HomeMy WebLinkAboutC-9238-1 - SAAS Agreement for Cloud Services (Enterprise Version)N'
SAAS AGREEMENT FOR CLOUD BASED SERVICES
(ENTERPRISE VERSION)
This Software as a Service Agreement (the "Agreement"), is between Ladris Technologies, Inc., a
California Corporation ("Ladris") with offices located at 10090 Stable Lane, Nevada City, California
95959 and the City of Newport Beach, a California municipality with offices at 100 Civic Center Drive,
Newport Beach, CA 92660.
WHEREAS, Ladris is a sole source of evacuation modeling software that provides visual &
statistical analysis of traffic congestion for evacuation scenarios;
WHEREAS, Orange County Emergency Management has expressed an interest in acquiring
a license to the Ladris evacuation software;
WHEREAS, the City of Newport Beach has been chosen, together with the other Harbor
Cities (as defined below), to undertake an evaluation of the Ladris Operator SaaS;
NOW THEREFORE, Ladris and the City of Newport Beach (each a "Party" and collectively, the
"Parties") hereby agree, as of the Effective Date, as follows:
ARTICLE 1.
1.1 Selected Terms
Effective Date means: April 1st, 2023
Prior NDA means: N/A
The business contact for Ladris is:
Attn: Customer Service
Title: Ladris Technologies, Inc
Address: 10090 Stable Lane
Nevada City, CA 95959
Tel.: +1 (999) 985-0031
Email: service@ladris.com
1.2 Additional Defined Terms.
Initial Term means: 9 months from the
Effective Date.
The business contact for the City of
Newport Beach is:
Attn: Katie Eing
Title: Emergency Services Coordinator
Address: 100 Civic Center Drive, Newport
Beach, CA 92660.
Tel.: (949) 644-3670
Fax:
Email: keing@nbpd.,
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"Access Credentials" means any user name, password, license or security key, security token, or
other method, technology or device used, alone or in combination, to authenticate and authorize access to
and use of the Cloud Services.
"Affiliate" means, with respect to any corporate entity, a company controlled by, controlling, or
under common control of a parent entity.
"Authorized User" means an employee of Customer, authorized to use the Cloud Services pursuant
to Section 3.1 and the other terms and conditions of this Agreement.
"Cloud Services" means the Ladris software application or applications and any third -party or other
software (other than Open Source Software), listed on Attachment 2 as made available to Customer on a
software as a service model and all new versions, updates, revisions, improvements and modifications of
the foregoing, that Ladris uses to provide remote access to and use of the Cloud Services.
"Contract Year" means the period of twelve (12) consecutive months during the Initial Term of this
Agreement, commencing on the Effective Date, and with, with respect to any contract renewal, each
subsequent period of twelve (12) consecutive months commencing on the anniversary of the Effective
Date.
"Customer" means the Harbor Cities and, during the Extended Term, as defined below, the entities
specified in Attachment 1.
"Customer Data" means information, data, images, video and other content, regardless of form or
medium, that is collected, downloaded or otherwise received from Customer or an Authorized User for
processing by the Cloud Services, but does not include metadata derived from Customer usage.
"Customer Systems" means the Customer's information technology infrastructure, including
computers, software, hardware, databases, electronic systems (including database management systems)
and networks operated by Customer.
"Documentation" means any manuals, instructions or other documents or materials in any medium,
as updated from time to time, that the Ladris provides or makes available to Customer.
"Harbor Cities" means the City of Newport Beach, City of Irvine, City of Laguna Beach, City of
Costa Mesa, and University of California at Irvine.
"Harmful Code" means any software, hardware or other technology, including any virus, worm,
malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized
access to, or to destroy, disrupt, or otherwise harm or impede in any manner any (i) computer, software,
firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the
security, integrity, confidentiality or use of any data processed thereby, or (b) prevent a customer or end
user from accessing or using the Cloud Services as intended by this Agreement.
"Intellectual Property Rights" means any and all patent, copyright, trademark, trade secret, database
protection or other intellectual property rights laws, and all similar or equivalent rights or forms of
protection, in any part of the world.
"Ladris Data" means (i) all data and information provided by the Cloud Services that is proprietary
to Ladris or its licensors, (ii) all metadata captured by the Cloud Services, including time and duration of
simulations, parameters set by Customer in running simulations, and frequency of use, and (iii) all
Resultant Data.
"Ladris Materials" means the Specifications, Documentation and any and all other information,
data, documents, materials and other content, devices, methods, processes, hardware, software and other
technologies and inventions, including any deliverables, technical or functional descriptions,
requirements, plans or reports, that are provided to Customer or used by Ladris or any Subcontractor in
connection with the Cloud Services or Ladris Systems. For the avoidance of doubt, Ladris Materials
include Ladris Data and Resultant Data, but do not include Third Party Materials or Customer Data.
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"Ladris Personnel" means all individuals involved in the performance of Cloud Services as
employees, agents or independent contractors of Ladris or any Subcontractor.
"Ladris Systems" means the information technology infrastructure used by or on behalf of Ladris to
operate, maintain and make available the Cloud Services, including all computers, software, hardware,
databases, electronic systems (including database management systems) and networks, whether operated
directly by Ladris or through the use of Subcontractors.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common
law, judgment, decree or other requirement of any federal, state, local or foreign government or political
subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, or other liabilities, awarded in a final judgment,
including interest, awards, penalties, fines, costs and expenses, as well as reasonable attorneys' fees;
provided, however, that losses shall not include (i) any amounts resulting from loss of property, loss of
services, personal injury, or death resulting from an evacuation or wildfire, or loss resulting from any
other hazardous activity.
"Open Source Program(s)" means any software, documentation or other material that contains, or is
derived (in whole or in part) from, any software, documentation or other material that is distributed as
free software, open source software (e.g., Linux) or similar licensing or distribution models.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity,
governmental authority, unincorporated organization, trust, association or other entity.
"Representatives" means, with respect to a Party, that Party's and its Affiliates' employees, officers,
directors, consultants and legal advisors.
"Resultant Data" means information, data and other content that is derived by or through the Cloud
Services from Processing Customer Data and is sufficiently different from such Customer Data that such
Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or
further processing of such information, data or content. Resultant Data includes but is not limited to
information, data or other content derived from Ladris' analysis of Customer's access of the Cloud
Services.
"Specifications" means the published technical description for the Cloud Services or Documentation.
"Third Party Materials" means materials and information, in any form or medium, including any
open -source or other software, documents, data, content, specifications, APIs, products, equipment or
components of or relating to the Cloud Services that are not proprietary to Ladris or its licensors.
ARTICLE 2. CLOUD SERVICES.
2.1 Cloud Services. During the Term of this Agreement (set forth in Section 11.2), Ladris shall
provide to Customer, and their Authorized Users the Cloud Services described in the attached
Attachment 2 (collectively, the " Cloud Services"), in substantial conformity with the Specifications.
The Cloud Services shall be provided 24 hours per day, seven days per week every day of the year,
except as provided in Article 5 (Service Levels and Service Credits.)
