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O: Z.T®(1 t14 , ft,nw) ( A Wasabi Technologies Customer Agreement
This Customer Agreement (this "Agreement") is effective on10/8/2021 ("Effective Date") between Wasabi
Technologies LLC, with offices at 111 Huntington Ave, 29th Floor, Boston, MA 021I0 ("Wasabi", "we", "us" or
"our") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the
Constitution and laws of the State of California ("Customer" or "you"). This Agreement contains the ternis and
conditions that govern Customer's access to and use of the Wasabi data storage platform (the "Wasabi Service").
Customer's signature below indicates its acceptance of the terms and conditions of this Agreement, its Exhibits and
any Wasabi policies (the "Policies"), found at www.wasabi.com/legal prior to the registration process. In the event of
any conflict between the terms and conditions of this Agreement and any Exhibit or Policy, the terms of the applicable
Exhibit or Policy shall prevail.
YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO
ENTER INTO A BINDING AGREEMENT TO ADHERE TO THE TERMS AND CONDITIONS SET FORTH
HEREIN, AND THAT THE WASABI SERVICE WILL BE USED ONLY IN ACCORDANCE WITH THIS
AGREEMENT AND WITH ALL APPLICABLE LAWS. IF AN INDIVIDUAL IS REGISTERING OR USING THE
WASABI SERVICE ON BEHALF OF AN ENTITY OR ORGANIZATION, THAT INDIVIDUAL WARRANTS,
REPRESENTS, AND COVENANTS TO WASABI THAT SUCH INDIVIDUAL IS DULY AUTHORIZED TO
AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION AND TO BIND THE
ORGANIZATION TO THEM.
1. Use of the Wasabi Service
1.1 Access. Subject to the terms and conditions of this Agreement, Wasabi hereby grants you and your Authorized
Users (as defined below), for your internal business purposes and for so long as you maintain a Customer Account (as
defined in Section 1.2) in good standing, a non-exclusive, non -transferable, non-sublicensable right to access and use
the Wasabi Service (including any customer portals which may also be made available to you in as part of or through
with the Wasabi Service) in accordance with the Documentation. "Documentation" means the user, technical and
adtnin guides for the Wasabi Service located at wasabi.com/help/docs (and any successor or related locations
designated by Wasabi), as such Documentation may be updated by Wasabi from time to time.
1.2 Registration of Customer Accounts. (a) You must register an account with us (a "Customer Account') in order to
use the Wasabi Service. We will use your account information in accordance with our Privacy Policy (found at
https://wasabi.com/legal/privacy-policy/), and you consent to such usage, where "account information" means
information about you that you provide to us in connection with the creation or administration of your Customer
Account. For example, account information includes names, usernames, phone numbers, email addresses and billing
information associated with your Customer Account.
(b) Unless explicitly permitted by this Agreement, you will only create one Customer Account per email address. You
agree to provide accurate and complete information in the creation of your Customer Account, and you acknowledge
and agree you will update this information with any changes. You may authorize others (collectively, "Authorized
Users") to use the Wasabi Service on your behalf. Each Authorized User will establish or be provided with a username
and password. You are responsible for the acts and omissions of your Authorized Users. Authorized Users may also
be required to use other access credentials, such as an encryption key (collectively, "User Credentials"). We reserve
the right to suspend or terminate the Customer Account, or the access of any Authorized User, in accordance with
Sections 7.2(c) or 7.4, or if any registration information is inaccurate, untrue or incomplete, or if you or any of your
Authorized Users fail to maintain the security of any User Credentials . If the Customer Account is suspended or
terminated, Wasabi will provide Customer with access or the ability to retrieve its Content prior to any deletion of the
Customer Account.
(c) You and your Authorized Users are responsible for ensuring that User Credentials are kept confidential and are
not disclosed to any third party. You are fully responsible for all activity that occurs under your Customer Account
using the User Credentials, including any loss or deletion of Your Content (as defined in Section 1.7 below),
regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party
(including your contractors, agents or End Users). Wasabi and its Affiliates are not responsible for unauthorized
access to your Customer Account, unless the unauthorized access to the Customer Account was caused by Wasabi's
negligence or willful misconduct.
"Affiliate" means any corporation, partnership or other entity now existing or hereafter organized that directly or
indirectly controls, is controlled by or under common control with Wasabi. For purposes of this definition "control"
means the direct possession of a majority of the outstanding voting securities of an entity.
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(d) You agree to, and will ensure that each Authorized User will, notify us at suppmtAwasabi.com immediately upon
learning of any unauthorized access to a Customer Account or any other suspected security breach.
