SECOND AMENDMENT
TO
PROFESSIONAL SERVICES AGREEMENT
[Traffic Engineering Services – RFP 20-21.40]
THIS SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT (the “Second Amendment”) is made and entered into as of ________________, 2022, by and between the CITY OF ORANGE, a municipal corporation ( “City”), and ITERIS, INC., a Delaware corporation (“Contractor”), with reference to the following:
A. City and Contractor entered into a Professional Services Agreement (Agreement No. 7258) dated September 14, 2021 , which is incorporated herein by this reference (the “Original Agreement”); and
B. City and Contractor amended the Original Agreement to revise the Scope of Services by a First Amendment to Professional Services Agreement (Agreement No. 7258.1) dated February 24, 2022, which is incorporated herein by this reference (the “First Amendment”); and
C. City and Contractor desire to further amend the Original Agreement to modify, amend and supplement certain portions of the Original Agreement to revise the Scope of Services and increase the compensation.
NOW, THEREFORE, the parties hereby agree as follows:
Section 1. Defined Terms. Except as otherwise defined herein, all capitalized terms used herein shall have the meanings set forth for such terms in the Original Agreement.
Section 2. Cross-References. City and Contractor agree that all references in this Second Amendment are deemed and construed to refer to the Original Agreement, as implemented by this Second Amendment.
Section 3 Revised Scope of Services. The Scope of Services, Section 1, Exhibit A of the Original Agreement, is hereby amended, modified and supplemented to include the services described on Exhibit A attached hereto and incorporated herein by this reference.
Section 4 Compensation. The total not -to-exceed compensation for the services to be rendered as set forth in Section 2.a of the Original Agreement is increased by EIGHT HUNDRED SEVENTY-TWO THOUSAND FOUR HUNDRED THIRTY DOLLARS and 00/100 ($872,430.00) and Section 2.a is hereby amended in its entirety to read as follows:
“Contractor's total compensation for all services performed under this Agreement, shall not exceed ONE MILLION NINE HUNDRED FORTY-EIGHT THOUSAND SEVEN HUNDRED SEVENTY-ONE DOLLARS and 00/100 ($1,948,771.00) without the prior written authorization of City.”
2 Section 5. Integration. This Second Amendment amends, as set forth herein, the Original Agreement and, except as specifically amended hereby, the Original Agreement shall remain in full force and effect. To the extent that there is any conflict or inconsistency b etween the terms and provisions of this Second Amendment and the terms and provisions of the Original Agreement, the terms and provisions of this Second Amendment shall control and govern the rights and obligations of the parties.
IN WITNESS of this Second Amendment, the parties enter into this Second Amendment on the year and day first above written.
“CONTRACTOR” “CITY”
ITERIS, INC., a Delaware corporation CITY OF ORANGE, a municipal corporation
*By: By:
Printed Name: Mark A. Murphy, Mayor Title:
*By: ATTEST:
Printed Name:
Title:
Pamela Coleman, City Clerk
APPROVED AS TO FORM:
Mary E. Binning
Senior Assistant City Attorney
*NOTE: If CONTRACTOR is a corporation, the City requires the following signature(s):
-- (1) the Chairman of the Board, the President or a Vice-President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR
-- The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to the City.
EXHIBIT “A”
SUPPLEMENTAL SCOPE OF SERVICES
[Behind this page.]
