Anaheim City Council
October 24, 2023

SOFTWARE SER VICE S AGREEMENT
This Software Services Agreement (“Agreement”), dated for purposes of identification only this _____ day of __________, 2023, is entered into by and between the City of Anaheim, a municipal corporation (“Anaheim”), and SwiftComply, Inc., a Delaware corporation (“Consultant”). Anaheim and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

RECITALS
A. Anaheim is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Anaheim Charter; and B. Anaheim desires to upgrade and modernize its water-treatment program systems, including its cross connection backflow prevention compliance systems and its reclaimed water monitoring/management systems, by (1) receiving Consultant’s data-migration, system- implementation, and user-training services and (2) utilizing Consultant’s web-based, software- as-a-service (“SaaS”) products together with their ancillary technical-support services (together, “Project”); and
C. Consultant possesses the skill, experience, ability, and certifications necessary to provide the Project services; and
D. Anaheim has solicited and received a proposal from Consultant, has evaluated Consultant’s qualifications, and desires to retain Consultant to render the Project services under the terms and conditions set forth in this Agreement.

AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and conditions contained herein, the Parties agree as follows:

1. DEFINITIONS
Capitalized terms used in this Agreement and not elsewhere defined herein shall have the following meanings:

1.1 “Account” means Anaheim’s web-based access point for use of the SwiftComply Service and Purchased Modules that requires initial registration by individual Anaheim users.

1.2 “Anaheim Data” means any data, including Sensitive Data, that is (a) provided to Consultant by or on behalf of Anaheim, (b) entered or uploaded into the SwiftComply Service by or on behalf of Anaheim, or (c) derived from any data referenced in (a) and (b) of this Section.

Anaheim Data excludes SwiftComply Data.

1.3 “Anaheim Website” means any website owned and operated by Anaheim. 2 1.4 “Confidential Information” means, with respect to a Party hereto, all information, documents, data, or materials that either (1) are marked or identified as “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking or identification or (2) the Receiving Party (as defined below) knew or under the circumstances, should have known, was considered confidential or proprietary by the Disclosing Party (as defined below). Confidential Information shall consist of all information, whether in written, oral, electronic, digital, or other form that was furnished in connection with this Agreement by the Disclosing Party or its Representatives (“Representatives” is defined as any elected or appointed official, affiliate, director, officer, employee, agent, advisor, or consultant of a Party or any of its subsidiaries or affiliates) to the Receiving Party or to its Representatives. Confidential Information specifically includes, but is not limited to:
(a) Anaheim Data;
(b) Information individually identifiable to Anaheim’s utility customers, including, but not limited to, names, addresses, meters, meter data, backflow devices, potable-water/recycled-water connections, utility usage, and financial data; (c) Any information referenced in the Confidentiality Agreement and any Critical Infrastructure Information (“CII”) referenced in the Electric and Water Critical Infrastructure Information/Non-Disclosure Agreement that Consultant executes concurrently with this Agreement;
(d) Any utility-performance or security-incident documents or reports generated by or for Anaheim; and
(e) Documentation.

Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no breach of this Agreement by the Receiving Party or its Representative(s); (3) information lawfully furnished or disclosed to the Receiving Party by a non-party to this Agreement without any obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) information independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.

1.5 “Documentation” means any documentation owned by and proprietary to Consultant that Consultant makes available to Anaheim for use with the SwiftComply Service, including any documentation available online or otherwise.

1.6 “Effective Date” (i.e., the date this Agreement takes effect) means the latest date on which this Agreement is signed by Anaheim.
3 1.7 “Sensitive Data” means any Anaheim Data that may reasonably be deemed confidential, proprietary, sensitive, and/or private in nature, including but not limited to any personnel wage or healthcare-related data.

1.8 “Software” means the source code and/or other code that are material elements of the SwiftComply Modules and SwiftComply Service.

1.9 “Start Date” or “Start Dates” means the date on which Consultant makes available to Anaheim full use and functionality of a Purchased Module (as defined in Exhibit A), which date Consultant shall promptly communicate to Anaheim pursuant to Section 24.

1.10 “SwiftComply API” means an application programming interface that provides access to specified content and functionality in one or more SwiftComply Modules.

1.11 “SwiftComply Data” means any metrics, information, or data (a) that Consultant collects for the provision of the SwiftComply Service and (b) that is de-identified, anonymized, aggregated, and normalized, such that the resulting metrics, information, or data cannot be subjected to re-identification with Anaheim or any of Anaheim’s customers (individually or categorically). For purposes of this definition, the following terms mean:

1.11.1 De-identified means an action to remove identifying characteristics from data, metrics, or information.

1.11.2 Anonymized means altering identifiable data, metrics, or information, such that it is impossible to relate the data, metrics, or information back to a given individual or to Anaheim.

1.11.3 Aggregated means combining data sets for purposes of statistically analyzing data trends.

1.11.4 Re-identification means reattaching identifying characteristics to reverse de-identification, anonymization, or aggregation in a manner that allows data, metrics, or information to be identifiable as Anaheim Data or data from Anaheim’s individual customers.

1.12 “SwiftComply Modules” means all of the SaaS products and web applications hosted by Consultant and made available via the SwiftComply Service, including but not limited to each of the below (each, a “Module”):
a) SwiftComply Backflow (“Backflow”), an application that enables cross connection control environmental program management;
b) SwiftComply Reclaimed Water (“Reclaimed”), an application that enables reclaimed/recycled/auxiliary water program management;
c) SwiftComply Pretreatment (“Pretreatment”), an application that enables industrial pretreatment program management;
4 d) SwiftComply FOG (“FOG”), an application that enables fat, oils, and greases environmental program management;
e) SwiftComply Stormwater (“Stormwater”), an application that enables stormwater environmental program management;
f) SwiftComply Forms (“Forms”), an application that provides a workflow automation platform that allows Anaheim to create web-based forms for its internal operations and for its constituents to transact with Anaheim; and g) SwiftComply Multi-Modules (“Multi-”), an application that provides dashboards and reporting across multiple SwiftComply modules.

All features, functionality, reports, etc. for each above Module are included as material elements of the applicable Module. Consultant may modify, combine, add, or delete Modules from the SwiftComply Service from time to time, provided that in the event that Consultant terminates or deletes any Module to which Anaheim is actively subscribing, Consultant shall provide at least one hundred eighty (180) days’ prior written notice and provide a pro-rata refund for the applicable portion of the Subscription Fees (defined below) for the remainder of the Term Year (defined below).

1.13 “SwiftComply Service” means the complete set of SwiftComply software and related materials, including but not limited to all the SwiftComply Modules, SwiftComply Data, SwiftComply Websites, the Documentation, and the Software.

1.14 “SwiftComply Website” means any website owned and operated by Consultant and made available (including any successor sites) at these URLs:
http://customer.swiftcomply.com and https://customer.c3swift.com/ .

2. SERVICES TO BE PROVIDED BY CONSULTANT
In compliance with the terms and conditions of this Agreement, Consultant shall provide to Anaheim all labor, materials, tools, equipment, products, services, licenses, and incidental and customary work necessary for the Project (“Services”). The Services are more particularly described in the Scope of Services attached hereto as Exhibit A and incorporated herein by this reference (“Scope of Services”). The Public Utilities General Manager (“General Manager”) is authorized to add, modify, or delete tasks from the Scope of Services.

