HomeMy WebLinkAboutC-4692 - Accounting Softwarel
CLEARWATER
A N A L Y T I C S
May 3, 2023
City of Newport Beach
3300 Newport Blvd
PO Box 1768
Newport Beach, CA 92658-8915
Clearwater's pricing effective July 15t, 2023.
To Whom It May Concern,
On March 29, 2023, Clearwater sent notice of its intention to raise fees effective July 1, 2023. That letter erroneously
noted the MSA execution date between Clearwater and City of Newport Beach as April 41", 2018; the correct execution
date for the MSA between Clearwater and City of Newport Beach is November 18th, 2010. The fee change of 5.8%
previously described by Clearwater will still be effective July 1, 2023.
Prior to 07/01/23
Effective 07/01/23
Annual Minimum Fee
$ 15,000.00
$ 15,870.00
Core Clearwater Fees —Tier 1
1.03200 by
1.09186 by
You will see the impact of this pricing change in the invoice received in August. To indicate that you understand and
agree to this fee increase, please have an authorized signatory of City of Newport Beach execute and return this letter
to Clearwater within 15 business days from the date of this letter.
If you have questions about any of the information in this Notice, please contact our corporate pricing team at
Corp Pricing@clearwateranalytics.com.
Sincerely,
Alex Spiegel
Corporate Pricing
Clearwater Analytics
City of Newport Beach
B
Printed Name:
Title:l,1
Date:
GLOBAL HEADQUARTERS: 777 W. Main Street, Suite 900, Boise, ID 83702 MAIN: +1208 918 2400 clearwateranalytics.com
CLEAR;INATER
A N A L Y T I C S
March 8, 2022
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Clearwater's pricing effective July 1'Y, 2022.
To Whom It May Concern,
This letter serves notice that the Core Fees as outlined in the MSA executed on 11/3/2010 between Clearwater
and City of Newport Beach, will be increased by 3.2%, effective July 1't, 2022. The change to the fee scheduled
is outlined below:
Prior to 07/01/22
Effective 07/01/22
Annual Minimum Fee
$15,000
$15,000
Core Clearwater Fees
1.0000 by
1.0320 by
You will see the impact of this pricing change in the invoice received in August 2022. To indicate that you
understand and agree to this fee increase, please have an authorized signatory of City of Newport Beach
execute and return this letter to Clearwater within 15 business days from the date of this letter.
If you have questions about any of the information in this Notice, please contact our corporate pricing team at
CorpPricing@clearwateranalytics.com.
Sincerely,
Kasey Snethen
Corporate Pricing
Clearwater Analytics
City of Newport Beach
By:
_S�t�
Scott Catlett
Printed Name:
Title: Finance Director / Treasurer
Date: April 23, 2022
GLOBAL HEADQUARTERS: 777 W. Main Street, Suite 900, Boise, ID 83702 MAIN: +1208 918 2400 clearwateranalytics.com
cl �wate N
ANALYTICS
950 W. Bannock St.
Suite 1050
Boise, Idaho 83702
MASTER SERVICES AGREEMENT
General Terms and Conditions
phone 208.433.1200
fax 208.343.2244
www.clearwateranalvties.com
THIS SERVICES AGREEMENT (together with the General Terms and Conditions and all Schedules attached hereto,
collectively referred to as this "Agreement") is entered into as of the Effective Date set forth below by and between
CLEARWATER ANALYTICS, LLC, an Idaho limited liability company ("Clearwater"), and the client, as more particularly described
in Figure 1, hereinafter identified ("Client"). Clearwater and Client may sometimes hereinafter be referred to individually as a
"party" and collectively as the "parties."
Figure 1
Client's Name:
Address:
City of Newport Beach
3300 Newport Blvd.
PO Box 1768
Newport Beach, CA 92658-8915
Primary Authorized Contact Person:
Phone, Fax and E-mail:
Dan Matusiewicz
949.644.3126
949.644.3339 (fax)
danm@newportbeachca.gov
EFFECTIVE DATE: This Agreement is effective as of November 3, 2010 (the "Effective Date").
TERM: The term of this Agreement shall commence on the Effective Date set forth above and shall remain in effect for one
year from that date (Renewal Date), unless the Agreement is terminated in accordance herewith, as provided in Section VIII of
the General Terms and Conditions. The Term shall automatically renew, not to exceed 25 years, unless terminated by either
party with at least 30 days notice to the other party.
FEES: Fees and charges for the use of the System (as hereinafter defined) shall be as set forth on Schedule A hereto and
incorporated herein by this reference (the "Fee Schedule").
BY SIGNING BELOW, THE PARTIES, OR AGENTS SIGNING ON BEHALF OF THE PARTIES, AGREE THAT EACH PARTY WILL BE BOUND
BY THIS AGREEMENT AND REPRESENTS THAT HE OR SHE IS AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF
SUCH PARTY AND ACKNOWLEDGES THAT HE OR SHE HAS RECEIVED, READ AND UNDERSTANDS ALL TERMS AND CONDITIONS
AND SCHEDULES COMPRISING THIS AGREEMENT.
CLIENT:1/4)14
CLEARWATER ANALYTICS, LLC:
/t
ns-�
Name:
Tracy McCra er
Name:
110,A, ri,t� 4�.(i
,�
Title:
Director of A
istrative Services
Title:
(',P4E✓rn Utaw,,t5_t 1
Date
November 9, 2010
Date
II j (i/ an 0
Approved as to form:
6) \�- !if)
Leonie Mulvihill
Assistant City Attorney
Boise-197491.2 0099999- 00006
Attest to:
ani Brown
lerk
CLEARWATER ANALYTICS, LLC
General Terms and Conditions
I. DEFINITIONS.
Account: Each Clearwater Account represents a
corresponding Client account as designated by the applicable
custodian bank or safekeeping location.
Available: Clearwater System and Services is accessible for
use by Client.
Business Hours: Weekdays, 7 a.m. through 5 p.m. MT.
Client Data: Data regarding Client's portfolio holdings
provided to Clearwater by Client Safekeeping Location, as
facilitated by Client. Client Data also includes data resulting
from the operation of the System or data provided to
Clearwater by Client Safekeeping Location.
Client Data: All data loaded into the System by the Client and
all data resulting from the operation of the System on such
data.
Client Safekeeping Location: Financial institution
responsible for safeguarding Client's financial assets.
Combined Portfolio Market Value: Includes all funds and
assets, including cash, cash accruals, additions, substitutions
and alterations of all of Client's portfolios entered into the
Clearwater System.
Customized Requests: Custom requests and individual
custom reports may be provided based upon a mutually
agreed upon transaction schedule and pricing.
Data Feed: Programs that load Client Data on the designated
FTP or HTTP server to the Clearwater server.
Emergency Unavailability: Includes 1) those times at which
Clearwater deems, in its reasonable discretion, Clearwater
System and Services will be unavailable due to unscheduled
maintenance of the System in order to preserve the integrity,
stability or continued functioning of the System and 2)
interruptions or unavailability due to a Force Majeure Event
as defined in this Agreement.
General Hours of Operation: The hours during which
Clearwater will use commercially reasonable efforts to have
the System operational. Except for Scheduled Maintenance,
the General Hours of Operation will be 24 hours per day,
seven (7) days a week.
Internal Purposes: Shall include activities generally involved
in the operation of a business and including, but not limited
to, presentations to customers and prospective customers,
presentations to board, internal and external audits and
discussions with consultants. Internal Purposes does not
include use for the benefit of affiliates of Client or a joint
venture to which Client is a party.
Page 1 of 21
Investor: Person or group responsible for investing Client
assets reported on Clearwater System.
Major Release: A release which shall materially impact the
means by which the Client views or navigates the System or
Reports or which materially changes the nature of the data
produced by the System. For the avoidance of doubt, the
addition of a Report or functionality which does not
substantially alter the existing functionality or Reports shall
not be considered a Major Release.
Parallel Close: Process where Client and Clearwater will each
separately close a month of Client's fiscal numbers and
compare the fiscal number through a lot by lot comparison at
the balance sheet level and collaborate to understand and
correct errors and differences.
Product Enhancements: Any maintenance, upgrades,
additions, or improvements to the core functionality of an
existing product.
Product: A set of Reports and Services offered by Clearwater
as a unit for a fee. Examples of such Products include:
Operating Fund Analytics, Auto General Ledger, Consolidated
Reporting, Money Fund Transparency, Insurance Analytics
and Private Wealth Analytics.
Reports: A Web page created by Clearwater containing a
particular set of Client and Third Party data.
Scheduled Maintenance: Maintenance by Clearwater that
will result in the temporary shutdown of the System based
on pre -planned and scheduled maintenance activities.
Scheduled Unavailability: Periods in which Clearwater
System and Services are not available due to Scheduled
Maintenance.
Services: Includes activities such as Client training, issue
resolution, project management, tasks and checks or
reconciliations which are not automated software
development.
Subscription/Subscribe: Election by Client to have
Clearwater provide a Premium Service to Client on specified
Accounts, if applicable.