Sub-Task 7.4 & 7.5
The scope of services set forth in Exhibit “A” of Agreement No. 7258 shall also include:
Task 7: Synchronization System Construction
Sub-Task 7.4: Advance Materials and Equipment Procurement Sub-Task 7.4.1: Procurement
Iteris shall procure equipment identified on the Project’s proposed improvement list in Table 1. The scope of work at a minimum includes:
1. Identifying any and all equipment necessary for advance procurement based on project design and equipment needs specified by participating agencies
2. Soliciting bids or quotes on behalf of owning agency
3. Ordering the correct make, model, and quantity to meet the owning agency’s specifications and needs
4. Securing manufacturer support services for installation of equipment where required
5. Ensuring all material and necessary support services ordered is approved by the owning agency in a submittal review
6. Placing the order for equipment within ten (10) working days of approval
7. Paying all vendor invoices
8. Upon receipt of said equipment, inspecting to ensure accuracy with original order and verifying equipment is not damaged nor defective
9. Storing equipment in a secure location on behalf of owning agency
10. Coordinating with vendor or manufacturer for any warranty issues or defects, for duration of Project
11. Coordinating with respective vendor and/or awarded Project Contractor for installation of equipment
12. Maintain all documentation related to Sub-Task 7.4, consistent with OCTA’s CTFP Guidelines.
Documentation includes but is not limited to: proof of order, estimated delivery from vendor, copies of final paid receipts, and proof of payment.
For certain equipment, such as traffic signal controllers, manufacturer support for installation is considered a standard and/or necessary service. Other equipment, i.e. IP Communication Ethernet or fiber optic switches, are considered “plug and play” and do not require a field contractor for installation and setup. Such equipment may be installed by and configured under the professional services agreement by Iteris on behalf of the owning agency.
Iteris shall identify each equipment from the Advance Procurement List to be installed by either the awarded Project Contractor, the owning agency, the respective vendor/manufacturer or Iteris. If equipment will require manufacturer/vendor support, such services shall be included with the equipment order.
Iteris shall comply with the Orange Municipal Code, Chapter 3.08 - Purchasing System, Sections 3.08.100 to
3.08.320 as they relate to solicitation and award of bids, when procuring any equipment for the Project. Iteris is responsible for documenting said compliance, including but not limited to: proof of solicitation for bids or quotes, obtaining sole source letters when applicable, and all equipment bids or quotes. All documentation shall be compiled and incorporated into the Project files.
Sub-Task 7.4 & 7.5
Table 1 – Equipment List for Advance Procurement
Traffic Signal Equipment Type
Traffic Signal Controller Cabinet
Traffic Signal Controller
Uninterrupted Power Supply (UPS) / Back-up Battery System Emergency Vehicle Preemption (EVP)
Video Detection System (VDS)
Radar Vehicle Detector System (RVDS)
Traffic Signal Closed-Circuit Television (CCTV) Camera
Traffic Signal IP Communication (Switches)
Wireless Radio Communication
Traffic Management Center System Software
Sub-Task 7.4.2: On-Call Contractor Support
In the event the Iteris-procured equipment is installed by the Project Contractor and requires troubleshooting, diagnosis or warranty repair, some of the Project Partner Agencies may not have the resources available to access or repair the equipment. For these instances, Iteris may use an on-call contractor to provide access and repair the equipment. The on-call contractor shall be sub-contractor to Iteris, maintain a current license in the appropriate classification and pre-approved by the City of Orange. Additionally, the sub-contractor shall provide proof of insurance for the minimum limits prescribed in the Project’s original RFP (RFP 20-21.40). The City of Orange and its Partner Agencies shall be named as additional insured. It shall be the responsibility of Iteris and its sub- contractor to obtain an encroachment permit (no fee) from the appropriate agency for any work performed in public right-of-way.
Sub-Task 7.4 Deliverables:
1. Quotes and/or bids for all equipment procured in advance of construction
2. Preliminary and final summary list of all equipment, services, vendors and costs procured in advance
3. Sole source letters
4. Documentation demonstrating compliance with Orange Municipal Code, Chapter 3.08 - Purchasing System
5. Equipment submittals for agency review and approval
6. Proof of equipment order including estimated delivery from vendor
7. Final paid receipts and proof of payment
8. Equipment
9. Installation coordination
Sub-Task 7.4 Compensation Fee:
Iteris’s compensation for performing Sub-Task 7.4.1 Procurement shall be a 5% surcharge on the final cost of equipment and services procured in advance by Iteris. Taxes, shipping and miscellaneous fees shall be excluded from surcharge.
