13.2.4 If a change in Laws prevents Service Provider from performing its obligations under this Agreement, Service Provider will, if practicable, develop and, upon Customer's approval, implement a suitable workaround until such time as Service Provider can perform its obligations under this Agreement in compliance with Laws without such workaround.
13.2.5 [RESERVED].
13.3 HIPAA Compliance. Service Provider agrees to comply with all requirements that are now or will become applicable to it in its role as the service provider under this Agreement pursuant to regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (as the same may have been and/or may be amended from time-to-time, "HIPAA").
13.4 Transborder Data Flows/GDPR. Service Provider shall not transfer any Customer Data across a country border unless Service Provider reasonably considers such transfer appropriate or useful for Service Provider's performance of the Services, or obtains Customer’s prior written consent.
Service Provider understands and acknowledges that, to the extent that performance of its obligations hereunder involves or necessitates the processing of personal data, Service Provider shall comply promptly with instructions and directions received by Service Provider from Customer with respect to the processing of personal data. To the extent applicable, the Parties agree to cooperate with respect to any permitted trans-border data flows to comply with the Regulation (EU) 2016/679 (General Data Protection Regulation (GDPR)) and Directive (EU) 2016/680, inclusive of all amendments thereto. With respect to such trans-border data flows, and if requested by Customer, Service Provider also undertakes to execute or to cause the relevant data importer to execute, as part of the Services provided to Customer any documents, including any data transfer agreement, which may be reasonably required by Customer or the relevant data exporter to comply with applicable data protection laws.
13.5 PCI Compliance. Service Provider acknowledges and agrees that to the extent that credit card data is collected, processed, stored or transmitted, Service Provider shall adhere to the Payment Card Industry (PCI) Data Security Standards and provide proof of compliance with PCI standards upon Customer’s request. Such compliance shall include, without limitation, compliance with PCI-DSS security controls, certification and notification requirements.
13.6 Unlawful Payments. Service Provider has not and will not directly or indirectly through a third-party intermediary pay or provide, or offer to pay or provide, any monies or other items of value (for example, gifts, meals, contracts, entertainment, employment, hospitalities, and sponsorships that are not permitted by Service Provider) to (i) an officer or employee of a governmental department, agency, instrumentality ( such as a government-owned commercial enterprise) or public international organization, or any person acting on behalf of any such entity; or (ii) any political party or official thereof or any candidate for political office, in order to obtain, retain or direct business to any person.
13.7 Compliance with Laws and Ethics Policies. Service Provider and Approved Subcontractors shall comply with all applicable laws and regulations of the federal, state and local government, e.g., “The Code of the City of Santa Clara, California” (“SCCC”). In particular, Contractor’s attention is called to the regulations regarding Campaign Contributions (SCCC Chapter
2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered.
Additionally Service Provider has read and agrees to comply with City’s Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299).
13.8 Service Provider Internal Audits. Service Provider will, upon request, make available to Customer a summary report of the results and a summary of pertinent supporting information of any internal or external review or audit conducted by Service Provider and its internal and external auditors, relating to Service Provider's operating practices and procedures to the extent relevant to the Services, such as Schedule 10, Security Protocol. Customer acknowledges that Service Provider’s audits, reviews, audit results and other related information are Confidential Information hereunder.
Master Service Agreement
13.9 [RESERVED].
13.10 Audit. Upon thirty (30) days' prior notice from Customer, unless shorter notice is required by exigent circumstances, and subject to the confidentiality obligations in Article 17, Service Provider will provide , and will cause its Approved Subcontractors to provide, Customer or any Customer representative (other than a Service Provider Competitor), with access to such facilities, records and supporting documentation as may be reasonably requested by Customer in order to audit Service Provider's compliance with its obligations under this Agreement, such as those pertaining to Fees, Service Levels, the Security Protocol the Customer Controls and any applicable Authorization, Consent, Assigned Agreement, Managed Agreement or ethics policies. Audits shall be conducted in a manner that minimizes any disruption of Service Provider’s performance of Services and other normal operations.
13.10.1 Service Provider will, and will cause its Approved Subcontractors to, (i) assist Customer and its designees in the performance of the audits described in this Section or (ii) cooperate fully with Customer and its designees in the performance of the audits described in this Section. Upon Customer's request, Service Provider will provide a reasonable level of resources to support the performance of the audits described in this Section, at no additional cost to Customer. Service Provider’s obligations to provide any such support shall not impede Service Provider’s ability to meet its obligations under this Agreement or Service Provider’s normal business operations. Customer, in its sole discretion and at its expense, may perform the audits described in this Section through its internal and/or external auditors.
13.10.2 If an audit of Fees charged discloses that Service Provider has overcharged Customer, Customer will notify Service Provider of the amount of such overcharge and Service Provider will promptly pay to Customer the amount of the overcharge, plus Interest calculated (at the then Prime Rate) from the date of receipt by Service Provider of the overcharged amount until the date of repayment to Customer. If such audit reveals any other deficiencies in Service Provider's performance of its obligations under this Agreement, such as any Schedules, Service Provider will promptly take steps to rectify all such deficiencies. At Service Provider’s request, Customer will make the audit report available to Service Provider and provide Service Provider an opportunity to explain any apparent discrepancies. If the audit of Fees charged discloses that Service Provider has undercharged Customer, Customer will promptly pay to Service Provider the amount of the undercharge without interest.
13.10.3 If, as and when regulatory authorities with jurisdiction over Customer so request, Service Provider will cooperate with regulatory agencies, their auditors and examiners, in the same manner contemplated by this Section for audits conducted by Customer.
13.10.4 Service Provider shall submit to Customer, an acceptable plan to cure any such breaches and process/system weakness within thirty (30) days (unless a shorter period is required by exigent circumstances) and thereafter diligently complete the cure within the said period.
13.10.5 Customer, its auditors and other representatives shall observe Service Provider’s reasonable confidentiality and security arrangements. Service Provider Competitors shall not be engaged to audit Service Provider.
13.11 Control Rules. Without limiting the generality of the foregoing and subject to this Section 13.8 and the confidentiality provisions of this Agreement, Service Provider will provide, or cause its auditor to provide, Customer and its internal and external auditors with all descriptions of controls, tests of controls, audit reports and any other information that Customer or its auditor deem appropriate or necessary to enable Customer and its auditor to fulfill their legal obligations under the Securities Act of 1933; the Securities Exchange Act of 1934; the Sarbanes Oxley Act of 2002; related rules and regulations of the Securities and Exchange Commission, and Regulation S-X thereto; the rules, regulations and listing standards of the New York Stock Exchange; the rules, regulations and standards of the Public Company Accounting Oversight Board; and any other financial control or Master Service Agreement
disclosure requirement imposed by law on public companies, as such legal requirements may be amended or modified from time to time (the "Control Rules").
13.11.1 Service Provider will assist Customer to comply with the Control Rules by, (i) placing in operation as of the Commencement Date and thereafter maintaining the internal controls and procedures related to the Services and described in Schedule 27 (the “Internal Controls and Procedures”); (ii) documenting (using Microsoft Office or any other documentation product ) such internal controls and procedures; (iii) cooperating with Customer and its auditor in connection with testing the effectiveness of such controls and procedures; (iv) implementing the additional or alternative controls that Customer has in place or from time to time requires (or such superior controls as Service Provider may from time to time recommend, and Customer may approve in its sole discretion); and (v) correcting any material weakness or significant deficiency as defined by the Control Rules or any other deficiency that would prevent Customer from complying with the Control Rules.
13.11.2 On a Customer fiscal year basis [July 1st – June 30th] (“Fiscal Year”), Service Provider and all applicable Subcontractors, at Customer’s expense, shall require Service Provider’s auditors to conduct an examination of the controls placed in operation, with respect to Provider’s performance of the specific Services for Customer, and a test of operating effectiveness of such controls, as defined by (i) Statement on Standards for Attestation Engagements (SSAE) No. 16. No.1 Report on Controls at a Service Organization Relevant to User Entities’ Internal Control over Financial Reporting (“SOC 1”) and (ii) AICPA Attest Engagements AT Section 101 (AT101) and Trust Services Principles 100 (TSP100) (“SOC 2”) (i.e., the successor standard to SAS 70) and issue a report for each thereon (a “Type 2 Report”) for the applicable Fiscal Year. Notwithstanding the foregoing, should Service Provider, as part of its normal course of operations, produce a SSAE No. 16, Type 2 Report on an annual basis for its own facilities, Provider shall provide a copy of such report, at no additional cost, to Customer.
13.11.3 The Type 2 Report should include a period of testing no less than six (6) months, a portion of which shall occur during the first month of the second half of Customer’s Fiscal Year.
The Type 2 Report will be issued semi-annually for the periods ending [December 31st] and [June 30th]. Service Provider shall submit the proposed control objectives to Customer for approval prior to conducting the audit. Service Provider and all applicable Subcontractors shall deliver to Customer a copy of the Type 2 Report within six (6) weeks after conducting the applicable SSAE assessment for a Fiscal Year (but in no event later than December 15th within the Fiscal Year for which the audit was conducted) and Service Provider shall prepare and implement a corrective action plan to correct any deficiencies or resolve any problems identified in such report.
13.11.4 Service Provider shall address any audit control issues or weaknesses identified in any Type 2 Report, at no cost to Customer. If specific audit recommendations are not implemented by Service Provider, then Service Provider should implement such alternative steps as are reasonably satisfactory to Customer for the purposes of minimizing or eliminating the risks identified in any such Type 2 Report. If requested, Service Provider shall have its auditor provide a representation letter stating that no other control deficiencies have occurred since the delivery of the Type 2 Report. Costs specific to Customer's unique compliance measures will be determined and compensated in accordance with the Change Control Procedures.
13.11.5 Service Provider shall address any audit control issues or weaknesses identified in any Type 2 Report, at no cost to Customer. If specific audit recommendations are not implemented by Service Provider, then Service Provider should implement such alternative steps as are reasonably satisfactory to Customer for the purposes of minimizing or eliminating the risks identified in any such Type 2 Report. If requested, Service Provider shall have its auditor provide a representation letter stating that no other control deficiencies have occurred since the delivery of the Type 2 Report.
Master Service Agreement
13.12 Records. Service Provider will maintain and provide access, upon Customer's request, to those records, documents and other information relating to this Agreement and the provision of the Services for five years from expiration or termination of this Agreement. At any time after expiration or termination of this Agreement, Service Provider may retire its retention obligation under this Section 13.9 by providing a copy of such documents and records to Customer in a mutually agreed format. Upon notice from Customer, Service Provider will suspend any document destruction policy for any period of time reasonably requested by Customer.
14. TERM AND TERMINATION
14.1 Initial Term. The term of this Agreement will commence on the Effective Date and will be in effect for a period of thirty (30) months from the Effective Date, subject to Section 14.9, unless this Agreement is (i) sooner terminated in accordance with this Article 14 or (ii) extended in accordance with its terms or by mutually agreed amendment.
14.2 RESERVED].
14.3 RESERVED].
14.4 Termination by Customer. Customer may terminate this Agreement, in whole or in part, in accordance with the following:
14.4.1 For Convenience. Customer shall have the right to terminate for its convenience, at any time and for any reason or no reason: (a) the Term of this Agreement with regard to the Services, or (b) any portion of the Services (e.g., a Service Tower or subcomponent), then being provided by Service Provider. Any such termination shall be effected by Customer sending to Service Provider a written notice of termination specifying the extent of the Services being terminated and the intended date (the “Termination Date”) upon which, at 11:59 p.m., such termination shall be effective (“Termination Notice”). The Termination Date specified in any such Termination Notice sent by Customer pursuant to this Section 14.4.1 shall be at least one hundred twenty (120) days after the date of such Termination Notice. In the event that Customer terminates or ends the Term of this Agreement or any portion of the Services for its convenience pursuant to this Section, Customer shall pay Service Provider the applicable Termination Fee set forth in Schedule 5(“Fees”). Notwithstanding the foregoing, Termination Fees shall be proportional and pro-rated to the scope of the Services being terminated. For clarity, Termination Fees shall be structured as a downward sliding scale such that the amount of the fee decreases over time, reflecting the Service Provider’s amortization or depreciation of sunk cost investment to provide the Services. Furthermore, Termination Fees shall in no event include any lost profits, and Service Provider shall limit such fees to sunk, non-recoverable investment costs but shall also mitigate non-amortizable portion of such investment costs. Customer shall not be responsible for any additional Termination Fees or other actual non-amortized costs except to the extent that the Parties have mutually agreed to (i) adjust or change the scope of Services, (ii) amend the scope of applicable Termination Fees or other actual non-amortized costs, and (iii) execute an amendment to this Agreement or change order in accordance with the process outlined in this Agreement.
14.4.2 For Change in Control. In the event of a change of control of Service Provider resulting from a single transaction or a series of related transactions, Customer shall have the right to terminate: (a) the Term of this Agreement with regard to the Services, or (b) any portion the Services (e.g., a Tower or subcomponent), then being provided by Service Provider by sending to Service Provider a Termination Notice at least thirty (30) days before the Termination Date specified therein. Solely for purposes of this Section: (i) “control” means the legal, beneficial, or equitable ownership, direct or indirect, of more than fifty percent (50%) of the aggregate of all voting or equity interests in Service Provider; and (ii) a “change in control” shall be deemed to have occurred whenever, as a result of a single transaction or a series of related transactions, a Person (or a group of Persons acting in concert) that had not previously had control of Service Provider obtains control of Service Provider, in accordance with clause (i) of this Section. No Master Service Agreement
Termination Fee shall be payable by Customer to Service Provider for Termination based on change in control.
14.4.3 For Default. Notwithstanding anything to the contrary, Customer shall have the right to terminate: (a) the Term of this Agreement with regard to the Services, or (b) any portion the Services (e.g., a Service Tower or subcomponent), then being provided by Service Provider by delivery of a Termination Notice to Service Provider, if Service Provider commits a Default under this Agreement. In the event of any such termination by Customer for Default, Service Provider shall nevertheless perform its Termination Assistance obligations under this Agreement until they are fulfilled and any initiative reasonably requested by Customer for up to one (1) year after the effective date of such termination. Any such termination shall not constitute Customer’s exclusive remedy for such Default, nor shall such a termination result in Customer being deemed to have waived any of its rights accruing hereunder prior to such Default. If Customer terminates the Term or any portion of the Services as a result of a claimed Default by Service Provider pursuant to the terms of this Section, and Service Provider does not agree that a Default was committed, then Service Provider shall have the right to avail itself of all remedies available to it at law or in equity. In the event that it is subsequently and finally determined by a court of competent jurisdiction, or otherwise mutually agreed by the Parties in writing, that the circumstances claimed by Customer to constitute a Default by Service Provider, and that formed the basis of a termination of the Term of this Agreement or any portion of the Services by Customer pursuant to this Section, did not in fact constitute a Default, then the Term of this Agreement, or applicable portion of the Services, shall be deemed to have been terminated by Customer for its convenience, pursuant to Section 14.4.1, as of the Termination Date specified by Customer in the Termination Notice originally delivered with respect to such termination, and the provisions of Section 14.4.1 shall thereafter in all respects govern such termination. In the event Customer exercises its rights as set forth in this Section, no Termination Fee shall be payable by Customer to Service Provider.
14.4.4 Force Majeure. By not less than ten (10) days notice to Service Provider, and without paying any termination charges, if (i) a Force Majeure Event is either incurable or has continued for at least ten (10) days that renders impracticable the performance of the Services (or any material portion of the Services) by Service Provider substantially as contemplated hereby or (ii) Service Provider fails to provide the disaster recovery or business continuity services as set forth in Schedule 23 (“Disaster Recovery Plan”), unless such disaster recovery obligations were themselves prevented by a force majeure event; or
14.4.5 Availability of Funds. Any payment obligation of Customer created by this Agreement is conditioned upon the availability of Customer funds which are appropriated or allocated for the payment of such payment obligations; provided, however, that Customer agrees that it will request such funds each year during the Term. If such funds are not allocated and available, this Agreement may be terminated by Customer at the end of the period for which funds are available. No penalty shall accrue to Customer in the event this provision is exercised, and Customer shall not be obligated or liable for any future Fees due for any Services as a result of termination under this Section 14.4.5. Customer will promptly notify Service Provider if it appears reasonably likely that funds will not be appropriated or allocated. Notwithstanding any other provision of this Agreement to the contrary, Service Provider shall, immediately upon termination by Customer for non-appropriation, be released from any obligation to provide any further Services pursuant to this Agreement. Notwithstanding that Section 14.4 permits Customer to terminate the Agreement in whole or in part the Parties understand and agree that, with respect to this Section 14.4.5, that Customer may only terminate the Agreement in whole.
14.5 Termination by Service Provider. Service Provider may terminate this Agreement solely if: (a) Customer (or Affiliates) has failed to make payments due under Section 10; (b) the aggregate total of such payments exceeds five million Dollars ($5,000,000) (c) such payment is not subject to a good faith dispute, (d) no earlier than (60) calendar days after the payment’s due date Service Provider gives written notice of its intent to terminate; and (e) no less than thirty (30) additional calendar days pass with such payment not having been made.
Master Service Agreement
14.6 Continued Performance. During any period commencing upon notice of termination and continuing until the effective date of termination specified in any such notice, Service Provider will perform the Services in accordance with terms and conditions and performance standards in effect as of the date on which notice of termination is given. If this Agreement is terminated by Service Provider for Customers failure to make undisputed payments, this obligation will be contingent upon Customer’s payment in advance each month for the Services. In addition, upon Customer's request, Service Provider will provide to Customer such information and other cooperation as may be reasonably necessary for (i) Customer and/or its outside advisers to prepare requests for proposals or other, similar, documentation related to selection of a successor to Service Provider and (ii) a third party to prepare a reasonably informed, non- qualified offer to perform similar services. The types of information and of cooperation to be provided by Service Provider will be at least as comprehensive as those initially provided by Customer to Service Provider prior to the Effective Date. Service Provider will not be required to produce information concerning its costs (other than any costs from time to time reimbursed by Customer). If Customer terminates this Agreement under Section 14.4.5, then Service Provider will make its Key Personnel available to Customer, if requested, on a full time basis, for up to six (6) months after the effective date of termination, at the rates set forth in Schedule 5.
14.7 Termination Assistance. In connection with expiration or any termination of this Agreement, the Parties will, commencing promptly after the giving of any notice of termination or at least one hundred eighty (180) days prior to expiration of this Agreement, jointly develop a plan, in accordance with Schedule 16, Termination Assistance, to effect the orderly transition to Customer or its designee from Service Provider the Services then being performed or managed by Service Provider. Such plan will be completed by the Parties within thirty (30) days and will set forth the tasks and actions to be performed by Service Provider and Customer (as set forth in Schedule 16), the time for completing such tasks and actions, and the criteria for declaring the transition completed. The Parties and their employees and agents will cooperate in good faith to execute such plan and each Party will perform those tasks and actions assigned to it in such plan.
14.8 Phased or Partial Termination. Cessation of particular Services may be scheduled in phases by Service Tower via the Change Control Procedure in order to accommodate Customer’s business needs, Fees will be reduced proportionally as such Services are phased out and discontinued. If a Service Tower is terminated Termination for Convince Fees identified in Schedule 5 (“Fees”) will apply. In the event of a partial termination, Service Provider will provide Termination Assistance related to the affected Services. To the extent that Customer provides Service Provider with not less than thirty (30)days prior notice of such phased or partial termination, the scope of particular Services ( such as affected Fees and Service Levels) will be equitably adjusted to the extent necessary to allow for operational dependencies, and phased reduction of Service (or introduction of new service from Service Provider or other sources) all in order to assure orderly, continuous operations with consistent quality of service. In addition, Customer may, one time only per Service Tower, upon sixty (60) days' prior notice, extend the termination date for the Agreement with respect to a Service Tower(s) or all of the Services for up to one hundred eighty (180) additional days.
14.9 Extension of Services. At Customer's request, Service Provider will provide to Customer, for up to twelve (12) months after the expiration date of the Term, Renewal Term, or, if applicable, the effective date of termination, any or all of the Services being performed by Service Provider prior to such date, subject to the Fees set forth in Schedule 5 (“Fees”). After any such Extension Term (post Extension Term), Service Provider may, upon mutual agreement, provide such support and service related to termination and transition as Customer may reasonably request at its then-current standard rates. This Agreement will continue to govern the performance of all such Services during such post Extension Term period, except that (i) the charges for such Services will be at the Service Providers then-current standard rates, and (ii) the charge for any Termination Assistance not part of the Services will be Service Provider's then-current standard rates.
14.10 Specific Performance. Service Provider acknowledges that, if it were to breach, or threaten to breach, its obligation to provide Customer with Termination Assistance, then (i) Customer may be irreparably harmed, (ii) money damages may not be an adequate remedy, and (iii) continuing performance of Termination Assistance, other Services and the Parties' other respective Master Service Agreement
obligations would best preserve the status quo pending resolution of any disputes then pending.
Accordingly, Customer may seek to enforce Service Provider's obligation to provide Termination Assistance by a preliminary or permanent mandatory injunction, decree of specific performance or other appropriate equitable remedy. Service Provider irrevocably waives any requirement that Customer post any bond or undertaking, or demonstrate irreparable harm or the inadequacy of money damages.
14.11 Survival. The provisions of Article 1 (Interpretation), Article 13 (Compliance and Audit), Article 14 (Term and Termination), Article 15 (Intellectual Property Rights), Article 16 (Customer Data and Intangible Property), Article 17 (Security and Confidentiality) and Schedule 10 (Security Protocol), Article 20 (Governance), Article 21 (Indemnification), Article 22 (Damages), Article 25 (Notices), Article 26 (Non-Solicitation), Article 28 (Severability), Article 30 (Publicity), Article 31 (Governing Law) and Article 35 (No Third Party Beneficiaries) will survive termination or expiration of this Agreement.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 Customer Software and Materials. Neither Service Provider nor any Subcontractor shall have any ownership interest in any Customer Software, Customer Materials or other intellectual property that Customer provides to Service Provider, discloses to Service Provider or allows Service Provider to Use in any way. Subject to Customer obtaining all applicable Consents and to any restrictions contemplated in such Consents (such as payment of applicable fees), Customer grants to Service Provider a limited, non-exclusive and non-transferable right to Use the Customer Software and Customer Materials, directly or through permitted Subcontractors, solely in and for performing the Services pursuant to this Agreement and to the extent permitted under any applicable Third Party Agreements.
15.2 Rights in Deliverables. The Service Descriptions or Statements of Work will specify whether Service Provider has "No Rights," "Limited Rights" or "Full Rights" in the Deliverables. If a Service Description or statement of work does not specify whether Service Provider will have "No Rights," "Limited Rights" or "Full Rights" in the particular Deliverable, then Service Provider will have No Rights in such Deliverable. Unless otherwise expressly provided in a Statement of Work, Service Provider will be solely responsible for (i) obtaining any Consent that may be required to exercise its rights in the Deliverables and (ii) complying with any applicable Third Party Agreement. Service Provider shall also cause all of its employees and Subcontractors engaged in the development of any Deliverables to enter into appropriate agreements with Service Provider assigning and releasing to Service Provider any intellectual property rights they may otherwise assert in any work in any medium created or modified in the course of performing Services.
15.2.1 Service Provider will create the No Rights Deliverables as "works made for hire" or "commissioned works" owned by Customer. To the extent that any No Rights Deliverable is not a "work made for hire" or "commissioned work" owned by Customer, Service Provider hereby irrevocably assigns, and agrees to assign, and will cause Subcontractors to assign, and agree to assign, to Customer without further consideration all of its and their right, title and interest in and to such No Rights Deliverable (but in no event with respect to Service Provider Software or Service Provider Materials identified therein), and to cause its employees and those of its Subcontractors engaged in the preparation of the No Rights Deliverable to waive and agree not to assert any moral rights or reversionary rights. If and to the extent such waivers are deemed invalid, Service Provider will, and will cause its employees and those of its Subcontractors engaged in the preparation of the No Rights Deliverable, to grant to Customer the exclusive, perpetual, irrevocable, worldwide and royalty-free right to use, modify and distribute such items without any requirement of attribution or prior consent. Customer grants to Service Provider, during the term of this Agreement, a limited, non- exclusive and non-transferable right to Use the No Rights Deliverable, directly or through permitted Subcontractors, solely in and for providing the Services to Customer.
Master Service Agreement
15.2.2 Service Provider will create the Limited Rights Deliverables as "works made for hire" or "commissioned works" owned by Customer. To the extent that any Limited Rights Deliverable is not a "work made for hire" or "commissioned work" owned by Customer, Service Provider hereby irrevocably assigns, and agrees to assign, and will cause Subcontractors to assign, and agree to assign, to Customer without further consideration all of its and their right, title and interest in and to such Limited Rights Deliverable, and to cause its employees and those of its Subcontractors engaged in the preparation of the Limited Rights Deliverable to waive and agree not to assert any moral rights or reversionary rights. If and to the extent such waivers are deemed invalid, Service Provider will, and will cause its employees and those of its Subcontractors engaged in the preparation of the No Rights Deliverable, to grant to Customer the exclusive, perpetual, irrevocable, worldwide and royalty-free right to use, modify and distribute such items without any requirement of attribution or prior consent.
15.2.3 Subject to any restrictions specified in the applicable Service Description or statement of work, Service Provider grants to Customer a perpetual, irrevocable, paid-up, royaltyfree, worldwide, non- exclusive, sub-licensable but otherwise non-transferable (except to a successor) right to Use the Full Rights Deliverables in connection with its own business; provided, however, that Customer (or its successor) may sub-license any such Full Rights Deliverable to unrelated third parties only for the purpose of providing services to Customer, its Affiliates or their successors.
15.3 Service Provider Software and Materials. Customer shall have no ownership rights in any Service Provider Owned Software and Service Provider Materials that Service Provider provides to Customer, discloses to Customer or allows Customer to Use in any way, including without limitation any such materials incorporated or embedded in any Deliverable, and the assignment of rights contemplated under this Section 15 shall not apply to Service Provider Software or Service Provider Material.
15.3.1 The parties hereto understand and agree that, notwithstanding any provision to the contrary contained in this Agreement, all c-RIM and custom c-RIM technologies and their component parts are the sole Intellectual Properties of Unisys or the software vendors of such cRIM components and are considered to be the confidential and proprietary property of Unisys.
Subject to Termination Assistance, upon termination of the Agreement, c-RIM technologies will be removed from the Customer environment. No licenses for c-RIM technologies and software will be provided beyond the Term of the Agreement.
15.4 Commissioned Work. Neither Service Provider nor any of its Subcontractors (or any of its or their employees) shall have any ownership interest in Commissioned Work , other than Service Provider's continuing rights in and to any Service Provider Materials that may be incorporated or embedded in such Commissioned Work. All Commissioned Works will be considered "works made for hire" or "commissioned works" owned by Customer and, to the extent that any such Commissioned Work may not constitute a "work made for hire" or "commissioned work" owned by Customer, Service Provider hereby irrevocably assigns, and agrees to assign, and will cause Subcontractors to assign, and agree to assign, to Customer without further consideration all of its and their right, title and interest in and to the Commissioned Works, and to cause its employees and those of its Subcontractors engaged in the preparation of the Commissioned Work to waive and agree not to assert any moral rights or reversionary rights excluding any pre-existing Service Provider Materials incorporated or embodied in such Commissioned Work. Service Provider grants to Customer a perpetual, irrevocable, paid-up, royalty-free, worldwide, non-exclusive, sub-licensable and transferable right to Use any such pre-existing Service Provider Materials as part of the Commissioned Work; provided, however, such license shall not extend to separating such pre-existing Service Provider Materials from the Commissioned Work to develop any stand alone product for marketing to third parties.
15.5 Service Provider Responsibilities. Service Provider covenants that all Software Deliverables will consist of source code and documentation sufficient to allow a reasonably knowledgeable and experienced programmer to compile, maintain and support the software. Customer may make such filings and registrations as it deems advisable to obtain patent, copyright or other Master Service Agreement
protection for Full Rights and Limited Rights Deliverables, Commissioned Works and other Customer intellectual property. Service Provider will provide such assurances, take such action, and execute such further documents and instruments as Customer may reasonably request (at no material cost to Service Provider) in order to carry out the purposes of this Article and, in particular, to register or otherwise secure patent, copyright, trademark, service mark or other intellectual property protection in all countries for Customer's intellectual property.