System: An Internet -based application service provider
system with investment accounting information.
Third Party Data: Data provided by Third Party Data
Providers which shall not include Client Data provided to
Clearwater by Client or Client Safekeeping Location.
Transaction Schedule: addendum to the Agreement which
adds or amends Products received by Client.
Clearwater Analytic
General Terms and Conditions &
Service Level Agreement
11/09/10
Third Party Data Provider: data sources from which
Clearwater obtains various data available on the System.
Third Party Supplier: Suppliers of services to Clearwater (e.g.
ISP).
Weekdays: Monday through Friday excluding Trading and
Banking holidays.
II. STRUCTURE OF AGREEMENT.
A. General Terms and Conditions. This Agreement is a
Master Agreement between the Parties and will contain the
sole and exclusive terms and conditions that will govern the
rights, responsibilities, and obligations of the Parties with
respect to the Products and Services. Notwithstanding the
foregoing, the Parties acknowledge that they may enter into
additional Schedules to which these General Terms and
Conditions apply unless expressly amended or contradicted
in such Schedules.
B. Fee Schedule. Each Master Agreement shall include a Fee
Schedule which includes all Products and Services the Client
is Subscribing to and the fees associated therewith. If
applicable, the Fee Schedule will also specify which, if any,
Client affiliates and subsidiaries those fees shall apply to. In
the event of a change to the Products or Services the Client
Subscribes to, an Amended Fee Schedule shall be executed
to reflect such change.
III. SYSTEM USE.
A. Acceptable System Use & System Access. The Client shall
have, during the term of this Agreement, a license for: itself
and the number of authorized employees and agents, as
identified in writing by the Client ("Authorized Users"). Each
Authorized User shall be required to follow the terms and
conditions of this Agreement, and the Client shall be liable
for each Authorized User's failure to follow such terms and
conditions of this Agreement.
i. Except as expressly provided in this Agreement, the Client
and all Authorized Users shall use the System only for
Internal Purposes and in connection with the purposes of this
Agreement, and shall not: (i) transfer or dispose of System or
Third Party Data in any manner that could compete with the
business of Clearwater or any of its Third Party Data
Providers, (ii) create derivative works based upon the
System; (ii) copy, translate, modify, adapt, reverse compile,
disassemble, reverse engineer the System, in whole or in
part; (iii) permit unauthorized disclosure or unauthorized
third party use of the System (iv) use the System in the
operation of a service bureau or (v) use the System for any
unlawful purpose.
ii. Each Authorized User shall access the System using a logon
identifier and password or a Single Sign -On configuration
agreed upon by the Client and Clearwater. The Client and
each Authorized User shall be responsible for maintaining
and protecting the user logon identifiers and passwords. The
Client shall be responsible and liable to Clearwater and any
third party for any use, display or access of the System
Page 2 of 21 Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
through use of the Client's logon identifier and password(s)
by any person or entity who is not authorized by this
Agreement unless such use of the Client's logon identifier
and passwords resulted from a breach of Clearwater's
internal security. The Client and Clearwater shall each
promptly take all necessary steps to ensure a formerly
Authorized User's access is terminated when necessary.
iii. The Client may change the number and designation of
Authorized Users at any time by submitting a written request
to Clearwater. Clearwater will not accept changes to an
Authorized User's settings from any unauthorized users.
Access to view Client Data on the System shall be limited to
Client personnel.
B. THIRD PARTY DATA USE & REDISTRIBUTION.
i. Third -Party Data. Client agrees and acknowledges
that Third Party Data on the System is and shall remain the
valuable intellectual property owned by, or licensed to, the
Third Party Data Providers and that no proprietary rights are
being transferred to the Client in such materials. Client may
not redistribute Third Party Data obtained from the System
to third parties outside of the Client's organization unless
written approval is given to the Client by Clearwater. Client
may not distribute CUSIPs except in the normal course of
settling security transactions. Client further agrees that the
use of CUSIP numbers and descriptions is not intended to
create or maintain, and does not serve the purpose of the
creation or maintenance of a master file or database of
CUSIP descriptions or numbers for itself or any third party
recipient of such service and is not intended to create and
does not serve in any way as a substitute for the CUSIP
MASTER TAPE, PRINT, DB, INTERNET, ELECTRONIC, CD-ROM
Services and/or any other future services developed by the
CUSIP Service Bureau. If Clearwater becomes aware that the
Client is redistributing Third Party Data obtained from the
System, Clearwater may revoke the Client's access to the
System.
ii. Indemnification of Third Party Data Providers. Client
agrees to defend, indemnify and hold Clearwater's Third
Party Data Providers, their affiliates, directors, officers,
shareholders, employees, representatives, agents, attorneys,
data providers, successors and assigns, harmless from and
against any and all claims, losses, damages, liabilities,
obligations, judgments, causes of action, costs, charges,
expenses and fees (including reasonable attorneys' fees and
costs) arising out of: (a) any breach of this Agreement by
Client or its agents; or (b) any willful or reckless actions or
misconduct of Client or either Client's employees or agents
with respect to this Agreement. Third Party Data Providers
reserve the right to select their own attorneys at the
indemnifying party's cost.
iii. Injunctive Relief. Client agrees and acknowledges
that unauthorized copying, use, access to, or distribution of
the Third Party Data may cause the Third Party Data
Providers and/or their third -party licensors irreparable injury
that cannot be adequately compensated with monetary
damages. Client therefore agrees that any breach hereof by
Client may be enforced by the Third Party Data Providers
11/09/10
and/or their third -party licensors by means of equitable relief
(including, but not limited to, injunctive relief) in addition to
any other rights and remedies that may be available.
v. Third Party Data Warranty Disclaimer. DATA ON
CLEARWATER'S SYSTEM IS SUBJECT TO LICENSES WITH THIRD
PARTY DATA PROVIDERS ("THIRD PARTY DATA").
CLEARWATER'S PRODUCTS HAVE NOT BEEN APPROVED BY
SUCH THIRD PARTY DATA PROVIDERS AS TO THEIR LEGALITY
OR SUITABILITY, AND ARE NOT REGULATED, ISSUED,
ENDORSED, SOLD, OR PROMOTED BY SUCH THIRD PARTY
DATA PROVIDERS AND/OR THEIR AFFILIATES. DATA IS
DERIVED FROM SOURCES DEEMED RELIABLE BUT NEITHER
CLEARWATER, NOR ITS THIRD PARTY DATA PROVIDES, SHALL
BE RESPONSIBLE FOR OR HAVE ANY LIABILITY FOR ANY
INJURIES OR DAMAGES CAUSED BY ERRORS, INACCURACIES,
OMISSIONS OR ANY OTHER FAILURE IN OR DELAYS OR
INTERRUPTIONS OF THE SERVICE FROM WHATEVER CAUSE.
NEITHER CLEARWATER, ITS THIRD PARTY DATA PROVIDERS
NOR THEIR AFFILIATES MAKE ANY WARRANTIES AND BEAR
NO LIABILITY WITH RESPECT TO THE THIRD PARTY DATA
INCLUDING WITHOUT LIMITATION, THE DATA QUALITY,
ACCURACY, SUITABILITY AND COMPLETENESS. THE THIRD
PARTY DATA IS PROVIDED AS IS WITHOUT ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. CLIENT UNDERSTANDS THAT
CONTRIBUTORS TO THE THIRD PARTY DATA MAY, AT ANY
TIME, CHOOSE TO INHIBIT OR PROHIBIT THEIR
INFORMATION FROM BEING ACCESSED UNDER THIS
AGREEMENT. CREDIT RATINGS AND OTHER OPINIONS
CONTAINED IN THIRD PARTY DATA ARE, AND WILL BE
CONSTRUED SOLELY AS, STATEMENTS OF OPINION AND NOT
STATEMENTS OF FACT OR RECOMMENDATIONS TO
PURCHASE, HOLD OR SELL ANY SECURITIES. EACH CREDIT
RATING OR OTHER OPINION WILL BE WEIGHED SOLELY AS
ONE FACTOR IN ANY INVESTMENT DECISION MADE BY OR
ON BEHALF OF THE CLIENT. CLIENT WILL ACCORDINGLY
MAKE ITS OWN STUDY AND EVALUATION OF EACH SECURITY,
AND OF EACH ISSUER AND GUARANTOR OF, AND EACH
PROVIDER OF CREDIT SUPPORT FOR, EACH SECURITY THAT IT
MAY CONSIDER PURCHASING, HOLDING OR SELLING.
IV. DATA SECURITY.
A. Disaster Recovery Plan. Clearwater shall develop, test,
implement, document and maintain a Disaster Recovery and
Contingency Plan to enable the continued provision of, or the
reasonably prompt resumption of, the System as set forth in
Clearwater's SAS #70 Report. In the event that Clearwater
System and Services is unavailable and Clearwater
determines that it is required to implement the Disaster
Recovery and Contingency Plan, Clearwater will make
commercially reasonable efforts to notify Client as promptly
as practicable under the circumstances of the status of the
System, and the steps being taken to return Clearwater
System and Services to availability.
