The Center of What's Possible
AGENDA ITEM #: 3, 8 /
AGENDA REPORT
City of
Santa Clara
Date: May 16, 2017
To: City Manager for Council Action
Executive Director for Stadium Authority Information
From: Director of Information Technology/C10
Subject: Approval of Agreement with Unisys Corporation for Information Technology Outsourcing Services
EXECUTIVE SUMMARY
The City has engaged information technology outsourcing services for over 30 years. The current agreement with Unisys Corporation, approved byCouncil inAugust 2009, will complete its term on June 30, 2017.1n January 2016 Council approved a contract with Avasant, LLC, a sourcing advisory firm for its expertise in defining a new IT sourcing strategy, request for proposal, selection process, contract agreements and negotiations.
The study and market based analysis led to the determination that IT Services Outsourcing, and conducting a formal Request for Proposal (RFP) for such services was in the best interest of the City. The RFP was issued December 2, 2016 and included updated service requirements for all major service areas including IT infrastructure, applications and web, departmental IT solutions, and cross-functional services, such as cyber security, project management, and other critical deliverables.
Four firms filed an intent to bid with the City and two firms, CGI Group and Unisys Corporation, submitted qualified proposals. Both providers were invited to participate in an extensive evaluation process followed by updated proposals and reference checks being performed. The comprehensive selection strategy and high degree of departmental participation allowed the City to take a holistic view of its IT needs and select a provider that most closely aligned to that vision. Staff focused on the following strategic goals throughout the sourcing process:
• Optimize IT infrastructure, systems, and processes across the City • Enable applications modernization and business process streamlining • Establish a comprehensive cybersecurity program to protect City assets and user privacy • Source affordable IT services in support of delivering superb city services As a result of this process and key selection criteria, Unisys Corporation's proposal best met the needs of the City and was selected for final contract negotiations.
Subject: Approve Agreement with Unisys Corporation for Information Technology Outsourcing Services
The enhanced performance based contract with Unisys continues to mature IT services while making strategic changes to provide greater value to the City. The contract provides for 24x7 management of mission critical systems, cybersecurity services, application management for 180 applications, infrastructure management and project management. Improved end user services is a key focus area with an emphasis on increasing service desk and field service knowledge of department needs and providing users with value-added tools and processes.
As part of the transition to the new contract, Unisys will completely replace the information technology service management (ITSM) applications utilizing the ServiceNow platform, and will be implementing additional industry best practices for service and project delivery.
Based on this thorough process, staff recommends awarding the IT Services Contract to Unisys Corporation for a four-year term, with the options for four one-year extensions at the City's discretion. It is desirable that these types of service contracts be long term to negotiate better terms, and to ensure consistency of staffing and expertise. Past City IT outsourcing agreements have been in the five-year range with additional option years.
As true with multi-year agreements, the execution of the term of this Agreement is contingent on annual Council budget appropriations.
•A copy of the Agreement for the Performance of Services with Unisys Corporation can be viewed on the City's website and is available in the City Clerk's Office for review during normal business hours.
ADVANTAGES AND DISADVANTAGES OF ISSUE
This agreement supports the updated IT mission and provides for a higher level of IT services in support of City and departmental services to the community and management of critical systems. The agreement is in line with market pricing.
There are no identified disadvantages to this Agreement.
ECONOMIC/FISCAL IMPACT
The cost of agreement with Unisys Corporation for Information Technology Services will not exceed $36,522,000 over the initial 4-year term of the contract. The planned cost associated with FY 2017/18 is $8,143,000.
The appropriation will be budgeted in FY 2017/18 in various funds and departments General Government Capital Project account (539-33XX-80)0(X-6103); General Fund Operating Account (001-1931-87870); in the Electric Department Operating Accounts (191-1312-87870) and (091- 13XX-87870); and the Stadium Authority Operating Account (870-8345-87800). Appropriations for future years will be requested and approved through the annual budget process.
Subject: Approve Agreement with Unisys Corporation for Information Technology Outsourcing Services
RECOMMENDATION
That the Council approve, and authorize the City Manager to execute the Agreement for the Performance of Services with Unisys Corporation for Information Technology Outsourcing Services, for a total_arpount not to exceed $36,522,000.00 over the initial term of the contract.
Gaurav Garg
Director of Information Technology/C10
Certified as to Budget Form: Ok-I ,F
001-1931-87870 $ 7,678,000.00
539-33XX-80XXX-6103 $ 325,000.00
191-1312-87870-F94100 $ 50,000.00
091-13)(X-87870-F92300 $ 50,000.00
870-8345-87800 $ 40,000.00
Angela Kraetsch
Acting Director of Finance
Acting Finance Director for Stadium
t e"ti 1937‘-10Y
Authority
Raje v Batra
City Manager FIVE COUNCIL VOTES
Executive Director for Stadium Authority
Documents Related to this Report:
Master Service Agreement for Information Technology Outsourcing Services by and between City of Santa Clara and Unisys Corporation
APPROVED:
Department Heb-
■ A. ,;j1iild,2
City Attorney s •.fice/e• Assign. No HD„ I3-17
City Mahager
COUNCIL AND AUTHORITIES
AGENDA MATERIAL ROUTE SHEET
Council Date: 5/16/17
SUBJECT: Approve Agreement with Unisys Corporation for Information Technology Outsourcing Services
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Federal Regulations:
California Codes:
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(i.e., Government, Street and Highway, Public Resources) California Regulations:
Title C.F.R. §
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Title California Code of Regulations §
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City Regulations:
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(i.e., 1310. Public Works Contracts. Notice published at least once at least ten days before bid opening) Reviewed and approved:
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*Agenda Material Route Sheet required for all agreements, contracts, resolutions, ordinances, notices requiring publication, master plan reports and grant applications CA(S)DrivelAgendaReportProcessing1FormsAndInformation1WhiteRouteSheetForAgendaMaterial.doe Rev. Date 01-18-17
MASTER SERVICE AGREEMENT
FOR INFORMATION TECHNOLOGY OUTSOURCING SERVICES
BY AND BETWEEN
CITY OF SANTA CLARA
AND
UNISYS CORPORATION
Master Service Agreement
TABLE OF CONTENTS
1. INTERPRETATION 4
2. AGREEMENT STRUCTURE 5
3. SCOPE OF SERVICES 5
4. TRANSITION 8
5. OPERATION 9
6. INDEPENDENT CONTRACTOR 12
7. SERVICE PROVIDER STAFF 12
8. FACILITIES USE 15
9. MANAGED AND ASSIGNED AGREEMENTS 16
10. SERVICE LEVELS 18
11. PAYMENT TERMS 18
12. MOST FAVORED CUSTOMER 20
13. BENCHMARK1NG 20
14. COMPLIANCE AND AUDIT 20
15. TERM AND TERMINATION 23
16. INTELLECTUAL PROPERTY RIGHTS 27
17. CUSTOMER DATA AND INTANGIBLE PROPERTY 29
18. SECURITY AND CONFIDENTIALITY 29
19. REPRESENTATIONS, WARRANTIES, AND COVENANTS 31
20. ADDITIONAL COVENANTS 32
21. GOVERNANCE 33
22. INDEMNIFICATION 35
23. DAMAGES 37
24. INSURANCE 39
25. FORCE MAJEURE 39
26. NOTICES 40
27. NON-SOLICITATION 41
28. RELATIONSHIP 41
29. SEVERABILITY 41
30. WAIVER 41
31. PUBLICITY 42
32. GOVERNING LAW 42
33. ASSIGNMENT AND DIVESTITURE 42
34. GOOD FAITH 42
35. FURTHER ASSURANCES 42
36. NO THIRD PARTY BENEFICIARIES 42
37. COUNTERPARTS 43
38. ENTIRE AGREEMENT 43
Master Service Agreement
TABLE OF SCHEDULES
Schedule 1 Definitions
Schedule 2 Final Service Tower Solutions
Schedule 3 Statements of Work
Schedule 4 Service Levels
Schedule 5 Fees
Schedule 6 Benchmarking
Schedule 7 Reports
Schedule 8 Managed and Assigned Agreements
Schedule 9 Key Service Provider Personnel
Schedule 10 Security Protocol
Schedule 11 Acceptance Procedures
Schedule 12 [RESERVED]
Schedule 13 Transition Services and Deliverables
Schedule 14 Change Control Procedures
Schedule 15 Service Locations
Schedule 16 Termination Assistance
Schedule 17 Governance Model
Schedule 18 Approved Subcontractors
Schedule 19 Customer Software
Schedule 20 [RESERVED]
Schedule 21 [RESERVED]
Schedule 22 Service Provider Software and Service Provider Materials Schedule 23 Disaster Recovery Plan
Schedule 24 Consents
Schedule 25 [RESERVED]
Schedule 26 Invoice Format
Schedule 27 Internal Controls and Procedures
Schedule 28 Financial Responsibility Matrix
Schedule 29 Customer Insurance Requirement
Schedule 30 Customer Ethics Policy
Master Service Agreement
THIS MASTER SERVICE AGREEMENT ("Agreement" and "MSA") is entered into as of July 1, 2017 ("Effective Date") by and between the City of Santa Clara, California, a chartered California municipal corporation and its affiliated local agencies with its primary business address at 1500 Warburton Avenue, Santa Clara, California 95050 ("City" and "Customer"); and Unisys, a Delaware corporation, with its principal place of business located at 801 Lakeview Drive, Suite 100, Blue Bell, Pennsylvania 19422 ("Service Provider" and "Contractor"). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement." WHEREAS, in response to Customer's request for proposals to provide certain information technology outsourcing services to Customer ("Request for Proposal"), Service Provider submitted to Customer its proposal to provide information technology outsourcing services to Customer ("Proposal"); and
WHEREAS, Service Provider has represented that it is a competent, qualified, and experienced provider of IT services of the type required by this Agreement, and has advised City that it can fulfill and satisfy the requirements of this Agreement.
WHEREAS, based on the Proposal, Customer and Service Provider have engaged in extensive negotiations and discussions that have culminated in the formation of the relationship described in this Agreement with respect to the information technology outsourcing services in order to:
Create advantage for Customer and Customer's end-users through the outsourcing of the Services (as defined below), achieve best-in-class standards and sustain and enhance such standards through continuous improvement;
Reduce Customer's current expenditure on operations and support activities for IT systems by obtaining competitive market prices and introducing best of breed support processes through the provision of the Services as provided in this Agreement; Improve Service Levels through regular assessment and reviews of all processes and procedures for the performance of the Services, and improve overall productivity to provide significant value to Customer; and
Provide a prompt and smooth Transition (as defined below) of the Services in accordance with the Transition Plan (as defined below) with minimum disruption to Customer's business.
NOW THEREFORE, the Parties hereby agree as follows:
1. INTERPRETATION
1.1 Defined Terms. The defined terms used in this Agreement will have the meanings set forth in Schedule 1 or stated where they first appear, unless the context clearly requires otherwise.
1.2 Reference to Statutes. A reference to any statute, enactment, order, regulation or other similar instrument will be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof.
1.3 Headings. Headings are in this Agreement for ease of reference only and will not affect the interpretation or construction of this Agreement.
1.4 Interpretation. The recitals above are (i) intended as a general statement of purposes for this Agreement; and (ii) are not intended to expand or contract the scope of the Parties' obligations or to alter the plain meaning of this Agreement's terms and conditions. However, the Parties do intend that the Agreement be interpreted and performed in a manner consistent with these objectives.
Master Service Agreement
1.5 Section References. References to Articles, Sections, Schedules and Appendices are, unless otherwise provided, references to articles, sections, schedules and appendices to this Agreement.
1.6 "RESERVED'.
1.7 Waiver of Presumption. The Parties are sophisticated and have been represented by counsel during the negotiation of this Agreement. As a result, any presumption or rules of construction relating to the interpretation of contracts against the drafter thereof should not apply. The Parties hereby waive any such presumption or rule.
2. AGREEMENT STRUCTURE
2.1 General. This Agreement sets out the Parties agreement as to the provision of Services from Service Provider to Customer.
2.2 "RESERVED'.
2.3 IRESERVED1.
2.4 Order of Precedence. This Agreement, all Schedules thereto, will be construed to be consistent, insofar as reasonably possible. In the event of any conflict between the provisions of the Master Service Agreement, the Schedules thereto, the conflict will be resolved in accordance with the following order of precedence: first, the Master Service Agreement; and second, the Master Service Agreement Schedules; provided, however, that any specific description of any service or other performance obligation in any Schedule will supersede any inconsistent general reference in the relevant agreement.
2.5 Amendment, Modification. This Agreement may only be amended, varied or modified by further written agreement of authorized representatives of Service Provider and Customer. Any such amendment, variation or modification will be binding upon both Parties.
2.6 IRESERVED1.
2.7 IRESERVED1.
2,8 'RESERVED'.
2.9 f RESERVED".
3. SCOPE OF SERVICES
3.1 Services. Commencing on the effective date of each Service, whether under this Agreement and its Schedules, and continuing throughout the term of said agreements, Service Provider will be responsible for providing to Customer:
3.1.1 The tasks, services, functions and responsibilities described in this Agreement (the services, functions and responsibilities described in the Schedule 3, Service Description, attached hereto), or in any of the other associated Schedules, Appendices or other documents attached to this Agreement and incorporated herein by reference;
3.1.2 The services, functions and responsibilities being performed within the twelve (12)-month period prior to the Effective Date by Customer's personnel or contractors whose services, functions or responsibilities are displaced or transitioned as a result of this Agreement, even if the service, function or responsibility is not specifically described in this Agreement or any Service Description;
Master Service Agreement
3.1.3 The services, functions and responsibilities contemplated by the Customer's Base Case;
3.1.4 Any services, functions or responsibilities not specifically described in this Agreement, but which are inherent in or necessary for the proper performance and delivery of the Services and not otherwise expressly excluded by the Parties;
3.1.5 Other miscellaneous activities related to the Services that Customer may request from time to time that do not require additional resources or affect Service Levels or other agreed performance standards; and
3.1.6 If any functions not specifically described in this Agreement are required, necessary or customary for, or incidental or ancillary to, the proper performance and provision of the Services in accordance with the requirements of this Agreement (including the performance standards), such functions will be deemed to be implied by and included within the scope of the Services (and provided to Customer at no additional charge) to the same extent and in the same manner as if expressly described in this Agreement.
3.2 Project Services. The Services contain certain Project Services. Personnel assigned to perform Project Services will possess the training, education, skills and competence necessary to perform their assigned responsibility, and unless Customer otherwise agrees, will be chosen from personnel ordinarily assigned to the performance of Services for Customer. When Service Provider proposes additional staff or resources for Project Services, Customer, at its option, may: (i) temporarily relieve Service Provider of Service Level obligations, so that Services may be performed with available staff or resources, without additional Charges or undue impact upon operations or user satisfaction; or (ii) authorize additional staff and resources, for which Customer will pay based on approved contract rate card, or (iii) adjust against any available credits to the Customer. There will be no additional charge for Project management performed by Contract Staff ordinarily assigned to performance of Services for Customer.
3.3 Location of Services. All Services will be provided by the Service Provider either at Customer premises or from the Service Provider Service Location specified in the applicable Service Description within the United States. No Services, in part or in full, will be performed from any Service Provider Service Location outside the United States, without expressed agreement of the Customer.
3.4 Reports. Service Provider will provide to Customer, the monthly and other periodic reports concerning Service Provider's service and performance specified in Schedule 7, Reports, such as data that are necessary and appropriate for the calculation and/or review of Service Levels and weekly time sheets for Customer dedicated personnel reflecting activities performed by the Service Provider.
Additional reporting requirements and change procedures related to reporting are specified in Schedule 17, Governance Model. Periodic reports may be based upon Service Provider's standard forms of reports to its customers, if they provide the information that Customer reasonably requires or the reporting shall be based on the format specified by the Customer. Reporting requirements will contain read-only online access for responsible Customer management to tools used to manage delivery of service (e.g., "dashboards" for Service Level performance, trouble-ticket systems). Service Provider will provide all tools and procedures required for reporting Service Levels are implemented and customized as required at no additional cost to Customer.
3.5 fRESERVEDT.
3.6 Out-of-Scope Services and New Services. Customer may from time to time request that Service Provider perform an Out-of-Scope Service and New Services. Within five (5) business days of Customer's request, Service Provider will provide Customer with a written proposal for such Out-of-Scope Service or New Services that will address (i) a description of the services, functions and responsibilities Service Provider anticipates performing in connection with such Out-of-Scope Service or New Services; (ii) a schedule for commencing and completing such Out-of-Scope Service or New Services with commencement not later than thirty (30) days after Customer's approval (if any) of such Out of Scope
Master Service Agreement
Service or New Services, unless otherwise mutually agreed by the Parties; (iii) Service Provider's prospective fixed price Fees for such Out-of-Scope Service or New Services, with a detailed breakdown of such Fees; (iv) a description of any new software or hardware to be provided by Service Provider in connection with such Out-of-Scope Service or New Services; and (v) such other information as may be requested by Customer.
The proposal shall constitute Service Provider's firm offer, irrevocable for ten (10) business days (or such longer period as required by such proposal, the "Response .Period"), to perform such services as described in such proposal upon the terms and conditions set forth therein. Prior to the expiration of the Response Period, Customer shall notify Service Provider in writing if Customer elects to accept Service Provider's proposal and proceed with implementation of the Out-of-Scope Service or New Services upon the terms and conditions set forth therein (any such notice, a "Notice to Proceed"). If, within the Response Period, Customer gives notice to Service Provider not to proceed, or fails to give any notice to Service Provider, then Provider's proposal shall be deemed rejected and the proposal for the Out-of-Scope Service or New Services shall be deemed withdrawn, and Service Provider shall take no further action with respect to either. Upon Customer's issuance of a Notice to Proceed during the Response Period, as described above, Service Provider's proposal shall be deemed accepted by Customer and the terms and conditions thereof (as modified by written mutual agreement of the Parties in negotiations prior to issuance of such Notice to Proceed) shall be deemed to constitute such Out-of-Scope Service or New Services.
3.6.1 Service Provider will not begin performing any Out-of- Scope Service or New Services unless and until the Change has been approved in accordance with the Change Control Procedures (as defined in Section 5.6).