1.3 Third -Party Content. Third -Party Content made available by Wasabi through the Wasabi Service, if any, may be
used by you, solely at your option. Third -Party Content solely governed by the separate terms and conditions
accompanying such Third -Party Content, which terms and conditions may include separate fees and charges. "Third
Party Content" means content made available to you by any third party on the Wasabi website or in conjunction with
the Wasabi Service.
1.4 Usage Data. To provide billing and administration services, or to investigate fraud, abuse or violations of this
Agreement, we may process usage data related to your Customer Account, such as, by way of example only, resource
identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics
("Usage Data").
1.5 Limited Wasabi Services. We may offer the Wasabi Service for free in limited circumstances, such as free trials,
or may offer a pre-release version of any Wasabi Service ("Limited Wasabi Service"). The Limited Wasabi Service
requires 2n active Customer Account and is subject to the time limits that are made known to you at the time of order
fulfillment, via email or the Documentation. You acknowledge and agree that you will use the Limited Wasabi Service
in compliance with any related Documentation and restrictions. You acknowledge that your, and your Authorized
User's, use of any Limited Wasabi Service is for the sole purpose of evaluating and testing the applicable such service
and providing feedback to Wasabi. Further, you agree that any pre-release version of a Wasabi service may be
experimental in nature, have not been fully tested and may be discontinued at any time with or without notice. We
may, in our discretion, discontinue any Limited Wasabi Service at any time, at which point your access will end and
any Your Content shall be deleted.
1.6 Client Download. The Wasabi Service may require software be installed by you. Subject to the terms and
conditions of this Agreement, and in consideration of the applicable fees paid by you, Wasabi grants to you a non-
exclusive, nontransferable, limited license (without the right to sublicense) to install, execute and use such software
solely: (i) in object code format; (ii) for your internal use, with no right to make such software available to third
parties either by transferring copies thereof or by providing a hosted service; and (iii) in accordance with
Documentation and the terms hereof.
1.7 Your Content. "Your Content" means content that you or any Authorized User transfer to us for storage or hosting
by the Wasabi Service in connection with your Customer Account. Your content does not include your Customer
Account information. You will ensure that Your Content will not violate any terms of this Agreement or referenced
Wasabi policies or Documentation, or any applicable law. You are solely responsible for the development, content,
operation, maintenance, and use of Your Content.
You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content
and Feedback; (b) you have all rights in Your Content and Feedback necessary to grant the rights contemplated by this
Agreement; and (c) none of Your Content use of the Wasabi Service will violate the Platform Terns of Use and
Acceptable Use Policy (found at www.wasabi.com/legat).
2. Wasabi Changes; Support and Maintenance
2.1 To the Wasabi Service. We may change or discontinue any or all of the Wasabi Service or change or remove
functionality of any or all of the Wasabi Service from time to time. We will notify you of any material change to or
discontinuation of the Wasabi Service by posting the revised version on our website and/or communicating it to you.
Any changes to the Wasabi Services will be effective ten (10) days from the time we post such changes. Your
continued use of the Wasabi Services thereafter constitutes your acceptance the changed Wasabi Service.
2.2 To the APIs. We may change or discontinue any APIs for the Wasabi Service from time to time. For any
discontinuation of or material change to an API, we will use commercially reasonable efforts to continue supporting
the previous version of such API for 12 months after the change or discontinuation (except if doing so (a) would pose
a security or intellectual property issue, (b) is economically or technically burdensome, or (c) would cause us to
violate the law or requests of governmental entities).
2.3 To the Service Level Agreements. We may change, discontinue or add Service Level Agreements from time to
time.
2.4 Support and Maintenance. During the term of the Usage Term, Wasabi will provide you with reasonable support
via the Wasabi ticketing system, in accordance with Wasabi's then -current service level agreement. Wasabi and its
Affiliates will provide you with service updates and bug fixes that we in its sole discretion makes generally available
to its other similarly users of the Wasabi Service at no charge. Wasabi will use commercially reasonable efforts to
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correct reproducible failures of the Wasabi Service to perform in substantial accordance with its Documentation.
Premium support may be purchased from or through Wasabi for an additional fee. Further, Wasabi itself and through
its Affiliates will use reasonable efforts to schedule maintenance to the Wasabi Service during non -peak usage hours.
Wasabi may temporarily limit or suspend the availability of all or part of the Wasabi Service, without liability, if it is
necessary for reasons of public safety, security, maintenance of the Wasabi Service, interoperability of services, data
protection, or to perform work that is necessary for operational or technical reasons.