2.2 Cloud Services and System Control. Except as otherwise expressly provided in this
Agreement, as between the parties:
(a) the Cloud Services, Ladris Materials and Ladris Systems shall be operated, maintained and
managed by Ladris;
(b) the Cloud Services may be operated on hardware and at locations owned, maintained and
managed by a third -party supplier to Ladris; and
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(c) Customer will retain sole control over the operation, maintenance and management of the
Customer Systems, and shall have sole responsibility for all access to and use of the Cloud Services and
Ladris Materials by or through the Customer Systems, including any: (i) Customer Data, or other
information, instructions or materials provided by Customer or any Authorized User; and (ii) the
distribution of Customer Data based on use of the Cloud Services.
2.3 Changes. Ladris reserves the right, in its sole discretion, to make any changes to the Cloud
Services and Ladris Materials that it deems necessary or useful to: (a) maintain or enhance (i) the
quality or delivery of Ladris' Cloud Services to its customers, (ii) the competitive strength of or market
for Ladris' Cloud Services or (iii) the Cloud Services' cost, efficiency or performance; or (b) to comply
with applicable Law.
2.4 Subcontractors. Ladris may from time to time in its discretion engage third parties to operate,
maintain, and make available perform the Cloud Services (each such third party being a
"Subcontractor").
2.5 Suspension or Termination of Cloud Services. Ladris may, directly or indirectly, suspend,
terminate or otherwise deny access to or use of all or any part of the Cloud Services or Ladris Materials
by Customer, or any Authorized User if. (a) Ladris receives a judicial or other governmental demand or
order, or law enforcement request that requires Ladris to do so; or (b) Ladris believes, in its good faith
and sole discretion, that: (i) Customer or such Authorized User has failed to comply with any material
term of this Agreement, or accessed or used the Cloud Services beyond the scope of the rights granted;
or (ii) Customer or such Authorized User is, has been, or is likely to be involved in any fraudulent,
misleading or unlawful activities. This Section 2.5 does not limit any of Ladris' other rights or
remedies, whether at law or in equity.
ARTICLE 3. AUTHORIZATION AND CUSTOMER RESTRICTIONS.
3.1 Authorization. Ladris authorizes Customer and its Authorized Users to access and use the
Cloud Services and such Ladris Materials as Ladris may supply to Customer for the internal use of
Customer. This authorization is non-exclusive and non -transferable, other than as may be set forth in
Section 16.4 (Assignment) and Section 3.2.
3.2 Prohibitions. Customer shall not (i) reverse engineer, disassemble, decompile, decode, adapt
or otherwise attempt to derive or gain access to the source code or object code of the Cloud Service
software, in whole or in part, or (ii) copy, modify, or prepare derivative works of the Cloud Service
software or the Ladris Materials.
3.3 Additional Limitations and Restrictions. Customer shall not, and shall not permit any other
Person to, copy, distribute, reproduce, incorporate, use, or access the Cloud Services or Ladris Materials
in any manner except as expressly permitted by this Agreement and, in the case of Third -Party
Materials, the applicable third -party license agreement. Without limiting the generality of the foregoing,
Customer shall not, except as this Agreement (or any applicable open source license) expressly permits:
(a) access or use the Cloud Services other than through the use of valid Access Credentials;
(b) input, upload, transmit or otherwise provide to or through the Cloud Services any
information or materials that are unlawful, injurious, or contain, transmit or activate any Harmful Code;
(c) remove, delete, alter or obscure any trademarks, terms of service, warranties or
disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices
from the Cloud Services or Ladris Materials, including any copy thereof, or
(d) access or use the Cloud Services or Ladris Materials for the development of a competing
software service or product or any other purpose that is to Ladris' detriment or commercial disadvantage.
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ARTICLE 4. SUPPORT.
4.1 Customers. Support and maintenance shall be provided for Customers as set forth in
Attachment 3.
ARTICLE 5. SERVICE LEVELS AND CREDITS. ONLY TO CUSTOMERS
5.1 Service Levels. During the Term of this Agreement, Ladris will use commercially reasonable
efforts to make the Cloud Services Available at least 99.5% of the time as measured over the course of
each calendar month during the Term (each such calendar month, a "Cloud Service Period"), excluding
unavailability as a result of any of the Exceptions described below in Section 5.4 (the "Availability
Requirement"). "Service Level Failure" means a material failure of the Cloud Services to meet the
Availability Requirement. "Available" means the Cloud Services are available for access and use over
the Internet and are operating in substantial accordance with the Specifications.
5.2 Service Level Failures and Remedies. In the event of a Service Level Failure, and if Customer
otherwise meets its obligations under this Agreement, Ladris shall issue a credit to Customer in the
amount of a percentage of the Fees due for the Cloud Service Period in which the Service Level Failure
occurred (each a "Service Credit") as set forth in the following table: In the first column, the Percentage
of Availability shall be calculated according to the formula set forth in Section 5.3 below.
Percentage of Availability
Amount of Service Credit
between 98.0% and 99.5%
10%
between 95.0% and 98.0%
18%
below 95.0%
40%
In addition, all Service Credits shall be subject to the following:
(a) Ladris has no obligation to issue any Service Credit unless Customer requests such
Service Credit and provides to Ladris the supporting information set forth in Section 5.2(b) below within
seven (7) days following the end of the applicable Cloud Service Period;
(b) Customer must provide to Ladris all information necessary to document the Service Level
Failure, including without limitation, log files showing the period(s) when the Cloud Services were not
Available, the date(s) and time(s) on which they occurred, the number and location(s) of the affected
Authorized Users (if applicable); descriptions of Customer's attempts to resolve the matter; and any other
pertinent information;
(c) in no event will a Service Level Credit for any Cloud Service Period exceed fifty percent
(50%) of the total Fees that would be payable for that Cloud Service Period if no Service Level Failure
had occurred;
(d) if a dispute arises with respect to any Service Level Failure, Ladris will make a good
faith determination to resolve the dispute based on its system logs, monitoring reports, configuration
records, and other available information, which Ladris shall make available to Customer upon Customer's
request; and
(e) any Service Credit payable to Customer under this Agreement will be issued to Customer
in the calendar month following the Cloud Service Period in which the Service Level Failure occurred.
This Section 5.2 sets forth Ladris' sole obligation and liability and Customer's sole remedy for any
Service Level Failure.
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5.3 Measurement. If the Cloud Services are provided from servers operated and maintained by a
nationally recognized cloud service provider (such as AWS or Azure), then availability will be measured
by such provider's standard processes and formulas therefore. In all other cases, the percentage
Availability shall be calculated according to the following formula:
Percentage of Availability = 100 x (Anticipated Available Minutes — Unavailable Minutes)
Anticipated Available Minutes
In this Percentage of Availability formula:
"Anticipated Available Minutes" means the Total Minutes less the Excluded Minutes.
"Excluded Minutes" means that the total number of minutes the Cloud Services were not available as a
consequence of the exclusions set forth below in Section 5.4, as reasonably determined by Ladris.
"Unavailable Minutes" means the number of minutes during the relevant Cloud Service Period that the
Cloud Services were not available, not including Excluded Minutes.
"Total Minutes" means the total number of minutes in the relevant Cloud Service Period.
