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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".
"Maintenance and Support Fees" means the fees for the Maintenance and Support Services set out in Schedule
„A„,
"Maintenance and Support Services" means maintenance and support services to be provided by SmartWorks
pursuant to the terms and conditions of Schedule "B";
"Open Source License" means terms that, as a condition of use, copying, modification or redistribution of
software, require that such software and/or derivative works thereof to be disclosed or distributed in source
code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge,
including without limitation software distributed under the GNU General Public License or GNU
Lesser/Library GPL;
'Required Hardware' shall have the meaning set out in Section 6(b);
"Required Programs" shall have the meaning set out in Section 6(a);
"Software" means the object code version of the SmartWorks software products listed in Schedule "A" and
includes any Updates or Upgrades that have been provided to Customer as part of the Maintenance and Support
Services. Third Party Software is not included in the definition of Software except where this Agreement explicitly
states otherwise;
"Third Party Software" means third party software products licensed to Customer by the applicable third party
licensors. Future Releases of the Software may require alternate third -party software to be upgraded or licensed
by Customer, which will be subject to a third party license agreement between Customer and the relevant third -
party software licensor;
"Updates" means any published changes, additions or corrections to the Software that primarily include a minor
modification or enhancement to the Software related to a bug fix, minor additional functionality that SmartWorks
or its authorized reseller makes generally available to its customers as part of its Maintenance and Support
Services;
"Upgrades" means a major overhaul of the Software which is a complete new published version of the Software
that modifies, revises or alters the Software and adds features, functionality or enhancements to such Software,
that SmartWorks or its authorized reseller makes generally available to its customers subject to the payment of
additional fees; and
"User(s)" means any employee or legal agent of Customer.
b) Schedules
The Schedules described below and attached to this Agreement shall be deemed to be integral parts of this
Agreement.
Schedule "A" -Software, Maximum Meters, Maximum Channels, Fees
Schedule "B" - Maintenance and Support Services
In the event of any conflict or inconsistency between the terms and conditions in the main body of this Agreement
and the terms and conditions in any Schedule, the terms and conditions of the main body of this Agreement shall
control unless otherwise expressly stated in the provision giving rise to the conflict or inconsistency.
2. Term This Agreement will commence on the Effective Date and shall continue until terminated in
accordance with Section 13 (the "Term").
3. Fees
In consideration of receiving the license rights granted in this Agreement, and the Maintenance and Support
Services, Customer agrees to pay to SmartWorks or its authorized reseller the License Fees, and Maintenance
and Support Fees in advance in accordance with the payment terms set out in Schedule "A". All Fees are non-
refundable. Unless otherwise specified, all references to amounts of money in this Agreement and the related
Schedules refer to U.S. currency. Maintenance and Support Fees may increase on an annual basis by a
maximum of four percent (4%) at SmartWorks' or its authorized reseller's discretion. The Fees and any other
fees set out in this Agreement are exclusive of taxes. Customer agrees to pay all foreign, federal, state, provincial,
county or local income taxes, value added taxes, use, personal, property sales and any other taxes, tariff, duty or
similar charges that may be levied by a taxing authority (excluding taxes on SmartWorks' net income). Customer
shall reimburse SmartWorks for all travel and out of pocket expenses incurred in connection with any Customer
request for onsite services.
If any Fees are not paid when due, then at SmartWorks' or its authorized reseller's discretion, (a) such Fees may
accrue late interest at the rate of 1.5% (18% per annum) of the outstanding balance per month, or the maximum
rate permitted by law, whichever is lower, from the date such fee was due until the date paid.
4. License Grant
(a) Subject to the terms and conditions of this Agreement including, without limitation, the payment of the
License Fees, SmartWorks hereby grants to Customer a personal, perpetual (subject to Section 13), non-
exclusive, non -transferable, limited license (without any right to sublicense):
(i) to install and allow Users to use the Software with up to the Maximum Channels and Maximum Meters
in accordance with the Documentation solely for Customer's internal business purposes; and
(ii) to make one (1) archival backup copy of the Software and to copy the Documentation; provided that
Customer must reproduce any copyright or other notice marked on any part of the Software and
Documentation on all authorized copies and must not alter or remove any such copyright or other
notice.
(b) Use of the Software on any system that (i) does not meet the Required Programs and Required Hardware
requirements set out in Section 6 voids all warranties with respect to the Software and relieves SmartWorks of
any obligation to provide Maintenance and Support Services.
(c) The license rights granted in this Section 4 do not include the right to use any Third Party Software.
(d) Restrictions Without limiting the generality of Section 4, and in addition to the other restrictions listed
therein, Customer shall not, and will not allow, direct or authorize (directly or indirectly) any third party to: (i)
disassemble, de -compile, reverse engineer, defeat license encryption mechanisms, or translate any part of the
Software, or otherwise attempt to derive, reconstruct or discover the source code of the Software except and only
to the extent that applicable law expressly permits, despite this limitation; (ii) modify, translate, or create derivate
works of the Software or Documentation or merge all or any part of the Software with another program; (iii) give
away, rent, lease, lend, sell, sublicense, distribute, transfer, assign, or use the Software for timesharing or bureau
use or to publish or host the Software for use by anythird party; (iv) take any actions that would cause the Software
to become subject to any Open Source License or quasi -open source license agreement; and (v) use the Software
in any manner for purposes of (A) developing, using or providing a competing software product or service; (B)
copying any ideas, features, functionality or graphics of the Software; or (C) knowingly allow access to any
competitor of SmartWorks.
