HomeMy WebLinkAboutAGR-7312 - CUES INC - GRANITENET SOFTWARE CLOUD SERVICE SUBSCRIPTION AGREEMENT - NOV 19, 2021t
AG R-731a-
GRANITENET SOFTWARE CLOUD SERVICE
S UBSCRIPTION A GREEMENT
This GRANITENET SOFTWARE CLOUD SERVICE SUBSCRIPTION AGREEMENT("AgreemenY')by and
befinreen CUES, Inc. a Delaware corporation, located at 3600 Rio Vista Ave, Orlando, Florida 32805
Provider"), and City of Orange through its Public Works Department, located at 300 E. Chapman Ave.
Orange, CA 92866, ("Subscriber") Hereinafter, the Provider and Subscriber may be collectively referred
to as the"Parties"or where appropriate singularly, as a"Party".
WHEREAS, Provider desires to provide Subscriber with access to Provider's GraniteNet Software
Cloud Service(referred to herein as"GNET Cloud")hosted on the Amazon Web Services("AWS")platform.
WHEREAS, Subscriber desires to subscribe to Provider's Service pursuant to this Agreement at the
rates and terms set forth in the Products and Service Order attached hereto and incorporated in this
Agreement.
NOW THEREFORE, In consideration of the mutual covenants, promises, terms, and conditions
contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, intending to be legally bound hereby, Provider and Subscriber agree as follows:
The following EXHIBITS which are-attached hereto are hereby incorporated in this Agreement:
1. Product and Service Order
2. Representations about GraniteNet Cloud Security&SLAs
1. Definitions
1.1 "Order"means the Products and Purchase Order included in Exhibit 1 that sets forth the software
and subscription details to which the Agreement applies, and any unique product-specific terms
app{icable to Subscriber's subscription,which may be updated from time-to-time with additional
Products and Services as requested by the Subscriber to the Provider in writing.
1.2 "AWS" means Amazon Web Services on which the Provider's Services are hosted.
1.3 "Content" means the data Subscriber collects or stores using GNET Cloud.
1.4 "Documentation" means certain Provider documentation that describes the use, functions,
features,or purpose of the Services or any component thereof, in any medium,which is delivered
to Subscriber by Provider under this Agreement, including, but not limited to, Provider's user
manuals, recommended best practices, training materials, instructions, and complete or partial
copies of the foregoing.
1.5 "Effective Date" means the date on which the Subscriber's responsible designee signs the
Agreement.
1.6 "GNET Access"means the process by which Provider enables its subscribers to access the AWS
platform.
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1.7 "Initial Subscription Term" means the period of time specified on the Product and Service Order
Attachment.
1.8 "Intellectual Property Rights"means patent, copyright,trade secret, know-how,trademark,trade
dress rights, and any other intellectual property or proprietary rights in the Services, Software,
and all processes and facilities utilized by or on behalf of Provider to provide the services
contemplated herein.
1.9 "Permitted Users" means (a) Subscriber's employees (including temporary employees and
contract employees)authorized by Subscriber, in a writing with Provider, to access and use the
Services on Subscriber's behalf, and (b) Subscriber's service providers that need to access to
the Services, provided such third parties are subject to written restrictions comparable to the
restrictions on use in this Agreement and may only use the Services for purposes of providing
Services to Subscriber. The acts and omissions of Permitted Users shall be deemed the acts
and omissions of Subscriber.
1.10 "Renewal Subscription Term" means any extension to this Agreement, commencing upon the
expiration of the Initial Term or any extensions thereto, as provided in this Agreement or
otherwise in the Product and Service Order Attachment as defined herein.
1.11 "Services" means the hosted cloud solution provided to the Subscriber for use by Permitted
Users, which may include GNET WebOffice (View), WebSync and Webinspect software
applications, as set forth in the Order(Exhibit 1).
1.12 "Subscription Fees" means Subscriber's fees for various packages and options of different
seroices pursuant to the applicable sales offering as set forth in the Order, which is paid by
Subscriber for access to the Services.
1.13 "Subscription Term" means the Initial Subscription Term together with any renewal Subscription
Terms.
1.14 "Term" means the term of the Agreement, which begins on the Effective Date and continues
until: (i)this Agreement is terminated by a Party as provided herein or(ii)this Agreement expires
as provided herein,whichever is earlier.
2. Access Rights, License and Services
2.1. Access. Subject to the terms of this Agreement and during the Subscription Term, Provider
grants to Subscriber access rights for each Permitted User using GNET Access to certain
GraniteNet Software Cloud Services specified in the Order (Exhibit 1), which may include:
GraniteNet Web Portal Viewer "WebOffice (Vievuer)", "WebSync", "WebinspecY' and other
desired GNET Cloud products available through the Provider and accessible on the Amazon
Web Services(AWS) platform in accordance with the terms of this Agreement.
2.2. Addina Permitted Users and/or Modifvina Services. In the event that the Subscriber desires to
add or reduce the Services being purchased, the Subscriber and Provider must enter into an
agreed amendment to the Order to provide for the additional modified Services and rate to be
agreed upon. In the event that Subscriber desires to add Permitted Users, the Subscriber must
a)first pay a one-time User Activation fee to Provider to set up and configure a user account for
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each such requested user and(b) enter into an agreed amendment to the Order to pay for the
additional Subscription term at the then agreed upon rate. Any amendments to the Order(Exhibit
1) shall be in writing, reflect the new scope and Subscription Fee(s) and be agreed to by both
Parties. Notwithstanding anything herein to the contrary, such modification to an Order can be
evidenced through email or confirmation.
2.3. AWS Platform. Subscriber understands and acknowledges that the Services are hosted by AWS
within a cloud environment owned and operated by AWS.
2.4. ObliQations, Responsibilities and Restrictions of Subscriber and Permitted Users: Log-In
Credentials provided by the Provider are for Subscriber's internal use by Permitted Users
performing work on Subscriber's behalf in accordance with the subsections below only, and
Subscriber shall not sell, transfer or otherwise provide Log-In Credentials to or allow access to
the Senrices by any other entity or person.