3. Security and Data Privacy
3.1 Wasabi Security. (a) Without limiting your obligations under Section 4.2 or the terms of Section 10, we will
implement reasonable and appropriate measures designed to help you secure Your Content against accidental or
unlawful loss, access or disclosure. (b) However, we cannot guarantee that unauthorized third parties will never be
able to defeat our safeguards or use the Customer Account and/or Your Content for improper purposes. You provide
your Customer Account details and Your Content to us at your own risk, and you are responsible for properly
configuring and using the Wasabi Service and otherwise taking appropriate action to secure, protect and backup your
Customer Account(s) and Your Content in a manner that will provide appropriate security and protection, which might
include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.
3.2 Data Privacy. You may specify the Wasabi regions in which Your Content will be stored. You consent to the
storage of Your Content in, and transfer of Your Content into, the Wasabi regions you select. When choosing Wasabi
regions outside of the European Union, you acknowledge that you are responsible for understanding applicable law(s)
and regulation(s) concerning the transfer of Your Content and have expressly consented with the storage and transfer
of Your Content outside of the European Union.
3.3 Access of Customer Data. We will not access or use Your Content except as necessary to maintain or provide the
Wasabi Service (including as set forth in Section 1.5), or as necessary to comply with applicable laws, rules or
regulations, or governmental orders. We will not move Customer Content from the Wasabi regions selected by you,
except in each case as necessary to comply with applicable laws, rules or regulations, or governmental orders. Unless
it would violate any of the foregoing, we will give you notice of any legal requirement or order regarding disclosure of
Customer Data.
4. License Grant; Acknowledgment
4.1 License of Your Content. You grant to Wasabi a worldwide, non-exclusive, royalty -free, frilly -paid up,
transferable and sublicensable right to use and store Your Content (subject to Section 3.3) for the purpose of
performing this Agreement, improving the Wasabi Service, and as otherwise provided in Wasabi's privacy policy
located at wasabi.com/legal/privacy-policy (and any successor or related locations designated by us), as may be
updated by us from time to time (the "Privacy Policy"). You retain all rights Your Content, subject to the rights
granted to us in this Agreement with respect to the performance of our obligations. You may modify or remove the
Your Content via the Customer Account. Your Content will be irretrievably deleted upon (i) you or your Authorized
User's deletion of Your Content or (ii) cancellation or termination of the Customer Account, or (ii) cancellation or
termination of the Customer Account, provided, prior notice shall be provided if the termination is not pursuant to
Section 7.2 (c) or Section 7.4.
4.2 Restrictions. You acknowledge and agree that you shall not, and shall ensure your Authorized Users do not: (i)
access or use the Wasabi Service in any manner or for any purpose other than expressly permitted by the
Documentation; (ii) change, modify or otherwise create derivative works of all or any portion of the Wasabi Service;
(iii) modify, disassemble, decompile or reverse engineer any part of the Wasabi Service or apply any other process or
procedure to derive source code of any software included in Wasabi Service (except solely to the extent permitted by
applicable law); (iv) access or use the Wasabi Service in a way intended to avoid exceeding usage limits or quotas; (v)
use Wasabi Service in order to build a similar or competitive application or service; or (vi) remove, tamper with or
alter any disabling mechanism or circumvent any technical protection measures associated with the Wasabi Service, or
otherwise use any tool to enable features or fimctionalities that are otherwise disabled in Wasabi Service.
You further acknowledge and agree that, unless otherwise expressly agreed or otherwise permitted by Wasabi, in
writing (x) resell or sublicense the Wasabi Service; or (y) remove or alter any proprietary notices (e.g., copyright and
trademark notices) pertaining to the Wasabi Service.
4.3 Loe-ln Credentials and Account Keys. Any log -in credentials and private keys provided to you by Wasabi or
generated by the Wasabi Service are for your internal use only and you will not sell, transfer or sublicense them to any
other entity or person, except that you may disclose your private key to your agents and subcontractors performing
work on your behalf.
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4.4 Authorized Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or
entity to take related to this Agreement, Your Content or use of the Wasabi Service. You are responsible for your
Authorized Users' use of Your Content and the Wasabi Service. You will ensure that all Authorized Users comply
with your obligations under this Agreement. If you become aware of any violation of your obligations under this
Agreement caused by an Authorized User, you will immediately suspend access to Your Content and the Wasabi
Service by such Authorized User. We do not provide any support or services to any Authorized User unless we have a
separate agreement obligating us to provide such support or services to an Authorized User.
