a Default under this Agreement.

Place of Manufacture. No article furnished hereunder shall have been made in prison or by convict labor, except Goods purchased for use by City’s detention facilities. City may require Contractor to provide within seven (7) business days from the date they are requested to do so, information and documentation requested by Purchaser, including but not limited to: sources of supply, distribution, dealership or agency agreements and authorizations from manufacturer(s) they claim to represent, lines of credit with financial institutions for manufacturer(s) they claim to represent, lines of credit with financial institutions and suppliers, numbers of employees, trade references and any other information to determine Contractor’s fitness to supply the Agreement requirements.

Electrical Products. Goods must comply with all applicable laws, ordinances and other legal requirements, including (among others) the Cal-OSHA regulations in Title 8 of the Code of Regulations and, for electrical products, Sections 110.2 and 110.3 (B) of the S.F. Electrical Code.

Condition of Goods. Goods offered and furnished must be new and previously unused, and of manufacturer’s latest model, unless otherwise specified herein. Contractor shall establish quality control measures, as applicable to department’s operations, and promptly provide documented reports to City of any product defects or premature failures.

Inspection. All Goods supplied shall be subject to inspection and acceptance or rejection by Purchasing or any department official responsible for inspection. Non-conforming or rejected Goods may be subject to reasonable storage fees.

F.O.B. Goods shall be shipped Freight on Board, to any destination named in a Purchase Order issued by City against this Agreement. The cost of shipment must be incorporated into the offered unit costs.

Failure to Deliver. If Contractor fails to deliver Goods of the quality, in the manner or within the time called for by this Agreement, such Goods may be bought from any source by Purchasing. If City is required to pay a price that exceeds the price agreed upon by this Agreement, the excess price will be charged to and collected from Contractor (or sureties on its bond, if bond has been required); or, the City may terminate the Agreement for default; or, the City may return deliveries already made and receive a refund.

Safety Data Sheets. Where required by law or by City, Contractor will include Safety Data Sheets (SDSs) with delivery for applicable items. Failure to include the SDSs for such items will constitute a material breach of contract and may result in refusal to accept delivery.

Warranty for Goods. Contractor warrants to City that the manufacturer’s warranty and service will be passed on to the City at the time of delivery.

Assignment. The Goods delivered by Contractor are personal in character. This Agreement may not be directly or indirectly assigned, novated, or otherwise transferred unless first approved by City by written instrument executed and approved in the same manner as this Agreement. Any purported assignment made in violation of this provision shall be null and void.

Reserved (Liquidated Damages).

Reserved (Performance Bond).

Reserved (Fidelity Bond or Crime Insurance).

Emergency - Priority 1 Service. In case of an emergency that affects any part of the San Francisco Bay Area, Contractor will give City Priority 1 service with regard to the Goods procured under this Agreement unless preempted by State and/or Federal laws. Contractor will make every good faith effort in attempting to deliver the Goods using all modes of transportation available. In addition, Contractor shall charge fair and competitive prices for the Goods ordered during an emergency and not covered under the awarded Agreement.

Annual Usage Reports by Contractor.

Annually no later than February 15 and upon request, Contractor shall prepare and submit to City an electronic report in Microsoft Excel or CSV format identifying the Goods rendered under this Agreement (“Usage Report”).

The Usage Report must detail all Goods performed by Contractor as of the Contract start date through December of the calendar year directly preceding the date of the report.

The Usage Report shall include, at a minimum, the following data:

Sample Usage Report (Goods)

Upon request, Contractor must also furnish a separate Usage Report for Goods delivered to City which are not part of this Agreement.

Contractor shall email Usage Reports to OCAVendor.Reports@sfgov.org.

Any report files larger than 10MB must be submitted in electronic format on USB drive and mailed to the address shown below with the term Agreement number and “Annual Supplier Reporting” clearly marked on the envelope/packaging. Contractor shall mail the reports to:

OCA Supplier Reporting Re: Term Contract No. TC91116 City and County of San Francisco Office of Contract Administration – Purchasing City Hall, Room 430 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4685 City reserves the right to terminate this Agreement if information requested from and submitted by Contractor fails to satisfy City and/or Contractor is unable to provide the information and/or documentation within the period requested.