2,4.1. Permitted Users may be required to agree to terms and conditions of use by Provider
and/or AWS in order to proceed with accessing the Services.
2.4.2. Subscriber is responsible for all activities that occur under Subscriber's account unless
such activities are due to the fault of Provider.
2.4.3. Subscriber may allow Permitted Users to use the Services as intended, including rights
to upload, download, store, view, retrieve, query, serve, and execute Subscriber Data,
and use GraniteNet WebSync Modules and the Webinspect application to upload
Subscriber Data, provided such Subscriber Data is owned, licensed or lawfully obtained
by the Subscriber. Subscriber is solely responsible for the introduction and use of its
associated Content stored within the GNET Cloud. Subscriber is responsible for ensuring
that its Content and use of the Services by Subscriber and its Permitted Users complies
with the terms of this Agreement, any applicable third party provider terms and all
applicable laws.
2.4.4. Subscriber shall not without the express written consent of Provider: (a)reverse engineer,
reverse assemble, decompile, or disassemble any technology or software included or
used in the underlying the Services; (b) otherwise attempt to discover the source code to
any underlying technology or software included in the Services; (c) translate or migrate
any of the underlying technology or software underlying the Services into another format,
language, or hardware platForm; (d) make the Services available to anyone other than
Permitted Users;(e)alter or remove any copyright,trademark or other proprietary notices
on or within the Services, underlying software or pocumentation; (fl create derivative
works based upon the Services or underlying software in whole or in part; (g) develop or
modify any software based on ideas, processes or materials incorporated into the
Seroices or(h) knowingly permit any third party to do any of the foregoing.
2.4.5. The Services may be unavailable and/or their performance may be negatively affected
by scheduled and unscheduled maintenance. Provider will use reasonable efforts to
notify Subscriber in advance of scheduled maintenance, but Provider may be unable to
provide advance notice of unscheduled or emergency maintenance. Notwithstanding the
foregoing, the Provider shall provide the Services in accordance with the provisions
contained in Exhibit 2 attached hereto and incorporated herein.
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3. Payment
3.1. Subscription Fees. Subscriber shall pay Provider the Subscription Fees ("Fees")set forth in the
Order(Exhibit 1). Such fees may include the following:
3.1.1. Implementation Fee. This fee is a one-time fee for the set-up and implementation of the
Services.
3.1.2. Annual Subscription Fees. This fee is payable annually in advance for Subscriber's
access to the Services. The annual Subscription Fees for the first year of the Subscription
Term will be invoiced upon the commencement of the Subscription Term. The annual
Subscription Fees for all subsequent years of the Subscription Term will be payable prior
to the anniversary date of the start of the Subscription Term.
3.1.3. User Activation Fee. This fee is a one-time fee for the Provider to set up each Permitted
User to be provisioned to use the Services in accordance with this Agreement.
3.1.4. Fees for Additional Services. In the event that Subscriber increases the scope of
Services, Provider shall invoice Subscriber the applicable fees as identified in an updated
Order.
3.1.5. During the Subscription Term, Provider shall have the right, in its sole discretion, to
increase the annual Subscription Fee and fees for other services by up to three percent
3%) for any renewal Subscription Term by providing Subscriber with at least thirty (30)
days' notice before the end of the then-current Subscription Term,. Provider reserves
the right to increase the Subscription Fee and fees for other services at a higher
percentage for a subsequent renewal Subscription Term in its sole discretion by providing
Subscriber at least sixty(60)days' notice before the end of the then-current Subscription
Term.
3.2. Taxes. Fees stated in Attachment do not include applicable taxes. Unless Subscriber is a tax
exempt entity and provides Provider with reasonable documentation demonstrating tax exempt
status, Subscriber agrees to pay all taxes required of it by law.
3.3. Invoice Terms. Subscriber shall pay in full all amounts owed in an invoice within thirty(30)days
from the invoice date except as otherwise provided in an Order.
4. Term; termination
4.1. Initial Subscription Term. The Initial Subscription Term shall be forthe period agreed to befinreen
the parties and stated in the Order(Exhibit 1). In no event, however, shall the Initial Subscription
Term be less than one year.
4.2. Renewal. The Subscription Term will be renewed only upon the written agreement of the Parties.
4.3. Material Breach. Subscriber may terminate this Agreement, including any and all access and
usage rights for the Services provided herein, for a material breach by the Provider and that is
not cured within thirty (30) days after written notice of such material breach is provided. Should
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Provider fail to cure the material breach within 30 days of receiving proper notice resulting in
termination, Subscriber shall be entitled to receive a refund of its one-time
installation/implementation fees, as well as, a prorated refund of its Senrice fees within 30 days
of termination.
4.4. Either party may, upon the provision of notice, immediately terminate this Agreement and or
suspend its performance thereunder, if the other party (i) files for bankruptcy, (ii) becomes
insolvent, (iii) ceases to do business, or(iv) in the event of a violation of any terms of use of this
Agreement, third party providers and/or any violation of laws.
4.5. Provider may terminate this Agreement and all access rights to the Services in the event of a
material breach by the Subscriber that is not cured within thirty (30) days after written notice of
such material breach is provided.
4.6. Provider may terminate this Agreement if the parties agree that the provision of the Services is
i) no longer commercially viable, (ii)the Senrices are deemed, or Provider reasonably believes
the Services,or any portion thereof,violate an applicable local,state,or federal law or regulation,
iii) Provider has a reasonable belief that the continued provision of Services puts Provider, or its
systems at any operational or security risk, (iv)the Software is no longer used in connection with
the Services. In such event, Subscriber shall be entitled to receive a refund of its one-time
installation/implementation fees, as well as, a prorated refund of remaining Subscription and
Additional Service fees within thirty(30) days of termination.
