Software_as_a_Service_Template.docx
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- Parking Citation System
- Solicitation number
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- Los Angeles County, San Francisco City, California
About this file
This is a Software as a Service (SaaS) Agreement template developed by the City of Santa Monica, California, for procuring cloud-based software systems and related services. The agreement establishes the terms and conditions governing the relationship between the City and a SaaS provider selected through a Request for Proposal process. The contract covers the provision of fully integrated web-based systems, including software licenses, custom software development, professional services, system implementation, maintenance, and support. The agreement specifies that the City may license the System to an authorized number of Users and grant Third-Party Users access rights, with implementation to be completed according to a project schedule and acceptance achieved after 30 days of successful full use without significant malfunction. The initial contract term is flexible (to be determined in specific agreements), with options for City-directed extensions on identical terms. The SaaS Provider must maintain service levels including 99.5% uptime and response protocols for four priority levels of system issues, ranging from eight-hour resolution for critical failures to 30-day correction windows for minor problems. Professional services are included as specified in the Statement of Work, with the ability to contract for expanded services at the Provider's then-current rates.
Compensation is structured on a not-to-exceed basis with specific fees, budgets, and payment schedules detailed in exhibits, with the City paying undisputed invoiced amounts within 30 days of receipt. The SaaS Provider retains all intellectual property rights to the Software, Custom Software, and Software Work Product, while the City owns all Agreement Work Product generated through use of the System. The Provider must comply with comprehensive data security requirements aligned with NIST 800-53, CIS controls, ISO/IEC 27001:2013 and 27002:2013, SOC 2, and ITIL standards, and must maintain all Confidential Information and Protected Information within the United States without transborder transfer. Insurance requirements include Commercial General Liability of $1,000,000 per occurrence, Workers' Compensation at statutory limits, and Technology Professional Errors and Omissions/Cyber Liability of $1,000,000 per occurrence or $2,000,000 annual aggregate. The Provider must provide prompt notification of any Data Breach within 24 hours and cooperate fully with remediation and investigation. The agreement is governed by California law with venue and jurisdiction in Los Angeles County courts.
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Text version
Agreement No. _____ (CCS)
SOFTWARE AS A SERVICE AGREEMENT
This Software As A Service Agreement (“Agreement”), entered into on _____________ (“Execution Date”), by and between ________________________ (“SaaS Provider”), and City of Santa Monica, a California municipal corporation (“City”) is made with reference to the following:
RECITALS
| A. | City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. |
| B. | City issued a Request for Proposal (“RFP”) seeking a qualified vendor to [DESCRIBE SYSTEM SOUGHT BY RFP]. A copy of the RFP is attached hereto as Exhibit A. |
| C. | In response to the City’s RFP, SaaS Provider submitted its Proposal (“Proposal”), which is attached hereto as Exhibit B. To implement the Proposal, SaaS Provider and City have agreed on the Statement of Work attached hereto as Exhibit C. |
| D. | SaaS Provider is qualified to do business, and is doing business, in the State of California. SaaS Provider represents it has the background, knowledge, experience, and expertise necessary to provide the services set forth in this Agreement. |
| E. | City and SaaS Provider desire to enter into this Agreement upon the terms and conditions set forth below. |
NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows:
TERMS AND CONDITIONS
| 1. | Definitions. The following definitions shall apply to the following terms as they appear in this Agreement: |
| 1.1. | “Affiliates” means, with respect to a Party, its parent company and subsidiaries and/or controlled corporations or entities which are directly or indirectly controlled by Party. |
| 1.2. | “City” means the City of Santa Monica. |
| 1.3. | “Client Party” means City and each of its Affiliates, Users, and Third-Party Users. |
| 1.4. | “Client Data” means all information and data provided or inputted by or on behalf of any Client Party for use with the System. |
| 1.5. | “Confidential Information” means: (i) Protected Information; (ii) all confidential and proprietary information of a Party, including, without limitation, business plans, strategies, products, software, source code, object code, clients, data models, discoveries, inventions, developments, know-how, improvements, works of authorship, concepts, or expressions thereof, whether or not subject to patents, copyright, trademark, trade secret protection or other intellectual property right protection; and (iii) all information any Client Party discloses, in writing, orally, or visually, to Vendor, or to which Vendor obtains access in connection with the negotiation and performance of this Agreement, and which relates to City, its employees, its third-party vendors or licensors, or any other individuals or entities that have made confidential or proprietary information available to City (or to Vendor acting on City’s behalf), that is marked or otherwise identified as confidential or proprietary or that, given the nature of the information, ought reasonably to be treated as proprietary or confidential. Vendor’s Confidential Information includes all Proprietary Rights with respect to the Software, Custom Software and Software Work Product. |
| 1.6. | “Agreement Work Product” means all Client Data and all information and data generated by Vendor or any Client Party using Client Data in relation to the performance of this Agreement, including aggregate data generated using Client Data. |