5.4 Exceptions. For purposes of calculating the Availability Requirement, the following are
"Exclusions" to the Availability Requirement, and neither the Cloud Services will be considered not
Available nor any Service Level Failure be deemed to occur that is due, in whole or in part, to any:
(a) access to or use of the Cloud Services by Customer or any Authorized User, or using
Customer's or an Authorized User's Access Credentials, in a manner that does not strictly comply with
this Agreement and the Documentation;
(b) Any delay or failure of performance caused in whole or in part by Customer's delay in
performing, or failure to perform, any of its obligations under this Agreement;
(c) Customer's or its Authorized User's Internet connectivity;
(d) Force Majeure Event;
(e) Scheduled Downtime in accordance with Section 5.5; and
(f) any suspension or termination of Customer's or any Authorized Users' access to or use of
the Cloud Services as permitted by this Agreement.
5.5 Scheduled Downtime. Ladris will use commercially reasonable efforts to give Customer at
least five hours prior notice of all scheduled outages of the Cloud Services, "Scheduled Downtime"
shall mean any such scheduled outage for which at least five hours prior notice has been given and
which does not persist for more than 90 consecutive minutes. There shall not be more than one
Scheduled Downtime event per week.
5.6 Cloud Service Support. Basic Cloud Service Support is included in the License Fee set forth
in Attachment 1. Customer may purchase enhanced support for Cloud Services separately at Ladris'
then -current rates.
ARTICLE 6. RESERVED
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ARTICLE 7. SECURITY.
7.1 Ladris Measures and Policies. Ladris will employ security measures in accordance with
Ladris' data privacy and security policy as amended from time to time, (the "Privacy and Security
Policy") a summary of which is available to Customer upon request. Subcontractors which supply
platforms for the operation of Cloud Services may have their own security policies, which may be
available to Customer upon request.
7.2 Prohibited Data. Customer agrees that it shall not submit the following categories of
information (each of the following being "Prohibited Data") to Ladris for processing:
(a) Personal Information without appropriate consent or authorization under applicable Law;
(b) Content or other data (including video) that Customer does not have full rights to copy,
transmit, store, process or distribute;
(c) (i) articles, services and related technical data designated as defense articles or defense
services, (ii) data that is classified and or used on the U.S. Munitions list and (iii) ITAR (International
Traffic in Arms Regulations) related data.
Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited
Data to, or Process any Prohibited Data through, the Cloud Services, the Ladris Systems or any Ladris
Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no
Customer Data constitutes or contains any Prohibited Data.
7.3 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a)
the content and use of all Customer Data; (b) the security and use of Customer's and its Authorized
Users' Access Credentials; and (c) all access to and use of the Cloud Services and Ladris Materials
directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access
Credentials (whether made with or without Customer's knowledge or consent).
ARTICLE 8. FEES; PAYMENT TERMS.
8.1 Fees. This Article 8 applies only to the City of Newport Beach. The City of Newport Beach
shall pay Ladris the fees set forth in the Ladris price list on Attachment 1 of this Agreement (as it may
be revised by Ladris from time to time) (the "Fees") in accordance with this Article 8.
8.2 Fee Increases. Fees are fixed for the first year of this Agreement. Thereafter, Ladris may
increase Fees on the calendar anniversary, if any, of the Effective Date during the remaining Initial
Term of the Agreement in amount equal to the increase in the Consumer Price Index (Average Price
Data) for the prior contract year. Following the expiration of the Initial Term, Ladris may increase its
Fees to Customer by providing Customer with at least 60 days written notice prior to the expiration of
the Initial Term of a revised price list to be effective upon commencement of the Extended Term.
8.3 Taxes. All Fees and other amounts payable by the City of Newport Beach under this
Agreement are net of all applicable taxes, customs charges, duties or other amounts, including freight
and insurance, all of which shall be paid by the City of Newport Beach. Any claim for sales tax or duty
exemption by the City of Newport Beach must be provided to Ladris in writing prior to shipment of
product or access to the Cloud Services, and shall be effective only after Ladris' receipt of all proper
exemption forms.
8.4 Payment. The City of Newport Beach shall pay all Fees in US dollars within thirty (30) days
following the date of the invoice therefore. The City of Newport Beach shall make payments to the
address or account that Ladris may specify in writing from time to time.
8.5 Late Payment. If the City of Newport Beach fails to make any payment when due then, in
addition to all other remedies that may be available, if such payment is not made within 90 days of the
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date when due, Ladris may charge interest on the past due amount at the rate of 1.5% per month or, if
lower, the highest rate permitted under applicable Law.
ARTICLE 9. INTELLECTUAL PROPERTY RIGHTS.
9.1 Acknowledgment. Customer acknowledges that Ladris owns all right, title and interest,
including all Intellectual Property Rights in the Cloud Services, Cloud Service software, Ladris Data,
Ladris Materials, and Ladris Confidential Information. As between Customer and Ladris, Ladris shall
own all intellectual property rights to any derivative works of Cloud Services and Customer shall not
acquire any Intellectual Property Rights with respect to the Cloud Services, Cloud Service software or
Ladris Materials (including Third -Party Materials), except for the limited authorization set forth in
Section 3.1 and any applicable third -party licenses and in each case subject to the restrictions of Section
3.3.
9.2 Open Source Programs. The Cloud Service software may include Open Source Programs.
Any use of Open Source Programs by Customer is subject to and governed solely by the terms and
conditions of the applicable open source license agreement(s). On Customer's written request, Ladris
will provide Customer (at no additional cost) information how to obtain a copy of the source code for
such Open Source Programs in accordance with the terms of the controlling open source license
agreement(s).
9.3 Customer Data. Customer hereby irrevocably grants to Ladris, its Subcontractors and
Ladris Personnel all such rights and permissions in or relating to Customer Data as are necessary or
useful to perform the Cloud Services. In addition, to the extent that Customer may have intellectual
property rights in Ladris Data or Resultant Data, Customer hereby grants to Ladris a perpetual, royalty
free, non-exclusive worldwide license to reproduce, use and license and sublicense such intellectual
property rights for use in connection with the Cloud Services and such other products and services as
may be developed and marketed by Ladris, its successors or assigns.
9.4 Evacuation Maps. Customer shall supply Ladris with evacuation maps and zones it uses in
planning evacuation routes in the geographic area served by Customer. Customer represents and
warrants that such evacuation maps and evacuation zones are in the public domain, or alternatively
Customer hereby irrevocably grants to Ladris a perpetually, royalty -free, worldwide license to
reproduce, use, license and sublicense such evacuation maps and zones with respect to the Cloud
Services and as embedded in such other products and services as may be developed and marketed by
Ladris.
9.4 Feedback. If Customer or any of its employees or contractors submits, orally or in writing,
ideas, suggestions or recommended changes to the Cloud Services or Documentation, including without
limitation, new features or functionality relating thereto ("Feedback"), Ladris is free to use such
Feedback irrespective of any other obligation or limitation between the parties governing such
Feedback. Customer hereby assigns to Ladris on Customer's behalf, and on behalf of its employees,
contractors and/or agents, all right, title, and interest in, and Ladris is free to use, without any attribution
or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property
rights contained in the Feedback, for any purpose whatsoever, although Ladris is not required to use any
Feedback. Notwithstanding the provisions of Article 10 below (Confidentiality), Feedback will not be
considered Confidential Information.