Iteris’s compensation for Sub-Task 7.4.2: On-Call Contractor Support shall be on a time and material basis.
Sub-Task 7.4 & 7.5
Sub-Task 7.5: Automated Traffic Signal Performance Measures As identified in the Project’s original application to OCTA, the City intends to use Automated Traffic Signal Performance Measures (ATSPMs) to continuously collect data at its intersections to proactively identify and correct deficiencies. Iteris shall provide ATSPMs through the Iteris SPM Service, per the attached quote (Attachment 1). Iteris SPM shall be installed at the 19 intersections identified in Table 2, within the City of Orange, for a period of three (3) years. The scope of work includes, but is not limited to: installation, set-up, and configuration; troubleshooting and support; Iteris SPM license for three (3) years.
Table 2 – Intersection List for Iteris SPM
Item Intersection # Major Street Cross Street City
1 11 Tustin Street Fairhaven Avenue Orange
2 14 Tustin Street La Veta Avenue Orange
3 15 Tustin Street Palmyra Avenue Orange
4 16 Tustin Street Chapman Avenue Orange
5 17 Tustin Street Palm Avenue Orange
6 18 Tustin Street Walnut Avenue Orange
7 19 Tustin Street Mayfair Avenue Orange
8 20 Tustin Street Collins Avenue Orange
9 21 Tustin Street Quincy Avenue Orange
10 23 Tustin Street Van Owen Avenue Orange
11 24 Tustin Street Taft Avenue Orange
12 25 Tustin Street Briardale / Taft Avenue Orange
13 26 Tustin Street Meats Avenue Orange
14 27 Tustin Street East Village Way Orange
15 28 Tustin Street Village Town Center Orange
16 29 Tustin Street Heim Avenue Orange
17 30 Tustin Street SR-55 S/B On-Ramp Orange
18 31 Tustin Street Lincoln Avenue Orange
19 35 Tustin Street Santa Ana Canyon Road Orange
Sub-Task 7.5 Compensation Fee:
Iteris’s compensation for Sub-Task 7.5 shall be $49,400.
Sub-Task 7.4 & 7.5
Attachment 1
Iteris SPM Quote
Iteris SPM Pricing
ITERIS SPM QUOTE – City of Orange Tustin-Rose RTSSP Project Date: January 12, 2022
Pricing – SPM
SPM
Pricing below is broken down by a 3 year service fee and set-up fee. Annual service fee includes data hosting, access to the platform, training and support for 19 intersections in the City of Orange Ca.
Set-up is a one-time fee for up to 19 intersections which includes data engine install, website set-up, meta-data configuration and chart QA.
Description Units Quoted Pricing to City of Orange
$2600.00 per Intersection SPM License & Set Up/Int 19 (intersections) $200.00 per hr @800.00 Total SPM Labor at 4 hours per Int. 19 (intersections)
TERMS AND CONDITIONS
The license terms
and conditions for Iteris SPM are set forth in the Hosted Service License Agreement attached hereto.
The Tustin – Rose RTSSP project is calling out for 19 intersections of Iteris SPM We agreed to provide you with the quote of $2600.00 per intersection $600.00 for SPM License for a 3-year service =$1800.00 plus $800.00 for SPM set up labor at a total of $2600.00
The $800.00 labor is broken down as 4 hours at $200.00 per totaling the $800.00 Grand Total= 19 (intersections) $49,400.00
Iteris SPM Pricing
ATTACHMENTS
SU BSCRIPTION SERVICES AGREEMENT
Form Rev: 20200501 Page 1 of 4
This Subscription Services Agreement (“Agreement”) is made by and between Iteris, Inc., a Delaware corporation, (“Iteris”) and the company, organization, educational institution, or agency, instrumentality, or department of the federal/state governme nt (“Customer”) that has purchased a subscription to the Iteris SPM™ mobility intelligence platform (“Iteris SPM”) service (“Subscription Services”) and related data made available to Customer through the Iteris SPM platforms (e.g., websi tes, software applications or proprietary application programming interfaces), except to the extent that thi s Agreement i s specifically modified or superseded by a separate written agreement duly executed by authorized representatives of Iteris and Customer.