| 1.7. | “Custom Software” means specifically modified reports, dashboard panels, or other features or modules of the Software created by Vendor for City as described in the Proposal, Statement of Work or other documents attached as exhibits to this Agreement. |
| 1.8. | “Data Breach” means the unauthorized acquisition, access, use, or disclosure of Confidential Information that compromises the security, confidentiality, or integrity of such information. |
| 1.9. | “Documentation” means all user guides, videos, embedded help text, and other reference materials generally furnished with respect to the System, whether in printed or electronic format. |
| 1.10. | “Party” in the singular refers to either of the parties to this Agreement, together with their Affiliates, while “Parties” in the plural refers to both the parties to this Agreement, together with their Affiliates. |
| 1.11. | “Permissions” means the username and password provided to City by Vendor or by City to Users for each User, as the same may be modified under the System. |
| 1.12. | “Proprietary Rights” means worldwide intellectual and proprietary property owned and/or properly licensed by a Party and all intellectual or proprietary property rights subsumed therein, including copyright, patent, trademark (including goodwill), trade dress, trade secret and know-how rights. |
| 1.13. | “Protected Information” means information that identifies or is capable of identifying a specific individual, including but not limited to personally-identifiable information (PII), Protected Health Information as defined under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the HIPAA regulations (including, but not limited to 45 CFR § 160.103), medical information other than Protected Health Information as defined under HIPAA and the HIPAA regulations, Cardholder Data (as currently defined by the Payment Card Industry Data Security Standard and Payment Application Standard Glossary of Terms, Abbreviations, and Acronyms), student records, or individual financial information that is subject to laws restricting the use and disclosure of such information, including but not limited to Article 1, Section 1 of the California Constitution; the California Information Practices Act (Civil Code § 1798 et seq.); the federal Gramm- Leach-Bliley Act (15 U.S.C. §§ 6801(b) and 6805(b)(2)); the federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g); the federal Fair and Accurate Credit Transactions Act (15 USC § 1601 et seq.); the federal Fair Credit Reporting Act (15 USC § 1681 et seq.); and California Streets and Highway Code § 31490. |
| 1.14. | “SaaS Provider” means and refers to _______________________, a ________ corporation. |
| 1.15. | “Services” means the Software, Custom Software, and Professional Services that are the subject of this Agreement and identified in the Statement of Work, together with any Updates and Upgrades thereto. |
| 1.16. | “Service Interruption” means that any Client Party is unable to access the System as provided herein, excluding (i) scheduled maintenance windows of which City is notified at least 24 hours in advance and which occur outside of normal business hours; (ii) scheduled repairs of not more than two hours duration in any one week period of which City is notified at least four hours in advance and which occur outside of normal business hours; (iii) critical repairs including security updates where advance notice cannot be reasonably provided and (iv) interruptions caused by transmission errors, Internet service providers, vandalism, User error or other factors beyond Vendor’s or its direct Service Providers’ reasonable control. |
| 1.17. | “Service Provider” means a third-party service provider of City, SaaS Provider, and/or any of their Affiliates. |
| 1.18. | “Server” means and refers to the server(s) utilized by Vendor for the System as defined in this Agreement. SaaS Provider shall, in accordance with the notice provisions set forth in Section 13 below, keep the City’s Information System Department informed of the location and nature of the Server, in writing, throughout the Term of this Agreement. |
| 1.19. | “Software” means the object code version of the software products set forth in the deliverables section of the Statement of Work and made available to City under this Agreement by Vendor. |
| 1.20. | “Software Work Product” means software, programming, tools, documentation, and materials that are used, created, developed, or delivered by Vendor to City in connection with Custom Software, and all Proprietary Rights subsumed therein. |
| 1.21. | “Statement of Work” means any statement of work entered into and mutually approved in writing by the parties pursuant to this Agreement, including in particular but not limited to the Statement of Work, the Proposal, and any other documents attached as exhibits to this Agreement. |
| 1.22. | “System” means and refers to Vendor’s fully integrated web-based system, including the software, subscription service, and all other professional services, as specified in the Statement of Work, including any and all Upgrades and Updates. The System shall be accessible by any Client Party via a designated web site or IP address to be provided to City by SaaS Provider. |
| 1.23. | “Third-Party Technology” means proprietary technology of third parties that Vendor provides, or enables access to, as part of the System. |
| 1.24. | “Third-Party User” means any customer, consultant or Service Provider of any Client Party that is using or accessing the System on behalf of the Client Party. |
| 1.25. | “Third-Party User Agreement” means the user agreement between a Third-Party User and SaaS Provider, as the same may be amended from time to time. |
| 1.26. | “Updates” and “Upgrades” means maintenance revisions, improvements, modifications, bug fixes, patches, corrections and enhancements to System provided by Vendor generally to its customers. The term “Updates” shall not include custom reports or enhancements for which Vendor charges a separate or additional fee. |
| 1.27. | “User” means any single employee, contractor, agent, customer, investor, consultant or Third-Party User of City or any of its Affiliates who uses or accesses the System. |