3.6.2 If Changes can be effected or Out-of-Scope Services or New Services performed with the resources available for performance of the Services, there will be no adjustment in Service Provider's Fees (other than through normal operation of charging metrics for additional or reduced consumption of chargeable resources). Service Provider's Fees for Out-of-Scope Services or New Services involving net additional or reduced resources will be at the rates specified in Schedule 5, Fees, unless there is no applicable fee specified for the type of Out-of- Scope Service or New Services requested and the Fees specified cannot reasonably be applied, in which case Service Provider's Fees for Out-of- Scope Services or New Services will be no higher than the fees that Service Provider then offers to its most favored customers.
3.6.3 The Parties will consider in good faith opportunities for gain-sharing with respect to Out-of-Scope Services or New Services.
3.7 Customer Performance of Services. This is a non-exclusive Agreement. Customer has the right to perform itself, over the Initial Term, or retain third parties to perform, any of the Services or the Out-of-Scope Services or New Services. To the extent Customer performs any of the Services or the Out- of-Scope Services or New Services itself, or retains third parties to do so, Service Provider will cooperate with Customer or such third parties as reasonably required to transition such Services to Customer or Customer's retained third parties. Service Provider's obligation to cooperate is subject to any third party agreement to the confidentiality restrictions that this Agreement imposes on Customer, and such cooperation will respect Service Provider's and Customer's commitments to contractual restrictions and obligations imposed by third party suppliers. In the event Customer reduces the Services pursuant to this Section, the Fees will be adjusted in accordance with applicable charging metrics and, if no such metric applies, the Change Control Procedures, to reflect the reduced scope of Services being provided by the Service Provider.
3.8 Business Continuity and Disaster Recovery. Service Provider will provide the business continuity services and disaster recovery services as specified in Schedule 23, Business Continuity and Disaster Recovery Plan, and that are specified in the applicable Service Description and Procedures Manual. In the event of a disaster, personnel ordinarily assigned to the performance of Services for Customer under this Agreement will, at Customer's request, be made available to perform business
Master Service Agreement
continuity and disaster recovery services in cooperation with Customer. Service Provider will be excused from all SLAs impacted by such Customer requested personnel reallocation.
3.9 Excuse from Performance. In addition to the excused performance contemplated under Section 25 (Force Majeure), Service Provider will be excused from failures to achieve the Critical Transition Milestones, perform the Services, meet or exceed the Service Levels in this Agreement to the extent that (i) Customer fails to perform the retained services identified in the Service Description or other provisions of this Agreement and (ii) such failure or other acts or omissions of Customer or its agents (not undertaken at Service Provider's direction or with Service Provider's consent) directly causes Service Provider's failure to perform; provided, however, that Service Provider must (a) give Customer prompt notice of Customer's failure to perform such retained services resulting in such performance failure, (b) use its reasonable efforts to continue to perform despite Customer's failure to perform retained services and (c) use its reasonable efforts to mitigate the adverse consequences of Customer's failure to perform such retained services.
3.10 Additional Services. Other California local governmental bodies may be eligible upon mutual agreement between Customer and Service Provider to participate in this Agreement pursuant to the terms and conditions of the Agreement for the purchase of like services if such bodies are authorized, by law or their governing bodies, to execute such purchases, and if such authorization is allowed by Customer.
4. TRANSITION
4.1 General. Service Provider will perform or cause its Subcontractors to perform (as the case may be) all functions and services set forth in the Transition Plan and as otherwise necessary to accomplish the Transition of the Services from Customer to Service Provider, and will complete the Critical Transition Milestones on or before the dates set forth in Schedule 13 ("Transition Services").
4.1.1 Customer will not incur separate charges for Transition Services, beyond those identified in Schedule 5.
4.1.2 The Transition Services will be performed in accordance with the Transition Plan, in a manner intended to minimize any adverse impact on Customer's business and without causing a material disruption to Customer's business or operations.
4.1.3 Customer will perform or cause its agents and subcontractors (as the case may be) to perform all of its obligations set forth in the Transition Plan in a timely manner that will not prevent or delay the Transition or Service Provider's timely completion of the Critical Transition Milestones. In the event that action or inaction of Customer or any agent or subcontractor (other than action or inaction undertaken at Service Provider's direction or with its consent) prevent or delay Transition or any Transition Milestone, Service Provider's performance will be excused for the period of the delay caused by Customer. In the event that action or inaction of Service Provider or any Service Provider's agents or subcontractors prevents or delays any Transition Milestones or Critical Transition Milestones, Customer shall be entitled to Corrective Assessments, if any, set forth in the Transition Plan.
4.1.4 Service Provider will designate an overall manager for all Transition related activities and Services (the "Transition Manager"). Until the Transition has been completed, such Transition Manager will review with the Customer Contract Executive or designated Transition Manager the status of the Transition Services for which that individual is responsible on a weekly basis.
4.2 Relocation of Service Provider Operations. Any relocation of a material portion of Service Provider's operations related to any Services will be conducted pursuant to a formal, written migration plan for orderly transition and uninterrupted Service prepared by Service Provider and approved by Customer. Any breach of such a migration plan by Service Provider will constitute a breach of this Agreement. All of Service Provider's obligations contained in this Agreement will continue to apply during
Master Service Agreement
and after any such relocation or migration (except to the extent expressly excused at specific times in a migration plan). Relocation of Service Provider's operations to countries other than those where such operations are then performed will be conditioned upon Customer's agreement, in its sole discretion, which may depend upon reductions in applicable fees for Services related to those operations. Without limiting the foregoing, any relocation of Service Provider's operations related to any Services shall require Customer's prior approval.
4.3 Extension of Commencement Date. The following terms will apply to an extension of a Service Commencement Date.
4.3.1 Upon notice from Customer that Customer desires Service Provider to extend a Service Commencement Date by more than thirty (30) days, Service Provider will extend the Transition Schedule for the applicable period of time Customer has requested, and Customer will reimburse Service Provider for any additional verifiable direct costs or expenses reasonably incurred by Service Provider as a result of such delay.
4.3.2 If a Service Commencement Date is extended for more than thirty (30) days as a result of delays caused by Service Provider: (i) Service Provider will reimburse Customer for any verifiable direct costs or expenses incurred by Customer as a result of such delay, including the cost associated with procuring Services from a third party; and (ii) Customer may terminate this Agreement for cause in accordance with the provision 15.4.1 of this Agreement.
4.3.3 If either Party incurs costs in connection with the extension of the Transition Schedule for which the other Party is responsible pursuant to this Section, the Party incurring the costs will be obligated to use all commercially reasonable efforts to minimize such costs.
4.4 Consents, Service Provider will obtain, at Service Provider's expense, Consents required to use Service Provider Third-Party Software and Service Provider Software, as each is defined in Schedule 24. Customer will obtain, at Customer's expense and with administrative assistance from Service Provider, Consents required to use Customer Third-Party Software and Customer Software as each is defined in Schedule 24. Customer will pay any additional charge for Consents obtained to allow Customer to continue to use the Service Provider Third Party Software after termination of this Agreement. Customer will pay such costs unless Schedule 24 specifies that Service Provider will acquire a perpetual use license for Customer. Service Provider will be required to obtain Consents that allow Customer to continue to use Service Provider Third Party Software after the termination of this Agreement only as is specified in Article 16, Intellectual Property Rights. Without limiting the generality of the foregoing, Customer shall have the right to determine when it may be necessary or desirable to acquire a license to a substitute product, at Customer's expense, if Service Provider is unable to obtain Consent on commercially reasonable terms and in a commercially reasonable time. In no event will Service Provider use any Customer Software in the absence of an appropriate Consent.
5. OPERATION
5.1 Service Locations. The Services will be provided to Customer from the Service Locations as specified in Schedule 15, Service Locations, at the locations specified in Schedule 15, and any other location for which Service Provider has received Customer's approval.
5.1.1 [RESERVED].
5.1.2 [RESERVED].
5.1.3 Service Provider will bear any costs of transition occasioned by Service Provider's relocation of Services as a result of changes in Law where the change in location is not addressed in Schedule 15 or otherwise requested by Customer. If any change in Law requires Customer's relocation of Services, Customer will bear any costs of transition occasioned by such relocation.
Master Service Agreement
5.1.4 Any change in the location where the Services are performed during the term of this Agreement must be approved in advance and in writing by Customer in accordance with Section 4.2, above. Customer will not unreasonably withhold or delay consent, but Customer may condition its consent upon reasonable assurances of timely performance without any material disruption or interruption of the Services, such as approval and performance of a mutually agreed migration plan. Customer will have the right to withhold consent if a change in Service Location results in Services being performed from a location outside the United States.
5.1.5 Any relocation of operations undertaken at Service Provider's initiative will be undertaken in accordance with Section 4.2, above, at Service Provider's expense (such as, reimbursement of Customer's reasonable, actual costs related to relocation, payment of any and all taxes attributable to relocation, taxes, or increases in taxes upon the Services, and reimbursement of any additional, continuing costs related to relocation).
5.1.6 In the event that any change has a material increase on the Fees, Customer will not bear or be charged or be responsible for any additional one-time or ongoing expenses or Fees as a result of the relocation of Services. Customer will have the right to terminate this Agreement upon notice to Service Provider, without any obligation to pay any Termination for Convenience Fees or other amounts if the Service Location change has material impact on Fees.
5.2 English Language. All records and invoices will be maintained in and all oral and written communications (including without limitation meetings, telephone calls, reports, notices and conferences) will be conducted exclusively in the English language. Unless otherwise agreed in writing, all Contract Staff, including Key Personnel, will be fluent in the English language (or the language of those with whom they interact), and those who interact with Customer employees, customers and vendors must be readily understandable to those employees.
5.3 Customer Architecture, Policies and Procedures. In providing the Services to Customer, Service Provider must adhere to Customer's information management technical architecture, standards, guidelines, policies and procedures, Customer's applicable internal controls as they may be modified and communicated in writing to Service Provider by Customer prior to Effective Date provided, however, that if Customer modifies its technical architecture in a manner that requires Service Provider to acquire new hardware, software or other resources that materially increases Service Provider's costs above what had been planned and such is not a scheduled update or upgrade to the existing Software or hardware used to provide the Services, the modification will be considered a Change that is subject to the Change Control Procedure. Except as provided in this Article 5.3 adjustments in Services in accordance with this Section will be deemed to be within the scope of the Services to the same extent and in the same manner as if expressly described in this Agreement.
5.4 Currency of Services, Technology. Service Provider will, without any additional Fee, cause the Services, as approved by Customer, to evolve and to be modified, enhanced, supplemented and replaced as necessary for the Services to keep pace with technological advances and advances in the methods of delivering services. In particular, and without limiting the generality of the preceding sentence, Service Provider's software, tools, utilities, methodologies, processes and other normal procedures for performing Services will be upgraded and enhanced as and when upgraded or enhanced for Service Provider's own business and the support of its customers generally; Service Provider will keep such software, tools, utilities, methodologies, processes and other normal procedures on current supported releases as reasonably determined by Customer; Service Provider will keep material hardware for which Service Provider has financial responsibility, as designated in Schedule 28, Financial Responsibility Matrix, under warranty and/or manufacturer's service contracts; and Service Provider will refresh hardware for which Service Provider has financial responsibility, as designated in Schedule 28, at reasonable intervals, consistent with good industry practice and as required to achieve agreed performance standards. Third party tools and utilities used to perform Services will be maintained on current, or near-current, supported releases. Adjustments in Services in accordance with this Section will be deemed to be within the scope of the Services to the same extent and in the same manner as if expressly described in this Agreement.
Master Service Agreement
5.5 Procedures Manual. Within ninety (90) days after the Effective Date, with Customer's input and cooperation, Service Provider will prepare a Procedures Manual in the form and scope agreed to by the Parties and will deliver the procedures manual to Customer, for Customer's approval ("Procedures Manual").
5.5.1 The Procedures Manual will contain Service Provider's procedures for performing the Services so that the Services are performed accurately and in a timely manner, and will contain all operations manuals, support plans and user guides necessary and sufficient to document such procedures to Customer's satisfaction. Service Provider will perform the Services in accordance with the Procedures Manual.
5.5.2 Following Customer's review of the Procedures Manual, Service Provider will proactively revise the Procedures Manual on an ongoing basis and will resubmit the Procedures Manual for approval, as reasonably requested by Customer. On at least an annual basis, and at least 30 days prior to each anniversary of the Service Commencement Date, Service Provider will update the Procedures Manual to reflect any Changes in the operations or procedures described.
5.6 Change Control Procedures. Customer or Service Provider may propose Changes. All such Changes will be implemented pursuant to the procedures set forth in Schedule 14 ("Change Control Procedures").
5.6.1 Subject to Article 5.8 routine changes, such as all Changes that do not require material, net additional cost, effort or resources, or that can be accommodated with the resources ordinarily available for performance of the Services without impact to Service Levels, Projects or Deliverables, will not result in any increase or decrease to the Fees. Charges for Changes that do require material, net additional cost, effort or resources, or that cannot be so accommodated, will be determined in accordance with Section 3.6.2, above.
5.6.2 If Service Provider and Customer are not able to agree on (i) the effect of the Change, if any, on the Fees and the manner in which such effect was calculated, (ii) the effect of the Change, if any, on Service Levels and any necessary revisions thereto, or (iii) the anticipated time schedule for implementing the Change, then the issue will be resolved in accordance with the dispute resolution procedure set forth in the Schedule 17, Governance Model, and Article 21 of this Agreement; provided, however, Service Provider will not proceed with any Change while the Parties seek to resolve such disagreement. Service Provider shall not implement any change in its performance of Services that would have a material, adverse effect upon Customer's use or receipt of the Services, or increase Service Provider's Fees or Customer's other costs, without Customer's approval, which Customer may give or withhold in its sole discretion. Service Provider may make temporary changes in its operations required by an emergency if prior approval is impractical, but in such cases shall promptly document and report such emergency changes to Customer. If Customer agrees that such temporary Change was reasonably required, Customer agrees to reimburse Service Provider for reasonable costs of implementing such temporary Change.
5.6.3 Service Provider will not be required to comply with any such Change request if its compliance will violate applicable Law. Service Provider will promptly inform Customer if it determines it cannot implement the Change mandated by Customer and comply with applicable Law.
5.6.4 Service Provider will not invoice, and Customer will not be liable for, any Change or Out-of-Scope work performed by Service Provider unless a Change has been approved in accordance with the Change Control Procedures. The Fees for such work will be specified in the applicable Change request form.
5.7 fRESERVED1.
5.8 Prioritization of Scheduling. Service Provider agrees that Customer will retain final discretion over the priorities in scheduling performance of the Services, such as any Projects, and may
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change priorities from time to time via the Governance Processes. If a change in priorities by Customer will adversely affect any Service Level, Service Provider will, if practicable notify Customer's Contract Executive of the expected impact ("Impact Assessment") of the change in priorities. If Customer's Contract Executive approves the change in priorities, and there is a failure to meet a Service Level that Service Provider notified Customer may occur in the Impact Assessment, then the failure to meet the Service Level will be excused to the extent caused by the change in priorities. Customer acknowledges that changes in priorities may affect ongoing performance of Services and Fees and other costs to Customer. Service Provider agrees to cooperate with Customer and use diligent efforts to minimize additional costs, Fees or other adverse effects, and further agrees that Customer may adjust priorities, temporarily relieve Service Provider from Service Level or other obligations or authorize additional staff, Services or other resources in Customer's sole discretion.
6. INDEPENDENT CONTRACTOR
Service Provider and all person(s) employed by or contracted with Service Provider to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of Customer. Service Provider has full rights to manage its employees in their performance of Services under this Agreement. Service Provider is not authorized to bind Customer to any contracts or other obligations. Neither Party's personnel will be eligible to participate in any of the employee benefits or similar programs of the other Party. Service Provider will inform the Contract Staff that they will not be considered employees of Customer for any purpose, and that Customer will not be liable to any of them as an employer in any amount for any claims or causes of action arising out of or relating to their assignment in connection with this Agreement or release therefrom. Service Provider is responsible for determining, providing and administering all compensation paid and benefits provided to the Contract Staff, and is responsible for withholdings for FICA, federal, state and local income taxes on wages and benefits for the Contract Staff. Service Provider is responsible for the eligibility of the Contract Staff to work in each jurisdiction where they are providing Services to Customer and for reporting to the appropriate federal, state and local agencies all compensation and payment of all applicable taxes arising therefrom. Customer has no authority to supervise, discipline, direct, control or instruct any of Service Provider's personnel.
7. SERVICE PROVIDER STAFF
7.1 Service Provider Contract Executive. Service Provider will appoint the individual specified in Schedule 9 to be the Service Provider Contract Executive. The Service Provider Contract Executive will, from the date of this Agreement serve, on a full-time basis, as Service Provider's primary representative under this Agreement.
7.1.1 Service Provider's appointment of any Service Provider Contract Executive will be subject to Customer's approval.
7.1.2 The Service Provider Contract Executive will (i) serve as Service Provider's single point of accountability for the Services, (ii) have day-to-day authority for facilitating Customer satisfaction and (iii) be authorized to act for and on behalf of Service Provider with respect to all operational matters relating to this Agreement.
7.1.3 [RESERVED].
7.1.4 Service Provider agrees that Customer satisfaction will be a key performance incentive for the compensation of the Service Provider Contract Executive. Customer may provide recommendations to Service Provider regarding the criteria to be used in evaluating the Service Provider Contract Executive's eligibility for incentive-based compensation. Service Provider will (i) consider such recommendations in good faith, (ii) implement such recommendations, to the extent consistent with Service Provider's policies regarding incentive- based compensation, and (iii) notify Customer if Service Provider is not able to implement any such recommendations.
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7.2 Key Service Provider Personnel. The individuals specified in Schedule 9 will be the initial Key Service Provider Personnel. All Key Service Provider Personnel will be dedicated to the Customer account on a full-time basis unless otherwise agreed by Customer.
7.2.1 Before assigning any new individual to a Key Service Provider Personnel position, Service Provider will (i) consult with Customer regarding the proposed assignment, (ii) introduce the individuals to appropriate representatives of Customer and provide Customer the opportunity to interview such individual, (iii) subject to applicable Law, provide Customer with any information regarding the individuals that may be reasonably requested by Customer, (iv) agree to Customer's request to conduct a background check on such individuals and (v) obtain Customer's approval for the proposed assignment.