9.5 U.S. Government. The Cloud Services are a "Commercial Item," as that term is defined at 48
C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software
documentation," as such terms are used in 48 C.F.R. 12.212, 48 C.F.R. 227.7202, and 48 C.F.R.
12.211, respectively. Consistent with 48 C.F.R. 12.212, and 48 C.F.R. 227.7202-1 through 227.7202-4,
all U.S. Government end users' rights to use, modify, reproduce, release, perform, display, or disclose
the Cloud Services and the Documentation are as provided by this Agreement. This U.S. Government
Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, is in lieu of, and supersedes,
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any other FAR, DFARS, or other clause or provision that addresses Government rights in computer
software, computer software documentation or technical data related to the Cloud Services and
Documentation.
ARTICLE 10. CONFIDENTIALITY.
10.1 Confidential Information. In connection with this Agreement each Party (as the "Disclosing
Party") may disclose or make available Confidential Information to the other Party (as the "Receiving
Party"). "Confidential Information" means information of the Disclosing Party which (a) is in
written, graphic, machine readable or other tangible form and is marked "Confidential," "Proprietary"
or in some other manner to indicate its confidential nature and, (b) such information as would be
considered confidential based on the circumstances surrounding its disclosure by a reasonable person
familiar with the Disclosing Party's business and the industry in which the Disclosing Party operates. If
given orally, Confidential Information may be, but is not required to be, confirmed in writing as having
been disclosed as confidential or proprietary within 30 days after the oral disclosure. Confidential
Information includes in all cases information and data which a Party has received from others that may
be made known to the other Party and which such Party is obligated to treat as confidential or
proprietary.
Confidential Information that -consists of software (including source and object code), algorithms,
design details, data structures, specifications, hardware configuration, computer programs, engineering
and manufacturing information and all other information of a technical nature shall be considered
"Technical Confidential Information." All other Confidential Information, including agreements
with third parties, business plans, products, marketing information, research, development, design
details and specifications, financial information, procurement requirements, customer lists, business
forecasts, and sales information shall be considered "Business Confidential Information."
Without limiting the foregoing, all product and other specifications, unpublished documentation, non-
public marketing materials, the terms of this Agreement and the discounts provided hereunder are and
will remain the Confidential Information of both parties.
10.2 Exclusions. Except for Personal Information or any third -party information that the Receiving
Party is under a contractual or other binding obligation to maintain in confidence, Confidential
Information does not include information that the Receiving Party can demonstrate by written or other
documentary records:
(a) was rightfully known to the Receiving Party without restriction on use or disclosure prior
to such information's being disclosed or made available to the Receiving Party;
(b) was or becomes generally known by the public other than by the Receiving Parry's or any
of its Representatives' noncompliance with this Agreement;
(c) was or is received by the Receiving Party on a non -confidential basis from a third party
that, to the Receiving Parry's knowledge, was not or is not, at the time of such receipt, under any
obligation to maintain its confidentiality; or
(d) the Receiving Party can demonstrate by written or other documentary records was or is
independently developed by the Receiving Party without reference to or use of any Confidential
Information.
10.3 Protection of Confidential Information. The Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or
perform its obligations under and in accordance with this Agreement except as may be permitted by and
subject to its compliance with Section 10.4 (Compelled Disclosures).
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(b) safeguard the Confidential Information from unauthorized use, access or disclosure using
at least the degree of care it uses to protect its similarly sensitive information and in no event less than a
reasonable degree of care;
(c) not disclose or permit access to Confidential Information other than to those of its
Representatives who:
(i) need to know such Confidential Information for purposes of the Receiving Party's
exercise of its rights or performance of its obligations under and in accordance with
this Agreement;
(ii) have been informed of the confidential nature of the Confidential Information and the
Receiving Party's obligations under this Article 10;
(iii) are bound by written confidentiality and restricted use obligations at least as
protective of the Confidential Information as the terms set forth in this Article 10; and
(iv) ensure its Representatives' compliance with, and be responsible and liable for any of
its Representatives' non-compliance with, the terms of this Article 10.
10.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by
applicable Law to disclose any Confidential Information then, to the extent permitted by applicable
Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in
writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or
waive its rights under Section 10.3 (Protection of Confidential Information) and (b) provide reasonable
assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other
limitations on disclosure.
10.5 Period of Confidentiality and Return of Information. A Receiving Party's obligations with
respect to (i) Technical Confidential Information and Business Confidential information that contains
Ladris trade secrets, shall survive indefinitely and (ii) Business Confidential Information that does not
constitute a Ladris trade secret, shall survive for three (3) years following termination of this
Agreement. Upon termination of this Agreement, a Receiving Party shall, within 7 days return to the
Disclosing Party, or at the Disclosing Party's written request destroy, all documents and tangible
materials containing or based on any Confidential Information; and (ii) permanently erase all
Confidential Information from all systems that Customer directly or indirectly controls.
ARTICLE 11. TERM AND TERMINATION.
11.1 Initial Term. The initial term of this Agreement begins on April 1, 2023 and, unless
terminated earlier pursuant the provisions hereof, ends on December 31, 2023 ("Initial Term").
11.2 Credit for Orange County. Prior to expiration of the Initial Term, the Parties may elect to
extend the term of this Agreement via a written amendment duly executed by both Parties ("Extended
Term" and, collectively with the Initial Term, the "Term"). The Parties acknowledge that a quote to
Orange County for an expanded license to the Cloud Services was based upon the execution of this
Agreement by March 31 St, 2023 for, in part, evaluation purposes by the County. Ladris agrees to honor
the quotes provided to Orange County in connection with this Agreement until and through January
30", 2024.
11.3 Termination. In addition to any other express termination right set forth elsewhere in this
Agreement:
(a) Ladris may terminate this Agreement, effective on written notice to Customer, if
Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days
Ladris Confidential Information ver.12-14-2022 Page 10 of 26
after Ladris' delivery of written notice thereof, or (ii) breaches any of its obligations under Section 3.3
(Additional Limitations and Restrictions), Section 7.2 (Prohibited Data) or Article 10 (Confidentiality).
(b) either Party may terminate this Agreement, effective immediately upon written notice to
the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its
debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary
bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any
domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for
the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar
agent appointed by order of any court of competent jurisdiction to take charge of or sell any material
portion of its property or business.
11.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement,
except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either Party to the other
hereunder will immediately terminate;
(b) Ladris may disable all Customer and Authorized User access to the Cloud Services;
(c) Customer shall immediately cease all use of any Cloud Services and Ladris Materials and
(i) within 7 days return to Ladris, or at Ladris' written request destroy, all documents and tangible
materials containing or based on any Ladris Materials; (ii) permanently erase all Ladris Materials from all
systems Customer directly or indirectly controls; and (iii) comply with the comparable provisions with
respect to the return, destruction, or erasure set forth in Section 10.5 above;
(d) if Ladris terminates this Agreement pursuant to Section 11.3(a) or Section 11.3(b),
Customer shall pay all Fees previously accrued but not yet paid for services rendered prior to termination,
on receipt of Ladris' invoice therefor.