B. Client Obligations. The Client agrees to comply with
reasonable operating standards and procedures and with its
user identification or other password control requirements
Page 3 of 21
and other security procedures as may be issued from time to
time by Clearwater for use of the System. The Client agrees
to advise Clearwater in the event the Client learns or has
reason to believe that any person to whom the Client has
given access to the System has violated or intends to violate
the terms of this Agreement, and the Client will use
reasonable efforts to cooperate with Clearwater in seeking
injunctive or other equitable relief. The Client agrees to
discontinue use of the System, if requested, for any security
reasons cited by Clearwater.
C. Protection of Client Data. Clearwater shall implement and
maintain during the term of this Agreement, appropriate
measures designed to (i) ensure the security and
confidentiality of Client records and information; (ii) protect
against any anticipated threats or hazards to the security or
integrity of Client records and information; and (iii) protect
against unauthorized access to or use of Client records and
information, which Client records and information are
provided to Clearwater or are in Clearwater's possession. As
between the Client and Clearwater, the Client is the owner of
all data loaded into the System by the Client.
D. Data Back -Up Protection. Notwithstanding any other
provisions of this Agreement or Clearwater's SAS #70 Report,
Client acknowledges that the System shall not be Client's
primary data storage or backup system and Clearwater shall
not be responsible for the cost of reconstructing data stored
on Client's disk files, tapes, memories, or the like, which are
lost during the course of Clearwater's performance
hereunder, or for loss of profits or other economic loss
arising therefrom. It shall be Client's responsibility to ensure
that all of its electronic files and other data are adequately
duplicated, documented and protected, and in no event will
Clearwater be responsible for Client's failure to do so.
E. Security Incidents. If Clearwater discovers, suspects or is
notified of any incident resulting in, or which could
reasonably result in, unauthorized destruction, loss,
alteration or access to Client Data (as defined above),
including a security breach of its computer systems or
physical facilities (each, a "Security Incident"), Clearwater
shall: (i) promptly notify the Client of such Security Incident;
(ii) promptly, in consultation with the Client, start an
investigation of the Security Incident and take all appropriate
actions to mitigate any risk to Client Data that may arise from
such Security Incident; (iii) preserve all records and other
evidence relating to the Security Incident; and (iv) provide
the Client with a written report on the outcome of its
investigation, including any risk to the Client Data, the
corrective action Clearwater will take, or has taken, to
respond to the Security Incident, and such other information
as the Client may reasonably request. The occurrence of a
Security Incident shall not constitute Clearwater's
Confidential Information and the Client may disclose the
occurrence of a Security Incident in connection with
complying with applicable laws and regulations. To the
extent that a Security Incident is caused by an action or
omission of Clearwater or by a breach of Clearwater's
Clearwater Analytic
General Terms and Conditions &
Service Level Agreement
11/09/10
computer systems, Clearwater agrees to reimburse the Client
for its reasonable out-of-pocket expenses incurred in
complying with the notice provisions of such laws and
regulations.
F. Security Testing. Clearwater will conduct periodic Internet
security penetration tests no less frequently than annually
during the term of this Agreement, either internally or using
a third -party vendor, to confirm that the System and the
Client Data are secure from unapproved access, and will
provide the Client with the results of such testing upon Client
request.
G. Client Regulators. Clearwater acknowledges and agrees
that, if applicable, Client's state and federal regulators shall
have the authority to examine Client's service providers, and
that Clearwater and its subcontractors may be subject to a
limited (within the scope of this Agreement) review by
independent third parties, such as state and federal
regulators, to assess whether appropriate controls exist for
the safe -guarding of Client Data and Confidential
Information. The Client shall reimburse Clearwater for its
reasonable, direct costs incurred in connection with any such
review.
H. Physical Security. Clearwater will either directly or
through Third Party Suppliers take commercially reasonable
precautions and security measures to ensure that no
unauthorized person or third parties have access to the
Client Data present on the System.
I. Logical Access Control. Client and Clearwater are
responsible for logical access control to Clearwater System
and Services. The logical access control consists of:
I. The Internet traffic that can access Clearwater
System and Services is restricted using firewall level IP
filtering at the Third Party Supplier facility.
ii. Internet traffic between Client and Clearwater
System and Services is encrypted using "Secure Sockets
Layer" (SSL) protocol.
iii. A Client session ends automatically when the
connection has been closed.
iv. Only one active (concurrent) session is possible
with a single user ID.
J. Data Security. Clearwater product specialists will have
access to Client information held on the System when
required for Client support and problem management. This
Client Data is covered by the confidentiality and data security
provisions contained in this Agreement.
K. Client Review. Client may reasonably request to review
the physical and logical security of the System by visiting
Clearwater or Third Party Suppliers engaged by Clearwater in
supporting the System. Requests for such a review must be
made at least ten (10) business days in advance in writing to
Clearwater. Proof of identification may be required for
access to Clearwater and Third Party Supplier facilities.
L. Client Agent Security Change Requests. Client shall
designate, in the Designated Client Agent Approval form
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attached hereto as Schedule B, the number of Authorized
Users which shall be Client Agents for Client's accounts.
Client Agents shall have the authority to either request or
approve security changes to the account such as new user
IDs and group logins, resetting of passwords and alteration of
group membership. Client my request changes to the Client
Agents by submitting a new Designated Client Agent
Approval form to its Clearwater Account Manager.
Clearwater will implement Client Agent changes within a
reasonable time period. Clearwater may request fax
confirmation from Client for any changes, and request
additional verification of the identification and authority
within the Client organization of the person requesting the
change.
V. SAS #70 REPORT.
A. SAS #70 Report. At least annually during the term of
this Agreement, Clearwater agrees to have a reputable and
experienced accounting firm conduct an audit in accordance
with the Statement on Auditing Standards (SAS) No. 70,
developed by the American Institute of Certified Public
Accountants, and have such accounting firm issue a Service
Auditor's Report Type II (or substantially similar report in the
event the SAS No. 70 auditing standard and a Services
Auditors Report Type II are no longer industry standard)
which will cover, at a minimum, security policies and
procedures and controls including, without limitation, system
security and physical security (the "SAS #70 Report").
Clearwater agrees to provide the Client with a copy of the
SAS #70 Report promptly upon receipt by Clearwater.
B. Security Questionnaire. Upon reasonable request,
Clearwater agrees to respond to the Client's information
security questionnaire (the "Security Questionnaire") which
is designed to allow the Client to assess the status of
Clearwater's information security policies and procedures
and controls including, without limitation, physical security
and business continuity planning, operational security and
access controls. The Client may conduct follow-up inquiries
in connection with the Security Questionnaire. The Client's
right to have Clearwater respond to the Client's Security
Questionnaire and conduct follow-up inquiries, shall in no
way diminish or affect Clearwater's duties and liabilities
under this Agreement.
C. Clearwater Obligations. If the SAS #70 Report in its
final and issued version contains a qualified opinion relating
to security matters including, without limitation, risks to
Clearwater's computer systems and physical facilities which
could result in the unauthorized destruction, loss, alteration
of or access to Client Data, or the System being materially
affected, or if as a result of the Security Questionnaire, the
Client, in good faith, deems itself insecure in relation to
Clearwater's security measures then:
(a) A senior technology executive of Clearwater shall
promptly meet with a representative of the Client to
discuss the matter; and
(b) Clearwater shall promptly take actions to (i) address
the matters addressed by the qualification and the
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10
Security Questionnaire so that the cause of the
qualified opinion and issues raised by the Security
Questionnaire may be resolved, and (ii) after
consultation with the Client, reduce any risk to the
Client Data.
VI. INTELLECTUAL PROPERTY.
A. License of Party Marks. During the term of this
Agreement, each party and their affiliates hereby grant each
other a limited, non -assignable, non -sub -licensable, royalty -
free license to use, display, copy and store those trademarks
and trade names owned or used under license by each party
that the parties identify in writing to each other (the "Party
Marks") in marketing material, including Web pages, and for
the purpose of fulfilling its obligations under this Agreement
with respect to the System. Each party hereby acknowledges
the other party and its affiliates' exclusive rights in the Party
Marks and agrees not to challenge such rights. Except as
otherwise expressly provided by the Client as part of the
System provided hereunder, each Party shall refrain from
using or registering any domain name or URL that contains
any Party Marks or any variation thereof. Each party shall
use the Party Marks solely in accordance with the Party
Marks' branding guidelines, specifications, directions and
quality control standards which shall from time to time be
communicated or approved by each party in writing. Use of
the Party Marks in violation of this section shall constitute a
material breach hereof.