7.2.2 [RESERVED].
7.3 Replacement. Service Provider will replace or reassign the Service Provider Contract Executive and Service Provider Key Personnel only in accordance with this Section.
7.3.1 Service Provider will not replace or reassign any of the Key Service Provider Personnel, without Customer's prior consent, which consent shall not be unreasonably withheld, for twenty-four (24) months from the Effective Date (in the case of those initially assigned), or the date of an individual's first assignment to the Customer account, as applicable, unless Customer consents to such reassignment or replacement or such person (i) voluntarily resigns from Service Provider, (ii) is dismissed by Service Provider for cause, (iii) fails to perform his or her duties and responsibilities pursuant to this Agreement or (iv) dies or is unable to work due to his or her disability.
7.3.2 After the initial twenty-four (24) month period, Service Provider will not reassign any of the Key Service Provider Personnel without prior consultation with Customer and with thirty (30) days prior written notice.
7.3.3 If Customer decides that any of the Key Service Provider Personnel should not continue in that position, then Customer may, in its sole discretion and upon notice to Service Provider, require removal of the Key Service Provider Personnel from the Contract Staff. Service Provider will, as soon as reasonably practicable, replace such person. Customer will generally provide at least two (2) months notification to allow Service Provider time to identify and transition new personnel in the event of a removal request, unless such Key Personnel's continued performance is not acceptable to Customer or Customer reasonably believes that immediate removal is warranted.
7,4 Contract Staff. Service Provider will appoint a sufficient number of individuals to the Contract Staff so that the Services are provided in accordance with the Service Levels and generally accepted industry practices. Only individuals with proper education and experience and with suitable training and qualifications to perform the Services may be appointed to the Contract Staff. Except as otherwise approved by Customer in its sole discretion, Contract Staff working at any Customer Service Location may only provide Services that support Customer's operations and will not, during such time, provide services for other Service Provider customers. Service Provider will notify Customer as soon as reasonably practicable after dismissing or reassigning any member of the Contract Staff whose normal work location is at a Customer Service Location. Service Provider personnel should introduce themselves as Customer team members internally and externally. Service Provider personnel must not introduce themselves as Customer's employees.
Service Provider will inform Customer about the non-availability of Contract Staff adhering to the following schedule: (a) For absences exceeding 10 business days inform no later than three (3) weeks before the expected absence; (b) For absences between 5-10 business days inform no later than two (2) weeks before the expected absence and (c) Promptly inform Customer of any ad-hoc absences. In all cases of absence of Contract Staff Service Provider shall provide that there will be no impact to the Services being delivered to Customer. Customer shall not pay corresponding prorated Fees for vacancies
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or absences in excess of agreed schedule of Contract Staff, unless prior agreement has been reached for adequate backfill for such Contract Staff.
7.5 Turnover of Contract Staff. To ensure consistency of service delivery and minimize personnel learning curves, Service Provider agrees to minimize the amount of turnover in its staff assigned to the Customer's account to a maximum of ten percent (10%) per Contract Year.
7.6 Unacceptable Contract Staff. Subject to applicable Laws, Customer may inform Service Provider if Customer determines that any member of the Contract Staff is unacceptable, such as Customer's determination that such individual (i) is not qualified to perform the responsibilities required for the position held by such individual, (ii) is not performing his or her responsibilities to Customer's reasonable satisfaction in accordance with this Agreement, (iii) has violated any term or condition of this Agreement, such as the security obligations or breach or violation of Customer policies, procedures and directives, (iv) does not pass the background check process that may be required or (v) is not performing effectively with Customer, or in a manner consistent with Customer's best interests. Within five (5) days following Customer's request, the Parties will review the matters, and if, after such review, the Parties do not otherwise agree, Service Provider will remove the individual from the Contract Staff. Customer shall have no responsibility for any termination of employment or other disciplinary action that Service Provider or its subcontractors may take in respect of any of their personnel. In urgent cases (incidents involving dishonesty, serious misconduct or danger to others), Customer reserves the right to require the Service Provider to remove, and Service Provider shall immediately remove, the relevant member(s) of the Contract Staff. Service Provider will manage the replacement of such Contract Staff without disrupting Services during the replacement period and training period of new staff. Customer will not be liable for any costs related to adding such replacements to Contract Staff.
7.7 Subcontractors. Service Provider may subcontract the performance of Services only in accordance with this Section.
7.7.1 Prior to subcontracting any of the Services, Service Provider must first notify Customer of the proposed subcontract and Subcontractor and obtain Customer's prior approval, except that Service Provider may, without Customer's prior approval, (i) enter into subcontracts for the third party services or products of the Subcontractors listed in Schedule 18 as pre- approved as of the Effective Date, or (ii) in the ordinary course of business, enter into subcontracts for third party services or products for which total estimated or anticipated value is less than fifty thousand dollars ($50,000) in Services to Customer in any Contract Year; provided, however, that such subcontract does not constitute a material portion of the Services and/or are not exclusively dedicated to Customer. Contract Staff shall not consist of more than 20% of subcontractor personnel unless otherwise approved by Customer.
7.7.2 Any subcontract must contain : (i) terms and conditions at least as protective of Customer and its confidential and proprietary information as the terms and conditions of this Agreement, (ii) the terms in Schedule 12 on Data Protection and Privacy, (iii) Article 14, Compliance and Audit, (iv) waivers of any lien rights, (v) an acknowledgment that Customer will have no liability to Subcontractor for amounts that are owed to Subcontractor arising out of the Services, and (vi) provisions for transfer of the subcontract to Customer or a successor service provider upon expiration or termination of this Agreement. Upon reasonable notice, at the request of Customer, Service Provider will allow Customer to review the non-financial terms of any subcontract for Services to the extent necessary to verify that the subcontract complies with the terms of this Agreement.
7.7.3 Prior to materially amending, modifying or otherwise supplementing any subcontract relating to the Services that requires Customer approval and that affects Customer, Service Provider must notify Customer of the proposed amendment, modification or supplement and must obtain Customer's approval.
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7.7.4 No subcontracting will release Service Provider from its responsibility for its obligations under this Agreement. Service Provider will be responsible for the work and activities of any Subcontractor, such as compliance with the terms of this Agreement.
7.7.5 Customer may revoke its approval of any subcontractor whose performance Customer reasonably believes to be deficient, and in such cases Service Provider shall discontinue use of the subcontractor's products and/or services and provide substitutes therefore.
7.7.6 Service Provider will be responsible for all payments to its Subcontractors and will indemnify, defend and hold Customer harmless from and against all Claims by its Subcontractors pursuant to Section 22.1.
8. FACILITIES USE
8.1 Customer Facilities. To the extent specified in an applicable Service Description, Customer will make available to Service Provider furnished space in the Customer Service Location specified in such Service Description for the purpose of allowing Service Provider to perform the Services.
8.2 Relocation of Customer Service Location. If Customer directs Service Provider to relocate from one Customer Service Location to another Customer Service Location, Service Provider will do so; provided, however, that (i) Customer will provide reasonable advance notice to Service Provider of any such relocation, (ii) Customer will (a) provide comparable space and facilities in such relocated Customer Service Location in accordance with the applicable terms of this Agreement, or, at Customer's option, (b) reimburse the reasonable, actual cost of substitute space; and (iii) Customer will reimburse Service Provider for any direct out-of-pocket costs incurred by Service Provider as a result of such relocation that are accompanied by supporting documentation. Prior to the relocation, Service Provider will provide Customer with an Impact Assessment of any such relocation. In the event such move impairs Service Provider's ability to meet Service Levels as Service Provider notified Customer in the Impact Assessment, Service Provider will be relieved from its obligation to meet those Service Levels for a reasonable period of time to the extent impairment is caused by the relocation. Service Provider shall relocate affected operations in an orderly manner, pursuant to a plan approved by Customer, so as to minimize any interruption in affected Services or other adverse effects upon Customer, its business, operations or affairs.
8.3 Service Provider Use of Facilities. Unless obtaining Customer approval to the contrary, Service Provider will: (i) use the space in the Customer Service Location for the sole purpose of providing the Services and otherwise meeting its obligations under this Agreement; (ii) comply with the leases and other agreements applicable to the Customer Service Location; and (iii) comply with all policies and procedures governing access to and use of Customer Service Location, which policies and procedures will be provided to Service Provider prior to its access and use of the Customer Service Location.
8.3.1 Use of such facilities by Service Provider does not constitute leasehold or sub leasehold interest in favor of Service Provider, but is instead a license, revocable by Customer at any time.
8.3.2 Service Provider will use the Customer Service Locations in a reasonably efficient manner. To the extent that Service Provider inappropriately operates the space in a manner that increases facility costs incurred by Customer disproportionate to that reasonably required for Service Provider's provision of Services to Customer, Service Provider will reimburse Customer for such additional costs.
8.3.3 Service Provider will keep the Customer Service Locations in good order, not commit or permit waste or damage to such facilities and not use such facilities for any unlawful purpose.
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8.3.4 When the Customer Service Locations are no longer required for performance of the Services, Service Provider will return such locations to Customer in substantially the same condition as when Service Provider began using such locations, ordinary wear and tear excepted.
8.4 Facilities-Related Services. Service Provider will permit Customer and Customer agents to enter into those portions of the Customer Service Locations occupied by Service Provider's staff at any time to perform facilities-related services(such as, for example, repairs to the building). Prior to the facilities-related services, Service Provider will provide Customer with an Impact Assessment of such facilities-related services. In the event such entrance or presence impairs Service Provider's ability to meet one or more Service Levels as notified to Customer in the Impact Assessment, Service Provider will be relieved from its obligation to meet those Service Levels for a reasonable period of time to the extent impairment is caused by the Customer's performance of the facilities-related services.
8.5 Improvements. Service Provider will not make any improvements or changes involving structural, mechanical or electrical alterations to the Customer Service Locations without Customer's approval, which Customer will not unreasonably withhold if Service Provider demonstrates that such improvements or changes are reasonably necessary to provide the Services and to meet Service Provider's other obligations under this Agreement. Approved improvements will become Customer's property, or that of Customer's lessor, if so required under applicable leases. Service Provider shall keep Customer's property, and that of its lessors, free from mechanic's, materialmen's and other liens of every kind and take all reasonable measures that Customer or its lessors may require (such as posting of bonds and obtaining releases of claims of lien).
9. MANAGED AND ASSIGNED AGREEMENTS
9.1 Managed Agreements. Service Provider will manage, administer and maintain the Managed Agreements at no additional cost to Customer. The Managed Agreements are specified in Schedule 8, Managed and Assigned Agreements. Service Provider will provide Customer with reasonable notice of any option, renewal, termination or cancellation dates and fees with respect to the Managed Agreements. Service Provider will not renew, modify, terminate or cancel, or request or grant any consents or waivers under any Managed Agreements without the consent of the appropriate entity or unit of Customer.
9.2 Invoices. Service Provider will (i) receive all Managed Agreement Invoices, (ii) review and correct any errors reasonably known to Service Provider in any such Managed Agreement Invoices in a timely manner and (iii) submit such Managed Agreement Invoices to Customer within two weeks prior to the due date or, if a discount for payment is offered, two weeks prior to the date on which Customer must pay such Managed Agreement Invoice in order to receive a discount.
9.2.1 Customer will be responsible for paying the Managed Agreement invoices after processing by Service Provider. Customer will be responsible for any late fees in respect of the Managed Agreement Invoices if Service Provider submits the applicable Managed Agreement Invoices to Customer for payment according to the timeline specified above in Section 9.2
9.2.2 If Service Provider fails to submit a Managed Agreement Invoice to Customer for payment in accordance with the preceding sentence, and such failure is due to an act or omission on the part of Service Provider, Service Provider will be responsible for any discount not received, any late fees incurred, or any other adverse action taken by a third party pursuant to the terms of such Managed Agreement with respect to such Managed Agreement Invoice. Without limiting the foregoing, Service Provider shall be responsible for payment of such Managed Agreement Invoices, without reimbursement from Customer, that Service Provider fails to submit to Customer within 60 days of receipt by Service Provider.
9,2.3 Customer will not be responsible to Service Provider for any management, administration or maintenance fees of Service Provider in connection with the Managed Agreement Invoices.
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9.3 Assigned Agreements. As of the applicable Service Commencement Date, Service Provider will assume all responsibility for the Assigned Agreements specified in Schedule 8.
9.3.1 Charges relating to Assigned Agreements will be pro- rated as of the relevant Service Commencement Date or the date of assignment, as appropriate. Service Provider will be solely responsible for paying all charges under such Assigned Agreements that may become payable after such date. Service Provider will pay the invoices submitted by third parties in connection with the Assigned Agreements and will be responsible for any late fees incurred with respect to such third party invoices.
9.3.2 Service Provider will consult with Customer prior to taking any action to renew, modify, terminate or cancel, or request or grant any consents or waivers under any Assigned Agreement. Any modification, termination or cancellation fees or charges imposed upon Customer in connection with any modification, termination or cancellation of, or consent or waiver under, the Assigned Agreements will be paid by Service Provider.
9.4 Breach of Agreements. Service Provider will promptly notify Customer of any breach of, misuse or fraud in connection with, any Managed Agreements or Assigned Agreements that Service Provider knows occurred or reasonably should know has occurred. Service Provider will cooperate with Customer to prevent or stay any such breach, misuse or fraud.
9.4.1 Service Provider will pay all amounts due for any penalties, liquidated damages, late charges or other similar charges (such as amounts due to a third party) as a result of (i) Service Provider's non-performance or breach of its obligations under the Assigned Agreements or (ii) Service Provider's breach of its assumed obligations with respect to the Managed Agreements, or (iii) breaches of Managed Agreements attributable to Service Provider's acts or omissions.
9.4.2 Customer will reimburse Service Provider for any penalties, liquidated damages, late charges or other similar charges incurred by Service Provider for any non-performance or breach of Customer's obligations under the Managed and Assigned Agreements that are the result of an act or omission by Customer (excluding acts or omissions undertaken at Service Provider's direction or with Service Provider's consent).
9.5 Improved Terms. Service Provider will use its commercially reasonable efforts to:
9.5.1 introduce service levels which reflect industry best practices for services provided under the Managed Agreements and Assigned Agreements, respectively, upon renewal of any such Managed Agreements and Assigned Agreements; and
9.5.2 effect savings, pricing reductions and improved services in all Managed Agreements (other than those agreements exempted from this requirement and identified as such in Schedule 8) at the earliest practicable date by renegotiation and using its purchasing power to obtain discounts, improved services, improved service levels and better overall pricing.
9.5.3 Subject to the terms of third-party agreements, Service Provider shall pass on any group purchasing savings or supplier discounts to Customer and shall not charge any price mark-up for IT asset purchases requested by Customer.
9.6 Replacement of Providers. Service Provider will be entitled upon notification to Customer and consent by Customer, which consent will not be unreasonably withheld, to replace and substitute service providers under Assigned Agreements, either on renewal of such agreements, or prior to renewal upon the service provider's default or other similar reason for early termination of an Assigned Agreement by Service Provider. All contracts with replacement providers shall be freely transferable to Customer.
Customer may replace or substitute service providers under Managed Agreements at any time, in its discretion.
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10. SERVICE LEVELS
10.1 General. Service Provider will perform the Services at the Service Levels in accordance with Schedule 4.
10.1.1 Service Provider shall maintain the Service Levels set forth in Schedule 4 following Transition.
10.2 IRESERVEDI.
10.3 IRESERVED1.
10.4 Root Cause Analyses. In the event of any failure to provide the Services in accordance with the applicable Service Levels (whether or not excused), Service Provider will within five (5) business days of such failure, or such other time period as may be specified in the applicable Service Levels Schedule or as may be mutually agreed, (i) perform a root-cause analysis to identify the cause of such failure, and (ii) provide Customer with a report detailing the cause of, and procedure for correcting such failure. Upon Customer's approval of such procedure, implement such procedure as per mutually agreed timeframe, and provide Customer with assurance satisfactory to Customer that such failure will not recur following the completion of the implementation of the procedure.
11. PAYMENT TERMS
11.1 Fees. In consideration of Service Provider providing the Services, Customer will pay to Service Provider the Fees as set forth in Schedule 5. The Fees set forth in Schedule 5 define charges for all tools, software, personnel and other resources required to provide Services to Customer. Except as expressly set forth in this Agreement, there will be no other charges or Fees payable by Customer in respect of Service Provider's performance of its obligations under or in connection with this Agreement, other than retained or pass-through costs expressly identified in applicable Schedules, which shall, to the extent possible, identify and estimate all third party costs to be retained by or passed through to Customer. Customer shall not pay any handling charge or administrative charge or markup on any pass- through cost or cost reimbursement. Customer may set-off against the Fees any amounts owed to Customer by Service Provider, as provided below. Further, Customer shall have no obligation to pay or reimburse any Pass-Through or other expense of any kind except to the extent required by the express terms of the Agreement or from time to time agreed in writing by the Parties' authorized representatives.
Customer shall not pay for vacancies or absences in excess of agreed schedule of Contract Staff, as identified in Schedule 5, unless prior agreement has been reached for adequate backfill for such Contract Staff.
11.2 Invoicing. No later than the tenth (10th) day of each calendar month during the term of this Agreement, Service Provider will invoice Customer for the Services performed in the prior month.
11.2.1 Unless otherwise specified in Schedule 5, Service Provider will invoice the Fees in United States Dollars.
11.2.2 Each of Service Provider's invoices will (i) set forth (a) any pass-through expenses incurred and billable under the express terms of this Agreement and (b) any discounts, credits or charges, such as Service Credits, Additional Resource Charges and Reduced Resource Credits, charged or issued during the period to which such invoice relates, and (ii) reflect any adjustment to or change in the Fees implemented during the period to which such invoice relates. Service Provider's invoices will be in the format attached as Schedule 26, will describe or be accompanied by all relevant calculations., and allocate Service Provider's charges in a manner consistent with Customer's reasonable chargeback requirements.
11.2.3 All invoices must be presented within one-hundred eighty (180) days after the end of the relevant month or completion of the relevant milestone. Customer will not be obligated
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to pay any amount (including any allowable pass-through expense) not invoiced in accordance with this Agreement within such time period.
11.3 Payment. The undisputed Fees will be due and payable to Service Provider within thirty (30) days of receipt of Service Provider's invoice.