4.7. The Services will automatically terminate upon the expiration of the Subscription Term or upon
termination of this Agreement. Notwithstanding anything to the contrary in the Agreement, after
the conclusion of the Subscription Term the Subscriber shall be allowed up to thirty(30) days to
retrieve its Content from storage. Subscriber will not have any further right to access or use the
Services. After thirty (30) days from the termination date, the Content may be deleted or
inaccessible to Subscriber. Provider shall reasonably cooperate with Subscriber to facilitate
export of Subscriber's database and media with an understanding that should Subscriber's
media repository exceed its monthly download quota, an additional charge may be incurred in
excess of its monthly quota. Within thirty(30)days from termination,Subscriber will immediately
return or, if instructed by Provider, destroy all GNET Cloud Materials, Documents related to the
Services that were provided by the Provider, any other Provider Confidential Information related
to the applicable GNET Cloud Service, or GNET Cloud Materials.
4.8. Unless Provider terminated this Agreement pursuant to Section 4.4, Subscriber may continue to
utilize the Services for a transition period of up to thirty (30) days after termination of this
Agreement, subject to payment of the applicable Subscription Fees (the "Transition Period").
Should Subscriber require further assistance during the Transition Period, Provider may, in its
sole discretion, offer additional transition services at Provider's then-current rates. In any event,
upon request from Subscriber, Provider shall reasonably cooperate with Subscriber to export
Subscriber's database and media with an understanding that should Subscriber's media
repository exceed its monthly download quota, an additional charge may be incurred in excess
of its monthly quota.
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5. Confidentiallnformation -
5.1. "Confidential Information"means any trade secret or other information of Provider or Subscriber,
whether of a technical, business, or other nature, which is disclosed by one Party ("Discloser")
to the other Party("Recipient")orally or in writing and that(a) is marked"confidential" or(b) is of
a nature that a reasonable person would understand to be confidential, but specifically excludes
any anonymized data.
5.2: Provider Confidential Information specifically includes, but is not limited to: GNET Cloud
Materials, Usage Observations, and suggestions concerning the GNET Cloud Service, or any
other information abouf or involving the Provider GNET Cloud Service. Subscriber shall not
disclose(including, but not limited to, in a press release or public statement)any Provider GNET
Cloud Materials, Usage Observations,Suggestions concerning the GNET Cloud Service,or any
other information about or involving the GNET Cloud Service, except as agreed by Provider in
writing or except as required by the California Public Records Act.
5.3. Gonfidential Information does not include any information that:(a)was known to Recipient before
receiving it from the Discloser; (b) is independently developed by Recipient without use of or
reference to any Confidential Information of the Discloser; (c) is received from a third party who
had a lawful right to disclose such information (without corresponding confidentiality obligations)
to it; or (d) is or becomes part of the public domain through no fault or action of the receiving
Party.
5.4. The receiving Party will: (a) use the Confidential Information of the Discloser solely for the
purpose for which it is provided; (b) not disclose Confidential Information to competitors of the
Discloser; (c) not disclose such Confidential Information to any third party; and (d) protect such
Confidential Information from unauthorized use and disclosure to the same extent that it protects
its own Confidential Information of a similar nature, but using no less than a reasonable degree
of care in consideration of the nature of the Confidential Information. However, the receiving
Party may disclose Confidential Information to its employees, agents or contractors who need to
know such Confidential Information in order to obtain or provide the Services hereunder so long
as the receiving Party limits the scope of disclosure of Confidential Information to only that which
is necessary under the circumstances. The receiving Party shall be responsible for ensuring that
all third parties to whom it discloses Confidential Information are subject to written confidentiality
obligations substantively similar to this Agreement and are restricted to using the Confidential
Information for the sole purpose of obtaining or providing the Services. Each Party will be
responsible for any improper disclosure of Confidential Information by such Party's employees,
agents, or contractors.
5.5. A receiving Party may disclose Confidential Information of the Discloser to the extent required to
satisfy any legal requirement of a competent governmental or regulatory authority, provided that
to the extent permitted by law) it promptly advises the Discloser prior to making such disclosure
and provides Discloser a reasonable opportunity to object to such disclosure or take such other
action as it considers appropriate to protect the Confidential Information.
5.6. Upon the termination of this Agreement and with the request of the Discloser,the receiving Party
will return or destroy(and provide certification of such destruction) any materials in any medium
that contains or refers to Discloser's Confidential Information within thirty(30)days of the request
to do so. Subject to the confidentiality obligations herein, the receiving Party may retain copies
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of Discloser's Confidential Information to the extent required to document its performance or for
compliance with applicable laws or regulations.
5.7. Subscriber shall take all necessary steps designed to ensure that the provisions of this
Section are not violated by any employee, service provider, Affiliated User, Permitted User or
any other person under Subscriber's control or in its service.
6. Ownership, Restricted Rights, Security
6.1. Provider IP Riqhfs. Provider covenants and avers that it owns and shall retain all rights,title and
interests in and to the GNET Cloud Service and the software incorporated therein as the
proprietary product of Provider.
6.2. Data Ownership. Subscriber shall retain ownership of all Subscriber specific data entered into
and/or generated by Subscriber and its Permitted Users' use of the Services (the "Subscriber
Data"). Subscriber shall have no rights to any data in Provider's proprietary format; however,
Provider shall reasonably cooperate with Subscriber to export Subscriber's data from the GNET
Cloud in a mutually agreed file format at Subscriber's request in accordance with the terms
herein.
6.3. Anonvmized Data License. Subscriber hereby grants Provider a limited right to aggregate and/or
anonymize the Subscriber Data during the Term of this Agreement and an unlimited, perpetual
and irrevocable right to use, reproduce, and distribute such aggregated and/or anonymized
Subscriber Data for any legal purpose.
6.4. Subscriber's Usaqe Information. To improve its Senrices and the technical performance of the
Services, Provider shall be permitted to collect information about Subscriber's use of the GNET
Cloud, including CPU and GPU utilization, memory usage, 10 perFormance, content type, client
session length, transmission latency, client geographic and network locations, video and audio
quality, and error and information messages.
6.5. Subscriber Branded License. Certain features of the Services may require the use of
Subscriber's name, logo, trademarks, and/or tradenames ("Subscriber Branding"). Should ,
Subscriber's use of the Services require Subscriber Branding, upon Subscriber's prior written
approval, Subscriber grants Provider a license to reproduce, copy, distribute and use such
Subscriber Branding in Provider's provision of the Services. Subscriber represents and warrants
to Provider that Subscriber has the right to use the Subscriber Branding.
