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MASTER SERVICES AGREEMENT
This Master Services Agreement (this “Agreement”), dated as of March __, 2024, is made by and between City of Santa Maria, California, a California Municipal corporation and charter city with its principal office located at 110 East Cook Street, Santa Maria, California 93454, United States of America (“Client” or “City”) on the one hand , and Cognizant Worldwide Limited, a United Kingdom limited liability company with its principal office located at 280 Bishopsgate, Liverpool Street, London EC2M 4AG, United Kingdom (“CWW” and “ Cognizant Technology Solutions U.S. Corporation, shall execute this Agreement together with Cognizant solely for the purpose of acknowledging that CTS US is authorized to perform for Cognizant any Services to be provided to Client in the United States of America pursuant to a relevant Statement of Work (as defined below), which CTS US or another U.S. Affiliate may also execute for such purpose as provided in Section 1.1For the purposes of this Agreement, Client and Cognizant may each be referred to as “Party” or, collectively, as the “Parties.” The Parties, intending to be legally bound, hereby agree as follows:
1. SER
VICES.
1.1 Direct Services. Cognizant and Client will develop and enter into one or more statements of work incorporating a description of the specific services to be provided, each in a form mutually agreed by the Parties (a “Statement of Work ” or “SOW”), incorporated herein as part of this Agreement. Each Statement of Work will set forth, among other things, project scope, various project activities and tasks to be performed by the Parties , and roles and responsibilities of the Parties. Cognizant shall provide to Client the following types of services as, and to the extent, described in each Statement of Work: (i) the management of certain business and IT operational services, which may be performed either onsite or from remote locations (“Managed Services ”); (ii) certain consulting, development, integration and or other support services provided in addition t
o the Managed Services (“ Professional Services”); and (iii) any other services described as Cognizant’s obligation in a Statement of Work, (collectively the “Services”). In addition, Cognizant will provide to Client certain results or proceeds of the Services that are defined as deliverables in each Statement of Work (collectively, the “ Deliverables”). Each Statement of Work sha ll
specifically identify this Agreement and indicate that it is subject to the terms hereof and be executed by Client and Cognizant. Unless otherwise set forth herein or expressly identified in the SOW as a modification to a specified provision of this Agreement, t o the extent there are any conflicts or inconsistencies between this Agreement and any Statement of Work , the provisions of this Agreement shall govern and control. Cognizant may engage any Affiliate (as hereinafter defined) of Cognizant to provide Services and Deliverables to Client and any Affiliates of Client for Cognizant under this Agreement. For SOWs executed in connection with work to be performed for Client in the United States of America, and solely to the extent that employees of a U.S. - domiciled Cognizant Affiliate who are foreign skilled workers are required for the provision of Services by Cognizant in connection with such SOW, such Cognizant Affiliate may also execute s
uch SOW solely for the purpose of providing Services to Client for Cognizant. Any Affiliate of Cognizant may itself provide Services directly to Client and any Affiliates of Client under this Agreement by executing SOWs in its own name, exclusive of Cognizant, and only for the purposes of any such SOW(s), shall be considered “Cognizant” as that term is used in this Agreement. An y
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ffiliate of Client may enter into SOW(s) with Cognizant or any Affiliate of Cognizant and, only for the purposes of any such SOW(s), shall be considered “Client” as that term is used in this Agreement. As used herein, the term “Affiliate” means any entity that controls or is controlled by or is under common control with Cognizant or Client, as applicable, where “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management ,
ATTACHMENT C
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policies and operations of such entity, whether through ownership of voting securities, by contract or otherwise.
1.2 Deliverables and Acceptance. Deliverables, if any, under this Agreement will be as set forth under any SOW. Each SOW will describe, if applicable, the Deliverables that Cognizant is obligated to furnish to Client hereunder, the acceptance criteria for each of the Deliverables (the “Acceptance Criteria”) and the completion criteria, if any, to signify completion of each phase of a project. Client shall review, evaluate and/or test, as the case may be, each of the Deliverables within the applicable time period set forth in a SOW (with respect to each Deliverable, the “Acceptance Period” ) to determine whether or not such Deliverable satisfies the applicable Acceptance Criteria in all material respects. If Client does not furnish a written notice to Cognizant specifying that a Deliverable has failed to satisfy its Acceptance Criteria prior to the end of the Acceptance Period therefor and/or if Client commences using the Deliverables commercially or in a production environment, then Client will be deemed to have accepted such Deliverable. If any Deliverable fails to satisfy its Acceptance Criteria, then Client will notify Cognizant in writing specifying the respects in which such Deliverable does not conform to the applicable Acceptance Criteria and what modifications are necessary to make it conform thereto. Thereafter, Cognizant shall use its diligent commercially reasonable efforts to modify such Deliverable to so conform and the Deliverable will be resub mitted for acceptance by Client. If, after repeated attempts, Cognizant is unable to remedy any non- conforming portion of any Deliverable, Client may terminate pursuant to Section 12.2 herein.