(e) for a period of two weeks following termination, Customer may access and download any
previously saved evacuation scenarios, and related data.
11.5 Surviving Terms. The provisions set forth in the following sections, and any other right or
obligation of the parties in this Agreement that, by its nature, should survive termination or expiration
of this Agreement, will survive any expiration or termination of this Agreement: Sections 3.2 and 3.3
(Prohibitions and Additional Limitations and Restrictions), Article 9 (Intellectual Property) Article 10
(Confidentiality), Section 11.4 (Effect of Expiration or Termination), Section 11.5 (Surviving Terms),
Article 12 (Representations and Warranties), Article 13 (Indemnification), Article 14 (Limitations on
Liability) and Article 16 (Miscellaneous).
ARTICLE 12. REPRESENTATIONS AND WARRANTIES.
12.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party
that:
(a) the execution of this Agreement by its representative whose signature is set forth at the end
of this Agreement has been duly authorized by all necessary corporate, governmental or other
organizational action of such Party; and
(b) when executed and delivered by both parties, this Agreement will constitute the legal,
valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
12.2 Additional Customer Representations and Warranties. (a) Customer represents and warrants
to Ladris that Customer has and will have the necessary rights and consents in and relating to the
Customer Data so that, as received by Ladris and processed in accordance with this Agreement and the
Specifications for the Cloud Based Services, Ladris will not infringe, misappropriate or otherwise
Ladris Confidential Information ver.12-14-2022 Page 11 of 26
violate any US copyright, or any privacy, data security or other rights of any third party or violate any
applicable Law.
(b) Customer may supply Ladris with evacuation maps and zones/or it uses in planning evacuation
routes in the geographic area served by Customer. Customer represents and warrants that such
evacuation maps and evacuation zones are in the public domain.
12.3 Accuracy of Customer Data. Customer acknowledges that Ladris will have no responsibility
for the content, accuracy or completeness of any Customer Data.
12.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN SECTION 12.1, ALL CLOUD SERVICES AND LADRIS MATERIALS ARE PROVIDED
"AS IS" AND LADRIS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, AND LADRIS SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR
TRADE PRACTICE.
WITHOUT LIMITING THE FOREGOING, LADRIS MAKES NO WARRANTY OF ANY KIND
THAT THE CLOUD SERVICES OR LADRIS MATERIALS WILLL MEET CUSTOMER
REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT,
BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE
ERROR FREE.
ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD -PARTY
MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD -PARTY OWNER OF THE
THIRD -PARTY MATERIALS. LADRIS MAKES NO REPRESENTATION OR WARRANTY
THERETO.
NOTWITHSTANDING THE FOREGOING, LADRIS REPRESENTS THAT IN PROVIDING CLOUD
SERVICES IT HAS AND SHALL OBSERVE AT LEAST THAT STANDARD OF CARE, SKILL
AND DILIGENCE GENERALLY OBSERVED BY AN EXPERIENCED PROFESSIONAL PERSON
OR FIRM IN THE PERFORMANCE OF SIMILAR SERVICES, AND THAT THE CLOUD
SERVICVES WILL AT LEAST SUBSTANTIALLY CONFORM WITH THE SPECIFICATIONS, BE
FREE OF MATERIAL DEFECTS, AND BE AT LEAST OF FAIR AND AVERAGE QUALITY IN
THE INDUSTRY.
ARTICLE 13. INDEMNIFICATION.
13.1 Ladris Indemnification. Ladris shall indemnify, defend and hold harmless Customers and
Customer's officers, directors, and employees (each, a "Customer Indemnitee") from and against any
and all Losses incurred by such Customer Indemnitee resulting from a final judgment in any suit or
proceeding by a third party to the extent that such Losses arise from any allegation in such action based
on Ladris conduct in the performance of this Agreement, or that Customer's or an Authorized User's use
of the Cloud Services (excluding Customer Data and Third Party Materials) in compliance with the
Documentation and this Agreement infringes a United States copyright, trademark or trade secret. The
foregoing obligation does not apply to any action or proceeding or Losses arising out of or relating to
any:
(a) access to or use of the Cloud Services or Ladris Materials in combination with any
hardware, system, software, network or other materials or services not provided or authorized in the
Specifications or otherwise in writing by Ladris;
(b) failure to timely implement any modifications, upgrades, replacements or enhancements
made available to Customer by or on behalf of Ladris; or
Ladris Confidential Information ver.12-14-2022 Page 12 of 26
(c) act, omission or other matter described in Section 13.2(a) through Section 13.2(c), whether
or not the same results in any action against or Losses by any Ladris Indemnitee.
THIS SECTION 13.1 SETS FORTH CUSTOMER'S SOLE REMEDIES AND LADRIS' SOLE
LIABILITY AND OBLIGATION FOR ANY FINAL JUDGMENTS THAT THIS AGREEMENT OR
THE CLOUD SERVICES INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY
THIRD -PARTY INTELLECTUAL PROPERTY RIGHT SET FORTH ABOVE.
13.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Ladris and
its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees
(each, a "Ladris Indemnitee") from and against any and all Losses incurred by such Ladris Indemnitee
in connection with any action or proceeding by a third party (other than an Affiliate of a Ladris
Indemnitee) that arise out of or relate to any:
(a) processing of Customer Data by or on behalf of Ladris in accordance with this Agreement;
(b) disclosure or exposure of Personal Information to Ladris in violation of applicable Law; or
(c) transmission of Prohibited Data to Ladris.
13.3 Mitigation. If any of the Cloud Services are, or in Ladris' opinion are likely to be, claimed to
infringe, misappropriate or otherwise violate any third -party Intellectual Property Right, or if
Customer's or any Authorized User's use of the Cloud Services is enjoined or threatened to be enjoined,
Ladris may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Cloud Services and Ladris Materials
materially as contemplated by this Agreement;
(b) modify or replace the Cloud Services in whole or in part, to seek to make the Cloud
Services (as so modified or replaced) non -infringing, while providing materially equivalent features and
functionality, in which case such modifications or replacements will constitute Cloud Services under this
Agreement; or
(c) by written notice to Customer, terminate this Agreement and require Customer to
immediately cease any use of the Cloud Services and Ladris Materials, provided that if such termination
occurs prior to the expiration of any period with respect to which Customer has paid a Fee, Customer will
be entitled to a pro-rata refund of any portion of such period following termination.
ARTICLE 14. LIMITATIONS OF LIABILITY.
14.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.4,
IN NO EVENT WILL LADRIS OR ANY OF ITS LICENSORS, SUPPLIERS OR
SUBCONTRACTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND
OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR
PROFIT; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF
THE CLOUD SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE
CREDITS PURSUANT TO SECTION 5.2, OR (C) ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS
OF WHETHER LADRIS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR
DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
14.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN
SECTION 14.4, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LADRIS
AND ITS SUPPLIERS AND SUBCONTRACTORS UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY,
Ladris Confidential Information ver.12-14-2022 Page 13 of 26
INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY AND OTHERWISE, EXCEED THE HIGHER OF (i) THE SUM OF ALL FEES PAID
BY CUSTOMER UNDER THIS AGREEMENT FOR THE 12 MONTHS IMMEDIATELY
PROCEEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY OR (ii) $500. THE
FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED
OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.3 THE PURPOSE OF THE FOREGOING PROVISIONS OF SECTIONS 14.1 AND
14.2 IS TO LIMIT LADRIS' LIABILITY UNDER THIS AGREEMENT AND, IN THE
ABSENCE OF THESE PROVISIONS, LADRIS WOULD NOT HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT.