16. CUSTOMER DATA AND INTANGIBLE PROPERTY
16.1 Customer Data. Neither Service Provider nor any Subcontractor will have any right, title or interest in or to any Customer Data.
16.1.1 Without Customer's approval, Customer Data will not be (i) used or accessed by Service Provider or Subcontractors other than as necessary to provide the Services or otherwise complying with Service Provider's obligations under this Agreement, (ii) disclosed, sold, assigned, leased or otherwise provided to third parties by Service Provider or Subcontractors or (iii) commercially exploited by or on behalf of Service Provider or Subcontractors.
16.1.2 [RESERVED].
16.1.3 Service Provider irrevocably assigns, transfers and conveys, and will cause Subcontractors to assign, transfer and convey, to Customer, without further consideration, any right, title and interest that it or they may possess or claim in and to Customer Data, and to cause its employees and those of its Subcontractors to waive and agree not to assert any moral rights or reversionary rights they may possess in the Customer Data. If and to the extent such waivers are deemed invalid, Service Provider will, and will cause its employees and those of its Subcontractors engaged in the use of Customer Data to grant to Customer the exclusive, perpetual, irrevocable, worldwide and royalty- free right to use, modify and distribute such items without any requirement of attribution or prior consent. Upon request by Customer, Service Provider will, using commercially reasonable efforts, execute or have executed and delivered, and will cause Subcontractors to execute and deliver, any instruments or other documents that may be necessary or desirable under any Law to preserve, or enable Customer to enforce, its rights with respect to Customer Data.
16.2 Customer Intangible Property. Upon Customer's request at any time, and without prejudice to any additional requirements specified in this Agreement, a Service Description or otherwise, Service Provider will (i) provide Customer with physical and electronic access to all or any part of the Customer Data, Customer Software, related documentation or other intangible property of Customer, such as all work-in-progress (collectively, "Customer Intangible Property") in Service Provider's possession or control, (ii) promptly return to Customer, in the format and on the media then in use, all or any part of such Customer Intangible Property and (iii) erase or destroy all or any part of such Customer Intangible Property, in each case to the extent so requested by Customer; provided, however, that Service Provider may retain a copy thereof to the extent, and for so long as, reasonably necessary to perform the Services, Termination Assistance or other activities reasonably related to termination or expiration, unless otherwise instructed by Customer. Service Provider has no right to retain, encrypt, corrupt or destroy any Customer Intangible Property (other than retaining archival copies, if any, authorized by Customer), and waives any and all statutory or common law liens, claims of lien or similar rights, remedies or encumbrances that may now or hereafter exist and might limit or condition Service Provider's unconditional obligations to return Customer Intangible Property. The foregoing requirement is in addition to any other requirements contained in applicable Service Descriptions, Procedures Manuals or other documentation concerning periodic deliveries of Customer Intangible Property.
17. SECURITY AND CONFIDENTIALITY
17.1 Security Protocol. Service Provider will develop and implement, or satisfy Customer that Service Provider has developed and implemented, and maintain throughout the Term a Master Service Agreement
comprehensive Security Plan that meets or exceeds Customer's Security Protocol as set forth in Schedule 10. The Security Plan will be no less rigorous than Service Provider's security policies in effect as of the Effective Date.
17.1.1 Customer may revise the Security Protocol from time to time during the Term.
17.1.2 If Customer changes such Security Protocol in a manner that results in substantial cost increases to Service Provider, Service Provider's compliance with the new Security Protocol will be subject to the Change Control Procedures. Customer will give Service Provider reasonable advance notice of changes in the Security Protocol.
17.1.3 If Service Provider intends to implement a Change to the Service Provider’s Security Plan (pursuant to Customer's request), Service Provider will notify Customer. Service Provider will not, without Customer's approval, implement any such Change if, in Customer’s reasonable judgment, such Change would cause the Service Provider’s Security Plan to fail to meet the standards set forth in the Security Protocol.
17.1.4 If Service Provider or Subcontractors discover or are notified of a breach or potential breach of security relating to the Security Protocol, Service Provider will – promptly (i) notify the Customer Account Executive of such breach or potential breach and (ii) use commercially reasonable efforts to remedy the effects of the breach or potential breach.
17.2 Access Controls.
17.2.1 Service Provider shall at all times use generally accepted industry best practices and methods with regard to the prevention, detection, and elimination, by all appropriate means, of fraud, abuse, and other inappropriate or unauthorized access to and use of systems and the networks involved with the provision or receipt of Services, including the implementation and deployment network management and maintenance applications and tools, the use of appropriate encryption technologies, and the other security-related Services described in this Agreement.
17.2.2 In addition, all Service Provider personnel (including personnel of any Subcontractors) shall be subject to, and shall at all times conform to, all of Customer’s policies, procedures, rules, and requirements regarding the protection of premises, materials, equipment, and personnel, also as set forth in the Security Protocol. Any violation or disregard of such Security Protocol by an Service Provider personnel shall be cause for denial of access of such Person to Customer’s systems or property. Provider shall exercise due care and diligence to prevent any injury to person or damage to property while on Customer’s premises.
17.2.3 Prior to performing any Services, Service Provider personnel who will access the Customer’s systems, computer data or software, including Customer Data, shall execute a confidentiality and non-disclosure agreement concerning access protection and data security consistent with the access protection and data security requirements in this Agreement. At all times during the Term, Service Provider shall, and shall cause it personnel to, fully comply with all of Customer’s policies and procedures regarding data access and security, including those prohibiting or restricting remote access to the systems and Customer Data, as set forth in the Security Protocol. Customer shall authorize, and Service Provider shall issue, any necessary information-access mechanisms, including access IDs and passwords, and in no event shall Service Provider permit any such mechanisms to be shared or used by other than the individual Service Provider personnel to whom issued. Service Provider shall provide each Service Provider personnel with only such level of access as is required for such individual to perform his or her assigned tasks and functions. From time to time throughout the Term, upon request from Customer, Service Provider shall provide Customer with an accurate, up-to-date list of those Service Provider Personnel having access to Customer’s systems, software, or data, and the respective security level or clearance assigned to each such individual.
Master Service Agreement
17.2.4 Customer may, in its discretion, designate certain areas, facilities, or systems as ones that require a higher level of security and access control. Customer shall notify Service Provider in writing reasonably in advance of any such designation becoming effective. Any such notice shall set forth in reasonable detail the enhanced security or access-control procedures, measures, or requirements that Service Provider shall be required to implement and enforce, as well as the date on which such procedures and measures shall take effect. Service Provider shall, and shall cause the its personnel to, fully comply with and abide by all such enhanced security and access measures and procedures as of such date.
17.2.5 Any material breach or violation by Service Provider or its Subcontractors, or the employees or agents of any of the foregoing or of the Security Protocol shall be deemed a material breach of a material obligation of Service Provider under this Agreement, and any chronic or critical breach by Service Provider or its Subcontractors, or the employees or agents of any of the foregoing, or of the Security Protocol shall be deemed an incurable and material breach of a material obligation of Provider under this Agreement. The Parties agree that for the purposes of this Section a breach shall only be deemed material if: (a) Service Provider has failed to act in material accordance with the Security SOW, the Security Policies or the security provisions of the Procedures Manual; or (b) Provider has failed to use generally accepted industry best practices and methods in performing its obligations with respect to security services.
17.3 Data Breach Remediation. For the purposes of this Agreement, a “Data Breach” means an event or incident involving a potential or actual loss, theft, damage or destruction of, or unauthorized access to, use or disclosure of, Customer Data (inclusive of Customer Confidential Information or personally identifiable information of Customer). To the extent any Data Breach occurs, Service Provider shall cooperate with Customer to respond to and remediate such Data Breach.
Subject to a root cause analysis to determine causation and fault through which it is determined that Service Provider has breached any of its obligations (to any extent) under this Agreement, Service Provider shall be responsible for the cost of remediating such Data Breach and shall reimburse Customer for the following incurred costs (collectively, “Data Breach Costs”): (a) the preparation and mailing or other transmission of notification to data subjects or governmental authorities or the media containing the information related to the Data Breach; (b) the performance of any security review in connection with such Data Breach; (c) the portion of any fine or other monetary penalty imposed on Customer by a governmental authority for a violation of applicable law pertaining to such Data; (d) reasonable attorneys’ fees for addressing Customer’s obligations related to the Data Breach; (e) call center expenses needed to respond to inquiries from data subjects related to the Data Breach; (f) credit monitoring for data subjects affected by the Data Breach; (g) the performance of a forensic investigation by a consultant to determine the cause of the Data Breach and the extent of the disclosure; and (h) other remediation expenses and reasonable assistance to data subjects as required to comply with applicable law.
17.4 Disabling Devices. Service Provider shall use generally accepted industry best practices regularly to identify, screen, and prevent any Disabling Device in resources utilized by Service Provider or Customer (if managed by Service Provider) in connection with the provision or receipt of the Services and shall not itself knowingly or intentionally install (and shall prevent its Subcontractors from knowingly and intentionally installing) any Disabling Device in resources utilized by Service Provider, Customer, or any Subcontractor, in connection with the provision or receipt of the Services.
A “Disabling Device” is a virus, timer, clock, counter, time lock, time bomb, or other limiting design, instruction, or routine that would purposely and inappropriately erase data or programming or cause any resource to become inoperable or otherwise incapable of being used in the full manner for which such resource was intended to be used. Service Provider shall assist Customer in reducing and mitigating the effects of any Disabling Device discovered in any resource related to the provision or receipt of the Services, especially if such Disabling Device is causing a loss of operating efficiency or data. Timers, clocks, counters, and time locks included as part of any commercial software by the manufacturer of such software shall not be considered Disabling Devices for purposes of this Section.
17.5 Confidentiality. Without prejudice to any additional requirements contemplated under the Security Protocol, the recipient of Confidential Information will maintain its confidentiality at least to the Master Service Agreement
same extent and manner as the recipient protects its own Confidential Information, except as otherwise required by law.
17.5.1 Neither Customer nor Service Provider will disclose, publish, release, transfer or otherwise make available Confidential Information of, or obtained from, the other Party in any form to, or for the use or benefit of, any person or entity without such other Party's consent, and subject to the terms of this Agreement.
17.5.2 Notwithstanding the foregoing, Customer and Service Provider will be permitted to disclose relevant aspects of the other's Confidential Information to its officers, directors, agents, professional advisors, contractors, subcontractors and employees and to the officers, directors, agents, professional advisors, contractors, subcontractors and employees of its Affiliates, to the extent such disclosure is not restricted under any Authorization, Consent, Assigned Agreement or Managed Agreement, but only to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations or the determination, preservation or exercise of its rights and remedies under this Agreement.
17.5.3 The recipient of any Confidential Information will take all reasonable measures to safeguard that Confidential Information of the disclosing Party is not disclosed or duplicated in contravention of the provisions of this Agreement by such officers, directors, agents, professional advisors, contractors, subcontractors and employees, whether during or after the term of their employment or engagement by the recipient.
17.5.4 When Service Provider provides Customer's Confidential Information to any such entity, including any Affiliate, Service Provider will require such entity to sign, or confirm that it has signed, a confidentiality agreement with terms substantially the same as those described in this Article.
17.5.5 Upon expiration or termination of the Agreement, after completion of transition to a successor service provider, each Party will return or destroy the other Party’s Confidential Information.
17.5.6 The obligations in this Article will not restrict any disclosure made pursuant to any Law. The recipient will give prompt notice to the disclosing Party of any demand for such disclosure.
17.5.7 Service Provider acknowledges that Customer is a public agency subject to the requirements of the California Public Records Act. Service Provider may submit information to Customer that it considers confidential, proprietary, or trade secret information pursuant the Uniform Trade Secrets Act, or otherwise protected from disclosure pursuant to an exemption to the California Public Records Act. Upon request or demand of any third person or entity not a party to this Agreement (“Requestor”) for production, inspection and/or copying of information designated by Service Provider as Confidential Information, Customer shall within a reasonable time notify Service Provider that such request has been made, by email to an address designated by Service Provider for receipt of notices. Service Provider shall be solely responsible for taking whatever legal steps are necessary to protect information deemed by it to be Confidential Information and to prevent release of information to the Requestor. If Service Provider takes no such action, after receiving the foregoing notice from the Customer, then the Customer shall be permitted to comply with the Requestor’s demand and is not required to defend against it. So long as the Customer complies with the provisions of notification set forth in this Agreement, the Customer shall not be liable for, and Service Provider and Customer hereby release each other from, any liability for any damages arising from any requirement under the law that the Customer release Confidential Information to a Requestor, and such release includes the officers, commissioners, employees, agents, council members, attorneys and directors, as those terms may apply to each Party, without limitation.
Master Service Agreement
17.6 Unauthorized Use or Disclosure. Without limiting either Party's rights in respect of a breach of this Article, each Party will (i) promptly notify the other Party of any attempted or actual unauthorized possession, use or knowledge of the other Party's Confidential Information by any person or entity that may become known to such Party; (ii) promptly furnish to the other Party full details of the attempted or actual unauthorized possession, use or knowledge; and (iii) assist the other Party in investigating or preventing the recurrence of any attempted or actual unauthorized possession, use or knowledge of Confidential Information. Each Party will reasonably cooperate with the other Party in any investigation or litigation deemed necessary by the other Party to protect its confidentiality or proprietary rights.
17.7 Facilities Segregation. Service Provider agrees to segregate Customer Data and information logically from its other customers’ data and information.
18. REPRESENTATIONS, WARRANTIES, AND COVENANTS
18.1 Customer. Customer represents, warrants and covenants that:
18.1.1 Customer is a chartered municipal corporation;
18.1.2 Customer has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;
18.1.3 the execution, delivery and performance of this Agreement by Customer (i) has been duly authorized by Customer and (ii) will not conflict with, result in a breach of or constitute a default under any other agreement to which Customer is a party or by which Customer is bound;
18.1.4 Customer is in compliance with all Laws, and Regulatory Requirements, applicable to Customer, except where the failure to be in compliance would not have a material adverse effect on Customer's ability to fulfill its obligations under this Agreement; and
18.1.5 there is no outstanding litigation, arbitrated matter or other dispute to which Customer is a party which, if decided unfavorably to Customer, would reasonably be expected to have a material adverse effect on Customer's ability to fulfill its obligations under this Agreement.
18.2 Service Provider. Service Provider represents, warrants and covenants that:
18.2.1 Service Provider is a corporation duly organized, validly existing, and in good standing under the Laws of the State of Delaware;
18.2.2 Service Provider has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement;
18.2.3 The execution, delivery, and performance of this Agreement by Service Provider (i) has been duly authorized by Service Provider and (ii) will not conflict with, result in a breach of or constitute a default under any other agreement to which Service Provider is a party or by which Service Provider is bound;
18.2.4 Service Provider is duly licensed, authorized, or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on Service Provider's ability to fulfill its obligations under this Agreement;
18.2.5 Service Provider is in compliance with all Laws and Regulatory Requirements, applicable to Service Provider except where the failure to be in compliance would not have a Master Service Agreement
material adverse effect on Service Provider's ability to fulfill its obligations under this Agreement; and
18.2.6 There is no outstanding litigation, arbitrated matter, or other dispute to which Service Provider is a party which, if decided unfavorably to Service Provider, would reasonably be expected to have a material adverse effect on Service Provider's ability to fulfill its obligations under this Agreement.
18.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR A STATEMENT OF
WORK, ALL IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTY OR CONDITION OF
MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR SATISFACTORY QUALITY ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
18.4 Notwithstanding Section 15.11, and unless a separate warranty term is specified, the representations and warranties of the Parties under this Article 19 shall survive expiration or termination of this Agreement only with respect to claims that accrued during the Term (for clarity this applies to the provision of Termination Assistance and extension of Services under Section 14.9).
19. ADDITIONAL COVENANTS
19.1 Customer Covenants. Customer covenants and agrees with Service Provider that the Customer Software and Customer Materials will not infringe upon the proprietary rights of any third party (except as may have been caused by a modification or unauthorized Use by Service Provider or Subcontractors).
19.2 Service Provider Covenants. Service Provider covenants and agrees with Customer that:
19.2.1 None of the Services, Deliverables, Service Provider Software, Service Provider Materials, Commissioned Work or any enhancement or modification to the Customer Software or Customer Materials performed by Service Provider or Subcontractors, or any other work or item provided to Customer by Service Provider or Subcontractors or used in the performance of the Services, infringe upon or misappropriate, or will infringe upon or misappropriate the proprietary rights of any third party (except as may have been caused by (i) Service Provider’s compliance with Customer’s designs , but only to the extent that there were no non-infringing means to comply with Customer’s designs or (ii) a modification or unauthorized Use or combination by Customer or its agents);
19.2.2 Service Provider will take commercially reasonable measures, as described in the SOWs, to prevent the introduction into or proliferation of any Malicious Code into the Deliverables, Customer Software or Customer's operating systems or environment. If Malicious Code is found to have been introduced into any such systems or deliverables Service Provider shall immediately notify Customer of the introduction and with Customer’s assistance reduce the effects of such Malicious Code, and if the Malicious Code causes an interruption of the Services, a loss of operational efficiency, or loss of data, Service Provider shall assist Customer to the same extent to mitigate and restore such loss;
19.2.3 Without the consent of Customer, Service Provider will not insert into the Deliverables, Customer Software or any Service Provider Software or Service Provider Materials used to provide the Services any code that would have the effect of disabling or otherwise shutting down all or any portion of Customer's operating systems or environment;
19.2.4 Upon Customer’s request, or promptly following its own discovery, Service Provider shall, as part of the Services, correct any errors in reports, transactions, Customer Data, processing or other Services only to the extent attributable to errors and omissions of Service Provider, its employees and subcontractors, or to failures of computers, networks, systems or other resources provided by Service Provider. If Service Provider is not responsible for such Master Service Agreement
errors in reports, transactions, Customer Data, processing or other Services, the Parties will utilize Service Provider personnel in accordance with Section 4.8 (Prioritization of Scheduling);
19.2.5 Without the consent of Customer, Service Provider will not insert into any Deliverables, Customer Software or Customer's operating systems or environment any code that is made generally available to the public on open source code licensing terms or on other terms that would require Customer to make the source code thereof publicly available;
19.2.6 Service Provider will have and maintain adequate facilities, equipment and a duly qualified staff as necessary to perform the Services in an efficient, professional and timely manner and as described in each Service Description;
19.2.7 Service Provider will perform the Services in a timely, efficient and professional manner in accordance with industry standards, without prejudice to Service Provider's obligation to meet any applicable Service Levels;
19.2.8 [RESERVED];
19.2.9 The Deliverables and any and all fixes, updates, enhancements and modifications thereto provided by Service Provider, will function in accordance with their Specifications prior to implementation and for the period specified in the applicable Statement of Work or other commissioning document, unless such malfunction or non-conformance with Specifications is caused by (i) a modification other than by or on behalf of Service Provider, (ii) a use contra-indicated in the Statement of Work or Service Provider provided documentation or (iii) defects in Customer supplied components or materials; and
19.2.10 Service Provider will warrant that software and other Deliverables will in all material respects conform with mutually agreed upon specifications and standards and be free from material defects or nonconformities for a period of at least one hundred and twenty (120) days after their first production use. Hardware, when supplied will be subject to normal manufacturer’s warranties unless otherwise agreed. Service Provider also warrants that Services will be rendered with promptness and diligence and will be executed in a workmanlike manner, in accordance with the Information Technology Infrastructure Library Best Practices, (currently found at www.itil.com) and in compliance in all material respects with the Statements of Work and the Service Levels.
20. GOVERNANCE
20.1 Customer Services Director. Customer will appoint an individual ("Customer Services Director") who from the date of this Agreement will serve as the primary Customer representative under this Agreement. The Customer Services Director will have overall responsibility for managing and coordinating the performance of Customer's obligations under this Agreement and will be authorized to act for and on behalf of Customer with respect to all operational matters relating to this Agreement. Notwithstanding the foregoing, the Customer Services Director may, upon notice to Service Provider, delegate such of his or her responsibilities to other Customer employees, as the Customer Services Director deems appropriate.
20.2 Governance. The Parties will govern their relationship in accordance with the Governance Model set forth in Schedule 17 (“Governance and Service Provider Key Personnel”).
Each Party will appoint duly qualified, employees to represent the Party in the applicable governance positions set forth in the Governance Model in accordance with the provisions of Schedule 17 (“Governance and Service Provider Key Personnel”). Each Party will cause its representatives to devote the time necessary to meet their respective responsibilities (such as the time as may be specified by the Agreement or Schedule 17) and meet regularly in accordance with Schedule 17 (“Governance and Service Provider Key Personnel”). Each Party will be responsible for its representatives’ execution of their respective obligations and responsibilities under the Governance Master Service Agreement
Model. The Governance Model will contain the processes and procedures that the Parties will use to review and verify Service Provider's compliance with Law.
20.3 Informal Dispute Resolution Procedures. Any dispute, controversy or claim of any kind or nature arising under or in connection with this Agreement (such as disputes as to the creation, validity, interpretation, breach or termination of this Agreement) (a "Dispute") will be considered in accordance with the dispute resolution procedures set forth in this Article 20 and in Schedule 17 (“Governance and Service Provider Key Personnel”). The dispute resolution process will be initiated upon receipt by a Party of a notice from the other Party specifying the nature of the Dispute. Unless the Customer Account Executive and Service Provider Account Executive otherwise agree in writing, either Party may pursue its rights and remedies under this Article 20 after the earlier of (i) the exhaustion of the negotiation and escalation procedures set forth in the Schedule 17 (“Governance and Service Provider Key Personnel”) and (ii) the date that is forty-five (45) days after the receipt of the dispute notice.
Notwithstanding the foregoing, either Party may commence proceedings if delay in doing so would be prejudicial, because of the need for immediate provisional remedies, imminent expiration of applicable statutes of limitation, or other good cause.
20.4 Resolution Without Proceedings. Service Provider and Customer intend to use reasonable measures to avoid the litigation of any dispute under this Agreement. As a result, the Parties mutually agree that any Dispute arising under or in connection with this Agreement will be resolved using the alternative dispute resolution provisions and procedures described in the Sections below and in Schedule 17 (“Governance and Service Provider Key Personnel”).
20.4.1 Except as otherwise agreed, Service Provider and Customer will each bear all of their own expenses incurred during the procedures and will pay one-half of any applicable fees of any mediator or third party agency engaged to assist in resolution of disputes short of legal proceedings.
20.4.2 All negotiations pursuant to this Article 20 are confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. No proposals, offers, counter-offers or other communications will be admissible in evidence in any proceeding for any purpose; provided, however, that this will not be construed to render confidential, inadmissible or non- discoverable any otherwise admissible documents or other evidence merely because they were referred to, transmitted or otherwise used in any such settlement negotiations.
20.5 Negotiation. Upon the written notice by either Party, a Dispute will be submitted to the Customer Account Executive and Service Provider Account Executive, who will meet and employ their best efforts to negotiate an amicable resolution of the Dispute. Unless the Parties otherwise agree, this meeting and negotiation will occur not later than ten (10) days from the date of submission of the Dispute to the Customer Account Executive and Service Provider Account Executive, whichever occurs last. If the Account Executives fail to resolve the dispute by negotiation, the Dispute will be escalated within the Customer and Service Provider organizations in accordance with Schedule 17 (“Governance and Service Provider Key Personnel”).
20.6 Mediation. In the event the Parties fail to resolve the Dispute by negotiation, then the Parties will submit the Dispute to non-binding mediation, which will be held in Santa Clara County, CA in accordance with the process and procedures set forth in Schedule 17 (“Governance and Service Provider Key Personnel”), and the Rules (defined below). Unless the Parties agree otherwise, the completion of the mediation process will not exceed thirty (30) days from initial submission to conclusion. Any mediator appointed shall have a minimum of three (3) years of experience in the information technology outsourcing industry.
20.7 The Parties may agree on one mediator. If they cannot agree on one mediator, the Party demanding mediation shall request the Superior Court of Santa Clara County to appoint a mediator.
The mediation meeting shall not exceed one day (eight (8) hours). The Parties may agree to extend the time allowed for mediation under this Agreement. For any contract dispute, mediation under this Master Service Agreement
section is a condition precedent to filing an action in any court. In the event of mediation which arises out of any dispute related to this Agreement, the Parties shall each pay their respective attorney’s fees, expert witness costs and cost of suit, through mediation only.
20.8 Certain Legal Proceedings. Notwithstanding the foregoing, the Parties agree that:
20.8.1 If a controversy or claim relates in any way to a lawsuit brought by a third party against one or both of the Parties, either Party may, at its option, file a cross-complaint against the other Party in such lawsuit with respect to the controversy or claim, in which case the controversy or claim will be resolved by such court.
20.8.2 If a controversy or claim relates in any way to the interpretation, breach or threatened breach of provisions of this Agreement concerning Confidential Information or intellectual property, it may, at either Party's option, be resolved by a court of competent jurisdiction.
20.9 Continued Performance. Service Provider will continue to provide the Services during the pendency of any of the proceedings commenced pursuant to this Article 20, and Customer will continue to perform its obligations (including but not limited to the making of payments to Service Provider), all in accordance with this Agreement).
20.10 Jurisdiction. The Parties hereby submit and consent to the exclusive jurisdiction of competent courts within the County of Santa Clara, California. They irrevocably agree that all actions or proceedings relating to and permitted this Agreement will be litigated in those courts. Each of the Parties waives any objection which it may have based on improper venue or forum non conveniens to the conduct of any such action or proceeding.
20.11 [RESERVED].
20.12 Injunctive Relief. The Parties agree that in the event of any breach or threatened breach of any provision of this Agreement concerning (i) Confidential Information, (ii) intellectual property rights or (iii) other matters for which equitable rights are expressly provided in this Agreement, money damages may not be an adequate remedy. Accordingly, the non-breaching Party may seek preliminary or permanent, mandatory or prohibitory injunction or order from a court of competent jurisdiction.
21. INDEMNIFICATION
21.1 Customer Indemnity. Customer will indemnify, defend and hold Service Provider, its officers, directors, employees, agents and Affiliates, and their respective officers, directors, employees and agents (collectively, the "Service Provider Indemnitees"), harmless from and against, any Claims resulting from, arising out of or relating to Customer's gross negligence or willful misconduct; or
21.1.1 relating to a fraudulent inaccuracy, untruthfulness or breach of any material warranty, representation or covenant made by Customer under this Agreement;
21.1.2 relating to a violation of Law by Customer;
21.1.3 relating to any amounts, including taxes, interest and penalties, assessed against Service Provider that are the obligation of Customer;
21.1.4 arising out of or relating to Customer's breach of its obligations with respect to Confidential Information;
21.1.5 relating to personal injury (including death) or property loss or damage resulting solely from Customer's acts or omissions.
Master Service Agreement
21.2 Service Provider Indemnity. In addition to the obligations set forth elsewhere in this Agreement, Service Provider shall defend, indemnify and hold harmless Customer from and against all claims, actions, and causes of action of any form or type, asserted against them by a third party (“Claims”), and shall pay those damages, fines, liabilities and losses that are agreed to in settlement by the Service Provider or included in a final order and all related costs and expenses (including reasonable attorneys’ fees and other reasonable legal, investigative and expert consulting costs, fees and expenses) as incurred by the Customer before the Service Provider’s assumption of the defense for:
21.2.1 bodily injury or death to any person or damage to any tangible personal property or real property arising from or related to the performance of the services by Service Provider or its representatives;
21.2.2 any employment related claims brought by the employees or Subcontractors of Service Provider, including:
21.2.2.1 a work-related injury of Service Provider employees or its agents unless Customer’s intentional act was the proximate cause of such injury,
21.2.2.2 employee benefits of Service Provider employees,
21.2.2.3 any aspect of the Service Provider’s personnel’s employment relationship with Service Provider or the termination of the employment relationship with Service Provider, including but not limited to any claims for co-employment of the Service Provide personnel with Customer,
21.2.2.4 any employment claims asserted by its Subcontractors,
21.2.2.5 any claims asserted in connection with the Assigned Agreements or Managed Agreements as a result of Service Provider's act or omission, or
21.2.2.6 failure to provide health insurance coverage for Service Provider personnel pursuant to applicable federal and state laws.