| 1.28. | “Vendor” means and refers to SaaS Provider and any of its Affiliates. |
| 2. | Term. The term of this Agreement shall be for a period of _____ (__) year(s) beginning on the Execution Date (“Term”), unless terminated earlier in accordance with Section 15 below. |
| 2.1. | Option to Extend. City, in its sole and complete discretion, shall have ____ option(s) to extend the Term for ____ additional ___-year period(s) (each, an “Option Term”) on the same terms and conditions as set forth in this Agreement. The City may exercise its option in writing, provided to SaaS Provider pursuant to the notice provisions in Section 13 below. |
| 3. | System. |
| 3.1. | Software License Grant. Vendor hereby grants to City a nonexclusive and nontransferable license to use the System including all of the Software Licenses set forth in the Statement of Work. Vendor represents that it possesses all rights and interest in the System including the Software Licenses set forth in the Statement of Work. |
| 3.2. | Software as a Service. Vendor agrees to provide a fully integrated web-based System via a subscription service as described in the Statement of Work and to grant any Client Party a non-exclusive right to access the System, including all Updates and Upgrades, via the Internet. Any Client Party may use the System solely for internal business of City in accordance with this Agreement, including the Statement of Work, and the applicable Third-Party User Agreement and Documentation. |
| 3.3. | System Implementation. Vendor will configure, test and implement the System in accordance with the project schedule set forth in the Statement of Work. An estimated timeline for the implementation of the System is set forth in the project schedule attached hereto as Exhibit D, and such timeline may be amended from time to time by the Parties. System acceptance will be complete after the System has been in successful full use for a consecutive period of 30 days without significant malfunction or error. Any significant failure (no workaround or fix) of the System or need for software correction for Software provided by Vendor during the acceptance period shall extend the acceptance period on a day by day basis until the correction is fully completed. |
| 3.4. | System Maintenance and Support. Vendor will maintain and support the System as set forth in the Statement of Work. |
| 3.5. | Vendor Hosted System Model. Vendor will host the System and Client Data in a secure Internet accessible environment as described in the Statement of Work. |
| 3.6. | Users. City may license the System to the number of authorized Users as set forth in the Statement of Work. Each authorized User shall access and use the System (i) in accordance with the terms of this Agreement, including the Statement of Work, and applicable Third-Party User Agreement and Documentation, and, (ii) when applicable, through a unique and reasonably secure username and password as further described in the Statement of Work, Third Party User Agreement or Documentation. The System allows City to grant different levels of access to Client Data, to different Users, as described in more detail in the Statement of Work. It is City’s responsibility to designate the applicable access to be granted to each User. City shall cause all Users to comply with all obligations of City hereunder, to the extent applicable to Users. Except for City’s and its Affiliates’ system administrators and where reasonably necessary for administrative or security purposes, no User may use the username/user identification or password of any other User. |
| 3.7. | Third Party Access. City shall also have the right for City and its Affiliates to permit Third Party Users to access or use the System in accordance with the terms and conditions of this Agreement, including the Statement of Work, provided that Third Party User has agreed in writing in advance to be bound by at least the same restrictions with respect to the System as City or has entered into a Third Party User Agreement with SaaS Provider. Any rights granted hereunder with respect to the System to Third Party Users shall expire or terminate immediately upon the termination of the Agreement in accordance with its terms. City shall be responsible for ensuring the compliance of each Client Party with the terms and conditions of this Agreement and the applicable Statement of Work. |
| 3.8. | Security. SaaS Provider shall provide City with the ability to create, modify and assign Permissions required for each User to access the System. City shall be responsible for safeguarding the Permissions and otherwise complying with the password and security procedures that SaaS Provider may establish from time to time. City shall promptly notify SaaS Provider if City becomes aware that the security of its Permissions has been compromised. |
| 3.9. | Professional Services. During the term of this Agreement, SaaS Provider will make available to City Professional Services as set forth in the Statement of Work. City may also contract for expanded services for additional days and hours in accordance with SaaS Provider’s then-current policies and prices. Notwithstanding the foregoing, SaaS Provider will not be obligated to provide any support required as a result of, or with respect to, City’s operating systems, networks, hardware, or other related equipment of any Client Party use of the Services other than in accordance with the applicable Statement of Work and Documentation and as permitted under this Agreement. |
| 3.10. | Service Level. SaaS Provider shall provide the Service Levels set forth in the Statement of Work, including the 99.5% uptime requirement, and including response no less quickly than in accordance with the following priority levels: |
| (a) | A Level “A” Priority shall mean and refer to a System error that renders the System inoperable. SaaS Provider shall assign resources within the first hour and shall continue to work on the problem until the problem is resolved. Average resolution time shall be less than eight (8) hours. |