11.4 Credits and Refunds. Service Provider will promptly provide credit to Customer on invoices for the previous month's vacancies or absences exceeding agreed schedule of Contract Staff, identified in Schedule 5. Service Provider will promptly credit any payment made to which Service Provider is not entitled under this Agreement and refund to Customer any such payment for which there are not sufficient Additional Resource Charges under the then-current invoice against which to credit the overpayment. If Service Provider receives any refund, credit or other rebate (such as deposits) in connection with any Managed Agreement or Assigned Agreement that is attributable to periods prior to the Effective Date or for which Customer retained financial responsibility after the Effective Date, then Service Provider will promptly (i) notify Customer of such refund, credit or rebate and (ii) pay to Customer the full amount of such refund, credit or rebate in cash. Service Provider will reimburse Customer for all prepaid amounts related to the Services to the extent that Service Provider receives the benefit of any such pre- payment.
11.5 Taxes. Customer shall pay all applicable taxes on Services provided by the Service Provider. Customer is not responsible for any taxes based on the income of Service Provider. In addition, Customer is not responsible for taxes paid by Service Provider relating to employees and resources acquired by Services Provider to provide the Services.
11.6 Disputed Amounts. Customer may reasonably dispute an amount on an invoice and may withhold payment of such disputed amount. In such event, Customer will promptly notify Service Provider in writing of the disputed amount, with an explanation of the reasons therefore. Following notification of a disputed invoice charge, the Parties will use their reasonable endeavors to resolve the disputed amount within fifteen (15) days. If the Parties cannot resolve the disputed amounts within fifteen (15) days, then the matter will be escalated to the representatives of the Parties specified in Article 21 for resolution.
Upon resolution, the amount, if any, payable will be paid to Service Provider. If the aggregate amounts withheld or set off exceed twice the average monthly invoiced amount from Service Provider, Customer shall place such amounts in an escrow account ("Escrow Account") in an FDIC-insured bank chosen by Customer, pending resolution of the dispute by mutual agreement or pursuant to Article 21. Amounts held in escrow (with interest received, if any) shall be released upon joint instruction of the Parties following any settlement or other mutual agreement, or as determined by final adjudication of the dispute (less, in either case, reasonable, applicable escrow costs, which shall be equally divided).
11.7 Setoff and Withholding. Except as set forth in this Section 11, Customer will not withhold payment of any undisputed amounts. If Service Provider fails to pay when due any amount due under the Assigned Agreements for which Customer remains liable, then upon written request, the Parties' Contract Executives shall immediately consult concerning the matter and make reasonable efforts to resolve the matter within thirty (30) days after the request. If the Parties are unable to resolve the matter, then Customer may pay the obligation and withhold or set off the amount reasonably believed to be owed from Service Provider's invoices.
11.8 Equitable Adjustment. In the event of an increase or decrease of fifteen percent (15%) or more in the total fees, total consumption of all chargeable resources, and total volume of Services that the parties anticipated would otherwise be the case during any three month period that this Agreement is in effect, then either Party may request, via the Change Control Procedure, an equitable adjustment of relevant charges to account for (i) net increases or decreases in costs of performance, (ii) costs of acquisitions or dispositions of assets, (iii) one time costs associated with effecting changes, and (iv) a reasonable allowance for profit. Termination for Convenience Fees shall also be adjusted to reflect changes in scope, investments in and dispositions of assets, and other related changes in un-amortized costs to be recovered thereby in the event of termination.
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12. MOST FAVORED CUSTOMER
Service Provider represents, warrants and covenants that at all times during the Term, the Fees are at least as favorable to Customer as the most favorable prices then offered or provided by Service Provider to any other commercial or government customer for services substantially similar to the Services being provided to Customer under this Agreement. For these purposes, "substantially similar" will be understood to mean taking into account the geography served, service levels, service locations, in- scope processes, volumes, systems used, industry served, and other material transaction elements. If Service Provider offers or provides services to any other commercial or government customer that are substantially similar to the Services provided to Customer for prices lower than the prices being charged to Customer, then Customer's price for the Services will be automatically reduced to be commensurate with such more favorable prices as of the date such more favorable price is provided to such other commercial or government customer. In the event of a Change, the pricing for any new services or work will be as low as that granted by Service Provider to any substantially similar customer for such services or work bearing in mind all of the relevant circumstances in which such services or work are provided.
13. BENCHMARKING
In accordance with Schedule 6, Service Provider shall be subject to a continuing benchmarking program of the Services, taking into consideration adjustments for reasonably comparable elements of the Services, that shall enable Customer to compare the Fees and Service Levels set forth in this Agreement with, and ensure that said Fees and Service Levels are similar in price and quality to, similarly bundled service offerings (accounting in the aggregate for the scope, service levels, duration, and volume of business) of other IT service providers.
14. COMPLIANCE AND AUDIT
14.1 Compliance with Laws. Each Party will obtain and maintain all Authorizations applicable to such Party at its own expense. Service Provider will comply with all Laws, and Regulatory Requirements, applicable to Service Provider's delivery of the Services and its performance of this Agreement, such as those imposed on Customer but applicable to activities or tasks that Service Provider undertakes pursuant to this Agreement. Customer will comply with all Laws applicable to Customer's receipt of Services and its performance of this Agreement. In particular, and without limiting the generality of the foregoing, (i) Service Provider will comply with applicable privacy laws in all relevant jurisdictions, (ii) enter into model processor or other, similar agreements concerning transfers of personally identifiable data within and without the member states of the European Union, when reasonably required by Customer, and cause its subcontractors to do so.
14.2 Changes in Laws. Service Provider will be responsible for identifying and becoming familiar with any changes in Laws that are related to Service Provider's delivery or performance of the Services. If Service Provider becomes aware of changes in Laws that impact Customer's use or receipt of the Services, Service Provider will reasonably inform Customer.
14.2.1 Service Provider will promptly notify Customer of any such changes in Laws and will advise Customer of what actions, if any, Customer must take and when those actions must be taken related to the Services to remain compliant with such Laws, except for changes in Laws directed at the government sector, in which event Customer will notify Service Provider of changes to such Laws that affect Service Provider's delivery or performance of the Services.
14.2.2 Service Provider and Customer will work together to identify the impact of such changes on how Customer uses, and Service Provider delivers, the Services.
14.2.3 Service Provider will perform the Services at no additional charge to Customer and will bear the costs associated with (i) regulatory changes affecting its business as a provider of the Services, (ii) changes in Service Provider's standards, methods, practices and procedures for customers generally, (iii) changes in Laws, other than changes in Laws directed at the government sector and (iv) regulatory changes affecting its customers generally„ unless such
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changes and Service Provider's compliance with such changes will result in material cost increases to Service Provider above and beyond those necessary to effect changes affecting Service Provider's other customers and operations generally. Costs affecting Customer's receipt of the Services specific to Customer's unique compliance measures will be determined and compensated in accordance with the Change Control Procedures.
14.2.4 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.
14.2.5 [RESERVED].
14.3 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.
14.4 Ethics Policies. Service Provider will comply, and cause its officers, directors, employees, agents and subcontractors to comply, with ethical standards and corporate social responsibility policies as specified herein. Service Provider shall read and execute Schedule 30.
14.5 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.
14.6 fRESERVED1.
14.7 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 18, Service Provider will provide, and will cause its 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.
14.7.1 Service Provider will, and will cause its 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 shaIl 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.
14.7.2 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
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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.
14.7.3 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.
14.7.4 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.
14.7.5 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.
14.8 Control Rules. Without limiting the generality of the foregoing and subject to this Section
14.8 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 disclosure requirement imposed by law on public companies, as such legal requirements may be amended or modified from time to time (the "Control Rules").
14.8.1 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 "Customer Controls"); (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.
14.8.2 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
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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.
14.8.3 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.
14.8.4 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.
14.8.5 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.
14.9 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 14.9 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.
15. TERM AND TERMINATION
15.1 Initial Term. The term of this Agreement will commence on the Effective Date and will be in effect for a period of forty-eight (48) months from the Effective Date, subject to Section 15.9, unless this Agreement is (i) sooner terminated in accordance with this Article 15 or (ii) extended in accordance with its terms or by mutually agreed amendment.
15.2 RESERVED1.
15.3 Renewal. At the Customer's option, this Agreement may be renewed or extended for four (4) additional one (1) year periods. In the event the Customer desires to renew or extend the Agreement, Customer shall deliver written notice to Service Provider of such renewal along with any requested modifications of the Agreement at least ninety (90) days before expiration of the then-current Term.
Customer may allow this Agreement to expire by giving notice no later than ninety (90) days prior to the end of the then-current Term that it does not wish to renew this Agreement. Renewal will be at the then- current Service Levels and will be subject to Fees as specified in Schedule 5.
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15.4 Termination b_y Customer. Customer may terminate this Agreement, in whole or in part, in accordance with the following:
15.4.1 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 15.4.1 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. 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.
15.4.2 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 Termination Fee shall be payable by Customer to Service Provider for Termination based on change in control.
15.4.3 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
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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 15.4.1, as of the Termination Date specified by Customer in the Termination Notice originally delivered with respect to such termination, and the provisions of Section 15.4.1 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.
15.4.4 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, unless such disaster recovery obligations were themselves prevented by a force majeure event); or
15.4.5 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 15.4.5. 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 15.4 permits Customer to terminate the Agreement in whole or in part the Parties understand and agree that, with respect to this Section 15.4.5, that Customer may only terminate the Agreement in whole.
15.5 Termination by Service Provider. Service Provider may terminate this Agreement solely if: (a) Customer (or Affiliates) has failed to make payments due under Section 11; (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.
15.6 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). In the event Customer terminates this Agreement under Section 15.4.1, then notwithstanding the restrictions contained in Section 27, Customer may solicit and hire Service Provider Key Personnel that have provided Services at a Customer location during the term of the Agreement. If Customer terminates this Agreement under Section 15.4.5, then Service Provider will make its Key Personnel available to
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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.
15.7 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.
15.8 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 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.
15.9 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 ("Extension Term"). 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.
15.10 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 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.
15.11 Survival. The provisions of Article 1 (Interpretation), Article 14 (Compliance and Audit), Article 15 (Term and Termination), Article 16 (Intellectual Property), Article 17 and Schedule 12 (Customer Data), Article 18 and Schedule 10 (Security and Confidentiality), Article 21 (Governance), Article 22 (Indemnification), Article 23 (Damages), Article 26 (Notices), Article 27 (Non-Solicitation), Article 29 (Severability), Article 31 (Publicity), Article 32 (Governing Law) and Article 36 (No Third Party Beneficiaries) will survive termination or expiration of this Agreement.
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16. INTELLECTUAL PROPERTY RIGHTS
16.1 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.
16.2 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.
16.2.1 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.
16.2.2 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.
16.2.3 Subject to any restrictions specified in the applicable Service Description or statement of work, Service Provider grants to Customer a perpetual, irrevocable, paid-up, royalty- free, 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,
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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.
16.3 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 16 shall not apply to Service Provider Software or Service Provider Material.
16.3.1 Unless otherwise specified in Schedule 22 or the applicable Service Description, Service Provider grants to Customer a perpetual, irrevocable, paid-up, royalty-free, worldwide, non-exclusive, sub-licensable as provided for below within this section but otherwise non- transferable (except to a successor) right to Use the Service Provider Owned Software and Service Provider Materials that may be incorporated or embedded in any Deliverable in connection with Customer's own business; provided, however, that Customer (or its successor) may sub-license any such work to unrelated third parties only for the purpose of providing services to Customer, its Affiliates or their successors.
16.3.2 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 c- RIM 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 & software will be provided beyond the Term of the Agreement.
16.4 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.
16.5 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 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.
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17. CUSTOMER DATA AND INTANGIBLE PROPERTY
17.1 Customer Data. Neither Service Provider nor any Subcontractor will have any right, title or interest in or to any Customer Data.
17.1.1 Without Customer's approval, Customer Data will not be (i) used by Service Provider or Subcontractors other than in connection with providing 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.
17.1.2 [RESERVED].
17.1.3 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.
17.2 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.
18. SECURITY AND CONFIDENTIALITY
18.1 Security Protocol. Service Provider will develop and implement, or satisfy Customer that Service Provider has developed and implemented, and maintain throughout the Term a 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.
18.1.1 Customer may revise the Security Protocol from time to time during the Term.
18.1.2 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
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Security Protocol will be subject to the Change Control Procedures. Customer will give Service Provider reasonable advance notice of changes in the Security Protocol.
18.1.3 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.
18.1.4 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 Contract Executive of such breach or potential breach and (ii) use commercially reasonable efforts to remedy the effects of the breach or potential breach.
18.2 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 same extent and manner as the recipient protects its own Confidential Information.
18.2.1 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.
18.2.2 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.
18.2.3 The recipient of any Confidential Information will take all reasonable measures to provide 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.
18.2.4 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.
18.2.5 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.
18.2.6 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.
18.3 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
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investigation or litigation deemed necessary by the other Party to protect its confidentiality or proprietary rights.
18.4 Facilities Segregation. Service Provider agrees to segregate Customer Data and information logically from its other customers data and information.
19. REPRESENTATIONS, WARRANTIES, AND COVENANTS
19.1 Customer. Customer represents, warrants and covenants that:
19.1.1 Customer is a chartered municipal corporation;
19.1.2 Customer has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;
19.1.3 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;
19.1.4 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
19.1.5 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.
19.2 Service Provider. Service Provider represents, warrants and covenants that:
19.2.1 Service Provider is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware;
19.2.2 Service Provider has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;
19.2.3 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;
19.2.4 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;
19.2.5 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 material adverse effect on Service Provider's ability to fulfill its obligations under this Agreement; and
19.2.6 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.
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19.3 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.
19.4 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 15.9).
20. ADDITIONAL COVENANTS
20.1 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).
20.2 Service Provider Covenants. Service Provider covenants and agrees with Customer that:
20.2.1 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);
20.2.2 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.;
20.2.3 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;
20.2.4 upon CListomer'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 errors in reports, transactions, Customer Data, processing or other Services, the Parties will utilize Contract Staff in accordance with Article 5.8 (Prioritization of Scheduling);
20.2.5 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;
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20.2.6 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;
20.2.7 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;
20.2.8 [RESERVED];
20.2.9 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
20.2.10 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.
21. GOVERNANCE
21.1 Customer Contract Executive. Customer will appoint an individual ("Customer Contract Executive") who from the date of this Agreement will serve as the primary Customer representative under this Agreement. The Customer Contract Executive 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 Contract Executive may, upon notice to Service Provider, delegate such of his or her responsibilities to other Customer employees, as the Customer Contract Executive deems appropriate.
21.2 Governance. The Parties will govern their relationship in accordance with the Governance Model set forth in Schedule 17. 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. 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. Each Party will be responsible for its representatives' execution of their respective obligations and responsibilities under the Governance 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.
21.3 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 21 and in Schedule 17, Governance Model.
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 Contract Executive and Service Provider Contract Executive otherwise agree in writing, either Party may pursue its rights and remedies under this Article 21 after the earlier of (i) the exhaustion of the negotiation and escalation procedures set forth in
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the Governance Model 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.
21.4 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 Model.
21.4.1 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.
21.4.2 All negotiations pursuant to this Article 21 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.
21.5 Negotiation. Upon the written notice by either Party, a Dispute will be submitted to the Customer Contract Executive and Service Provider Contract 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 Contract Executive and Service Provider Contract Executive, whichever occurs last. If the Contract Executives fail to resolve the dispute by negotiation, the Dispute will be escalated within the Customer and Service Provider organizations in accordance with the Governance Model.
21.6 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, CA in accordance with the process and procedures set forth in Schedule 17, Governance Model, 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.
21.7 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 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.
21.8 Certain Legal Proceedings. Notwithstanding the foregoing, the Parties agree that:
21.8.1 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.
21.8.2 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
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intellectual property, it may, at either Party's option, be resolved by a court of competent jurisdiction.
21.9 Continued Performance. Service Provider will continue to provide the Services during the pendency of any of the proceedings commenced pursuant to this Article 21, 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).
21.10 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.
21.11 [RESERVED'.
21.12 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.
22. INDEMNIFICATION
22.1 Service Provider Indemnity. Service Provider will indemnify, defend and hold Customer, its Council members, officers, directors, employees, agents and volunteers, and their respective officers, directors, employees and agents harmless from and against, any third party Claims arising out of or relating to Service Provider's negligence or willful misconduct during its performance of its obligations under this Agreement as follows:
22.1.1 Relating to a fraudulent inaccuracy, untruthfulness or breach of any material warranty, representation or covenant made by Service Provider under this Agreement;
22.1.2 [RESERVED].
22.1.3 Any and all Losses related to claims or demands by any third party against any of them to the extent arising out of, or resulting from, the grossly negligent or willful dissemination by Service Provider or Service Provider's Subcontractors (or by any personnel assigned by Service Provider or Service Provider's Subcontractors to perform any of Service Provider's obligations under this Agreement) of false, incomplete, or incorrect information, information that Customer directed Service Provider not to disseminate, or information that Service Provider reasonably should have known not to disseminate, or resulting from Service Provider's or Service Provider's Subcontractor's grossly negligent or willful failure to disseminate information that Service Provider is obligated to provide to Customer's Affiliates or End-Users pursuant to this Agreement, whether through any help-desk facility or any other Services in which Service Provider has direct contact with any such third parties. By way of illustration, if Service Provider's or its Subcontractor's worker, in providing help-desk Services, purposefully gave information to a user of Customer which Service Provider knew to be false or incorrect and that user then made a claim against Customer for damages sustained because such user acted in reliance upon such information received from Service Provider's or its Subcontractor's worker, Service Provider would be obligated to indemnify Customer for that claim pursuant to this Section 22.1.3.
22.1.4 relating to a violation of any Law applicable to Service Provider as a provider of the Services, unless such compliance is a requirement under a Service Description, there is no way to comply with the requirement and comply with Law, and Service Provider has previously informed Customer in writing that Service Provider cannot comply with both the requirement and Law;
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22.1.5 relating to (a) a work-related injury of Service Provider employees or its agents unless Customer's intentional act was the proximate cause of such injury, (b) employee benefits of Service Provider employees, (c) any aspect of the Contract Staff'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 Contract Staff with Customer; (d) any claims asserted by its Subcontractors; or (e) any claims asserted in connection with the Assigned Agreements or Managed Agreements as a result of Service Provider's act or omission;
22.1.6 relating to any amounts, including taxes, interest and penalties, assessed against Customer that are the obligation of Service Provider;
22.1.7 arising out of or relating to any breach by Service Provider of its obligation with respect to Confidential Information;
22.1.8 relating to personal injury (including death) or property loss or damage resulting from Service Provider's acts or omissions; or
22.1.9 [RESERVED].