1. Acceptance of Agreement and Purpose. In order to access and use the Subscription Services subject to thi s Agreement, C ustomer must have purchased a subscription to the Subscription Services from ei ther Iteris or an Iteris authorized reseller unde r a purchase order, servi ce agreement or contract (an “Order”) specifying the ti me-peri od over whi ch access to the Subscription Services is a
uthorized (“Subscription Term”), of which incorporating this Agreement by reference or attached. Customer accepts and agre e s t o the terms and conditions of this Agreement on Customer’s own behalf and on behalf of each individual (an “End User”) that C u stomer authorizes to access the Subscription Services for Customer’s internal operations business purposes or, if Customer is a governm e ntal entity, for governmental purposes (the “Purpose”). Cus tomer is responsible for each authorized End User to be bound by and to compl y with the terms and conditions of this Agreement. In connection with the Subscription Services, the terms and condit ions of this Agreement supersede any conflicting or additional terms and conditions of the Order, and the parties expressly reject any such conflicting and/or additional terms and conditions of the Order.
2. Term and Termination.
Term and Termination. Thi s Agreement will become effective on the date Customer accepts this Agreement or upon Custom e r’ s initial access or use of the Subscription Services, whichever occurs earlier, and continue in effect for the Subscription Term des cribed i n the Order, unl ess earlier termi nated i n accordance wi th thi s Agreement (“Term”). If a party materially breaches or defaults in any of the terms or conditions of this Agreement, then the non-breaching party may give written notice to the defaulting party that if t he default is not cured within thirty (30) days this Agreement wi ll be termi nated. If the non-defaulting party gives such notice and t he default is not cured during the thirty-day period, then non-defaulting party may el ect to termi nate this Agreement at the end of such cure peri od. This Agreement may be terminated immediately by a party by giving written notice to the other party in the event of, (a) dissolution, cessation, liquidation or insolvency of the other party; (b) the appointment of a receiver or similar officer for th e o ther party; (c) an assignment by the other party for the benefit of all or substantially all of its creditors; (d) entry by the other party int o an agreement for the composition, extension, or readjustment of all or substantially all of its obligations; or (e) the filing of a meritorious petition in bankruptcy by or against the other party under any bankruptcy or debtors’ laws for its relief or reorganization.
Effect of Termination . Upon the effective date of termination of this Agreement for any reason, the Subscription Te rm shall terminate and Customer shall immediately discontinue access to and use of the Subscription Services, including any use of any servi ces-related Software and Documentation. Iteris shall have the ri ght upon any termi nation to cancel Customer’s access to the Subscription Services, invalidate Customer’s corresponding user ID’s and/or passwords, and delete Customer Data in accordance with the Iteris data retention and privacy policy. Obligation for payment of Subscription Services fees accruing prior to the effecti ve date of termination shall survive termination for any reason. Customer acknowledges and agrees that such provisions hereof which, by their context and content, are intended to survive termination or expiration shall so survive, including without lim itation, Sections, 1, 2, 4 through 10.
3. License Grant. Subject to the terms and conditions of this Agreement, Iteris grants to Customer a non-exclusive, non-tran sferabl e, revocable, limited license during the Subscription Term (i) to access the Subscription Services, as instructed by Iteris; (ii) to a ccess and use Subscription Services-related Iteris proprietary software, applications, and databases (“Software”) and any related document at ion for description, use or operation of the Subscription Services an d Sof tware (“Documentation”) only i n conjunction with the us e of the Subscription Services; (i ii) to use the derived performance measures, reports, and other outputs of the Subscription Services (“Iteris Data”) solely for the Purpose ; and (iv) grant access to the Subscription Services, set forth in (i) through (iii) above, to Custom e r’ s authorized End Users in support of the Purpose.