(e) Customer acknowledges and agrees that any breach of this Agreement by its Users shall constitute a breach
by Customer.
5. Ownership
(a) The Software, Documentation, related materials, and other information relating to the Software or used
in conjunction with the Software, whether distributed in print, magnetic, electronic, or video format, in effect as of
the date the Software are provided to the Customer are and shall remain the sole and exclusive property of
SmartWorks, its licensors and/or its affiliates and Customer acknowledges and agrees that all Intellectual Property
Rights therein are and shall remain with SmartWorks, its affiliates and/or its licensors. Any rights not expressly
granted herein are reserved by SmartWorks. Customer may not obscure, remove or otherwise alter any copyright,
trademark or other proprietary notices from the Software, the Documentation, Third Party Software and related
material supplied by SmartWorks. Customer shall report to SmartWorks any infringement or misappropriation of
SmartWorks Intellectual Property Rights or other rights in the Software or the Documentation of which Customer
becomes aware. Customer hereby grants to SmartWorks a royalty -free, worldwide, irrevocable, perpetual license
to use and incorporate into the Software, and any suggestions, ideas, enhancement requests, recommendations
or other feedback provided by Customer relating to the Software.
(b) In order to assist SmartWorks with the protection of its proprietary information and Confidential Information
and to enable SmartWorks to ensure that the Customer is complying with its obligations, during the Term and for
a period of two (2) years thereafter, Customer shall permit Harris, upon reasonable notice, but in no event less
than 15 business days, to visit during normal business hours any premises at which the Software is used or
installed and shall provide SmartWorks with access to its Software. Such audit shall be at SmartWorks' expense,
however, in the event that the audit reveals that Customer is in violation of the usage terms of this Agreement,
Customer shall reimburse SmartWorks for such expenses and promptly pay any additional License Fees and
Maintenance and Support Fees not properly licensed or paid, such fees will be invoiced at SmartWorks' then
current rate. However, in the event that the audit reveals that the Customer is in full compliance of the usage
terms of this agreement, SmartWorks shall reimburse the Customer for its reasonably incurred expenses.
6. Required Programs and Hardware
(a) Customer acknowledges that the use of the Software shall require that Customer obtain and install
additional required minimum third -party software programs as set out in the Documentation and modified from
time to time by SmartWorks (the "Required Programs"). Customer agrees that the purchase of the Required
Programs shall be at Customer's sole cost and that the cost thereof is not included in the fees herein, including
for any future updates about which Customer is provided with commercially reasonable advance notice.
(b) Customer acknowledges that the use of the Software requires that Customer have, at a minimum,
hardware necessary to run SmartWorks programs as set out in the Documentation and modified from time to time
by SmartWorks (the "Required Hardware").
Third Party Software
(a) In the event that SmartWorks shall distribute to Customer any Third Party Software, Customer shall pay
to SmartWorks in full in advance the license fees listed on the SmartWorks website at www.SmartWorks.com for
the Third Party Software. Such license fees are exclusive of taxes. Customer agrees to pay all foreign, federal,
state, provincial, county or local income taxes, value added taxes, use, personal, property sales and any other
taxes, tariff, duty or similar charges that may be levied by a taxing authority (excluding taxes on SmartWorks' net
income). It is acknowledged by the parties that in the event that any Third Party Software is provided by
SmartWorks to Customer pursuant to this Agreement, such Third Party Software shall be distributed to Customer
by SmartWorks subject to the terms and conditions of the applicable license agreement for such Third Party
Software to be entered into directly between Customer and the owner/licensor of such Third Party Software.
SmartWorks makes no warranties, express or implied, with respect to the Third Party Software, including, without
limitation, their merchantability or fitness for a particular purpose and SmartWorks accepts no liability of any kind
whatsoever with respect to the Third Party Software. Any warranty Customer has with respect to the Third Party
Software shall be solely provided by the Third Party Software licensor except where this Agreement may expressly
state otherwise. Customer shall be responsible for the installation of any Third Party Software unless otherwise
agreed by SmartWorks in writing.
8. Maintenance and Support Services
Subject to the payment of the Maintenance and Support Fees, Maintenance and Support Services will be provided
by SmartWorks in accordance with the Standard Maintenance and Support Services Terms for SmartWorks
Products set forth in Schedule "B".
9. Confidential Information.
Customer agrees:
(1) to keep confidential any and all Confidential Information with respect to SmartWorks which it has received or
may in the future receive in connection with this Agreement and to take all reasonable steps, which shall be
no less than those steps it takes to protect its own confidential and proprietary information, to protect the
Confidential Information of SmartWorks from unauthorized use, disclosure, copying or publication;
(ii) not to use the Confidential Information of SmartWorks other than in the course of exercising its rights or
performing its obligations under this Agreement;
(iii) not to disclose or release such Confidential Information except to the extent required by applicable law or
during the course of or in connection with any litigation, arbitration or other proceeding based upon or in
connection with the subject matter of this Agreement, provided that Customer shall first give reasonable notice
to SmartWorks prior to such disclosure so that it may obtain a protective order or equivalent and provided that
the Customer shall comply with any such protective order or equivalent;
(iv) not to disclose or release such Confidential Information to any third person without the prior written consent
of SmartWorks, except for authorized employees or agents of Customer who have a need to know such
information for the purpose of performance under this Agreement and exercising its rights under this
Agreement, and who are bound by confidentiality obligations at least as protective of SmartWorks'
Confidential Information as this Agreement; and
(v) to take such actions as may be reasonably necessary to enforce its agreements with its employees and
agents, including commencing legal proceedings.