22.2 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 negligence or willful misconduct; or
22.2.1 relating to a fraudulent inaccuracy, untruthfulness or breach of any material warranty, representation or covenant made by Customer under this Agreement;
22.2.2 relating to a violation of Law by Customer;
22.2.3 relating to any amounts, including taxes, interest and penalties, assessed against Service Provider that are the obligation of Customer;
22.2.4 arising out of or relating to Customer's breach of its obligations with respect to Confidential Information;
22.2.5 relating to personal injury (including death) or property loss or damage resulting solely from Customer's acts or omissions; or
22.2.6 relating to any claims asserted in connection with the Assigned Agreements or Managed Agreements as a result of Customer's act or omission.
22.3 Intellectual Property Indemnity. Subject to the provisions of this Section 22.3, Customer and Service Provider each agree to defend 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 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.
22.3.1 If an Indemnified Item becomes the subject of a claim under this Section 22.3, 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
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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.
22.3.2 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 22.3.2 (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).
22.4 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.
22.5 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.
22.6 Limitation. The indemnitor's liability to pay or reimburse amounts owed with respect to any indemnified claim will be limited to the extent of the indemnitor's proportional contribution to the relevant Claim. No indemnitor will be liable for any amounts owed with respect to Claims suffered by the indemnitee to the extent attributable to the indennnitee's negligence or willful misconduct.
22.7 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.
22.8 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 Schedules are not subject to the indemnity provisions of Article 22, 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.
23. DAMAGES
23.1 Exceptions to Limitations. This Article 23 does not exclude or limit liability for (i) either Party's indemnification obligations with respect to Claims under Article 22, Indemnification, (ii) either Party's breach of Article 18, Security and Confidentiality, or Schedule 10, Security Protocol, and (iii) a Party's fraud or willful misconduct.
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23.2 Disclaimer of Consequential Damages. Subject to Section 23.1, both Parties' liability hereunder will be for actual direct damages only and the Parties hereby disclaim liability to the other for any punitive, special, incidental or consequential damages or lost profits. The following costs and expenses will be considered direct damages and neither Party will assert that they are indirect, incidental, consequential or special damages or lost profits to the extent they arise directly from a Party's failure to perform in accordance with this Agreement:
23.2.1 costs and expenses to repair, recreate from the original documents of the Customer or reload any lost, stolen or damaged Customer Data;
23.2.2 costs and expenses to implement a work-around in respect of any failure to provide the Services;
23.2.3 costs and expenses to, replace lost, stolen or damaged hardware, Software or other materials;
23.2.4 cover damages, such as incremental costs and expenses incurred to procure the Services or corrected Services in- house or from an alternate source;
23.2.5 [RESERVED];
23.2.6 [RESERVED];
23.2.7 payments, fines, penalties or interest imposed by a governmental body or regulatory agency for failure to comply with requirements or deadlines;
23.2.8 Limitation on Service Provider Liability. Subject to Section 23.1, Service Provider's aggregate liability for damages to Customer during the entire Term will not exceed the lesser of Customer's actual, proven direct damages or 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 for Customer's actual, proven direct damages will not exceed the estimated amount of Fees that would be payable during the first twelve (12) months of the Agreement.
23.3 Waiver of Liability Cap. In the event Service Provider's total liability for claims asserted by Customer under or in connection with this Agreement exceeds eighty five percent (85%) of the liability cap set forth in Section 23.2.8 and Service Provider refuses to waive such cap or increase the available liability cap, then Customer may terminate this Agreement upon sixty (60) days prior written notice to Service Provider, without payment of any Termination for Convenience Fees.
23.4 Limitation on Customer Liability. Subject to Section 23.1, Customer's aggregate liability for damages to Service Provider during the entire Term of the Agreement will not exceed the lesser of Service Provider's actual, proven direct damages or 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 Customer's aggregate liability for Service Provider's actual, proven direct damages will not exceed the estimated amount of Fees that would be payable during the first twelve (12) months of the Agreement.
23.5 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.
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24. INSURANCE
24,1 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.
24.2 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.
25. FORCE MAJEURE
25.1 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 non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues.
25.1.1 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.
25.1.2 Notwithstanding the foregoing, the acts or omissions of a Party's agents, subcontractors, representatives, materialmen, suppliers or other third parties providing products 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).
25.1.3 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.
25.2 Responsibilities of Parties. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event will:
25.2.1 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.
25.2.2 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.
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25.2.3 [RESERVED].
25.2.4 Immediately notify the other Party of the cessation of such Force Majeure Event.
25.3 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.
25.3.1 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 to the extent 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.
25.3.2 Subject in all cases to Section 15.4.4, for the duration of the agreement executed between Customer and an alternate source for affected Services as described in
25.3.1 Customer is not obligated to continue paying Service Provider for the affected services.
25.3.3 Customer shall have the right to terminate this Agreement without liability or the payment of termination fees in accordance with Section 15.4.5.
25.4 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.
26. NOTICES
26.1 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 given or made either by reputable air courier service, or by facsimile transmission confirmed by electronic confirmation, addressed to the other Party in the manner referred to below and, if that notice is not returned as being undelivered within seven (7) days of dispatch of that notice or communication in the case of reputable air courier service, or is electronically confirmed in the case of facsimile transmission, such communication will be deemed for the purposes of this Agreement to have been given or made after three (3) days, if sent by reputable air courier service, or (four) 4 hours, for a facsimile transmission.
26.2 Addresses. For the purposes of Section 26.1 above, the address of each Party will be:
For Service Provider:
For Service Provider:
Unisys Corporation
801 Lakeview Drive, Suite 100
Blue Bell, PA 19422
Attn: Vice President US&C Public Sector Accounts
Master Service Agreement
With a copy of all legal notices to:
801 Lakeview Drive, Suite 100
Blue Bell, PA 19422
Attn: General Counsel
For Customer:
City of Santa Clara
Attention: Information Technology Department
1500 Warburton Avenue
Santa Clara, California 95050
or by facsimile at (408) 241-3479
With a copy of all legal notices to:
City of Santa Clara
Attention: City Attorney's Office
1500 Warburton Avenue
Santa Clara, California 95050
or by facsimile at (408) 249-7846
Either Party may change its address for service by notice as provided in this Article.
27. NON-SOLICITATION
27.1 General. Except as provided in Articles 6 and 15 , 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 15.7 and 15.9, 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 27 will not apply to unsolicited responses by employees to general recruitment advertising In addition, this Article 27.1 shall not apply to Customer soliciting Service Provider's employees solely dedicated to providing the Services.
28. RELATIONSHIP
28.1 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.
28.2 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 15, 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.
29. 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.
30. 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
Master Service Agreement
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.
31. PUBLICITY
31.1 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.
31.2 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.
32. GOVERNING LAW
32.1 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.
32.2 IRESERVEDI.
32.3 UN Convention. The 1980 United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
32.4 Binding Nature. This Agreement is binding on Service Provider and Customer and their respective successors and permitted assignees.
33. ASSIGNMENT AND DIVESTITURE
33.1 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.
33.2 IRESERVED1.
34. 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.
35. 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.
36. 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.
Master Service Agreement
37. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument.
38. 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,
(document continues on next page)
APPROVED AS TO FORM: Dated: S. '24-
-016-BRIAN DOYLE
Interim City Attorney
RAJEEV BATRA
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
g<tir-
ROD DIRIDON, JR.
City Clerk
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
"City"
UNISYS CORPORATION
a Delaware corporation
Dated:
5131
By: 7 -41,1j
(Signature of Person executing the Agreement on behalf of Contractor)
Name: Robert Von Essen
Title: Director of Public Sector Accounts
Local Address: 801 Lakeview Drive, Suite 100
Blue Bell, Pennsylvania 19422
Email Address: Robert.VonEssenunisys.com
Telephone: (916) 607-7700
Fax: (916) 607-7700
"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).
Means those Customer agreements with third parties specified in Schedule 8 that are assigned to Service Provider.
"Assigned
Agreements"
"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.
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:
Z Unplanned Outage Duration x 100%
"Availability"
• 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 City- defined 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; (o) 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;
(0 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 obIigations 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.
As set forth on Schedule 5, Fees. Means all charges to be paid by Customer to Service Provider for Services.
"Fees"
"Firewalls" Means the combined count of firewalls and VPN appliances.
As defined in Section 25.1 of the Master Service Agreement "Force Majeure" or "Force Majeure
Event"
"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)
As defined in Section 7.2 "Key Service Provider
Personnel"
"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.
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 0"
"Level 1" Means the first level of support for all Service Requests and Incidents. End- User 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 non- transferable 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.
An activity that identifies the root cause of an Incident or Problem. "Root Cause Analysis" or "RCA"
"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
I ndem n itees"
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 2
FINAL SERVICE TOWER SOLUTIONS
to the
IT MANAGED SERVICES AGREEMENT
between
THE CITY OF SANTA CLARA
and
UNISYS CORPORATION
CITY OF SANTA CLARA
Schedule 2—Final Service Tower Solutions
1.0 General Solution Questions
Instructions: Provide responses to each of the following general solution questions. Limit your response to half a page for each question:
1. Under each of the City goals and objectives listed below, summarize how each objective will be supported through the proposed solution, both short term and long term. Be as specific as possible.
a) Enhance business capabilities with commercially available local government focused applications
Response
Unisys is a global market leader in IT services for government agencies and understands the challenges that city governments are facing to transform their business capabilities securely to better serve their employees and citizens. A key aspect of enhancing business capabilities is to listen to Departmental goals and translate those requirements to a clear strategy to drive business value. The industry is filled with innovative commercially available government business applications. Insight from Unisys government experts will contribute to the evaluation and selection of business applications that meet the City's needs. Additionally, we will work closely with Department leaders to develop a prioritized Citywide digital strategy along with a roadmap that identifies the short, medium, and long term projects that enable the strategy, including the replacement of legacy applications. Unisys will drive this digital roadmap mainly through finding the right commercially available applications by using the following strategies:
• Think "Cloud First" when evaluating new applications, major upgrades, and cloud management • Review products used by other government organizations of a similar size and scope to compare and contract ideas - in particular in California but also nationally • Review COTS software products in all tiers to find the most suitable (i.e., do not just look at Tier 1 COTS solutions)
• Use commercially available software where possible to avoid costly custom solutions • Pursue transparency anytime, anywhere as well as security in everything we do • Work closely with current COTS application vendors to drive effective upgrades and maintenance activities to maintain continued improvement in existing application performance and functionality • Use DevOps and Agile (SAFe Framework) methodologies to effectively deploy secure solutions.
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Schedule 2 - Final Service Tower Solutions
The Unisys Team has years of experience in managing the City's applications effectively. Through this experience, Unisys developed solid relationships with the business stakeholders and OEM vendors. We are well prepared to deploy the above strategies to not only expand new services capabilities but also provide the framework to drive the City's digital government strategy.
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Schedule 2— Final Service Tower Solutions
b) Take advantage of SaaS and cloud based technologies and services to enhance flexibility and technology and business capabilities currency.
Response
SaaS and cloud based technologies are a critical part of the City's future; Unisys is a leader in helping governments such as the City move safely and securely to these technologies. Cloud and SaaS solutions offer a level of flexibility, availability, and security that help clients such as the City of Santa Clara to deliver improved services to its citizens.
Unisys has public sector leading experts who will guide, support, and work closely with Department leaders and City IT to further identify, prioritize, and deliver these services to the City's citizens.
Additionally, Unisys will continue to bring a security mindset to this effort to protect City services and data as well as confirm that applications meet required standards for security such as Payment Card Security (PCI) and the Sarbanes-Oxley Act of 2002 (SOX).
Over the past 7 years, Unisys brought a wealth of application rationalization, modernization, best practices, and knowledge to the City to support its "Cloud First" strategy. Focus was placed on citizen engagement, including moving City services to web, cloud, and mobile technologies. Today, 20 percent of the City's applications have been moved to the cloud or to SaaS models. The move of the City's websites (content management system) to the cloud enabled them to always be available during Super Bowl 50, when traffic increased by 500 percent. As upgrades are being planned, a cloud first strategy is being used (an example being the recent upgrade of Questica Budget and move to the (hosted) cloud) if there is an ROI and it makes sense for the City. In addition, any new system requirements are being written with the cloud (hosted) or SaaS in mind. Apart from software products being cloud-based, we will also look at storage needs to see if it would make sense for that to be cloud-based (e.g., video — body worn camera, water and sewer pipes video). The Unisys Team will continue to provide the level of dedication and deep knowledge of the City's applications and infrastructure to promote successful outcomes while we accelerate the SaaS and cloud initiatives in the short and long term.
Unisys is providing an Infrastructure-as-a-Service solution for near future IT roadmap and business needs, which include a Cloud Management platform (CMP) and an integrated end-to-end solution to provide integration of private cloud (on premise) based on VMware and public cloud providers (Amazon, Azure, VMware as required). This will facilitate the City of Santa Clara's future workload consolidation, automation, orchestration, rapid deployment, and automated provisioning in an open and modular manner. Providing the ability and flexibility to expand or move workloads to the cloud will facilitate an elastic compute platform and at the same time reduce demand on physical data center assets, reducing the capital expenditures and eliminating procurement delays.
The implementation of CMP will begin after the ServiceNow "go-live" date and will be complete and documented within 90 days.
c) Establish and execute a Citywide digital strategy to improve citizen engagement across the City's customer groups.
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Schedule 2 — Final Service Tower Solutions
Response
As the City embarks on its third-generation IT as-a-Service transformation, it is targeting to increase citizen and community engagement through a wide variety of digital technologies that will promote openness, transparency, and ease of doing business with the City. Unisys will provide a methodology to facilitate the understanding and prioritization of City and department goals by key City stakeholders; and a clear strategy with a short and long-term roadmap is developed to meet those goals.
Unisys will maintain this roadmap and provide effective communications on progress to ensure that the City makes progress on its citizen and community engagement goals through the prioritized roadmap.
Unisys will produce a "Digital Strategy Plan and Roadmap" in the first year (within 12 months) after "go live" that is intended to provide a high-level framework and prioritized roadmap of Digital Government related projects and initiatives for the City. Following the initial deliverable, this roadmap document will be revalidated and updated at least once every 12 months to reflect any changes in the City's priorities and technological changes.
The "Digital Strategy Plan and Roadmap" will contain the following:
• List of all the projects and initiatives in a Microsoft Word document that describes the goals, desired outcomes, and a clear description of the initiative, inclusive of any people, process, and technology components in the initiative. For example an initiative could be — Conduct Focus groups across key segments across the City who use online bill payment services. • High level (Rough Order Magnitude) cost estimate and time duration for completion of the initiative.
This will also include where possible and feasible a rough order projection of benefits (quantitative or qualitative) that accrue from implementing this initiative. • Initiatives laid out in a high level Gantt Chart or an equivalent depiction that sequence these initiatives over a 3 to 5 year time frame.
• MS PPT document of the same content and a final presentation to the key City Stakeholders.
Unisys activities will include the following:
• Reviewing existing documents, projects underway across the City and various departments (a maximum of 8 such departments including the Information Technology Department) Interview major City stakeholders in various departments and prioritization of the City's digital needs and opportunities, and help the City develop a Strategic Roadmap of Digital Government Initiatives by leveraging our Strategic Advisory consulting capabilities. • Providing a ROM cost for these initiatives and their dependencies (including one time and ongoing cost estimates)
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Schedule 2 — Final Service Tower Solutions
• Assist with ongoing monitoring of these initiatives that the City chooses to implement. The Unisys Applications Program Manager and Enterprise Architect, along with our PMO, will monitor of the strategy, priorities, and associated projects and initiatives. They will also leverage the knowledge of the Unisys digital government experts.
The specific activities to be undertaken, the deliverables that will be produced and City's responsibilities, and our assumptions are highlighted below:
Producing the "Digital Strategy Plan" — First 12 months after "Go Live" The following Unisys Team members (inclusive of any subcontractors) will be involved in this effort:
Unisys PM0 (including the Project Lead from the day-to-day onsite team): This person will coordinate the various activities of this effort, facilitate the scheduling of interviews, identify City resources for interviews and workshops, and schedule the workshops and final presentation. This role will work closely with the City designated decision maker to identify any issues and make any decisions on behalf of Unisys.
Unisys Applications Project Manager- This role will be part of the onsite team and will coordinate the technical activities of the effort with the City stakeholders and the subject matter experts.
Unisys Enterprise Architect (part of the day-to-day onsite team): This role will be part of the onsite team and will coordinate the technical activities and ensure alignment with the IT strategic plan and enterprise architecture.
Unisys ApplicationS Program Manager (part of the day-to-day onsite Team): This role will be part of the onsite team and will assist by providing the team with information on Application development projects underway across various projects at the City and those that have been planned and budgeted for, and coordinating with the various departments.
Unisys Consultants (additional staff for this deliverable): Unisys consultants will conduct interviews with City staff, subject matter experts, and stakeholders; facilitate the workshops; review any documentation and materials relating to Digital Government initiatives at the City; prepare for the workshops; produce the deliverable; and participate in the final presentation of the deliverable to the City stakeholders. Unisys Consultants will work both off site and on site in order to complete their tasks.
Unisys Digital Government Subject Matter Expert (additional staff for this deliverable): Unisys Digital Government Subject Matter Expert will work closely with the Unisys consultants and provide expertise in the areas of Mobility, Social Media, Cloud technology, Digital Citizen facing services, and Open Government/Open Data initiatives. This expertise may be provided by more than one individual working both off site and visiting on site with the City staff for workshops and interviews.
The following activities are anticipated to take a little over four weeks of effort for the entire team, and will be spread over a calendar time period of three to six months and scheduled to optimize the involvement of City participants and the Unisys team.