B. OWNERSHIP RIGHTS RESERVED. No title or
ownership or intellectual property rights in and to the
System and related documentation, or any copy, translation,
compilation or other derivative work(s) are transferred to the
Client or any third party hereunder. The Client agrees that
unauthorized copying, appropriation or disclosure of the
System or other intellectual property of Clearwater may
cause great damage to Clearwater, which damage may far
exceed the value of the copies or information involved. The
Client shall not, and shall not attempt to, assign, pledge,
incumber, sell or otherwise transfer to any third party the
ystem, or any related documentation, or all or any part
thereof.
VII. TERM AND TERMINATION.
A. Term. This Agreement will commence on the
Effective Date and will remain in effect until terminated by
the Client for convenience upon 60 days prior written notice
or by Clearwater for convenience upon 120 days prior
written notice. Term shall not exceed 25 years.
B. Termination. If either party should materially breach
a provision of this Agreement, the other party may terminate
this Agreement upon 45 days' written notice (10 days in the
case of nonpayment) unless the breach is cured within the
notice period or, if the breach does not relate to payment
and cannot reasonably be so cured, diligent efforts to effect
such cure are commenced during that period and are
continued until the cure is completed, which shall be within a
Page 5 of 21
reasonable time. In addition, in the event of any
adjudication of bankruptcy, appointment of a receiver by a
court of competent jurisdiction, assignment for the benefit of
creditors, or levy of execution directly involving either party,
the other party may, at its option, terminate this Agreement
within 30 days. Except as otherwise provided in this
Agreement, this section shall be the Client's sole remedy for
delay or failure by Clearwater to provide the System. In no
event shall the Client's remedies, whether in contract or in
tort, exceed 100% of the incurred Fees to be paid to
Clearwater under this Agreement.
C. Effect of Termination. Upon the effective date of
expiration or termination of this Agreement, Clearwater will
immediately cease providing the System and any and all
payment obligations of the Client hereunder will become due
immediately.
VIII. PAYMENT.
A. Fees. In exchange for the receipt of System and
Services, Client shall pay Clearwater a Fee as defined in
Schedule A. The amount of all fees owed by Client are set
forth in Schedule A and are subject to Payment Terms herein.
B. Asset -Based Percentage Fees. Asset -Based Percentage
Fees begin accruing from the date of the first Client Data
loaded onto the System (Accrual Date). Fee invoices are
based on actual daily portfolio market values including all
Client Accounts. For periods shorter than 31 days, the fee for
the abbreviated period shall be pro rated based upon the
number of days in the calendar month during which Services
were provided under this Agreement.
C. Minimum Fees. Minimum Fees are assessed monthly and
pro rated for periods less than a calendar year. When
necessary, monthly adjustments are made to invoices to
ensure annual Minimum Fee assessed does not exceed
annual Minimum Fee amount agreed to in Schedule A.
D. Development Fees. Include fees for development services
such as Private Label and Single Sign -On. These are one-time
fees which are due in full prior to the commencement of
development work.
E. Data Feed Fees. Clearwater will maintain FTP Data Feeds
for no additional fee; provided however, there shall be an
annual Data Feed Fee for each Client Data Source which does
not support FTP Data Feeds. Data Feed Fees are assessed
annually and pro rated for periods of less than a calendar
year.
F. Payment Terms. Time is of the essence in the
performance of all payment obligations by the Client. Any
Past Due Balance, as defined in Schedule A, will accrue
interest at the rate agreed to in Schedule A, or the highest
rate allowed by law, whichever is less. The Client will be
liable for all costs incurred in the collection of Past Due
Balances including but not limited to collection fees,
attorneys' fees, litigation fees, filing fees and court costs.
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10
G. Taxes. The Client shall pay all sales, use and other
taxes imposed by any jurisdiction arising out of or related to
use of the System by the Client (other than taxes based on
Clearwater's ownership of its property or its net income).
IX. WARRANTY & INDEMNIFICATION.
A. WARRANTY DISCLAIMER. THE SYSTEM IS PROVIDED "AS
IS," AND WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO
ACCURACY, FUNCTIONALITY, PERFORMANCE, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, INFRINGEMENT OR
MERCHANTABILITY, AND ANY WARRANTIES ARISING FROM A
COURSE OF DEALING, USAGE OR TRADE PRACTICE. NO SALES
PERSONNEL, EMPLOYEES, AGENTS OR REPRESENTATIVES OF
CLEARWATER OR ANY THIRD PARTY SUPPLIER ARE
AUTHORIZED TO MAKE ANY REPRESENTATION, WARRANTY
OR COVENANT ON BEHALF OF CLEARWATER, EXCEPT AS
SPECIFICALLY SET FORTH IN THIS AGREEMENT.
ACCORDINGLY, ADDITIONAL ORAL STATEMENTS DO NOT
CONSTITUTE WARRANTIES AND SHOULD NOT BE RELIED
UPON AND ARE NOT PART OF THIS AGREEMENT.
CLEARWATER SHALL NOT BE LIABLE FOR ANY SERVICES OR
PRODUCTS PROVIDED BY THIRD PARTY VENDORS,
DEVELOPERS OR CONSULTANTS IDENTIFIED OR REFERRED BY
CLEARWATER. THE CLIENT ACCEPTS FULL RESPONSIBILITY
FOR ANY INVESTMENT DECISIONS OR STOCK TRANSACTIONS
MADE BY THE CLIENT AND ITS AUTHORIZED USERS USING
THE SYSTEM OR ANY DATA REPORTED BY THE SYSTEM. THE
CLIENT EXPRESSLY AGREES THAT USE OF THE SYSTEM AND
SYSTEM DATA 15 AT THE CLIENT'S SOLE RISK AND THAT
CLEARWATER SHALL NOT BE RESPONSIBLE FOR ANY
INTERRUPTION OF SERVICES, DELAYS OR ERRORS CAUSED BY
ANY TRANSMISSION OR DELIVERY OF THE SYSTEM OR ANY
OTHER INFORMATION OR CAUSED BY ANY
COMMUNICATIONS SERVICE PROVIDERS. THIS SECTION
SHALL SURVIVE TERMINATION OR EXPIRATION AND NON -
RENEWAL OF THIS AGREEMENT.
B. Limits of Liability. NOTWITHSTANDING ANYTHING
ELSE IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT
WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE OR
OBLIGATED TO THE OTHER UNDER ANY SECTION OF THIS
AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO LOSS OF PROFITS, REVENUE, DATA OR USE,
INCURRED OR SUFFERED BY EITHER PARTY OR TO ANY THIRD
PARTY, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL CLEARWATER BE LIABLE TO CLIENT FOR
AMOUNTS IN EXCESS OF THE TOTAL AMOUNT OF FEES PAID
BY CLIENT HEREUNDER. THIS LIMIT TO LIABILITY SHALL NOT
APPLY TO CLAIMS ASSOCIATED WITH THE INFRINGEMENT OF
EITHER PARTY'S RIGHTS IN INTELLECTUAL PROPERTY
(INCLUDING COPYRIGHT, TRADEMARK AND PATENT RIGHTS)
Page 6 of 21
OR THE UNAUTHORIZED USE OF CONFIDENTIAL
INFORMATION (AS HEREINAFTER DEFINED).
C. Indemnification. Each party agrees to defend,
indemnify and hold the other party, its affiliates, directors,
officers, shareholders, employees, representatives, agents,
attorneys, successors and assigns, harmless from and against
any and all claims, losses, damages, liabilities, obligations,
judgments, causes of action, costs, charges, expenses and
fees (including reasonable attorneys' fees and costs) arising
out of: (a) any breach of this Agreement by a party, its
agents, or any Authorized User; or (b) any willful or reckless
actions or misconduct of a party, the Authorized Users or the
party's employees or agents with respect to the use of the
System and Confidential Information. Each party reserves
the right to select its own attorneys at the indemnifying
party's cost. Additionally Clearwater will defend or, at its
option, settle (with the prior consent of the Client which will
not be unreasonably withheld) any claim made against or
action brought against the Client to the extent that it is
based on an assertion that access to or use of the System by
the Client under this Agreement constitutes direct
infringement of any patent or copyright or misappropriation
of a trade secret; provided, that the Client notifies
Clearwater promptly in writing of any such claim or
proceeding and cooperates with the defense of such claim or
proceeding. Should the System or any part thereof become,
or in Clearwater's opinion be likely to become, the subject of
a claim of infringement or the like under any applicable
patent, copyright or trade secret laws, Clearwater shall have
the right, at Clearwater's sole option, to (i) procure for the
Client the right to continue using the System, (ii) replace or
modify the System so that the System becomes non -
infringing, or (Hi) terminate this Agreement without further
obligation. The indemnification obligation under this section
shall survive any termination, expiration or non -renewal of
this Agreement.
X. CONFIDENTIAL INFORMATION.
A. Definition of Confidential Information. For purposes
of this Agreement, "Confidential Information" shall mean
information that is marked confidential or otherwise
disclosed under circumstances that would lead a reasonable
person to conclude that such information is confidential and
may include business, marketing, technical, scientific,
financial, investment or other information, specifications,
designs, plans, drawings, data, code, algorithms, copyrighted
forms, software, prototypes or process techniques, of a
party. For the avoidance of doubt, the existence of a
business relationship between the parties shall not be
considered Confidential Information.