3. TERM
This Agreement shall commence on the Effective Date and continue for an initial period of one (1) year from the first Start Date (“Term”), unless terminated earlier as set forth in Section 25 below. The Term shall automatically renew for successive annual periods on each anniversary of the Start Date, unless either Party gives written notice of nonrenewal at least one hundred eighty (180) days prior to expiration of the Term or terminates pursuant to Section 25.

Each initial and successive annual period is referred to as “Term Year.” 5 4. TIME OF PERFORMANCE

4.1 Time is of the essence in the performance of this Agreement. Consultant shall perform and complete: (1) the Services in accordance with Section 3, Schedule of Performance, of the Scope of Services (Exhibit A) and (2) implementation of any New Modules (defined below) or Extra Services (defined below) in accordance with any schedules applicable to such services. The Parties may mutually agree to amend any schedules in writing, and the General Manager or designee is authorized, on behalf of Anaheim, to amend schedules as needed.

Consultant’s failure to timely achieve the first Start Date or adhere to a schedule may result in Anaheim’s termination of this Agreement.

4.2 Consultant shall achieve the first Start Date, as applicable to all Purchased Modules except the Reclaimed Module, within sixteen (16) weeks of the Effective Date, but no later than April 30, 2024.

4.3 The time period(s) specified for performance of the Services shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy; unusually severe weather, fires, earthquakes, floods, pestilence, or other natural catastrophes; epidemics; quarantine restrictions; riots; strikes; freight embargoes; wars; litigation; civil disturbance or disobedience; labor dispute; labor or material shortage; sabotage; change in government priorities; restraint by court order or public authority; and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including Anaheim, which by the exercise of due diligence such Party cannot reasonably be expected to avoid and by which exercise of due diligence has been unable to overcome (“Force Majeure”), if Consultant shall within ten (10) days of the commencement of such delay notify Anaheim’s project administrator (“Project Administrator,” as identified in Section 7.1) in writing of the causes of the delay. The Project Administrator shall ascertain the facts and the extent of delay and may extend the time for performing the Services for the period of the enforced delay if, in the judgment of the Project Administrator, such delay is justified. The Project Administrator’s determination shall be final and conclusive upon the Parties. In the event of delay, however caused, Consultant’s sole remedy shall be an extension of the Term, pursuant to this Section, and Consultant shall not be entitled to recover damages against Anaheim.

5. COMPENSATION

5.1 Anaheim shall pay Consultant for the Services pursuant to the fees (“Fees”), billing rates (“Rates”), and product costs (“Costs”) set forth in the Schedule of Compensation attached hereto as Exhibit B and incorporated herein by reference.

5.2 Anaheim shall reimburse Consultant for only those costs or expenses specifically approved in writing in advance by the General Manager or designee.

5.3 Except as provided in Sections 5.5 and 5.6 below, the Parties understand and agree that full and complete payment for all Services provided under this Agreement, including, 6 but not limited to, all reimbursable expenses and subcontractor fees, if any, shall not exceed seventy thousand dollars ($70,000) per Term Year (“Contract Amount”).

5.4 The Contract Amount consists of three components: (1) annual subscription costs for Purchased Modules (defined in Exhibit A) and their ancillary support services (“Subscription Fees”), as listed in Table 1 of Exhibit B, which price at the outset is a total of twenty-five thousand dollars ($25,000); (2) one-time costs for initial implementation of the Purchased Modules (e.g., data migration, system setup, form customization, and user training) (“Service Fees”), as listed in Table 2 of Exhibit B; and (3) optional, as-needed professional services (e.g., integration support and additional functionalities) and products (“T&M”), as listed in Table 3 of Exhibit B.

5.5 On each anniversary of a Purchased Module’s Start Date, the Subscription Fees shall automatically increase by five percent (5%). Annual increases to the Subscription Fees pursuant to this Section shall result in a proportionate increase to that Term Year’s Contract Amount.

5.6 Each Term Year, the General Manager is authorized to approve additional expenditures not to exceed ten percent (10%) of the Contract Amount for additional services that are not included in the Scope of Services (“Extra Services”) or to purchase new Modules to be added to the Scope of Services (“New Module(s)”), provided that the General Manager determines that: (a) the Project requires the Extra Services or New Modules; (b) the necessity of the Extra Services or New Modules was unforeseen by Anaheim at the time it entered the Agreement; (c) budget appropriations are available; and (d) in the General Manager’s professional opinion, it is in Anaheim’s best interest to receive the Extra Services or New Modules.

5.6.1 In no event shall Consultant render Extra Services or services on any New Module without the written authorization of the General Manager.

5.6.2 Extra Services and New Modules shall be billed at the Fees, Rates, or Costs set forth in the Schedule of Compensation or at a fixed price, at Anaheim’s sole discretion.

If billed at a fixed price, Consultant shall provide Anaheim with a description of the Extra Services or the New Modules with a proposed price.

5.6.3 Any approved Extra Services or New Modules will be incorporated into the Services and the Agreement upon the Parties’ execution of: (1) a work order for Extra Services (“Work Order”) or (2) an order form for New Modules (“Order Form”). Such agreements must include the following:
• A Work Order should include, among other things: a summary, a detailed description of work, business objective(s)/goals, a task list, deliverables, a performance schedule, resources, constraints, assumptions, costs (including a breakdown, if applicable), and payment schedule.
• An Order Form should include, among other things: the agreed annual subscription price for the New Module, the agreed implementation cost for the 7 New Module, and a detailed description of the New Module’s functionalities and implementation timeline.

Consultant shall commence performance of the Extra Services or implementation of the New Modules either upon the Parties’ execution of the Work Order/Order Form or such other time expressly indicated therein.

5.7 Other than the Extra Services or New Modules that the General Manager is authorized to approve pursuant to Section 5.6, the Consultant shall not render additional services beyond the scope of this Agreement unless such services are first approved by written amendment to this Agreement. Unless expressly stated otherwise in such Work Order or Order Form, all terms and conditions of this Agreement applicable to the Services shall apply to the Extra Services or New Modules.

5.8 Consultant shall submit invoices to Anaheim upon the satisfactory completion of the Services in accordance with the Schedule of Compensation (i.e., the “Payable Upon” column), any Work Order (or milestones indicated in such Work Order), or Order Form.

Invoices must describe the work performed. Anaheim shall pay Consultant no later than thirty (30) days after Anaheim’s staff approves each invoice. Consultant’s invoices shall include:
• The name of the person who performed the work;
• A brief description of the Services performed and/or the specific task in the Scope of Services, Work Order, or Order Form to which the invoice relates; • The date the Services were performed; and
• A description of any reimbursable expenditures.

5.9 Any amount that Anaheim prepaid for its annual subscription of XC2 shall be applied as a pro rata credit towards the Subscription Fees in proportion to the time remaining on the annual XC2 subscription that Anaheim will not use (i.e., the period from the Backflow Module’s Start Date to the end of the XC2 annual subscription).

5.10 The Parties recognize that the continuation of this Agreement after the close of any fiscal year of Anaheim, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as a budget expenditure. Anaheim does not represent that said budget item will be actually adopted by the City Council at that time.

No penalty shall accrue to Anaheim in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, the Parties shall negotiate a settlement based on monies paid and due for actual items delivered and Services provided, and any amount that Anaheim prepaid for annual Subscription Fees shall be returned to Anaheim in proportion to the time remaining on the annual Subscription Fee that Anaheim will not use.