CITY OF SANTA CLARA
Schedule 2 - Final Service Tower Solutions
• Review existing City provided documentation regarding Digital Government Technology Initiatives at the City, the progress to date of the various initiatives, City's goals and priorities pertaining to Digital Government initiatives and Strategy, and performance of current projects underway. Information from all of the 15 City departments will be reviewed, including the City manager's office. • Prepare for interviews with key stakeholders from all departments including department heads, operational managers, and key IT SMEs. A maximum of 16 such interviews spanning eight major City departments will be conducted. Each interview is anticipated to take no more than two hours, and will likely involve more than one individual and represent the decision making, operational, and technical leadership. Interview notes will be recorded in MS Excel and MS Word formats for later reference. • Prepare documentation that outlines Unisys consultants' view of City priorities, technology enablers, and barriers that impede the City's implementation of the Digital Government initiatives to support City's goals and priorities. Prepare a Microsoft PPT briefing of Digital Technology best practices with the City stakeholder audience's needs in perspective.
• Prepare and conduct a facilitated workshop (expected to last no more than four hours, and may be spread over two days with two sessions of two hours each) with participants and stakeholders from the City departments.
o Provide a Microsoft PPT based briefing of Digital Technology best practices to City stakeholders. o Identify capabilities required, enablers and barriers for the Digital Government initiatives. o Facilitated discussion between City departmental stakeholders, including IT. o Consolidate enablers and barriers into capabilities and prioritize capabilities required to accomplish the City's Digital Strategy over a period of time. • Document the findings of workshop and follow up with City stakeholders after the workshop to gather information, get clarifications.
• Consolidate the prioritized capabilities into a list of initiatives that can be funded, executed, and managed (projects). For each of these initiatives, provide a high-level ROM cost range, along with anticipated benefits for the City, and a list of dependencies, and estimate of its complexity. Each initiative will be defined clearly; the output will be in the form of MS Word and PPT documents for each of the initiatives.
• Distribute the list of initiatives along with project definition and ROM cost estimates at least two weeks prior to the next "prioritization workshop" to the key City stakeholders and participants. • Create a strawman roadmap of prioritized projects (Unisys' consultants view). This will then be used as the basis of discussion during the facilitated prioritization workshop.
CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
• Prepare for, schedule, and conduct a facilitated planning workshop involving the key City stakeholders from the City departments. This workshop will be planned for about four hours, and spread over two days of two sessions of no more than two hours each. If needed, an additional two hours session may be scheduled.
o Facilitate the discussion based on the strawman roadmap and list of initiatives distributed, and arrive at a list and roadmap of projects based upon input from the City stakeholders and participants. This list will then be prioritized in a systematic voting exercise and placed on a "roadmap" in a sequence to be executed.
• Document the output of the "prioritization" workshop and review with workshop participants and others in the City and make any required modifications. The documentation will be in MS PPT format, and the details in MS Word documents. This document will be distributed at least two weeks before the final presentation of findings. This deliverable will be the "Digital Strategy Plan" document. • Present the findings of the prioritization workshop to key City stakeholders in an Oral presentation.
Ongoing Monitoring and Governance of the Digital Strategy Plan The Digital Technology Strategy plan and roadmap of prioritized initiatives will be incorporated into the ongoing list of projects being monitored, tracked, and managed by the PM0. Unisys PM0, Applications Program Manager, and Enterprise Architect will work closely to monitor progress, and assess changes, deviations, issues, etc. This is expected to be a collaborative effort between Unisys and the City.
Any changes to city goals and priorities will also be passed along to the Unisys Digital Government Technology consultants for impact evaluation.
Deliverable: Periodic status reports regarding progress, milestones, and issues for the Digital Strategy Plan roadmap (tracking and monitoring progress).
Revalidating and updating the "Digital Strategy Plan" every 12 months thereafter.
After the initial Digital Strategy Plan document is produced, it will be refreshed every 12 months for the City. This effort is not anticipated to be as elaborate as the one involved in producing the initial deliverable.
This effort is expected to take a week of time for the Unisys Team, over a period of time not to exceed three calendar months. The following activities will be performed to produce the revised Digital Strategy plan every 12 months:
• The onsite PM0, Applications Program Manager and the Enterprise Architect will track on an ongoing basis the progress of Digital Strategy projects against the "roadmap" in the Digital Strategy Plan through the course of the year, note any deviations, and bring those to the City's attention.
CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
• Flag any changes or deviations from the plan and changes to City's goals and priorities, and analyze for potential impact to the Digital Strategy plan through the course of the year. • Review any significant changes to City's priorities that require new technology enablers, and review any new barriers that may have been introduced since the initial Strategy plan was created that have impeded the plan's progress.
• Review the consolidated updates and changes and prepare for an onsite visit and a facilitated workshop with key City Stakeholders; distribute the materials for this workshop at least two weeks prior to the scheduled workshop.
• Conduct a facilitated workshop (not to exceed four hours spread over two days in two sessions) with the key City stakeholders to review progress against the plan, and identify and prioritize any changes to the Digital Strategy and "roadmap" required to bring the plan back on track, or make any modifications due to change in priorities.
• Make any required modifications to the Digital Strategy plan; review the changes with key stakeholders and publish the plan.
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CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
d) Provide City management and staff proven IT tools, processes, capabilities and access to City data they need to improve city business operations, effectiveness and efficiency.
Response
Enterprise Agile is a new way to work but the core remains the same, measure business outcomes and improvement there off across the team. Santa Clara is not capturing most of the tickets as majority of the work in areas like application services happen via shoulder taps. Hence the first component will be to capture that data and set it as a base line for a given team's performance for current state. Hence we will Capture each and every ticket by ensuring that the support provider creates the ticket even if it is a shoulder tap. This will give us a base line on number of tickets and the cycle time for each ticket.
While transforming to Agile, each team's velocity (or capacity) will be estimated and over 3 sprint the actual velocity (capacity of the team) will be established. Based on the established velocity of the team, during sprint planning (or Kanban meeting, as the case may be) relevant stories will be planned and committed by the teams. Tracking planned v/s actual through burn down chart will give us insight into the teams progress on almost daily basis and end of the sprint a demonstration and retrospective (every two weeks) will help establish the accomplishment and gaps and how to improve those gaps as we move ahead.
The team burn up charts will provide us with progress made in terms of goals for the quarter and predictive probability of the total work getting done. This will also show if the work assigned is more or less based on teams velocity.
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CITY OF SANTA CLARA
Schedule 2 - Final Service Tower Solutions
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The predictability metrics, captured at the end of each Program Increment (PI) (each PI is 5 sprints long) is an indicator of reliability of teams estimates and throws up discussions if there is deviation, to explore root causes and fix it.
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CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
End of every quarter, the number of tickets closed (cycle time, as established during the base lining exercise) will help establish the improvements over the base line established earlier.
Having the right IT tools, processes, and capabilities is clearly a critical part of enabling the IT Department to support and drive the City's goals. The Unisys solution will bring those tools, processes, methods, and capabilities to the City through DevOps and by leading the implementation of the Scaled Agile Framework for Enterprises (SAFe) methodology. Additionally, we will move to a new Service Management platform based on ServiceNow, which is the industry-leading cloud-based IT service platform. The ServiceNow platform along with Unisys ITSM experience brings a suite of new tools, processes, reporting, and integrated capabilities that will provide the City with enhanced access to information. These new solution capabilities will drive better business operations and efficiency for the options while enhancing overall customer service. The ServiceNow platform also includes a rich end-user portal, where self-help is available along with many other features designed to deliver a better overall experience to the City.
Agile Implementation Approach
Unisys will conduct Agile transformation and transition activities that consist of four phases: Discovery, Align, Action, and Manage. In the Discovery phase, Unisys will conduct an Agile maturity assessment based on the Agile at Scale maturity index. A list of tasks that need to be completed for the City to reach the next level of Agile maturity will be created.
In the Align phase, Unisys will conduct the Unisys Innovation Workshop that will consist of aligning the organization to the assessment completed during the Discovery phase, aligning to goals and benefits, and defining business inhibitors to agility. The two outcomes expected at the end of the workshop are called "Track 1" and "Track 2."
• Track l's outcome is a roadmap for agility adoption that will be created and aligned with the City business priorities. This will identify teams and programs to be sequentially trained, coached, and enabled to implement business outcomes in an Agile manner. This is achieved by first mapping out the value streams within the organization, followed by identifying and prioritizing these value streams in the order that they have capability to reduce business inhibitors for the organization. • Track 2 is about establishing and documenting the structures and capabilities for an organization to achieve the mindset shift, cultural change, process alignment, technology, and governance aligned to the Agile adoption identified in Track 1.
Having identified the programs and value streams, the roadmap to create the structures like process alignment, governance, and cultural change will be identified and an implementation plan will be put in place for the organizational changes. Structures for continual feedback and plan, do, check, and act processes will be instituted to ensure organization structural changes are continually aligned to the changes that may happen on Track 1.
CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
Also, Unisys will roll out new Agile workflow and software tools:
• Jira (basic package) is a tool that meets the requirements put forth by the Align phase. Unisys can then begin to design, install, and configure the software tool so that Agile projects can be managed and tracked.
• The Jira package includes Portfolio planning capabilities for delivering value-streams with:
o Scrum boards that detail the effort and story of all activities o Kanban boards for full team visibility into what is next o Agile reporting detailing sprint activities
o Portfolio planning for forecasting and team management.
The Action phase is about carrying out the roadmaps created in the Align phase, and Program Kickoff is initiated. Unisys will lay out the vision and roadmap for a given program and the program backlog (program backlog constitutes features and benefits that an organization is looking to have in place on the program roadmap). This will be performed by leveraging the Unisys Innovation Workshop methodology.
Unisys will then train the team members who are going to be part the "Agile Release Train," including those who will provide support such as releasing to product, system architects, and user experience staff.
According to SAFe 4.0, the Agile Release Train (ART) "is a long-lived team of Agile Teams. The ART aligns teams to a common mission and provides for a regular cadence of planning, development and retrospective." There will be two different training sessions. Each training session will be 2 1/2 days and will accommodate a minimum of 10 and maximum 40 participants. Training will occur at a City provided venue/facility. The first session topic will be Leading SAFe for change agents. This is for people involved at program level and above, business owners, and other executive stakeholders. This training will lead to SAFe Agilist (SA) certification on successfully completing the training and passing the test. The second session topic will be SAFe for Teams. This training is meant for team members who are going to code, test, and implement the solution. This training will lead to SAFe Practitioner (SP) certification on successfully completing the training and passing the test. The output of this Program Kickoff will be 1) vision, roadmap, and program backlog for the program, and 2) everyone trained who is on the train and supporting the ART.
The list of participants will be finalized mutually in discussion between City identified key stakeholders and Unisys trainers, and if City feels the need for additional training, this can be provided at additional costs with a new Change Order.
Having completed the requisite training, Unisys will assist the City in launching the ART and have a 2-day Program Increment planning session. According to SAFe 4.0, the Program Increment (PI) "is the larger development time box that uses cadence and synchronization to facilitate planning, limit WIP (Work in Progress), provide aggregation of newsworthy value for feedback, and ensure consistent program level retrospectives. It is composed of multiple development iterations and an innovation and planning
CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
iteration." Unisys will have the trainer, coaches, and relevant material ready to help the team plan out their very first Program Increment based on the training that they just completed. The output of this PI Planning will be Team PI Objectives, Program PI Objectives, and Program Board that highlight the new features' delivery dates and dependencies among teams and other ARTs and relevant milestones. The Agile teams start to plan and execute the iteration. It is in iteration planning where stories in the backlog are prioritized and estimated, and acceptance criteria is created. During execution of the iteration, Agile teams will perform work such as development of their stories, iteration demos, and conducting brief daily meetings. Unisys will assist the Agile teams through all the processes of team iteration during the transition period.
The Manage phase is about ensuring that the proper governance, processes, and structures are in place to execute SAFe so that the Agile processes implemented during the transition will continue to run efficiently and effectively. Unisys will provide guidance for governance and processes during the transition period.
An example and sample of execution phase showcasing how it will work has been entailed below. The ceremonies, the people, measuring metrics, and governance components are identified below. Also, two different processes (Scrum and Kanban) and their concomitant components are enlisted below.
Program increment (PI) objectives are summaries of business and technical goals at multiple levels within a program increment. In the Scaled Agile Framework (SAFe), there are two levels of PI objectives. When process of planning is complete, the work that has been planned is summarized into the team Pl.
PI Planning: Duration - Ito 2 days (on a cadence of 10 to 12 weeks). Participants: All team members across all teams (from all the towers who have/are in the process of adopting Agile and DevOps), support, shared services, DevOps Product managers/Product owners, scrum masters, release train engineers, and release management.
During PI planning, the teams estimate what will be delivered during the next 10-12 weeks based on prioritized program backlog. This includes things like RFPs to be developed, functionalities to be released, enhancements/patches to be applied, and infrastructure to be created, maintained, or migrated.
All the dependencies across the ART between the teams are identified, adjustments to accommodate the same are identified and planned for, and the team commits to doing whatever has been planned.
Adjustments, if needed, are made at iteration/sprint boundaries. Objectives (aligned to business outcomes) are identified, and business value assigned to each team's objectives.
CITY OF SANTA CLARA
Schedule 2— Final Service Tower Solutions
Measuring Metrics: All the objectives are rolled up to Program Increment objectives (called PI objectives), and the business values are rolled up. This business value is used at the end of the PI to measure the actual against planned business value for each team and for the entire Pl. Across multiple Pls, the user can plot a program predictability matrix to showcase the process control range, which is sufficient to run the business. A sample report is highlighted for review. (Jira has the ability to showcase the similar function and parameters.) The predictability matrix also helps to identify problems within a given team and to help find root
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Scrum of Scrums meeting (SOS): Duration - 15 to 30 minutes (on a weekly or twice a week cadence).
Participants: Scrum Masters.
Release Train Engineer (RTE) coordinates this SOS meeting to continuously coordinate dependencies across the Agile Release Train and provide visibility into progress and impediments. Everyone is updated into the progress made for given milestones, Program PI Objectives, and internal dependencies amongst the teams. If there are issues to be resolved between teams, they are identified, and a meet after is conducted for the relevant team members to review issues and dependencies for fast resolution.
Depending on the context, some organizations decide on separate Product owner SOS, which will be assessed and decided during the training and implementation phases of the project.
Release management meeting: Duration - 30 minutes to an hour (on a weekly or as needed by the program context). Participants: Release management team members.
A meeting that providence governance for upcoming releases and provides regular communication to the management. This team has the authority to approve any scope, timing, and resource adjustment for a successful release to take place.
System Demo: Duration - 30 minutes to an hour (on a biweekly basis). Participants: All the teams and program level stakeholders. For example, participants would include product managers, product owners, and system team members.
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Schedule 2 - Final Service Tower Solutions
The hallmark of each PI is a biweekly system demo wherein the entire system working as on slice is showcased. In case of infrastructure teams, they showcase the accomplished system to date. Members will highlight their completed portion and highlight dependencies and acceptance criteria that have been achieved. The team showcases closed tickets while the system is working as desired without breaking current functionality, thereby highlighting the software, hardware, and other interfacing systems that are working as one unit without any issues.
Preparing for the next PI planning event: Even though the event is called out during the beginning of the last iterations/sprint of any PI, it is a contentious process with the following primary focus areas:
1. Management alignment and organizational readiness for next PI planning.
2. Backlog readiness. If it is not on the backlog, it is not going to get done. Everything we want to happen in the next PI should be on the backlog and should be in the "ready state" (the acceptance criteria, the milestones, the NFRs, etc. will be in place). For example, this includes the tickets that team members process through the system, be it enhancements, patches, environment migrations, infrastructure upgrades, and infrastructure migrations.
3. The actual logistics for the Pl planning event.
Inspect & Adapt: Duration - 3 to 4 hours (at the end of every PI). Participants: All team members across all teams (from all the towers who have/are in the process of adopting Agile and DevOps), support, shared services, DevOps Product managers/Product owners, Scrum masters, release train engineers, and release management.
The PI is done when the PI time box expires (10 to 12 weeks). Each PI is followed by the final system demos wherein all the features, upgrades, enhancements, RFPs, current state, etc. are demonstrated.
Essentially, the accomplishment is during the Pl. The workshop helps to reflect, problem solve, and take on improvement across the entire program and incorporate the same as backlog item. It is at this time that the business value delivered by teams gets assigned the actual value delivered. The actual versus planned is calculated (in percentage) for individual teams and rolled up for the program. A band of 80 percent to 100 percent predictability is considered good and any swings for individual teams become a point to investigate the root cause and remediate it. The program predictability metrics are updated.
In this way, every ART improves during every Pl.
Three different types of teamwork:
1. Story-based teamwork. The work that can be broken down into stories and has to have an established acceptance criteria and definition of done. For example, enhancements, new features, RFPs, infrastructure migration, enhancements, patches, etc. fall into this category and have assigned story points.
July 24 July 26 July 28 July 30 Aug 1
1 2 3 4
5 Iterations In the PI
UWE
tS;
Burndown Chart
12 500
I 400
E 300
o 200
100
10 CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
2. Ticket-based work. The work that has tickets associated with it (break fixes, open items from customers (like service requests)). It could be of differing severity or tickets that have been opened with a service provider (tracked as internal ticket opened for the break fix).
3. Teams having a mix of story-based and ticket-based work (for example, creating a functionality or enhancement for a given system and maintaining the current system).
Across all three, they can be handled in two ways:
Scrum is a subset of Agile. It is a lightweight process framework for Agile work, and the most widely used one. A "process framework" is a particular set of practices that must be followed in order for a process to be consistent with the framework. A Scrum Board is a tool that helps Teams make Sprint Backlog items visible. The board can take many physical and virtual forms, but it performs the same function regardless of how it looks.
Scrum Board: Wherein stories are prioritized in a backlog by a product owner and team members size and plan the work during iteration/sprint planning. During iteration/sprint execution, they pull stories from top down using Agile principles. The Jira tool allows for all of these processes to happen and provides various team-level metrics to showcase planned versus actual in almost real-time. Many of the charts that help observe the same are burn down charts for the iteration/sprint, updated daily during or soon after daily standup. At the Program Increment level (PI), we will have a PI burn down chart showcasing the progress per Pl.