6.6. Provider Intellectual Propertv. Certain portions of the Services may be branded with Provider's
or other third party providers'trademarks, logos and copyright notices. Subscriber agrees that it
will not hide, remove, modify or otherwise change any such trademarks, logos or notices.
6.7. Securitv and Data Privacv. This Agreement permits the Subscriber to store Subscriber Data in
GNET Cloud, which is hosted in a certified data center which is external to the Subscriber's
premises. Provider acknowledges that Subscriber's data ("Data") is a valuable asset of the
Subscriber and that, in entering into this Agreement, the Subscriber is relying upon Provider's
representations of the security, availability, and processing within the GNET Cloud Solution
platForm to protect through encryption and preserve the confidentiality and privacy of
Subscriber's Data.
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6.7.1. Subscriber shall have a shared responsibility for managing Subscriber Data and the
management, operation and verification of local IT controls to access the GNET Cloud
Service. Subscriber shall be responsible for all activities that occur under its account
by its Permitted Users.and for unauthorized access due to the fault of Subscriber.
Provider shall only be responsible for unauthorized access to Subscriber's account
as set forth herein.
6.7.2. Provider shall be responsible for protecting and securing Subscriber Data from
unauthorized access, loss or corruption of Subscriber Data due to the fault of Provider
and in the event thereof, restoration of Subscriber Data. Provider shall be responsible
for the security configuration and management tasks within the GNET Cloud Service
including backup of data, updates and security patches), any application software or
utilities installed on the instances, the configuration of the firewall (called a security
group) on each instance. Unless due to the default of the Subscriber or a party
contracted by the Subscriber other than the Provider, Provider shall be solely
responsible for protecting and presenring the Subscriber Data from loss, corruption,
destruction and for restoring the Subscriber Data to the restoration point in the last
daily backup performed.
6.7.3. Subscriber shall be responsible for all activities of persons, employees, subcontractors,
customers and senrice providers that have a direct relationship with Subscriber, including
but not limited to those contracted with, operated, maintained, controlled and
managed by Subscriber and including Permitted Users and parties with which the
Subscriber has a contractual relationship, such as internet service providers, IT
subcontractors and data security providers.
6.7.4. Subscriber shall be responsible to ensure Subscriber's Data when uploaded by
Subscriber is free from viruses in the GNET Cloud.
6.8. Provider Access to Content. Provider will not access or use Subscriber's Content except as
necessary to maintain or provide the Services, or as necessary to comply with the law or a
binding order of a governmental body. Provider will not(a) disclose Subscriber's Content to any
government or third party or (b) move Subscriber's Content from the GNET Cloud, except in
each case as necessary to comply with the law or a binding order of a governmental body. Unless
it would violate the law or a binding order of a governmental body, Provider will give Subscriber
notice of any legal requirement or order referred to in this Section.
6.9. Service Improvement. To improve and enhance the GNET Cloud Service,Provider may request,
and Subscriber agrees to confidentially provide, information relating to Subscriber's access and
functional use of the GNET Cloud Service, including observations or information regarding the
performance, features and functionality of the GNET Cloud Service, when and in the form
reasonably requested by Provider ("Usage Observations"). Provider will own and may use and
evaluate all Usage Observations for its own purposes to improve the Service. Subscriber will not
use any Usage Obseroations except for Subscriber's internal business purposes of identifying
improvements for the Provider's GNET Cloud Service.
7. ,Warranties; Disclaimers
7.1. Each Party warrants that it has the right and power to enter into this Agreement and to perform
its obligations herein. Provider hereby warrants that it has the right to provide the Services and
grant access to the Subscriber in the manner provided in this Agreement.
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7.2. Provider warrants that the Services shall materially conform to the specifications in the then-
current Documentation. Provider's sole obligation under this warranty (which shall be
Subscriber's exclusive remedy) shall be to use reasonable efforts to correct demonstrated
material defects in the Services, and supply Subscriber with access to a corrected version of
such Services,or a commercially reasonable workaround as soon as practicable after Subscriber
has notified Provider of such defects. Provider's warranty obligations hereunder shall not apply
to the extent the non-conformity results from use of the Senrices or Software contrary to the
terms of this Agreement or the instructions in any related materials.
7.3. EXCEPT AS SPECIFICALLY SET FORTH ABOVE, TO THE MAXIMUM EXTENT ALLOWED
BY LAW, THE SERVICES ARE PROVIDED"AS IS." TO THE MAXIMUM EXTENT ALLOWED
BY LAW, PROVIDER AND ITS LICENSORS,VENDORS AND SERVICE PROVIDERS DO NOT
MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND
PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES.
7.4. PROVIDER DOES NOT WARRANT THAT: (A) OPERATION OF ANY OF THE SERVICES
SHALL BE UNINTERRUPTED OR ERROR FREE OR (B) FUNCTIONS CONTAINED IN THE
SERVICES SHALL MEET THE SUBSCRIBER'S REQUIREMENTS.
7.5. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT PROVIDER IS NOT RESPONSIBLE
FOR: (I)THE ACCURACY OR INTEGRITY OF ANY DATA SUBMITTED BY SUBSCRIBER OR
PERMITTED USERS OR (II) THE PERFORMANCE OF SUBSCRIBER'S OR PERMITTED
USER'S EQUIPMENT,SUBSCRIBER OR(III)ANY DOWNTIME, LOSS OR CORRUPTION OF,
BREACH OF OR LOSS OF DATA THAT OCCURS AS A RESULT OF TRANSMITTING OR .
RECEIVING DATA OR VIRUSES BY OR FROM SUBSCRIBER VIA THE INTERNET.
