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ti 0.�oti� A-2020-233 RFlflt:�,n )TR; )UjP.cG l;L;� 1K i r,- GOUi�C.il. Hosting Service Agreement p•. �t2�(Rat�y 2osces>�A This Hosting Service Agreement (the "Agreement"), is entered into on November 17, 2020 (the "Effective Date") by and between City of Santa Ana ("Customer") and N. Harris Computer Corporation of 1 Antares Drive, Suite 400, Ottawa, Ontario K2E 8C4 ("SmartWorks"). WHEREAS, Concurrently with the execution of this Hosting Agreement, Customer will enter into a Software License and Services Agreement with SmartWorks to acquire a license to use certain software from SmartWorks and to receive certain maintenance and support services, and shall enter into an agreement with SmartWorks' authorized reseller for certain related professional services to be provided by SmartWorks. WHEREAS, Customer has requested certain application hosting services for such software from SmartWorks and SmartWorks has agreed to provide such hosting services to Customer on the terms and conditions set out in this Agreement. NOW THEREFORE, in consideration of the mutual covenants and obligations contained here and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Definitions The following terms shall have the meaning set out below, all other capitalized terms not otherwise defined in this Section shall have the meaning set forth in the Agreement: (a) "Annual Hosting Fees" means the annual hosting fees set out in Schedule "A" to this Agreement. (b) "Confidential Information" means, with respect to a party hereto, all information or material which: is (A) marked "Confidential," "Restricted," or "Proprietary Information" or other similar marking, (B) known by the parties to be considered confidential, proprietary, or is confidential under federal or state law or (C) which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Confidential Information of SmartWorks shall include, without limitation, the Software, the Documentation, and any information with respect to the Hosting Services that SmartWorks may provide to Customer from time to time, including without limitation, all information disclosed by SmartWorks or its service providers relating to the security of its facilities, computer systems and products. Confidential Information does not include information to the extent that such information: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party hereunder; (ii) was previously known to the receiving party as evidenced by its written records; (iii) is rightly received by the receiving party from a third party who is not under an obligation of confidentiality; or (iv) is independently developed by the receiving party without reference to or use of the other party's Confidential Information and which such independent development can be established using evidence that would be acceptable to a court of competent jurisdiction. (c) "Data" means all data, software, text, information, audio, video and images that are provided by or on behalf of Customer to SmartWorks or its third party service provider and all other content transmitted, posted, received or created through Customer's use of the Hosting Services or the Software. (d) "Documentation" means user guides, operating manuals, education materials, product descriptions and specifications, technical manuals, and supporting materials. (a) "Fees" means the Annual Hosting Fees and other fees as listed in Schedule "A" of this Agreement. (f) "Hosting Services" means the web -based hosting services to be provided by or on behalf of SmartWorks under this Agreement that includes hosting, monitoring, and operating the Software on hardware and related equipment at a site owned or controlled by SmartWorks and the delivery of exclusive access via the Internet to the Customer to use the Software granted to the Customer pursuant to the Software License Agreement and Section 2 hereof. The Hosting Services shall also N. Hams Computer Corporation —Confidential Page 1 of 18