1. Guideline
• Has the most meaning at Iteration boundaries
0 Remaining Values • Does not provide information as to which features Non-working Days may or may not be delivered. The Feature Progress Report provides that information.
2 fl 6
Integrate
Build and teat I Accepted
4 Review
2 6
I Analyze
In Pron. Road,
Team
Backlog
In Prop Randy
don "0°- N mal,
WIP
Le d 0a4 r Lead Tome
Num
ber
& bac
klog
ite
ms
20 10
30 1
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Kanban Board: A Kanban board is a work and workflow visualization tool that enables you to optimize the flow of your work. Physical Kanban boards, like the one pictured below, typically use sticky notes on a whiteboard to communicate status, progress, and issues, Kanban board lends itself to ticket-based and
regular based work lending itself to principles of
lean, making work visible, helping identify
bottlenecks and providing mechanisms to
handle the same through Work in Process (WIP)
limits. For exceptions (like Sev1) provides for
teams to focus on that, breaking the WIP limit
and then going back to the tickets that the
teams were working on. It also provides for a
swim lane that has fixed dates (for example,
monthly patches, quarterly patches, etc.) to be
handled effectively along with capacity planning
based on velocity within Enterprise Agile
framework. The Kanban board is configurable,
4 8 12 16 and here is one example of a Kanban board Time (days) (Jira may have a different look and feel, but the core principles remain the same). The Kanban board has three classes of services. The expedite service is for things like Sevl issues that need immediate attention and are normally allowed to violate the WIP control limit. The second one is fixed date, for example, patches to be applied on a cadence. If the fixed date is further down, you may take in fewer of those stories/tickets and thus do more standard work (enhancements, new functionalities, infrastructure upgrade, etc.). Based on the tools, one will get Cumulative Flow Diagram generated from the Kanban board, helping one to identify the velocity of flow. If the flow is low, one reduces the WIP (work in progress) limit.
Having launched the teams across all towers onto Enterprise Agile and DevOps, the continuing education is achieved through community of practice (CoP) to be established. CoP is a forum where folks will exchange their experience on what worked for them; any issues that they may have will be discussed there, and it can have cadence-based activities, too. This helps teams solve their problems and learn from each other within the context of City of Santa Clara.
Besides the CoP, the teams will have reach within Unisys' environment wherein we have our own forums like CoP, Agile continuous education, access to SMEs, and platforms like Yammer, wherein groups on particular subject matters exist with a treasure trove of knowledge.
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DevOps Implementation Approach
Unisys will conduct DevOps transformation and transition activities that consist of four phases:
Discovery, Align, Action, and Manage. In the Discovery phase, Unisys will perform an assessment of current DevOps capabilities to understand the City applications environment. The assessment process will cover the Technical Release Management, Environment Management, Test Lifecycle Management, Change Management, and Configuration Management. Unisys will then review the assessment information with the stakeholders to obtain agreement on the information received from the assessment activities.
In the Align phase, Unisys will make recommendations as a result of the information obtained in the Discovery phase. A roadmap and deployment plan for tools, processes, and capabilities will be created for the proposed DevOps architecture. Unisys 'i!l be implementing:
• Jira for workflow management
• Selenium for testing automation
• GitHub for source control management
• And Chef for environment and configuration management.
Jira is a proprietary issue tracking product. It provides bug tracking, issue tracking, and project management functions. It has been developed since 2002. For additional information on the Jira capabilities, please refer to this website. https://wvvvv.atlassian.conn/software/jira Selenium is a portable software testing framework for web applications. Selenium provides a record/playback tool for authoring tests without learning a test scripting language (Selenium IDE). For additional information on the Selenium capabilities, please refer this website. http://www.seleniumhg.org/docs/01 introducing selenium.isp Git is version control software, which is used to keep track of changes to a file or group of files. Version control is usually associated with source code, but can be used on any file type. For example, a technical document may be placed in version control in order to keep track of changes made to the document.
Version control can also be applied to graphics. You can roll-back to a previous version to keep track of the changes made on a particular file. For additional information on the Git capabilities, please refer this website. https://git-scm.com/book/en/v2/Getting-Started-About-Version-Control Chef is both the name of a company and the name of a configuration management tool. It uses a pure- Ruby, domain-specific language (DSL) for writing system configuration "recipes". Chef is used to streamline the task of configuring and maintaining an organizations servers, and can integrate with cloud- based platforms such as Microsoft Azure, Amazon EC2, Google Cloud Platform, OpenStack, SoftLayer and Rackspace to automatically provision and configure new machines. Chef contains solutions for both small and large scale environments. Chef capabilities, please refer this website. https://www.chef.io/solutions/infrastructure-automation/
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Unisys will begin the design, installation, and configuration of the software tools. Unisys will also recommend new processes and capabilities to be put in place so that the DevOps processes will run efficiently and have the appropriate roles and staff to support the new processes and software.
Furthermore, DevOps will be aligned with the SAFe transitional activities since the DevOps function is an integral part of the SAFe methodology.
In the Action phase, Unisys will execute DevOps transitional activities to implement tools, processes, and capabilities based on the roadmap and deployment plan created in the Align phase. Also, DevOps staff will participate in SAFe activities, such as SAFe training and Program Increment sessions so that they will be able to support the ART and Agile teams. Furthermore, as applications changes proceed through application life cycle during the transition period, Unisys will validate the implemented tools and processes for effective and efficient delivery.
The Manage phase is about ensuring that the proper governance, processes, and structures are in place to execute DevOps so that the processes implemented during the transition will continue to run efficiently and effectively. Unisys will provide guidance for governance and processes during the transition period.
The approach to projects using Agile methods discussed in Section 4.1.d, where topics like transition tasks, roles, and milestones that are part of the SAFe methodology is described. To prepare for the transition to Agile, this section describes the Discovery, Align and Action phases of the Agile Implementation Approach, where topics like training, the Unisys Innovation Workshop and Program Kickoff are discussed. Also, current project processes will be used throughout the transition period until the Agile Release Train (ART) is launched, when the SAFe processes are executed. Likewise, current project tools will be used throughout the transition process until the ART is launched, when the SAFe processes will be executed, and the use of Agile tools such as Jira will commence. At that time, the pre- Agile project tooling can be used to reference any information needed during the transition.
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e) Enhance IT management and governance processes to ensure business and enterprise IT demands are understood, prioritized, funded and delivered effectively.
Response
To enhance IT management and governance, Unisys recommends that the City transform its operational management approach into one based on DevOps and Agile. Unisys will lead the City through the transformation into DevOps and the methodology known as the Scaled Agile Framework for Enterprises (SAFe), which helps organizations to fulfill their business goals and objectives. SAFe provides the necessary flexibility to respond to ever-changing market needs, and it fosters business, technology, and operations to work toward one goal as one team. SAFe will propel the organization into a nimbler, powerful, customer-responsive organization. This framework drives organizational transformation with process, culture, capability, tools, and governance while delivering value streams with an improved reliance on delivery. Our solution will ensure enterprise IT and business demands are understood, prioritized and delivered successfully.
To support successful integration of DevOps and SAFe, Unisys will bring expertise in Organizational Change Management (OCM) to help the real change that is necessary in order for impacted team members to efficiently and fully engage in operating and governing this new framework. OCM is a critical part of the transformation; in accordance with our experience, it should not be underestimated. OCM delivers a framework to drive this change from top to bottom with the City and Unisys account team members.
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t) Support the City's transparency objectives by delivering highly available, reliable and accurate information technology.
Response
There are two aspects to supporting the City's transparency objective. The first is outward facing and relates to the City Council's goal to provide an open government. To help provide an open government, Unisys will increase community engagement by making more information more available as appropriate on City websites. This will be part of the digital transformation that will use open data on City websites to make data more easily accessible to the community. Part of this transformation will be to make more City meetings (Council, Boards, and Commissions) available on the web by streaming video through social media channels such as Facebook Live and YouTube in addition to City websites, as is currently performed for some Council and Planning Commission meetings. Another part of this transformation will be the introduction of a public portal to provide easy access to City data. For example, the portal will have public information requests.
Although a good portion of the infrastructure needed to support these types of applications already exists, Unisys plans to further strengthen the current infrastructure with more storage and a fault-tolerant virtualized environment using VMware 6.x to offer true 24x7 availability of critical business applications supporting the City's Open Government initiative. This plan leads to the second aspect of the City's transparency objective, the inward-facing component. Unisys will provide City departments with a limited Service Catalog during Transition. Over time, additional service requests will be added that will identify the capabilities that the IT Department can provide and how those services are managed. The service level agreement or metric, along with dashboard information, will provide end users with enhanced transparency of services and performance information. In addition, the new system will allow users to enter tickets and track their status more easily. One last item for internally facing transparency will be the redesign of the City intranet (SharePoint) to allow more collaboration within departments and between departments and IT, as well as to promote use of team rooms and chat.
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g) Continue to invest and enhance core infrastructure capabilities in support of the City's business objectives.
Response
With cities such as Santa Clara that face rapid change, it is crucial that the core infrastructure evolve in a way that is flexible and scalable to meet the needs of today and tomorrow. For 7 years, Unisys has brought a wealth of enterprise architecture design, best practices, and knowledge to the City and successfully migrated from a heavy physical server environment with little to no redundancy to a high availability environment at the server, network, data center, and Internet connectivity levels. We are the safe hands you know today and will continue to provide stable and secure services, but that is not the destination.
The Unisys infrastructure team will continue to bring this level of expertise and creativity, working hand-in- hand with the City departments, City IT leadership, and the applications team to further improve the environment to a more fault-tolerant capability. This will require moving faster toward the City's "Cloud First" strategy, adding to current systems and completing the Citywide Office 365 deployment. This will change how employees work and collaborate as well as extend the flexibility of working locations. The current infrastructure personnel at Unisys possess deep knowledge of the City's operating environment and culture. The team regularly generates new ideas and approaches to improve the performance, availability, and security of those systems and reduces costs to the City.
Unisys will also provide a suite of standards-based, best-of-class, integrated monitoring and management tools for Enterprise Compute, Network and Security Management. These will be both on premise and off premise and will monitor and manage the environment at the City as well as connectivity to remote providers such as cloud-based services. These new tools, together with refined processes and procedures that have been developed through our years of experience, expertise, and use of industry best practices, will enhance the City's infrastructure capabilities to more effectively meet its goals. Unisys is providing our Cloud Management Platform to the city to jump start their capabilities into the next evolution of compute on-demand services. The Unisys transformation mindset and vision is an area of great interest and investment for Unisys. Specifically, how it has developed, and technologically matured through innovation and thought leadership for the City to a point where business needs drive IT. This can come in the form of simple automation, autonomic IT management, automation to facilitate the new work space requirements, and expectations for the next generation of REGN employees (WPaaS) or any number of disruptive trends yet to be vetted and made available to our Clients. The automation and autonomic IT management are the cornerstones that Unisys is providing within our proposal.
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h) Ensure the confidentiality, integrity and availability of the City's data and information technology assets though Cybersecurity best practices.
Response
Unisys will collaborate with city stakeholders to develop a cybersecurity program that addresses Confidentiality, Integrity, and Availability (CIA triad) of City data assets and systems. The security program will be based on the N1ST Cybersecurity Framework. It will include annual assessments based on this framework, and we will use a risk-based approach to evaluate needs and make recommendations.
Our risk-based analysis will leverage best practices from across our global security teams, in order to provide recommendations so that potential impacts from adverse events fall within acceptable limits. The scope of the risk-based approach will cover cybersecurity risks that affect City systems, employees, and citizens. In addition, our program and recommendations will include necessary controls to maintain PC1 and SOX compliance requirements.
Confidentiality will be enhanced through the use of disk and transport encryption using current and standards-based encryption algorithms and processes. Integrity will be enhanced through the use of appropriate file permissions and role-based user access controls. Availability will be enhanced through hardware maintenance, bandwidth management, and redundancy with failover mechanisms, and established disaster recovery procedures. The CIA triad will be audited and reported on quarterly so that the City has an accurate and up-to-date picture of the state of the City. Our solution for the City will monitor the environment with the available tools, which include but are not limited to HP ArcSight, Nagios, and Zscaler. These tools are tuned to identify the security events that could affect the City, and they automate the flow of incidents so that the right teams respond to and eliminate threats.
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2. The City desires a service delivery model where the Service Provider's resources will provide both operational and project delivery support. How will you deliver on and manage to the expectation around people capacity for operational and project work? Response
Establishing a robust delivery framework that allows leadership to have visibility to operational and project work is crucial to ensuring high-quality, on-time delivery of projects and milestones as well as ensuring that priorities are aligned. Unisys will drive a transformation of the operational approach based on DevOps and Agile. These capabilities will drive continuous improvement, effectiveness, and efficiency of the business operations. The Unisys DevOps strategy is aligned with Agile and cloud technologies. It promotes strategic initiatives for development operations, cloud provisioning, and custom Agile development. It will deliver services that increase the effectiveness of the City's IT organization during the development and testing phases of project delivery. To provide support of major project functions such as testing and release, Unisys will use cloud or on premise resources, which will lead to faster delivery, better quality products, and application stability. The Unisys DevOps solution will also seek to improve collaboration and communication between development and operations teams by taking an Agile team approach. This approach encourages the involvement of the appropriate resources from various critical functions to create effective teams. These methodologies and the resulting industry-standard tools will provide the governance and visibility to our team's workload to promote effective decision making and more effective delivery and results related to daily operations, projects, and strategic initiatives.
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3. Describe you process for attracting and retaining talent for customer accounts, particularly in hyper-competitive labor markets such as the City's.
Response
The key component is having our talent acquisition team prescreen candidates proactively by limiting the number of skills to those that are the most critical as mutually defined by City IT Department and the Unisys Team. The Unisys hiring team and City IT leaders can focus on the overall skill set and fitness for working at the City. It has been important to assess a candidate's motivation and rationale to work for the City and confirm that that the candidate has a solid track record of working collaboratively with others.
Additionally, we plan to make continued improvements to our City-specific strategy for attracting talent through targeted recruiting with clear qualification prescreens, customized job descriptions, business intelligence, and executive sponsorship. The City's value proposition will be used to attract talent. Each Unisys associate supporting the City has to feel valued and believe in what he or she is doing. It starts with onsite Unisys leadership setting a positive tone and building team relationships. Unisys will use the Leadership pyramid framework building on core values, vision, and guiding principles. The benefit of keeping open communication and a respectful culture is that the IT talent whom we deliver to support the City will thrive and want to be here, in which will lead to high-performance support across the City's departments and successful mission outcomes.
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2.0 Service Tower Solutions and Conformance with
Statement of Work Requirements
Instructions for Solution Overview: For each solution overview in the Service Tower subsections below, include the following common solution characteristics and description elements. a) Proposed operational staffing approach (e.g., dedicated account staff, leveraged account staff, mix of dedicated and leveraged, onsite vs. offsite)
b) Applicable IT standards and certifications will you bring to the engagement with the City (e.g., ITIL/ITSM, COBIT, CMMI, ISO certifications, PMP), and how will they benefit the City. For CMM1, indicate your standard and what are you proposing for the City. c) Proposed Service Tower tools approach, including whether Service Provider will be using City- provided or Service Provider-provided tools, and a description of what automated tools you are proposing for each Service Tower. Specific tools list to be provided in each SOW response section
d) Approach to support the City's range of service requirements from operation to projects and strategic initiatives.
BAFO Summary of changes:
• The organization diagram changed for application tower responsibilities in order to focus on the importance of strategic initiatives.
• SIEM solution integrated with ServiceNow.
• Cybersecurity plan, roles, and more detailed solution. • ServiceNow module solution definition and detailed process. • Knowledge base management process.
• CMDB process and use of a SME. The Asset Management process.
2.1.1 Cross Functional Solution Questions
Instructions: In addition to the General Solution questions in Section 4 above, Service Provider shall provide responses to each of the Service Tower specific questions below. Limit responses to each question to a half page.
a) Please provide your proposed approach for developing the following critical deliverables referenced in Schedule 3A: IT Strategic Plan, Information/Cyber Security Plan, and Communications Plan.
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In addition, provide a sample table of contents for each of these critical deliverables.
Delivery of these services will require collaboration with stakeholders within the IT department as well as in other City departments. Because the percentage of effort depends upon external variables that are not within our control, the effort is instead shown as a level of frequency. The intent is that these security functions become naturally woven into existing functions, except where the function is a specific security task itself, such as those tasks done once each year. The roles and frequency of need for these are listed in the following table:
STAKEHOLDER FUNCTION INVOLVED IN FREQUENCY
CIO Establishing business strategies that security plan will align with
Annually
Department Heads Meeting with security and compliance assessor(s) for risk assessments
Annually
Department Staff Collaborate with Information Security to implement security controls that enable operations within
accepted risks ranges
As needed
IT Services
Manager
Deploy security awareness training to all employees Annually Application
Manager
Incorporate security checklist in all new RFPs for
SaaS and COTS
Ongoing
Network Security
Engineer
Provide continuous firewall, router, switch, and
wireless security management
Ongoing
Windows Admins Participate in security assessments of Active Directory and GPOs
Ongoing
Email Admins Keep spam and phishing protections enabled and updated
Ongoing
Backup Admins Ensure backup tapes are protected Ongoing Desktop Admins Respond to desktop alerts, identify anomalies, and remove malware
Ongoing
All Staff Participate in annual security awareness training and stay vigilant of security risks
Ongoing
The following table describes key security roles, tools, and functions:
SECURITY FUNCTION TOOLS ROLES
Security Program & Governance NIST Cybersecurity
Framework
Security advisor
Onsite Information Security
Officer
Risk Management Assessments Annual assessment team, and penetration testing team
Physical Security at Customer
Service Locations
Onsite Infrastructure team
Physical Security at Service
Provider Service Locations
Annual SSAE 16 audits Managed Security Service team
Security Integrity Advisory Security advisor
Patch Management Microsoft SCCM* Desktop Managed Services
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SECURITY FUNCTION TOOLS ROLES
Ma[ware Prevention Symantec AV*
Microsoft SCEP (to be
replaced)*
Zscaler*
Onsite Server Administration,
Desktop Monitoring Services
Security Information and Event
Management (SIEM)
ArcSight Managed Security Services team
Monitoring SolarWinds*
Nagios
Cisco Prime Infrastructure*
Kiwi Syslog*
Onsite network & security team
Incident Management ServiceNow Incident Management Services System Administrative Privilege
Support
Server Administration
Security Status Checking and
Validation
DHS Qualys Onsite Information Security
Officer
Threat and Vulnerability
Management
DHS Qualys Onsite Information Security
Officer
PROPOSED NEW TOOLS
(dependent on CSC budget)
Penetration testing software
Stealth Microsegment for PCI
system
Onsite Information Security
Officer
Digital ID Email (Docusign)
Tokenization of CC data
Onsite Server Administration
Replacement Desktop AV
Data Loss Prevention
Incident response laptop kit
Onsite desktop support
** indicates that the identified tool is provided by the City.
The effort needed to accomplish the activities related to aforementioned roles is variable, depending on each activity.