SaaS Services and Resources SaaS Licensed Software. Subject to the terms and conditions of this Agreement, Contractor hereby grants City and Authorized Users a renewable, irrevocable, non-exclusive, royalty-free, and worldwide license to access, display, and execute the SaaS Application and SaaS Services during the Term of this Agreement and any renewals thereof, if any.

Click-Wrap Disclaimer. No “click to accept” agreement that may be required for City and/or Authorized Users’ access to the SaaS Services or Contractor’s Website and no terms of use, terms of service, or privacy policy referenced therein or conditioned for use of the SaaS Services or Contractor’s Website shall apply. Only the provisions of this Agreement as amended from time to time shall apply to City and/or Authorized Users for access thereto and use thereof. The Parties acknowledge that City and/or each Authorized User may be required to click “Accept” as a condition of access to the SaaS Services through Contractor’s Website, but the provisions of such “click to accept” agreement and other terms (including terms of use, terms of service, and privacy policy) contained or referenced therein shall be null and void for City and/or each such Authorized User. The foregoing does not apply to City’s own click-wrap agreements in the event City chooses to have Contractor include terms of use, terms of service, privacy policies, or similar requirements drafted and approved by City.

SaaS Application Title. City acknowledges that title to each SaaS Application and SaaS Services shall at all times remain with Contractor, and that City has no rights in the SaaS Application or SaaS Services except those expressly granted by this Agreement.

Authorized APIs. City shall also be permitted to access and use Contractor’s SaaS Application Program Interfaces (APIs) when commercially available to develop and modify, as necessary, macros and user interfaces for use with any existing or future City systems and infrastructure. For purposes of this Agreement, such development shall be deemed an authorized modification and does not violate the licenses granted under this Agreement but will not be supported by Contractor unless provided for in this Agreement. Functionality and compatibility of City developed macros will be sole responsibility of City. Any such macros or user interfaces developed by City shall become the property of City. All flat-file exchanges will be over an encrypted file transport service (ftps/vsftpd/scp/sftp) to a secure private ftp site.

Proprietary Markings. City agrees not to remove or destroy any proprietary markings or proprietary legends placed upon or contained within the SaaS Application or any related materials or Documentation.

Project Managers; Services Contractor Agrees to Perform.

Reserved (Project Managers).

Services Contractor Agrees to Perform. Contractor will perform all of the Services set forth in the Agreement, including but not limited to, Appendix C (City’s Hardware, On-Premise Software, SaaS Application and Hosting Services, and Support Terms and Conditions). Officers and employees of the City are not authorized to request, and the City is not required to compensate Contractor for Services beyond those stated.

Maintenance and Support. Contractor shall provide Maintenance/Support in accordance with Appendix C (City’s Hardware, On-Premise Software, SaaS Application and Hosting Services, and Support Terms and Conditions). Maintenance and Support Services include the provision of upgrades and a service desk, during the term of this Agreement for the SaaS Application(s).

Hosting. Contractor shall provide hosting in accordance with Appendix C, including the following:

Hosting Infrastructure. Contractor shall provide all hosting infrastructure, including, but not limited to, hardware, software and other equipment, at Contractor’s hosting site as required to provide hosting and deliver the SaaS Application and Services.

Security. Contractor shall ensure that all electronic transmission or exchange of City Data between the Services and Authorized Users will be encrypted using current industry standards. Contractor shall also ensure that all data exchanged between the Parties shall be used expressly and solely by Contractor for the purposes stated in the Agreement. City Data shall not be distributed, repurposed, or shared across other applications, environments, or business units of Contractor not involved in administration of this Agreement, unless otherwise permitted in this Agreement. Remote access to view City Data by Contractor for technical support purposes from outside the United States is prohibited without the formal written approval of City as long as City Data remains hosted solely on hardware residing on Data Centers located in the United States and no City Data is downloaded to or stored on any hardware residing on Data Centers not residing in the United States.

Access. Contractor shall provide Authorized Users 24/7 access to the SaaS Application(s).

Disaster Recovery and Business Continuity. Contractor shall provide Disaster Recovery Services and assist with Business Continuity as described in Section 17.4 and Appendix F.

Service Level Obligations. Contractor shall comply with the support (24/7 service desk) and Service Level Obligations described in Appendix C.

Acceptance Testing; Document Delivery; Training.

After City has obtained access to the SaaS Application and Services, and subsequent to each SaaS Software version upgrade,…