10. Warranty
(a) Limited Warranty. SmartWorks warrants to Customer that as long as Customer has paid all Maintenance
and Support Fees to obtain Maintenance and Support Services, the Software will perform substantially in
accordance with the Documentation when properly used and in the manner specifically contemplated by the
Documentation, the terms of this Agreement and where Customer has installed the Required Programs and on
the Required Hardware. In the event the Software does not substantially conform to the Documentation,
Customer promptly notifies SmartWorks of the nature of the failure and such additional information regarding the
failure as SmartWorks may reasonably request and the error can be reproduced by SmartWorks, SmartWorks
shall make commercially reasonable efforts to provide a suitable workaround, repair or replace the non -conforming
Software in accordance with the Maintenance and Support Services. The foregoing shall be Customer's sole and
exclusive remedy for breach of the exclusive warranty in this Section 10(a).
(b) Exclusions to SmartWorks Warranty. SmartWorks shall not be liable for any breach of the foregoing
warranties which results from causes beyond the reasonable control of SmartWorks, including but not limited to:
(1) Where the installation, integration, modification or enhancement of the Software has not been carried out by
SmartWorks or its authorized agent, or where Customer has taken any action which is expressly prohibited
by the Documentation or this Agreement;
(ii) Any combination of the Software with any software, equipment or services not supplied, recommended or
authorized by or on behalf of SmartWorks other than the Required Programs and Required Hardware;
(iii) Use of the Software on any system that (i) does not meet any of the Required Programs and Required
Hardware requirements set out in Section 6 or (ii) exceeds the Maximum Meters or Maximum Channels.
(iv) User error, or other use of the Software in a manner for which it was not intended or other than as permitted
in this Agreement;
(v) Customer's failure to install a new Update which has been released to remedy an error or bug, and which
SmartWorks has stated to Customer is a required Update necessary for security purposes or for legislative
compliance purposes or other reasons as SmartWorks may determine is important in its sole discretion;
(vi) SmartWorks personnel are not given full, free and safe access to the facility where the Software is installed
during attempts to remedy an error;
(vii) Customer's failure to upgrade hardware to meet the demands of any upgraded Software or improvements in
Software functionality; which SmartWorks has stated to Customer is required;
(vii!) Customer's computer(s), network or other hardware malfunctioned and the malfunction caused the defect,
or any other event of force majeure as set out in Section 15(h);
(ix) Any failures, losses or errors resulting from or related to hosting services used in connection with the Software,
including without limitation, any harmful actions of Users or third parties, or resulting from corrupt data (for
greater certainty, Customer is not permitted to use a third party to host the Software, such hosting services
may only be provided by SmartWorks' service providers or where applicable its authorized reseller's service
providers that have been approved by SmartWorks in advance in writing); or
(x) Any failure of the Software due to external causes such as, but not limited to, power failures or electrical surges.
(c) Custom erWarranty.
Customer represents and warrants to SmartWorks that it shall comply with all applicable laws in connection with
its use of the Software and in its performance under this Agreement including but not limited to those laws
regarding restrictions on exports and economic sanctions including end -user, end use and destination restrictions
by Canadian, U.S. and other governments related to SmartWorks and its service providers products, services and
technologies, and the U.S. Export Administration Regulations, and the International Traffic in Arms Regulations).
(d) Disclaimer.
TO THE GREATEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET
OUT IN SECTION 10(A) THE SOFTWARE IS LICENSED, THE MAINTENANCE AND SUPPORT SERVICES,
ALL DOCUMENTATION AND OTHER MATERIALS AND SERVICES ARE PROVIDED TO CUSTOMER, "AS IS"
AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED,
WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF
TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT, SERVICE OR MATERIAL
PROVIDED HEREUNDER OR IN CONNECTION HEREWITH.
SMARTWORKS, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTIES OR
CONDITIONS REGARDING THE SOFTWARE, THE DOCUMENTATION, THE PROFESSIONAL SERVICES,
THE MAINTENANCE AND SUPPORT SERVICES, AND ANY OTHER PRODUCTS, SERVICES AND
MATERIALS PROVIDED HEREUNDER OR IN CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE OR NON -INFRINGEMENT.
it. Intellectual Property Indemnity
(a) In the event that there is a third party claim against Customer alleging that Customer's use of the Software
in accordance with this Agreement constitutes an infringement of a valid United States or Canadian patent,
copyright, trade -mark or trade secret, SmartWorks shall, at its expense, defend Customer and pay any amounts
finally awarded against Customer by a court of competent jurisdiction or agreed to in a settlement approved by
SmartWorks in advance, provided that: (i) Customer gives SmartWorks prompt written notice of any such claim
and full opportunity to defend the same; (ii) Customer has not made any admissions or entered into settlement
negotiations either prior to or after providing notice to SmartWorks of the applicable claim except with SmartWorks'
prior written consent, (ii) SmartWorks has sole control of the defense of any claim or proceeding and all
negotiations for its compromise or settlement; and (iv) Customer assists and provides information to SmartWorks
throughout the action or proceeding.