6. PROJECT MANAGER

6.1 Consultant designates Alice Nield, Implementation Manager, as its project manager (“Project Manager”), who shall coordinate the Services. This Project Manager shall be 8 available to Anaheim at all reasonable times during the Term of this Agreement. It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing Project Manager is a substantial inducement for Anaheim to enter into this Agreement. Therefore, the foregoing Project Manager shall be responsible during the Term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the provision of Services hereunder. The Consultant may not change the Project Manager without the General Manager’s express written authorization.

6.2 Any personnel or subcontractor, if any, who fail or refuse to perform the Services in a manner acceptable to Anaheim or who are determined by Anaheim, in its sole discretion, to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, or a threat to the safety of persons or property, shall be promptly removed from the Project by Consultant at the request of Anaheim. Consultant warrants that it will continuously furnish the necessary personnel to complete the Services on a timely basis as contemplated by this Agreement.

7. ADMINISTRATION
The Anaheim Public Utilities Department (“APU”) will administer this Agreement. The following APU employees are authorized to take the below actions pursuant to this Agreement:
• The General Manager is authorized to take any action on behalf of Anaheim as set forth herein and to terminate this Agreement in accordance with Section 25. • Anaheim designates Stewart Noble, Water Inspection Supervisor, as the “Project Administrator.” Anaheim may change the Project Administrator at any time and will provide Consultant written notice of such change as soon as is practical. The Project Administrator, or designee, shall have the power to act on behalf of Anaheim for ordering, reviewing, and approving Services performed by Consultant under this Agreement. The Project Administrator is not authorized to approve Work Orders or Order Forms; change Fees, Rates, or Costs; or terminate this Agreement.

8. STANDARD OF CARE

8.1 Consultant’s provision of the Services shall be consistent with the Service Level Agreement (“SLA”) attached hereto as Exhibit C, which is incorporated herein by reference.

8.2 Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services.

Consultant warrants that all employees and subcontractors, if any, shall have sufficient skill and experience to perform the Services assigned to them. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement; all applicable federal, state, and local laws; and the professional standard of care and that the SwiftComply Service will 9 operate in all material respects as described in its product descriptions and/or Documentation and consistent with the terms of Exhibit C.

8.3 Consultant represents and warrants that (i) Anaheim will not violate or in any way infringe upon the personal or proprietary rights of any third party by using the SwiftComply Service; (ii) to Consultant’s knowledge, the SwiftComply Service does not contain any virus, worm, Trojan horse, time bomb, or similar contaminating or destructive feature; (iii) Consultant will endeavor in good faith to ensure that the SwiftComply Service never contains any contaminating or destructive feature; and (vi) Consultant holds all necessary rights to permit the use of the SwiftComply Service and all components thereof provided to Anaheim under this Agreement.

8.4 Consultant represents and warrants to Anaheim that it has, shall obtain, and shall keep in full force in effect during the Term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance, and approvals of whatsoever nature that is legally required of Consultant to practice its profession, including those licenses and certifications listed in Exhibit A. Consultant shall maintain a City of Anaheim business license during the Term.

8.5 Anaheim shall protect its passwords and take full responsibility for Anaheim’s use of as well as any third-party it authorizes to use Anaheim’s Account. Anaheim is solely responsible for any and all activities that occur under Anaheim’s Account, except for any activities performed by Consultant as set forth herein. Anaheim agrees to notify Consultant immediately upon learning of any unauthorized use of an Account or any other breach of security. From time to time, Consultant’s technical/software-support staff may log into the Anaheim Account to maintain or improve service, including providing Anaheim assistance with technical or billing issues. Anaheim hereby acknowledges and consents to such access contingent upon Consultant’s execution of the agreements referenced in Section 1.4(c).

9. FAMILIARITY WITH WORK
By executing this Agreement, Consultant represents and warrants that Consultant: (i) has thoroughly investigated and considered the Services to be performed; (ii) has carefully considered how the Services should be provided; and (iii) fully understands the facilities, difficulties, and restrictions attending the provision of the Services under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by Anaheim, Consultant shall immediately inform Anaheim of such fact and shall not proceed except at Consultant’s risk until written instructions are received from Anaheim.

10. INDEPENDENT CONTRACTOR

10.1 Neither Anaheim nor any of its employees shall have any control over the manner, mode, or means by which Consultant, its agents or employees, perform the Services, except as otherwise set forth herein. Except as expressly provided herein, Anaheim shall have no voice in the selection, discharge, supervision, or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation, or hours of service.

Consultant shall perform all Services as an independent contractor of Anaheim and shall remain 10 at all times, as to Anaheim, a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Anaheim. Anaheim shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant.

10.2 In consideration for the compensation Anaheim pays Consultant, Consultant agrees that Anaheim shall not be liable or responsible for any benefits, including, but not limited to, worker’s compensation, disability, retirement, life, unemployment, health, or any other benefits that Consultant offers to its employees/agents, and Consultant agrees that it shall not sue or file a claim, petition, or application therefor against Anaheim or any of its appointed or elected officials, officers, employees, agents, representatives, or sureties.

11. INSURANCE

11.1 Without limiting Anaheim’s right to indemnification, it is agreed that Consultant shall secure, prior to commencing any activities under this Agreement, and maintain, during the Term of this Agreement, insurance coverage as follows:

11.1.1 Workers’ Compensation Insurance as required by California law and Employers’ Liability Insurance in an amount not less than $1,000,000 per occurrence.

11.1.2 Commercial/Comprehensive General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Consultant’s/Consultant’s liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis, but may include a deductible or self-insured retention of not more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement.

11.1.3 Commercial/Comprehensive Automobile Liability Coverage including – as applicable – owned, non-owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law.

11.1.4 Professional Liability Insurance, inclusive of Cyber Liability, in an amount not less than $2,000,000 per occurrence or per claim. Such insurance shall be written on a primary basis, but may include a deductible or self-insured retention of not more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement.

11.2 Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by Anaheim’s Risk Manager prior to the inception of the final Agreement.

11.3 Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions: “This insurance shall not be cancelled, or limited in scope or coverage by Consultant, until after thirty (30) days’ prior written 11 notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non-payment of premium that shall provide for not less than ten (10) days’ notice.”

11.4 Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
• “It is agreed that any insurance maintained by Consultant, pursuant to this Agreement, shall be primary to, and not contribute with, any insurance or self- insurance maintained by the City of Anaheim.”
• “The City of Anaheim, its officers, agents, employees, representatives, and Anaheim-designated volunteers are added as additional insureds as respects the acts, omissions, operations, and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”

11.5 Prior to commencing any work under this Agreement, Consultant shall deliver to Anaheim insurance certificates confirming the existence of the insurance required under this Agreement and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, Consultant shall provide Anaheim: (i) endorsements to the insurance policies which add to these policies the applicable clauses referenced above; or (ii) in lieu of said endorsements, documentation acceptable to Anaheim evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers: (i) admitted to write insurance in California; (ii) possessing an A. M. Best’s rating of A VII or higher; or (iii) otherwise acceptable to Anaheim, with prior written permission from Anaheim. In the event that a claim or other legal action is filed against Anaheim, and if Anaheim, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then Anaheim has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that Consultant shall fully defend, hold harmless, and indemnify Anaheim against any such claim or other legal action.

11.6 In addition to other remedies Anaheim may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Anaheim may, at its sole option:
• Order Consultant to stop work under this Agreement and/or withhold any payment(s) which become due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof; or • Terminate this Agreement.
12 Exercise of any of the above remedies, however, is an alternative to other remedies Anaheim may have and is not the exclusive remedy for Consultant’s failure to maintain insurance or secure appropriate endorsements.