Response
Unisys will assign key personnel with clear ownership of the plans for these critical deliverables, along with defining the methodology for developing and reviewing each deliverable, and obtaining signoff from the City. Critical deliverables will be clearly tracked to confirm that ongoing maintenance timeframes are met. The status, next step, and timeframes of the critical deliverables will become key components of ongoing overall account governance.
These plans will be driven by a methodical approach and follow a process that includes input from critical leaders across IT and City departments. They will also include input from Unisys subject matter experts as required. Unisys will adhere to the timeframes outlined in Schedule 3A for the initial creation, ongoing review, and updates to these documents. Exhibit 2.1.1-1 shows a basic table of contents for each plan.
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IT Strategic Plan Information/Cyber Security
Plan Deliverables
Communications Plan
•
•
Vision and Mission
for IT in the CSC
IT Strategies and
Perform risk assessment
• Define scope that
includes systems,
stakeholders, and
•
•
Communications Overview
Communications Methods
and Audience
Goals aligned with compliance • Communications Process
Future Business requirements. and Workflows
Capabilities • Understand current
• IT Shared Services state of security • Communications Framework Architectural Vision controls (based on • Communications Objectives N1ST Cybersecurity
• High-Priority List of IT Framework) • Impact Assessment Initiatives on a 2- to
4-Year Roadmap
• Conduct interviews
and perform
• Target Audience
walkthroughs of in- • Communications Required
scope systems and
processes
• Areas of Responsibilities
• Perform SWOT • Reinforcement
Analysis (Strengths,
Weaknesses,
Opportunities, Threats) •
Communications
Templates
Determine desired
capabilities and maturity
levels
Perform gap analysis
Generate report that include:
• Prioritized risk ranking
• Capability assessment
findings
• Maturity assessment
analysis
• Remediation
recommendations
• Security action plan
Exhibit 2.1.1-1. Table of Contents for Critical Deliverables. b) Describe your solution for providing cross tower security for the City's environment, including Cybersecurity Plan development and maintenance process, tools you will provide/use, measures and maturity indicators you will provide, and IT security industry standards with which your solution will comply. Explain how the proposed Information Security Officer will help to achieve the City's cross Service Tower security requirements.
Response
The onsite team will perform annual Payment Card Industry (PCI) assessments utilizing the self- assessment questionnaire provided by the PC1 Security Standards Council. The onsite team will also use
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security frameworks from National Institute of Standards and Technology (N 1ST) Cyber Security Framework (CSF) and SP800-53 and ISO 27001 as guides for security plans and recommendations.
Network monitoring, intrusion threat detection, and threat intelligence for the City's Managed Security Intelligence Services (MSIS) will be delivered from Unisys owned, operated, and staffed Security Operations Centers (SOCs) in Salt Lake City, UT, and Eagan, MN. These SOCs leverage ITIL, ISO 9001, and ISO 20000 Series international standards and best practices. Unisys conducts annual internal security assessments and facilitates external independent verification and validation (IV&V) audits to maintain our ISO certifications.
Unisys undergoes an annual internal security assessment by an independent auditor. The SSAE 16 audit report from this assessment will be provided to the City annually.
The Unisys security team is led by an onsite experienced Information Security Officer (ISO). Additionally, it includes 25% FTE support from our Chief Information Security Officer (CISO) advisory team, which complements the ongoing service of the dedicated ISO. Also, delivery of security services is dependent upon other IT positions, especially from the network engineers, Active Directory support, Anti-virus support, and web specialists.
The ISO will own the development and maintenance of the Cybersecurity Plan, which will be updated annually. The comprehensive Cybersecurity Plan will be based on the NIST Cybersecurity Framework (CSF) and provide standards, general guidance, policies, and procedures to mitigate threat exposure and to protect assets, data, employees, and facilities by securing the perimeter, applications, and websites.
Delivery of the stated security services requires the continued use of Unisys tools, such as HP ArcSight and Nagios, or equivalents, as well as CSC tools, such as Zscaler, Cisco Prime Infrastructure, SolarWinds NPM, and Kiwi Syslog.
Unisys will collaborate with the City departments to integrate security requirements in new initiatives and existing solutions.
ROLE FUNCTIONS
AMOUNT OF
TIME
Information Security Develops and maintains the cybersecurity plan. Onsite, 40 Officer Analyzes and assesses vulnerabilities in the
infrastructure (software, hardware, networks), employs
available CSC tools and countermeasures to remedy
detected vulnerabilities. Investigates and utilizes new technologies and processes to enhance security
hrs/week
capabilities and implement improvements. Tests for
compliance with security policies and procedures.
•
Assists in the creation, implementation, and/or
management of security solutions. Performs security
monitoring, security and data/logs analysis, and forensic analysis, to detect security incidents, and mounts
incident response.
Managed Services (SOC) SIEM monitoring & reporting, AN & Malware monitoring 24x7x365
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& reporting monitoring
Annually (6
week process) Risk Assessment Risk management process
Penetration Tester Test a selected web application and provide detailed report. One per year will be performed by DHS
agreement and others by Unisys pentest group.
Annually
Incident Response
Testing
Wargaming/Table-top exercise Annually (1
day)
Independent Audit of
Unisys
SSAE 16 audit report on Unisys internal processes will
be generated from an independent assessment, and this
report will be provided to CSC.
Annually
Security Advisor Security program oversight. Validation of network, server, email and web application security. Evaluation of results from Unisys security delivery groups.
Partial (25%
FTE)
c) Describe your solution for providing integrated Security Information and Event Management (SlEM) services across all Service Towers.
Response
Unisys will manage the City's Security Information and Event Management (SIEM) system, which is based on the HP ArcSight platform. This management will include weekly tuning of alerts as warranted to look for changing threats or indicators of attack. Real-time correlation is enabled, which identifies and alerts to true threats. The Flexible Architecture allows integration with incident management systems and it will be integrated with ServiceNow when that solution is deployed. The managed solution also includes maintaining the same level of capabilities, the same number of data sources (57 data sources listed in Exhibit 2.1.1-3), and the same monthly reports. Using the SIEM Deployment Maturity Levels depicted in Exhibit 2.1.1-2, the city is at a deployment maturity greater than level 2 and below level 3. These deployed capabilities will be maintained via the managed service.
Some benefits of HP ArcSight that are listed on the HP website, and that were asked in the RFP, such as "Non-stop security compliance" and "Security information ecosphere," are aspirational capabilities.
Delivery of these capabilities in a comprehensive manner would be dependent on more data feeds, wider integrations, and add-ons that are not part of the existing solution.
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SIEM Deployment Maturity Levels
\ Level 5
Opdmizing
Organization received scheduled data analysis and threat intelligence reports, SIEM auto-ticketing processing matured, and Forensics procedures active and tested.
Level 4
Quanti
Level
]
Data analysis reports produced, threat analysis limitations Defined I determined, event ticketing and tuning Initiated. 3 Level' 2
fr7.3.„d
blanaggit
SILM data sources verified and tuned, and reports
generated,
Value from data analysis and threat Intelligence reports confirmed, scheduled reports submitted to organization, procedures For handling SIEM auto-ticketing formalized, requirements for forensics defined
SIEM tool identified, SIEM data sources established, and Initial requirements for reporting created,
Exhibit 2.1.1-2. Deployment Maturity Levels for SIEM.
Device
Address Device Host Name Agent Host Name Device
Product
CiscoACS vsrvasprod01 Cisco Secure
ACS
10.60.0.4 cscise vsrvasprod01 Cisco ISE
csciseha vsrvasprod01 Cisco ISE
10/.1.25 fwasa1-std.city.santaclara.local vsrvasprod01 ASA
10.51.0.36 kemp.city.santaclara.local vsrvasprod01 Unix
10.51.0.40 kemp2.city.santaclara.local vsrvasprod01
prodinstance2.city.santaclara.locallins
tance2
vsrvasprod01 SQL Server
10.1.5.51 SRVCITYDC2.city.santaclara.local vsrvasprod01 Microsoft Windows
10.15.1.23 srvdmzesxil .city.santaclara.local vsrvasprod01 AIX Audit 8 10.15.1.23 srvesxil .city.santaclara.local vsrvasprod01 AIX Audit 0 10.15.1.23 srvesxi1.city.santaclara.local vsrvasprod01 ESX 0 10.15.1.23 srvesxi2.city.santaclara.local vsrvasprod01 AIX Audit 1 10.15.1.23 srvesxi2.city.santaciara.local vsrvasprod01 ESX 1 10.15.1.23 srvesxi3.city.santaclara.local vsrvasprod01 AIX Audit 2 10.15.1.23 srvesxi3.city.santaclara.local vsrvasprod01 ESX 2
CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
Device
Address Device Host Name Agent Host Name Device
Product
10.15.1.23 srvesxi4.city.santaclara. local vsrvasprod01 AIX Audit 3 10.15.1.23 srvesxi4.city.santaclara.local vsrvasprod01 ESX 3 10.15.1.23 srvesxi6.city.santaclara.local vsrvasprod01 AIX Audit 5 10.15.1.23 srvesxi6.city.santaclara.local vsrvasprod01 ESX 5 10.15.1.23 srvesxi7.city.santaclara.local vsrvasprod01 ESX 6 10.15.1.23 srvesxi8.city.santaclara.local vsrvasprod01 AIX Audit 7 10.15.1.23 srvesxi8.city.santaclara.local vsrvasprod01 ESX 7 10.1.5.65 SRVROOTDC1.SantaClara.local vsrvasprod01 Microsoft Windows
10.15.2.18 srvzetron-d rac.city.santacla ra . local vsrvasprod01
10.51.0.26 VSRVADFS01. C ity. SantaClara . local vsrvasprod01 System or Application
Event
192.168.7. vsrvadfsprox.santaclaraca.gov vsrvasprod01 Microsoft 49 Windows
10.51.0.20 vsrvasprod01 vsrvasprod01 ArcSight
7 10.1.5.50 VSRVC ITYDC 1. city. santaclara. loca I vsrvasprod01 Microsoft Windows
10.51.0.16 VSRVEXCHCAS01 VSRVEXCHCAS01.City.SantaClar ArcSight 6 a. local
10.51.0.10 VSRVFSPROD01.City.SantaClara.loc vsrvasprod01 Microsoft 8 al Windows
10.51.0.86 VSRVFSPROD02.City.SantaClara.loc
al
vsrvasprod01 Microsoft
Windows
10.51.0.12 VSRVGIS01.City.SantaClara. local vsrvasprod01 Microsoft 4 Windows
10.51.0.14 VSRVGISLICENS.City.SantaClara.lo vsrvasprod01 Microsoft 9 cal Windows
10.51.0.14 VSRVGISPROD02.City.SantaClara.lo vsrvasprod01 Microsoft 5 cal Windows
10.51.0.9 VSRVROOTDC2.SantaClara.local vsrvasprod01 Microsoft Windows
VSRVSEPO1 vsrvasprod01 Endpoint
Protection
zscaler-nss vsrvasprod01 NSSWeblog
10.7.1.3 vsrvasprod01 ASA
10.7.1.4 vsrvasprod01 ASA
10.15.0.13 vsrvasprod01 CiscoRouter
1
CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
Device
Address Device Host Name Agent Host Name Device
Product
10.15.0.13 vsrvasprod01 CiscoRouter
2 10.15.1.23 vsrvasprod01
4 10.15.1.23 vsrvasprod01 Unix
4 10.15.1.23 vsrvasprod01 ESX
4 10.15.2.15 vsrvasprod01 ASA
10.15.2.17 vsrvasprod01 ASA
10.15.2.19 vsrvasprod01
10.51.0.2 vsrvasprod01 NX-OS
10.51.0.2 vsrvasprod01 Unix
10.51.0.3 vsrvasprod01 Unix
10.51.0.10 vsrvasprod01
10.51.0.86 Microsoft
Windows
10.60.0.4 vsrvasprod01 NX-OS
10.60.0.4 vsrvasprod01 Unix
10.60.0.7 vsrvasprod01 NX-OS
172.16.8.1 vsrvasprod01 ASA
172.16.8.4 vsrvasprod01 ASA
Exhibit 2.1.1-3. Device List for Security Information and Event Management. d) Describe your solution for providing training to City End-Users, including initial services training (e.g., rules of engagement, how to request services, new End-User accessible Service Provider tools and interfaces), ongoing training for new applications or services. How will you incorporate knowledge of the City departments' unique environments into your training solutions? Response
Unisys will work closely with the City in implementing training and knowledge that is readily accessible and easy to use. We will implement best practices in the creation, acquisition, and sharing of knowledge.
Our team will use the ServiceNow End-User portal and a SharePoint site accessible from the City's home page to serve as portals for gaining access to training resources.
Unisys will compile a robust repository of classes and knowledge transfer documents to accommodate the City's many different business requirements. Unisys will develop training specific to particular departments and business functions as it pertains to the City End-Users primarily from the knowledge
CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
base system, as described herein. Furthermore, any lessons learned from End Users will be included as part of new training.
Unisys will implement the processes required to develop and maintain high-quality training material that is current and relevant. Changes made to the technical environment must be reflected in the training material and supporting documentation before implementation. Stakeholder approval of new training programs will be acquired before they become available. The Unisys knowledge transfer team will meet with each of the departments twice a year, as part of our road show cadence, to educate them on the tools, interfaces, rules, and services available to them.
CITY OF SANTA CLARA
Schedule 2— Final Service Tower Solutions
e) Describe your proposed approach for training and certifying Service Provider resources (including any proposed subcontractors), in order to ensure your resources have an intimate understanding of each City department's business and End-User profiles.
Response
Associate training and development at Unisys is mandatory, comprehensive, and ongoing. For the skills and knowledge required to support the City, Unisys will assign associates who are well qualified for those positions and provide training for additional or updated skills and knowledge that will be needed throughout the engagement's life. We will also work with the City to establish a critical training document that captures detail of the various departments end-user profiles. This document will become a key component of associate training. To execute our approach to training, Unisys follows these guidelines:
• Confirming that associates have the necessary qualifications and certifications to perform their daily tasks. For example, Unisys University is available for skills such as ITIL and business acumen best practices.
• Providing access to Unisys or external specialist skills and training when needed • Leveraging the City knowledgebase, which is updated continuously • Using SharePoint repositories and file shares with documentation such as application, installation instructions and project documentation
• Encouraging cross-functional knowledge transfer between groups and individuals by having teams work with each other and sometimes embedding staff across IT groups.
CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
f) Describe your proposed solution for Customer Satisfaction Surveys, including annual End-User satisfaction, department management satisfaction, and Business Analysis services satisfaction.
Describe the process for developing City-approved surveys, conducting surveys, survey reporting, and identifying and addressing areas of customer dissatisfaction.
Response
The City requires Customer Satisfaction (CSAT) Surveys that drive continuous improvement in the quality and value of service delivery. The Unisys CSAT Program is a strategic, action-oriented, and disciplined initiative. Critical points in our CSAT Program are as follows:
Voice of the Customer: A program designed on survey responses and direct client feedback to bring continual visibility and emphasis to the customer experience. An independent third-party group will drive this survey to capture the satisfaction of City IT leadership with Unisys performance.
End User Satisfaction Survey (Ongoing): Ongoing end-user survey to assess the quality of Service Desk and Field Service delivery. These surveys are triggered upon closure of tickets in the Information Technology Service Management (ITSM) system. The system has control points to maintain an increased response rate and minimize survey fatigue. It includes follow-up tracking of low survey results.
End User Satisfaction Survey (Annual): Annual survey of end users to determine overall satisfaction with the services delivered by the City IT Department.
Departmental or Project-Based Surveys: Point-in-time surveys designed to measure satisfaction with specific projects or to gain specific insight from certain departments after key initiatives or projects are completed. These surveys are created and driven as needed by the ITSM platform.
Except for the Voice of the Customer survey, Unisys will recommend a best practice approach to a survey's questions and administration. We will then collaborate with the City to finalize the survey questions and confirm the audience and process to administer the surveys.
Unisys deploys a process depending on the survey type to review and analyze the results as well as trigger the appropriate action plan based on the survey's outcomes. For example, the Ongoing End-User Surveys include a mechanism to flag poor response for immediate follow-up by Unisys key leadership.
We document survey follow-up activity and establish corrective action plans established, as required.
Unisys will review annual, departmental, or project surveys as well as identify specific action items and add them to our Continual Service Improvement and Innovation Plan (CSIIP) for tracking and implementation. Follow-up on surveys is crucial; Unisys understands the importance of this part of the process to build trust with the end users and department leaders.
CITY OF SANTA CLARA
Schedule 2 — Final Service Tower Solutions
g) For the department management satisfaction and Business Analysis services satisfaction surveys, describe how you would structure these surveys to focus more on related strategic/quality analysis of the provided services and how effective IT has been on positively impacting the business.
Response
Understanding the City IT Department's impact on the business is a crucial part of assessing the overall view of IT from key City leaders. These surveys need to be well written, properly targeted, and properly promoted. Unisys will work with City IT leadership to develop the list of questions to capture the responses from department leaders that accurately reflect the impact that the IT Department is having on the City's business. This list will include questions related to the following topics:
• Level of understanding of the departments' critical goals and objectives • Ability to translate goals and objectives to requirements and initiatives • The effectiveness of key applications in meeting the department's needs • Ability to create and share IT roadmaps for applications that supports the departments goals • Effectiveness in communicating key initiatives and their status, progress, or issues • Overall value of the IT Department in meeting the department's annual goals.
These survey questions will be refined and approved with key IT Department leads to maintain alignment.
Survey results will be gathered, and an action plan will be added to the CSIIP to drive continued progress.