(b) SmartWorks' liabilityfor any claims under this Section 11 shall be reduced to the extent such claim arises
from: (i) alterations or modifications to the Software by Customer or a third party in any manner whatsoever except
with the prior written consent of SmartWorks; (ii) combination, integration or use of the Software with software,
hardware or other materials other than the Required Hardware and Required Software where such claim would
not have arisen but for such combination, integration or use; (iii) use of the Software other than in compliance with
this Agreement; (v) compliance with the Customer's written instructions or specifications; or (vi) use of the
Software after notice from SmartWorks that it should cease due to possible infringement.
(c) In the event that Customer's use of the Software is finally held to be infringing or SmartWorks deems that
it may be held to be infringing, Customer agrees that SmartWorks shall have the right, in SmartWorks' sole
discretion to: (1) procure for Customer the right to continue use of the Software; or (2) modify or replace the
Software so that it becomes non -infringing.
(d) The foregoing states SmartWorks' entire liability, and Customer's exclusive remedy, with respect to any
claims of infringement of any copyright, patent, trade -mark, trade secret or other intellectual property and property
interest rights relating to the Software, or any part thereof or use thereof. The indemnity provisions of this Section
11 shall not apply to any Third Party Software.
12. Limitation of Liability.
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMARTWORKS, ITS
AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND
SHAREHOLDERS, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,
PUNITIVE, OR SPECIAL DAMAGES, FOR LOST REVENUE OR LOSS OF PROFITS, LOSS OF BUSINESS,
LOSS OF DATA, FAILURE TO REALIZE EXPECTED SAVINGS, OR COST OF SUBSTITUTE GOODS OR
SERVICES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT
OR IN TORT (INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE) OR UNDER ANY OTHER LEGAL
THEORY, EVEN IF IT HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH LOSS
OR DAMAGE OR SUCH LOSS OR DAMAGE IS FORSEEABLE AND NOTWITHSTANDING ANY FAILURE OF
THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
SMARTWORKS, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES AND SHAREHOLDERS' ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY WITH
RESPECT TO THE SOFTWARE, AND ANY OTHER PRODUCTS, MATERIALS OR SERVICES SUPPLIED BY
SMARTWORKS IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY CAUSE AND
REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING
FUNDAMENTAL BREACH, NEGLIGENCE, STRICT LIABILITYOR OTHERWISE, SHALL NOT EXCEED IN THE
AGGREGATE AN AMOUNT THAT IS EQUAL TO THE SUM OF: THE LICENSE FEES PAID TO SMARTWORKS
BY CUSTOMER UNDER THIS AGREEMENT; AND THE MAINTENANCE AND SUPPORT FEES PAID TO
SMARTWORKS IN THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.
13. Termination. This Agreement may be terminated as follows:
(a) If either party is in material breach of any of its obligations or any provision under this Agreement, the
other party must notify the breaching party in writing of such default (a "Default Notice"). Upon receipt of a Default
Notice, the breaching party must correct the default within ninety (90) days, or issue a written notice of its own
disputing the alleged default within thirty (30) days, of the date of receipt of a Default Notice. If the breaching
party fails to correct the default within such ninety (90) day period, and did not issue a notice disputing the alleged
default within such thirty (30) day period, the other party may terminate this Agreement upon written notice to
breaching party to that effect
(b) If Customer has failed to pay any of the Fees when due, then SmartWorks or its authorized reseller shall
have the right to terminate this Agreement effective immediately upon written notice to that effect. If Customer
has failed to pay any Maintenance and Support Fees when due, SmartWorks may, at its option, suspend
Maintenance and Support Services until all outstanding Maintenance and Support Fees have been paid in full
and/or exercise its right to terminate this Agreement in accordance with this section.
(c) Notwithstanding any other provision of this Agreement, if the Customer breaches (i) any term of Section
4, Section 7, or any other Intellectual Property Right of SmartWorks; or (ii) its confidentiality obligations under
Section 9, then SmartWorks shall have the right to terminate this Agreement effective immediately upon written
notice to Customer to that effect.
(d) Either party may terminate this Agreement effective immediately upon written notice to the other party if
the other party: (i) becomes insolvent; (ii) becomes the subject of any proceeding under any bankruptcy,
insolvency or liquidation law, whether domestic or foreign, and whether voluntary or involuntary, which is not
resolved favourably to the subject party within ninety (90) days of commencement thereof; or(!!!) becomes subject
to property seizure under court order, court injunction or other court order which has a material adverse effect on
its ability to perform hereunder.
14. Effects of Termination.
Upon termination of this Agreement, all warranties related to the Software shall automatically terminate upon
termination of this Agreement. All outstanding Fees owed by Customer to SmartWorks associated with such
termination shall be immediately due and payable. Except as otherwise expressly provided in this Agreement,
termination of this Agreement shall be without prejudice to any other right or remedy to which either party may be
entitled to in law or in equity.