4.5 Assessments. You acknowledge and agree that (i) you assessed your data protection needs, network environment,
technical specifications, and fees and cost of the Wasabi Service, and you are solely responsible for your decision to
use the Wasabi Service even if Wasabi has provided guidance to you in connection with the Wasabi Service selected
by you; and (ii) you are solely responsible for ensuring that you maintain and operate your information technology
infrastructure in a manner appropriate to your use of the Wasabi Service and its Documentation.
4.6 Your Conduct. You represent and warrant that Your Content and you and your Authorized User's, use of the
Wasabi Service, and the technology related thereto, shall not (i) interfere with the proper working of the Wasabi
Services or impose an unreasonably large load on the Wasabi infrastructure; (ii) give rise to civil or criminal liability,
e.g. defamatory, threatening, pornographic, indecent, abusive, libelous or otherwise objectionable actions; (iii) violate
or infringe upon any third party right, including any intellectual property right or right of privacy, or that abuses,
harasses or stalks any other person; or (iv) initiate a denial of service attack, software viruses or other harmful or
deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware.
5. Fees and Payment
5.1 Service Fees. Fees for the Wasabi Service ("Fees") will calculated and billed based on the Wasabi Service
selected by you (i.e. monthly or prepaid Reserved Capacity), as set forth at wasabi.com/pricing/pricing-fags or the
Wasabi quotation provided to you (which takes precedence). If we suspect that your account is at risk of non-payment,
as determined in our discretion, we may bill you more frequently. All amounts payable by you under this Agreement
will be paid to its without any setoff or counterclaim. We may increase or add new fees and charges for any existing
Wasabi Service by giving you at least thirty (30) days' prior notice.
Your failure to maintain your current credit card information or other alternative payment method may result in an
interruption of your use of the Wasabi Service,
5.2 Credit Card Payments. We utilize third party payment providers to process credit card payments on Wasabi's
behalf ("Payment Provider"), Such Payment Provider's policies govern the processing of your payment, and you must
refer to those policies and not this Agreement to determine your rights and liabilities. By providing your credit card
information to the Payment Provider, you authorize Wasabi, through such Payment Provider, to immediately charge
the Fees for the Wasabi Service during any applicable term for Wasabi Service.
5.3 Taxes. All fees payable by you are exclusive of means any taxes and duties, including, without limitation, VAT,
Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax ("Taxes"), which are your
responsibility. We will charge and you will pay such applicable Taxes. We will not collect, and you will not pay, any
Taxes for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for
which we may claim an available exemption. You shall indemnify, defend and hold Wasabi harmless for any liability
or expense we may incur in connection with the failure to pay, or collection of, any Taxes.
5.4 No Deduction. All payments made by you to us under this Agreement will be made free and clear of any
deduction or withholding. If any such deduction or withholding (including but not limited to cross -border withholding
tares) is required on any payment, you will pay such additional amounts as are necessary so that the net amount
received by us is equal to the amount then due and payable under this Agreement.
5.5 Ongoing Fees. You acknowledge and agree that your credit card or alternative payment method will be
automatically charged usage Fees during such period as you have an active Customer Account and you use the Wasabi
Service unless you cancel your Customer Account. You may cancel your Customer Account by following the steps set
forth at:
https://wasabi-support.zendesk.com/hc/eii-us/articles/I 1500140521 1-How-do-l-delete-my-Wasabi-account-.
6. Proprietary Rights; Confidentiality
6.1 Reservation of Rights. You acknowledge and agree that the software, code, hardware, trademarks, trade secrets,
proprietary methods and systems used to provide the Wasabi Service (the "Wasabi Technology") and the content
made available or displayed by its through the Wasabi Service, including all text, graphics, images and the look and
feel of such Wasabi Service (collectively, the "Wasabi Content") are owned by or licensed to Wasabi, including all
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intellectual property rights therein. Nothing in this Agreement or any of the Documentation shall be considered an
assignment or other transfer of ownership in and to the Wasabi Technology or Wasabi Content to you, either
expressly, or by implication, estoppel, or otherwise. Other than the authorizations or licenses as may be conferred or
granted by us to you in this Agreement or any of the Documentation, Wasabi reserves all right, title and interest in and
to the Wasabi Technology and Wasabi Content. No right or license is granted by us to you or your Authorized Users
to use any Wasabi trademark, trade name, service mark, product name or other source designator.
Subject to the terms of this Agreement, you are hereby granted a limited, revocable, non-exclusive, non-sublicensable,
non-transferrable license to do the following: (a) access and use the Wasabi Service solely in accordance with this
Agreement; and (b) copy and use the Wasabi Content solely in connection with your permitted use of the Wasabi
Service. Except as provided in this Section 6.1, you obtain no rights under this Agreement from us, our Affiliates or
our licensors to the Wasabi Service, including any related intellectual property rights. Some Wasabi Content and
Third -Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or
other open source license. In the event of a conflict between this Agreement and any separate license, the separate
license will prevail with respect to the Wasabi Content or Third -Party Content that is the subject of such separate
license.