21.2.3 Any third-party loss or damage arising from or relating to a breach of any contractual obligation by Service Provider (including but not limited to the contractual obligations set forth in this Agreement, or in any agreement between Service Provider and a subcontractor), fraudulent inaccuracy, untruthfulness, or breach of any material warranty, representation, or covenant made by Service Provider under this Agreement;
21.2.4 Any third-party loss or damage arising from or relating to a violation of Law by Service Provider;
21.2.5 Any loss or damage relating to any amounts, including taxes, interest and penalties, assessed against Service Provider that are the obligation of Service Provider;
21.2.6 Any third-party loss or damage arising out of or relating to Service Provider’s breach of its obligations with respect to Confidential Information, Data Security and Confidentiality (including but not limited to Security Protocol and Access Controls), Compliance with Laws and applicable security standards.
21.2 Intellectual Property Indemnity. Subject to the provisions of this Section 21.2 Customer and Service Provider each agree to defend, indemnify and hold harmless the other against any third party action to the extent that such action is based on a claim that the Customer Software or Customer Materials, in the case of Customer, and the Services, the Deliverables, the Service Provider Software or the Service Provider Materials, in the case of Service Provider, or the Confidential Information provided by or on behalf of the other Party (each an "Indemnified Item"), (i) infringes a copyright under United States or other applicable law, (ii) infringes a patent granted under United States or other applicable laws, or (iii) constitutes an unlawful disclosure, use or misappropriation of another party's trade secret. The Master Service Agreement
indemnitor will bear the expense of such defense and pay any damages and reasonable attorneys' fees that are attributable to such claim finally awarded by a court of competent jurisdiction.
21.2.1 If an Indemnified Item becomes the subject of a claim under this Section 21.2, or in the indemnitor's opinion is likely to become the subject of such a claim, then the indemnitor may, at its option, (i) modify the Indemnified Item to make it non-infringing or cure any claimed misuse of another's trade secret, provided such modification does not adversely affect the functionality of the Indemnified Item, (ii) procure for the indemnitee the right to continue using the Indemnified Item pursuant to this Agreement, or (iii) replace the Indemnified Item with an Indemnified Item that is substantially equivalent that is non-infringing or that is free of claimed misuse of another's trade secret. Any costs associated with implementing any of the above alternatives will be borne by the indemnitor. If none of the foregoing courses of action is practical, the allegedly infringing Item will be withdrawn, and the scope, charges and Service Levels will be equitably adjusted to reflect such withdrawal.
21.2.2 With respect to any Software provided or developed by a Party pursuant to this Agreement, such Party will have no liability to the other Party under this Section 21.2.2 (i) to the extent that any claim of infringement is based upon the use of the Software in connection or in combination with equipment, devices or Software not supplied by that Party or use of the Software in a manner for which the Software was not designed, (ii) for infringements that arise solely as a result of the implementation by that Party of functionality requirements presented by the other Party where there is no non-infringing alternative to such implementation, and the other Party has been so advised by that Party prior to implementation, and (iii) for fixes, updates, modifications, enhancements and improvements to the Software made by any Party other than that Party or its subcontractors (unless directed to do so by the other Party).
21.2.3 This Section 21.2 states the entire liability of the indemnifying Party and the indemnified Party’s sole and exclusive remedies for patent and copyright infringement or misappropriation and trade secrets misappropriation.
21.3 Reserved.
21.4 Indemnitee Responsibilities. If any third-party claim is commenced against a Party entitled to indemnification under this Article, the indemnitee will provide notice of the claim and copies of all related documentation to the indemnitor. Such notice and documentation will be provided as promptly as possible. The indemnitee will cooperate, at the cost of the indemnitor, in all reasonable respects with the indemnitor and its attorneys in the investigation, trial and defense of such claim and any appeal. The indemnitee may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal. In such case, the indemnitor will cooperate with the indemnitee's attorneys.
21.5 Settlement. An indemnitor will have no liability with respect to any settlement reached without its prior written consent. Settlements of indemnified claims will be subject to the indemnitee's approval, which will not be unreasonably withheld or delayed; provided, however, that such consent may be given or withheld in the indemnitee's sole discretion to the extent the settlement admits liability, stipulates to any declaratory or equitable remedy, or affects the indemnitee's intellectual property or Confidential Information.
21.6 Reserved.
21.7 Subrogation. In the event an indemnitor indemnifies an indemnitee pursuant to this Article, the indemnitor will, upon payment in full of such indemnity, be subrogated to all of the rights of the indemnitee with respect to the Claim to which such indemnity relates.
21.8 Service Provider Warranties. It is understood by the Parties that the indemnity provisions herein are distinct from the performance warranties as provided in the Agreement and its Schedules.
Service Provider’s acts and conduct which are related to its performance under this Agreement and its Master Service Agreement
Schedules are not subject to the indemnity provisions of Article 21, but are instead subject to warranties, covenants, and promises to perform as described in Articles and Schedules, as they may be amended from time to time by the Parties in accordance with this Agreement.
22. DAMAGES
22.1 Exceptions to Limitations. In addition to the liability provisions set forth elsewhere in this Agreement, this Article 22 does not exclude or limit liability for (i) either Party's indemnification obligations with respect to Claims under Article 21, Indemnification, (ii) either Party's breach of Article 13 “Compliance and Audit” or Article 16 “Customer Data and Intangible Property,” (iii) a Party's gross negligence, fraud, or willful misconduct, (iv) claims for bodily injury or death, or damage to tangible personal property arising from negligent or otherwise wrongful action or failure to act by Service Provider or Service Provider’s personnel. To remove doubt and uncertainty, nothing in this Article 22 shall be deemed to decrease or otherwise affect application of full policy limits to claims or losses covered by the various types of insurance required under this Agreement.
22.2 Disclaimer of Indirect and Punitive Damages. Except as otherwise set forth in this Agreement, in no event shall either Party, its affiliates, suppliers, or subcontractors be liable for: (i) indirect, incidental, or punitive damages; (ii) lost profits, loss of use, savings or loss of revenue (whether direct or indirect); (iii) damage to, or loss of, data except as specified in the paragraph below; (iv) loss of goodwill or other diminution in the value of its business . The following costs and expenses will be considered direct damages and neither Party will assert that they are indirect or incidental damages or lost profits to the extent they arise directly from a Party's failure to perform in accordance with this Agreement:
22.2.1 costs and expenses to repair, recreate from the original documents of the Customer or reload any lost, stolen or damaged Customer Data;
22.2.2 costs and expenses to implement a work-around in respect of any failure to provide the Services;
22.2.3 costs and expenses to, replace lost, stolen or damaged hardware, Software or other materials;
22.2.4 [RESERVED];
22.2.5 cover damages, such as incremental costs and expenses incurred to procure the Services or corrected Services in- house or from an alternate source;
22.2.6 [RESERVED];
22.2.7 [RESERVED];
22.2.8 payments, fines, penalties or interest imposed by a governmental body or regulatory agency other than the Customer for failure to comply with requirements or deadlines.
22.3 Limitation on Service Provider Liability. Except as stated elsewhere in the Agreement, Service Provider's aggregate liability, including its affiliates, suppliers and subcontractors, for damages to Customer during the entire Term will not exceed the total Fees for the twelve (12) months immediately preceding the last act or omission giving rise to such claim for liability, unless the liability arises out of an act or omission during the first twelve (12) months after the Effective Date, in which case the Service Provider's aggregate liability will not exceed the estimated amount of Fees that would be payable during the first twelve (12) months of the Agreement.
22.4 Limitation on Customer Liability. Customer's aggregate liability for damages to Service Provider during the entire Term of the Agreement will not exceed the total Fees for the twelve (12) months immediately preceding the last act or omission giving rise to such claim for liability, unless the Master Service Agreement
liability arises out of an act or omission during the first twelve (12) months after the Effective Date, in which case Customer’s aggregate liability will not exceed the estimated amount of Fees that would be payable during the first twelve (12) months of the Agreement.
22.5 Data Breach Cap. THE MONETARY LIABILITY OF SERVICE PROVIDER GLOBALLY (INCLUSIVE OF AFFILIATES AND SUBCONTRACTORS OF PROVIDER) FOR ALL DATA BREACH CLAIMS ARISING HEREUNDER, INCLUDING CLAIMS RELATING TO ARTICLE 17 “SECURITY AND CONFIDENTIALITY” AND SCHEDULE 10 “SECURITY PROTOCOL”, AND INCLUSIVE OF
INDEMNITY AND CONFIDENTIALITY CLAIMS RELATED TO DATA BREACH, NOTWITHSTANDING
THE FORM IN WHICH ANY ACTION IS BROUGHT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO THE GREATER OF EITHER: (1) AN AMOUNT EQUAL TO TWO TIMES (2X) THE TOTAL FEES PAID (OR EXPECTED TO BE PAID, IF THE CLAIM ARISES IN THE FIRST TWELVE MONTHS) UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE; OR (2) TWENTY MILLION DOLLARS ($20,000,000).
22.6 Negotiated Risk Allocation. The Parties expressly acknowledge that the limitations and exclusions set forth in this Article have been the subject of active and complete negotiation between the Parties and represent the Parties' agreement based upon the level of risk to the Parties associated with their respective obligations under this Agreement and the payments provided hereunder to Service Provider for its performance of the Services.
23. INSURANCE
23.1 General. Service Provider will maintain insurance during the term of this Agreement as set forth in Schedule 29 (“Customer Insurance Requirement”). Service Provider will also cause its Subcontractors who perform Services at Customer Service Locations to maintain, or will maintain for such Subcontractors, insurance during the term of this Agreement as set forth in Schedule 29 Customer Insurance Requirement except with respect to limits.
23.2 Damage to Property. Service Provider is responsible for the risk of loss of, or damage to, any property of Customer at a Service Provider Service Location, unless such loss or damage was caused by the acts or omissions of Customer or an agent of Customer. Customer is responsible for the risk of loss of, or damage to, any property of Service Provider at a Customer Service Location, unless such loss or damage was caused by the acts or omissions of Service Provider or a Subcontractor.
24. FORCE MAJEURE
24.1 Excuse from Performance. If and to the extent that a Party's performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed by fire, flood, earthquake, elements of nature or acts of God, acts of war, acts of a public enemy, acts of a nation or any state, territory, province or other political division, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, theft, quarantine restrictions, freight embargoes or any other similar cause beyond the reasonable control and without the fault or negligence of such Party (each, a "Force Majeure Event"), and such non-performance, hindrance or delay could not have been prevented by reasonable precautions, then the non-performing, hindered or delayed Party will be excused for such nonperformance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues.
24.1.1 The foregoing excuse from non-performance is conditioned upon such Party continuing to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay, through the use of alternate sources, workaround plans, backup or emergency power, redundant telecommunications circuits, or other means.
24.1.2 Notwithstanding the foregoing, the acts or omissions of a Party's agents, subcontractors, representatives, materialmen, suppliers or other third parties providing products Master Service Agreement
or services to such Party will not constitute a Force Majeure Event (unless such acts or omissions are themselves the product of a Force Majeure Event).
24.1.3 The occurrence of a Force Majeure Event does not excuse, limit or otherwise affect Service Provider's obligation to provide either normal recovery procedures or any other Disaster Recovery services specified in this Agreement or in any Service Description unless such Services themselves are prevented by the Force Majeure Event.
24.2 Responsibilities of Parties. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event will:
24.2.1 Immediately notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event and such Party's good faith estimate of the likely duration of such Force Majeure Event.
24.2.2 With the cooperation of the other Party, exercise all reasonable efforts to mitigate the extent of any non-performance, hindrance or delay caused by a Force Majeure Event and any adverse consequences of such Force Majeure Event, such as, in the case of Service Provider, (i) performance of required work or the provision of the Services with the use of Service Provider's qualified management or other employees or Subcontractors, as permitted by this Agreement, and (ii) cooperating with Customer's efforts to secure necessary replacement services from third party vendors and suppliers.
24.2.3 [RESERVED].
24.2.4 Immediately notify the other Party of the cessation of such Force Majeure Event.
24.3 Alternative Sources. Within two (2) hours of the occurrence of a Force Majeure Event, Customer and Service Provider will determine the extent to which, and the duration that, the Force Majeure Event is likely to prevent Service Provider from performing its obligations in accordance with this Agreement and whether Service Provider is likely to promptly procure a suitable temporary alternate source for the affected Services.
24.3.1 If any Force Majeure Event prevents, hinders or delays performance of any of the Services, and Service Provider is unable to promptly (but in no event later than 48 hours) provide a suitable temporary alternate source for the affected Services, Customer may, without payment of Termination Fees, procure such Services from an alternate source and suspend Service Provider's provision of such Services for the duration of the Force Majeure Event pursuant to an agreement executed between Customer and such alternate source in respect of the provision of such services. Customer shall be entitled to reimbursement from Service Provider (with such reimbursement not to cover any period in excess of ninety (90) days) for the costs and expenses of such alternate provision of Services to the extent that said costs and expenses exceed the amount that Customer would have paid Service Provider hereunder for such Services. If Service Provider resumes provision of Services within ninety (90) days, then reimbursement by Service Provider to Customer pursuant to this Section for such costs and expenses of alternative source(s) shall be Customer’s sole and exclusive remedy for Service Provider’s failure to promptly provide a suitable temporary alternate source for affected Services during a Force Majeure Event. If Service Provider is unable to resume provision of Services within ninety (90) days, Customer shall be entitled to seek any and all remedies available under contract, law, or equity.
24.3.2 Subject in all cases to Section 14.4.4, for the duration of the agreement executed between Customer and an alternate source for affected Services as described in 24.3.1.
Customer is not obligated to continue paying Service Provider for the affected services.
24.3.3 Customer shall have the right to terminate this Agreement without liability or the payment of termination fees in accordance with Section 14.4.5.
Master Service Agreement
24.4 Allocation of Resources. Whenever a Force Majeure Event or a Disaster causes Service Provider to allocate limited resources between or among Service Provider's customers, Service Provider will treat Customer (and restoration of Services to Customer) as well or better than every other Service Provider customer. In addition, in no event will Service Provider re-deploy or reassign any Key Service Provider Personnel to another account in the event of a Force Majeure Event.
25. NOTICES
25.1 General. Any notice or other communication which either Party hereto is required or authorized by this Agreement to give or make to the other will be delivered by both overnight mail or courier with signed delivery confirmation and via electronic mail. The business day after the workday that the e-mail was sent shall control the date notice was deemed given except if such business day after the workday is a holiday(s) recognized by the recipient, then the first business following the recipient’s holiday(s) shall be the date notice is deemed given. An e-mail transmitted after 1:00 p.m. shall be deemed to have been transmitted on the following business day. Delivery by overnight mail or courier shall be deemed to have been transmitted on the date of the signed delivery confirmation.
25.2 Addresses. For the purposes of Section 25.1 above, the address of each Party will be:
For Service Provider:
For Service Provider:
Mail to:
Unisys Corporation
801 Lakeview Drive, Suite 100
Blue Bell, PA 19422
Attn: Vice President US&C Public Sector Accounts
And email to:
[email protected]
[email protected]
With a copy of all legal notices mailed to:
801 Lakeview Drive, Suite 100
Blue Bell, PA 19422
Attn: General Counsel
And email to:
[email protected]
For Customer:
Mail to:
City of Santa Clara
Attention: Information Technology Department
1500 Warburton Avenue
Santa Clara, California 95050
And email to:
[email protected]
With a copy of all legal notices mailed to:
City of Santa Clara
Attention: City Attorney’s Office
1500 Warburton Avenue
Santa Clara, California 95050
Master Service Agreement
And email to:
[email protected], and
[email protected]
Either Party may change its address for service by notice as provided in this Article.
26. NON-SOLICITATION
26.1 General. During the Term and for the period of six (6) months after the expiration or termination of the Agreement (and any Termination Assistance or extension of Services under Sections 14.7 and 14.9), neither Party will, without the prior written consent of the other Party directly or through a third party, intentionally solicit or entice away (or seek or attempt to entice away) from the employment of the other Party’s employees . This Article 26.1 will not apply to unsolicited responses by employees to general recruitment advertising.
27. RELATIONSHIP
27.1 Independent Parties. Service Provider and Customer are independent entities. Neither this Agreement will constitute, create or give effect to a joint venture, pooling arrangement, principal/agency relationship, partnership relationship, employer/employee or formal business organization of any kind and neither Service Provider nor Customer will have the right to bind the other without the other's express prior written consent.
27.2 Third Party Agreements. Unless otherwise agreed, Service Provider will provide that all Third Party Agreements that are to be assigned or transferred to Customer pursuant to Article 14, will be freely assignable to Customer without any modification or consent, subject only to Customer agreeing to assume Service Provider's obligations thereunder from and after the effective date of the assignment.
28. SEVERABILITY
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision will be separable from the remainder of the provisions hereof which will continue in full force and effect as if this Agreement had been executed with the invalid provisions eliminated.
29. WAIVER
The failure of either Party to insist upon strict performance of any provision of this Agreement, or the failure of either Party to exercise any right or remedy to which it is entitled hereunder or thereunder, will not constitute a waiver thereof and will not cause a diminution of the obligations established by this Agreement. A waiver of any default will not constitute a waiver of any subsequent default. No waiver of any of the provisions of this Agreement will be effective unless it is expressly stated to be a waiver and communicated to the other Party in writing.
30. PUBLICITY
30.1 Customer Publicity. Customer may in its discretion make any press announcements or publicize this Agreement or any matters relating to any of the transactions contemplated hereby.
30.2 Service Provider Publicity. Except with the written consent of Customer, Service Provider will not make any press announcements or publicize this Agreement or any matters relating to any of the transactions contemplated hereby or use any Customer name or trademark in any way whatsoever except for any information which is already in the public domain or otherwise non-confidential.
Master Service Agreement
31. GOVERNING LAW
31.1 General. This Agreement will be governed by and construed in accordance with the laws of the State of California and applicable U.S. federal laws, without giving effect to its principles of conflict of laws.
31.2 [RESERVED].
31.3 UN Convention. The 1980 United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
31.4 Binding Nature. This Agreement is binding on Service Provider and Customer and their respective successors and permitted assignees.
32. ASSIGNMENT AND DIVESTITURE
32.1 Assignment. Service Provider may not assign this Agreement without the prior written consent of Customer. Any such assignment will be void. Customer may assign or transfer this Agreement, upon notice to Service Provider, to a related party or unrelated party pursuant to a sale, merger or other business reorganization of Customer or any of its operating units.
32.2 [RESERVED].
33. GOOD FAITH
Whenever this Agreement requires or contemplates any action, consent or approval, each Party will act reasonably and in good faith and will not unreasonably withhold or delay such action, consent or approval, unless the Agreement expressly establishes some other standard, such as exercise of a Party's sole discretion.
34. FURTHER ASSURANCES
Each party will provide such further documents or instruments required by the other Party as may be reasonably necessary or desirable to give effect to this Agreement and to carry out its provisions.
35. NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement, express or implied, is intended to confer rights, benefits, remedies, obligations or liabilities on any person (such as any employees of the Parties) other than the Parties or their respective successors or permitted assigns.
36. COUNTERPARTS
This Agreement may be executed in one or more counterparts, and may be executed by electronic signature, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument.
37. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all prior communications and agreements between the Parties relating to its subject matter.
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Master Service Agreement
IN WITNESS, WHEREOF, this Agreement is hereby executed by the duly authorized representatives of the Parties, as set forth below.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. It is the intent of the Parties that this Agreement shall become operative on the Effective Date.
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
APPROVED AS TO FORM: Dated: ________________________
GLEN R. GOOGINS
City Attorney
JOVAN D. GROGAN
City Manager
“City”
UNISYS CORPORATION
a Delaware corporation
Dated:
By:
(Signature of Person executing the Agreement on behalf of Contractor)
Name: Ed Cichone
Title: Vice President, Client Management
Local Address: 801 Lakeview Drive, Suite 100
Blue Bell, Pennsylvania 19422
Email Address: [email protected]
Telephone: 908-878-9426
“CONTRACTOR”
SCHEDULE 1
DEFINITIONS
TO
MASTER SERVICES AGREEMENT
BY AND BETWEEN
CITY OF SANTA CLARA
AND
UNISYS CORPORATION
Schedule 1 – Definitions
Schedule 1
Definitions
TERM DEFINITION
“Additional Resource
Charges” or “ARC”
As defined in Schedule 5, Fees.
“Agreement” Means that certain managed services agreement by and between the City of Santa Clara and Service Provider
“Affiliate” Means, with respect to an entity, any other entity Controlling, Controlled by or under common Control with that entity.
“Annual Execution
Plan”
As defined in Schedule 3A, Cross Functional Statement of Work “Appendices” Means the Appendices to the Schedules that may be mutually agreed upon by the Parties from time to time.
“Application Software” Means any non-Core Software package (e.g., City COTS and custom developed applications).
“Assigned
Agreements”
Means those Customer agreements with third parties specified in Schedule 8 that are assigned to Service Provider.
“Authorizations” Means any notice, consent, license or authorization from any regulatory, governmental or other authority necessary, required or customary for a Party to enter into or perform its obligations under this Agreement. “Availability” Means the percentage of time that a given Service or system is fully operational and available when its resources are called upon at a random point in time. Availability represents a measure of the fraction of time (expressed as a percentage) during a defined period when the Service or system is deemed to be equal to or better than a designated Service Level Availability (%) = 100% - Unavailability (%)
Where Unavailability is defined as:
Σ Unplanned Outage Duration x 100%
Schedule Time - Planned Outages
Availability measurement calculations shall be limited to those Service and system components that are directly under the control of Service Provider, as well as Service and system components for which Service Provider is responsible for subcontracting to Third Parties. Availability measurement calculations shall exclude any Service or system elements downtime to the extent caused by a Force Majeure Event, as well as any Service or system that is controlled exclusively by the City.
“Base Case” Means Customer’s budget for those functions directly and indirectly considered as Services and related to providing Services. “Base Fees” As defined in Schedule 5, Fees.
“Change” Means any change with respect to the scope or performance of the Services.
“Change Control
Procedures”
As defined in Section 5.6 of the MSA, means the procedures set forth in Schedule 14, pursuant to which the parties will propose, authorize and implement any Change.
“Change Order” As defined in Schedule 14, Change Control Procedures. “Change Request” Means a request by the City of Service Provider to implement a Change to the Services or a City request that Service Provider perform a new service Schedule 1 – Definitions
TERM DEFINITION
(each, a “Change Request”).
“Claim” Means all claims for Losses asserted by third parties. “Commissioned
Work”
As defined in Section 16.4., means all non-Software literary works or other works of authorship that may be created pursuant to or in connection with this Agreement, including any procedures manuals, training materials and other items that are created for Customer.
“Confidential
Information”
Means all information that relates to the business, affairs, products, developments, trade secrets, know how, personnel, customers and suppliers of either Party that has been designated as “confidential information” by a Party and disclosed under circumstances sufficient to place the recipient on reasonable notice of the confidentiality of the information, together with all information derived from the foregoing, but excluding any information (i) independently developed by the receiving Party without using the Confidential Information of the disclosing Party, (ii) publicly disclosed by an entity other than the receiving Party under no duty of confidentiality or (iii) rightfully in the possession of the receiving Party without a duty of confidentiality prior to the receipt of such information. “Configuration Item”
or “CI”
Means a component of an infrastructure which is (or is to be) under the control of Configuration Management.
“Consents” Means any notice or consent required for Customer to (i) transfer or assign any Assigned Agreements to Service Provider, (ii) permit Service Provider to Use any Customer Software, (iii) permit Service Provider to manage any Managed Agreements under this Agreement, (iv) permit Service Provider to transfer to Customer any Third Party Agreements in accordance with Section 15.7 or (v) permit Customer to Use any Service Provider Software. “Contract Year” Means each 12-month period during the Term, starting on the Effective Date. “Control” (and
derivatives)”
Means, with respect to an entity, the legal, beneficial, or equitable ownership, directly or indirectly, of fifty percent (50%) or more of the capital stock (or other ownership interest ordinarily having voting rights), or the direct or indirect power to direct the management and policies of the entity.
“Control Rules” As defined in Section 14.8., means the legal obligations under the Securities Act of 1933; the Securities Exchange Act of 1934; the Sarbanes Oxley Act of 2002; related rules and regulations of the Securities and Exchange Commission, including Regulation S-X; the rules, regulations and listing standards of the New York Stock Exchange; the rules, regulations and standards of the Public Company Accounting Oversight Board; and any other financial control or disclosure requirement imposed by law on public companies, as such legal requirements may be amended or modified from time to time.
“Core Software” Means Core Software the suite of Software programs used to build a Citydefined standard image for a supported device (e.g., operating system Software, office productivity and messaging Software, information security tools, remote connectivity Software).
“Corrective
Assessment”
Are fixed monetary amounts due and payable to Client as a result of a failure by Service Provider to meet a Critical Milestone. Corrective Assessments are specified for each project and are set forth in Schedule 4. “Critical Deliverable” Means those Deliverables set forth in Section 8 of Schedule 3. “Critical Milestone” Means specific performance objectives associated with discrete projects that have a fixed time frame for completion (e.g., completion of Transition).
Projects for which Critical Milestones have been identified are set forth in Schedule 4.
“Critical Transition
Milestones”
Means the transition milestones set forth in the Transition Plan in Schedule 13 that are identified as critical.
“Customer Data” Means any and all data provided to Service Provider by Customer, its agents Schedule 1 – Definitions
TERM DEFINITION
or customers, or collected by Service Provider in the course of its performance of the Services and any and all data generated or compiled from or using such data, including, without limitation, any personal data of any Customer employee or contractor and any data concerning any of Customer’s customers.
“Customer Intangible
Property”
As defined in Section 17.2., means and includes all or any part of the Customer Data, Customer Software or other intangible property of Customer, including work-in-progress.
"Customer Materials" Means any materials , documentation, manuals , guidelines, business processes, methodologies, database rights, inventions, designs, drawings, Confidential Information or other items licensed or owned by Customer and used by Customer to support its IT or other operations, excluding Customer Software and excluding the Service Provider Software and Service Provider Materials.
“Customer Service
Locations”
Means the Service Location’s owned or leased by Customer, at which Services will be delivered. The Customer Service Locations are identified in Schedule 15, Service Locations.
“Customer Software” Means the Software listed in Schedule 19, Customer Software. For the avoidance of any doubt, Customer Software may include both Software owned by and licensed to Customer, but excludes Software licensed to Customer by Service Provider.
“Database” Means the occurrence of any one or more of the following:
(a) SQL – The count of instances of SQL Server installs. (b) Oracle – The count of instances of Oracle installs. (c) Other database instances that may be added through
change control
Note: For RU purposes, Database shall mean a physical instance. “Default” Means the occurrence of any one or more of the following:
(a) any material breach by Service Provider of its
obligations under the Agreement, provided that such breach, if curable, is not cured within thirty (30) days (or such longer period as expressly set forth in the Agreement) after Client provides Service Provider with written notice thereof;
(b) any material breach by Service Provider with respect to its obligations under the Agreement not capable of cure; (c) performance of the Services by Service Provider in a manner that meets or satisfies any one or more of the criteria expressly specified in Schedule 3 or Schedule 4 as constituting a Default, subject to any applicable cure period, or
(d) any failure by the Service Provider to meet a specific Service Level in three (3) or more consecutive Measurement Intervals or four (4) or more non-consecutive Measurement Intervals in any rolling twelve (12) month cycle.
(e) any breach by Service Provider with respect to any of its representations and warranties under the Agreement, provided that such breach, if curable, is not cured within thirty (30) days (or such longer period as expressly set forth in this Agreement) after Client provides Service Provider Schedule 1 – Definitions
TERM DEFINITION
with written notice thereof;
(f) the failure by Service Provider to complete the
transition of all Services to Service Provider as set forth herein, provided that such Default shall not be subject to a cure period;
(g) any material breach by Service Provider of its
obligations regarding execution of the Disaster Recovery Plan or BCP during a disaster, provided that such Default shall not be subject to a cure period; (h) numerous or repeated breaches by Service Provider
of its obligations under this Agreement which collectively constitute a material breach by Service Provider of its obligations under the Agreement, provided that such Default shall not be subject to a cure period; (i) the existence of a material representation by Service Provider in the Agreement that Service Provider knew or should have known was materially false when made, except that, if such misrepresentation is curable and such cure will fully and completely effect a reasonable resolution, there shall not be a Default if such misrepresentation is cured within fifteen (15) days after Service Provider has been notified by Client in writing thereof; (j) the insolvency of Service Provider, the entrance of Service Provider into receivership or any arrangement or composition with creditors generally, the filing of a voluntary petition (or an involuntary petition that is not dismissed within sixty (60) days) for bankruptcy or reorganization or dissolution or winding-up of Service Provider, a general assignment for the benefit of creditors of Service Provider, or a seizure or a sale of a material part of Service Provider’s property by or for the benefit of any creditor or governmental agency;
(k) an assignment or attempted assignment by Service
Provider in violation of the terms hereof;
For purposes of the Agreement, the word “cure” shall include implementation by the applicable Party of a reasonable work-around or similar temporary measures, provided that such measures do not cause the other Party to incur significant expense, or expend significant time or resources, and that the defaulting Party continually pursues and promptly implements a full and complete cure until such time as such cure is so effected.