15. General
(a) Entire Agreement. This Agreement supersedes all prior representations, arrangements, negotiations,
understandings and agreements between the parties, both written and oral, relating to the subject matter hereof
and shall constitute the entire agreement between the parties hereto with respect to the matters covered herein.
The terms of this Agreement may not be changed except by an amendment signed by the authorized
representative of each party.
(b) Equitable Relief. Customer acknowledges and agrees that it would be difficult to compute the monetary
loss to SmartWorks arising from a breach or threatened breach of this Agreement and that, accordingly,
SmartWorks will be entitled to specific performance, injunctive or other equitable relief in addition to, or instead of
monetary damages in the event of a breach or threatened breach of this Agreement by Customer.
(c) Governinq Law. This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined
and governed by the laws of the State of California. Both parties further agree that Orange County, California,
shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason
of this Agreement.
(d) Waiver. No waiver, modification, extension, addendum or any other change of any provision of this
Agreement shall be valid unless in writing and signed by the party against whom enforcement is sought. The
waiver by either party of a breach or a default of any provision of this Agreement shall not be construed as a
waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part
of either party to enforce any provision of this Agreement be construed as a waiver of any right, power or privilege
by such party.
(e) Allocation of Risk. Customer acknowledges that the limited warranties, disclaimers and limitations of
liability contained in this Agreement are fundamental elements of the basis of bargain between Customer and
SmartWorks and set forth an allocation of risk reflected in the fees and payments due hereunder.
(f) Survival. The following sections and articles shall survive the termination or expiration of this Agreement:
Sections 1, 3, 4(b), 4(c), 4(d), 4(e), 5, 6, 7, 9, 10(b), 10(c), 10 (d), 12, 14, 15, and any other provisions which are
required to ensure that the parties fully exercise their rights and obligations hereunder; unless and until waived
expressly in writing by the party to whom they are the benefit.
(g) Force Maieure. No default, delay or failure to perform on the part of SmartWorks shall be considered a
breach of this Agreement where such default, delay orfailure is due to a force majeure or to circumstances beyond
Its control. Such circumstances will include, without limitation, strikes, riots, civil disturbances, actions or inactions
concerning government authorities, epidemics, war, terrorist acts, embargoes, severe weather, fire, earthquakes,
acts of God or the public enemy or default of a common carrier or other disasters or events.
(h) Notice. Any notice required or permitted to be given to any party to this Agreement shall be given in
writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate
address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given
and received on the day on which it is delivered or transmitted (or on the next succeeding business day if delivered
or received by facsimile after 5:00 p.m. local time on the date of delivery or receipt, or if delivered or received by
facsimile on a day other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third
business day following the date of mailing, and addressed,
in the case of SmartWorks, to:
[insert address]
Fax No.:
Attention: [insert name]
With a copy to:
N. HARRIS COMPUTER CORP
1 Antares Drive, Suite 400
Ottawa, Ontario K2E 8C4
Attention: General Counsel
Telephone: 613-226-5511, Ext.2149
And in the case of Customer, to:
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
With copy to Executive Director, Public Works Agency (at same address)
(i) Assignment. Customer may not assign any of its rights or duties under this Agreement without the prior
written consent of SmartWorks. The Agreement shall inure to the benefit of and be binding upon the parties to
this Agreement and their respective successors and permitted assigns.
0) Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be
deemed an original and which shall together constitute one Agreement.
(k) U.S. Government Restricted Rights. The Software was (i) developed exclusively at private expense; (ii)
is a trade secret of SmartWorks or its licensors for the purposes of the Freedom of Information Act; (iii) are
"commercial computer software" subject to limited utilization (Restricted Rights); and (iv) including all copies of
the Software, in all respects is and shall remain proprietary to SmartWorks or its licensors. Use, duplication or
disclosure by the U.S. Government or any person or entity acting on its behalf is subject to restrictions for software
developed exclusively at private expense as set forth in: (i) for the DoD, the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 and/or 252.227.7014 or any successor clause, and (ii) for all
government agencies, the Commercial Computer Software — Restricted Rights clause at FAR 52.227-19 or any
successor clause. The U.S. Government shall refrain from changing or removing any insignia or lettering from
the Software or from producing copies of the Software and manuals (except one copy of the Software for backup
purposes). Use of the Software shall be limited to the facility for which it was acquired. All other U.S. Government
personnel using the Software are hereby on notice that use of the Software is subject to restrictions that are the
same as, or similar to, those specified above. The manufacturer/owner is N. Harris Computer Corporation.
IN WITNESS WHEREOF, SmartWorks and the Customer have duly executed this Agreement to be effective on
the Effective Date first written above.