B. Exclusive Use of Confidential Information. A party
receiving Confidential Information under this Agreement
("Receiving Party") shall use the Confidential Information of
the party disclosing the Confidential Information (the
"Disclosing Party") solely and exclusively in the execution of
the Receiving Party's obligations under this Agreement.
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10
C. Limitations on Use of Confidential Information. For
a period of five (5) years from the date of each disclosure of
Confidential Information, the Receiving Party shall (i) keep
Confidential Information of the Disclosing Party in
confidence; disclose it only to directors, officers, employees
and financial and legal advisors of the Receiving Party with a
need to know and who are under similar confidentiality
restrictions as contained in this Agreement and reproduce it
only to the extent necessary for the Activities; and (ii) protect
Confidential Information of the Disclosing Party with at least
the same degree of care as Receiving Party normally
exercises to protect its own Confidential Information of a
similar nature, but no less than a reasonable degree of care.
The Receiving Party shall not reverse engineer, disassemble
or decompile any samples, prototypes, software or other
tangible objects provided by the Disclosing Party hereunder
except with the express written authorization of the
Disclosing Party. The parties shall be liable for any breach of
the provisions of this section by their respective directors,
officers, shareholders, employees, agents, representatives
and financial and legal advisors.
D. Provision of Confidential information. All
Confidential Information is provided on a without prejudice
basis, "AS IS" and shall remain the sole property of the
Disclosing Party. The Disclosing Party shall have no liability
whatsoever from the use of its Confidential Information by
the Receiving Party which shall be returned upon written
request or voluntarily by the Receiving Party.
E. Exclusions. Notwithstanding the foregoing,
Confidential Information does not include that information
which: (i) is known to the Receiving Party prior to the time of
disclosure by the Disclosing Party, as evidenced by
contemporaneous dated written records; (ii) is received by
the Receiving Party from independent sources having the
right to such information without an obligation of confidence
or non -disclosure to the Disclosing Party, and without such
information having been solicited or obtained by any use of
the Confidential Information received by the Receiving Party;
(Hi) is independently developed by the Receiving Party
without use of the Confidential Information and by persons
who have not had access to the Confidential Information; or
(iv) is in the public domain, or which later becomes public,
unless such information is made public by the Receiving
Party in violation of this Agreement or by any other party
directly or indirectly under an obligation of confidentiality to
the Disclosing Party.
F. Required Disclosure. Nothing in this Agreement shall
restrict the right of either party to disclose Confidential
Information that is ordered disclosed under judicial or other
lawful government action, but only to the extent so ordered.
If either party is ordered to disclose such information, the
parties agree to give the other party written notice of the
order within five (5) days of receipt.
G. No License; No Representations or Warranties. No
license is either granted or implied by the conveying of
Confidential Information to the Receiving Party. None of the
Page 7 of 21 Clearwater Analytirs
General Terms and Conditions &
Service Level Agreement
Confidential Information which may be disclosed by the
Disclosing Party shall constitute any representation,
warranty, assurance, guarantee by the Disclosing Party of any
kind and, in particular, with respect to the non -infringement
of any intellectual property rights, or other rights of third
parties or the Disclosing Party.
H. Equitable Relief. The parties acknowledge that any
breach of a Receiving Party of its obligations under this
section with respect to Confidential Information may cause
irreparable injury to the Disclosing Party for which there are
inadequate remedies at law and, therefore, the Disclosing
Party shall be entitled to seek Equitable Relief in addition to
all other remedies provided by this Agreement or available at
law.
Xl. GENERAL PROVISIONS.
A. Mutual Restriction. During the course of this Agreement,
it is expected and desired that both parties will work closely
with one or more employees of the other. To promote close
cooperation between employees of the parties and to avoid
any fear on the part of either party that the other will use
such occasion to recruit from the other's employees,
Clearwater and the Client agree that during the term of this
Agreement and for a period ending one (1) year following its
termination or expiration, no attempt will be made by either
party to influence the employment status of any employee(s)
of the other party based on contacts made or knowledge
acquired as a result of this Agreement, except as otherwise
agreed to in writing; provided, that this section shall be
enforceable only to the extent that it is not in conflict with
the laws or public policy of the situs of this Agreement or the
situs of the court in which enforcement is sought.
B. Compliance with Laws. The Client's and each
Authorized User's use of the System shall comply with all
applicable federal, state and local laws, rules and regulations,
and applicable exchange rules, regulations and contract
terms. The Client represents and warrants that the Client
shall not intentionally engage in, nor is to its knowledge
currently engaged in, the operation of any unlawful
transactions and business. The Client shall not use, nor shall
the Client permit any Authorized User or third party to use,
the System for any unlawful purpose. In the event
Clearwater believes that the Client is not in compliance with
the terms of this section, Clearwater reserves the right to
terminate the Client's and the Authorized Users' access to
the System at any time with or without notice and without
incurring any liability or obligation in connection therewith.
C. Relationship of Parties. Notwithstanding any
provision hereof, for all purposes of this Agreement each
party shall be and act as an independent contractor to the
other and not as partner, joint venturer, or agent of the
other and shall not bind nor attempt to bind the other to any
contract.
D. Force Majeure. In the event that either party is
prevented from performing or is unable to perform any of its
obligations under this Agreement (other than a payment
11/09/10
obligation) due to any Act of God, fire, casualty, flood,
earthquake, war, terrorism, strike, lockout, epidemic,
destruction of production facilities, riot, insurrection,
material unavailability, power, communications line, satellite
or network failures, or any other cause beyond the
reasonable control of the party invoking this Section, and if
such party shall have used its best efforts to mitigate its
effects, such party shall give prompt written notice to the
other party, its performance shall be excused, and the time
for the performance shall be extended for the period of delay
or inability to perform due to such occurrences.
Notwithstanding the foregoing, if such party is not able to
perform 30 days after the event giving rise to the excuse of
Force Majeure, the other party may terminate this
Agreement.
E. Waivers. The failure of either party to enforce its
rights under this Agreement at any time for any period shall
not be construed as a waiver of such rights. No changes or
modifications or waivers are to be made to this Agreement
unless evidenced in writing and signed for and on behalf of
both parties.
F. Severability. In the event that any provision of this
Agreement shall be determined to be illegal or
unenforceable, that provision will be limited or eliminated to
the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable.
G. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
New York without regard to the conflicts of laws provisions
thereof.
H. Exclusive Jurisdiction. Should it become necessary
to enforce the terms and conditions of this Agreement, the
rights, duties and obligations of the parties and the validity,
interpretation, performance and legal effect of this
Agreement, or to recover damages for a breach of this
Agreement, the parties hereto agree that the original
defending party, not any counter claimant, cross claimant,
impleader, interpleader, or any codefendants, shall choose
the jurisdiction and venue over and in which the parties will
adjudicate any claims between the parties arising out of this
Agreement, and that service may be accomplished by
registered mail to the registered agent and/or last known
address of each of the parties.
I. Attorneys' Fees. In any action or proceeding to
enforce rights under this Agreement, the prevailing party will
be entitled to recover costs and attorneys fees at trial and on
appeal.
J. Dispute Resolution. Notwithstanding anything to the
contrary in this section, Clearwater and the Client will
attempt to settle any claim or controversy arising out of this
Agreement through consultation and negotiation in good
faith and a spirit of mutual cooperation. If those attempts
fail, then the dispute will be mediated by a mutually
accepted mediator to be chosen by Clearwater and the Client
within 30 days after written notice by either party to the
Page 8 of 21 Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
other demanding mediation. Neither party may
unreasonably withhold consent to the selection of a
mediator, and Clearwater and the Client will share the cost of
the mediation equally. By mutual agreement, Clearwater
and the Client may postpone mediation until some specified
but limited discovery about the dispute has been completed.
The parties may also agree to replace mediation with some
other form of alternative dispute resolution. Any dispute
which cannot be resolved between the parties through
negotiation, mediation or other form of alternative dispute
resolution within 60 days of the date of the initial demand
for it by one of the parties may then be submitted to the
courts for resolution. Nothing in this section will prevent
either party from resorting to judicial proceedings if (a) good
faith efforts to resolve the dispute under these procedures
has been unsuccessful, (b) interim relief from a court is
necessary to prevent serious and irreparable injury to one
party or to others, or (c) litigation is required to be filed prior
to the running of the applicable statute of limitations. The
use of any alternative dispute resolution procedure will not
be construed under the doctrines of !aches, waiver or
estoppel to affect adversely the rights of either party.
K. Assignment. Neither Party may assign its rights or
obligations without the prior written consent of the other
Party, except either party shall be able to assign its rights and
obligations CO to any successor pursuant to a merger,
reorganization to change company structure, consolidation
or sale, or (ii) to an entity that acquires all or substantially all
of a Party's assets or business using, maintaining or providing
the Services, as applicable. Any attempted assignment or
delegation in contravention of this section shall be null and
void, and of no force or effect. This Agreement shall be
binding upon, and shall inure to the benefit of, the legal
successors and permitted assigns of the Parties.