14.4 Exceptions. The exclusions and limitations in Section 14.1 and Section 14.2 do not apply to
Ladris' obligations under Article 10 (Confidentiality) or liability for Ladris' gross negligence or willful
misconduct.
ARTICLE 15. RESERVED
ARTICLE 16. MISCELLANEOUS.
16.1 Relationship of the Parties. The relationship between the parties is that of independent
contractors. Nothing contained in this Agreement shall be construed as creating any agency,
partnership, joint venture or other form of joint enterprise, between the parties.
16.2 Force Majeure Event. Neither parry shall be liable or responsible to the other party, nor be
deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or
performing any term of this Agreement, when and to the extent such failure or delay is caused by:(a)
acts of God; (b) flood, fire, or explosion; (c) war, terrorism, invasion, riot, or other civil unrest; (d)
embargoes or blockades in effect on or after the date of this Agreement; (e) national or regional
emergency; (f) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (g) internet
outage and denial of service attacks (each of the foregoing, a "Force Majeure"). A party may terminate
this Agreement if a Force Majeure event affecting the other party continues substantially uninterrupted
for a period of forty-five (45) Business Days or more.
Press Release. The City of Newport Beach authorizes Ladris to use its name and logo in its list of
customers. The parties agree that either party or both may issue a mutually acceptable news release
regarding Customer's use of the applicable Cloud Services. Each parry's approval of such news release
will not be unreasonably withheld or delayed. Once a press release has been issued, Ladris may
publicly refer to Customer as being a customer of Ladris, and only in relation to this Agreement except
as otherwise authorized by Ladris.
16.3 Notices. All notices, requests, consents, claims, demands and waivers under this Agreement
must be in writing and addressed to a Party as follows (or to such other address or such other person
that such Party may designate from time to time in accordance with this Section 16.2):
If to Ladris: Attention:
Email: service@ladris.com
Ladris Technologies, Inc.
10090 Stable Lane
Nevada City, California 95959
With a copy to:
Eric Little, Esq.
1793 East Main Street,
Ladris Confidential Information ver.12-14-2022 Page 14 of 26
Grass Valley, CA 95945
If to Customer: City of Newport Beach
Newport Beach Police Department
E-mail: keing@nbpd.org
Attention: Katie Eing
Notices sent in accordance with this Section 16.3 will be deemed effectively given: (a) when received, if
delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally
recognized overnight courier, signature required; (c) when sent, if by facsimile with confirmation of
transmission), if sent during the addressee's normal business hours, and otherwise on the next business
day; and (d) on the fourth day after the date mailed by certified or registered mail, return receipt
requested, postage prepaid.
16.4 Entire Agreement. This Agreement, together with any other documents incorporated herein
by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter
of this Agreement and supersedes all prior and contemporaneous understandings, agreements,
representations and warranties, both written and oral.
16.5 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or
otherwise transfer any of its obligations or performance, under this Agreement, in each case whether
voluntarily, involuntarily, by operation of law or otherwise, without Ladris' prior written consent,
which shall not be unreasonably withheld.
16.6 Amendment and Modification; No Waiver. No amendment to or modification of or
rescission, termination or discharge of this Agreement is effective unless it is in writing, and signed by
each Party (which signature may be by counterpart). No waiver by any Party of any of the provisions
hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving.
16.7 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of
this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
16.8 Conflicts. In the event of any conflict between this Agreement and any Ladris policy posted
online, including without limitation the privacy policy, the terms of this Agreement will govern.
16.9 Construction. The parties agree that the terms of this Agreement result from negotiations
between them. This Agreement will not be construed in favor or against either Party by reason of
authorship.
16.10 Governing Law. This Agreement shall be governed in all respects by the laws of the United
States of America and by the laws of the State of California, as such laws are applied to agreements
entered into and to be performed entirely within California between California residents without giving
effect to any choice or conflict of law provision or rule that would require or permit the application of
the laws of any jurisdiction other than those of the State of California.
16.11 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by
such party of any of its obligations under Article 10 (Confidentiality) would cause the other party
irreparable harm for which monetary damages would not be an adequate and agrees that, in the event of
such breach or threatened breach, the other party will be entitled to equitable relief, including a
restraining order, an injunction, specific performance and any other relief that may be available from
any court, without any requirement to post a bond or other security, or to prove actual damages or that
monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to
all other remedies that may be available at law, in equity or otherwise.
Ladris Confidential Information ver.l2-14-2022 Page 15 of 26
16.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
16.13 Insurance. Ladris shall obtain, provide and maintain at its own expense during the term
of this Agreement policies of insurance of the type, amounts, terms and conditions described in the
Insurance Requirements attached hereto as Attachment 4, and incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 1(0 /2.3
By:
A on C. Harp a - it, - z3 wr_
City Attorney
ATTEST: J
Date: / ZGL3
M
Leilani I. Brow
City Clerk
CITY OF NEWPORT BEACH,
a California mynicipal corporation
Date: 20
By:
Gr e . Leung
C04anager
LADRIS TECHNOLOGIES, INC.,
California Corporation
Date:
Signed in Counterpart
By:
Leo Zlimen
Chief Executive Officer
n
Ladris Confidential Information ver.12-14-2022 Page 16 of 26
16.12 Counter an rts. This Agreement may be executed in tNvo (2) or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
16.13 Insurance. Ladris shall obtain, provide and maintain at its own expense during the term
of this Agreement policies of insurance of the type, amounts, terms and conditions described in the
Insurance Requirements attached hereto as Attachment 4, and incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a Californiq mu icipal corporation
Date:�Z Date: ' + 3 t -Zp?•�
A on C. Harp 3 ►� E3 w�- Gr Leung
City Attorney Ci anager
ATTEST: LADRIS TECHNOLOGIES, INC., a
Date: California Corporation
Date: 3/31 / 2623
By: By:
Leilani I. Brown Leo Zlimen
City Clerk Chief Executive Officer
I aJri, (lmlid"Illial Inliunialion %ri P I I _'1i'.' I''hk, 10 of l6
Attachment 1
SCHEDULE OF CHARGES AND PAYMENTS
Pilot: Harbor Region
Extended Term: County -Wide
Cities
5
35 + County EM
Seats
10
75 (2 per city + 5 for County EM)
Simulations
10M
75M
Products
Ladris Operator: Cloud -Hosted
Ladris Operator: Cloud -Hosted
Modules
Evacuation Modeling Suite Pro,
Infrastructure Data Studio Pro,
GIS Integrations Hub
Evacuation Modeling Suite Pro,
Infrastructure Data Studio Pro,
GIS Integrations Hub
Term
9 Months
3 Years
Commences
April 1st, 2023
Dec. 31 ", 2023, immediately
upon conclusion of trial
Fees*
$60K for trial
$490K per year (good through
January 30th, 2024)
Ladris Confidential Information ver.12-14-2022 Page 17 of 26
Attachment 2
CLOUD SERVICES
FEATURE LIST
Modules: Operator Evacuations Simulator, Operator Data Studio
• Model "what -if' hypothetical evacuation scenarios at -will for any area within the borders of the
Harbor Cities.