6.2 Ongoing Development. Wasabi may develop and provide ongoing innovation to the Wasabi Service, including
new features, functionality, and efficiencies. In the event Wasabi adds new features or functionality (collectively,
"New Features") to the Wasabi Service, Wasabi may offer the New Features to you at no additional charge or, if
Wasabi generally charges customers for such fimctionality, Wasabi may condition your use of the New Features on
the payment of additional Fees.
6.3 Feedback. Notwithstanding anything to the contrary in this Agreement, you hereby agree that all intellectual
property rights in the Feedback, and all other ownership in any ideas, modifications, enhancements, improvements, or
any other suggestion specifically relating to the Wasabi Service, are hereby assigned to Wasabi and shall be the sole
and exclusive property of Wasabi. All Feedback shall be treated as Wasabi's Confidential Information. Without
limiting the generality of the foregoing, you agree that your provision of Feedback does not give you any intellectual
property or any other right, title, or interest in or to any aspects of the Wasabi Service, even if such Feedback leads to
the creation of a new product or service by Wasabi, or New Features. "Feedback" means any suggestions,
enhancement requests, recommendations, corrections or other feedback provided by you, your affiliates, and/or
Authorized Users relating to the features or operation of the Wasabi Service and Documentation.
6A Confidentiality. Either party may, from time to time, deliver to the other certain non-public information including
formulas, flow charts, diagnostic routines, business information, forecasts, financial plans and data, balance sheet
information, customer information, marketing plans, hardware, software and unannounced product information
("Confidential Information"), Confidential Information shall also include the Wasabi Content and Your Content, and
any other information disclosed by a party to the other party, in whatever form, including visually and orally, and
designated in writing as proprietary or confidential, or which — to a reasonable person familiar with the disclosing
party's business and the industry in which it operates — is of a proprietary or confidential nature. During the term of
this Agreement and following three (3) years after its termination, each party will not disclose any such Confidential
Information except as set forth herein, The receiving party shall hold hi confidence, and shall not disclose (or permit
or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer,
employee, outside consultant, or advisor (collectively "Representatives") who have a need to know such Confidential
Information in the course of the performance of their duties for the receiving party and who are bound by a duty of
confidentiality no less protective of the disclosing party's Confidential Information than this Agreement. The
receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was
disclosed and shall not use or exploit such Confidential Information for the benefit of another without the prior written
consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall
protect the other party's Confidential Information in the same manner as it protects its own valuable confidential
information, but in no event, shall less than reasonable care be used. The parties expressly agree that the terms of this
Agreement are Confidential Information and you further agree that it shall not use the Wasabi Service for the purposes
of conducting comparative analysis, evaluations or product benchmarks with respect to the services and will not
publicly post any analysis or reviews of the services without Wasabi's prior written approval. A receiving party shall
promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall
cooperate with any reasonable request of the disclosing party in enforcing its rights
Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt
from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly
or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes
publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently
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developed by the receiving party without use of the disclosing party's Confidential Information. The receiving party
may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government
regulation, provided that, where legally permitted to do so, it gives the disclosing party reasonable prior written notice
to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required
disclosure.
Notwithstanding any other provision of this Agreement, both parties acknowledge that any use of the disclosing
party's Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the
disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate.
Therefore, both parties agree that, in addition to any other remedy which the disclosing party may be entitled
hereunder, at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of
any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available
under applicable law.
7. Term; Termination; Suspension
7.1 Term. Subject to the provisions of Section 7.2, the term of your access to the Wasabi Service (a "Usage Period")
will continue for so long as you have an active and fully paid up Customer Account (the "Term").
7.2 Termination.
(a) Termination For Convenience. Subject to Section 5, either party may terminate this Agreement and your
Customer Account for any reason by providing the other party at least thirty (30) days' advance notice, provided,
however, if you terminate a Reserved Capacity prepaid Wasabi Service under this provision, you remain responsible
for all fees due for the balance of the then -current reserved capacity term, and you shall not be entitled to any refunds.
(b) Termination for Failure to Pay. In the event you fail to make any payment as set forth in this Agreement, we
reserve the right to disable your Customer Account after twenty-four (24) hours notice to you. You are required to
make payment of all outstanding amounts before your Customer Account is re -enabled.