L. Notices. All notices or approvals required or
permitted under this Agreement must be given in writing and
sent by mail to the addresses set forth on the Signature Page
to this Agreement. The Client shall give prompt written
notice to Clearwater of any change of the name or address of
the Client or any Authorized User.
M. Interpretation. The headings of the Sections of this
Agreement are inserted for convenience only and shall not
constitute a part hereof or affect in any way the meaning or
interpretation of this Agreement. Whenever the singular
number is used in this Agreement and when required by the
context, the same shall include the plural and vice versa, and
the masculine gender shall include the feminine and neuter
genders and vice versa.
N. No Third Party Beneficiaries. No third party
beneficiaries are contemplated by this Agreement, and
specifically, any Authorized User shall not be deemed a third
party beneficiary under or pursuant to this Agreement.
O. Entire Agreement. This Agreement, together with all
of Schedules hereto which are incorporated into this
Agreement in full by this reference, constitute the complete
11/09/10
and entire agreement between the parties and supersede
any prior agreements or understandings between the parties
with respect to its subject matter.
P. Counterparts; Signatures. This Agreement may be
executed in one or more counterparts, each of which shall be
deemed an original, and all of which together shall constitute
one and the same instrument. Any counterpart may be
delivered by facsimile transmission, with the same legal force
and effect as delivery of an originally signed document. Each
of Clearwater and the Client represents that the signatory set
forth on the Signature Page hereto is authorized to act on its
behalf.
Page 9 of 21
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10
SCHEDULE A
Fee Schedule*
Checked boxes indicate Client's election to Subscribe to a Service. If a particular Premium Service is selected and
priced in Schedule A, Client may add or remove individual Accounts from its Subscription in writing (including email)
without amending this Agreement. If Client wishes to receive a Premium Service which is not selected and priced,
Client and Clearwater shall execute an amendment to this Schedule A reflecting the change.
® Core Reporting: Includes GAAP Accounting Module, Performance Module, Risk Module and Compliance Module
0.01% (1 basis points)
Of Client Portfolio Market Values.
Core Reporting Minimum Fee: $15,000/yr.
Premium Services:
❑ Customized Automated General Ledger Fee
N/A
❑ Data Feeds
Non-FTP Data Feeds: $2,000/yr.
FTP Data Feeds: No charge.
Payment Terms: Client invoices shall be deemed past due if not paid within thirty (30) days after receipt by Client. Past Due Balance
Interest in accrue at the Wall Street Journal Prime Rate.
Billing Address":
Attention: Dan Matusiewicz Email: danm@newportbeachca.gov
Address: PO Box 1768 Phone: 949.644.3126
Newport Beach, CA 92658-8915 Fax: 949.644.3339
*Fees are based on Client representations of the characteristics of its portfolios including security types, number and type of Data
Feeds, and average account size. Clearwater reserves the right to renegotiate Client fees at any time in the event of a substantial
change in Client's portfolio characteristics. Such renegotiation of Client fees shall only be effective upon a written agreement
between the parties.
**If Client requests that its invoices go to a third party for payment, Client acknowledges that Client remains liable for payment
obligations. Client additionally acknowledges that such third party shall be entitled to review such Client Confidential Information as
necessary to pay invoices and confirm accuracy of invoices.
Client:
Page 10 of 21
(Please initial) Clearwater:
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
(Please initial)
11/09/10
SCHEDULE B
Designated Client Agent Approval
By initialing below Client designates the following individuals as approved Client Agents for the Client's Clearwater Ana lytics System
and Services.
Client Agents shall have the authority to manage services, including but not limited to adding and deleting Accounts, requesting new
Data Feeds, and selecting System options such as compliance rules, accounting assumptions, pricing source and Private Label design
(if applicable). Client Agents shall also have the authority to manage account access by designating account Administrators which
shall designate Authorized Users and request and approve Authorized User Account access and rights.
Changes to Client Agents: Any Client Agent listed below shall have the authority to designate additional Client Agents with written
(including email) notice to Clearwater or remove Client Agents with three days prior written notice to Clearwater.
The following individuals shall have the authorities specified above:
Name
Title
Email
Phone
Dan Matusiewicz
Deputy Director
danm@newportbeachca.gov
949.644.3126
Tracy McCraner
Director
tmccraner@newportbeachca.gov
949.644.3123
Tammie Frederickson
Admin Coordinator
tammief@newportbeachca.gov
949.644.3127
Page 11 of 21
Client: '11 (Please initial) Clearwater:
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
(Please initial)
11/09/10
SCHEDULE D
GAAP SERVICE LEVEL AGREEMENT
Section 1: Product Descriptions
General System Description: The Clearwater Analytics System is an ASP Web site with detailed daily, risk, compliance,
performance and accounting information. Most data is downloadable in Microsoft Excel and in Adobe PDF format.
Reporting and data is available at the aggregate and individual portfolio level. The following provides a description of
some of the key elements of the Clearwater System.
II. Product Descriptions: The following Products shall be made available to the Client and according to the Subscriptions
selected by the Client on Schedule A ("Fee Schedule").
a. ACCOUNTING REPORTS: Clearwater Analytics' Accounting Reports provide independent, Daily Balance Sheet,
Income Statement, and Statement of Cash Flows for portfolios and aggregates. These reports are supplemented
by features including transaction, income and security detail, impairment analysis, trading activity, cash flow
forecast and FAS 157.
Page 12 of 21
GAAP Accounting Report: utilizes Generally Accepted Accounting Principles throughout and contains
the following basic types of reports, which then break out into several, more specific reports
containing expanded security level detail and drill -down functionality:
1. Financials Report: provides Balance Sheet, Income Statement and Statement of Cash Flow
reports. These three components provide a high level accounting overview of an individual or
aggregate account.
2. Holdings Reports: each of the following reports provide the Investor with a different view of
the securities in its portfolio:
i. Portfolio Holdings: report displays a snapshot of all account holdings
at a specific date at the position level.
ii. Tax Lot: report displays a snapshot of all account holdings at a specific
date period at the tax lot level.
Balance Sheet Classification: report groups all securities at the tax lot
level within the portfolio into their appropriate balance sheet buckets.
These buckets include: 1) Cash Equivalents, which includes anything
less than three months from original maturity; 2) Short Term, which
includes anything undera year from maturity; and 3) Long Term, which
includes anything less than a year from maturity. The Balance Sheet
Classification report also shows Investors how many positions reside in
each bucket and the percentage those represent to the entire account.
iv. Security Detail: report is similar to a security master file. This report
contains security -level information, organized at the tax lot -level.
Because of this report's size it is available only as an Excel download.
3. Transaction Reports: each of the following reports provide the Investor with a view of the
transactions which occurred in the Investor's portfolio during the selected period:
i. Trading Activity: report charts all transactions affecting a position such
as: buys, sells, principal paydowns, redemptions, maturities and
security transfers.
ii. Transaction Detail: report is similar to the Trading Activity report, but
includes all account transaction detail, including cash flows. It provides
details for three transaction types: 1) cash affecting transactions
(transactions that compose ending net), 2) payables and receivables
and 3) non -cash affecting transactions.
Money Market Fund Transaction Detail: report shows all buys and
sells and dividends of Investors' money market funds.
iv. Equity Dividends: report shows history of equity dividends.
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10
Page 13 of 21
4. Income Detail Report: a comprehensive report providing all profit and loss detail needed for
each tax lot within each account for the selected time period.
5. FASB Specific Reports:
i. Impairment: report facilitates compliance with U.S. Financial
Accounting Standards Board (FASB) Rule 115-2 by detailing the fair
value and unrealized loss of securities that have been impaired within
and prior to the last 12 months.
ii. FAS 157: report facilitates compliance with FASB Rule 157 guidelines
by allowing Investors to classify their holdings and view their holdings
by assigned Level, as defined by FASB. It is possible to view the report
by Security Type or Market Sector.
iii. Cost Basis Adjustments: report includes all cost basis adjustments on
securities held in a given period.
6. Other:
Cash Flow Forecast: report provides an examination of an account's
projected cash flows, based on scheduled and predicted interest
income, paydowns, coupons and maturities. Forecasts are grouped
into date ranges and can be drilled down to specific days and individual
CUSIPs.
ii. Assumptions: report contains a record of predetermined Investor
account parameters.
ii. Period -End Report Files: static reports designed to allow Investors to book journal entry numbers into
its general ledger. Available for download by Investor within one (1) business day after the end of each
month for GAAP accounts.
b. RISK REPORTS: Clearwater Analytics' Risk Reports provide tools for measuring, understanding and reporting on
portfolio risk available for all risk categories. Descriptions of key Risk Reports follow:
Risk Summary: report provides a dashboard view of risk exposure across specific accounts or
aggregate accounts with drill -down data that reaches down to the CUSIP level for individual holdings.