N. Harris Computer Corp (dba SmartWorks)
(f� C'&6&t
Signature
Eric Chabot
Name
Executive Vice -President
Title
October 1.2020
Date
City of Santa Ana
Signature
Kristine Ridge
Name
City Manager
Title
►l- 2A-Zo
Date
APPROVED AS TO FORM
' o4 %. -f.L
hn M. Funk
Assistant City Attorney
ATTEST
Daisy Gomez
Clerk of the Council
RECOMMENDED FOR APPROVAL
1�e�A,,39-a zka
Nabil Saba
Executive Director
Public Works Agency
SCHEDULE"A"
Fees
SOFTWARE:
One-time Fee
Amount
License Fee:
$122,870
Annual Recurring Fees
Amount
Maintenance and Support Fee:
$30,718
. All charges are exclusive of out of pocket expenses for services performed on site. Charges for actual and reasonable out-of-pocket
expenses including, but not limited to, travel and lodging expenses will be billed monthly as incurred. All pricing is exclusive of applicable
sales, use or similar taxes. Customer is responsible for any such taxes that may apply; if Customer is tax exempt, evidence of such tax
exemption must be provided. Lapsed payments may lead to denial of access to the Maintenance and Support Service in accordance with
Section 16(b)(ii) of the Agreement.
PAYMENTTERMS:
The License Fee will be due in advance of the Term, and is non-refundable.
Annual Maintenance and Support Fees are invoiced in advance of an upcoming annual term. Annual Maintenance
and Support Fees shall be due and payable thirty (30) days from date of invoice.
PROFESSIONAL SERVICE(S) FEES:
Professional services may be provided on -site or via the telephone. Professional services work provided via
telephone is billed at the rate of two hundred and thirty ($230) per hour. Professional services work performed
on -site does not include travel, lodging and per diem expenses. Professional services performed shall be billed
at the then current SmartWorks professional services rates. Help line support and Maintenance and Support
Services do not include training or other professional services.
Customer shall incur a seven -hundred fifty dollar ($750) daily surcharge for any professional services provided on
weekends or SmartWorks recognized holidays; plus the corresponding standard professional services fees and
any applicable travel charges per paragraph 4.
Professional services may include, but are not limited to, the following: software installation, configuration, data
validation, system setup, system balancing, interface setup, interface testing, process training, application training
and business requirements gathering.
Professional services fees, and any applicable travel and lodging expenses, will be invoiced as incurred and shall
be due and payable thirty (30) days from the date of invoice.
RESET OF TERM TO MATCH FISCAL YEAR:
Customer may request that SmartWorks match the annual invoicing of the Maintenance and Support Fees with
Customer's fiscal year. In order for Customer to elect to match annual invoicing with their fiscal year, Customer
must make said request to SmartWorks in writing and during the first year of the Term of this Agreement. If such
election is made SmartWorks shall, a) issue a prorated invoice for any Maintenance and Support Fees due for the
portion of the year remaining in Customer's current fiscal year, b) extend the then current term to expire at the
end of the Customer's subsequent fiscal year, c) issue an annual invoice thereafter on the annual anniversary
date of Customer's fiscal year for any Maintenance and Support Fees due, and d) reset future annual terms to
expire at the end of Customer's fiscal year. Annual Maintenance and Support Fees are invoiced in advance of an
upcoming annual term. Annual Maintenance and Support Fees shall be due and payable thirty (30) days from
date of invoice.
SCHEDULE"B"
MAINTENANCE AND SUPPORT SERVICES
f,>> SMARTWORKS
��V
Standard Support and Maintenance Services
SmartWorks Products
The purpose of this Exhibit is to provide our customers with information on ourstondord coverage, the services
which are included os part of your annual software support, a listing of ticket priorities, an outline of our
escalation procedures and other important details.
smortWorks reserves the right to make modifications to this document as required.
Last Updated: January 31, 2018
Contents
Standard Support and Maintenance Services —Guidelines.........................................................................15
OrganizationResponsibilities......................................................................................................................16
SolutionUpdates.........................................................................................................................................16
BillableSupport Services.............................................................................................................................17
Test Databases and Environments..............................................................................................................17
Operations...................................................................................................................................................17
Hours..................................................................................................................................................................
17
HolidaySchedule......................................................................................................................................................17
TicketProcess..............................................................................................................................................18
TicketPriorities............................................................................................................................................19
ResponseTimes...........................................................................................................................................19
EscalationProcess.......................................................................................................................................20
STANDARD SUPPORT AND MAINTENANCE SERVICES — GUIDELINES
The services listed below are services that are included as part of your software support.
Support for the SmartWorks products as implemented by our Professional Services group includes:
• The SmartWorks products and all default functionality
• The SmartWorks product side of the interfaces with other third party systems, as implemented by our
Professional Services Consultants
• Customized rules developed by Professional Services staff. Rules developed or modified by the
Organization are not supported through the standard Support and Maintenance agreement.
• The integrity of the data within the SmartWorks products, to the extent that the SmartWorks product
has manipulated it. The SmartWorks products are not responsible for the completeness or accuracy of
the data originating in third party systems (e.g. AMI, CIS, etc.)
• Advice on VEE parameter settings and processes, however the VEE settings themselves are the
responsibility of the Organization
• We will create and install software updates (release notes will be available upon request and on the
Customer Hub) that may include:
• Defect corrections (as warranted)
Planned enhancements
State (Provincial) and/or Federal mandated changes (charges may exist depending on scope)
From time to time, we will provide software upgrades (note that there may be charges in implementation
depending on the scope of services)
• We will troubleshoot customer issues and provide recommendations for resolution
• We will provide remote training on subjects of limited scope. As a rule of thumb, a subject of limited
scope can be addressed in about 15 minutes over the phone. If a customer makes numerous training
requests in a short period of time, we may deem the training requests to be of a broad nature.