Unless the Agreement expressly states that no cure period shall apply or otherwise provides for a different cure period with respect to any event or circumstance that qualifies as a Default under paragraphs (a) through (k) above (in which case no cure period or such other cure period shall apply, as applicable), there shall be a cure period of thirty (30) days with respect to such event or circumstance.
In each instance in which the Agreement contemplates a cure period or otherwise affords a Party an opportunity to cure a potential Default, (i) the other Party shall be required to provide written notice to such Party of such potential Default, (ii) the cure period shall begin when such notice has been received by such Party, and (iii) the potential Default shall not give rise to a Party’s rights and remedies under Section 15 of the Agreement unless such Schedule 1 – Definitions
TERM DEFINITION
notice has been provided and the cure period based thereon has elapsed. “Defect” Means an error or flaw that produces an incorrect or unexpected result or behavior, or a failure to meet or comply with requirements, specifications and documentation.
“Deliverable(s)” Means all tangible products commissioned by Customer including Software, hardware, systems and related documentation, manuals or other items that Service Provider may develop, or have developed, for Customer pursuant to or in connection with this Agreement, and includes, without limitation, (i) any modification or enhancement of, or derivative work based upon, the Customer Software or Customer Materials or hardware or systems or (ii) any third party Software or related documentation, manuals or other materials licensed to Customer and developed by Service Provider or any of its Affiliates, Subcontractors or other agents as part of the Service.
Deliverables will not include the ongoing delivery of Services under the Service Description.
"Disaster" Means any unplanned interruption or disruption of the Services that at a minimum materially impairs the ability of Service Provider to deliver the Services in the manner specified in the applicable Service Description. "Disaster Recovery" Means the restoration by Service Provider of the critical processing functions as identified in a Disaster Recovery/Business Recovery Plan pursuant to the terms of such plan as set forth in Schedule 23, Business Continuity and Disaster Recovery Plan and applicable Service Description or the Procedures Manual.
“Dispute” As defined in Section 21.3., means any dispute, controversy or claim of any kind or nature arising under or in connection with this Agreement including, but not limited to, disputes as to the creation, validity, interpretation, breach or termination of this Agreement. “End-User” Means any individual who is designated by Customer to receive or use the Services.
“Effective Date” As defined in the first paragraph of this Agreement. “Escrow Account” Means an account established with a Third Party escrow agent as described in Section 11.6.
“FAQs” Means frequently asked questions.
“Fees” As set forth on Schedule 5, Fees. Means all charges to be paid by Customer to Service Provider for Services.
“Firewalls” Means the combined count of firewalls and VPN appliances. “Force Majeure” or
“Force Majeure
Event”
As defined in Section 25.1 of the Master Service Agreement “Full Rights” As defined in Section 16.2.3., means, with respect to Deliverable, that Customer will own no right, title or interest in or to the Deliverable, apart from Customer's continuing rights in and to any Customer Software or Customer Materials that may be incorporated or embedded in such Deliverable.
“Governance Model” As set forth in Schedule 17, Governance Model. “IMACD” Means install, move add, change or disposals
“Impact Assessment” As defined in Section 5.8, means Service Provider’s notification to Customer of the expected impact of Customer’s change in priorities for (i) scheduling work, (ii) the relocation of Services to a different Service Location, (iii) Customer’s performance of facilities-related services at the Customer Service Locations, or (iv) such other changes directed by Customer.
“Incident” Means any event which is not part of the standard operation of (1) a Service Schedule 1 – Definitions
TERM DEFINITION
and which causes, or may cause, an interruption to, or a reduction in, the quality of that Service and (2) any hardware, Software or systems supported by Service Provider under the Agreement and which causes, or may cause, an interruption to, or a reduction in, the quality of the operation of such hardware, Software or systems.
“Indemnified Item” As defined in Section 22.3, means the Customer Software or Customer Materials, in the case of Customer, and the Services, the Deliverables, Service Provider Software or Service Provider Materials, in the case of Service Provider, or the Confidential Information provided by or on behalf of the other Party.
“Initial Term” As defined in Section 15.1, means the time period agreed upon by the Parties as the initial term.
“Intellectual Property
Rights”
As defined in Section 16 of the Agreement.
“ITIL” A set of practices for IT Service Management (formerly an acronym for Information Technology Infrastructure Library)
“Key Service Provider
Personnel”
As defined in Section 7.2
“Law” or “Laws” Means any treaty, directive, statute, legislation or other law enacted by any federal, state or local government in a relevant jurisdiction, including any Regulatory Requirement contemplated thereunder.
“Level 0” Means the support that provides End-Users with basic Software and/or hardware self-help capabilities (e.g., reporting and tracking Incidents and Service Requests via web forms, password reset tools).
“Level 1” Means the first level of support for all Service Requests and Incidents. EndUser calls shall be answered and screened for the nature of the calls, the calls shall be logged into a call tracking system, a Priority Level shall be assigned to each reported Incident, and all Incidents that can be Resolved without escalation are Resolved. Level 1 support incudes support to address basic software and/or hardware Incident Resolution, basic “how to” support and basic service request support (e.g., password resets, unlocking accounts).
“Level 1.5” Means the support provided by the Service Desk to address Incidents and Service Requests that cannot be Resolved by Level 0 Support or Level 1 Support and requires support from Service Desk staff with specific Application System functional knowledge, or requires a Service Desk analyst to run diagnostics and remotely perform advanced troubleshooting.
Level 1.5 support may include ordering parts as needed to facilitate any required desk side visits from field services technicians (Level 2 support). “Level 2” Means the second level of support – contacted by Level 1 support after Level 1 support has attempted to Resolve the Incident or Service Request with the tools and processes available to Level 1. Level 2 support is support provided for Incidents and Service Requests that require more complex support and/or subject matter expertise on software or infrastructure and is usually an escalation of the Incident or Service Request from Level 1 support. Level 2 support is typically provided by SMEs in the applicable Service Tower or third party Service Tower (e.g., application system support groups, enterprise computing), which may include Service Provider personnel, Customer personnel, and Third Party Service Tower personnel, or is provided by field technicians providing End-User support. “Level 3” Means the third level of support – the support provided for complex Software and infrastructure Incidents and Service Requests, and is usually an escalation from Level 1 support, Level 2 support and usually involves systems engineers certified in the applicable Service Tower or Third Party Service Tower, or Third Party vendors (e.g., hardware and Software vendors).
Schedule 1 – Definitions
TERM DEFINITION
“Limited Rights” As defined in Section 16.2.2, means with respect to a Deliverable, Service Provider will have the perpetual, irrevocable, paid-up, royalty-free, worldwide, non-exclusive, sub-licensable but otherwise nontransferable right to Use the Deliverable, in whole or in part. “Malicious Code” Means any virus, worm, Trojan horse, time bomb, spyware or other malicious code intended to interrupt, corrupt, disable or damage computer programs, systems, environments or data, or to permit unauthorized access thereto.
“Managed Agreement
Invoices”
Means any invoices related to the Managed Agreements.
“Managed
Agreements”
Means any of Customer’s agreements with third parties that are managed or administered by Service Provider and listed in
Schedule 8.
“Master Service
Agreement” or “MSA”
Means this Agreement and its Schedules.
“Measurement
Interval”
Means the period during which Service Provider’s performance against a particular Service Level will be measured, as set forth in Exhibit 1 to Schedule 4 to the Agreement.
“Messaging” Means the occurrence of any one or more of the following:
(a) Services (MS Outlook) – The count
of mailboxes that are hosted exclusively in one of the city’s data centers. (b) Services (Office 365) – The count of
mailboxes that are hosted with the Microsoft Azure Office 365 Cloud. (c) Other Messaging platforms or
services that may be added through change control
“NAS” Network Attached Storage. Means the volume of utilized storage in TB for the network attached storage. See schedule 5 – Fees.
“No Rights” As defined in Section 16.2.1, means with respect to a Deliverable, that Service Provider will have no rights in the Deliverable, other than Residual Rights.
“Out-of-Scope
Service”
Means a service that is not within the scope of the Services prior to the execution of a Change and is not contemplated under Section 3.1 and Section 3.2 of the Agreement
“Parties” Means both Service Provider and Customer.
“Party” Means either Service Provider or Customer as appropriate “Physical Servers” Means the occurrence of any one or more of the following:
(a) ESX Host Servers – The count of physical servers that host VMWare virtual machines.
(b) Windows Servers – The count of all other physical
servers not host Virtual Machines.
(c) Other servers that may be added through change
control.
Note: Includes machines in all environments rather than exclusively production.
“PMO” Means Project Management Office.
“Polycoms” Means a telephone set that provides specialized conferencing capabilities. “Priority Level” Means the level of business criticality and business impact that is assigned to an Incident, and the urgency with which a response and Resolution is required. The Priority Levels are Priority Level 1, Priority Level 2, Priority Level 3 and Priority Level 4
“Priority Level 1” As defined in Schedule 4, Exhibit 1
“Priority Level 2” As defined in Schedule 4, Exhibit 1
Schedule 1 – Definitions
TERM DEFINITION
“Priority Level 3” As defined in Schedule 4, Exhibit 1
“Priority Level 4” As defined in Schedule 4, Exhibit 1
“Problem” Means the unknown underlying cause of one or more Incidents. “Procedures Manual” Means a written document that includes Service Provider's procedures for performing the Services and all operations manuals, support plans and user guides necessary and sufficient to document such procedures. “Project” Means any discrete amount of work undertaken, in accordance with Section
3.2 of the Agreement, to create a product, solution or service. Each Project must be carried out pursuant to the Project request and approval process. “Project Services” A group of related but temporary work activities undertaken to create a unique product, service or result to meet specified objectives. “Reduced Resource
Charge” or “RRC”
As defined in Schedule 5, Fees.
“Regulatory
Requirement”
Means any applicable regulation, ordinance, government decree or other government requirement with respect to a Party’s performance of its obligations under this Agreement.
“Resolution” and its
derivatives
Means to repair, replace, reconfigure, reinstall, re-route, or otherwise provide a complete solution to an Incident that returns the system and/or End User(s) to non-degraded full functionality. Implementing a workaround is a partial or temporary resolution.
“Root Cause
Analysis” or “RCA”
An activity that identifies the root cause of an Incident or Problem. “Schedule” Means a Schedule attached to this Agreement. “Security Protocol” As defined in Schedule 10, Security Protocol. “Service
Commencement Date”
Means the date set forth in Schedule 13 for completion of the Transition of Services.
“Service Level” Means the standards prescribed for the performance and quality of the Services pursuant to this Agreement as defined in Schedule 4. “Service Credits” or
“Credits”
Means the amounts set forth in
Schedule 4 to be paid or credited by Service Provider in the event Service Provider fails to provide the Services in accordance with the applicable Service Levels.
“Service Locations” Means the locations set forth in Schedule 15, as may be changed by the Parties from time to time in accordance with the Change Control Procedures.
“Services” As defined in Section 3 of the Agreement.
“Service Provider
Indemnitees”
As defined in Section 22.2.
"Service Provider
Materials"
Means any materials, documentation, manuals, guidelines, business processes, methodologies, database rights, inventions, designs, drawings, Confidential Information or other items licensed or owned by Service Provider and used by Service Provider to perform the Services, excluding Service Provider Software and the Customer Software and Customer Materials.
“Service Provider
Owned Software”
Means any Service Provider Software owned by Service Provider or any of its Affiliates.
“Service Provider
Locations”
Means any Service Location owned or leased by Service Provider from which Services will be delivered. The Service Provider Locations are identified in Schedule 15 – Service Locations.
“Service Provider
Software”
Means Software that is owned or licensed by Service Provider or any of its Affiliates, Subcontractors or other agents and used by Service Provider or any of its Affiliates, Subcontractors or other agents to provide the Services. “Service Provider
Third Party Software”
Means any Service Provider Software licensed by Service Provider or any of its Affiliates, Subcontractors or other agents
Schedule 1 – Definitions
TERM DEFINITION
From a third party.
“Service Request” Means a request from a user for advice, information, a routine change or access to some IT service.
"Service Tower" Means each of the Statements of Work (SOWs) set forth under Schedule 3 “SME” Means Subject Matter Expert.
“Software” Means any application, operating system, middleware component, tools, utilities or other computer program, in object or source code form as applicable in the circumstances.
“SOW” Means Statement of Work.
“Specifications” Means technical and functional documentation describing the Deliverables, as prepared by the Service Provider and approved by Customer. “Subcontractor” As set forth on Schedule 18, Approved Subcontractors. Means any agent or contractor approved by Customer and retained by Service Provider to perform Services on behalf of Service Provider.
“Tape Backup” Means the copying of data to a physical tape storage for the purpose of providing off-site storage of data.
“TB” Means Terabytes.
“Term” As described in Section 15.
“Termination
Assistance”
As defined in Schedule 16, Termination Assistance.
“Third Party” Means an entity other than Service Provider and its Affiliates and other than Customer and its Affiliates.
“Third Party
Agreements”
Means any Third Party license agreements, support agreements and other third party contract rights utilized by Service Provider in connection with the performance of the Services.
“Transition” Means the set of tasks and activities necessary and sufficient for Service Provider to complete the successful transfer of Services from Customer or its contractors to Service Provider, in accordance with Schedule 13. “Transition Plan” Means the plan agreed to by the Parties to effectuate the Transition attached as Schedule 13, Transition Plan and Milestones.
“Transition Schedule” Means the schedule or timeline from commencement to completion of Transition.
“Transition Services” As defined in Section 4.1.
“Use” Means to make, reproduce, copy, distribute, adapt, modify, make derivative works of, perform, display, transmit and otherwise use, and to sublicense any or all of such rights to third parties.
“Virtual Instance” Means the occurrence of any one or more of the following:
(a) An emulation of a computer system providing the
functionality of a physical computer, including but not limited to computers running operating systems such
as Windows or Unix/Linux.
(b) The count of Virtual Machines running on an ESX
Host Server.
(c) Other virtual servers that may be added through
change control.
(d)
Note: Includes machines in all environments rather than exclusively Production
“VPN” Means a Virtual Private Network, a means of an authorized remote user connecting securely to the city network to gain access to city applications. “Wireless Controller” Means a network device that provides control and management of Wi-Fi access points on a network.
SCHEDULE 5
FEES
TO
MASTER SERVICES AGREEMENT
BY AND BETWEEN
CITY OF SANTA CLARA
AND
UNISYS CORPORATION
Schedule 5 – Fees
Table of Contents
1. Introduction........................................................................................................................ 3
2. Definitions.......................................................................................................................... 3
3. Baselines and Base Fees .................................................................................................... 4
4. ARCs Ceiling and RRCs Floor.......................................................................................... 7
5. Expenses and Fees ............................................................................................................. 8
6. Termination for Convenience Fees.................................................................................... 9
7. Estimated Allocation of Project Hours per FTE................................................................ 9
8. FTE Role Descriptions....................................................................................................... 9 Schedule 5 – Fees
Schedule 5
Fees
1. Introduction
This Schedule 5 Fees is applicable as of the Effective Date of the Agreement and sets forth the Fees payable to Service Provider for provision of Services and the methodology to calculate adjustments to Fees, if any. This Schedule also includes the Termination Fees that are applicable to this Agreement.
2. Definitions
“Additional Resource Charge” (“ARC”) means the amount payable, in addition to the Base Fees, for additional Resource Units consumed above Baseline Volumes, computed monthly on a per-Resource Unit basis applicable to all units consumed when the Dead Band is exceeded. “Additional Services Fees” means Fees for specific discrete Services that are listed in Exhibit 1 to Schedule 5, and are part of the Base Fees.
“ARC Ceiling” means the maximum percentage of ARC unit changes that can occur before Parties agree to mutually review and may renegotiate such applicable Resource Unit items such as Base Fees, Baseline Volumes, ARC Rates and RRC Rates.
“Base Fee(s)” means the total Fees to Customer for Services for the then current Baseline Volumes and FTEs. Base Fees also includes Additional Services Fees as set forth in Exhibit 1 to Schedule 5. “Baseline Volume” means the specific quantity of FTEs or Resource Units included within the Base Fees for a month.
“Contract Rate Card” means the hourly rate card that will apply for additional FTEs that Customer may decide to add to Services during the Term of this Agreement through the Change Control Procedures. “Customer Optional Project Resources” means Fees identified in Exhibit 1 to Schedule 5 Fees (Optional Services worksheet) and which are included as part of the aggregate Customer Project Resources. Such Fees will be prorated and invoiced on an ongoing monthly basis, regardless of actual utilization. The Customer Optional Project Resources may be utilized by Customer during the Term at its discretion, consistent with the contractual procedures authorizing utilization of all other Customer Project Resources.
To the extent the Customer Optional Project Resources are not utilized by Customer during the Term, applicable Fees will be credited to Customer by Service Provider in Service Provider’s final invoice under the Agreement.
“Customer Project Resources” means the funds available for use at Customer’s discretion identified in Section 3.6.1 (Customer Project Resources table).
“Dead Band” means a range of Baseline Volumes for each type of Resource Unit within which no adjustment of Base Fees is required.
“FTE” means a full time equivalent resource used in delivery Services and included in the Base Fees. “Operational Utilization” means the percentage of time resources spend keeping the existing environment functioning (e.g. incident management, problem management). “Original Contract” means the Master Service Agreement for Information Technology Outsourcing Services by and between City of Santa Clara and Unisys Corporation dated August 26, 2009, as amended from time to time.
Schedule 5 – Fees
“Original Contract Resource Unit Fees” means the Resource Unit Fees pursuant to the Original Contract. “Pass-Through Order” means an order, signed by Customer, for Third Party product(s) and/or service(s) that are not Services, to which Service Provider may add mark-up or administrative fee in accordance with Section 5.3 of this Schedule 5 Fees. Pass-Through Orders may be placed for items such as specialized IT consulting services. Pass-Through Order procedures are further explained in Section 5.3. “Project Utilization” means the percentage of time resources spend changing, upgrading or performing strategic planning for the environment.
“Reduced Resource Credit” (“RRC”) means the reduction in the Base Fees when actual Resource Units consumption falls below Baseline Volumes computed monthly applicable to the units consumed below the lower threshold of the Dead Band, on a per-Resource Unit basis, and credited only when consumption falls below the lower threshold of the applicable Dead Band. “Resource Units” refers to categories of resources, or particular kinds of resources (such as numbers of devices, FTEs, calls or other measurable items) used to determine Base Fees. “RRC Floor” means the minimum percentage of RRC unit credits that can occur before Parties agree to mutually review and may renegotiate such applicable Resource Unit items such as Base Fees, Baseline Volumes, ARC Rates and RRC Rates.
“Transition Fees” means Fees paid during transition, as identified in Schedule 13 Section 5 or as an amortized cost component and included in the monthly invoice as set forth in Exhibit 1 to Schedule 5 Fees (Transition Fees worksheet).
3. Baselines and Base Fees
3.1 Baseline Volume and Baseline Volume Adjustments
The Baseline Volumes Resource Units as of the Effective Date of the Agreement are set forth in Exhibit 1 to Schedule 5.
3.1.1 Adjustment to Baseline Volume
During the Transition Period, Service Provider shall measure actual consumption of all Resource Units and recommend any changes to Baseline Volumes, if necessary, so that Baseline Volumes accurately reflect Customer’s then-current consumption, but excluding any unusual, exceptional or non-recurring conditions. After completion of the Transition Period, this process shall be repeated during the final two (2) months of each Contract Year, beginning with the first Contract Year, with changes to be effective at the beginning of the next invoicing period of the succeeding Contract Year and implemented in accordance with the reconciliation process described below. Base Fees shall be adjusted accordingly, using applicable ARC, RRC or other adjustments described by this Schedule or the Agreement. If the Parties are unable to agree upon adjusted Baselines (and related adjustments to Base Fees) in a timely manner, the matter shall be referred to the governance committee and if they are unable to agree, then resolved, if necessary, in accordance with Section 21 of the Agreement (concerning disputes). Section 4 of this Schedule sets forth the methodology to adjust Baseline Volumes in the event of substantial changes to Baseline Volumes.
3.2 Base Fees and Base Fees Adjustments
Base Fees for Services are as provided in Exhibit 1 to Schedule 5 (Base Fees table) of this Schedule.
Base Fees reflect consumption of chargeable Resource Units in accordance with the Baseline Volumes contained therein. Base Fees commence upon Service Commencement Date after successful completion of Transition related activities and completion of the final Transition Milestone for all Service Towers.
Schedule 5 – Fees
3.2.1 [Reserved]
3.2.2 COLA
Service Provider Contract Staff Labor Rates and Resource Unit Fees, as delineated in Exhibit 1 to this Schedule 5 will be adjusted annually for inflation (COLA: Cost of Living Adjustment) based on the Consumer Price Index, Urban Wage Earners and Clerical Workers (Current Series), Not Seasonally Adjusted, San Francisco-Oakland-San Jose, CA, provided by the Department of Labor Bureau of Labor Statistics. Service Provider Contract Staff Labor Rates will be adjusted at 100% of the applicable COLA.
Resource Unit Fees will be adjusted at 88% of the applicable COLA. For avoidance of doubt, during the Term, COLA will be applicable only to Service Provider Contract Staff Labor Rates and Resource Unit Fees as described in this Section 3.2.2. The COLA adjustment will begin on July 1, 2026 and each subsequent Contract Year on July 1, based on the period ending December 31 of the previous year.
Notwithstanding the above described COLA adjustments, in the event the City encounters budget constraints based on severe economic conditions, Service Provider agrees to discuss such COLA adjustments with the City in good faith.
3.3 Incremental Charges and Credits
After Service Commencement Date of Services, Customer shall pay Base Fees associated with such Services plus ARCs (if consumption of Resource Units exceeds the upper limit of the Dead Band) or minus RRCs (if consumption of Resource Units fall below the lower limit of the Dead Band). Dead Band, ARCs and RRCs shall be determined, reported and invoiced on a monthly basis.
3.3.1 Reporting and Payment of ARCs and RRCs
Within thirty (30) days following the end of each month, Base Fees for Services will be adjusted by Service Provider based upon (i) positive or negative differences between actual usage of Resource Units for the preceding month and (ii) then-current Baseline Volumes, (iii) multiplied by applicable ARCs and RRCs, provided, that there shall be no actual adjustment unless actual consumption falls outside the Dead Band. After calculation of all adjustments, Service Provider shall deliver to Customer, a statement in reasonable detail specifying all adjustments for that month, and explaining their calculation. If there has been a net overpayment by Customer, the amount of the overpayment shall be credited against the next succeeding Service Provider invoice(s) or paid by check when the Agreement expires or terminates.
If there has been a net underpayment by Customer, the amount of the underpayment shall be added to the next succeeding Service Provider invoice(s) or paid by check when the Agreement expires or terminates. Customer agrees to pay the net amount due, if any, as provided in Section 11.3 of the Agreement after receipt of a correct Service Provider's invoice.
3.3.2 ARC Dead Band
The ARC Dead Band is expressed as a percentage amount and is set forth in the ARC Dead Band Table that is provided for each Resource Unit type for each relevant Service Tower. For the purposes hereof, "ARC Dead Band Percentage" means the percentage above the Baseline Fee for each applicable Resource Unit type within which ARCs will not apply, and above which ARCs will apply Schedule 5 – Fees
3.3.3 ARC Dead Band Table
The following ARC Dead Band Table identifies the factors that are to be used in calculating ARCs for each Resource Unit type for each of the applicable Service Towers. The ARC Dead Band is calculated by multiplying the Baseline Fee by the sum of 1.00 plus the ARC Dead Band percentage.
Table 1. ARC Dead Band Table
ARC Dead Band
% of Baseline
Service Tower
Enterprise Compute Services (i.e. data
center and network)
10%
Service Desk Services 10%
3.3.4 Reduced Resource Credits (RRCs)
The RRC Dead Band is expressed as a percentage amount and is set forth in the RRC Dead Band Table that is provided for each applicable Service Tower. For the purposes hereof, the RRC Dead Band means the percentage below the Baseline Fee for each applicable Resource Unit type within which RRCs will not apply, and below which RRCs will apply.
3.3.5 RRC Dead Band Table
The following RRC Dead Band Table identifies the factors that are to be used in calculating RRCs for each Resource Unit type for each of the applicable Service Towers. The RRC Dead Band is calculated by multiplying the Baseline Fee by the sum of 1.00 less the RRC Dead Band percentage.
Schedule 5 – Fees
Table 2. RRC Dead Band Table
RRC Dead Band
% of Baseline
Service Tower
Enterprise Compute Services (i.e. data
center and network)
10%
Service Desk Services 10%
3.3.6 Credits for non-availability of FTEs
Customer shall not pay corresponding prorated Fees for vacancies or absences in excess of agreed schedule of FTEs, unless prior agreement has been reached for adequate backfill for such FTEs. The agreed schedule of FTEs is as below.
a. The base hours for calculating credits for non-availability of an FTE is 1920 hours per year. b. Total hours of non-training absences for any fulltime FTE shall be 248 hours. This number is based on 13 Customer holidays, 13 vacation days and 5 sick days. If the number of Customer holidays is decreased from 13 days, the time allocated for Customer holidays will be added to Service Provider vacation days. For the avoidance of doubt, the total working hours per FTE include time for FTEs to perform administrative activities [e.g. corporate email, required corporate training (e.g. ethics, security), and performance evaluations]. c. The total hours of non-training absences for any part-time FTE shall be reduced proportionately per base hours specified in (a).
d. Total training hours shall be 40 hours per year unless otherwise agreed to by Customer. For the purpose of this Section 3.3.6, training hours refers to training that enhances that job skills and capabilities of the FTE in providing the Services. For the avoidance of doubt, training hours shall not include administrative or other training not directly related to providing the Services.
In the event a credit is due to Customer pursuant to this Section, Service Provider will credit the prorated Fees for the applicable FTE in the upcoming monthly invoice.
Customer may within thirty (30) days from Effective Date identify specific FTEs which will be removed from on-boarding at Service Commencement and corresponding credits will be applied to the Base Fees, as identified in Schedule 5 Section 3.3.6. Customer removed FTEs shall be added to the Services through the Change Control Procedures.
3.4 [Reserved]
3.5 [Reserved]
4. ARCs Ceiling and RRCs Floor
ARC Ceilings and RRC Floors are established to provide a means to evaluate and adjust pricing if there are dramatic shifts in Resource Unit usage volumes over a sustained period. In the event that the Resource Unit usage is greater than the ARC Ceiling or less than the RRC Floor for a period of two (2) Schedule 5 – Fees
consecutive months, the Parties agree to mutually review and may renegotiate such applicable Resource Unit items such as Base Fees, Baseline Volumes, ARC Rates and RRC Rates.
The following ARC Ceiling and RRC Floor identifies the factors that are to be used in calculating whether Resource Unit usage has exceeded an ARC Ceiling or RRC Floor. The ARC Ceiling is to be calculated by multiplying the Baseline Volume of the Resource Unit by the sum of 1.00 plus the ARC Ceiling percentage where ARC Ceiling percentage will be 25% of the Baseline Volume for the Resource Unit.
The RRC Floor is to be calculated by multiplying the Baseline Volume of the Resource Unit by the sum of
1.00 less the RRC Floor percentage where RRC Floor percentage will be 25% of the Baseline Volume for the Resource Unit.
Immediately following the second consecutive month that a Resource Unit usage exceeds the ARC Ceiling or falls below the RRC Floor, the Parties agree to negotiate in good faith an equitable adjustment to such Resource Unit items within thirty (30) days. Any adjustments to pricing (ARC, RRC, Base Fees, Baseline Volumes, ARC Ceilings, RRC Floors, and Dead Band) shall become effective on the date when the Parties execute an amendment to reflect it. Notwithstanding the foregoing, until a mutual agreement is reached by the Parties on making adjustments to the Resource Unit items referenced above, the thenexisting ARCs and RRCs will continue in effect.