8. Infringement Remedy
8.1. In the event the Services become, or in Provider's opinion are likely to become, the subject of a
claim of infringement of a patent, trade secret or copyright, Provider may, in its sole discretion;
a) procure for Subscriber,at no cost to Subscriber,the right to continue to use the Services; (b)
replace or modify the Services, at no cost to Subscriber, to make them non-infringing, provided
that substantially the same functionality is provided by the replacement or modified Services; or
c) if in Provider's judgment the right to continue to use the Services cannot be reasonably
procured or the Services cannot reasonably be replaced or modified,terminate the subscription
to use all or just the potentially infringing portion of the Services and grant Subscriber a pro-rated
refund on any advance Subscription Fees paid for such potentially infringing portions of the
Services for the remainder of the Subscription Term already paid.
8.2. In addition to its obligations under Section 8.1 above, Provider will fully defend, indemnify, and
hold Subscriber and Subscriber's Indemnitees(Council members, officers, partners, employees
and agents) harmless from and against any loss, cost, and expense in connection with a third
party claim that the Services infringe on any trade secret or copyright of others. Provider's
obligations under this indemnification are expressly conditioned on the following:
8.2.1. Subscriber must promptly notify Provider in writing of any such claim; and
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8.2.2, Provider or its vendor or service providers, as applicable, must have sole control of the
defense of any such claim and of all negotiations for its settlement or compromise; and
8.2.3. Subscriber must reasonably cooperate with Provider to facilitate the settlement or
defense of the claim.
9. Limitation of Liability
9.1. IN NO EVENT WILL SUBSCRIBER OR PROVIDER BE LIABLE TO THE OTHER PARTY FOR
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY
DAMAGES IN CONNECTION WITH THE PROVISION OR USE OF THE SERVICES OR
SOFTWARE REGARDLESS OF THE THEORY OF LIABILITY.
9.2. PROVIDER SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY LOSS OF REVENUES, LOSS
OF PROFITS, OR LOSS OF BUSINESS, ARISING OUT OF SUBSCRIBER'S USE OF, OR
INABILITYTO USE,OR THE PERFORMANCE OR NONPERFORMANCE OF,THE SERVICES
OR THE SOF INARE AND IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF
ANY PARTY EXCEED TWICE THE AMOUNT OF SUBSCRIPTION FEES PAID BY
SUBSCRIBER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH
THE CLAIM FIRST ACCRUED.
10.Miscellaneous
10.1.Conflicts. In the event of a conflict between the terms of this Agreement and any Exhibit hereto,
the Agreement is controlling.
10.2. Public Announcements. Conditional upon Subscriber's prior written approval, Subscriber grants
Provider and its affiliates the right to use Subscriber's name, logo, trademarks and/or trade
names in press releases, product brochures, internal reports,shareholder reports, proposals and
demos indicating that Subscriber is a Subscriber of Provider. Except for disclosures required by
public companies, all other public statements or releases shall require the mutual consent of the
Parties.
10.3. Indeqendent Contractor. The relationship of the Parties hereunder is that of independent
contractors, and neither Party shall be considered to be a partner, joint venture, employer or
employee of the other under this Agreement.This Agreement creates no agency in either Party,
and neither Party has any authority whatsoever to bind the other Party in any transaction or make
any representations on behalf of the other Party.
10.4.Audit. Provider, in its sole discretion, may audit Subscriber's use of the Services at any time to
verify compliance with the terms of this Agreement. Subscriber agrees to cooperate with such
audit and provide Provider with reasonable assistance and access to information. If the audit
reveals a violation by Subscriber, Subscriber shall pay Provider all fees actually due and pay all
costs and fees for such audit in addition to any other remedy available to Provider under the
terms of this Agreement. If Provider determines or reasonably believes any Subscriber Data
violates the terms of this Agreement, Provider will notify Subscriber and request that such data
be removed from GNET Cloud. If Subscriber fails to remove the data within two business days
of its receipt of Provider Notice, Provider shall remove or suspend Subscriber's Services in its
sole discretion.
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10.5.Survival. Neither expiration nor termination of this Agreement shall terminate those obligations
and rights of the Parties pursuant to provisions of this Agreement which by their express terms
are intended to survive and such provisions shall survive the expiration or termination of this
Agreement. Without limiting the foregoing, the respective rights and obligations of the Parties
under Sections 5, 6, 7, 8, 9 and 10 shall survive the expiration or termination of this Agreement
regardless of when such termination becomes effective.
10.6.Amendment. No change or modification of this Agreement shall be valid unless in writing and
signed by all Parties to this Agreement; provided, however, the Attachment can be updated
through written confirmation of such terms through written or electronic correspondence.
10.7.Notice. Any claim, payment, demand, invoice, notice or declaration of any kind which must be
delivered to the other Party, shall be in writing and served: (i) personally; (ii) by a
recognized overnight courier providing a written confirrriation of delivery; or(iii) by United
States first-class mail (postage prepaid), addressed to the Party at its address sefi forth
below or at such address as either Party may advise the other in writing from time-to-
time. Notices given hereunder shall be deemed to have been given on: (i) the date of
personal delivery; (ii) the date of delivery as documented by the overnight courier; or (iii)
on the third business day after the date of mailing.
To Provider at: Cues, Inc.
Attn: President Legal Counsel
3600 Rio Vista Ave
Orlando, FL 32895
To Subscriber at:City of Orange Public Works Department
300 E. Chapman Ave.
Orange, CA 92866
10.8.Assianment. Provider may not assign or otherwise transfer any rights, duties, obligations or
interest in this Agreement or arising hereunder to any person, persons, entity or entities
whatsoever without the prior written consent of the Subscriber, or its appointed Attorney or their
respective appointed representatives which shall not be unreasonably withheld. Subscriber's
consent to any assignment shall be conditioned upon Subscriber retaining all rights it has at law
against Provider as Assignor. Any attempt to assign or transfer without such prior written consent
shall be void. Consent to any single assignment or transfer shall not constitute consent to any
further assignment or#ransfer. In the event that Provider assigns this Agreement in compliance
with this provision, this Agreement and all of its provisions shall inure to the benefit of and
become binding upon the Parties and the successors and assignees of the respective Parties.