• HealthWatch-Online Diagnostics
• HealthWatch rules will collect data and alert Support Services when specific thresholds have been met
(e.g. disk space limit reached, no interval data for two days, etc.)
• We will proactively monitor your solution to identify small issues before they become big problems
using our HealthWatch tool. Depending on the nature of the issue, we may either alert you or attempt
to address the issue ourselves.
• If customer decides to opt -out of HealthWatch, charges may apply.
• Customer Care Program. On a periodic basis, we will share useful information regarding the use of your
SmartWorks products and our services through one or more of the following methods:
Support Bulletins
Communication on new products and services
• On -site visits (as required)
• Webinars
• Surveys
• Knowledge Base
• If requested, provide an Outstanding Tickets Reportwith conference call
• Ability to attend the annual customer conference (attendance fees apply)
• Opportunity to participate in BETA programs at our discretion
• We shall provide an online ticketing system with the following features:
Ability to log and close tickets
• Ability to view and update tickets
• Ability to update contact information
Access to published documentation
• Access to support knowledge base
• Ability to report on metrics
• 800 Toll Free Telephone Support
Customer Responsibilities
In order to effectively provide our support services, the customer Customer is responsible for the following
items:
Customer shall notify SmartWorks of suspected defects in any of the Software supplied by SmartWorks.
Customer shall provide, upon SmartWorks request, additional data deemed necessary or desirable by
SmartWorks to reproduce the environment in which such defect occurred.
• Customer shall allow the use of online diagnostics on the Software supplied by SmartWorks to Customer.
Customer shall provide to SmartWorks, at Customer's expense, access to the Designated Computer System
via the Customer's communications software.
• Customer shall ensure that its personnel are, at relevant stages of the project, educated and trained in the
proper use of the Software in accordance with applicable SmartWorks manuals and instructions. If
Customer's personnel are not properly trained as mutually determined by SmartWorks and Customer,
Customer agrees that such personnel will be trained by SmartWorks or Customer within fifteen (15) days
of determination. If Customer desires SmartWorks to perform the required training then SmartWorks shall
be compensated in accordance with this Agreement.
• Customer shall establish proper backup procedures necessary to replace critical Customeral data in the
event of loss or damage to such data from any cause. Customer shall provide SmartWorks with access to
qualified functional or technical personnel to aid in diagnosis and to assist in repair of the Software in the
event of error, defect or malfunction.
• Customer shall have the sole responsibility for:
• The performance of any tests it deems necessary prior to the use of the Software.
Assuring proper Designated Computer System installation, configuration, verification, audit controls
and operating methods.
• Implementing proper procedures to assure security and accuracy of input and output and restart and
recovery in the event of malfunction.
• Timely upgrade and keeping current all third party license releases and/or Software products to meet
the requirements of the SmartWorks Software.
• Customer is responsible for the data quality, completeness, and availability from 3rd party applications on
which SmartWorks product relies.
• Customer shall be responsible for rules created and/or edited by Customer staff.
• Customer shall be solely responsible for all VEE parameters settings, the regular monitoring of validation
failures, and the rectification of any validation failures.
SOLUTION UPDATES
SmartWorks will make software updates available from time to time. When an update is available,
SmartWorks will make an announcement to its customers.
Customers are expected to make commercially reasonable efforts to keep current on the latest version of the
SmartWorks Software.
Once a new version is available, you shall have 6 months to update your software. After that time,
SmartWorks will charge you at the standard services rate for any support related activities performed by
SmartWorks in addition to the support fees you are already paying.
Further, SmartWorks will not provide any support services for customers on a version that is more than one (1)
version olderthan the current version.
BILLABLE SUPPORT SERVICES
The services listed below are services that are out of scope of your support and maintenance agreement
and are therefore considered billable services.
• Provision of remote or on -site training on subjects of broad scope
• New interfaces or connections to non-SmartWorks (or third party) applications
• Creation of test instances
• Custom modifications (e.g. rules, reports, new data, etc.)
• Data conversions and global modification to setup table data
• Database maintenance, repairs and optimization, refreshes, backups, restores
• Extended Hardware and Operating System support
• Upgrades and support of third party software (e.g. database software, OS, web server, etc.)
• Installations and/or re -installations of software solution
• Support for rules, reports, database procedures, or screens developed by, or modified by, the Organization
• Cleansing or re -processing of data originating from a third party system (e.g. AMI, CIS, etc.)
Note: If customer purchases a billable service with a maintenance fee such as the ones listed above, the
Organization is responsible for supporting these items.
Test Databases and Environments
We support customers in the maintenance of independent Test Environments for testing purposes. This
allows customers the opportunity to test fixes, modifications, new business processes and/or scenarios
without risking any potentially unwanted changes to the live environment. The creation of Test Databases
and Environments is a billable service; quotations and incremental maintenance rates will be provided on
request.
OPERATIONS
Hours
Ourstandard hours of support are from 8:00 a.m. ESTto 8:00 p.m. EST, Monday to Friday, excluding
designated statutory holidays. Weekend assistance is available, but must be scheduled in advance, and in
most cases is billable.