5. Expenses and Fees
5.1 Retained Expenses
Customer agrees to pay the expenses listed in Schedule 30 Financial Responsibility Matrix identified as Customer’s responsibility, and as otherwise specified by the Agreement or agreed to from time to time in writing.
5.2 Travel and Living Expenses
Service Provider will seek to limit travel costs by utilizing local or regional resources when possible and will make efforts to limit travel to specialized resources whenever feasible. Customer will reimburse actual travel and living expenses for Contract Staff identified in Schedule 30 Financial Responsibility Matrix with prior written consent from Customer, in connection with the performance of Services. Travel expenses as applicable for the preceding month will be included in the monthly invoice. Invoices shall describe reimbursable expenses in reasonable detail. Service Provider shall provide backup documentation including receipts for all reimbursable travel and living expenses. Travel, living and other expenses shall comply with Customer’s written policies.
5.3 Pass-Through Orders
A Pass-Through Order consists of third party products or services, or both, which shall be provided on a pass-through basis, (individually a “Third Party Product” or a “Third Party Service” and collectively “Third Party Items.”). Pass-Through Orders may not be placed for items included in the Services. PassThrough Orders may be placed for items such as specialized IT consulting services. The total value of all Pass-Through Orders in a Contract Year, on which Service Provider will not add any mark-up or administrative fees, shall not exceed $90,000.00 USD, unless otherwise agreed by Service Provider, prorated for Contract Years of less than 12 months. If agreed by Service Provider, Pass-Through Orders accepted in excess of the annual Contract Year limit will be subject to a 5% administrative fee. Pass Though Orders shall not include any Pass-Through Expenses identified in Schedule 5, Exhibit 1 at the time of contract signing.
These Third Party Item(s) are included in the Pass-Through Order solely as a convenience to Customer to acquire the Third Party Item(s). By signing the Pass-Through Order, Customer authorizes Service Provider to order each Third Party Item for provision to the Customer by the applicable vendor. Service Provider has alliances with certain third party product and service vendors. As part of any such alliance relationship, Service Provider may be entitled to receive from these vendors certain fees, discounts, or Schedule 5 – Fees
applicable price in the Pass
descriptions of their vendor. Service Provider will invoice Customer for each Third Party Item at the The Third Party Item(s) shall be governed solely by the standard terms, conditions and service Third Party Item(s).
other financial benefits. Customer acknowledges that Service Provider may receive these benefits for the -Through Order. Service Provider shall invoice Customer for each Third Party Pass
pay the vendor after Service Provider receives Customer’s payment. Vendor must agree in advance of will be due and payable to Service Provider upon receipt of the Third Party Items. Service Provider shall Product on shipment and for each Third Party Service in advance of the service. The undisputed invoices -Through Order placement to be paid after Service Provider is paid by Customer and agree that Provider has no responsibility for the Third Party Items, which Service Provider provides on a pass Customer is responsible for any dispute concerning a Third Party Item(s). Customer agrees that Service -
5.4 Item.
through, AS IS basis, and Customer agrees to look solely to the applicable vendor for each Third Party Overtime and Weekend Pay
Customer agrees to pay overtime rates based on industry standards only for non-exempt Service Provider employees performing project work on an hourly basis for Contract Staff work in excess of standard business hours of the Customer. The standard business hours of Customer are 7:00 am – 7:00 pm Pacific Time, Monday through Friday. Overtime pay may be claimed by Service Provider only with written consent from Customer in advance of anticipated overtime hours.
5.5 [Reserved]
5.6 Contract Rate Card
Contract Rate Card is set forth in Exhibit 1 to Schedule 5 (Rate Card worksheet).
6. Termination for Convenience Fees
Customer agrees to pay Termination for Convenience set forth in Exhibit 1 to Schedule 5, in accordance with Section 15.4 of the Agreement.
7. Estimated Allocation of Project Hours per FTE
Onsite FTEs shall perform both Project Utilization and Operational Utilization based work. The estimated percentage of time allocated for Project Utilization work for each onsite FTE is provided in Exhibit 1 to Schedule 5. If the actual percentage of time performing project work per quarter is materially lower than
8. resolve in accordance with Section 21 of the Agreement. writing to the Customer. If the Customer is not satisfied that the variations is justified, the Parties shall the estimated percentage of time allocated for project work, Service Provider shall justify the variation in FTE Role Descriptions
Job descriptions for FTEs are provided in the attached file.
Schedule 5 Fees -
FTE Role Description
Summary Charges 2026 - 6 Months 2027 - 12 Months 2028 - 12 Months Total 30 Months Jan 1 2026 until
Jun 30 2026
Jul 1 2026 until
Jun 30 2027
Jul 1 2027 until
Jun 30 2028
Enterprise Compute Services 622,185 $ 1,302,231 $ 1,235,167 $ 3,159,584 $ Fixed Fee Services $ - - $ - $ $ -Data Center Services $ 788,823 377,325 $ 739,070 $ 1,905,217 $ Network Services $ 333,408 154,861 $ 316,097 $ 804,366 $ Security Services $ 180,000 90,000 $ 180,000 $ 450,000 $ End-User Services 355,958 $ 649,659 $ 524,351 $ 1,529,968 $ Fixed Fee End-User Services $ 141,214 64,036 $ 135,133 $ 340,382 $ Service Desk Services $ 508,446 291,922 $ 389,218 $ 1,189,586 $ Total 978,143 $ 1,951,890 $ 1,759,518 $ 4,689,551 $
Key Role Positions 1,131,041 $ 2,262,081 $ 2,262,081 $ 5,655,203 $ Non-Key Role Positions - Enterprise Compute 455,917 $ 911,833 $ 911,833 $ 2,279,583 $ Non-Key Role Positions - End-User 985,679 $ 1,971,357 $ 1,971,357 $ 4,928,393 $ Non-Key Role Positions - Applications 1,459,955 $ 2,919,909 $ 2,919,909 $ 7,299,773 $ Total 4,032,590 $ 8,065,181 $ 8,065,181 $ 20,162,952 $
Transformation Projects Implementation 963,169 $ - $ - $ 963,169 $ Total 963,169 $ - $ - $ 963,169 $
Enterprise Compute Services 1,078,102 $ 2,214,064 $ 2,147,000 $ 5,439,166 $ Service Desk Services 291,922 $ 508,446 $ 389,218 $ 1,189,586 $ End User Services 1,049,714 $ 2,112,571 $ 2,106,490 $ 5,268,775 $ Application Services 1,459,955 $ 2,919,909 $ 2,919,909 $ 7,299,773 $ Key Roles 1,131,041 $ 2,262,081 $ 2,262,081 $ 5,655,203 $ Mandatory Implementation Projects 963,169 $ - $ - $ 963,169 $ Estimated Pass-Through Expenses - $ - $ - $ - $
Total 5,973,902 $ 10,017,071 $ 9,824,699 $ 25,815,672 $ Total RU Baseline Fees, Labor Baseline Fees, Additional Services Fees and Estimated Pass-Through Expenses Recurring Fees
CONFIDENTIAL
Schedule 5, Exhibit 1
Pricing
Summary Charges
Resource Unit Baseline Fees
Labor Baseline Fees
Mandatory Implementation Projects
30 Months Contract
SCHEDULE 6
BENCHMARKING
TO
MASTER SERVICES AGREEMENT
BY AND BETWEEN
CITY OF SANTA CLARA
AND
SERVICE PROVIDER
i
Table of Contents
1.0 Definitions ..........................................................................................................................1
2.0 Appointment of Benchmarker...............................................................................................2
3.0 Scope of Benchmark ...........................................................................................................2
4.0 Timing and Frequency of Benchmark....................................................................................2
5.0 Benchmarking Methodology...........................................................................................................2
6.0 Cooperation with Benchmarker ............................................................................................2
7.0 Costs of Benchmark............................................................................................................3
8.0 Benchmark Process ............................................................................................................3
9.0 Remedies...........................................................................................................................4
This is Schedule 6 (Benchmarking) to the Master Services Agreement between Customer and Service Provider. Unless otherwise expressly defined herein, capitalized terms used herein shall have the meanings assigned to them in the Master Services Agreement.
Schedule 6 sets forth the roles and responsibilities of the Parties in connection with the benchmarking of Service Provider’s Services and Fees.
1. Definitions
a. “Adjustment Date” is defined in Section 8(b) herein. b. “Benchmark” means an analytical study to compare the cost and quality of specific processes with respect to services received by a customer with those of selected Comparators.
c. “Benchmark Commencement Date” is defined in Section 8(a) herein. d. “Benchmarked Service” means the Services that Customer elects to include in the Benchmark Process. The scope of Benchmarked Services shall be determined by Customer, and may include any subset of the Services (including any Service Tower or a more granular subset of Services), and may also be limited geographically to a global level, regional or local level based on where such Services are performed and/or delivered.
e. “Benchmarker” means the independent third party appointed by Customer, pursuant to Section 2, to conduct the Benchmark Process.
f. “Benchmark Notice Date” is defined in Section 8(a) herein. g. “Benchmark Process” means the objective measurement and comparison process and methodology used by the Benchmarker to conduct the Benchmark. h. “Benchmark Report” means the Benchmarker's written report of the results of the Benchmark Process, including any appropriate supporting documentation. i. “Comparators” means the other outsourced organizations (including, without limitation, private companies, public entities, NGOs and not for profit entities that may be customers of Vendor or other third party outsourcing service providers) receiving services from third party service providers similar to the Service Provider, that are similar to the Services under the Agreement, and which are used as comparison points for the purposes of the Benchmark.
2. Appointment of Benchmarker
Customer shall have the right to conduct (or have conducted) a Benchmark under this Agreement to ensure that the Fees and/or Services (including Service Levels) are competitive with those charged or provided to the Comparators.
The Parties shall mutually agree to the appointment of a Benchmarker.
3. Scope of Benchmark
a. Benchmark of Fees. Customer may request a Benchmark for all or any portion of the Fees charged by Service Provider for all or any portion of the scope of Services under this Agreement.
b. Benchmark of Services. Customer may request a Benchmark for all or any portion of the Services used by Customer under the Agreement. Furthermore, Customer may define the scope of the Benchmarked Services to include any Service Tower, or any other granular subset of the Services.
4. Timing and Frequency of Benchmark
Starting 12 months after the beginning of the Term, Customer shall have the right to conduct a Benchmark of each Service Tower on an annual basis, but no more than one time per each rolling twelve (12) month cycle.
5. Benchmarking Methodology
The Benchmarker will normalize all data to obtain relevant comparisons with respect to the Comparators for purposes of the Benchmark. The Parties shall rely on the Benchmarker’s standard Benchmark Process and methodology, including standard normalization criteria, as well as unique normalization criteria to the extent applicable, which shall include, but not be limited to, the following:
a. data from a statistically significant sample of the Comparators; b. geographic scope for the Fees and/or Service Levels that are the subject of the Benchmark;
c. the nature, type and volume of the services received and the respective service environments, including the hardware or software used to provide the subject Benchmarked Services
d. skill sets and experience levels of Service Provider Contract Staff providing the Services, including but not limited to Key Service Provider Personnel; and e. relevant contractual terms and conditions.
Each Party may provide reasonable suggestions to the Benchmarker regarding normalization and other relevant Benchmarking criteria that may comprise the Benchmark Process. The Benchmarker shall reasonably incorporate such suggestions with respect to the Benchmarking Process; and provided further that Benchmark Commencement Date shall not be adjusted or delayed unless Customer has agreed in writing.
6. Cooperation with Benchmarker
Service Provider agrees that it shall act in good faith and comply fully and promptly with requests by the Benchmarker relating to the Benchmarking Process, including requests for information, reports, data and access to personnel. Service Provider shall not delay, impede, obstruct or otherwise frustrate or prevent the Benchmarker from obtaining the information required to complete the analysis.
7. Costs of Benchmark
Customer and the Service Provider shall equally split all fees and charges reasonably owed to the Benchmarker, which fees and charges shall generally be determined and agreed in advance of the Benchmark. Service Provider shall participate and cooperate fully and promptly with the Benchmarker and shall pay its own costs, including without limitation the use of Service Provider and Service Provider’s Subcontractors’ labor, associated with such participation and cooperation.
8. Benchmark Process
a. During the Term of the Agreement, if Customer elects to conduct a Benchmark, Customer shall notify the Benchmarker and Service Provider in writing, and the date of such written notice shall be known as the Benchmark Notice Date. The Benchmarker shall commence the Benchmarking Process within thirty (30) days following the Benchmark Notice Date (“Benchmark Commencement Date”), unless otherwise agreed by the Parties. The Benchmarker shall notify Customer and Service Provider upon the completion of the Benchmark Report, and the Parties shall meet to discuss such report within ten (10) business days following its completion.
b. If the Benchmark Report indicates that the Fees charged to Customer are more than one hundred five percent (105%) of the average price point (i.e., 5% higher than the average fee charged to the Comparators), then Customer shall be entitled to an automatic adjustment of its Fees to a price that is within 5% of the average fees charged to the Comparators. Such adjustment of Fees shall be made within thirty (30) days following the completion of the Benchmark Report, and shall be made effective on a date that shall be no later than three (3) months following the Benchmark Notice Date (hereinafter the “Adjustment Date”).
By way of example, assume there are 12 Comparators in a Benchmark study. For example, see the table below:
Comparator 1 $1 million
Comparator 2 $2 million
Comparator 3 $3 million
Comparator 4 $4 million
Comparator 5 $5 million
Comparator 6 $6 million
Comparator 7 $7 million
Comparator 8 $8 million
Comparator 9 $9 million
Comparator 10 $10 million
Comparator 11 $11 million
Comparator 12 $12 million
In this example, the average price point of the Comparators is $6.5 million. If Service Provider’s price point exceeds the average price by more than 5% (i.e., greater than $6,825,000) then
Service Provider will be required to adjust its fees to a price point that is less than or equal to $6,825,000 million.
c. If the Benchmark Report indicates that the Services (including Service Levels) provided to Customer do not meet the standard for the Comparators (e.g., the absence of Service Levels that are standard for the Comparators, or Service Level targets that are below the average threshold for the Comparators receiving similar Services), then the Parties shall discuss and agree upon an adjustment to the scope of Services (including the addition of Service Levels or adjustment to Service Level targets), and such adjustment shall be made within thirty (30) days following the completion of the Benchmark Report, and shall be made effective as of the Adjustment Date.
For clarity, if the Benchmark is not concluded and/or the Parties do not reach agreement on an adjustment to Fees and/or scope of Services (including Service Levels) until after Adjustment Date, all such changes shall be made retroactive to the Adjustment Date.
9. Remedies
a. Failure to Cooperate with Benchmarker. If the Service Provider fails to reasonably cooperate with the Benchmarker, including, without limitation, a failure to provide requested information, reports, data or access to personnel, and such acts or omissions result in a delay of the completion of the Benchmark that exceeds ninety (90) days following the Adjustment Date, the Service Provider shall be deemed to be in material default of the Agreement, and Customer shall, at its option, be entitled to (i) an automatic reduction in the Fees of ten percent (10%), which change shall be made retroactively effective to the Adjustment Date; or (ii) terminate the Agreement, either in whole or in part, or the affected scope of Services, in whole or in part, without liability and without the payment of any termination fees.
Reasonable cooperation with the Benchmarker shall not include a requirement of the Service Provider to disclose its costs and/or profits to provide the Services to the City or services to its other customers to the Benchmarker. b. Failure to Agree to Fees or Service Level Adjustment. If, following the completion of the Benchmark Report, Service Provider refuses to make adjustments to Fees and/or Services (including Service Levels), or fails to reach agreement with Customer on such adjustments within ninety (90) days following the Adjustment Date, Service Provider shall be deemed to be in material default of the Agreement, and Customer shall be entitled to terminate the Agreement, either in whole or in part, or the affected scope of Services, in whole or in part, without liability and without the payment of any termination fees.
SCHEDULE 9
RESERVED
to the
IT MANAGED SERVICES AGREEMENT
between
THE CITY OF SANTA CLARA
and
UNISYS CORPORATION
Schedule 9 – Reserved`
[RESERVED]
SCHEDULE 10
SECURITY PROTOCOL
TO
MASTER SERVICES AGREEMENT
BY AND BETWEEN
CITY OF SANTA CLARA
AND
SERVICE PROVIDER
Schedule 10 – Security Protocol
Table of Contents
1. Goal.................................................................................................................................... 3
2. Risk Assessment ................................................................................................................ 3
3. System Changes................................................................................................................. 3
4. Training and Education...................................................................................................... 4
5. Agents and Subcontractors ................................................................................................ 4
6. Regular Testing and Monitoring of Compliance ............................................................... 4
7. Incident Response .............................................................................................................. 4
8. Periodic Adjustment........................................................................................................... 5
9. Review by Customer.......................................................................................................... 5
10. Audits and Verification...................................................................................................... 5
11. Access to Documents......................................................................................................... 6
12. Use of Customer Resources, Non-confidential Nature of Information On Customer Equipment ......................................................................................................... 6 Schedule 10 – Security Protocol
Schedule 10
Security Protocol
1. Goal
a) The goal of all of Customer’s security plans and procedures as available in respect of Customer’s various operations (“Customer Security Plans”) is to protect Customer’s people and information assets in a safe, practical and cost-efficient manner, while not impeding the productivity or efficiency in the daily conduct of Customer’s business processes. b) Customer Security Plans, as available and if and as revised from time to time, shall form a part of the Procedures Manual (which may be subject to Change Control Procedures). As set out in Section 5.5 of the Agreement, Service Provider shall comply with the Procedures Manual, including the Customer Security Plans, throughout the duration it provides Services to Customer. In pursuance of such compliance, Service Provider agrees and understands that if required, it shall apply the necessary controls to develop, modify or acquire systems to preserve the integrity of the information processed on its systems. c) Service Provider shall ensure compliance with the Customer Security Plans by all users of Customer information including, without limitation, Service Provider employees, officers, directors, agents, associates, consultants/contractors, temporary workers and any third-party processors of Customer Data.
2. Risk Assessment
Service Provider shall perform regular risk assessments (“Risk Assessments”), no less than annually, of its compliance with the Customer Security Plans to:
a) Identify foreseeable internal and external threats pursuant to Service Provider’s operations that could result in unauthorized access, disclosure, misuse, alteration, or destruction of any of the Customer Data;
b) Assess the likelihood and potential damage of these threats, taking into consideration the sensitivity of the Customer Data (and any special risks or issues identified by Customer); and c) Assess the sufficiency of the policies, procedures, information systems, technology, and other arrangements that Service Provider has in place to control such risks.
If applicable, Service Provider shall, based on a mutually agreed timeline after completion of Risk Assessment, revise its own security plans and its operations, including its provision of the Services, to manage and control the risks identified during the Risk Assessment; provided however, any Customer specific controls required as a result of Customer’s risk assessment shall be addressed pursuant to the terms of Schedule 27. Service Provider shall, immediately upon completion of such revision, provide a report to Customer detailing therein the outcome of the Risk Assessment and the revisions adopted pursuant to such a Risk Assessment.
3. System Changes
Service Provider shall make no system change, nor implement any modification of its own security plans, that (i) may adversely affect the security of the System or the security of the Customer Data or other data created, processed, or stored by Service Provider for Customer, (ii) requires Customer to install a new version, release or upgrade of, or replacement for, any hardware or software or to modify any hardware or Schedule 10 – Security Protocol
software, or (iii) requires Customer to pay any additional amount for the Services, in each case without first obtaining Customer’s approval in accordance with, or as otherwise contemplated under, the Change Control Procedures set forth in Schedule 14.
4. Training and Education
Service Provider shall institute an appropriate training and education program designed to train its employees to implement and comply with the Customer Security Plans, and designed to ensure that they are adequately aware of their responsibilities pursuant to Service Provider’s compliance obligations with respect to the Customer Security Plans. Service Provider shall be responsible for training Service Provider’s employees and subcontractors, of any tier, who have access to any Customer information technology system, in current Customer certification programs, which may be amended, revised, or replaced, from time to time, concerning Customer’s information security policies.
5. Agents and Subcontractors
Whenever Service Provider is authorized by Customer to use agents or subcontractors to provide the Services under this Agreement, Service Provider shall:
a) Exercise appropriate due diligence in selecting its agents and contractors consistent with the requirements of the Customer Security Plans and this Schedule. b) Require its agents and subcontractors by contract to implement and regularly test appropriate measures designed to meet the objectives of the Customer Security Plans and this Schedule.
c) Monitor its agents and subcontractors to confirm that they have satisfied such obligations. d) Ensure that its agents and subcontractors comply with Section 11 below with respect to the portion of the Services that they perform on behalf of Service Provider, except as Customer may otherwise agree.
6. Regular Testing and Monitoring of Compliance
In addition to the requirements set forth in Section 10 below, Service Provider shall regularly test the key controls, systems, and procedures of its security plans and for its compliance with the Customer Security Plans (including as applicable to its subcontractors) to cause them to be properly implemented and effective in addressing the threats and risks identified. The frequency and nature of such tests should be determined by the Service Provider’s Risk Assessment. Tests should be conducted or reviewed by staff independent of those that develop or maintain Service Provider’s security plans and its compliance with the Customer Security Plans; provided however, any Customer specific controls required as a result of Customer’s testing and monitoring of compliance shall be addressed pursuant to the terms of Schedule 27.
Service Provider shall also monitor compliance with its security plans and the Customer Security Plans, both internally and by its subcontractors.
7. Incident Response
Service Provider shall develop and implement (and require its subcontractors to develop and implement) appropriate incident response plans that specify actions to be taken when Service Provider, a Subcontractor or Customer suspects or detects that unauthorized individuals have gained access to Customer Data or Systems relating thereto, including appropriate reports to regulatory and law enforcement agencies to be made by Service Provider with Customer’s consent or direction. Such incident Schedule 10 – Security Protocol
response plan shall include notification, management, and response procedures to be followed in case of any security incidents or any suspected unusual activity that may represent a potential security threat, such as virus activity, use of information systems in connection with a denial of service attack, system hacking, theft or destruction of data or other unusual activities or network traffic. In the event Service Provider or a Subcontractor discovers, suspects, or is notified of a breach, potential breach, or risk of breach of security relating to any Customer Data, Service Provider shall promptly notify Customer of such breach, potential breach, or risk of breach. Service Provider shall provide Customer all documents related to any breach of security promptly at Customer’s request. Service Provider shall fully cooperate with any Customer investigation of such breach, potential breach or risk of breach. Service Provider shall immediately investigate and in cases where Service Provider’s account team is capable of directly resolving an Incident, immediately cure any such breach that occurs within Service Provider’s obligations under the Agreement. Customer will review the remediation by Service Provider.
8. Periodic Adjustment
Service Provider shall regularly monitor, evaluate, and adjust, as appropriate, its security plans and its compliance with Customer Security Plans in light of any relevant changes in applicable law and regulations, technology, the sensitivity of the Customer Data, internal or external threats to the Customer Data, requests from Customer, and Service Provider’s own changing business arrangements, such as mergers and acquisitions, alliances and joint ventures, outsourcing arrangements, and changes to information systems.
9. Review by Customer
Service Provider shall provide Customer the right to review its security plans, together with operating documentation and other relevant documentation, upon Customer’s request.
10.Audits and Verification
a) Service Provider SSAE 16 Report. Service Provider shall have its security plans and its compliance with Customer Security Plans audited on an annual basis by a reputable and nationally recognized audit firm to review and test the design and operating effectiveness of the security measures adopted, identify any weaknesses or deficiencies of the security measures and alternative or additional measures that must be implemented, and determine whether Service Provider is achieving the control objectives of its security plans and the Customer Security Plans. Customer understands and accepts that Service Provider may (i) perform and report on such security audits in combination with and as part of the SSAE 16 control audits that Service Provider performs to satisfy its own Sarbanes- Oxley compliance requirements and (ii) provide such report to other customers as described in the Agreement.
No portion of this Schedule 10 shall be construed to preempt applicable Laws; rather, the requirements of this Schedule 10 and the Customer Security Plans are an additional layer of protection to Customer, and are to be administered in addition to the requirements of applicable Law.
b) Service Provider Certifications. Upon request, and at such reasonable intervals as Customer or its auditors may specify, but no less than quarterly, an appropriate officer of Service Provider will certify to Customer that, to the best of his or her knowledge, after reasonable inquiry: (i) Service Provider has reported all breaches of security, suspected fraud or other irregularities or reportable incidents that may constitute violations of its security plans, the Customer Security Plans and / or this Schedule; (ii) Service Provider has reported to Customer all apparent material weaknesses and deficiencies in the security measures Schedule 10 – Security Protocol
contemplated under its own security plans, and in its compliance of the Customer Security Plans and this Schedule; and (iii) make such other factual certifications concerning its security plans, the Security Integration Plan and this Schedule as Customer or its auditors may reasonably request.
c) Customer Audits. Upon forty-five (45) days' prior notice from Customer, unless shorter notice is required by exigent circumstances, and subject to all applicable confidentiality obligations agreed to by Customer and Service Provider, Service Provider will provide, and will cause its agents or subcontractors to provide, Customer or any Customer representative (other than a Service Provider competitor), with access to such facilities, records and supporting documentation as may be requested by Customer in order to audit Service Provider's compliance with its obligations under or related to the Customer Security Plans and / or this Schedule.
11.Access to Documents
Service Provider shall provide Customer with access to all documents and records maintained by Service Provider in relation to its security plans, this Schedule and its compliance with the Customer Security Plans on a mutually agreeable schedule and at a mutually agreeable location.
12. Use of Customer Resources, Non-confidential Nature of Information On Customer Equipment
All onsite Contract Staff will comply with the City Manager’s Directive Procedure “CMD 116 Use of Resources, Non-Confidential Nature of Information”.
SCHEDULE 11
ACCEPTANCE PROCEDURES
to the
IT MANAGED SERVICES AGREEMENT
between
THE CITY OF SANTA CLARA
and
UNISYS CORPORATION
Schedule 11 – Acceptance Procedures
Service Provider shall perform, complete, and deliver Deliverables and Milestones to Customer for Customer’s acceptance, to include but not limited to Transition Deliverables and Milestones, in accordance with the terms and conditions of an applicable Statement of Work, Project Plan, Transition Plan, or other Agreement document pursuant to the PMO methodology described on the IT InSite Portal (or as otherwise agreed) and the following procedure:
1. The Parties will mutually agree upon applicable, detailed acceptance criteria with respect to each Deliverable and Milestone as soon as practicably possible.
2. Upon receipt by Customer of a Deliverable or notice of completion of a Milestone from Service Provider, Customer will review the Deliverable or Milestone to verify that it complies with the applicable and previously agreed acceptance criteria.
3. If the Deliverable complies with the acceptance criteria, Customer shall provide notice of Customer’s acceptance of the Deliverable or Milestone.
4. Customer will have the right to reject a Deliverable or Milestone that does not meet the applicable acceptance criteria. Customer shall inform Service Provider of such rejection in writing within ten (10) business days from the date of delivery thereof by Service Provider, or as mutually agreed to by the Parties, describing the deficiencies with respect to the applicable acceptance criteria in reasonably sufficient detail.
5. If Customer notifies Service Provider that a Deliverable or Milestone is not accepted, and Service Provider is able to identify or reproduce the stated deficiencies, Service Provider shall correct such deficiencies and redeliver the affected Deliverable or Milestone within five (5) business days from the date of Customer’s notice unless the Parties mutually agree that such correction reasonably requires a longer timeframe.
6. Upon Service Provider’s redelivery of the affected Deliverable or Milestone, Customer shall inform Service Provider of its acceptance or rejection with respect to Service Provider’s correction of Customer’s previously described deficiencies in writing within five (5) business days from the date of Service Provider’s redelivery thereof.
7. Should Customer not accept a Deliverable or Milestone within the two (2) review periods described above, or within additional review periods as mutually agreed by the Parties, and Service Provider reasonably and in good faith believes that the finally delivered Deliverable or Milestone corrects the Customer’s initially described deficiencies with respect to the applicable acceptance criteria, the Parties shall promptly escalate the matter for resolution in accordance with the dispute resolution procedure set forth in Schedule 17, Governance Model, and Article 21 of the Agreement.
8. Should Customer not provide its acceptance or rejection of a Deliverable or Milestone within the timeframes associated with a review period, or otherwise provide Service Provider with a reasonable rationale for an extended review period, the Deliverable or Milestone will be deemed accepted.