• Model radial, polygon, and zoned -based evacuations
• Model impacts of new infrastructure, including additional user -defined roads, intersections,
junctions, & addresses
• Model impact of varying regional occupancy scenarios, with occupancy being a parameter
defined by the user (allowing for simulations using permanent population addresses as well as
temporary spikes/decreases in transient populations)
• Model impacts of varying evacuation departure timeframes, including zone -specific departure
start and end times
• Model impacts of high -population events (beyond 100% capacity)
• Model impacts of segment -by -segment capacity changes, speed differences, blockages, and
contraflow
• Model impacts of varying vehicle capacities for specific addresses (stadiums, schools, etc.)
• Project and visualize traffic flow rates, congestion, and pinch points
• Project evacuation time ranges with statistical analysis
• Inform models with assumptions for:
o Vehicles per address
o Heavy vehicles per address (heavy vehicles are a broad class of vehicle that may
include trucks, trailers, and other large equipment)
o Varying global speed assumptions (freeway, highway, arterial, residential,
service roads)
• Identify dead-end roads (roads with one way in/one way out)
• Generate reports & visualizations for scenarios that have been modeled
• Export raw simulation results as GIS-compatible data
• Create additional road, address and junction/intersection datasets at -will based on existing
datasets
• Mix and match combinations of road, address and junction/intersection datasets when simulating
• Integrate GIS Feature Layers directly from ArcGIS Online
• Source additional GIS data feeds:
o Live traffic flows
o Live traffic incident reports
o Wind and weather overlays
o Terrain overlays
Ladris Confidential Information ver.12-14-2022 Page 18 of 26
Attachment 3
CLOUD SERVICES
SUPPORT AND MAINTENANCE
1.0 Scope of Agreement
1 This Attachment covers the maintenance and support of the Cloud Services. This Agreement
provides maintenance services only with respect to Software, including third party
software, supplied by Ladris to Customer pursuant to the terms of the Terms of Service
Agreement. This Agreement does not provide for maintenance services for any third -party
software not provided by Ladris to Customer or for any hardware.
1.2 Ladris' obligation to provide Support Services shall extend to the current Release and prior
Versions whose Release number begins with the same number or immediately preceding
number as the current Release. For example, if the current Release is 4.5, Ladris will
support only those Versions between 3.x and 4.5. If Customer desires support for earlier
Versions of the Software, such support may be treated by Ladris as additional consulting
services for which Customer will be billed at Ladris' then -current time -and -materials
rates. Customer understands that its implementation of a new Version may require
Customer to upgrade its Computer System.
2.0 Data Backup, Retention and Disposal. Ladris shall be responsible for creating and maintaining
timely, accurate and readable electronic back-ups of all data, program and system files.
Periodically, in accordance with information technology best practices, Ladris shall restore such
backups to a test server to validate that the data backups are recoverable without lost or corrupted
data.
Using appropriate and reliable storage media, Ladris will back up Customer data daily and retain
such backup copies for a minimum of thirty-six months, or as consistent with requirements in
federal, state and local law. At the end of that time period and at Customer's election, Ladris will
direct the Hosting Vendor to destroy or overwrite the backup copies. Upon Customer's request,
Ladris will supply Customer with a certificate indicating the nature of the storage media destroyed,
the date the backups were destroyed or overwritten, and the method of destruction used.
3.0 Disaster Recovery
The Ladris will maintain a Disaster Recovery Plan with respect to the services provided to the
Customer. For purposes of this Agreement, a "Disaster" shall mean any unplanned interruption
of the operation of or inaccessibility to the Ladris' service in which the Ladris, using reasonable
judgment, requires relocation of processing to a recovery location. The Ladris shall notify the
Customer as soon as possible after the Ladris deems a service outage to be a Disaster. The Ladris
shall move the processing of the Customer's services to a recovery location as expeditiously as
possible and shall coordinate the cut -over. During a disaster, optional or on -request services
shall be provided by the Ladris only to the extent adequate capacity exists at the recovery
location and only after stabilizing the provision of base services.
4.0 Administrative Functions Performed by Ladris. Ladris shall provide certain limited
administrative services regarding the maintenance of the Software including, (i) setting
permissions, (ii) adding, modifying or deleting attributes, events, statutes, program and case types
Ladris Confidential Information ver.12-14-2022 Page 19 of 26
and lookup items, (iii) adding and deleting case types, and (iv) creating and modifying workflows,
(v) adding and modifying assessments and related scoring.
5.0 Covered Maintenance
Ladris will provide to Customer: (a) all services required to ensure that the Software operates in
conformity with all Specifications; and (b) all Enhancements developed by Ladris for the Software
and related Documentation during the Term of this Agreement. Covered Maintenance Services do
not include the costs of accessories and expendable supplies necessary to operate the Software,
such as magnetic tape cards, optical disks, disk packs, paper, and similar items, and such items are
not provided free of charge by Ladris hereunder.
6.0 Customer Obligations
6.1 Customer may designate up to five (5) persons by whom requests by Customer for Support
Services may be made ("Support Team"). Ladris shall not be required to accept calls or
requests from anyone other than a designated contact person. Customer may change its
designated contact person, or request that additional people be made contact persons, at
any time upon notice to Ladris.
6.2 Customer shall implement and follow the reasonable written instructions of Ladris regarding
operation of the Software.
6.3 Customer shall, at its own expense, protect the security of its Computer System and adopt
policies and practices needed to prohibit unauthorized access to the Computer System.
Ladris shall not be responsible for any security breach of Customer's Computer System
and expressly disclaims any liability for loss or damage caused by the unauthorized access
to Customer's Computer System other than that which is caused by an employee of Ladris.
Ladris shall ensure that the Hosting Services Agreement includes provisions ensuring
security of the Software and Data.
6.4 Software Administration. Customer, as a general matter, shall perform all tasks associated with
the administration of the Software, other than those that are assigned to Ladris, including
without limitation, adding, modifying, removing and otherwise maintaining users,
templates, lookups, and logons and passwords,
6.5 Communications Equipment. Customer shall, at its sole expense, install and maintain
communications equipment that will permit Customer to have high speed internet access
to the Software. Customer acknowledges that maintenance of the appropriate
communications equipment is a condition precedent to Ladris' provision of use for the
Software.
7.0 Service Level Agreement
1 Ladris will maintain a website accessible by Customer, which contains information concerning
the Software and Support Services.
7.2 Ladris will respond to Customer requests for software support services regarding the licensed
software in accordance with the procedures identified below. In each case, Customer may
describe and submit notice of the support need by telephone, facsimile or electronic mail.
7.3 All Ladris staff assigned to provide services to Customer will be appropriately qualified by
education, training and experience to deliver those services, and will be familiar with the
functional capabilities of the Software.