| (b) | A Level “B” Priority shall mean and refer to the detection of a System error that seriously impairs System operations but does not render the System inoperable. SaaS Provider shall assign resources within four (4) hours and continue to work on the problem until the problem is resolved. |
| (c) | A Level “C” Priority shall mean and refer to a minor problem, but of sufficient severity to warrant correction before the next scheduled Upgrade or Update. SaaS Provider shall assign resources sufficient to resolve the problem within no more than thirty (30) days. |
| (d) | A Level “D” Priority shall mean and refer to any other minor problems that do not severely affect the operation of the System. SaaS Provider shall incorporate corrections into the next scheduled Upgrade or Update. |
| 3.11. | Backup. SaaS Provider shall maintain a backup of all Agreement Data as set forth in the Statement of Work and shall, on written request from City, provide a copy of the backup to City. |
| 4. | City Obligations. City shall: (i) provide SaaS Provider with reasonable access to City’s premises as appropriate to enable SaaS Provider to perform its obligations hereunder; (ii) provide adequate resources to participate in or facilitate the performance of the System; (iii) timely participate in meetings relating to the System; (iv) assign personnel to work in consultation with SaaS Provider; (v) safeguard the user ID’s, passwords and other security data, methods and devices furnished to City in connection with the System and prevent unauthorized access to or use of the System; (vi) be responsible for City networks, equipment and system security required or appropriate in connection with the System; (vii) be responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of Client Data; (viii) transmit Client Data only in an encrypted format, to be mutually agreed by the parties; and (ix) take such other actions as are required of City pursuant to this Agreement, including any Statement of Work. |
| 5. | Confidentiality. The parties acknowledge and agree that for the implementation and operation of the System, each Party (the “Receiving Party”) may have access to certain Confidential Information of the other Party (the “Disclosing Party”), including Protected Information, that is exempt from disclosure to the public or other unauthorized persons under state and federal statutes. Each Party warrants and agrees as follows: (i) all such Confidential Information shall be kept confidential and protected from disclosure to any persons other than employees, agents, officers or representatives of such Party who have a need to know; and (ii) all such Confidential Information shall be held in the strictest of confidence and shall not be disclosed, disseminated or revealed to any other third party without the prior written permission of (a) for SaaS Provider, an authorized representative of SaaS Provider, and (b) for City, the Director of the City’s _____________________ Department and the City Attorney. Each Party shall ensure that its employees, officers, agents and representatives who are involved with this Agreement will be advised of the terms of this confidentiality clause and will be instructed that they are bound by this confidentiality clause. The following information shall not be considered Confidential Information subject to this Section: (i) information that is publicly available or later becomes available other than through a breach of this Agreement or a Data Breach; (ii) information that is known to the Receiving Party or its employees, agents or representatives prior to its disclosure by the Disclosing Party or is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or (iii) information that is subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality. If the Receiving Party is required by law to disclose any portion of the Disclosing Party’s Confidential Information in response to a subpoena, court order, or other similar document, including a request under the California Public Records Act, Receiving Party shall give prior timely notice of such disclosure to Disclosing Party to permit Disclosing Party to seek a protective or similar order, and, absent the entry of such an order, Receiving Party shall disclose only such Confidential Information as is necessary to be disclosed in response to such subpoena, court order, or other similar document, including a request under the California Public Records Act. |
| 6. | Key Staffing Changes In the event of any changes to SaaS Provider’s key staff assigned to this Agreement, SaaS Provider will notify the City as soon as reasonably possible. Further, SaaS Provider agrees that any replacement of key staff assigned to this Agreement will be made with individuals of comparable or higher experience or expertise. |
| 7. | Compensation & Invoices. The City will compensate SaaS Provider for the Services performed in a total amount not-to-exceed ______________ in accordance with the Fee, Budget, and Compensation Schedule attached as Exhibit E. SaaS Provider will invoice the City for the Services performed in accordance with Exhibit E, and the City will pay any undisputed amount set forth on a correct invoice within 30 days of receipt. |
| 8. | Copyright and Other Restrictions. |
| 8.1. | SaaS Provider’s Proprietary Rights. SaaS Provider owns all right, title and interest, including all related Proprietary Rights in and to, or related to the Software, Custom Software, Software Work Product and System, including all software programs contained therein. The SaaS Provider name, the SaaS Provider logos, and the product names associated with the System are trademarks of SaaS Provider or third parties, and no right or license is granted with respect to their use. The System may contain intellectual property belonging to third parties. All such intellectual property is and shall remain the property of its respective owners. Except for the limited rights expressly granted herein, all right, title and interest in and to the Software, Custom Software, Software Work Product, and System are reserved by SaaS Provider, and, except as expressly granted herein, nothing contained in this Agreement shall be construed as conferring any right, title, interest or license with respect to the Software, Custom Software, Software Work Product or System upon any Client Party, by implication, estoppel or otherwise. In addition, City agrees and acknowledges that SaaS Provider shall have an unlimited right to incorporate into any updates, upgrades, or modifications to the Software, Custom Software and the System rendered through use thereof all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by any Client Party relating to the System. Such Software, Custom Software and System, as updated, upgraded, or modified, shall be owned by SaaS Provider as provided in this Section. Nothing in this Section shall affect the ownership by City of any and all Agreement Work Product or other City proprietary information. |