11.7 Nothing herein contained shall be construed in any way as limiting in any way the extent that a Consultant may be held responsible for payments of damages to persons or property resulting from Consultant’s (or Consultant’s contractors/subcontractors, if any) performance of the work covered under this Agreement.

11.8 In the event Consultant hires other persons or firms to perform some of the work related to this Agreement, Consultant shall ensure and certify to Anaheim in writing that: (i) the acts or omissions of such persons or firms are covered under the above-referenced liability insurance; or (ii) such firms maintain insurance equal to or better than and is subject to the same limits, terms, and conditions as the insurance required of Consultant under this Agreement (except for firms that are not performing professional services; such firms shall not be required to carry the above-referenced professional liability insurance); and in either instance, Consultant shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Anaheim.

11.9 Anaheim’s Risk Manager is hereby authorized to amend the requirements set forth herein in the event that such amendment is in Anaheim’s best interest.

12. INDEMNIFICATION

12.1 As respects acts, errors, or omissions in the performance of professional services, Consultant agrees to indemnify and hold harmless Anaheim, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, directly arising out of the negligent acts, errors, or omissions of the Consultant or any sub-agent in the performance of professional services under this Agreement.

12.2 As respects all acts, errors, or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors, or omissions typically covered by general and automobile liability insurance, Consultant agrees to indemnify, defend (at Anaheim’s option), and hold harmless Anaheim, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with Consultant’s (or Consultant’s agent or sub-agent, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims that arise out of the sole negligence or willful misconduct of Anaheim.

12.3 The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether Anaheim, Consultant, or any other person maintains, or fails to maintain, insurance coverage, or a self-insurance program, for any such Claims and (ii) shall survive the termination of this Agreement.
13 13. PERFORMANCE OF SERVICES
Consultant is responsible for keeping the Project Administrator or designee informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired.

14. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The Parties recognize that a substantial inducement to Anaheim for entering into this Agreement is the professional reputation, experience, and competence of Consultant. Consultant has no right to assign, transfer, delegate, or otherwise encumber (together “Assignment”) any rights, obligations, duties, interests, or privileges in or arising out of this Agreement, including as a result of a merger, acquisition, consolidation, or other form of corporate assimilation, without the prior written consent of Anaheim. Any such purported Assignment without Anaheim’s prior consent shall be void as to Anaheim. If Anaheim approves an Assignment, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of Consultant.

15. SUBCONTRACTING
Except for those subcontractors set forth in the Scope of Services, if any, Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of Anaheim. Consultant shall be fully responsible to Anaheim for all acts and omissions of any approved subcontractor. Nothing in this Agreement shall create any contractual relationship between Anaheim and the subcontractor, nor shall it create any obligation on the part of Anaheim to pay or ensure the payment of any monies due to any such subcontractor other than as otherwise required by law. Anaheim is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and Anaheim pursuant to this Agreement.

16. USE AND OWNERSHIP OF DOCUMENTS, DATA, AND INTELLECTUAL

PROPERTY

16.1 Anaheim shall furnish to Consultant such documents, data, and materials, including Anaheim Data, as may be relevant and pertinent to Consultant’s provision of Services hereunder as Anaheim may possess or acquire, which shall remain the property of Anaheim and shall be returned to Anaheim upon termination of this Agreement, Consultant’s deletion of a Module, or upon Anaheim’s demand for any reason.

16.2 All documents, data, and material that Consultant, its officers, employees, agents, and subcontractors prepare or cause to be prepared for Anaheim’s use only in the course of implementing this Agreement shall become the exclusive property of Anaheim, and Anaheim shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant’s sole cost and expense, provide such documents, data, and material to Anaheim upon request.

16.3 Either Party may only use the other Party’s intellectual property as expressly set forth herein. Nothing in this Agreement shall be construed in any manner to affect or modify 14 either Party’s ownership rights in any preexisting or future works, trademarks, copyrights, or technologies developed or created by either Party, including without limitation, their respective proprietary software used in connection with the development and provision of their respective Websites, databases, systems, products, and/or services. Unless specifically agreed by the Parties in writing, all intellectual property, including, without limitation, information that could become the subject of a patent, copyright, or trade secret developed by a Party in the context of performing its obligations under this Agreement shall be exclusively owned by that Party, and the other Party shall cooperate with any reasonable requests to execute documents confirming such ownership.

17. CONFIDENTIALITY

17.1 Consultant and Anaheim shall each hold the other’s Confidential Information in confidence. Neither Party shall make the other’s Confidential Information available in any form to any third party or use the other’s Confidential Information for any purpose other than as specified in this Agreement. The Party providing Confidential Information (“Disclosing Party”) to the other Party (“Receiving Party”) shall remain the sole owner of such information. Except as provided elsewhere in this Agreement, nothing contained in this Agreement shall be construed as granting or conferring any right or license in any Confidential Information or in any patents, copyrights, software, or other technology, either expressly or by implication to the Receiving Party, its Representatives, or to others.

17.2 By virtue of this Agreement, each Party hereto may disclose to the other Party information that is Confidential Information. This Agreement does not diminish, revoke, or supersede any existing confidentiality, non-disclosure, or similar agreement between the Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 17, which shall supersede any such previous agreement with respect to such Confidential Information. Any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement shall be treated as though it were exchanged under this Agreement as of the date of such exchange.

17.3 The Receiving Party will treat all Confidential Information of the Disclosing Party as confidential and proprietary, and the Receiving Party shall use only such information in furtherance of this Agreement. As such, the Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party and ensure that such Confidential Information is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authorized in writing by the Disclosing Party. Receiving Party shall not disclose Confidential Information of the Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives. Neither Party shall use the Confidential Information of the other Party for any commercial purpose.
15 17.4 If the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the Disclosing Party or is requested Confidential Information pursuant to the California Public Records Act or similar law, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as soon as possible, but in no event later than five (5) days after knowledge of Receiving Party’s obligation to such requirement. Thereafter, at its sole costs and expense, the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party’s sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to obtain such protective order or other remedy or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose and will exercise commercially reasonable efforts, at Disclosing Party’s expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.

17.5 In the event the Receiving Party discloses, disseminates, or releases any Confidential Information, except as expressly permitted by this Agreement, such disclosure, dissemination, or release will be deemed a material breach of this Agreement, and the Disclosing Party may demand prompt return of all Confidential Information previously provided to the Receiving Party. As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the other Party, the amount of which would be extremely difficult to estimate. Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Agreement and that specific performance and injunctive relief in addition to monetary damages shall be appropriate remedies for any breach or any threat of such breach. The provisions of this Section are in addition to any other legal rights or remedies the Disclosing Party may have.

17.6 Within 180 days of the termination of this Agreement, Consultant will return to Anaheim or destroy, to the extent permitted by law, any and all Confidential Information, including all originals, copies, translations, transcriptions, or any other form of said material without retaining any copy or duplicate thereof; provided that Consultant may retain Confidential Information contained on backup media created in the ordinary course of business; provided further that there is no effort to access such Confidential Information, and Consultant’s confidential obligations with respect to such information shall continue so long as such information is retained. Consultant shall certify in writing the destruction of the Confidential Information. Anaheim may perform an audit of Consultant’s records to confirm the return or destruction of the Confidential Information. Anaheim shall have this audit right for three (3) years after the termination of this Agreement.
16 17.7 Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement.

18. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify Anaheim, its agents, officers, representatives, and employees against any and all intellectual property liability, including costs for infringement of any U.S. letters patent, trademark, or copyright infringement, including costs, contained in the Services, work product, subscriptions, or documents provided by Consultant to Anaheim pursuant to this Agreement.

19. FISCAL RECORDS AND AUDIT
Consultant shall keep records and invoices in connection with the Services. Consultant shall use recognized accounting methods in preparing such reports and invoices. Anaheim reserves the right to designate its own employee representative(s) or its contracted representative(s) with a certified public accounting firm, who shall have the right to audit Consultant’s accounting procedures and internal controls of Consultant’s financial systems and to examine any cost, revenue, payment, claim, other records, or supporting documentation resulting from any items set forth in this Agreement. If Consultant fails to provide supporting documentation satisfactory to Anaheim for costs charged, then Consultant agrees to reimburse Anaheim for those costs. Any such audit(s) shall be undertaken by Anaheim or its representative(s) at reasonable times and in conformance with generally accepted auditing standards. Consultant agrees to fully cooperate with any such audit(s).

This right to audit shall extend during the length of this Agreement and for a period of three (3) years, or longer if required by law, following the date of final payment under this Agreement. Consultant agrees to retain all necessary records/documentation for the entire length of this audit period.

Consultant will be notified in writing of any exception taken as a result of an audit. Any adjustments and/or payments that must be made as a result of any such audit or inspection of Consultant’s invoices and/or records shall be made within thirty (30) days from presentation of Anaheim’s findings to Consultant. If Consultant fails to make such payment, Consultant agrees to pay interest, accruing monthly, at a rate of ten percent (10%) per annum unless another section of this Agreement specifies a higher rate of interest, which higher rate would then prevail.

Interest will be computed from the date of written notification of exception(s) to the date Consultant reimburses Anaheim for any exception(s). If an audit inspection or examination in accordance with this article discloses overcharges (of any nature) by Consultant to Anaheim in excess of one percent (1%) of the value of that portion of the Agreement that was audited, the actual cost of Anaheim’s audit shall be reimbursed to Anaheim by Consultant.

20. WITHHOLDINGS
Anaheim may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue the Services as a result of such withholding. Consultant shall have an immediate right to appeal to 17 the City Manager or designee with respect to such disputed sums, and his decision shall be final.

Consultant shall be entitled to receive interest on any withheld sums at the rate of return that Anaheim earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld.

21. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant that result in expense to Anaheim greater than what would have resulted if there were not errors or omissions in the Services performed by Consultant, the additional cost and expense shall be borne by Consultant. Nothing in this Section is intended to limit Anaheim’s rights under the law or any other Sections of this Agreement.

22. ANAHEIM’S RIGHT TO EMPLOY OTHER CONSULTANTS
Consultant acknowledges and agrees that this Agreement and the provision of services hereunder are nonexclusive and that Anaheim may enter into similar agreements with other entities for the provision of similar services.

23. CONFLICTS OF INTEREST
Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the “Act”), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Services performed under this Agreement and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest.

If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by Anaheim. Consultant shall indemnify and hold harmless Anaheim for any and all claims for damages resulting from Consultant’s violation of this Section.

24. NOTICES
Any notice to be made under this Agreement shall be in writing and shall be deemed effective when: (1) delivered personally, upon receipt or refusal of receipt by the receiving Party; (2) sent by registered or certified mail, return receipt requested, postage prepaid, on the date shown on the return receipt or the date of refusal of receipt; (3) sent by recognized overnight courier service, the business day following deposit with the courier, with delivery fees prepaid; or (4) sent by facsimile transmission (“FAX”), upon the sending Party’s receiving confirmation of receipt from the receiving Party. Notices shall be addressed to the Parties at the following addresses:

If to Anaheim: Anaheim City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
18 With copies to: Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
FAX No. (714) 765-4138
To Consultant: SwiftComply, Inc.
6701 Koll Center Parkway, Suite 250
Pleasanton, CA 94566
Attention: Olivier Terrien, Vice President of Business
Development
Telephone No. (415) 450-8979
FAX No. (415) 268-9561
Each Party may change its address or FAX for notice by providing written notice to the other in accordance with this Section.

25. EARLY TERMINATION

25.1 “Default” shall mean the failure of Consultant to perform any of Consultant’s duties or obligations or the breach by Consultant of any of the terms and conditions set forth in this Agreement. In addition, Consultant shall be deemed to be in Default upon Consultant’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee, or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the benefit of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization, or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution, or seizure of all or a substantial portion of Consultant’s assets or of Consultant’s interests hereunder.

25.2 Anaheim shall not be deemed to be in Default in the performance of any obligation required to be performed by Anaheim hereunder unless and until Anaheim has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from Consultant specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of Anaheim’s obligation is such that more than thirty (30) days are required for its performance, then Anaheim shall not be deemed to be in Default if Anaheim shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.

25.3 In the event of any Default by Consultant, Anaheim may immediately terminate this Agreement. Such termination shall be effective immediately upon receipt by Consultant of written notice from Anaheim. In such event, Consultant shall have no further rights hereunder, and Anaheim shall have all other rights and remedies as provided by law.

25.4 Anaheim may terminate this Agreement at any time without the necessity of cause or Default by giving seven (7) days’ notice in writing to Consultant. In such event, the Parties 19 shall have no further rights hereunder, except that Consultant shall be paid for all services adequately rendered prior to such termination. Consultant may not terminate this Agreement except for cause. Anaheim may suspend or abandon the Services for any reason with or without notice. If any part of the Project is suspended or abandoned for any reason, Anaheim shall have the right to suspend or terminate the affected portions(s) of this Agreement, including any part of the Services. In the event of such suspension or termination, Consultant shall only expend such additional time as is necessary to assemble the Services in progress for the purpose of properly filing and closing the job and as is previously approved by Project Administrator. In no event shall additional time exceed ten percent (10%) of the total time expended on the suspended or abandoned portion of the Services prior to the date of notice of suspension or termination. In the event the Services are suspended for longer than six (6) months, Consultant may terminate this Agreement as it applies to the suspended portion of the Project by giving Anaheim at least thirty (30) days’ written notice.

25.5 Consultant shall not be relieved of liability to Anaheim for damages sustained by Anaheim by virtue of any breach of Agreement by Consultant, and Anaheim may withhold any payments to Consultant for the purpose of set-off until such time as the exact amount of damages due Anaheim from Consultant is determined. In addition, Anaheim may pursue all remedies available under law for breach of this Agreement. The waiver by either Party of any breach to this Agreement shall not constitute a waiver as to any succeeding breach.

26. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal, state, county, or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable local, county, state, and federal laws, rules, regulations, and permit requirements and be subject to approval of the Project Administrator.

27. WAIVER
A waiver by either Party of any breach, of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character.

28. INTEGRATED CONTRACT
This Agreement and the Exhibits hereto contain the entire agreement between Anaheim and Consultant with respect to the matters covered hereby, and no agreement, statement, or promise made by either Anaheim or Consultant that is not contained herein shall be valid or binding. No prior agreement, understanding, or representation pertaining to any the matters covered hereby shall be effective for any purpose.

29. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits, or any other attachments attached hereto, the terms of this Agreement shall govern. 20 30. INTERPRETATION
Each Party acknowledges that he/she/it has had the benefit of advice of competent legal counsel with respect to its decision to enter this Agreement. The provisions of this Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.

31. AMENDMENTS

31.1 This Agreement may be modified or amended only by a written document executed by both Parties and approved as to form by the Anaheim City Attorney. No modifications to this Agreement can be made as a result of Anaheim’s continued use of the SwiftComply Service.

31.2 The listing of New Modules, if any, in Section 2 of the Scope of Services, as a result of the Parties’ execution of an Order Form, shall not be deemed an amendment of the Agreement but rather a matter of administration.

32. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

33. REMEDIES CUMULATIVE
The remedies given to Anaheim and Consultant herein shall be cumulative and are given without impairing any other rights given Anaheim or Consultant by statute or law now existing or hereafter enacted and the exercise of any one (1) remedy by Anaheim or Consultant shall not exclude the exercise of any other remedy.

34. NO THIRD-PARTY BENEFICIARIES
The Parties intend that neither rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation, or undertaking established herein.

35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement, and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, California. 21 36. DISCRIMINATION
Consultant agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin, or other prohibited basis in its provision of Services or hiring of subcontractors or employees. To the extent this Agreement provides that Consultant offer accommodations or services to the public, such accommodations or services shall be offered by Consultant to the public on fair and reasonable terms.

37. MARKETING MATERIALS
Anaheim agrees that Consultant may utilize Anaheim’s name solely to identify it as a customer on the SwiftComply Website and in client lists. Any other uses of Anaheim’s name and/or logo shall require Anaheim’s prior written consent.

38. AUTHORITY
Each individual executing this Agreement on behalf of a Party represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such Party and that this Agreement is binding upon the same in accordance with its terms. Consultant shall, at Anaheim’s request, deliver a certified copy of its governing board’s resolution or certificate authorizing or evidencing such execution.

39. HEADINGS
The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. [Signatures on following page.]

EXHIBIT A

SCOPE OF SERVICES

1. GENERAL DESCRIPTION
Consultant’s SwiftComply Service is a cloud-hosted technology solution that can be accessed and used by an unlimited number of Anaheim users via Anaheim’s Account on an HTTPS site using any internet-connected device with a modern web browser. No Consultant- specific hardware or client software is required to be installed by Anaheim to access the SwiftComply Service.

The SwiftComply Service hosts and processes all Anaheim Data on the Google Cloud Platform (“GCP”). Consultant backs up the SwiftComply Service daily, and Consultant’s retention policy is to keep back-ups for one week, which may be retrieved upon request. All Anaheim Data and SwiftComply Data are encrypted in transit and at rest and are accessible via exported CSV files from the database or via a representational state transfer (“RESTful”) architectural application programming interface (“API”), an interface that allows two internet- connected devices to securely exchange information.

Consultant manages all user access to the SwiftComply Service and Anaheim Data through session authorization by requiring Anaheim users to first register an email address and password to be used together in accessing the SwiftComply Service. Consultant’s system is responsible for authorizing each user to access the SwiftComply Service. Anaheim users’ sessions expire after twelve (12) hours, after which they are required to re-enter their login credentials. The SwiftComply Service supports Single Sign On (“SSO”) via SAML 2.0.

Since October 2021, the SwiftComply Service has been and continues to be SOC 2 Type II certified for security compliance.

2. PURCHASED MODULES
Throughout the Term, Consultant grants to Anaheim a limited, revocable, non-exclusive, non-transferable, non-distributable, worldwide license to utilize the following Modules (together, “Purchased Modules”):

Purchased Modules Description
Backflow Module
(SKU E-1-203)
For tracking of up to 15,000 backflow assemblies.

Reclaimed Module
(SKU B-1-204)
For tracking up to 500 locations.

Forms Module
(SKU E-1-303)
For creating web-based forms for constituents to transact with Anaheim and for up to 15,000 passed reports.

Multi-Module
(SKU E-1-303)
For internal reporting & dashboard access across multiple modules. 2 As Anaheim and Consultant execute Order Forms, if any, New Modules shall be added below and become synonymous with Purchased Modules:

New Modules Description

License to utilize the Purchased Modules includes the ability:
• To access the Purchased Modules via Anaheim’s Account and to utilize the functionality provided within such Purchased Modules;
• To access the SwiftComply API to share data from the Purchased Modules with one or more Anaheim databases; and
• To integrate, link, and publish applicable public-facing content from the Purchased Modules.

2.1 Key Features of Purchased Modules
Consultant’s provision of the Purchased Modules includes the following key features for Anaheim and its users:
• Unlimited Users: Purchased Modules will include an Account for Anaheim that allows for unlimited registered users with access rights that are web-based, rule- based, and secure.
• Third-Party Systems Integration: Purchased Modules will provide the ability to sync data with third-party systems via CSV files with the option to utilize/incorporate a RESTful API.
• SwiftComply’s Customer Success Team: Consultant will provide a customer success team to help Anaheim’s users/staff with integration and use of the Purchased Modules, which includes data conversion and migration, system and forms creation and configuration, performance reviews, interactive training, a 24/7 knowledge base, an online community forum, and a customized digital communications plan for outreach.
3 2.2 Key Features of Backflow Module
Consultant’s provision of the Backflow Module includes the following key features for Anaheim’s users:
• Backflow Automation: Consultant will provide database management. The database will include records for device locations and assemblies, contact information for Anaheim’s customers who have backflow devices, those customers’ certified backflow prevention device testers (“Testers”), and backflow test information and results.
• Communications: Backflow Module will provide Anaheim with improved workflow automation, including the abilities to: automatically email notifications to Anaheim’s customers, automatically generate printable notice letters, create and customize mobile friendly field-survey forms for use by Testers, and create customizable test reports.
• Customized Form Building: Backflow Module will include customized test- result survey forms for electronic submission.
• Reporting: Backflow Module will provide informational dashboards and the ability to generate reports that can be used for either internal Anaheim use or for external regulators. All reports may be generated in real-time and on-demand.

Anaheim users can customize dashboards and alerts, generate standard reports for deeper data analyses, and generate reports for submission to the State Water Resources Control Board in satisfaction of its annual reporting requirements.

Reports can be printed, downloaded, or sent automatically and periodically to management and/or authorized third parties.

The Backflow Module will also include the following key features related to Testers:
• Online Backflow Test Reports: Backflow Module will allow Testers to register online through a tester registration page that is associated with Anaheim’s Account in order to upload their credentials and completed passed/failed test reports.
• Submission of Test Reports: Testers will have access via a web portal that is separate from Anaheim’s Account that provides limited functionality for the purpose of electronically and securely uploading device test results and notes.

Testers will have no ability to access or view individually identifiable information associated with any Anaheim user or customer. Test results may be updated via any internet-connected device with a modern web browser. Testers can only submit test reports if their certifications and test kits are up to date and approved.

Testers will receive automated email confirmation and notifications. All information is updated in real time in the software’s database. 4 • Tester Assistance: Consultant will provide Testers with training and onboarding sessions, and Testers have access to tutorials on a web-based knowledge base.

Consultant will provide a dedicated phone number and customer support email to Testers. Consultant’s customer service team will handle questions from Testers regarding notices sent and updating certifications and test kits or other first-level questions.

2.3 Key Features of Reclaimed Module
Consultant’s provision of the Reclaimed Module includes the following key features for Anaheim’s users:
• Reclaimed Water Automation: Consultant will provide database management.