9. Should Customer not provide its acceptance or rejection of a Deliverable or Milestone within the timeframes associated with a review period, or otherwise provide Service Provider with a reasonable rationale for an extended review period the Parties shall promptly escalate the matter for resolution in accordance with the dispute resolution procedure set forth in Schedule 17, Governance Model, and Article 21 of the Agreement.
10. No such activities shall be deemed completed until all acceptance criteria, whether set forth in the Agreement or set forth in any Schedule thereto or otherwise mutually agreed upon by the Parties in writing, have been successfully met.
SCHEDULE 12
RESERVED
to the
IT MANAGED SERVICES AGREEMENT
between
THE CITY OF SANTA CLARA
and
UNISYS CORPORATION
Schedule 12 – Reserved`
[RESERVED]
SCHEDULE 13
RESERVED
to the
IT MANAGED SERVICES AGREEMENT
between
THE CITY OF SANTA CLARA
and
UNISYS CORPORATION
Schedule 13 – Reserved`
[RESERVED]
SCHEDULE 14
CHANGE CONTROL PROCEDURES
TO
MASTER SERVICES AGREEMENT
BY AND BETWEEN
CITY OF SANTA CLARA
AND
SERVICE PROVIDER
Schedule 14 – Change Control Procedures
Table of Contents
1. INTRODUCTION....................................................................................................................................... 3
2. CHANGE CONTROL................................................................................................................................ 3
3. EFFECTIVE DATE OF A CHANGE....................................................................................................... 6
4. CHANGE MANAGEMENT REPORTING REQUIREMENTS............................................................ 6
5. FAILURE TO AGREE............................................................................................................................... 7
6. EMERGENCY CHANGE PROCESS; CHANGES TO COMPLY WITH LAWS............................... 7
7. CHANGE REQUEST LOG ....................................................................................................................... 7 Schedule 14 – Change Control Procedures
Schedule 14
Change Control Procedures
1. Introduction
This Change Control Schedule describes the process ("Change Control") to be followed by Customer and Service Provider when either Party wishes to make a Change. The Parties may by joint written agreement amend or waive any part of the Change Control process including, but not limited to, where the Parties agree that shorter or longer timeframes are more appropriate, provided that any modifications to the Change Control process are recorded in a Change Proposal (as such term is defined in Section 2.3(b) below) and such Change Proposal is allocated a unique number by Service Provider and is signed by duly authorized representatives of Customer and Service Provider.
The purposes and objectives of Change Control are as follows:
a) to review each request for a Change (a "Change Request") to determine whether such Change is appropriate;
b) to prepare a more detailed proposal to implement a Change Request where required (such proposal, a “Change Proposal”);
c) to prioritize all Change Requests and Change Proposals; d) to minimize the risk of exceeding both time and cost estimates, if any, associated with the requested Change by identifying, documenting, quantifying, controlling, managing and communicating: (i) Change Requests, (ii) the preparation of Change Proposals, and (iii) their disposition;
e) to identify the different roles, responsibilities and actions that shall be assumed and taken by the Parties to define and implement the Changes; and
f) to document a Change whether or not such Change results in any resource adjustments and/or extra Fee.
2. Change Control
2.1 Either Service Provider or Customer may initiate a Change Request by delivering to the other's Contract Executive or his/her nominated representative a writing that describes the requested Change and sets forth the reasons for it. The Customer Contract Executive shall assign a priority level to the Change Request depending on its urgency. The Service Provider Contract Executive shall assign a unique number to any such request, and shall register the Change Request in the Change Request Log as described in Section 7.1 below. Customer may at any time modify the priority level for any Change Request in its sole discretion. Each Change Proposal that may be prepared for a Change Request shall be tracked by reference to the Change Request to which it relates.
2.2 Each Party’s respective Contract Executive or his/her nominated representatives shall be responsible for reviewing and considering any Change Request. If Customer determines that the Change Request requires further investigation, the Customer Contract Executive shall authorize such investigation, which shall be performed as required by Service Provider and/or Customer. Service Provider may also further investigate any Change Request for itself, at its own expense. In Schedule 14 – Change Control Procedures
accordance with Section 7.2 below, the Contract Executives shall be responsible for keeping up to date the status of each Change Request in the Change Request Log as the status of the Change Request changes through Change Control.
2.3 For each Change Request that the Parties have approved for further investigation, regardless of which Party has proposed or investigated the Change, Service Provider shall if practicable prepare and submit to Customer within seven (7) calendar days (or as otherwise agreed) of such approval for further investigation, a preliminary written report.
Such preliminary report shall contain:
(a) the estimated costs (both charges and retained costs) associated with the Change;
(b) any anticipated impact on existing Service Levels;
(c) the timeframe for implementing the Change (including any timing constraints);
(d) the preliminary technical or business case for making the Change, as well as any changes or additions to policies, standards and procedures of Service Provider and or Customer as the case may be, in accordance with which the Change is to be implemented;
(e) an initial analysis of the potential risks (if any) to Customer if the Change is not implemented; and
(f) an estimate of time for preparing a comprehensive Change Proposal containing the information and analysis set forth in Section 2.3(ii) below (the “Estimate”).
Service Provider shall bear the costs of preparing the preliminary report, estimate and Change Proposal as set forth in this Section 2.3(a), and shall provide such report as part of the Services.
Customer and Service Provider shall review the preliminary report and Customer shall, within seven (7) calendar days after delivery of such preliminary report in writing, either (1) instruct Service Provider to prepare a comprehensive Change Proposal as set forth in this Section 2.3(b), (2) notify the Service Provider that it does not wish to proceed with the Change, or (3) proceed with the Change on mutually- agreed terms. Where Customer has instructed Service Provider to prepare a comprehensive Change Proposal, thirty (30) calendar days (or as otherwise agreed) after receiving such instruction, Service Provider shall prepare and deliver to Customer, at no additional charge to Customer, a Change Proposal that addresses the following elements of the Agreement, to the extent necessary and appropriate:
(i) scope of the Services;
(ii) the associated Service Levels, if any;
(iii) the Fees for the Change (i.e., fixed price/time and materials, including an estimate of total costs), if any, as well as changes to the Base Fees, if any;
(iv) timeline, milestones, delivery dates, incentives and consequences for nonperformance;
Schedule 14 – Change Control Procedures
(v) evaluation testing, development, acceptance testing period, acceptance testing and acceptance criteria (which must be included in the final Change Order for it to be valid);
(vi) Changes to Disaster Recovery/Business Continuity Services; (vii) Impacts to, additions or deletions of, Third Party Agreements; (viii) any impacts on Customer’s, Service Provider’s or any Third Party’s software, hardware, systems, business operations, personnel requirements or other services;
(ix) any related technical or human resource systems/procedures; (x) any legal and regulatory compliance issues;
(xi) any other matter requested by Customer at the time of preparation of the impact analysis or reasonably considered by Service Provider to be relevant;
(xii) the termination assistance plan;
(xiii) any additional terms and conditions applicable to the Change; (xiv) a detailed analysis of the potential risks (if any) to Customer or Service Provider if the Change Proposal is not implemented; and (xv) the proposed allocation of ownership rights in any Intellectual Property developed as part of the Change, if different from the default provisions of the Agreement.
2.4 Once submitted by Service Provider, Customer shall review the Change Proposal and as soon as reasonably practicable, and in any event not more than thirty (30) calendar days (or as otherwise agreed) after receipt of the Change Proposal, either:
a) Customer may accept the Change Proposal in which case the Change Proposal shall be signed by the Contract Executives and the Change incorporated in accordance with Section 3.0 below; b) Customer may notify Service Provider that it does not wish to proceed with the Change, in which case no further action shall be taken in respect of the Change Proposal; or c) Customer may request that the Parties meet to discuss the Change Proposal (such meeting to be referred to as the "Change Proposal Meeting").
2.5 At the Change Proposal Meeting, the Parties shall use reasonable endeavors to agree to either:
(a) take no further action in respect of the proposed Change, in which case no further action shall be taken in respect of the Change Proposal;
(b) acquire further information before deciding whether to proceed with the Change; (c) amend some or all of the contents of the Change Proposal, which Service Provider will incorporate into a revised version of the Change Proposal; or (d) proceed with the Change as detailed in the Change Proposal in which case the Change Proposal shall be signed and the Change incorporated in accordance with Section 3.0 below.
Schedule 14 – Change Control Procedures
2.6 In the event that the Parties agree to proceed in accordance with one of the options detailed in Section 2.5(b) or 2.5(c) above, then the Parties shall gather any necessary information and/or Service Provider shall prepare a revised version of the relevant Change Proposal, upon which the Parties shall decide whether to proceed in accordance with Section 2.5(a)-(c) above. The Parties shall continue to go through the process detailed above until such time as a final resolution is made by the Parties. The Parties shall act in good faith at all times during such process.
2.7 If the Parties’ Contract Executives agree to a Change prior to any investigation conducted by either Party, unless otherwise agreed by the Parties, Service Provider shall in any event prepare a Change Proposal in accordance with Section 2.3 above and submit such Change Proposal for review and approval in accordance with Section 2.4 above.
2.8 The Parties anticipate that not all Changes will result in increases to the Base Fees.
Nevertheless, the Parties intend that all material Changes will be processed in accordance with these Change Control Procedures. Service Provider and Customer will determine, in good faith, whether a change will result in an increase or decrease to the Fees in accordance with the Change Control Procedures Section of the Agreement.
3. Effective Date of a Change
3.1 Upon the signature of a Change Proposal by both Parties’ Contract Executives in respect of a Change, the contents of such Change Proposal shall be deemed to be agreed and incorporated into the Agreement on the date of the last signature or as the Parties may otherwise agree. No part of the discussions or interchanges between the Parties shall obligate the Parties to approve any Change or shall constitute an amendment or waiver of the Agreement unless and until reflected in a Change Proposal and adopted in accordance with this Schedule 14.
3.2 Neither Party shall have any obligation to commence or comply with any Change, perform Services that would be covered by any Change, or pay any Fees that would be covered by any Change, until such time as the Parties’ Contract Executives have signed the appropriate Change Order. Disputes regarding a Change shall be subject to the dispute resolution process set forth in Schedule 17 of the Agreement.
3.3 Customer’s acceptance of, and payment for, work under other Change Orders will be subject to Customer’s approval that such work materially complies with the mutually agreed objective acceptance criteria during an acceptance period designated in the Change Order (or if no such acceptance period is specified in the Change Order, thirty (30) days). If Service Provider’s work under a Change Order does not materially comply with the applicable acceptance criteria for such Change Order, Service Provider will correct such work and resubmit the Change for Customer’s acceptance. If, following one or more resubmissions, Service Provider fails to fulfill its obligations to meet the Change Order acceptance criteria within a time period specified in the Change Order (or if no such period is specified in the Change Order, one hundred twenty (120) days), Customer may terminate such Change Order in accordance with the provisions of such Change Order (or if not otherwise provided in the Change Order, Customer shall be entitled to relief from further payments under such Change Order and a credit or refund (at Customer’s option) for any un-realized advance payments previously made under the Change Order).
4. Change Management Reporting Requirements
4.1 Service Provider shall provide Customer as part of the monthly reports set forth in Schedule 7 of the Agreement, a summary specifying the status of all pending Change Requests and Change Proposals.
Schedule 14 – Change Control Procedures
5. Failure to Agree
5.1 In the event that the Party initiating a Change Request believes that the requested Change is required or necessary, the requesting Party shall inform the other Party in writing of the reasons why the Change is required and the impact if it is not implemented. In the event that the other Party does not agree to implement the Change, the requesting Party shall be entitled to consider the other Party’s failure to agree to implement the Change as a dispute, and the requesting Party may escalate such Dispute for resolution in accordance with Article 21 and Schedule 17 of the Agreement.
5.2 Notwithstanding anything herein to the contrary, Service Provider shall proceed with any Change requested by Customer that is required by Law or which Customer deems necessary in its sole discretion. In the event the Parties are unable to agree upon any Change or changes to the Fee in connection with any such Change, the parties agree such dispute will be subject to the dispute resolution process set forth in Article 21 and Schedule 17 of the Agreement.
6. Emergency Change Process; Changes to Comply with Laws
6.1 In the event that either Party requires a Change in order to respond to an emergency and such Change would, in the opinion of the requesting Party, if it was not implemented until Change Control had been followed, have a detrimental effect on the requesting Party’s ability to meet its obligations pursuant to the Agreement, the requesting Party shall make all reasonable efforts to contact the other Party’s Contract Executive, and if the requesting Party is unable to contact the other Party’s Contract Executive after reasonable efforts, the requesting Party shall, where appropriate and practical, make all efforts to contact the other Party’s designated member of the Steering Committee. If the requesting Party is unable to contact either the other Party’s Contract Executive or the other Party’s designated Steering Committee member, the requesting Party may make temporary Changes to the Services without the prior consent of the other Party. The requesting Party shall notify the other Party as soon as practicable but no later than seventytwo (72) hours after the event of such Change and shall, as soon as practicable (but no later than seven (7) calendar days thereafter) document and report in writing on such Changes to the other Party. Any agreed Change as a result shall be agreed in accordance with Change Control.
Disputes regarding any extra Fees for Changes under this Section 6 are subject to Article 11 of the Agreement.
6.2 Notwithstanding the Change consideration and implementation process outlined in Sections 2 and 3 of this Schedule 14 but in all events subject to Section 5.1 above, if a Change is required to comply with applicable Law, Service Provider shall immediately begin implementing as appropriate the Change upon request by Customer. Service Provider shall also prepare and deliver to Customer a Change Proposal related to such Change on an expedited basis, where appropriate, and the Parties shall work together in good faith to determine the impact on the Agreement as a result of implementing such Change. If the Parties are unable to agree on the impact on the Agreement within thirty (30) days after Customer has received the Change Proposal from Service Provider, either Party may consider such failure to agree to be a Dispute, and may escalate such Dispute for resolution in accordance with Article 21 and Schedule 17 of the Agreement.
7. Change Request Log
7.1 Each entry made in the Change Request Log shall consist of the following fields:
Schedule 14 – Change Control Procedures
(a) serial number of the Change Request;
(b) name of the originating party;
(c) a brief description of the Change;
(d) the current status of the Change; and
(e) the date of registration of the Change Request in Change Request Log.
7.2 The status of the Change Request at any stage in Change Control shall be one of the following:
(a) raised (i.e., that the Change Request has been entered in the Change Request Log, but no Change Proposal has been issued);
(b) pending (i.e., that the Change Request has been raised and the Change Proposal has been issued);
(c) approved (i.e., awaiting implementation);
(d) in process (i.e., being implemented);
(e) closed (i.e., all implementation tasks have been completed); or (f) rejected (i.e., closed and not implemented).
SCHEDULE 15
SERVICE LOCATIONS
TO
MASTER SERVICES AGREEMENT
BY AND BETWEEN
CITY OF SANTA CLARA
AND
SERVICE PROVIDER
Schedule 15 – Service Locations
Schedule 15
Service Locations
The list of Service Locations are found in ServiceNow which shall include, but not be limited to, the locations listed below.
Schedule 15 – Service Locations
Customer Service Location Address (ALL locations in Santa Clara, CA) City Hall Complex 1500 Warburton Avenue, Santa Clara, CA Communications/EOC 1990 Walsh Avenue, Santa Clara, CA
Fire Station 1/Fire HQ + Annex 777 Benton Street, Santa Clara, CA Fire Station 2 1900 Walsh Avenue, Santa Clara, CA
Fire Station 3 2821 Homestead Road, Santa Clara, CA
Fire Station 4 2323 Pruneridge Avenue, Santa Clara, CA
Fire Station 5 1912 Bowers Avenue, Santa Clara, CA
Fire Station 6 3575 De La Cruz Boulevard, Santa Clara, CA Fire Station 7 3495 Benton Street, Santa Clara, CA
Fire Station 8 2400 Agnew Road, Santa Clara, CA
Fire Station 9 3011 Corvin Drive, Santa Clara, CA
Fire Station 10 5111 Stars & Stripes Way, Santa Clara, CA Fire Training Center 1900 Walsh Avenue, Santa Clara, CA Police HQ 601 El Camino Real, Santa Clara, CA
Community Services 1500 Warburton Avenue, Santa Clara, CA Utility Corp Yard 1705 Martin Avenue, Santa Clara, CA
Street Corp Yard 1700 Walsh Avenue, Santa Clara, CA
Bldg Maintenance 2796 Lafayette Street, Santa Clara, CA Central Library 2635 Homestead Road, Santa Clara, CA
Mission Library 1098 Lexington Avenue, Santa Clara, CA
Parks Service Center 2600 Benton Street, Santa Clara, CA Mission City Memorial Park 420 N. Winchester Boulevard, Santa Clara, CA Community Rec. Center 969 Kiely Boulevard, Santa Clara, CA International Swim Center 2625 Patricia Drive, Santa Clara, CA Senior Citizens Center 1303 Fremont Street, Santa Clara, CA Youth Activity Center 2450 Cabrillo Avenue, Santa Clara, CA Teen Center 2446 Cabrillo Avenue Santa Clara, CA
Henry Schmidt Park 555 Los Padres Boulevard, Santa Clara, CA ITD Main Office 1405 Civic Center Dr Santa Clara, CA
SVP 881 Martin Ave, Santa Clara, CA
Police Sub Station 3992 Rivermark Pkwy Santa Clara, CA
Northside Library 695 Moreland Way, Santa Clara, CA
Levi Stadium 4900 Marie P. DeBartolo Way Santa Clara, CA Tasman Parking Garage 2525 Tasman Dr., Santa Clara, CA
Santa Clara Youth Soccer
Park
5049 Centennial Blvd., Santa Clara, CA
Reed and Grant Sports Park
(Future)
Reed St. and Grant St., Santa Clara, CA
Silicon Valley Animal Control
Authority
3370 Thomas Road, Santa Clara, CA
Triton Museum of Art 1505 Warburton Dr. Santa Clara, CA San Tomas & Monroe Community
Garden Park (Future)
Monroe St. and San Thomas Expressway, Santa
Clara, CA
PD Monitored Site 1700 Space Park Dr., Santa Clara, CA
Schedule 15 – Service Locations
City Parks listed below – Most
don’t receive ITD services, but
some may have a VoiP phone and a
few possible will get a computer or
tablet in future. Details not known
at this time
Address (ALL locations in Santa Clara, CA)
Agnew - 2150 Agnew Rd.
Bowers - 2582 Cabrillo Ave
Bracher - 2560 Alhambra Dr.
Central - 909 Kiely Blvd.
City Plaza - Lexington St. & Main St.
Civic Center - Lincoln St. & El Camino Real
Earl R. Carmichael - 3445 Benton St.
Everett Alvarez, Jr. - 2280 Rosita Dr.
Fairway Glen - 2051 Calle de Primavera
Fremont - 1303 Fremont St.
Fuller St. - 61 Fuller St.
Geof Goodfellow Sesquicentennial - 1590 El Camino Real
Henry Schmidt - 555 Los Padres Blvd.
Homeridge - 2985 Stevenson St.
Jenny Strand - 250 Howard Dr.
Larry J. Marsalli - 1425 Lafayette St.
Lick Mill - 4750 Lick Mill Blvd.
Live Oak - 641 Moreland Way
Machado - 3360 Cabrillo Ave.
Mary Gomez - 651 Bucher Ave.
Maywood - 3330 Pruneridge Ave.
Memorial Cross - Martin Ave. & De La Cruz Blvd.
Montague - 3595 MacGregor Lane
Montague Swim Center - 3750 De La Cruz Blvd.
Parkway - 3657 Forest Ave.
Raymond G. Gamma Dog Park - 888 Reed St.
Rotary - 1490 Don Ave.
Steve Carli - 1045 Los Padres Blvd.
Thamien - 4321 Lick Mill Blvd.
Ulistac Natural Area - 4901 Lick Mill Blvd. (walking trails) War Memorial Playground - 295 Monroe St.
Warburton - 2250 Royal Dr.
Westwood Oaks - 460 La Herran Dr.
Thomas Barrett Park 1885 Worthington Circle
Youth Soccer Park 5020 Starts and Stripes Drive
Central Park Annex (Future)
Reed & Grant Street Sports Park (Future) Reed St. and Grant St.
San Tomas & Monroe Community Garden
Park (Future)
Monroe St. and San Thomas Expressway
Schedule 15 – Service Locations
Service Provider Service Locations Address
Unisys Service Delivery Center - Salt Lake City 480 North 2200 West, Salt Lake City, Utah 84116
Unisys Service Delivery Center – Eagan 3199 Pilot Knob Rd Eagan, Minnesota 55121
Unisys Hungary UGS Westend City Centre - Tower A Vaci ut 1 - 3 Budapest, 1062 Hungary
Balatoni út 2/a Budapest, 1112 Hungary
Philippines UGS Sultan Street 12F Barangay Highway Hills CityNet Central Metro Manila, 1550 Philippines
Colombia: 24 X 7 Follow-the-Sun Major Incident
Management (MIM)
Calle 93 No. 11-26 Bogota, Distrito Capital de
Bogotá 0 Colombia
India UGS: Service management, Asset
management and EPO-Patching
RGA (SEZ: 5F, 6F, 7F, 8F, 10F & 11F), Block 3,
Wing B Survey No. 31/1, Chikkakannalli Village
Varthur Hobli, Sarjapur Road, Bengaluru,
Karnataka 560035 India
Dell SIEM Services Global Remote Services
SCHEDULE 16
TERMINATION ASSISTANCE
TO
MASTER SERVICES AGREEMENT
BY AND BETWEEN
CITY OF SANTA CLARA
AND
SERVICE PROVIDER
Schedule 16 – Termination Assistance
Table of Contents
1.0 Termination Assistance Plan Overview ................................................4
2.0 People Processes ..................................................................................4
2.1 Transfer of Service Provider staff to City or new City Service Provider ................................4
3.0 Management Processes ........................................................................5
3.1 Project Management ........................................................................................................5
3.2 Issue Management ...........................................................................................................5
3.3 Risk Management and Mitigation......................................................................................5
3.4 Policy/Procedure Documentation Access and Transfer ........................................................6
3.5 Disentanglement Reporting (type and frequency)................................................................6
4.0 Technology ..........................................................................................6
4.1 Handover Procedures .......................................................................................................6
4.2 Physical Hardware, Software, Networks and Data Transfer..................................................7
5.0 Legal/Financial....................................................................................7
5.1 License Transfer..............................................................................................................7
5.2 Asset Transfer .................................................................................................................7
6.0 Service Provider Termination Assistance Plan Roles and Responsibilities....................................................................................7
7.0 Termination Assistance Plan................................................................8
7.1 Tasks Required to Disentangle Services Back to City or Another Provider............................8
7.2 Phases.............................................................................................................................9 List of Tables
Table 1. Service Provider Termination Assistance Responsibilities...............................................7 Schedule 16 – Termination Assistance
This is Schedule 16 (Termination Assistance Plan) to the Agreement between the City of Santa Clara (“City”) and Service Provider.
Service Provider shall develop a Detailed Termination Assistance Plan, which shall contain Service Provider’s strategy and plan for disentanglement as set forth in this Schedule 16. The written Detailed Termination Assistance Plan, once reviewed and approved by the City, shall be incorporated into this Schedule 16 by reference.
Any required additional resources that are not currently operational resources will be billed based on the current Rate Card.
Schedule 16 – Termination Assistance
1.0 Termination Assistance Plan Overview
The Termination Assistance Plan relies on the following elements:
• The Successor will require reasonable access to Service Provider and subcontractor(s) that are dedicated to the Services of the existing City contract. Service Provider anticipates that the access would be part of a structured interview and transfer of staff process subject to the agreements and obligations guiding Service Provider. • The termination assistance communication plan is a critical component of the risk management during termination assistance period. The communication plan contains information about regularly scheduled meetings that will regularly review plans for potential risks and develop mitigation plans for them.
• Service Provider and the Successor will need to establish a project plan which outlines expectations, roles, and responsibilities. It will also need to define conflict and resolution during knowledge transfer processes and service transition. • Service Provider and Successor termination assistance team will be the focal point of all termination assistance activity. They will bring status, plans, and issues to the City termination assistance management committee in a regularly scheduled meeting. • Service Provider will provide copies of any Service Provider Software then in use in accordance with the terms of the Agreement and provide reasonable assistance to City or the Successor in connection with the transfer to the Successor of Third Party Software then in use, or in securing rights to use such Software. • Service Provider will provide a detailed project plan for termination assistance with phases, tasks, timelines and major milestones identified for transitioning services back to City or over to another service provider upon termination of either the entire Agreement or termination of selected Services (e.g., Service Tower(s)). Service Provider will provide a plan for such termination events as applicable.
• Service Provider will provide access to the Successor to conduct the knowledge transfer activities; this includes the documentation, naming conventions, Third Party Software, and so on.
• Service Provider will coordinate with City to create very detailed, systematic plans with go/no-go decision points and appropriate fallback plans before the termination of Services.
• Service Provider will provide a wall-to-wall inventory to the Successor.
2.0 People Processes
2.1 Transfer of Service Provider staff to City or new City Service Provider
Service Provider will provide to the Successor reasonable access to Service Provider and subcontractor(s) that are dedicated to the Services of the existing City contract. The access would part of a structured interview and transfer of staff process subject to the agreements and obligations guiding Service Provider.
Schedule 16 – Termination Assistance
3.0 Management Processes
3.1 Project Management
The first level of the model hierarchy is a termination assistance management committee that will have the authority to resolve issues and make decisions as necessary during the termination assistance period. The second level will consist of the overall termination assistance management team composed of Service Provider and successor termination assistance managers. This team will be the focal point of all termination assistance activity and will bring status, plans, and issues to the termination assistance management committee in a regularly scheduled meeting. They will coordinate and control the activities across the Service Towers by working closely with the Service Tower leads and subproject managers who will be assigned specific termination assistance components. A group of subproject managers will report to and support the Service Tower leads—the third level of the hierarchy—and will be assigned to specific termination assistance components.
If necessary, the termination assistance management committee will develop a project schedule as a termination assistance planning foundation at the level of detail necessary to enable Service Provider to build the required Service Provider activities into a Detailed Termination Assistance Plan.
3.2 Issue Management
The termination assistance management committee will consist of Service Provider, Successor, and City leadership including a Service Provider and a City termination assistance manager.
The Service Provider and Successor termination assistance managers will bring issues and status information to the committee on a regular schedule to have decisions made and to inform key leadership about status. The termination assistance management committee will meet biweekly for a regularly scheduled session or more frequently if the situation dictates.
The Service Provider termination assistance manager is the owner and focal point of the termination assistance and is responsible for all termination assistance activity. The Service Provider termination assistance manager will manage a group of Service Tower leads who are responsible for termination assistance for their assigned Service Tower.
3.3 Risk Management and Mitigation
Service Provider’s Risk Management and Mitigation methodology is an iterative process for identification, mitigation, and avoidance of risks. As a part of the early planning process, there will be reviews of the project plans to identify potential risks and develop mitigation plans. City will be a key participant in the risk identification and mitigation process during disentanglement start-up. The Service Tower leads will hold these meetings, document risk mitigation plans, and execute the mitigation as necessary throughout the framework disentanglement.
A key component of the risk management plan is the termination assistance communication plan. The communication plan contains information about regularly scheduled meetings that will regularly review plans for potential risks and develop mitigation plans for them.
Before Service Provider terminates any Services, City will be involved in reviews, go-no-go decisions, and completion approval sessions.
Service Provider will create very detailed systematic plans with go/no-go decision points and appropriate fallback plans before the disentanglement of services. Each of these decision points will involve testing and validation activities before a decision to perform the cut over. Before the Schedule 16 – Termination Assistance
larger cutovers, Service Provider will work with the City to develop a set of acceptance criteria to demonstrate completeness of the activity and make the approval process flow smoothly.
3.4 Policy/Procedure Documentation Access and Transfer
The termination assistance team will use industry-standard management processes to ensure that Service Provider has completely planned, thoroughly documented, systematically implemented, and thoroughly tested the disentanglement before acceptance. These processes are a combination of project management, system engineering, and general management techniques used within the IT industry and across other business sectors as well. In addition, Service Provider will use specific processes and policies that are company or product unique to implement individual tasks to accomplish disentanglement.
This process will include Service Provider identifying, collecting and providing to the City all City technical, configuration, architectural and operational documentation including the City’s Procedures Manual.