| 8.2. | Restrictions. Nothing in this Agreement shall be construed as a grant to City of any right to, and City shall not, and shall not permit any Client Party to: (i) reproduce, license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the System or any portion thereof; (ii) distribute, disclose or allow use of any of the System, or any portion thereof, in any format, through any timesharing service, service bureau, network or by any other means, to or by any third party; (iii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the System in any manner; (iv) create derivative works from, modify or alter any of the System in any manner whatsoever; (v) interfere with any third party’s use and enjoyment of the System; (vii) attempt to gain unauthorized access to the System, accounts, computer systems, or networks connected to any SaaS Provider’s server; or (vi) use any robot, spider or other automatic device or manual process to monitor or copy portions of the System. |
| 8.3. | Agreement Work Product. City shall own all right, title and interest in and to the Agreement Work Product, which shall never be deemed to be Software, Custom Software, System, or Software Work Product, even if delivered or incorporated therewith. SaaS Provider shall have no responsibility, whatsoever, for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of Client Data, and SaaS Provider shall not review, monitor or check the Client Data except as necessary to provide the System to Client and ensure the operation of the System in accordance with this Agreement. SaaS Provider shall not be responsible or liable, in any way, for the deletion, destruction, damage or loss of any Agreement Work Product through no fault of SaaS Provider or its providers without limiting SaaS Provider’s liability to maintain backup data as set forth in the Statement of Work or SaaS Provider’s obligations to maintain data security or in the event of a Data Breach as set forth in Sections 21 and 22 below. |
| 8.4. | Software Work Product. As between SaaS Provider and City, SaaS Provider shall be the sole and exclusive owner of all right, title, and interest in and to all Software Work Product and all Proprietary Rights subsumed therein. City expressly acknowledges and agrees that the Software Work Product shall not constitute work made-for-hire under the United States Copyright Act, and that SaaS Provider shall have the exclusive right to protect the Software Work Product by patent, copyright, or any other means. Software Work Product shall be made available to City as part of the System to the extent set forth in the Statement of Work, and City shall have no other right to use any Software Work Product. |
| 8.5 | Notices of Infringement. Upon notice from SaaS Provider, City agrees to reasonably cooperate with and assist SaaS Provider (at SaaS Provider’s sole expense) in protecting, enforcing and defending SaaS Provider’s rights in and to the System and any Software Work Product. |
| 9. | System Warranty. SaaS Provider warrants that the System will perform in all material respects in accordance with its Proposal, the Statement of Work, and any related Documentation when used in accordance with the terms of this Agreement on the hardware and with the third-party software specified by SaaS Provider from time to time. In the event of any breach by SaaS Provider of the warranty provided in this Section, SaaS Provider shall be required to repair or replace the nonconforming System, at SaaS Provider’s sole expense, as described herein. SaaS Provider shall deliver to City a replacement System, a work-around and/or an error/bug fix as may be necessary to correct the nonconformity. If SaaS Provider is unable to repair or replace the nonconforming System through the remedy set forth above, then such remedy shall not be an exclusive remedy and City shall have all remedies available in law or equity. |
| 10. | Services. SaaS Provider represents and warrants that the Services shall be performed in a professional and commercially reasonable manner consistent with the standard of care exercised by SaaS Provider in performing similar services for other clients. City’s remedy for breach of this warranty shall be re-performance of the nonconforming Services, provided that SaaS Provider must have received written notice of the nonconformity from City no later than 60 days after the original performance of the Services by SaaS Provider. If SaaS Provider is unable to re-perform the nonconforming Service through the remedy set forth above, then such remedy shall not be an exclusive remedy and City shall have all remedies available in law or equity. |
| 11. | Insurance. Prior to commencing work, SaaS Provider must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the System by Vendor or Vendor’s agents, representatives, employees or subconsultants for the duration of this Agreement. SaaS Provider must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit F, Insurance Requirements and Verifications. |
| 12. | Indemnification. |