If you fail to respond to the first notice of payment failure, we will provide a second final notice that if outstanding
amounts are not paid in full within twenty-four (24) hours our delivery of the second notice, we reserve the right to
delete your Customer Account and Your Content within seventy-two (72) hours from such final notice.
(c) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement and your Customer Account for cause if the other party
is in material breach of this Agreement and/or your Customer Account and the material breach remains uncured for a
period of thirty (30) days from receipt of notice by the other party.
(ii) By Wasabi. We may also terminate this Agreement and/or your Customer Account immediately upon notice to
you (A) if our relationship with Affiliates and/or a third -party partner who provides software or other technology we
use to provide the Wasabi Service expires, terminates or requires us to change the way we provide the software or
other technology as part of the Wasabi Service, or (B) in order to comply with law.
7.3 Effect of Termination. Upon the Termination Date: (i) all your rights under this Agreement and your Customer
Account immediately terminate; (ii) you remain responsible for all fees and charges you have incurred through the
termination date (except for Reserved Capacity, which is addressed in Section 7.2(a) above) and are responsible for
any fees and charges you incur up to termination; (iii) you will immediately return or, if instructed by us, destroy all
Wasabi content in your possession; and (iv) those terms intended to survive termination shall continue to apply in
accordance with their terms.
7.4 Immediate Termination or Suspension. We may elect to terminate or suspend (in our sole discretion) your or any
Authorized User's right to access or use any portion or all of the Wasabi Service immediately upon notice to you if we
determine:
(a) your or an End User's use of the Wasabi Service (i) poses a security risk to Wasabi, the Wasabi Service, any other
Wasabi customer, or any third party, (ii) could adversely impact our systems, the Wasabi Service or the systems or
content of any other Wasabi customer, (iii) could subject us, our Affiliates, or any third party to civil or criminal
liability, or (iv) could be criminal, fraudulent or otherwise illegal;
(b) you are, or any Authorized User is, in material breach of this Agreement;
(c) you are in breach of your payment obligations under Section 5; or
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(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar
disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar
proceeding.
7.5 Effect of Suspension. If we suspend your right to access or use any portion or all of the Wasabi Service, (a) you
remain responsible for all fees and charges you incur during the period of suspension; and (b) you will not be entitled
to any service credits under the Service Level Agreements for any period of suspension.
8. Indemnification
8.1 In General By You. You will defend, indemnify, and hold harmless us, our Affiliates and licensors, and each of
their respective employees, officers, directors, and representatives from and against any claims, damages, losses,
liabilities, costs, and expenses (including reasonable attorneys' fees) ("Losses") arising out of or relating to any third -
party claim concerning: (a) your or any Authorized Users' use of the Wasabi Service (including any activities under
your Customer Account and use by your Authorized Users); (b) violation of applicable law, rule or regulation by you,
your Authorized Users or Your Content; or (c) any claim alleging that any of Your Content infringes or
misappropriates any privacy or third party intellectual property rights. You will reimburse us for reasonable attorneys'
fees, as well as our employees' and contractors' time and materials spent responding to any third -party subpoena or
other compulsory legal order or process associated with third party claims described in (a) and (b) above at our then -
current hourly rates.
8.2 Wasabi Indemnity Obligations.
(a) Subject to the limitations in this Section 8, Wasabi will defend you and your employees, officers, and directors
against any third -party claim alleging that the Wasabi Service infringes or misappropriates a third party's intellectual
property rights, and will pay the amount of any adverse final judgment or settlement, agreed to by Wasabi in writing.
Wasabi will also defend, indemnify, and hold you and your employees, officers, and directors from and against and
Losses arising out of Wasabi's violation of any applicable law, rule or regulation.
(b) We will have no obligation or liability under this Section 8.2 arising from infringement by combinations of the
Wasabi Service with any other product, service, software, data, content or method. In addition, Wasabi will have no
obligations or liability arising from your or any Authorized User's use of the Wasabi Service after Wasabi has notified
you to discontinue such use. The remedies provided in this Section 8.2 are the sole and exclusive remedies for any
third -party claims of infringement or misappropriation of intellectual property rights by the Wasabi Services.
(c) For any claim covered by Section 8.2(a), Wasabi will, at its election, either: (i) procure the rights to use that
portion of the Wasabi Service alleged to be infringing; (ii) replace the alleged infringing portion of the Wasabi Service
with a non -infringing alternative; (iii) modify the alleged infringing portion of the Wasabi Service to male it non -
infringing; or (iv) terminate the allegedly infringing portion of the Wasabi Services and this Agreement.