4. Restrictions and Ownership. Except as expressly provided in this Section 3, or as may otherwise be mutually agreed by It e ris and Customer i n a duly executed written agreement, Customer (for itself or through a third party) may not: (a) attempt to decrypt, discover or reverse engineer any Iteris IP or other confidential or proprietary information developed or used by Iteris to provide the Subscription Servi ces; (b) modify, prepare derivative works, translate, reverse engineer, reverse compile, or disassemble the Iteris IP or attempt or assist any third party to do any of the preceding; (c) use or authorize use of the Iteris IP for any purpose not specified in this Agreeme nt ; (d) reproduce, rent, l ease, sell, sublicense or otherwise transfer or distribute the Subscription Services, or any portion thereof, in any form or medium without the prior written consent of It eris; (e) allow any third party to resell, sublicense, distribute or othe rwise transfer the Subscription Services or Iteris Data for any purpose other than the Purpose, (f) retain any instantiations or derivative s of the Iteri s IP i n any form after expiration or termination of this Agreement (except state, l ocal, and federal government Customers may continue to use for the Purpose any Iteris Data acquired prior to termination), or (g) use the Subscription Services in any manne r which: (i) poses a security risk; (ii) violates any applicable law or regulation; (iii) could disable, overburden, damage, or im pair t he performance or operation of the Subscription Services or Iteris’ hosting envi ronment; (iv) i ntroduce offensive, harmful, i nfringing or
SUBSCRIPTION SERVICES AGREEMENT
Form Rev: 20200501 Page 2 of 4
otherwise inappropriate or illegal content; or (v) poses a liability risk to Iteris. Customer is responsible for (a) a ny breach of this Agreement by an End User, (b) verifying End Users that access the Subscription Services, and (c) implementi ng reasonable security measures and practices appropriate to protect against unauthorized access to the Subscription Services. Except for the licenses expressly granted under this Agreement, Iteris (and its applicable licensors) retains all right, ti tle and interest i n and to the Subscription Servi ces, Software, Documentati on and Iteris Data (collectively “Iteris IP”) i s not transferred to Customer. Iteris (and its applicable l i censors) remains sole and exclusively owner of the Iteri s IP, i ncluding any and all exi sting and future intellectual property right s therein and thereto. For avoidance of doubt, Iteris IP includes, without limitation, any and all ideas, software, copies, derivatives, changes, feedback, improvements, modifications, enhancements, supplements, additions, corrections, work-arounds, fixes, upgrades, updates, and extensions. Except for those rights expressly granted in this Agreement, no other rights are granted, either expre ss or implied.
5. U. S. Government Restricted Rights. The Subscription Services and any related Software a nd Documentation a re "C o mmerci al Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Comput e r Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Compute r Software Documentation are being licensed to U.S. Governm ent end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright l aws of the Uni ted States. The “Manufacturer” i s Iteris, Inc., 1700 Carnegie Avenue, Sui te 100, Santa Ana, California 92705 USA.
6. Customer Data, Privacy Policy, and Third Party Data. (a) Customer Data. Customer’s use of the Subscription Services may require Iteris to use Customer’s or its End Users’ personally identifiable information and non- personally identifiable information (collectively, “ Customer Data”). Personally- identifiable information may be provided by Customer to Iteris in the initially setup process to access the Subscription Services (e.g., creati ng a n a ccount).