| 12.1. | General Indemnification. SaaS Provider agrees to defend, indemnify, protect, and hold harmless City, its agents, officers, boards and commissions, and employees (collectively, “City Indemnitees”) from and against any and all liability, claims, demands, damages, or costs, including but not limited to attorneys’ fees, or payments for injury to any person or property (collectively, “Losses”), alleged to arise out of or result from any alleged acts, errors, or omissions of Vendor in connection with its performance under this Agreement. SaaS Provider’s responsibilities under this Section 12.1 include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City Indemnitees, which may be in combination with the acts or omissions of Vendor, its employees, agents or officers, or subconsultants; provided, however, that SaaS Provider’s duty to defend, indemnify, protect and hold harmless shall not include any Losses arising from the sole negligence or willful misconduct of the City Indemnitees. |
| 12.2. | Infringement Claims. SaaS Provider agrees to indemnify, defend, settle, or pay any third-party claim or action against any Client Party for infringement of any U.S. patent or copyright arising from City’s use in accordance with this Agreement of the System. If the System or any part of the System is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, SaaS Provider shall, at its own expense, either: (i) procure for City the right to continue to use the System; or (ii) modify the System to make it non-infringing, provided that such modification does not materially adversely affect City’s authorized use of the System; or (iii) replace the System with a functionally equivalent non-infringing program at no additional charge to City; or (iv) if none of the foregoing alternatives is reasonably available to SaaS Provider, terminate this Agreement and refund to City any prepaid but unearned fees paid to SaaS Provider. |
| 12.3. | Conduct of Defense. Notwithstanding SaaS Provider’s obligation to defend the City Indemnitees hereunder, City has the right to conduct the defense of the City Indemnitees and obtain reimbursement for reasonable costs of defense from SaaS Provider, if City chooses to do so. |
| 13. | Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows: |
| 13.1. | All notices, demands, requests or approvals to the City: |
City of Santa Monica 1685 Main Street Santa Monica, CA 90401 Attention: ________________ Re: Agreement No. __________ (CCS) with a copy to:
Santa Monica City Attorney’s Office 1685 Main Street, Third Floor Santa Monica, CA 90401 Attention: City Attorney Re: Agreement No. __________ (CCS) and to:
City of Santa Monica Information System Department 1685 Main Street, Room 105 Santa Monica, CA 90401 Attention: Chief Information Officer Re: Agreement No. __________(CCS)
13.2. All notices, demands, requests or approvals to SaaS Provider:
Attn: _________________ Re: Agreement No. __________ (CCS)
| 14. | Prohibition Against Transfers. |
| 14.1. | SaaS Provider shall not assign, hypothecate or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City, which shall not be unreasonably withheld. Any attempt to do so without the City’s consent shall be null and void, and any assignee, sublessee, hypothecatee or transferee shall acquire no right or interest by reason of such attempted assignment, sublease, hypothecation or transfer. |
| 14.2. | Notwithstanding the foregoing, no written consent shall be required for SaaS Provider to assign, hypothecate or transfer this Agreement to (i) any parent or wholly owned subsidiary or (ii) to a successor by way of a merger, acquisition, sale, transfer or other disposition of all or substantially all of its assets, provided that for either (i) or (ii) SaaS Provider provides City with written notice of such assignment. |
| 14.3. | The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of SaaS Provider or of any general partner or joint venturer or syndicate member of SaaS Provider, if a partnership or joint venture or syndicate exists, which results in changing the control of SaaS Provider, will be construed as an assignment of this Agreement. Control means 50% or more of the voting power of the corporation. |
| 15. | Default and Termination. |
| 15.1. | Right to Terminate for Cause; Notice and Opportunity to Cure. Either Party may terminate this agreement for cause if the other Party materially breaches any of the provisions of this Agreement and fails to cure such breach within 30 days after receipt of written notice thereof. In the event a longer period is required to complete a cure, the Parties may agree to extend such time periods provided that the breaching Party has commenced and continues to cure within the extended time period. |
| 15.2. | Rights Upon Termination. Upon termination of this Agreement by either party for any reason: |
| i. | All licenses granted to the City under this Agreement shall terminate and revert immediately to Vendor, subject to other provisions of this Agreement regarding the City’s right to access Agreement Work Product. |
| ii. | SaaS Provider shall promptly transmit or cause to be transmitted the Agreement Work Product in a form readable and accessible by the City. SaaS Provider agrees to cooperate with the City for the transmittal of the information in a form reasonably acceptable by the City. |
| iii. | The City’s rights to the Agreement Work Product shall be unequivocal and shall survive the termination of this Agreement. |
| iv. | Upon termination of this Agreement, City will pay SaaS Provider any compensation earned and unpaid up to the effective date of termination. |
| 16. | Records. |
| 16.1. | SaaS Provider must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, subconsultant costs, or other direct costs. SaaS Provider must keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment. |
| 16.2. | SaaS Provider must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles. SaaS Provider must clearly identify all records and make them readily accessible to the City. At the City’s request, SaaS Provider must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records. |
| 16.3. | SaaS Provider must allow the City to have free access to SaaS Provider’s books and records and to inspect all work, data, documents, proceedings and activities related to this Agreement. The City has the right to examine or audit SaaS Provider’s records, and SaaS Provider agrees to cooperate with any examination or audit of its records. If a City audit discloses an error of 5% or more in information reported by SaaS Provider, SaaS Provider agrees to pay the cost of the City’s audit computed on the basis of four times the direct payroll of the audit staff completing the audit and audit report. |