Holiday Schedule
Below is a listing of statutory holidays. Please note that support services will be closed on designated
days as outlined below.
New Year's Eve I Early Closure (noon EST)
New Year's Dam
Closed
President's Day (USA) /Family Day (Canada)
Closed
Victoria Day (Canada)
Closed
Labor- Day
Closed
- —
--------- ---
-Canada Day (Canada) _ _
--------- --
Closed
Thanksgiving Day (Canada)
Closed
---- -------------
Christmas Eve
--------- -- ---- --
Eat Closure noon EST)
Christmas Day
Closed
— —
Boxing Day Canada)—_ __.____._---- _---- ,--- .
----------- -----
Closed.____.. ---------
Ticket Process
All issues or questions reported to support are tracked via a TeamSupport Customer Hub ticket. Our support
analysts cannot provide assistance unless a support ticket is logged. The use of a TeamSupport ticket allows us
to track the resolution of your issues. As well, it helps us measure our activities so we can properly forecast
our staffing requirements. Our current process for logging tickets includes the following: TeamSupport's
SmartWorks Customer Hub (via website), email, phone and fax.
• Your ticket must contain at a minimum: your organization name, contact person, software product and
version, module and/or menu selection, nature of issue, detailed description of your question or issue and
any other information you believe pertinent.
• Our support system or one of our support analysts will provide you with a ticket id to track your issue and
your ticket will be logged into our support tracking database.
• Your ticket will be stored in a queue and the first available support representative will be assigned to deal
with your issue.
• As the support representative assigned to your tickets investigates your issue, you will be notified of status
updates, actions and a resolution plan via the support ticketing system. If we require additional
information, you will be contacted by the assigned support representative to supply the information
required.
• All correspondence and actions associated with your ticket will be tracked against yourticket ID in our
support database. At any time, you may log onto our website to see the status of your ticket.
• Once your issue has been resolved, the ticket will be set to a "Resolved" status. You will then have time to
evaluate the resolution and provide feedback. Once you are satisfied that the issue has been addressed,
you will then close the ticket. We will do our best to provide you with adequate time to evaluate the
resolution. However, we will then close a ticket if we do not receive any feedback for an extended period
of time. You will always be notified of a pending or actual ticket closure. You will have the option of re-
opening the ticket if needed.
Once your ticket has been closed, you will receive an automated notification by email. This email will
contain the entire event history of the ticket from the time it was created and leading up to the resolution
of the ticket. You also have the option of viewing both your open and closed tickets, if available to you, via
our website.
If your issue needs to be escalated to a development resource or programmer for resolution, your issue
will be forwarded to our development team. Your support ticket will remain open until our development
team provides a response. If a development item opens, you will be provided with a development tracking
number upon request. Issues escalated to development will be scheduled for resolution and may not be
resolved immediately depending on the nature and complexity of the issue. If an issue is determine to be
an enhancement or feature, we will log a ticket in our product management queue and will notify you
when a release has been made available.
• You may contact the support department at your convenience for a status update on your development
issues.
Ticket Priorities
In an effort to assign our resources to incoming tickets as effectively as possible, SmartWorks has identified
three ticket priorities: 1(high/critical), 2(medium), and 3(low). The criteria used to establish a ticket priority are
as follows:
Priority Level
Description
•
Program errors without workarounds
•
Incorrect calculation errors impacting one-third of records
•
Error messages preventing data integration and update
•
Performance issues of severe nature impacting critical processes
Note: in most cases issues affecting a test environment only will not be
considered a priority of I
2
System errors that have workarounds
•
Calculation errors impacting less than one-third of records
•
Reports calculation issues
•
Performance issues not impacting critical processes
•
Usability issues
•
Workstation connectivity issues (Workstation specific)
3
Training questions, how to, or implementation of new processes
•
Aesthetic issues
•
Issues where a workaround is available for a large majority of cases
•
Recommendations for enhancements on system changes
•
Questions on documentation
•
Test environment issues or questions
Response Times
Response times will vary and are dependent on the priority of the ticket. We do our best to ensure that we
deal with incoming tickets in the order that they are received, however, tickets will be escalated based on the
urgency of the issue reported. If a support ticket is logged during standard operating hours, our response
times are as follows:
Priority Initial Response Time* :D Response Time from Escalation Update Frequency
1 Within 4 hours Same day Every 2 business days
2 Within 8 hours Within one week Every 5 business days
3 Within 24 hours Within 3 weeks Every 10 business
days
uunng business pours
Example:
- Priority 1 SupportTicket received Monday January 2 at 10 am» Support Analyst responds Monday January 2 by noon
>> Support Analyst sends update Monday January 2.
- Priority 1 SupportTicket received Monday January 2 at 9 PM» Support Analyst responds Tuesday January 3 by noon»
Support Analyst sends update Tuesday January 3.
Escalation Process
We strive to provide a satisfying and positive support experience. However, if at any time you are not
completely satisfied with the resolution of your issue, you are encouraged to escalate within Support Services,
as follows:
Level 1: Your ticket's assigned Support Analyst
Level 2: Team Lead, Support Services
Level 3: Manager, Support Services
Level 4: Executive Vice President, SmartWorks