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A-2020-234 Ii 1 UHANCE NOT REQUIRED, M.,9 ; !MY PRUCE'D CLi X (' C�UPd; Software License and Services Agreement This Software License and Services 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"). NOW THEREFORE, inconsideration 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: Interpretation. (a) Definitions. In this Agreement the following expressions shall have the meanings indicated below. Other terms are defined in the body of this Agreement. "Confidential Information" shall mean the Software, and any information which is confidential in nature or that is treated by SmartWorks as being confidential which is disclosed by SmartWorks or obtained by Customer in connection with this Agreement, whether such information is in oral, written, graphic or electronic form, which: is (i) marked "Confidential," 'Restricted," or 'Proprietary Information" or other similar marking, (ii) known by the Customer to be considered confidential or proprietary, such as the Software, or (iii) which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. 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's employees or independent contractors who have not had access to or use of the other party's Confidential Information which such independent development can be established by evidence that would be acceptable to a court of competent jurisdiction; "Documentation" means user guides, operating manuals, educational materials, product descriptions and specifications, technical manuals, and supporting materials, as may be amended or supplemented from time to time and delivered to Customer by SmartWorks; "Fees" means the License Fees, Maintenance and Support Fees, and any other applicable fees set out in Schedule "A" to this Agreement; "Intellectual Property Rights" shall mean any proprietary right, including but not limited to those provided under: (i) patent law; (ii) copyright law; (iii) trade -mark law; (iv) design patent or industrial design law; or (vi) any other statutory provision or common law principle that may provide a right in either (a) ideas, formulae, algorithms, concepts, inventions or know-how; or (b) the expression of such ideas, formulae, algorithms, concepts, inventions or know-how; "License Fees" means the fees to be paid by Customer in respect of the license rights to use the Software, as set out in Schedule "A"; "Maximum Channels" means the maximum number of channels [or existing systems and connected devices such as Supervisory Control and Data Acquisition (SCADA) and sensors in the emerging Internet of Things (IoT)] that collect data regarding electricity being consumed by a customer of Customer or collect data regarding electricity provided by a customer to Customer, with which Customer is authorized to use the Software as specified in Schedule "A". "Maximum Meters" means the maximum number of meters with which Customer is authorized to use the Software as specified in Schedule "A".