(b) Privacy Policy. If Customer or an End User provides a ny personally identifiable information to Iteris, i ncluding, without lim itatio n, name, telephone number and email address, Iteris will only store and use such personally identifiable i nformation that is needed to veri fy use of the Subscription Services, to provide the Subscription Services, to respond to requests, a nd to provide support, Customer service and account maintenance. Iteri s does not offer to sel l or otherwise sel l personally identifiable information. I teri s may also collect and use Customer ’s and its End Users’ non -personally identifiable information including, but not limited t o, supplemental data used in performance of services, a nd browser a nd/or device information. Personally identifiable information that is provided to Iteris for a particular purpose will only be saved and used for that purpose, unless prior express consent is given t o allow Iteri s to use i t for some other purpose. Unl ess otherw ise prohibited in the Order, Iteri s may share non-personally identifiable information with third parties, but that information does not include any personally identifiable information. Iteris reserves the right to use or share for any purpose any data provided by Customer on an aggregate, anonymized basis. Iteris does not trade, share, rent, sel l or give away personally identifiable information to third parties.
I n a ddition, i n connection wi th the Subscription Services provided under this Agreement, Customer acknowledges and agre e s to the following Iteris s ecurity and privacy measures: (i) a uthentication a nd a uthorization credentials a re, as applicable, encrypt e d during transmission using standard secure socket layer (“SSL”) protocols and certificates are verified and executed by a commercial SSL certificate authority. (ii) Unless otherwise mutually agreed, the Subscription Services is controlled and operated from facilitie s in the Uni ted States of Ameri ca and Customer personally identifiable information (i f any) is logically and physically hosted in the Unit e d States of Ameri ca . (iii) Personally-identifiable information shall be removed when no longer needed or when this Agreeme nt termi nates or expires, whi chever comes fi rst. (iv) the Subscription Services a nd a ny API portion of the Subscription Service s will provide authorization capabilities. (v) Al l personally identifiable information is processed and stored by Iteris in a secured manne r that reasonably prevents unauthorized access from internal and external parties . (vi) Iteris uses third party companies, such as Amazon Web Servi ces (”AWS”), to facilitate the Subscription Services as follows: (1) to provide the Subscription Services (or portions thereof) on Iteris’ behalf, and (2) to provide Subscription Services, including without limitation, data archive storage, authentication, monitoring, analytics, and technical support reporting. (vii) I teris ma intains, a t a minimum, a technical i nfrastructure a nd i nternal procedures for provisioning, monitoring, and remediating issues identified through regular monitoring for intrusion and netw ork vulnerability scans. Iteris wi ll promptly remediate security i ssues it becomes aware of. (c) Google Analytics. Iteris and its partners use various technologies to collect and store information when Cust om e r accesses and uses the Subscription Services that may include using cookies or similar technologies. Iteris uses “Google Analytics” (https://analytics.google.com) and associated tools in connection with the Subscription Services to collect and analyze inform ation about how users use the Subscription Services. Google Analytics collects information such as how often a user visits the Subscription Servi ces, what pages a user visits when a user does so, and information on specific pages and content accessed on the Subscript ion Servi ces. Iteri s uses the information received from Google Analytics to improve the Subscription Services offered to our customers.
Google Analytics collects only the Internet Protocol address assigned to a customer on the date such customer initially accesses the Subscription Services, rather than your name or other identifying information. Iteris does not combine the information colle ct e d
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through the use of Google Analytics with personal information. Google Analytics uses cookies to collect standard Interne t lo g information and visitor behavior information in an anonymous form. These cookies are used only by Google, and not by Iteris. Google Anal ytic’s ability to use and share inform ation collected by Google Analytics about your visits to this website is restricted by the Google Anal ytics Terms of Use ( https://www.google.com/analytics/terms/us.html) and the Google Privacy Policy (https://www.google.com/policies/privacy/). However, Cus tomer can prevent Googl e Analytics from recognizing Cus tomer’s return access to the Subscription Services by disabling cookies on your browser. Use of the Subscription Services without restricting use of cookies constitutes Customer’s consent to the use, storing and access of cookies on Customer’s computers or devices. (d) Retention Policy. It is Iteris’ policy that Customer Data, as defined in this Section 6, is private and confident ial t o Customer. The “Retention Pe riod” for Customer Data, except for personally identifiable information, shall be one hundred eight y (180) days unless modified in a duly executed written agreement of Customer and Iteris. Personally identifiable inform at ion i s destroyed when it is no lo nger required to provide the Service (e.g. an End User account is closed), or upon Customer or End U se r request. Iteri s shall make a commercially reasonable good faith effort to permanently destroy or render i naccessible Customer Data in Ite ris’ and /or in any third party service provider’s possession or control within thirty (30) days after the end of the Retention Pe riod.