These drill -down reports are grouped in the following ways:
i. Issuer Concentration: report provides a summary of risk concentration
by each issuer, including the percentage of risk for each investment
and groups the portfolio holdings by ultimate issuer.
ii. Currency: report provides a detailed look of at Investor's exposure in
each currency.
Country Exposure: report provides a detailed look at investment risk
exposure by country.
iv. Security Type: report provides a detailed view of investment risk
exposure by security type. Information is down to a CUSIP level and
ties out to reports in the Compliance Report.
v. Duration: a fixed income report that charts and displays risk exposure
by duration.
vi. Market Sector: a fixed income report that charts and displays risk
exposure by market sector with options of viewing the report by
Industry Sector or Industry Subsector.
ii. Credit Reports: bucket all reports by credit rating. This allows Investors to view their risk exposure in
each credit, with expandable fields that drill down to each CUSIP. The reports break out investments
into Long Term and Short Term categories:
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10
i. Credit Watch: a fixed income report that collects credit rating
information from credit reporting agencies and measures it against
portfolio holdings and displays which positions are scheduled for
Watch Downgrade, Watch Upgrade or Outlook.
ii. Credit Events: a fixed income report that is similar to the Credit Watch
report, but focuses on recorded credit movements relevant to a
Investor's positions holdings.
iii. Comparison Reports: provide Investors several report views to compare account risk:
i. Index Comparison: report measures portfolio risk against a
predetermined benchmark.
ii. Risk Comparison: for Investors who commonly use multiple asset
managers to manage multiple accounts, this report allows Investors to
view accounts in one repository and weigh their risk exposure against
one another, based on a pre-set benchmark.
VaR (Value at Risk) Comparison: the VaR report condenses various
portfolio risks into a single number to provide a standardized estimate
of how much the portfolio could lose over the specified time period at
the specified confidence level.
iv. Equities Reports: provide Investors with a view of the risk exposure of equities portfolios:
i. Equities Risk Summary: report displays a high-level dashboard view of
an Investor's risk exposure weighted towards investment
characteristics more indicative of equities.
ii. Equity Market Sectors: report functions as it does under Fixed Income
investments, with buckets broken out into various market sectors.
Equity Market Capitalization: displays a breakdown of investments
categorized by Large Cap, Mid Cap, Small Cap and Unknown, including
a Summary of assets.
c. PERFORMANCE REPORTS: Clearwater Analytics' Performance Reports allow Investors to compare the
performance of their investment managers to each other and to a custom benchmark using consistent
assumptions. Descriptions of key Performance Reports follows:
i. Summary: high-level report, containing a summary of portfolio performance data. Performance
overviews are viewable by Total/Index/Excess. In addition, Performance data can automatically reflect
any tax adjustment needed as a result of any tax exempt holdings. A Summary of portfolio
performance can be viewed through the following reports:
i. Daily: report displays a daily update of an account's Total Return,
Income Return and Price Return. This report adds the ability to view
each chart by Tax Adjust status.
ii. Monthly, Quarterly, Yearly, Since Inception Performance: reports
allow for data analysis month -over -month, quarter -over -quarter, year -
over -year, or since inception viewable by Total/Index/Excess. These
reports add the ability to view each chart by Cumulative or Tax Adjust
status.
Custom Performance: report displays individual bar charts of
Total/Index/Excess, Total/Income/Price and Book Return/Total Return
side -by -side. The Custom Report adds the ability to view each chart by
Average Annual or Tax Adjust status.
ii. Performance Attribution*: report attributes portfolio excess performance to four different areas:
Duration, Allocations to Credit/Sector, Security Selection and Fees. The Performance Attribution report
explains a portfolio's tracking error during a period by analyzing daily differences between the portfolio
and its index. The report measures the performance effect of duration decisions, credit and sector
Page 14 of 21 Clearwater Analytics 11/09/10
General Terms and Conditions &
Service Level Agreement
allocations, security selection, and fees. *This report only functions when Clearwater is provided
underlying security level detail by the applicable benchmark.
iii. Performance Comparison: report groups holdings by their assigned benchmark. For lnvestors who
commonly use multiple asset managers to manage accounts, this report allows the Investor to
compare the performance of the asset managers based on pre-set benchmarks. The Performance
Comparison report also provides risk -adjusted return values, which highlight how well the portfolio is
using risk as well as Information and Sharpe Ratios. This report adds the ability to view each chart by
Tax Adjust status.
iv. Performance Contribution: individual security level performance showing how an individual security
contributes to the overall performance of the portfolio. Report is viewable by Sector, Duration, Credit
Rating, Security Type, Market Capitalization and Country.
d. COMPLIANCE REPORTS: Clearwater Analytics' Compliance Reports monitor the daily status of the aggregate and
individual investment portfolios in relation to the Investor's investment policy. It also delivers automated
notification of current violations and maintains a history of prior violations.
i. Status Violations
ii. Historic Violations
Compliance Status: report provides an overview of all daily,
compliance violations within each account. A list of the Investor's
compliance rules is displayed, along with the limits for each rule and
violations are flagged whenever a violation occurs. All rules are pre-set
by Investor and can be adjusted at any time by a Clearwater account
manager upon Investor request.
ii. Compliance Violations: report displays specific violations, which are
expandable for contributor level detail.
History by Date: report charts and displays Compliance Report
violations based on when they occurred, listing all the violations on an
account for a given day. Additionally, violations can be viewed by date
ranges.
ii. History by Rule: report shows a running number of days in violation
per rule for a specific time period.
a. CUSTOMIZED AUTOMATED GENERAL LEDGER: report allows the Investor to define a customized set of journal
entries based on a customized set of General Ledger Accounts in a format that meets the Investor's journal entry
preparation needs. Client and Clearwater shall agree in writing on the Customized Matrix, format and content of
the GL prior to Clearwater beginning any development work. A Customized Matrix is a Client defined set of
customized journal entries mapped to Client GL accounts. A single Customized Matrix may apply to unlimited
number of accounts. In the event Client wishes to define a separate set of customize journal entries to map to
any of its accounts, that will be deemed an additional Customized Matrix. Service available upon request for an
additional fee.
III. Exclusions: the Clearwater System does not currently handle derivatives including futures, swaps, options and
forwards.
Page 15 of 21
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10
SLA
Section 2: Services Description
Definitions:
a. Clearwater Operations Manager: Responsible for overall Investor satisfaction as well as training, education and
account escalation. The Operations Manager works to support Account Managers and Reconcilers.
b. Clearwater Account Manager: Monitors the daily reconciliation and data "scrubbing" processes. Facilitates
Investor requests and account changes as well as the month end reporting process.
c. Clearwater New Account Manager: Oversees on -boarding, including initial Investor training, Parallel Close
comparisons and the Compliance Report set-up process.
d. Data Feed: programs that collect or load Investor data from a Client Safekeeping Location and make it available
to the Clearwater server.
e. Safekeeping Location: Investor service provider which maintains investment data for Investor which Investor
wishes to have included in its Clearwater reports.
f. Parallel Close: process where Investor and Clearwater each separately close a month of Investor's fiscal numbers
and compare the fiscal number through a tax lot by tax lot comparison at the balance sheet level and collaborate
to understand and correct errors and differences.
g•
Reconciliation: Clearwater compares daily cash positions and transaction data with Investor Safekeeping
Location records to ensure the accuracy of transactions and holdings.
II. New Accounts Process: Clearwater account creation and load (See SLA Section 3: System Requirements), initial
account reconciliation, training Investor personnel, conducting a representative Parallel Close and Compliance Report
set up and review process. Process can take 4-20 weeks depending on factors including number of accounts, number
and type of Data Feeds, cooperation of Client Safekeeping Locations, timeliness of receipt and quality of Client Data,
scheduling of meetings with Investor.
III. Existing Client New Account Set-up Process: Clearwater will prepare an account for initial upload within three (3)
business days of request from Investor and the receipt of necessary account information and security load
information such as original cost facilitated by Investor. Clearwater must be given access to data by Client
Safekeeping Locations on or prior to the day of funding or first day of expected reporting. Beginning date and account
balances will be the date Clearwater receives access to Investor data. Clearwater does not retroactively load historic
transactions. Access to accounts will be given to Investor after proper reconciliation procedures have been performed
as outlined in the SAS70.
IV. Daily Data Load and Reconciliation:
a. If Client Safekeeping Location provides daily delivery to Clearwater of unreconciled data through a Data Feed by
5 a.m. MT, Clearwater will load the daily unreconciled data file and such data shall be available for view by
Investor by 8 a.m. MT. Delayed Data Feeds will result in delayed load of unreconciled data files as well as delayed
reconciliation of such data. Data gathered from Web scrapes is not guaranteed to be reliable nor up-to-date.
b. Unreconciled data shall be labeled "Unreconciled" on Account Overview and Reconciliation Status Reports.