The database will include records for device and meter locations and assemblies; information regarding recycled water user permits issued by APU; contact information for Anaheim’s customers who use recycled water and those customers’ site supervisors (“Supervisors”) and backflow Testers; and backflow test information and results.
• Communications: Reclaimed Module will provide Anaheim with improved workflow automation, including the abilities to: automatically email notifications to Anaheim’s customers, automatically generate printable notice letters, create and customize mobile friendly field-survey forms for use by Testers, and create customizable test reports.
• Inspection Module: Reclaimed Module will include inspection test-result forms for online submission that Anaheim may customize. The module will include inspection details, such as signage and leakage records, for both annual and quadrennial inspections.
• Reporting: Reclaimed Module will provide informational dashboards and the ability to generate reports that can be used for either internal Anaheim use or for external regulators. All reports may be generated in real-time and on-demand.

Anaheim users can customize dashboards and alerts, generate standard reports for deeper data analyses, and generate reports for submission to the State Water Resources Control Board in satisfaction of its annual reporting requirements.

Reports can be printed, downloaded, or sent automatically and periodically to management and/or authorized third parties.
5 3. SCHEDULE OF PERFORMANCE

3.1 Project Implementation
Milestone 1: Project Kickoff & Data Cleanup and Mapping • Consultant will provide training videos and other support resources to Anaheim regarding use of Anaheim’s Account, user accounts, creation of customized forms, and setup of automated processes.
• Consultant’s staff will assist Anaheim in creating surveys and mapping forms to tailor the Account’s deliverables and reporting.
• Consultant will migrate the legacy Anaheim Data (provided in CSV format) into the SwiftComply Service to be used through Anaheim’s user accounts. • Consultant will perform: a cleanup of the Anaheim Data, including removal of duplicate, defunct, or contradicting records; identification of data gaps (e.g., missing information regarding location, assemblies, and service providers related to devices; Tester information; and customer contact information); and remedying of data gaps.
• As necessary, Consultant will create custom fields that may be unique to Anaheim’s particular operations and reporting standards. Anaheim staff will assist Consultant to identify specific fields that are required for reporting purposes and to map the Anaheim Data into relevant and appropriate formats.

Milestone 2: Test and Survey Form Review
• With the Anaheim Data organized and mapped to standard and custom reporting formats, Consultant will test the Purchased Modules to ensure that the Anaheim Data is mapped to appropriate fields for reporting and that reports are generated correctly and accurately.

Milestone 3: Tester Outreach and Integration
• Utilizing the Anaheim Data, Consultant will communicate with Testers to confirm contact information and validate certification details that will be used within the SwiftComply Service database.

Milestone 4: User Acceptance Testing
• After migrating and mapping the Anaheim Data that has been collected, cleaned- up, and validated into the SwiftComply Service database, Consultant will offer a User Acceptance Test (“UAT”) that gives Anaheim users the ability to test the acceptability of the SwiftComply Service/Purchased Modules’ functionality, accuracy, and reliability.
6 • Consultant will perform a final migration of the legacy Anaheim Data to the SwiftComply Service database.
• Consultant will then perform a final UAT. Upon satisfactory completion, Anaheim will review and be able to sign off on acceptance of the final UAT.

Milestone 5: User Training
• Consultant will work with Anaheim to meet desired training objectives for Anaheim’s users, including by ensuring that all users receive relevant training to prepare them for using all aspects of the SwiftComply Service, utilizing training materials, and exercising common troubleshooting techniques. • Consultant will schedule user training with Anaheim users based on agreed upon schedules.
• Consultant will ensure that relevant Anaheim users reach a necessary level of proficiency with SwiftComply Services to perform their assigned roles. • Consultant will apply a blend of different training delivery methods, including instructor-led training, job-aids, and e-learnings. Additionally, training materials will be provided, such as quick reference guides, recorded video content, and instructor manuals.
• Consultant will be responsible for all training materials (online and offline) and will provide representatives from its product and customer success teams to ensure that Anaheim’s users receive necessary training. • Consultant will provide online training and instruction and may provide in-person training upon Anaheim’s request.

Integration Support
• As part of the SwiftComply Service, Consultant will provide Anaheim at no additional cost the following support services:
o Phone and email support between 7:00 am and 7:00 pm EST, Monday through Friday, except bank holidays.
o An online knowledge base/resource center offering videos and training resources that shall be available 24/7.
o Periodic check-in meetings with Anaheim users via Consultant’s dedicated customer success manager (“CSM”) or Project Manager to gather feedback and troubleshoot any issues with the Account or other services. 7 Communications
• During project implementation, Consultant and Anaheim will schedule regular status meetings to ensure proper communication.
• Consultant will produce weekly status reports that list the following items:
o Accomplishments for the week.
o Work to be accomplished for the following week.
o Issues that might require management attention.
o Risks to the project’s success.
• Once Consultant has completed each above milestone within the migration phase, Consultant will submit a summary report to Anaheim within 7 days. • Each above milestone is subject to Anaheim’s approval. • Issues requiring Anaheim’s attention will be documented in a bi-weekly status report. Consultant will attempt to resolve the issue within the timeframe described. If the issue cannot be resolved, then Consultant will escalate it further to Consultant and Anaheim’s management.
• Once all milestones are completed at the end of the migration phase, Consultant will submit a final report to Anaheim to summarize these milestones, key metrics regarding the Anaheim Data that was provided during the migration phase, and any additional comments or recommendations from Consultant’s staff.

Deadline to Complete Project Implementation
• All Services listed in this Section 3.1, as applicable to all the Purchased Modules except the Reclaimed Module, shall be completed within sixteen (16) weeks of the Effective Date, but not later than April 30, 2024.

3.2 Project Operation
Risk Management
• Consultant will provide all necessary documentation regarding security clearances issues.
• Consultant will not interact with Anaheim’s technical/computer systems without input, participation, and approval of Anaheim’s information technology (“IT”) staff.
8 • If the SwiftComply Service generates inaccurate information, Consultant will provide a solution to fix all errors or activities affected by the inaccuracy at no additional cost to Anaheim.
• Anaheim will review Consultant’s performance throughout its provision of Services and determine if Consultant is adhering to agreed timelines, schedules, responsibilities, and deliverables. If Consultant fails to meet Anaheim’s requirements, Consultant will work with Anaheim to develop mitigation strategies to remedy and improve performance.

Customer Success Manager
• Consultant will designate a dedicated CSM after the system/software is live. • The CSM will be on hand to help Anaheim work through the program lifecycle.

The CSM will contact Anaheim to review performance and system operations at least on a quarterly basis for business review. This will include a review of performance and attainment of key performance indicators (“KPI”) as it pertains to Anaheim’s operational and business goals.
• Anaheim will provide a representative to be a point of contact for the CSM. • As needed, the CSM may also need to work with other Anaheim staff, such as operations, IT, management, etc.

Software Development and Maintenance
• Consultant will utilize a modified agile approach to software development and maintenance.
• Consultant will regularly scan applications with the Open Web Application Security Project’s (“OWASP”) Zed Attack Proxy (“ZAP”) tool to detect potential weaknesses in security and investigate any discovered weaknesses to identify and remediate security vulnerabilities.
• Consultant will review new software updates and system libraries monthly and assess whether these updates or patches are adequate to fix potential vulnerabilities within the software.