3.5 Disentanglement Reporting (type and frequency)
Service Provider will provide to City management a weekly written report covering the progress and status of the termination assistance. The weekly reports will continue until Service Provider has completed all of the termination assistance activities and City has accepted them. Service Provider will write reports and organize them by Service Tower and task; Service Provider’s reports will contain the following information:
• Key responsible person
• Scheduled completion date
• Estimated actual completion date
• Completion status
• Percent complete
• Actual completion date
• Key issues and comments.
During the Termination Assistance period, the termination assistance team may discover information that may have a notable Services or financial change impact. Service Provider will identify and review such issues with the City.
4.0 Technology
4.1 Handover Procedures
The rules of cutover and handover will be agreed upon and signed off by the Successor, City, and Service Provider. Service Provider will follow mutually agreed upon and approved termination assistance handover procedures with appropriate acceptance criteria. Service Provider will assist the Successor to maintain effective communication during the handover process.
Schedule 16 – Termination Assistance
4.2 Physical Hardware, Software, Networks and Data Transfer Service Provider and subcontractors will provide the transfer of physical hardware, Software, networks, and data transfer in the physical or electronic transfer methodology requested that are consistent with the service capabilities defined with in the Agreement.
5.0 Legal/Financial
5.1 License Transfer
Subject to the Parties’ rights and obligations under the Agreement, and Service Provider’s intellectual property rights with respect to Software, (i) Service Provider will provide copies of any Service Provider Software then in use in accordance with the terms of the Agreement and (ii) Service Provider will provide reasonable assistance to City and the Successor in connection with the transfer to the Successor of Third Party Software then in use, or in securing rights to use such Software.
Subject to the Parties’ rights and obligations under the Agreement with respect to Software, Service Provider will generate and provide a current listing of (i) the City Software then in use and (ii) any Third Party Software then in use, both in a form reasonably requested by City.
Service Provider will provide source code, object code, and related documentation in Service Provider’s possession for City Software.
Subject to the Parties’ rights and obligations with respect to Third Party Software under the Agreement, Service Provider will provide any other Software and related documentation then in use that City is authorized to use.
5.2 Asset Transfer
Service Provider will provide a wall-to-wall inventory to the Successor. Service Provider Service Tower leads will investigate and resolve any discrepancies resulting from the comparison of the physical inventories. The Successor will manage and maintain the resulting final complete master inventory list for the duration of the Termination Assistance period.
Service Provider will provide asset transfer for all City-owned or leased equipment and other City assets used by Service Provider to perform the Services on the agreed cutover periods.
6.0 Service Provider Termination Assistance Plan Roles
and Responsibilities
Table 1. Service Provider Termination Assistance Responsibilities Service Provider Role Responsibilities Comments
Termination Assistance Manager Manage termination assistance of all Service Towers.
Build and manage Service Provider
project plan during the project.
Data Center Lead Detail and manage termination
assistance activities.
Coordinate the server data capture
and cut-over events.
Service Desk Lead Detail and manage termination
assistance activities.
Provide knowledge transfer staff and
historical data.
End-User Support Lead Detail and manage termination
assistance activities.
Provide knowledge transfer staff and
historical data.
Network Lead Detail and manage termination
assistance activities.
Provide knowledge transfer staff and
historical data.
Schedule 16 – Termination Assistance
Service Provider Role Responsibilities Comments
Applications Lead Detail and manage termination
assistance activities.
Provide knowledge transfer staff and
historical data.
End of Table
7.0 Termination Assistance Plan
Service Provider will provide disentanglement to enable the Services to continue without interruption and facilitate an orderly transfer of Services.
7.1 Tasks Required to Disentangle Services Back to City or Another Provider
If Termination Assistance Services are requested by the City in accordance with the Agreement, Service Provider will provide the following:
(a) Service Provider will provide assistance to City and the Successor with the development of a plan for the disentanglement of equipment, Software, data, and documentation owned by or leased to City and used by Service Provider and all operations performed by Service Provider, each as part of the Services from Service Provider to the Successor (the “Detailed Termination Assistance Plan”). The Detailed Termination Assistance Plan may include, among other things, performance of (i) the Services described in this proposal, (ii) similar or related activities for which Service Provider is responsible, and (iii) a plan by Service Tower. (b) Service Provider will familiarize qualified personnel identified by the Successor with the equipment, Software, processes, procedures, and documentation used in performance of the Services that are to be transferred.
(c) Service Provider will provide the Successor with such information regarding the Services as is prudent or reasonably necessary to implement the Termination Assistance Plan and for the Successor to assume responsibility for, and continue the performance of, the Services in an orderly manner. Service Provider will make reasonable efforts to minimize disruption in the operations of City caused by its performance of disentanglement, including identifying key support contacts (names and telephone numbers) of Service Provider personnel during the disentanglement.
(d) Service Provider will provide the Successor with reasonable access to and use of City’s equipment, data, documentation, and Software; Service Provider personnel; Third Parties; and other resources then being used by Service Provider to provide the Services (subject to Service Provider’s reasonable security requirements, its contractual obligations to Third Parties, and its continuing obligation to perform Services for City). Service Provider’s obligations are subject to any prohibitions or restrictions on the use or disclosure of Third Party Software contained in applicable license agreements. (e) Before providing the disentanglement, Service Provider will have the right to request and receive from the Successor (if the Successor is not City) written assurances that the Successor will maintain the confidentiality of Service Provider’s Confidential Information disclosed or provided to the Successor during the termination assistance process.
Schedule 16 – Termination Assistance
(f) All Successor personnel are to be skilled in the performance of similar service.
7.2 Phases
If required, Service Provider will follow a three-phased approach to disentanglement. This approach will apply to all Service Towers. The three phases are the following:
• Phase 1 - Preparatory services
• Phase 2 - Disentanglement services
• Phase 3 - Post-Disentanglement services.
7.2.1 Phase 1 - Preparatory Services
(a) Prepare that portion of the Termination Assistance Plan detailing Service Provider’s responsibilities, including as appropriate, schedules and resource commitments. (b) Provide to the Successor (subject to the Agreement’s provisions concerning confidentiality and intellectual property) copies of all manuals and documentation relevant to, and used by Service Provider in, performing the Services including, without limitation, (i) relevant portions of any Disaster Recovery Plan that apply to City; (ii) access to City data, Software, and inventories; (iii) configuration information; (iv) all manuals and other relevant technical documentation (in a mutually agreed digital format) ordinarily used or necessary for the performance of Services, and (iv) 1 year of historical data information related to satisfying Service Levels.
(c) Provide to the Successor copies of other information regarding the Services that may be required to implement the Termination Assistance Plan, and, to the extent available, and in the form ordinarily maintained during the course of performance.
For example, Service Provider will provide then-current End-User profiles from the service desk, problem and change management records, and asset tracking records for the 12- month period before expiration or termination.
Any Third Party contracts related to the delivery of the Services are to be transferred to or administered by the Successor (e.g., copies of security tables, rules, and End-User lists used in the provision of the Services).
(d) Identify and provide the control release levels for systems Software in City environments. (e) Review and explain the documentation and manuals to the Successor’s operations staff. (f) Provide assistance to the Successor in their notification to Third Party service providers of the procedures to be followed during the disentanglement. (g) Provide to the Successor information about naming conventions then in effect. (h) Subject to the Parties’ rights and obligations under the Agreement and Service Provider’s intellectual property rights with respect to Software, (i) provide copies of any Service Provider Software then in use in accordance with the terms of the Agreement and (ii) provide reasonable assistance to City and/or the Successor in connection with the transfer to Successor of Third Party Software then in use, or in securing rights to use such Software. (i) Subject to the Parties’ rights and obligations under the Agreement with respect to Software, generate and provide a current listing of (i) the City Software then in use and (ii) any Third Party Software then in use, both in a form reasonably requested by City. (j) Provide to the Successor reasonable access to Service Provider personnel who were performing the Services to facilitate the orderly transfer of the Services to the Successor. (k) Provide any City data stored on Service Provider equipment to the Successor in a mutually agreed digital form, as reasonably requested.
Schedule 16 – Termination Assistance
(l) Cooperate with the Successor and participate in the preparation and conducting of disentanglement testing to assist in the orderly transfer of Services insofar as within Service Provider’s control.
(m)Provide to the Successor current and pending project plans authorized by City and status to assist the Successor to carry out such plans without unreasonable disruption of City’s operations. Provide for the orderly handoff of ongoing projects or a reasonable bridge services agreement (as may be mutually agreed) to complete essential projects after the termination or expiration of the Agreement.
(n) Provide asset listings for all City-owned or -leased equipment and other City assets used by Service Provider to perform the Services, in a mutually agreed digital format. (o) Provide any additional incidental services not specified by this schedule as reasonably requested by City.
7.2.2 Phase 2 - Disentanglement Services
As part of disentanglement, Service Provider will perform its responsibilities under the Termination Assistance Plan for the following disentanglement services, and such others as may be mutually agreed:
(a) In conjunction with the Successor, conduct a rehearsal before cutover to the Successor at a time reasonably acceptable to the Parties.
(b) Remove City data and City Confidential Information from Service Provider’s systems, and assist the Successor in loading same on its systems.
(c) Transfer responsibility to the Successor for off-site backup tape and document storage. (d) Make available requested City data and City Confidential Information (in mutually agreed digital form) stored on personal computers and servers for which Service Provider is responsible, including backup data.
(e) Provide assistance to the Successor with the transfer of operational responsibility, including providing assistance and cooperation in the execution of parallel operation and testing. (f) Provide source code, object code, and related documentation in Service Provider’s possession for City Software.
(g) Subject to the Parties’ rights and obligations with respect to Third Party Software under the Agreement, provide any other Software and related documentation then in use that City is authorized to use.
(h) Assist in the conduct of disentanglement testing.
7.2.3 Phase 3 - Post-Disentanglement Services
Service Provider will perform the following post-disentanglement services (and such others as may be mutually agreed, or required by the Agreement):
(a) Provide additional, incidental assistance at City’s request to ensure continuity of operations, to the extent within Service Provider’s control (bearing in mind that Service Provider’s staff engaged in performance of Services for City may disperse after the Agreement expires or terminates).
(b) Return to City (or destroy, if so directed by City in writing, as provided below) without additional charge, any property of City in Service Provider’s possession, including any remaining reports, documentation, data, and other Confidential Information, subject to applicable terms of the Agreement.
Schedule 16 – Termination Assistance
(c) Certify to City in writing that all City data, files, and Confidential Information have been removed from Service Provider’s systems provided, in accordance with the Agreement, however, that Service Provider may retain one copy of such materials only to the extent necessary for Service Provider to comply with its audit and record retention responsibilities under the Agreement.
Schedule 17 – Governance and Service Provider Key Personnel SCHEDULE 17
GOVERNANCE AND SERVICE PROVIDER KEY PERSONNEL
to the
MASTER SERVICES AGREEMENT
By and between
CITY OF SANTA CLARA
and
SERVICE PROVIDER
Schedule 17 – Governance and Service Provider Key Personnel Table of Contents
1.0 Overview ....................................................................................................................- 1 -
1.1 General.......................................................................................................................- 1 -
1.2 Definitions..................................................................................................................- 1 -
1.3 References ..................................................................................................................- 1 -
1.4 Governance Objectives.................................................................................................- 1 -
2.0 Key Roles ...................................................................................................................- 2 -
2.1 Account Executives .....................................................................................................- 3 -
2.2 Services Directors........................................................................................................- 3 -
2.3 Service Delivery Managers...........................................................................................- 4 -
2.4 Project Management Office (PMO) Lead .......................................................................- 5 -
2.5 Enterprise Architect .....................................................................................................- 5 -
2.5.1 Information Security Officer ................................................................................ - 6 -
2.6 Additional Governance Functions..................................................................................- 6 -
2.6.1 Financial Management ........................................................................................ - 6 -
2.6.2 Performance Management ................................................................................... - 7 -
2.6.3 Contract Management ......................................................................................... - 7 -
3.0 Governance Process.....................................................................................................- 7 -
3.1 Governance Structure...................................................................................................- 7 -
3.1.1 Executive Strategy Committee ............................................................................. - 9 -
3.1.2 Management Review Committee ........................................................................ - 10 -
3.1.3 Operations Management Committee (Steady State).............................................. - 12 -
3.1.4 Service Tower Review Committee...................................................................... - 13 -
3.1.5 Operations Management Committee (Projects) .................................................... - 13 -
3.2 Day-to-Day Management Processes.............................................................................- 14 -
3.3 Communications........................................................................................................- 15 -
3.4 Work Prioritization ....................................................................................................- 15 -
4.0 Balanced Scorecard....................................................................................................- 15 -
5.0 Project Management Office Services ...........................................................................- 16 - Schedule 17 – Governance and Service Provider Key Personnel - 1 -
Schedule 17
Governance and Service Provider Key Personnel
1.0 Overview
1.1 General
This is Schedule 17 (Governance and Service Provider Key Personnel) to the Agreement.
This document sets forth the roles and responsibilities of the Parties for the governance and governance processes and activities provided under the Agreement as part of the Services.
These processes and activities, as further detailed in this Schedule, are required to provide and support the Customer’s overall relationship with the Service Provider. The governance aspect of the Agreement is extremely important to ongoing and operational success of the relationship between both Parties, as well as the success of the operational management of the Agreement.
1.2 Definitions
Unless otherwise defined in this Schedule or an Exhibit to this Schedule, capitalized terms used in this Schedule and the Appendices to this Schedule will have the meanings set forth in the Agreement or Schedule 1 (Definitions) to the Agreement. Other terms used in this Schedule and the Appendices to this Schedule and in the applicable Statement of Work are defined where they are used and have the meanings there indicated. Those terms, acronyms, phrases and abbreviations utilized in the IT services industry or other pertinent business context will be interpreted in accordance with their generally understood meaning in such industry or business context.
1.3 References
Any reference herein to a particular Section number or Appendix or other attachment will mean that the reference is to the specified Section in, or Appendix or other attachment to, this Schedule, except to the extent that the cross-reference expressly refers to another document.
1.4 Governance Objectives
Customer recognizes that governance and relationship management processes are essential components for successful ongoing Customer-Service Provider relationship satisfaction.
The Customer requires an effective system of internal controls and management to achieve the following:
• Compliance with the terms of this Schedule, the Agreement and all applicable Laws • Maximization of economic and strategic value of the relationship for both Parties through continuous improvement
• Effective and efficient day-to-day management of services to ensure that the Services and Service Levels are delivered are cost effective and meeting Customer requirements
• Definition, documentation and reliability of financial and operational controls, audit and compliance
• Effective communication to all designated stakeholders • To define clear governance-related obligations, roles and responsibilities between the Customer and Service Provider
• To enable the alignment of the direction of the Services with Customer strategic business objectives
Schedule 17 – Governance and Service Provider Key Personnel - 2 -
• To monitor and oversee the performance of the Services so that they are provided in accordance with the Agreement (including all Schedules, Appendices, Supplements and Attachments)
• To drive early identification and resolution of performance issues • Define the escalation path for issue resolution so that issues are resolved that cannot be resolved in the ordinary course of providing the Services • To oversee the integration of the Customer and Service Provider processes • To develop, monitor and maintain integrated processes such as Project Management, Change Management and quality assurance
• To make sure that changes do not result in any disruption to the Customer’s business operations
• Promote mutual trust and respect
• Taking ownership of activities to serve the Customer’s business needs • Working within the mutually agreed upon structure regarding processes and procedures
• Assisting the Customer in its planning activities as required • Ensuring proactive, continued and appropriate communication
2.0 Key Roles
Customer and Service Provider will each establish and maintain governance teams of senior IT and business professionals that, throughout the Agreement life cycle, will:
• Monitor Service Provider performance metrics including contracted SLAs • Dedicate sufficient time and resources to make the relationship a success • Support the Customer strategic and tactical planning processes for in scope services, including IT linkage to business objectives and technology standards and architectures
• Determine and protect the business interests and reputation of the Customer Customer will designate certain roles of Service Provider staff as Key Service Provider Personnel which are listed in the table below.
Key Service Provider Personnel are listed in the following table:
* Role is dedicated exclusively to Customer account
Role Name
Account Executive TBD
Services Director* TBD
Applications Service Delivery Manager* TBD
Infrastructure Service Delivery
Manager*
TBD
End-User Service Delivery Manager* TBD
Service Desk Service Delivery Manager TBD
PMO Lead* TBD
Enterprise Architect* TBD
Information Security Officer* TBD
Schedule 17 – Governance and Service Provider Key Personnel - 3 -
The roles are described below:
2.1 Account Executives
Each Party shall designate an individual (for the Customer, the “the Customer Account Executive” and, for Service Provider, the “Service Provider Account Executive”), who shall be each Party’s primary point of contact for all matters relating to the Agreement.
The Service Provider Account Executive shall be at a minimum:
• Provide executive leadership at Service Provider’s corporate level and have overall accountability for the Services
• The primary relationship manager between the Service Provider and the Customer • Knowledgeable about all Services being provided under this Agreement including the Service Provider Service Tower services and projects and be knowledgeable about Service Provider subcontractor and Third Party services and how all of these integrate to provide services for the Customer
• Responsible for ensuring the IT Services are delivered consistently and seamlessly across all Services Towers
• Aware of all contractual commitments and obligations made by Service Provider under the Agreement, including those agreed to by the Parties to address areas of service improvement and new solutions, and able to report and articulate the status of all such commitments
• Responsible for ensuring that all contractual commitments and obligations made by Service Provider under the Agreement, including those agreed to by the Parties to address areas of service improvement and new solutions are achieved by Service Provider
• Experienced at running services equal in size, scope and complexity to those of the Customer
• Otherwise acceptable to Customer
The Service Provider Account Executive shall have overall responsibility for directing all of Service Provider’s activities and shall be vested by Service Provider with all necessary authority to act for Service Provider in connection with all aspects of the Agreement.
The Service Provider Account Executive and Service Provider Services Director roles may not be fulfilled by the same person.
2.2 Services Directors
Each Party shall designate an individual (for the Customer, the “the Customer Services Director” and, for Service Provider the “Service Provider Services Director”), who shall be each Party’s primary point of contact for day to day operational activities relating to the Agreement.
The Service Provider Services Director shall be at a minimum:
• Service Provider’s day-to-day authority for making operational decisions • Responsible for coordinating service delivery across all Service Towers and ensuring the IT Services are delivered consistently and seamlessly across all Services Towers • Able to competently report to Customer on Service Provider performance and operational issues at the Service Tower level
Schedule 17 – Governance and Service Provider Key Personnel - 4 -
• Aware of all contractual commitments made by Service Provider under the Agreement, including those agreed to by the Parties to address areas of service improvement and new solutions
• Responsible for managing and reporting on all contractual commitments made by Service Provider under the Agreement, including those agreed to by the Parties to address areas of service improvement and new solutions
• Escalating issues relating to Service Provider’s contractual commitments under the Agreement, including those agreed to by the Parties to address areas of service improvement and new solutions
• Primary contact point for service integration and demand management across all in scope Service Towers and third parties as applicable
• Responsible for integrated service performance tracking and reporting, including Service Levels, service improvement plans and other service performance metrics and reports (e.g. Balanced Scorecard)
• The primary Services manager between the Service Provider and the Customer • Knowledgeable about all Services being provided under this Agreement including the Service Provider Service Tower services, migrations and projects and be knowledgeable about Service Provider subcontractor and Third Party services and how all of these integrate to provide services for the Customer • Experienced at running services equal in size, scope and complexity to those of the Customer
• Otherwise acceptable to the Customer
The Service Provider Services Executive shall have overall responsibility for directing all of Service Provider’s activities and shall be vested by Service Provider with all necessary authority to act for Service Provider in connection with all aspects of the Agreement.
The Service Provider Account Executive and Service Provider Services Director roles may not be fulfilled by the same person.
2.3 Service Delivery Managers
Each Party shall designate individuals (for Service Provider, the "Service Provider Service Delivery Manager" and for the Customer, the "the Customer Service Performance Manager") for the Service Towers defined in Schedule 3 and for the Customer-designated sub-service areas.
These individuals shall be each Party's primary point of contact for all matters relating to that Service Tower or sub-service area. Service Provider Service Delivery Managers shall be at a minimum:
• Knowledgeable about:
o The assigned Service Tower or sub-Service Tower, including the Customer’s business requirements and Service Level Agreements
o Other Service Provider Tower or sub-Service Tower services, and any associated Service Level Agreements, that impact their assigned area o Service Provider subcontractor and Third Party services o How all of these integrate to provide Services for the Customer • Experienced at running information technology services of a size, scope and complexity that are minimally equal in size, scope and complexity to those of the Customer
Schedule 17 – Governance and Service Provider Key Personnel - 5 -
• Knowledgeable about Service Provider’s best practices, tools, standard processes and procedures
• Authorized to make decisions and grant authorizations and approvals on their Party’s behalf
• Otherwise acceptable to the Customer
The primary role of the Service Provider Service Delivery Managers and the Customer Service Performance Managers is to take ownership of the day-to-day operational relationships between the Service Provider’s information technology service delivery and Customer business.
This involves managing and coordinating the appropriate resources to ensure optimal service delivery to ensure that all issues raised are resolved in accordance with the applicable procedures and Service Level Agreements.
2.4 Project Management Office (PMO) Lead
Service Provider shall designate a Project Management Office (PMO) Lead to the Customer. The PMO Lead shall oversee and manage the service delivery of Service Provider’s PMO office and shall provide input to the Customer’s overall PMO Lead. The Service Provider’s PMO Lead shall facilitate that established project management standards are adhered to and consistently applied across all Projects owned by the Service Provider. The PMO Lead shall at a minimum:
• Be knowledgeable of the Customer’s business strategy, objectives, processes and operations
• Be knowledgeable about established project management standards and processes in the Customer environment
• Be experienced in overseeing a portfolio of projects and managing project managers to ensure projects remain on time and on budget
• Be experienced in managing and overseeing project proposals • Be vested by Service Provider with all necessary authority to act for Service Provider in connection with all aspects of the Services pertaining to the PMO function • Participate in governance meetings in Schedule 17, as relevant • Review and approve all PMO deliverables owned by the Service Provider prior to submission to the Customer
• Possess a Project Management Professional (PMP) certification from the Project Management Institute (PMI) or equivalent experience in Project Management frameworks.
The Service Provider PMO Lead role may not be fulfilled by the same person that fulfils either the Account Executive or Service Provider Services Director roles.
2.5 Enterprise Architect
Service Provider will provide an Enterprise Architect to the Customer. The Enterprise Architect shall work with Customer to build a holistic view of the Customer’s strategy, IT processes, data, and information technology assets. Through this process, the Enterprise Architect is responsible for ensuring that the Customer’s business and IT are aligned.
The Enterprise Architect shall be at a minimum:
• Knowledgeable of the Customer’s business strategy, objectives, processes and operations
Schedule 17 – Governance and Service Provider Key Personnel - 6 -
• knowledgeable of the evolving IT marketplace, including emerging IT trends, technologies and solutions
• Keep Customer’s IT architecture flexible and responsive to new IT opportunities • Possess broad knowledge of hardware, software, application, and systems engineering
• Possess knowledge of IT governance and IT operations
• Possess the ability to explain technical and complex issues to Customer in ways that non-technical persons can understand
• Possess project and program management planning and organizational skills
2.5.1 Information Security Officer
Service Provider shall designate an Information Security Officer to Customer. The Information Security Officer shall have overall responsibility for all information security-related aspects of the Services, including coordination of information security efforts across all Service Towers. The Service Provider Information Security Officer shall at a minimum:
• Be knowledgeable of Customer information security policies, standards and procedures
• Take ownership of all information security-related aspects of the Services • Create internal operating procedures to support and enforce Customer policies and procedures in order to ensure the Availability, integrity, and confidentiality of Customer assets and data
• Manage and coordinate the appropriate resources to ensure optimal service delivery and ensure that all information security-related issues raised are resolved in accordance with the applicable policies, procedures and Service Levels • Develop, manage and maintain the Cybersecurity Plan (See Schedule 3A) • Be vested by Service Provider with all necessary authority to act for Service Provider in connection with all aspects of the Services pertaining to information security • Review and approve all information security related deliverables prior to submission to Customer
• Have proven past experience in a similar information security role in and IT environment of similar scope and scale
• Possess one or more of the following certifications: Certified Information Security Manager (CISM), Certified Information Systems Security Professional (CISSP)
2.6 Additional Governance Functions
The following are additional the Customer and Service Provider governance functions that are essential to managing the relationship. If required, specific Service Provider individuals can be assigned and added to Service Provider Key Employees, specifically in the areas of:
• Financial Management
• Performance Management
• Contract Management
2.6.1 Financial Management
Schedule 17 – Governance and Service Provider Key Personnel - 7 -
Customer and Service Provider Financial Management function monitors and manages financial administration practices and procedures associated with the contract ensuring that financial controls are in place and aligned with the contract. Financial Management function activities include:
• Acting as primary contact for all billing and financial issues • Developing and reviewing invoices, charges, budget performance, identifying disparities and variances to plans and recommending corrective action • Applying and reviewing fee reductions to the applicable reporting period and assisting with the identification of problem areas
2.6.2 Performance Management
Customer and Service Provider Performance Management function takes overall responsibility for ensuring Service Provider performance meets business requirements and recommends continuation, improvement or problem resolution to ensure that business requirements are met. This function includes:
• Leading the measurement process by which Service Level Agreements are assessed • Reviewing and monitoring performance, recommending corrective action and facilitating the development of continuous improvement plans • Monitoring and reporting on the status of Service Provider commitments and obligations under the Agreement, including those agreed to by the Parties to address areas of service improvement and new solutions
• Monitoring and reporting on the status of Service Provider’s fulfillment of staffing obligations (e.g., FTE resource counts and requirements) • Conducting exploratory activities to determine how to raise performance levels and recommending changes in Service Level Agreements, where appropriate, to ensure that they properly reflect business needs, while balancing costs
2.6.3 Contract Management
Customer and Service Provider Contract Management function manages the contractual relationship between the Customer and the Service Provider. This function includes:
• Leading and facilitating contract activities from contract signing through Service Provider transition and ongoing operations
• Monitoring compliance with contract terms and conditions and providing recommendations to resolve issues related to non-compliance • Managing the escalation process to address all contract management issues • Identifying and managing Service Provider fee reductions, based on performance metrics and contract terms, in accordance with the Customer procurement policies Customer and Service Provider Contract Manager roles work closely with the Customer procurement and legal departments to:
• Create, negotiate and incorporate amendments into the Agreement • Coordinate the contract negotiations/renegotiations process to accommodate scope changes or changes to business requirements
3.0 Governance Process
3.1 Governance Structure
The following sections defines a framework for the Agreement oversight committees, including the participants, their responsibilities and the activities of those roles that are responsible for the administration of governance processes.
Schedule 17 – Governance and Service Provider Key Personnel - 8 -
In the event that Service Provider wishes to change the positions or committee members identified herein to represent it on a committee, any such proposed change shall be subject to the prior approval of the Customer.
The following table provides a summary of the governance committees:
Committee Name Scope Summary Key Participants Meeting Frequency Executive Strategy
Committee
High-level strategic
and operational
issues relating to the
Agreement.
• Senior executives
from each Party,
including the
Customer’s CIO
• Executive
management,
including Service
Provider’s Account
Executive
Quarterly
Management Review
Committee
Overseeing the
overall operation of
the Agreement
including the
integration of the
individual Services
provided by Service
Provider or Third
Parties to service the
Customer programs,
reviewing Service
Provider performance
and addressing
service management
issues
• Service Provider
Services Director
(chair)
• Service Provider
Service Delivery
Managers and
technical leads
• Customer Service
Performance
Managers (e.g.,
enterprise
computing,
Service Desk, End
User support, and
application
management,
configuration and
maintenance) and
technical leads
Monthly
Operations
Management
Committee (Steady
State)
Overseeing the dayto-day operation of
the steady state
Services
• Service Provider
Services Director
(chair)
• Service Provider
Service Delivery
Managers and
technical leads
• Customer Service
Performance
Managers (e.g.,
enterprise
computing,
Service Desk, End
User support, and
application
management,
configuration and
maintenance) and
technical leads
Weekly
Schedule 17 – Governance and Service Provider Key Personnel - 9 -
Service Tower
Review Committee
Overseeing the
operations, initiatives
and projects at the
Service Tower level
• Service Provider
Services Director
(chair)
• Service Provider
Service Delivery
Managers and
technical leads
• Customer Service
Performance
Managers (e.g.,
enterprise
computing,
Service Desk, End
User support, and
application
management,
configuration and
maintenance) and
technical leads
Bi-weekly
Operations
Management
Committee (Projects)
Overseeing the dayto-day operation of
project Services
• Service Provider
PMO Lead (chair)
• Service Provider
Project Managers
and Services Area
technical
management and
staff
• Corresponding
representation
from the
Customer.