Page 16 of 21
c. Clearwater will use best efforts to make reconciled accounting data and reports available to the Investor no later
than 10 a.m. MT each business day.
d. Outstanding discrepancies outside the control of Clearwater will be addressed to Investor for resolution and
investigation on a best efforts basis. All items should be corrected by Investor, the Client Safekeeping Location or
Clearwater, as appropriate, before the close of business after notification.
e. Upon notification by Clearwater, where appropriate, Investor or the Client Safekeeping Location will modify the
transaction record, associated price or security master information within one business day.
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10
SLA
Section 3: System Requirements
Introduction: to provide its services, Clearwater collects daily account holdings and activity reports from a wide range
of institutions in a variety of file formats. These guidelines have been established to facilitate this data is processing.
II. File Format Options
a. We currently support the following flat -file formats:
CSV
ii. Fixed -width
b. At this time, SWIFT, BAI, PDF, Excel (.xls, .xlsx), Word (.doc, .docx), or other proprietary formats are not
supported.
111. Data Transmission
a. We currently support the following means of data transfer:
i. SSH FTP (SFTP). Files may be pushed to or pulled by Clearwater (Pulled by Clearwater is the preferred
method).
ii. Plain FTP with PGP-encrypted files. Files may be pushed to or pulled by Clearwater.
FTP over SSL (FTPS). Files must be pulled by Clearwater.
b. For security purposes, Clearwater requires the use of industry -standard encryption on any files transmitted using
unsecured transfer protocols. E-mail lacks adequate security to serve as a data transmission method.
IV. Reconciliation Overview: Clearwater reconciles holdings, transactions and cash on a daily basis. These investment
data elements are inter -dependent for Clearwater to complete a full reconciliation. As a trade -date -based accounting
system, Clearwater recognizes holdings as of the trade -date and cash movements as of the settle date. Clearwater
accepts these basic types of information:
a. Transactions: explain all changes in tax lot or position level holdings from day-to-day. Any transactions that do
not affect holdings or cash (e.g. memo or accrual records) should be readily distinguishable or excluded from the
file. As such, every transaction should affect a holding, and every change in a holding should result from a
transaction.
b. Tax lot Holdings: are based on trade -date as of the end of the previous business day. Tax lot level holdings data
consists of separate records for each purchase of a given asset and contains the original purchase data including
acquisition date and price. If this data is not provided on a daily basis, it will be required separately at the time of
each account load.
c. Positions: are also based on trade date as of the end of the previous business day. However, position data
subtotals the total holdings of an account for a given investment vehicle rather than showing separate line items
for each investment. Clearwater would like to have a position file in addition to the tax lot file for use as a cross-
reference.
V. Data Requirements: The following tables comprise the full range of data fields used by Clearwater for reconciliation.
Please provide all available fields for each applicable account type. Required (R) fields are critical to reconciliation and
must be supplied before the data can be processed. Strongly advised (SA) fields will reduce the questions Clearwater
must ask to ensure data accuracy. Not applicable (N/A) fields are unnecessary for that asset class. The remaining
unmarked fields are useful to work through troubleshooting or consistency checks.
Page17 of21
Clearwater Analytic
General Terms and Conditions &
Service Level Agreement
11/09/10
a. Holdings
Account Number
R
R
R
R
CUSIP*
ISIN*
SEDOC*:':
Ticker*
Alternate Security Identifier
Alternate Identifier Description
Currency
Description
SA
SA
Maturity Date
n/a,
SA
n/a
SA.
Current Coupon Rate
SA
n/a
SA
Original Trade Date
SA
SA SA
Original Settle Date
SA
SA
SA
Notional/Units
R
R
R
Factor*** n/a
Factorized Units**
Original Cost
n/a
SA
SA
SA
Original Face***
n/a
n/a'
Original Price n/a
Current Market Price
Amortized Price
Current Accrued Interest
n/a
Page 18 of 21
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10
b. Transactions
Account Number
R
R
R
R
CUSIP*
ISIN*
SEDOL*
Ticker*
Alternate Security Identifier
Alternate Identifier Description
Currency
Trade Date
R
Settle Date
R
R
R
Post Date (Actual Settle)
R
R
R
R
Maturity Date
n/a
SA
n/a
Transaction Type
SA
R
R
R
Description
SA
SA
Units
R
R
R
R
Price
Principal
n/a
Accrued interest
n/a
ri/a
Commission or Fee
R
Proceeds (Amount)
Unique Transaction ID
Counterparty
Reversal indicator
Reversed Transaction ID
* Either CUSIP, ISIN, ticker or SEDOL is required for money funds and currency, fixed income and equity accounts. Additional
identifiers are useful but not required.
*** Factor or original face is strongly recommended for fixed income and foreign/multicurrency accounts.
Page 19 of21
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10
SLA
Section 4: System Performance & Maintenance
I. Performance. Clearwater will monitor the CPU utilization of the computer hosting Clearwater System and Services. Should
the average CPU utilization rates on the computer rise above a 50% level (as measured by a 24 hour daily average over five (5)
business days), Clearwater will undertake to add additional hardware to the computer to restore average CPU load factors to below
the 50% threshold.
II. Availability. Clearwater System and Services will be available during the General Hours of Operation. If Unavailable,
Clearwater System and Services applications shall automatically fail over to their contingency servers. Clearwater shall make the
Clearwater System and Services available at a 99.5% level over a calendar month.
III. System Management. Clearwater will undertake either directly or through Third Party Suppliers to monitor and manage
System hardware and software resources, such as disk space, memory and processor time, for the purposes of preventing loss of
data and Clearwater System and Services unavailability. Clearwater uses Third Party Suppliers for hosting the computer that runs
Clearwater System and Services. This hosting service includes redundant network multi -switches and Internet Access adequate to
meet Clearwater's obligations. Clearwater will undertake through Third Party Suppliers to provide industry standard maintenance
and management for the facility hosting the System. The Service Level Agreement between Clearwater and any such Third Party
Suppliers is available for Client review on reasonable request.
IV. Maintenance. Clearwater will conduct all regular maintenance activities on the System based on a predefined schedule or
plan. Clearwater will notify Client at least two (2) days in advance of any Scheduled Unavailability. Clearwater will inform Client of
any anticipated impacts of such Scheduled Maintenance. Client may request changes to the maintenance schedule should any
planned Scheduled Unavailability impact their business, and Clearwater will determine, in its reasonable discretion, whether such
Scheduled Unavailability can be changed. Scheduled Unavailability will not be planned for Weekdays except for Fridays after 6 p.m.
MT. As of the date of this Agreement, Scheduled Unavailability includes the hours of 8 a.m. to 2 p.m. MT every Saturday. Clearwater
will notify Client, as promptly as practicable under the circumstances, of any Emergency Unavailability. Clearwater will use
commercially reasonable efforts to minimize Emergency Unavailability.
V. Product Enhancements. The Client shall receive Product Enhancements of the System during the term of this Agreement at
no additional charge. Product Enhancements shall not include separate Products which Clearwater, in its sole discretion, makes
generally available for a separate fee or charge. If Client desires to add a separate Product, it shall be pursuant to a separate written
agreement between Clearwater and the Client, or pursuant to a Schedule attached hereto. Clearwater will notify Client at least five
(5) business days in advance of the release date of any Major Release, whether deemed a Product Enhancement or the release of a
separate Product that applies to Client under the Agreement. All software is only released for Client use when approved by
Clearwater quality assurance. Clearwater will notify Client of all known and anticipated major impacts and changes resulting from
the Major Release by means of release notes.
VI. Client Data Storage. Client Data loaded onto the System and data that results from the operation of the System on such data
shall be made available on the System Website for a period of two (2) years from the original date. Client Data shall be maintained
in electronic format in Clearwater's data storage facility for a period of seven (7) years. Clearwater will maintain daily backups of all
Client Data held on the system. These backups will be encrypted and kept bath on -and off -site for recovery purposes. Backups of
Client Data will take place during Scheduled Maintenance periods.
VII. SERVICE CREDIT. IF THE SYSTEM IS UNAVAILABLE TO THE CLIENT FOR MORE THAN TWO CONSECUTIVE BUSINESS DAYS, THE
CLIENT'S SOLE AND EXCLUSIVE REMEDY AGAINST CLEARWATER, AND CLEARWATER'S SOLE OBLIGATION AND LIABILITY TO THE
CLIENT WILL BE FOR CLEARWATER TO EITHER, AT ITS OPTION: (A) CREDIT THE CLIENT ON A PER DIEM BASIS (BASED ON THE ANNUAL
FEE) AGAINST FUTURE FEES PAYABLE UNDER THIS AGREEMENT IF THE CLIENT CONTINUES TO USE THE SYSTEM, OR (B) REFUND A
PRO RATED AMOUNT EQUAL TO THE FEES ACTUALLY PAID TO CLEARWATER FOR THAT NUMBER OF DAYS OF THE CALENDAR
MONTH THAT THE SYSTEM COULD NOT BE USED.
Page 20 of 21
Clearwater Analytics
General Terms and Conditions &
Service Level Agreement
11/09/10