8.3 Process. The obligations under this Section 8 will apply only if the indemnified party: (a) gives the other party
prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and
(c) reasonably cooperates with the other party (at the other party's expense) in the defense and settlement of the claim.
In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of
money, without the written consent of the other party.
9. Disclaimers
THE WASABI SERVICE IS PROVIDED "AS IS." EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO
THE EXTENT OF ANY STATUTORY RIGHTS THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE
AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE WASABI
SERVICE OR THE THIRD -PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR
EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, NON -INFRINGEMENT, OR QUIET ENJOYMENT, (I1) ARISING OUT OF ANY
COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE WASABI SERVICE OR ANY THIRD -PARTY
CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV)
THAT ANY OF YOUR CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED,
10. Limitations of Liability
EXCEPT IN THE CASE OF WASABI'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD,
WASABI AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING
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DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR
DATA), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
REGARDLESS OF THE FORM OF ACTION.
EXCEPT IN THE CASE OF WASABI'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD,
WASABI AND ITS AFFILIATES' AND LICENSORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY
WASABI UNDER THIS AGREEMENT FOR THE WASABI SERVICE THAT GAVE RISE TO THE CLAIM
DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. IF WASABI SERVICE (OR ANY OTHER
WASABI PRODUCT) IS PROVIDED TO YOU WITHOUT CHARGE, THEN WASABI WILL HAVE NO
LIABILITY TO YOU WHATSOEVER, AND IN ANY EVENT NO MORE THAN $500.
YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS SET
FORTH IN THIS SECTION ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL
FACTOR IN ESTABLISHING THE PRICE OF WASABI SERVICE.
THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT
PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL
PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
11, Modifications to the Agreement
We may modify this Agreement (including any policies or any links referenced herein) at any time by posting a
revised version on the Wasabi website or by otherwise notifying you in accordance with Section 12.10. Subject to the
foregoing, the if there are changes that materially impact your ability to utilize the Wasabi Service, such modified
terms will become effective only as mutually agreed. .
12. Miscellaneous
12.1 Assignment. You will not and do not have the right to assign or otherwise transfer this Agreement or any of the
rights and obligations under this Agreement, without Wasabi's prior written consent. Any assignment or transfer, or
attempt thereof, in violation of this Section 12.1 will be void. Notwithstanding the foregoing, either party may assign
this Agreement to any person or entity that is an affiliate, or acquires by sale, merger or otherwise, all or substantially
all or a portion of such party's assets, stock or business. If another entity merges with or acquires Wasabi, or all,
substantially all or a portion of our assets, stock or business you agree your encrypted stored data and information that
Wasabi has collected from you, including personally identifiable information, may, and you consent to, the secure
transfer of such information to such successor or assignee.
12.2 Affiliates, Subcontractors and Vendors. Some or all of the Wasabi Service, including support services, may be
provided by Wasabi's Affiliates, agents, subcontractors and information system vendors. The rights and obligations of
Wasabi may be, in whole or in part, exercised or fulfilled by the foregoing entities.
12.3 Entire Agreement. This Agreement incorporates any policies or other information found at the published links by
reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This
Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications
between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound
by, and specifically object to, any term, condition or other provision that is different from or in addition to the
provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any
term, condition or other provision (a) submitted by you in any order, receipt, acceptance, confirmation,
correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for
Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or
require us to complete. If the terms of this Agreement are inconsistent with the terms contained in document
referenced or linked herein, the terms contained in such document will control.
12.4 Force Maieure. We and our Affiliates will not be liable for any delay or failure to perform any obligation under
this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of
God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications
failures, earthquake, storms or other elements of nature, epidemics, pandemics, blockages, embargoes, riots, acts or
orders of government, acts of terrorism, or war.
12.5 Governing Law. The laws of the State of California, without reference to conflict of law rules, governs this
Agreement and any dispute of any sort that might arise between the parties. The United Nations Convention for the
International Sale of Goods does not apply to this Agreement.
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12.6 Trade Compliance, In connection with this Agreement, each party will comply with all applicable import, re-
import, sanctions, anti -boycott, export, and re-export control laws and regulations. For clarity, you are solely
responsible for compliance related to the mariner in which you choose to use the Wasabi Service, including your
transfer and processing of Your Content, the provision of Your Content to Authorized Users, and the Wasabi region in
which any of the foregoing occur. You represent and warrant that you and your financial institutions, or any party that
owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of
prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security
Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the
U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its
Member States, or other applicable government authority.