10.9. Force Maieure. Neither Party shall be in default or otherwise liable for any delay in or failure of
its perFormance under this Agreement if such delay or failure arises by any reason beyond its
reasonable control, including any act of God or the common enemy or earthquakes,floods,fires,
epidemics, pandemics, riots, telecommunications delays, failure of electrical power, lightning,
national emergency, war, action of court or public authority, terrorist act, military action, civil
disturbance, internet outages,failures or delay in transportation or communications.The Parties
will promptly inform and consult with each other as to any of the above causes which in their
judgment may or could be the cause of a delay in the performance of this Agreement.
11
10.10.Waiver. The waiver by either Party of a breach or violation of any provision of this Agreement
shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or
any other provision hereof.
10.11. Severabilitv. In the event any provision of this Agreement is held to be unenforceable for any
reason,the unenforceability thereof shall not affect the remainder of this Agreement,which shall
remain in full force and effect and enforceable in accordance with its terms. With respect to any
unenforceable provision, the applicable arbitrator or court shall deem the provision modified to
the extent necessary, in such adjudicator's opinion,to render such term or provision enforceable,
and the rights and obligations of the Parties shall be construed and enforced accordingly,
preserving to the fullest permissible extent the intent and agreements of the Parties set forth
herein.
10.12. Governina Law.The laws of the State of California,without regard to conflict of laws principles,
will govern all matters relating to or arising out of this Agreement, its subject matter and the
transactions it contemplates, including,without limitation,the validity, construction, performance
and enforcement of the Agreement and any legal actions relating to its subject matter. The
prevailing Party to any dispute or litigation concerning or related to this Agreement shall be
entitled to recover its costs, expenses and reasonable attorney fees incurred in connection with
the dispute or litigation.
10.13. Venue. Each of the Parties hereto agrees that any legal or equitable action or proceeding with
respect to this Agreement shall be brought only in a court of the State of California in the United
States of America, in the County of Orange, and each of the Parties hereto submits to and
accepts generally and unconditionally the jurisdiction of those courts with respect to such Party's
person and property. Each Party hereby irrevocably waives any objection to the laying of venue
of any such action or proceeding in the above-described courts.
10.14. Dispute Resolution. If any dispute arises, the Parties will use good faith efforts to resolve it
within thirty(30)days (or any other time period that the Parties may agree on).
10.15. If the Parties cannot resolve the dispute informally within such time period, any dispute, claim
or controversy arising out of or relating to the Agreement orthe breach,termination,enforcement,
interpretation, or validity thereof, including the determination of the scope or applicability of the
agreement to arbitrate, shall be determined by a single arbitrator through the services to be
defined as agreed by the Parties.
11. Insurance. CUES shall maintain cyber liability insurance coverage with a limit of liability of at least
1 million per occurrence and in the aggregate during the term of this Agreement and deliver a
certificate of insurance evidencing such coverage to Subscriber.
12
IN WITNESS WHEREOF,the Parties hereto have caused this Agreement to be executed by their properly
and duly authorized officers or representatives as of the date first set forth below.
SUBSCRIBER PROVIDER
Signa ure Sig ture
s '' Ur9"lThomasR. Hatch
Printed Name Printed Name
Interim Citv ManaqeT n Ih I
Title Title
l/ / lr n" 2c zl
Date Date
Business Tax Certificate No.
As applicable)
Approved as to form:
II - 11 — .
Mary E. Bin 'ng Date
Senior Assi tant City Attorney
13
EXHIBIT 1
Product and Service Order
The Standard of the industry
E
Quote#QU04878
Matthew Lorenzen
City of Orange Public Works Dept.
637 W. Struck Ave.
Orange, CA 92867
Office: (714) 532-6488
mlorenzenCa citvoforanae.ora
Matthew Lorenzen:
Thank you for the opportunity to quote the GraniteNet Asset Inspection and Decision Support software platform
from CUES,the most trusted brand in North America for pipeline inspection technology.
For more than a decade, CUES has supplied the industry with the most innovative and extensible software platForm
available to help utilities and contractors alike achieve their regulatory and productivity goals. Our clients demand
software that is able to be customized to meet their needs while supporting the process flows unique to their
organization. GraniteNet offers unmatched flexibility to create many different types of inspections in addition to
CCN assessments such as cleaning inspections, smoke test inspections, GPS surveys, inclination surveys, hydrant
inspections, light pole inspections etc. Additionally,this new software platForm offers a very simple User Interface
to allow people to quickly become proficient users,often in a matter of minutes.
For those organizations that desire more advanced capabilities such as GIS map (ESRI/Cartegraph) integration,
CMMS integration (Cityworks, Maximo, Infor Hansen), User Management controls, enterprise database support
Oracle & SQL), a Web-based Portal, custom Scoring formulas, etc., the CUES GraniteNet software platform can
meet the needs of the City of Orange Public Works Dept. now or in the future as the requirements evolve.
The following is a short description of each GraniteNet software package and the suggested optional modules to be
included in the software package for the City of Orange Public Works Dept..
Please feel free to contact me with any questions,comments or concerns.
Sincerely,
Edwin Esperanza
eesperanzaC cuesinc.com
Office: (800) 327-7791 x306
Mobile: (407) 608-8021
Page 1 of 4 QU04878-GraniteNet Cloud HosNng Quote,City of Orange(CA) 07/20/2021
14
SaaS WEBOFFICE CLOUD
The GraniteNet SAAS Cloud Hosting Service,powered by Amazon Web Services,is a complete solution provided
by CUES to enable each organization to transform their on-premise infrastructure to the Cloud to build an effective
business and technology strategy. CUES,as an Amazon Technology Partner, provides a turnkey solution comprised
of Wastewater/Public Works asset management software - and hosting -that can be implemented by CUES cloud
specialists in amazingly fast turnaround times.The GraniteNet SAAS Cloud Service is offered as a one year contract
which includes by default a dedicated virtual database server, a web server, a 1 TB storage volume for inspection
media, a 1 TB monthly data download capacity from the Cloud, and access for 1 administrative Permitted User.