| 17. | Agreement Work Product; Reports. |
| 17.1. | Any Agreement Work Product prepared or caused to be prepared by Vendor or any subconsultant for this Agreement will be the exclusive property of City. No Agreement Work Product given to or prepared by Vendor or any subconsultant pursuant to this Agreement may be made available to any individual or organization by Vendor without prior written approval by City. |
| 17.2. | At City’s request, Vendor must furnish reports concerning the status of the Services. |
| 18. | Data Retention. All Agreement Work Product is the property of the City. At any time during the term of this Agreement at the City’s request or upon the termination of this Agreement for any reason, SaaS Provider shall, and shall instruct all authorized persons to, promptly return to the City all copies, whether in written, electronic or other form or media, of all Agreement Work Product in its possession or the possession of such authorized persons. SaaS Provider shall also securely dispose of all remaining copies in Vendor’s possession, if the City so instructs, and certify in writing to the City that all Agreement Work Product, including Protected Information, has been returned to City or disposed of securely, as requested by the City. SaaS Provider shall comply with all directions provided by the City with respect to the return or disposal of Agreement Work Product, including Protected Information. |
| 19. | Standard of Care. SaaS Provider agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of SaaS Provider’s profession under similar conditions. |
| 20. | Subconsultants. |
| 20.1. | If SaaS Provider proposes to have any subconsultant perform any part of the Services, SaaS Provider must submit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed subconsultant, and the total price or hourly rates used in preparing an estimated cost for the subconsultant’s services. The City, in its sole discretion, may grant or deny the request. |
| 20.2. | SaaS Provider will be responsible for the quality of any subconsultant’s work. Every subcontract or agreement of any kind entered into between SaaS Provider and any subconsultant (or between any subconsultant and others) must contain the following provision: |
This agreement is consistent with all terms and conditions of the Agreement No. _________ (CCS) entered into between the City of Santa Monica and __________________ on^^____________________.
| 21. | Data Security. To the extent SaaS Provider will collect, access, use, store, dispose of, or disclose Confidential Information, including Protected Information, the following provisions will apply. |
| 21.1. | SaaS Provider represents and warrants that it will comply with all applicable federal, state, and local privacy and data protection laws, as well as all other applicable regulations. |
| 21.2. | SaaS Provider shall implement administrative, physical and technical safeguards to ensure security of Confidential Information, including Protected Information, that are no less rigorous than accepted industry practices including National Institute of Standards and Technology (NIST) 800-53, Center for Internet Security (CIS) controls, the International Organization for Standardization’s standards (ISO/IEC 27001:2013 – Information Security Management Systems – Requirements and ISO-IEC 27002:2013 – Code of Practice for Information Security Controls), the American Institute of Certified Public Accountants trust principals for security, confidentiality, and availability (SOC 1 and SOC 2), and the Information Technology Library (ITIL) standards. Vendor shall ensure that all such safeguards, including the manner in which Protected Information is collected, accessed, used, stored, processed, disposed of and disclosed, comply with all applicable data protection and privacy laws, as well as the terms and conditions of this Agreement. SaaS Provider shall provide City with copies of: (a) its Data and Server Security Plan (as periodically updated); (b) its Business Continuity/Disaster Recovery Plan (as periodically updated); and (c) its annual SSAE 16 SOC 2 Audit Report, subject to these documents being treated as Confidential Information under the terms of this Agreement. |
| 21.3. | If in the course of this engagement SaaS Provider has access to or will collect, access, use, store, process, dispose of or disclose credit, debit or other payment cardholder information, SaaS Provider shall at all times remain in compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS at SaaS Provider’s sole cost and expense. |
| 21.4. | All employees and subcontractors given access to any Confidential Information, including Protected Information, must agree to abide by the terms of the Agreement and restrict use of Confidential Information, including Protected Information, only for subcontractors or employees’ internal business purposes and only as necessary for the execution of the Agreement. |
| 21.5. | SaaS Provider’s failure to adequately protect Confidential Information, including Protected Information, resulting in a Data Breach is a material breach of this Agreement. In such event, City may terminate the Agreement effective immediately upon written notice to SaaS Provider without further liability or obligation to City. |
| 21.6. | Upon City’s request, to confirm SaaS Provider’s compliance with this Agreement, as well as any applicable laws, regulations and industry standards, SaaS Provider grants City or, upon City’s election, a third party on City’s behalf, permission to perform an assessment, audit, examination or review of all controls in SaaS Provider’s physical or technical environment in relation to all Confidential Information, including Protected Information, being handled and services being provided to City pursuant to this Agreement. SaaS Provider shall fully cooperate with such assessment by providing access to knowledgeable personnel, physical premises, documentation, infrastructure and application software that processes, stores or transports Confidential Information, including Protected Information, for City pursuant to this Agreement. City may also request that SaaS Provider perform a self-audit of all security programs and controls. In addition, upon City’s request, SaaS Provider shall provide City with the results of any audit performed by or on behalf of SaaS Provider that assesses the effectiveness of SaaS Provider’s information security program as relevant to the security and confidentiality of Confidential Information, including Protected Information, shared during the course of this Agreement. |