Ladris Confidential Information ver.12-14-2022 Page 20 of 26
7.4 Telephone Support includes: (i) remote diagnostics; (ii) service desk and dispatch; (iii) question
and answer consulting; and, (iv) non -chargeable user error remedies. Ladris shall provide
a toll -free maintenance telephone number. Remote diagnostics equipment is required at
Customer's location for remote support, which equipment is to be obtained by Customer
at its sole expense.
Ladris shall provide Customer with telephone support services for Software from 8:00
a.m. to 5:00 p.m. Pacific Time, Monday through Friday, excluding Customer -recognized
holidays.
7.5 Response Policy. Ladris shall respond to any Errors reported by Customer based on the priority
code assigned to each such Error. Customer shall identify the priority code when it initially
reports the Error to Ladris. Ladris may, in its reasonable discretion, reclassify the Error
after its initial investigation. In the event Ladris does not meet the service level response
for the Error as described in the table below, the Customer may request to escalate the
Error to a higher priority code, which request the Ladris shall not unreasonably deny.
Priority Levels and Response Times: Evacuations Simulator
(Support Tier: Basic)
Priority Level
Service Level Goals
Software
Urgent
Response Time
Within 8 Business Hours
Initial Status Update
Within 16 Business Hours
Workaround Time
Within 2 Business Days
Restore Time
Within 8 Business Days
High
Response Time
Within 16 Business Hours
Initial Status Update
Within 1 Business Day
Workaround Time
Within 3 Business Days
Restore Time
Within 12 Business Days
Ladris Confidential Information ver.12-14-2022 Page 21 of 26
Normal
Response Time
Within 32 Business Hours
Initial Status Update
Within 64 Business Hours
Workaround Time
Within 8 Business Days
Restore Time
As mutually agreed
Low
Response Time
Within 64 Business Hours
Initial Status Update
Within 4 Business Days
Workaround Time
As mutually agreed
Restore Time
As appropriate
Priority Level
Definition
Trouble condition where the system is completely out of
Urgent
service or is causing significant business impact to the
Customer and no immediate workaround is available
High
System affected with intermittent loss of simulation
capability or a problem that significantly affects deployment
Normal
System issues alerts and/or exhibits unexpected behavior
without affecting core functionality
Low
Technical consultations, feature suggestions
Ladris Confidential Information ver.12-14-2022 Page 22 of 26
Attachment 4
INSURANCE REQUIREMENTS
1. Provision of Insurance. Without limiting Ladris (herein, Consultant) indemnification
of City, and prior to commencement of Work, Consultant shall obtain, provide and
maintain at its own expense during the term of this Agreement, policies of insurance
of the type and amounts described below and in a form satisfactory to City.
Consultant agrees to provide insurance in accordance with requirements set forth
here. If Consultant uses existing coverage to comply and that coverage does not
meet these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders' Rating of A- (or
higher) and Financial Size Category Class VI (or larger) in accordance with the latest
edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability Insurance
with limits of at least one million dollars ($1,000,000) each accident for bodily
injury by accident and each employee for bodily injury by disease in
accordance with the laws of the State of California, Section 3700 of the Labor
Code.
Consultant shall submit to City, along with the certificate of insurance, a Waiver
of Subrogation endorsement in favor of City, its City Council, boards and
commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with coverage
at least as broad as provided by Insurance Services Office form CG 00 01, in
an amount not less than one million dollars ($1,000,000) per occurrence, two
million dollars ($2,000,000) general aggregate. The policy shall cover liability
arising from premises, operations, personal and advertising injury, and liability
assumed under an insured contract (including the tort liability of another
assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
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vehicles, in an amount not less than one million dollars ($1,000,000) combined
single limit each accident.
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of one
million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in
the aggregate. Any policy inception date, continuity date, or retroactive date
must be before the Effective Date of this Agreement and Consultant agrees to
maintain continuous coverage through a period no less than three years after
completion of the Services required by this Agreement.
E. Cyber Liability. Contractor shall maintain cyber liability insurance with limits of
not less than one million dollars ($1,000,000) per occurrence and two million
dollars ($2,000,000) annual aggregate covering (1) all acts, errors, omissions,
negligence, infringement of intellectual property, (2) network security and
privacy risks, including but not limited to unauthorized access, failure of
security, breach of privacy perils, wrongful disclosure, collection, or negligence
in the handling of confidential information, privacy perils, including coverage
for related regulatory defense and penalties, and (3) data breach expenses
payable whether incurred by City or Contractor, including but not limited to
consumer notification, whether or not required by law, computer forensic
investigations, public relations and crisis management firm fees, credit file or
identity monitoring or remediation services, in the performance of services for
City or on behalf of City hereunder.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to
this Agreement shall be endorsed to waive subrogation against City, its City Council,
boards and commissions, officers, agents, volunteers and employees or shall
specifically allow Consultant or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a loss. Consultant
hereby waives its own right of recovery against City, and shall require similar written
express waivers from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability, excess
liability, pollution liability, and automobile liability, if required, but not including
professional liability, shall provide or be endorsed to provide that City, its City Council,
boards and commissions, officers, agents, volunteers and employees shall be
included as additional insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary basis
and shall not require contribution from any insurance or self-insurance maintained by
City.
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D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days'
notice of cancellation (except for nonpayment for which ten (10) calendar days' notice
is required) or nonrenewal of coverage for each required coverage.
5. Additional Aqreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by a
person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or reduced,
Consultant shall, within ten (10) days after receipt of written notice of such
cancellation or reduction of coverage, file with the City evidence of insurance
showing that the required insurance has been reinstated or has been provided
through another insurance company or companies. City reserves the right to
require complete, certified copies of all required insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time during
the term of the Agreement to change the amounts and types of insurance
required by giving Consultant sixty (60) calendar days' advance written notice
of such change. If such change results in substantial additional cost to
Consultant, City and Consultant may renegotiate Consultant's compensation.
C. Right to Review Subcontracts. Consultant shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated herein,
and Consultant shall ensure that City is an additional insured on insurance
required from subcontractors. For CGL coverage, subcontractors shall provide
coverage with a format at least as broad as CG 20 38 04 13.
D. Enforcement of Agreement Provisions. Consultant acknowledges and agrees
that any actual or alleged failure on the part of City to inform Consultant of non-
compliance with any requirement imposes no additional obligations on City nor
does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by
any insurance. Specific reference to a given coverage feature is for purposes
of clarification only as it pertains to a given issue and is not intended by any
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party or insured to be all inclusive, or to the exclusion of other coverage, or a
waiver of any type. If the Consultant maintains higher limits than the minimums
shown above, the City requires and shall be entitled to coverage for higher
limits maintained by the Consultant. Any available insurance proceeds in
excess of the specified minimum limits of insurance and coverage shall be
available to the City.
F. Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-insurance
will not be considered to comply with these requirements unless approved by
City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have the
right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper evidence
of insurance is provided. Any amounts paid by City shall, at City's sole option,
be deducted from amounts payable to Consultant or reimbursed by Consultant
upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or liability
by such notice, but has the right (but not the duty) to monitor the handling of
any such claim or claims if they are likely to involve City.
Consultant's Insurance. Consultant shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the Work.
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