Increased Permitted Users, storage capacity or monthly download capacities can be added for an additional annual
cost as needed. CUES Cloud customers immediately gain access to and redundancy from the AWS infrastructure
that CUES configures for its Cloud customers including back-ups,server patch maintenance and OS upgrades. CUES
and AWS are responsible for protecting the infrastructure that runs all of the services offered in the AWS Cloud,
commonly referred to as"Security of the Cloud". GraniteNet's Web applications are secured via Amazon Security
Groups and an Amazon Web Application Firewall (WAF). The GraniteNet SAAS Cloud Service will substantially carry
forward AWS'standard service level commitment policies published online. The service is subject to the acceptance
of the terms and conditions of the GraniteNet Software Cloud Service Subscription Agreement(a separate contract)
which is renewable annually through a contract extension.
The complete Cloud Hosting service also includes the GraniteNet WebOffice (Viewer) solution which is a
browser-based, read only Web Application built for assessing infrastructure, videos and statuses about assets from
virtually any portable device (iPad, Android, Chrome Book, Surface Pro, smart phone, etc.) with an internet
connection. It streamlines operations by enabling real time, map-driven views into the condition of utility
infrastructure as well as the status of tasks assigned to crews for greater efficiency and productivity. No software
needs to be installed by end users. Simply log in and view productivity dashboards, plan and assign tasks to crews,
review inspections, ruri filtered reports,and generate PDF's to share to others from virtually any internet-connected
device.
By default the Cloud SAAS service also provides GraniteNet WebSync which is a powerful connectivity tool that
enables.entities with vehicular field crews to use encrypted internet connectivity to transmit inspection data and
video from the field (such as trucks, mobile inspectors, etc.) wirelessly to the Cloud SAAS. There's no need for
carrying storage drives. Inspectors simply finish their inspection and the transfer will begin automatically in the
background while new inspections are started or while crews move to the next location.
Unlike some inferior methods use by others,WebSync is unique in that it truly synchronizes data instead of inerely
making a copy of a file at a location such as Drop Box or Google Docs -which requires a manual two-step process
susceptible to human error. Whether synching out new, incomplete inspection tasks to the field trucks from
WebOffice or synching in data from the field to the Cloud,WebSync happens at the database level to ensure precise,
up-to-the-minute statuses that do not require human intervention. Additionally with growing cyber threats, many
organizations can no longer afford to risk intrusions that can happen when portable media devices are connected to
the network. WebSync is highly secure because it uses Web API's that provide Secure Sockets Layer(SSL) security
that can be encrypted. Data exchange happens quickly so that QA/QC reviewers do not have to wait for inspectors
to physically return with storage drives.
GraniteNet WebSvnc Module
The GraniteNet WebSync Module allows users to transfer inspection data, asset information, and media,via the
internet, back and forth between a GraniteNet license in the field and the office.
GraniteNet H.264 Module
The CUES GraniteNet H.264 Module is an optional video capture codec that allows for inspection video capture in
H.264 format.This results in significant video file size reduction.The H.264 coding format is currently one of the
most commonly used formats for the recording,compression,and distribution of video content via the web. This
patented format is capable of providing impressive video quality at substantially lower bit rates(less storage)than
Page 2 of 4 QU04878-GraniteNet Cloud Hosting Quote,City of Orange(CA) 07/20/2021
1$
previous standards(i.e.,half or less the bit rate of MPEG-2, H.263,or MPEG-4 Part 2),without increasing the burden
on a wide variety of networks and systems.
To stream video via the GraniteNet WebOffice Server, the video format must be in the H.264 (.mp4)format. CUES
provides the necessary coding libraries and pays the royalties for each GraniteNet Inspection license which is
activated with the H.264 module.
GraniteNet Web Server Implementation
The GraniteNet Web Server Implementation Includes the following provided by a CUES Web SoRware
Implementation Specialist:
Dedicated project management for installation and configuration of Web Server
Remote web sessions to plan,execute,and test implementation of Web Server into GraniteNet Office
Environment and GIS maps(if available)
Office training and access to follow-up sessions as needed
Pricing follows on next page.
Page 3 of 4 QU04878-GraniteNet Cloud Hosting Quote,City of Orange(CA)07l20/2021
16
New Asset(s)or Existing Asset(s]are shown in bloe itallc below for reference
GY111 SaaS WEBOFFICE CLOUD NEW 516,075 1 $16,075 16,075
GN60Q G aniteNet WebSync Module 995 3 $2,985 2,985
NEW,NEW,NEW
GN560 GreniteNet H.2fi4 Mcdule NFW 380 1 380 380
GN579 GraniteNet Web Server tmplementatian NEW 5,000 1 $5,000 5,000
Grand Tatal $24,440
Thls Quotatlon ls valfd for 90 days Por the itemtzed produds and servlces listed here7n and ts subJect to the Pollowing Terma and Conditio.Delfvery of a
purchase order by Buyer pursuant to this quobHon shall be deemed Lo be an aaeptance by euyer of tf e Terms and Conditions.Protata payments shall
become due upon the shipment of goods andJor delivery of services. Selter sha not be Ilable w penalized tor arry detays beyand Its rreasonable oontroi,
Induding but not IimlGed to oP God,ac of Buyv,carcier delays,aaiden,etc In the event of arry such delay,delivery or perfortna ae shall be extended
a000rdingly and shall not relievfl Buyer of its ablfgatlon t aoeept and maka payment aet 30 days from the date deliverables are provided.Past due irnoices are
subject to 1.5%per moreth(1846 APR)dwrge or as p mit6ed hy applimbie law.Paymenls made by credit card may be subject m an additiwwl 3%flnan fee
a[the tlme of proaessing.No merchandEse wtil Ire ameptable 1or retum without a MaterWl Retum W tlrorlraUan Numher wriiten on the outside of tlie package,
No retums wlll be aacept on used electii l parts.
Page 4 of 4 QU04878-GraniteNet Cloud Hosting Quote,City of Orange(CA)07/20/2021
17
GRANITENET SOFTWARE CLOUD SERVICE SUBSCRIPTIONAGREEMENT
EXHIBIT 2
CUES Representations about GraniteNet Cloud Security and SLA's
CUES is an Amazon Technology Partner that provides software and connectivity services on AWS.