| 21.7. | SaaS Provider shall ensure all Confidential Information, including Protected Information, remains within the United States and is not transbordered out of the country without prior written authorization by City, which authorization may be withheld by City in its sole discretion. |
| 22. | Data Breach. In the event of any Data Breach, SaaS Provider shall promptly notify City and cooperate with any remedial and notification requirements. |
| 22.1. | SaaS Provider shall provide notice by email and telephone of any Data Breach as soon as possible, but no later than 24 hours after learning of the Data Breach. The notice shall include a detailed report of the information breached, including names, contact information, and data that was compromised. |
| 22.2. | Immediately following notification of a Data Breach, SaaS Provider shall coordinate with City to jointly investigate the incident, and SaaS Provider agrees to (1) assist with any investigation; (2) provide City with access to facilities and operations impacted by the Data Breach; (3) provide status reports on any internal investigations as frequently as requested by City; (4) facilitate interviews with Vendor’s employees and others involved in the Data Breach; and (5) make available all relevant documents and data, electronic or in paper form, necessary to comply with all applicable laws, regulation, industry standards as otherwise requested by City. |
| 22.3. | SaaS Provider shall immediately remedy any Data Breach and, at SaaS Provider’s sole expense, take all necessary steps to prevent any further Data Breach in accordance with all applicable privacy rights, laws, regulations, and standards. |
| 22.4. | SaaS Provider shall not inform any third party of a Data Breach without first obtaining City’s written consent to do so, other than to inform a complainant that the matter or inquiry has been forwarded to the appropriate City office for review or as otherwise required by law. SaaS Provider shall consult with City to determine (1) whether notice of a breach should be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies, or others as required by law, regulation, or otherwise in the City’s discretion; and (2) the content of any such notice, whether and what type of remediation may be offered, and the nature and extent of any such remediation. |
| 22.5. | SaaS Provider shall fully cooperate in any litigation or other action deemed necessary by the City following any Data Breach. |
| 23. | Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modifications of this Agreement will be effective only by written execution signed by both City and SaaS Provider and approved as to form by the City Attorney. This Agreement is the product of negotiation and compromise between the parties. Accordingly, notwithstanding California Civil Code Section 1654, in the event of uncertainty, the language shall not be construed against the Party causing the uncertainty. |
| 24. | Permits and Licenses. SaaS Provider, at its sole expense, shall obtain and maintain during the term of this Agreement, all required business and professional permits, licenses and certificates. |
| 25. | Compliance with Law. Each Party shall comply with all applicable federal, state and local laws, including all ordinances, rules and regulations. |
| 26. | Nondiscrimination. In rendering Services under this Agreement, SaaS Provider shall not discriminate based upon race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability and shall comply with the requirements of all federal, state and local law. |
| 27. | Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement. |
| 28. | Venue and Jurisdiction. The City and SaaS Provider agree that a significant portion of the Services will take place in Los Angeles County and that any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate. The Parties agree that venue exists in either court, and each Party expressly waives any right to transfer to another venue. The Parties further agree that either court will have personal jurisdiction over the Parties to this Agreement. |
| 29. | Survival of Terms and Obligations. Any provision of this Agreement that by its nature must be exercised after termination of this Agreement will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement. |
| 30. | Force Majeure. In the event of delays to the performance of obligations (other than payment obligations) due to circumstances beyond each party’s reasonable control, including without limitation, acts of God, fires, floods, earthquakes, wars, civil disturbances, terrorism, or sabotage (a “Force Majeure Event”), each Party will have no liability for any such failure or delay to the extent that it promptly uses commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations hereunder. |
| 31. | No Third-Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any party other than the Parties to this Agreement. |
| 32. | Publicity. Without prior written approval signed by an authorized representative of the other Party, neither Party shall, directly or indirectly, (i) use the other Party’s name or any of the other Party’s trademarks, service marks or logos, or (ii) make any public announcement related to this Agreement or the System. Notwithstanding the foregoing, SaaS Provider may disclose the fact that City has procured a license for the System; provided that SaaS Provider will not make any public announcement of such fact or state or imply that City endorses or recommends the Services without the prior written permission of City. |
| 33. | Severability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. |
| 34. | Waiver. A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement. |
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