12.7 Independent Contractors; Non -Exclusive Rights. Both parties are independent contractors, and this Agreement
will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any
of their respective Affiliates is an agent of the other for any purpose or has the authority to bind the other. Both parties
reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are
similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the
other party, and (b) to assist third party developers or systems integrators who may offer products or services which
compete with the other party's products or services.
12.8 Language. All communications and notices made or given pursuant to this Agreement must be in the English
language. If we provide a translation of the English language version of this Agreement, the English language version
of the Agreement will control if there is any conflict.
12.9 Confidentiality and Publicity. You may use Wasabi Confidential Information only in connection with your use of
the Wasabi Service as permitted under this Agreement. You will not disclose Wasabi Confidential Information during
the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures
to avoid disclosure, dissemination or unauthorized use of Wasabi Confidential Information, including, at a minimum,
those measures you take to protect your own confidential information of a similar nature. You will not issue any press
release or make any other public communication with respect to this Agreement or your use of the Wasabi Service.
12.10 Notice.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Wasabi website;
or (ii) sending a message to the email address then associated with your account; or, in the case of legal notices, (ii) by
personal delivery, overnight courier or registered or certified mail to Customer.
(b) To Us. To give us notice under this Agreement, you must contact Wasabi as follows: (i) by email transmission to
support@wasabi.com; or (ii) by personal delivery, overnight courier or registered or certified mail to either Wasabi
Technologies LLC, the attention of General Counsel and CFO. Notices provided by personal delivery will be effective
immediately. Notices provided by email transmission or overnight courier will be effective one (1) business day after
they are sent. Notices provided registered or certified mail will be effective three (3) business days after they are sent.
12.12 No Third -Party Beneficiaries. This Agreement does not create any third -party beneficiary rights in any
individual or entity that is not a party to this Agreement.
12.13 No Waivers. The failure by either party to enforce any provision of this Agreement will not constitute a present
or future waiver of such provision nor limit a party's right to enforce such provision at a later time. All waivers by a
party must be in writing to be effective,
12.14 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of
this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect
and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be
severed from this Agreement, but the rest of the Agreement will remain in fall force and effect.
12.15 Marketing. Each party may use the other party's name, trade name, trademarks, icons, and logos (collectively,
the `Brands") to refer publicly to the other, orally and in writing, as a customer/vendor of the other solely in
connection with the Wasabi Service and only during the Term. Any other use of a party's Brands requires such parry's
prior written consent.
13. Export Controls. Your use of the Wasabi Service is subject to compliance with United States and other applicable
export control and trade sanctions laws, rules and regulations (collectively, "Export Control Laws"). You will not
export, reexport, download or otherwise transmit the Wasabi Service, or technical data relating thereto, in violation of
any applicable Export Control Laws. In particular, you acknowledge that the Wasabi Services, or any part thereof,
may not be exported, transmitted, or re-exported to, or otherwise used in: (a) any country subject to a U.S. embargo or
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comprehensive trade sanctions or that has been designated a state sponsor of terrorism by the U.S. Government
("Sanctioned Countries"); or (b) anyone identified on any U.S. Government restricted party lists (collectively,
"Restricted Party Lists"). By purchasing the Wasabi Service, you represent and warrant that you are not located in any
Sanctioned Country or on any Restricted Party List. You acknowledge that the Wasabi Service may not be available in
all jurisdictions and that you are solely responsible for complying with applicable Export Control Laws related to the
manner in which you choose to use the Wasabi Service, including your transfer and processing of your Your Content
and the region in which any of the foregoing occur.
14. Electronic Communications. By using Wasabi Service, you acknowledge that we communicate with you
electronically to the email address provided in your Customer Account. It is your responsibility to keep your email
address current for notice purposes. For contractual purposes, you (a) consent to receive communications from Wasabi
in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other
communications that Wasabi provides to you electronically satisfies any legal requirement that such communications
would satisfy if it were to be in writing.
15. Contact Us. To contact Wasabi regarding this Agreement (i) email Wasabi at support@wasabi.com, or (ii) write to
Sales at Wasabi Technologies LLC, at the address set forth in Wasabi's contact page on the Wasabi website.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date first written above.
Wasabi Technologies LLC City of Santa Ana
E&Aa,
CUSIOned by:
By: fJouV By
Name: Michael Bayer Name:
Title: chief Financial officer Title:
Date: 10/8/2021 Date:
See Attached Signature Page
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
q •MEZ
Council
i
f_
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
RY*ity
Assiey
CITY OF SANTA ANA
KRISTINE RIDGE
City Manager
FOR APPROVAL:
A-
JAC# CIULLA
Chi Technology Innovations Officer
Information Technology