As a customer of CUES,you(the"Subscriber")gain access to Cloud hosted infrastructure that CUES will configure
for you that will run GraniteNet software using AWS services specified within the GraniteNet Cloud service
Product and Service Order.This"Representations"document is intended to be made a part of your GRANITENET
SOFTWARE CLOUD SERVICE SUBSCRIPTION AGREEMENT (the "Agreement") with CUES. It is expected that
detailed technical evaluations and demonstrations have been completed previously through a customer's
internal due diligence process. Furthermore,it is understood that that you are solely responsible for limiting the
sharing of your organization's sensitive data, adhering to your organization's security requirements, and
complying with all applicable laws and regulations.You are responsible for any personal data that you transmit
into or out of the GraniteNet Cloud. For more detailed "Security and Data Privacy" legal information please
review the relevant sections of the above referenced Agreement.The following representations shall set forth
at a high level the technical safeguards that CUES implements to protect its customers' Content within the
GraniteNet Cloud.
Securitv and Data Protection
CUES and AWS are responsible for protecting the infrastructure that runs all of the services offered in the AWS
Cloud, commonly referred to as "Security of the Cloud". However, Security and Compliance are a shared
responsibility among all of the parties who utilize the Cloud.
Cloud security is a high priority for CUES to provide to its customers. As a Technology Partner of the largest
Cloud infrastructure provider in the world, GraniteNet Cloud leverages the certifications that AWS has gained
for compliance with ISO/IEC 27001:2013,27017:2015, 27018:2019, and ISO/IEC 9001:2015 and CSA STAR CCM
v3.0.1.
These certifications are performed by independent third-party auditors on behalf of AWS and this widely-
recognized international security standard specifies that AWS:
Systematically evaluates its information security risks,taking into account the
impact of threats and vulnerabilities. 27001
Designs and implements a comprehensive suite of information security
controls and other forms of risk management to address customer and
architecture security risks.
Executes an overarching management process to ensure that the information security controls meet
AWS's needs on an ongoing basis.
Certification for compliance with ISO/IEC has been achieved by AWS for the following components used in the
GraniteNet Cloud:
Amazon Elastic Compute Cloud (EC2) AWS Backup
Amazon CloudWatch Amazon Virtual Private Cloud (VPC)
Amazon Elastic Block Store(EBS) Amazon Route 53
AWS Web Application Firewall (WAF) Elastic Load Balancing(ELB)
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GRANITENET SOFTW 4RE CLOUD SERVICE SUBSCRIPTIONAGREEMENT
In addition to providing the software, infrastructure and services for the GraniteNet Cloud, CUES also
implements a pre-defined set of AWS blueprints and guardrails to help CUES customers adopt Security Best
Practices. The GraniteNet Cloud leverages the robust AWS toolsets noted below to govern and enforce policies
and to detect violations for a comprehensive and layered security posture:
Amazon Control Tower Amazon Config
Amazon Security Hub AWS GuardDuty&Guardrails
Password Mana ement,Authentication Controls and Encrvption
While CUES is responsible for providing continuous oversight over the data hosted on the infrastructure it
provides,you as the customer("Subscriber"), assume responsibility for any activities that occur under the Log-
In Credentials issued to your Permitted Users by CUES ("Provider"), regardless of whether such activities are
undertaken by you, your employees,agents, subcontractors, or any other third party. You are responsible for
maintaining the secrecy and security of the Log-In Credentials provided to you.
CUES provides you with application-level User Access Controls via the GraniteNet User Management Module to
set up groups, roles and privileges for GraniteNet Permitted Users. Additionally,to access the GraniteiVet Cloud,
CUES shall provision Log-In access to enable Permitted Users to use the GraniteNet Cloud service that runs the
GraniteNet suite of applications. You are responsible for the security of both ofi these separate User Account
Log-Ins and you should never provide or share your credentials with a third party. CUES will deploy a password
policy that will regularly require users to create and regularly change complex passwords.
CUES uses AWS encryption solutions by default for industry-standard Transport Layer Security(TLS)encryption
to encrypt customer content in transit fortransport layer security via web communication sessions. Additionally
by default,CUES uses encryption at rest with a minimum encryption protocol of Advanced Encryption Standard
AES) 256-bit encryption. In addition, CUES also provides by default additional layers of protection through
encryption for backups and snapshots within the GraniteNet Cloud service.
Service Commitments:
As a Technology Partner of AWS, CUES will honor and follow the service commitment policies detailed for each
of the services provided within the GraniteNet Cloud service as published online by AWS for failure to meet the
service commitments and hourly commitments specified. Several examples are provided below and any can be
referenced online as needed.
Since Amazon AppStream 2.0 is the primary connectivity service that CUES will provide, it uses commercially
reasonable efforts to make AppStream available to you with a Monthly Uptime Percentage of at least 99.9%
during any monthly billing cycle. CUES will follow the policies detailed in the Amazon AppStream Service Level
Agreement published online by Amazon should it fail to meet its Service Commitment. [A pStream SLA]
Under the Amazon Compute Service Level Agreement for single EC2 Instances, CUES will use commercially
reasonable efforts to ensure that each individual Amazon EC2 instance ("Single EC2 Instance") has an Hourly
Uptime Percentage of at leasf 90%of the time in which that Single EC2 Instance is deployed during each clock
hour(the"Hourly Commitment"). In the event any Single EC2 Instance does not meet the Hourly Commitment,
you will not be charged for that instance hour of Single EC2 Instance usage. [AWS EC2 SLAI
19
GRANITENET SOFTW 4RE CLOUD SERVICE SUBSCRIPTIONAGREEMENT
Central to GraniteNet Cloud is Amazon 53,an object storage built to store and retrieve any amount of data from
anywhere on the Internet. It's a simple storage service that offers industry leading durability, availability,
performance, security, and virtually unlimited scalability at very low costs. The S3 Standard storage class is
designed for 99.99%availability,the S3 Standard-IA storage class is designed for 99.9%availability. Please refer
to its SLA published online. [AWS S3 SLA]
For more detailed information please contact your technical resource at CUES.
20