For the avoidance of doubt, anything that is stored on routine back-up media solely for the purpose of disaster recovery will be subject to destruction in due course, provided that employees are precluded from accessing such information in the ordinary course of business prior to destruction. Notwithstanding the foregoing, latent data such as deleted files, and other non-logical data type s, such as memory dumps, swap files, temporary files, printer spool files, and metadata that is generally considered inaccessible without the use of specialized tools and techniques will not be within the requirement for destruction as set forth by this Sec tion 7, but shall remain subject to the confidentiality obligations set forth herein. (e) Third Party Data. All data used by the Subscription Services provided by a third party shall be governed by the ow ne rship provisions of the third party. I f Customer provides access to s uch third party data, it shall be responsible for ensuring that Ite ris is granted sufficient rights to provide the Subscription Services using such third party data. If Iteris provides access to such third party da ta , i t s hall be res ponsible for ensuring that both Iteris and Customer are granted sufficient rights in such third party data for the purposes of this Agreement. Both Customer and Iteris agree to abide by such additional terms and conditions a pplicable to s uch third party data.
7. Confidentiality.
“Confidential Information” means (i) with regard to Customer Data, any non- public information regarding the busine ss of Customer, in whole and in part, (ii) with regard to Iteris, the Iteris IP, feedback and any other non-public information regarding the Subscription Services and business of Iteris, in whole and in part, and (iii) with regard to either party, a ny other i nformation, ideas, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, custome rs, markets, software, software code, software documentati on, devel opments, i nventions, l ists, trade secrets, processes, designs, drawings, engineering, hardware configuration information, marketing or finances, which is designated in writing to be confide ntial or proprietary, or if disclosed orally or other intangible means, is designated at the time of disclosure as confidential or proprietary.
The Parti es, each of which may be a “Disclosing Party” or a “Receiving Party” from ti me to ti me, agree to disclose the Confidential Information only to their employees, officers, directors, consultants, contractors, affiliates, advisors or agents (collect iv el y, “Representatives”) who have a need -to-know for that purpose and who are bound to confidentiality by this or an equivale nt agreement, and to maintain the Confidential Inform ation in confidence using the same degree of care to avoid disclosure thereof as the Receiving Party employs on its own Confidential Information of like importance, but in no case less than reasonable prudent care .
In addition, the parties agree that the Recei ving Party shall not reverse engineer, disassemble, decompile, or otherwise analyze the design or construction of any equipment, component, or software wit hout the prior written consent of the Disclosing Party. A ll materials containing Confidential Information provided by the Disclosing Party under this Agreement are and will remain the pr op erty of the Disclosing Party. This Agreement shall pose no such confidential obligation upon either party with respect to any portion of t he received Confidential Information which: (i) is possessed by the Receiving Party at the time of the disclosure without any obligations of confidentiality as evidenced by written or other tangible records: (ii) is independently developed by the Receiving Party as evidenced by written or other tangible records without use or reference to the Disclosing Party’s Confidential Information; (iii) is he r ea fter rightfully furnished to the Receiving Party by a third party without restriction on disclosure or subject to confidentiality obligations; (iv) is now, or which hereafter becomes, generally known or available to the public through no act or failure to act by the Recei ving Party or in breach of this Agreement; or (v) is released from confidentiality in writing by the Disclosing Party.