3.3 End of Agreement
Termination of Agreement
• At the end of the Agreement’s Term or upon Consultant’s notice of intention to delete a Module, Consultant will assign a Migration Manager to develop and execute a transition/migration-out plan for the Anaheim Data. 9 • Anaheim will designate a single point of contact who will interface and coordinate tasks between the Migration Manager and Anaheim’s staff.

Transition Plan
• Anaheim owns and will have access to and can retrieve all of the Anaheim Data stored within the SwiftComply Service database. This includes, but is not limited to, Anaheim’s customer data, tester information, any data pertaining to contacts, locations, assemblies, and service providers.
• Anaheim will own and have access to and can retrieve all templates of customized forms, correspondences, notices or other fillable documents. • Anaheim and Consultant will agree on a timeline for any transition/migration plan, which must be completed within a maximum of 180 days after the Agreement’s Term expiration.
• Once Anaheim has retrieved all of the Anaheim Data and templates and signed off on receiving all the Anaheim Data and templates, Consultant will delete all of the Anaheim Data throughout the SwiftComply Service consistent with Section 17 of the Agreement. Consultant will also decommission products and services with Anaheim. This includes decommissioning of any API (if applicable) with Anaheim’s third-party software systems, all user access codes (Anaheim’s users), all associated Testers’ registrations with Anaheim, and removal of Testers’ registration pages (after a redirect if required).
• Consultant will certify in writing when it, its agents, and subcontractors, if any, no longer possess any Anaheim Data consistent with Section 17 of the Agreement.

4. AS-NEEDED SERVICES
Consultant may provide Anaheim with as-needed, professional services, such as API integration or integration of additional functionality into the Purchased Modules (“As-Needed Services”). As-Needed Services shall be billed on a time and materials basis (“T&M”). Table 3 in Exhibit B, Schedule of Compensation, contains the pricing and scope of As-Needed Services.

EXHIBIT B

SCHEDULE OF COMPENSATION
Table 1: Subscription Fees
Item Description Frequency Payable
Upon
Fees
Backflow Module (SKU E-1-203) (up to 15,000
backflow assemblies) and ancillary support
services.

Annual Start Date
and each
anniversary
$7,500
Forms Module & Multi-Module (SKU E-1-303)
(up to 15,000 passed reports).

Annual Start Date
and each
anniversary
$12,500
Reclaimed Module (SKU B-1-204) (up to 500
locations).

Annual Start Date
and each
anniversary
$5,000

Table 2: Service Fees
Item Description Frequency Payable
Upon
Fees
Initial implementation of Backflow Module with
Manual Billing Sync (data migration, system
setup, form customization, and user training).

One-time Completion
of Section

3.1 of Scope
of Services
$10,000
Initial implementation of Reclaimed Module
(data migration, system setup, form
customization, and user training).

One-time Completion
of Section

3.1 of Scope
of Services
$5,000

Table 3: T&M
Item Description Frequency Payable
Upon
Rates / Costs
Professional services for out-of-initial-scope
support (e.g., API integration support):
• Project Management / Analyst (“PM/A”)
• Developer / Engineer (“D/E”)
• Senior Architect (“SA”)
As Needed Monthly
completion
PM/A = $145 / hour
D/E = $200 / hour
SA = $250 / hour
Incremental batch of 500 BFP/Backflow tests. As Needed Completion $700 / batch

EXHIBIT C

SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) is part of the Software Services Agreement entered into by and between Anaheim and Consultant (“Agreement”). All terms used but not defined herein have the meaning given to them in the Agreement. The purpose of this SLA is to ensure that Consultant provides Anaheim with uninterrupted access to the Purchased Modules

99.9% of the time.

1. Definitions
The following capitalized terms have the meanings set forth below:
“Monthly Uptime Percentage” means the percentage calculated as 100% less the ratio of total Unavailability (as defined below) in a given calendar month based on the total number of hours in that month, rounded to the nearest one-tenth percent (0.1 %). For example, if the total Unavailability is 1.5 hours during a given calendar month and the total number of hours in that month is 744, the Monthly Uptime Percentage would be 99.8% [100% - (1.5 / 744)]. The Monthly Uptime Percentage measurement excludes downtime resulting directly or indirectly from any SLA Exclusion (defined below).
“Service Credit” is a dollar credit, calculated as set forth below, that Consultant will credit back to Anaheim as described in Section 3 of this SLA. “Unavailability” means a period of time during which the Purchased Modules/Services are unavailable to Anaheim, not including periods that constitute SLA Exclusions.

2. Service Commitment
Consultant shall use commercially reasonable efforts to make the Purchased Modules/Services available with a Monthly Uptime Percentage of 99.9% during the Term (“Service Commitment”). In the event Consultant does not meet the Service Commitment, Anaheim shall receive Service Credits as provided below.

Service Credits are calculated in accordance with the schedule set forth below as a percentage of the total amounts paid by Anaheim for the Services that are attributable to the monthly period in which the Unavailability occurs:

Monthly Uptime Percentage Service Credit Percentage
Less than 99.9% but equal to or greater than 98% 10% of the fees attributable to such month Less than 98% but equal to or greater than 90% 20% of the fees attributable to such month Less than 90% but equal to or greater than 85% 30% of the fees attributable to such month Less than 85% 100% of the fees attributable to such month

2 If any Service Credits remain outstanding upon termination or expiration of the Agreement, then Consultant will provide a refund to Anaheim in the amount of such outstanding Service Credits.

3. Credit Request and Payment Procedures
To receive a Service Credit, Anaheim must submit a claim by sending an email to [email protected]. The credit request email must be received by Consultant no later than 30 days following the last day of the monthly period during which the Unavailability occurred and must include:

1. The phrase “SLA Credit Request” in the subject line;

2. The dates and times of each incident of Unavailability that Anaheim is claiming; and

3. Supporting documents that denote the errors and corroborate the claimed outage.

If the Monthly Uptime Percentage is less than the Service Commitment, then Consultant will issue a Service Credit to Anaheim within one billing cycle following the month in which Anaheim’s request is confirmed by Consultant. Anaheim’s failure to provide the request and other information as required above will disqualify Anaheim from receiving a Service Credit.

4. SLA Exclusions
The Service Commitment does not apply to periods where the Purchased Modules/Services are unavailable to Anaheim as a result of: (i) factors outside of Consultant’s reasonable control, including, without limitation, any Force Majeure event or internet access or related problems beyond the demarcation point of the SwiftComply Services or its direct hosting subcontractors (i.e., beyond the point in the network where Consultant maintains access and control over the SwiftComply Services); (ii) actions or inactions of Anaheim or any third party (other than Consultant’s direct hosting subcontractor); (iii) malfunctions in Anaheim’s equipment, software, or other technology and/or third party equipment, software, or other technology (other than third party equipment within Consultant’s direct control); (iv) result from any scheduled maintenance (provided that Consultant gives Anaheim notice of scheduled maintenance at least 48 hours in advance of the downtime, or, in the event of emergency maintenance, provides notice as soon as practicable); or (vi) Consultant’s suspension and termination of Anaheim’s right to use the Purchased Modules/Services in connection with any breach by Anaheim of the Agreement (collectively, “SLA Exclusions”).

5. Support Contact
Between the office hours of 7:00 am and 7:00 pm EST, Monday through Friday, except U.S. national holidays, Anaheim may contact Consultant for live support at: (619) 304-6022 and [email protected]
. Additionally, Consultant’s online tutorials and help information is available 24/7 at https://knowledge.swiftcomply.com/hc/en-us.