Bi-weekly
3.1.1 Executive Strategy Committee
The Executive Strategy Committee will be comprised of senior executives from each Party, including the Customer’s CIO and executive management and by Service Provider’s Account Executive and Services Director who will meet to discuss high-level strategic and operational issues relating to the Agreement.
The Executive Strategy Committee responsibilities shall include the following:
• Review Balanced Scorecard, discuss achievements against established goals and develop (as required) additional plans to address areas where the Balanced Scorecard goals are not being met
• Report on contractual commitments made by Service Provider under the Agreement, including those agreed to by the Parties to address areas of service improvement and new solutions
• Provide additional commitments, as required, to address any deficiencies in Service Provider’s achievement in meeting its contractual commitments and obligations under the Agreement, including those agreed to by the Parties to address areas of service improvement and new solutions
• Address relevant high-level issues appropriate for an executive-level discussion Schedule 17 – Governance and Service Provider Key Personnel - 10 -
• Set direction and goals for the sourcing relationship and ensure alignment between the Customer and Service Provider on the Customer’s outsourcing needs and direction and Service Provider’s capabilities and desires • Provide guidance for the future and strategic direction of the relationship • Review Service Provider performance against the Customer’s business goals and business objectives
• Review and make decisions regarding the introduction of new initiatives and service offerings and value-added business opportunities within the framework of the Agreement and SOWs
• Address the overall health of the relationship to ensure both Parties’ objectives are being met
• Address major relationship and alignment issues, disputes, recommendations, and Service and contract changes that have been escalated to this level The Executive Committee shall meet on a quarterly basis; provided, however, either Party may, by providing written notice to the other Party of at least five (5) business days, convene a special session of the Executive Committee as necessary to address issues arising under the Agreement including a pending Dispute as described in the Agreement.
For each such meeting, the Parties shall agree upon the location for the meeting in advance. Prior to each such meeting, Service Provider shall prepare a suggested agenda, with active input from the Customer Program Executive. The Service Provider shall deliver the agreedupon agenda to the Customer at least ten (10) Business Days prior to the meeting. Service Provider shall make available its senior management personnel to answer questions from the Customer’s senior management personnel regarding the agenda items for such meeting. Further, either Party from the Executive Strategy Committee may invite industry subject matter experts to participate in such meetings to facilitate information exchange and increase the value of the strategies discussed.
3.1.2 Management Review Committee
The Management Review Committee, comprised of program and IT management from the Customer and the Service Provider, shall be responsible for overseeing the overall operation of the Agreement including the integration of the individual Services provided by Service Provider or Third Parties to service the Customer programs, reviewing Service Provider performance and addressing service management issues. Issues that cannot be resolved by this committee shall be escalated to the Executive Steering Committee.
The Management Review Committee shall be chaired by the Service Provider Services Director. Its members shall include the Service Provider Services Director, Service Performance Managers (e.g., enterprise computing, Service Desk, End User support, and application management, configuration and maintenance), technical leads and Service Provider corporate Service Tower leads (on a rotational basis). Any additional temporary Service Provider attendees will be agreed upon between the Parties in advance of the committee meetings.
The Management Review Committee shall meet on a monthly basis; provided, however, either Party may, by providing written notice to the other Party of at least five (5) business days (or at the discretion of the Customer), convene a special session of the Management Review Committee as such Party determines is necessary, including to address a pending Dispute as described in the Agreement.
Schedule 17 – Governance and Service Provider Key Personnel - 11 -
The Management Review Committee agenda and reporting presented during the meeting shall be structured as required to cover content associated with each SOW, or other sub Service Tower, as identified by the Customer.
The Management Review Committee responsibilities shall include the following:
• Reviewing reporting regarding Service Provider's compliance with the Service Level Agreements for all Services (reporting to be provided and reviewed at the Service Tower level)
• Identifying negative service performance trends and recommending corrective actions to address same
• Reporting on all contractual commitments made by Service Provider under the Agreement, including those agreed to by the Parties to address areas of service improvement and new solutions
• Reviewing status of projects by Service Tower and recommending corrective actions to address same
• Reviewing performance failures and associated credits under Schedules 3 and 4 (e.g., Service Improvement Commitments, Service Level Agreements, Corrective Assessments, Operational Deliverables)
• Reviewing and approving Root Cause Analysis findings related to Service Level Defaults and any other previous issues
• Reviewing and making decisions regarding requests for Service Providerrequested exceptions to Service Level Defaults • Providing direction for performance improvement, enterprise technology, security, and business continuity policy to the Service Area teams • Planning for new Services and removal of Services
• Reviewing staffing and resource planning deliverables as defined in Schedule 3A – Cross Functional Services SOW
• Reviewing project forecasts and action items
• Reviewing Service Provider reporting on split of its account resources as it relates to operations versus project-based work
• Reviewing all financial arrangements, including invoices submitted by the Service Provider
• Reviewing the Customer’s satisfaction with the Service Provider Key Employees • System performance and capacity Customer review and planning • Addressing Problems, disputes, Incidents, trends and Change Requests that have been escalated to this level
• Addressing such other matters as one Party may bring to the other Prior to each such meeting, the Service Provider shall prepare a suggested agenda, with active input and review and approval from the Customer Program Executive. The Service Provider shall deliver the agreed-upon agenda to the Customer at least five (5) Business Days prior to the meeting, if such meetings take place monthly, or at least two (2) Business Days prior to the meeting, if such meetings take place on a weekly basis. The Service Provider shall make available its senior management personnel to answer questions from the Customer’s senior management personnel regarding the agenda items for such meeting. Further, either Party may Schedule 17 – Governance and Service Provider Key Personnel - 12 -
invite industry subject matter experts to participate in such meetings to facilitate information exchange and increase the value of the strategies discussed.
3.1.3 Operations Management Committee (Steady State)
The Operations Management Committee is a joint team comprised of IT and business management from the Customer and the Service Provider (e.g., program and/or Service Area/sub–Service Area personnel) and shall be responsible for overseeing the day-to-day operation of the steady state Services.
The Operations Management Committee shall be chaired and facilitated by the Service Provider Program Executive or his/her designee. Its members shall include Service Provider Service Delivery Managers and Service Area technical management and staff and shall include corresponding representation from the Customer.
The Operations Management Committee shall meet on a bi-weekly basis and responsibilities shall include the following:
• Providing oversight of all day-to-day operational service delivery, service management and operational process, including:
o Incident Management process, including Service Desk first contact Resolution (FCR) reporting and trending; and FCR Incident list review and augmentation o Problem Management process
o Change Management process
o Asset Management process
o Business Event Management process
o Service Level Management process
o Ensuring reporting meets requirements in this document and is executed effectively
o Ensure operations personnel and processes adhere to regulatory compliance requirements created by Compliance Team
o Communicating results to the Management Review Committee • Addressing operational and Service delivery issues arising during the previous week
• Reviewing Root Cause Analysis findings associated with Service Level Defaults and other previous issues
• Addressing outstanding or unresolved issues or trends • Reviewing requests for Service Provider-requested exceptions to Service Level Defaults
• Reviewing progress reports and performance improvement plans and make recommendations directly to the Management Review Committee • Planning for future changes
• Reviewing Problems, disputes, Incidents and Change Requests • Driving continuous innovation and efficiency of the Services over time • Addressing such other matters as one Party may bring to the other Schedule 17 – Governance and Service Provider Key Personnel - 13 -
In addition to the weekly joint Operations Management Committee meeting, specific operations team meetings can be called if required at the Customer’s discretion for specific Service Area or the Customer programs to address the items listed above.
Prior to each meeting, Service Provider shall prepare a suggested agenda, with active input from the Customer Performance Managers.
3.1.4 Service Tower Review Committee
Service Tower Review Committee is a joint team comprised of IT and business management from the Customer and the Service Provider (e.g., program and/or Service Area/sub–Service Area personnel) and shall be responsible for overseeing the operations, initiatives and projects at the Service Tower level.
The Service Tower Review Committee shall be chaired and facilitated by the Service Provider Program Executive or his/her designee. Its members shall include Service Provider Service Delivery Managers and Service Area technical management and staff and shall include corresponding representation from the Customer.
The Service Tower Review Committee shall meet on a bi-weekly basis. For each such meeting, the focus shall be on a single Service Tower or Sub-Service Tower (e.g., Service Desk/End User Services, Enterprise Compute, Applications, Cybersecurity) and responsibilities shall include the following:
• Workplans
• Key priorities
• Key initiatives
• Transformation
• Addressing such other matters as one Party may bring to the other In addition to the monthly Service Tower Review Committee meeting, specific operations team meetings can be called if required at the Customer’s discretion for specific Service Area or the Customer programs to address the items listed above.
Prior to each meeting, Service Provider shall prepare a suggested agenda, with active input from the Customer Performance Managers.
3.1.5 Operations Management Committee (Projects)
The Operations Management Committee – Projects is a joint team comprised of IT and business management from the Customer and the Service Provider (e.g., program and/or Service Area personnel) and shall be responsible for overseeing the day-to-day operation of project Services and the PMO.
The Operations Management Committee – Projects shall be chaired and facilitated by the Service Provider PMO Lead and is responsible for providing oversight to those projects the Service Provider manages. Its members shall include Service Provider Project Managers and Services Area technical management and staff and shall include corresponding representation from the Customer.
The Operations Management Committee – Projects shall meet on a bi-weekly basis and responsibilities shall include the following:
Schedule 17 – Governance and Service Provider Key Personnel - 14 -
• Review, approving, and determining the priority of and assigning Project to Service Provider and retained Services delivery teams
• Addressing project Service issues
• Reviewing changes to scope, timing and/or cost
• Addressing outstanding or unresolved issues or trends • Reviewing progress reports
• Planning for future projects
• Managing the request lifecycle, including closure and verification • Reviewing the Service Provider's compliance with the Service Level Agreements and project milestones
• Addressing such other matters as one Party may bring to the other In addition to the weekly joint Operations Management Committee – Projects meeting, specific project team meetings can be called if required at the Customer’s discretion for specific project or the Customer programs to address the items listed above.
Prior to each meeting, the Service Provider shall prepare a suggested agenda, with active input from the Customer Performance Managers.
3.2 Day-to-Day Management Processes
During the transition period, the Customer-approved formal procedural, reporting and communication processes and structures will be established in order to manage the delivery of the IT services to be provided by the Service Provider in an efficient and effective manner. In addition, governance committee agendas, attendees, inputs and outputs shall be refined and finalized subject to the Customer’s approval. They will be documented and maintained by the Service Provider, as approved by the Customer and modified and updated on an ongoing basis to reflect changes to the business and operational relationship.
Service Provider and the Customer will agree upon additional points of contact and a reporting structure covering day-to-day operations and reviews of the Service Provider’s performance. These may include technical, financial, and Service Level Agreements reviews as well as the resolution of any other issues that may arise. These reporting schedules will be documented and maintained by the Service Provider in an online repository integrated into the broader IT Service Management suite and accessible to the Customer’s management team. A regular meeting schedule will be required for the different reporting levels established, with ongoing 24-hour access to all of the Service Provider points of contact when required. In addition to the processes and procedures as described in the SOWs, Service Provider must provide processes and procedures acceptable to the Customer that can be used to manage day-to-day relationship processes and shall include:
• Incident / Problem resolution
• Resolving disputes and Change Requests
• Dispute resolution
• Resolving Root Cause Analysis of any previous issues
• Addressing outstanding or unresolved issues
• Contract change management
• New business requests
Schedule 17 – Governance and Service Provider Key Personnel - 15 -
• Performance reporting (e.g., Service Level Agreements, project status, outstanding Service Request status)
3.3 Communications
Communications between the Customer and the Service Provider shall, wherever possible and practicable, be face to face. Video or audio conferences will be the second choice of communication medium. Where video or audio conferences are not practical, e-collaboration will be the fall-back communication medium.
All formal meetings shall take place during normal the Customer Business Hours whether face to face or video or audio conferences and shall:
• Be set with an agenda per above in advance and have an identified chairman and note taker. The agenda should have clear directions of location and/or medium to be used; date and time of meeting; topic items to be covered and the expected outcome for each topic; owners of each topic; and any pre-work to be undertaken by topic owners or attendees
• Be documented with minutes by the notetaker, and such minutes are to include high-level summaries of key discussion points, future actions with expected deadlines and those persons responsible for the actions. Minutes should be distributed to attendees and missing attendees and any persons with actions to be taken
• Identify the person who shall be responsible for organizing the next meeting.
Each member of a committee or designated participant in a meeting described herein shall make all reasonable efforts to attend each session of the applicable meetings. If such person is not able to attend a meeting, he or she shall send a delegate in his or her place who is properly briefed and prepared and shall follow up with such delegate after the meeting. Any such replacement of a Service Provider member must be reasonably acceptable to the Customer.
3.4 Work Prioritization
Customer and Service Provider shall plan for and schedule Service Provider Key Personnel and Service Provider’s support personnel in accordance with (a) ongoing maintenance and steady state support needs, consistent with Service Level Agreements and the provisions of the applicable Statements of Work, and (b) business priorities , as determined by the Customer, will be established and updated periodically for the upcoming 90-day forecast. Service Provider shall forecast resource usage and required skill sets from the resource volumes with approval of the Customer, and endeavor to balance the workloads so that skills are available when needed, gaps are recognized in a timely manner, and Service Provider has sufficient staffing to perform its obligations hereunder. The Parties shall use quarterly variance trends and reports of expended effort, resource availability and variances, to assist with future staffing and skill requirements.
Service Provider’s Services Director shall provide ongoing reporting on a monthly basis as part of the Management Review Committee with respect to Service Provider’s split of its account resources as it relates to operations versus project-based work. The reporting shall include data on current account resourcing and forecasting for the following three month period.
4.0 Balanced Scorecard
Service Provider shall work with Customer to develop a balanced scorecard, which will serve and the primary artifact to be reviewed during the Executive Strategy Committee meetings. The balanced scorecard is required to gauge service performance, relationship quality and business alignment on an ongoing basis. In addition to quantitative SLAs, the scorecard will be balanced to Schedule 17 – Governance and Service Provider Key Personnel - 16 -
reflect qualitative measures such as Customer satisfaction, compliance to SOW roles and responsibilities, working environment from both Customer and Service Provider perspectives, continuous improvement, and other items that would reflect the effectiveness and acceptance of the delivered Services.
The following are the key areas that are to be measured and reported:
• Overall performance (e.g., operations, projects, contractual commitments and obligations, deliverables, Key Service Provider Personnel, named Service Provider resources)
• Improvement plan progress and results
• Operations and project-based resources demand and capacity Customer reporting and demand forecast
• Understanding Customer business
• End User satisfaction with the Services
The scorecard will serve as the primary vehicle for measuring the overall success of the relationship; therefore, it will be used by operational teams and governance bodies as a key standing agenda item.
For any work greater than 40 hours or involving oversight for different towers by a Project Management office, the following responsibilities will be applicable.
5.0 Project Management Office Services
Table 1. General Project Management Office Roles and Responsibilities.
General Project Management Office Roles and
Responsibilities
Unisys Customer
1. Initiate project kick off meeting X
2. Attend project kick off meeting X
3. Define project objectives X
4. Determine project requirements and scope X
5. Identify project stakeholders X
6. Provide necessary project documentation X
7. Allocate project budget and resources X
8. Create project schedule and allocate resources X
9. Define project milestones, timelines, and acceptance criteria X
10. Develop a detailed project plan (including deliverables and milestones)
X
11. Review and approve project milestones, timelines, and acceptance criteria
X
12. Review and approve project plans and deliverables X
13. Define roles and responsibilities for the project X
14. Manage adherence to project management methodologies X
15. Monitor project progress and update stakeholders X
16. Review project progress and provide feedback and approval X Schedule 17 – Governance and Service Provider Key Personnel - 17 -
General Project Management Office Roles and
Responsibilities
Unisys Customer
17. Manage project risks and issues X
18. Communicate project updates and Changes to stakeholders X
19. Approve project Changes and deviations X
20. Prepare project reports and documentation X
21. Deliver project outcomes and deliverables X
22. Accept and validate project deliverables X
23. Confirm projects meet acceptance criteria established in the project scope
X
24. Review and approve acceptance criteria X
Table 2. Demand Management Roles and Responsibilities.
Demand Management Roles and Responsibilities Unisys <Customer>
25. Submit the request using the Project Initiation Request (PIR) form for Unisys projects
X
26. Define the scope of the project including roles,
responsibilities, dependencies, and details which support the project scope.
X
27. Participate to define, review, and approve the scope of the project including roles, responsibilities, dependencies, and details which support the project scope.
X
28. Prepare project scope document to capture the following details and submit document to Customer for review and
approval. [Author, update list as needed.]
• Project resources
• Organizational chart
• Responsibility matrix
• Milestones
• Deliverables
• Assumptions
• Constraints
• Dependencies
• Checkpoint meeting
• Acceptance criteria
X
29. Review and approve the PIR, initiating PIR signature and PO generation as required.
X
30. Assign Unisys resources identified and in line with the agreed project plan.
X
31. Assign Customer resources identified and in line with the agreed project plan.
X
Table 3. Project Management Services Roles and Responsibilities.
Project Management Services Roles and Responsibilities Unisys Customer
32. Schedule and manage the project kick off meeting between Unisys and Customer.
X
Schedule 17 – Governance and Service Provider Key Personnel - 18 -
Project Management Services Roles and Responsibilities Unisys Customer
33. Manage the overall project, project plan and project schedules. X
34. Coordinate project activities between Unisys resources and Customer resources. X
35. Identify and assess the potential impact of, and determination of mitigation options for, risks having potential impact to the identified key milestones or deliverables to enable corrective actions to be taken by Unisys, Customer, or third parties.
X
36. As required, assist in risk mitigation and corrective actions required by Customer or third parties. X
37. Communicate to stakeholders, Unisys and Customer project personnel, and others, identified as informed parties, as to the project progress, status, and other information according to the project communication plan.
X
38. Identify, assign, track, and escalate, as appropriate, project issues occurring during project phases or raised during quality gate reviews.
X
39. Conduct steering committee meetings to review:
• Status of live projects
• Changes requiring approval.
• Formal closure of completed projects.
• Escalations and any decision making required.
• Top risk and issues review
• Unisys purchase orders awaiting approval, in
solutioning and awaiting approval to solution.
• Produce overall portfolio plan view
X
40. Prepare a project communications plan to support the success of the project. The plan will outline the audience, method, frequency, and sender for the stakeholder messages related to the project (e.g., meeting occurrences, deliverable acceptance requests, formal approvals, etc.) and note any communications constraints or assumptions. [Author, update this responsibility according to the project scope.]
X
41. Approve project communications plan. [Author, update this responsibility according to the project scope.] X
42. Provide regular status and progress reports, including meeting minutes and ad-hoc reports. X
43. Follow the Agreement to manage project Changes. X
44. Follow established Agreement to request or approve or reject project Change Requests as required. X
45. Manage and maintain required Changes to the project scope document.
X
46. Review and approve revisions to the project scope document. X
47. For approved Changes to the project scope document:
• Assign resources and tools required to deliver the
project.
• Leverage Unisys project management methodology to
deliver the project.
• Apply Unisys risk management methodology to the
project.
• Meet regularly review project progress with the
Customer.
X
Schedule 17 – Governance and Service Provider Key Personnel - 19 -
Project Management Services Roles and Responsibilities Unisys Customer • Follow escalation process outline below when issues
arise which affect agreed upon timelines for the
project.
48. Manage technical activities and project resources throughout the entire duration of the project.
X
49. Participate in project activities, governance meetings and review and approve Services.
X
50. Own and drive the continuous improvement efforts for the Unisys in-scope Services.
X
51. Review and approve continuous improvement solution X Schedule 17 – Governance and Service Provider Key Personnel - 20 -
Table 4. Unisys Project Management Resource Roles and Responsibilities.
Project Management Positions Roles and
Responsibilities
Unisys Customer
PMO Lead
52. Provide project team leadership and project oversight. X
53. Manage complex projects including project budget. X
54. Lead project team, including setting project objectives and priorities.
X
55. Assign and review project tasks, performance, and staffing requirements.
X
56. Create project statement of work to document project expectations and roles.
X
57. Report project risk and mitigation status to project sponsors and responsible for requesting assistance as needed.
X
58. Provide updates to project sponsors; communicate
deliverables, conduct meetings, obtain required sponsor sign off, and final acceptance to close project successfully.
X
59. Manage Change Management according to the Agreement. X
60. Manage activities of resources or groups of team members. X
61. Manage project demands and participate in analysis, design, and development of solutions to meet Customer demands.
Manage the progress of the demand, resource allocation, risk management, and project requirements.
X
62. Manage project definition, cost justification, analysis, design, development, modification, implementation, and supports project proposals.
X
63. Oversee project development and quotes according to all published standards and rates.
X
64. Consult with analysts and Customer and share technical expertise through the development and distribution of
documentation.
X
65. Manage communications for demand management and
status through regular written and/or oral communications, meetings, and status reports.
X
Project Manager
66. Manage resources or groups assigned to the project. X
67. Performs work assignments related to the management of large systems projects. Formulates plans, oversees, and participates in analysis, design, development, and
implementation of computer applications. Formulates project plans, oversees, and participates in review of progress, and has ultimate responsibility of the completion of the project on schedule and within budget. Provides resource allocation and support to confirm successfully completed work
assignments. Identifies potential problem areas and
implements solutions. Work with Customers within one or more departments to identify requirements for new projects.
X
68. Manages accurate project definition, cost justification, analysis, design, development, hardware and software
X
Schedule 17 – Governance and Service Provider Key Personnel - 21 -
Project Management Positions Roles and
Responsibilities
Unisys Customer
selection, modification, implementation, and maintenance of the project. Manages the implementation of complex or
technical projects, including large system development, enhancements, or distributed system projects.
69. Manage the development and implementation according to project guidelines.
X
70. Provide training and/or support the development of
documentation.
X
71. Provide regular written and/or oral communications, meetings, and status reports.
X
Schedule 17 – Governance and Service Provider Key Personnel - 22 -
Customer Project Resources
The following Customer project resources are assigned to provide project goals, requirements and project objectives. The Customer will assign the following resources, which play a key role in approving project plans, monitoring project progress and managing change within the organization.
The following table identifies the Customer positions roles and responsibilities associated with this SOW. An “X” is placed in the column under the party that will be responsible for performing the task.
Table 5. Customer Project Resource Roles and Responsibilities.
Customer Position’s Roles and Responsibilities Unisys Customer
72. Identify needed project Services. X
73. Participate in the project request and provide all necessary details. (e.g., project service required, urgency of the request, and any relevant documentation)
X
74. Provide clarification or additional information, including specific requirements or details.
X
75. Submit a Request for Unisys Project resources, if applicable. X
76. Monitor the progress of the project request and delivery within the agreed-upon timeframe.
X
77. Provide feedback on the quality of the project. X
78. Oversee Customer escalation management and collaborate with Unisys project lead to escalate issues or concerns and address issues promptly.
X
79. Review and approve requests. X
80. Oversee the project on behalf of the Customer, monitor alignment with the Customer objectives and monitor the
progress of the project.
X
81. Communicate project progress, issues, and risks with Customer stakeholders.
X
82. Review and approve the project plan, scope of the project, timelines, deliverables, and budget.
X
83. To review and approve potential risks and mitigation strategies. X
84. Manage Changes to the project scope, schedule, budget, and monitor Changes for proper documentation, communication, review, and approval.
X
85. Collaborate with Unisys project lead and monitor project for quality standards and controls.
X
86. Manage Customer project resources, including personnel, equipment, and materials, to verify that they are allocated effectively and efficiently.
X
87. Collaborate with Unisys project lead and manage project issues, including identifying the root cause, develop issue resolution plan, and communicate issue resolution to Customer stakeholders.
X
88. Review and approve requests and support process
optimization.
X
89. Review and provide input to develop the project plan, including project scope, timelines, deliverables, and budget.
X
90. Manage Customer project resources, provide guidance, support, and manage resources to meet Customer objectives.
X
Schedule 17 – Governance and Service Provider Key Personnel - 23 -
Customer Position’s Roles and Responsibilities Unisys Customer
91. Review and approve potential risks and develop mitigation strategies.
X
92. Communicate project progress, issues, and risks with Customer stakeholders, project resources, and management.
X
93. Manage Changes to the project scope, schedule, budget, and monitor Changes for proper documentation, communication, reviewed, and approved.
X
94. Collaborate with Unisys project lead and monitor project for quality standards and controls.
X
95. Manage Customer project resources, provide guidance, support, and manage resources to meet Customer objectives.
X
96. Review and approve potential risks and develop mitigation strategies.
X
97. Review and approve requests support process optimization. X
98. City to manage and oversee Third Party projects X
Schedule 17 – Governance and Service Provider Key Personnel - 24 -
IMPLEMENTATION PROJECTS
Unisys Managed Projects
For Project execution led by Unisys, the following RACI Matrix is applicable:
Task Responsible Accountable Consulted Informed
Project Charter Unisys PM Unisys PM IT Business Lead
Tower Leads
Project Stakeholders
Project Planning Unisys PM Unisys PM Tower Leads
IT Business Lead
Project Team
Project Stakeholders
Project Status/Reporting Unisys PM Unisys PM Project Team IT Business Lead Project Stakeholders
Issue/Risk Management Unisys PM Unisys PM IT Business Lead Project Team
Project Stakeholders
Vendor Engagement Unisys PM IT Business
Lead
Project Team
IT Business Lead
Project Deliverable
Execution
(IT & Business)
Project Team Unisys PM IT Business Lead
Tower Leads
Project Stakeholders
Project Escalation IT Business Lead Unisys PM Tower Leads Project Team
Project Stakeholders
PMO
Technical Documentation Project Team Unisys PM Vendor
Tower Leads
IT Business Lead
User/Training
Documentation
Vendor
City Trainer
Project Team
Unisys PM Vendor
IT Business Lead
End User Communications IT Business Lead Unisys PM City Trainer Project Team
Project Stakeholders
Project Internal
Communications
Unisys PM Unisys PM IT Business Lead Project Stakeholders Resource Management Unisys PM Business
Leads
Tower Leads
IT Business Lead
Project Budget
Management
IT Business Lead Dept
CIO
Vendor Unisys PM
Operational Support Model Unisys PM Tower Leads IT Project Team IT Business Lead Schedule 17 – Governance and Service Provider Key Personnel - 25 -
City Managed Projects (Unisys Managed IT Resources)
For Project execution led by City of Santa Clara, the following RACI Matrix is applicable:
Task Responsible Accountable Consulted Informed
Project Charter City PM City PM Unisys PM
Tower Leads
Project Stakeholders
Project Planning City PM City PM Unisys PM Project Stakeholders Project
Status/Reporting
City PM City PM Unisys PM Project Stakeholders
Issue/Risk
Management
City PM City PM Unisys PM Project Stakeholders
Vendor Engagement City PM City PM Unisys PM
Project Deliverable
Execution (Business)
Business Team City PM Vendor Unisys PM
Project Deliverable
Execution (IT)
IT Project Team Unisys PM Vendor
Tower Leads
City PM
Technical
Documentation
IT Project Team Unisys PM Vendor
Tower Leads
City PM
User/Training
Documentation
Vendor
City Trainer
City PM Vendor
End User
Communications
City PM City PM City Trainer
Project Team
Project Stakeholders
Project Internal
Communications
City PM City PM Unisys PM Project Stakeholders
Resource Management City PM Department
Heads
Tower Leads
Unisys PM
Project Budget
Management
City PM CIO Vendor PMO
Operational Support
Model
Unisys PM Tower Leads IT Project Team City PM
SCHEDULE 18
APPROVED SUBCONTRACTORS
TO
MASTER SERVICES AGREEMENT
BY AND BETWEEN
CITY OF SANTA CLARA
AND
UNISYS CORPORATION
Schedule 18 – Approved Subcontractors