If the Recei vi ng Party is served a form of process from a court of competent jurisdicti on or government agency requiring Receiving Party to disclose any Confidential Information of the Disclosing Party to any third party, the Receiving Party shall immediately notify the Disclosing Party who shall, in addition to the Receiving Party’s efforts, if any, have the right to seek to void s uch process. Each Party shall cooperate with the other in all efforts to quash such process or otherwise to limit the scope of any required disclosure . In the event that the di sclosure of any Confidential Information is compelled, the Receiving Party shall seek an appropriate protective order from the court to limit access to and use of such information.
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The Recei vi ng Party agrees to promptly return or certify destructi on of all copies of any received Confidential Information and of any additional documents in any media containing any of the disclosed Confidential Information upon termination of this Agreem e nt or written request of the Disclosing Party. The obligations to protect Confidential Information recited above shall survive any such termi nation for a period of three (3) years after the date of termi nation of this Agreement for any reason, provided, however, any personally identifiable information of the Disclosing Party shall remain subject to the confidentiality obligations contained he re in inde fin ite ly .
8. WARRANTY DISCLAIMER. THE SUBSCRIPTION SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND CUSTOMER AGREES TO USE THE SUBSCRIPTION SERVICES AT ITS OWN RISK. ITERIS DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION. ITERIS MAKES NO GUARANTEES REGARDING THE QUALITY, ACCURACY, COMPLETENESS, EFFECTIVENESS, RELIABILITY, OR USEFULNESS OF THE SUBSCRIPTION SERVICES OR RESULTS OBTAINED THEREFROM.
WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, ITERIS EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT
TO THE SUBSCRIPTION SERVICES OF ANY KIND WHATSOEVER, WHETHER STATUTORY, EXPRESS, IMPLIED OR ARISING BY USAGE OF
TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
9. LIMITATION OF REMEDIES AND DAMAGES. IN NO EVENT SHALL ITERIS OR ANY OF ITS AFFILIATES, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, “AFFILIATES”) BE LIABLE FOR ANY LOST PROFITS, LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE, LOSS OF INFORMATION, LOSS OF DATA, OR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE LICENSED SOFTWARE OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. THIS LIMITATION WILL APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. Miscellaneous. Customer shall not assign or delegate its rights under this Agreement without the prior written consent of Iteri s.
Any attempt by Customer to assign i ts ri ghts or del egate i ts duti es i n contravention of the preceding sentence shall be voi d from the beginning. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parti es. C u sto mer will comply with all applicable U.S. and foreign export laws and regulations and acknowledges that the Iteris IP may be subject to U.S.
Export Administration Regulations. This Agreement is the entire understanding of the parties regarding the subject matter; any modification must be in a writing duly executed by authorized representatives of the parti es. If Customer i s a governmental body or agency, this Agreement shall be governed by and construed according to the laws of the state in which Customer is l ocated wi thout regard to the state’s principles of conflict of laws. If Customer is not a governmental body or agency, this Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A, without regard its principles regarding conflicts of laws and the parties agree that all disputes hereunder are subject to the exclusive jurisdiction of and venue in the federal and state courts of Orange County, CA. No waiver of rights under this Agreement by either part y shall constitute a subsequent waiver of this or any other right under this Agreement. The parties acknowledge that Iteris IP has competitive , unusual and extraordinary value and proprietary nature, and that the prospective breach of any provision of this Agreement by Customer may cause Iteris substantial and irreparable harm, for which remedies available at law may be inadequate. Notwithstanding anythi ng otherwise to the contrary herein, Iteris shall be enti tled to seek equitable relief i n any court of competent jurisdiction to protect its intellectual property rights that are the subject matter of this Agreement without prejudice to any other relief available at law, in equity or otherwise. The parties hereunder are i ndependent contractors. Thi s Agreement does not create any joint venture, fiduciary, agency or partnership relationship. All notices in connection with this Agreement will be deemed given as of the day the y are recei ved ei ther by messenger, delivery service, or i n the United States of America mail, postage prepaid, certified or registered, return recei pt requested, and addressed ei ther to Customer or to Iteris at the addresses specified i n thi s Agreement, or to such other address as a party may designate pursuant to this notice provision.