2. PROGRAM SCHEDULE; CHANGES.
2.1 Program Schedule; Changes. Cognizant understands that the successful installation, testing, implementation, integration and operation of the Services shall be accomplished by a cooperative effort. To most effectively manage this process and as applicable to the Services , Cognizant shall designate a single representative to act as program manager, who shall have the authority to act on behalf of Cognizant on all matters pertaining to this Agreement. Client shall also designate a single individual to act as the Client Project Manager who shall have authority to act on behalf of the C lient. Each Statement of Work will set forth the projected work effort and schedule applicable to the Services. Cognizant will develop an overall schedule and timeline for implementation and integration of the Statement of Work. To the extent applicable to the Services in the SOW, the draft project plan will be provided during the Plan Stage and finalized during the Architect & Configure Stage. Any change to the project schedule must be agreed to in writing by authorized representatives of both Cognizant and the C lient. Tasks and due dates will be delivered with the project plan. The Client Project Manager and Cognizant Program Manager shall consult with each other about project management and technical and design decision making affecting the project s chedule. The Cognizant Program Manager shall at all times maintain the project schedule so that it is up to date and available to the C lient Project Manager reflecting current project status and due dates, and shall provide such regular and ad hoc status reporting as is required under the Statements of Work, and such other information as Client may reasonably request from time to time. The Cognizant Program Manager, together with such other personnel as requested by the Client Project Manager, shall participate in periodic status review meetings as requested by the City Project Manager. Such meetings shall be held virtually or at Client facilities, unless otherwise agreed by the Client Project Manager. All statements and agreements concerning time are based upon information available and circumstances existing at the time made, and each Statement of Work is subject to equitable adjustment upon any material change in such information or circumstances, the occurrence of an excusable delay (as provided for in Section 2.2 hereof) or upon modification of the scope, timing or level of work to be performed by Cognizant. Either Party will be entitled to propose changes. It is mutually acknowledged that any
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such change may affect the fees or charges (“Charges”) payable to Cognizant and/or the project schedule. Neither Party shall have any obligation respecting any change until an appropriate written change order or amendment to the applicable Statement of Work is agreed to, executed and delivered by both Parties.
2.2 Excusable Delays and Failures . Cognizant will be excused from delays in performing, or from a failure to perform, hereunder to the extent that such delays or failures result from causes beyond Cognizant’s reasonable control, excepting to the extent that delays are solely caused by Cognizant’s employees or Subcontractors. Without limiting the generality of the foregoing, Client acknowledges that Client ’s failure or unreasonable delay in furnishing requested information, equipment or access to facilities, unreasonable delays or failure by Client in completing tasks required of Client or in otherwise performing Client ’s obligations hereunder or under any Statement of Work and any assumption contained in a Stat ement of Work which is untrue or incorrect will be considered an excusable delay or excusable failure to perform hereunder and may impede or delay completion of the Services. Client further acknowledges that such delays or failures may result in additional charges for the Services.
3. PAYMENT.
3.1 Program Charges and Reimbursable Items. Client shall pay to Cognizant the Charges set forth in each Statement of Work,
which such Charges shall be subject to adjustment by
Cognizant annually unless otherwise expressly agreed in the applicable Statement of Work. Client will also reimburse Cognizant for all reasonable out -of-pocket travel, living and other ancillary expenses paid or incurred by Cognizant in connection with the Services and any other reimbursable items set forth in each Statement of Work . Cognizant will have no obligation to perform any Services when any undisputed amount required to be paid by Client is overdue and unpaid beyond forty-five (45) calendar days past the date such amount is due. Any suspension of Services by Cognizant as a result of Client ’s failure to make payment as required will extend the due dates of Deliverables and other Services to the extent impacted by such suspension or delay.
3.2 Invoices; Payments. Cognizant will invoice Client for all Charges and reimbursable items payable to Cognizant on a monthly basis or otherwise in accordance with the schedule set forth in the relevant Statement of Work as such payments are due. Client will pay the undisputed invoiced amount in full within forty-five (45) days of the date of each invoice; provided that the Client may withhold amounts disputed reasonably and in good faith pending resolution of such dispute. Client will pay interest, at a rate equal to the lesser of 1.5% per month (or part thereof) or the maximum legal rate permitted, on the amount shown on any invoice that is paid later than forty-five (45) days after the date of the invoice, other than such amounts that are disputed in such good faith during the pendency of the relevant dispute. All amounts hereunder will be invoiced and paid in United States Dollars unless otherwise set forth in an applicable SOW.
3.3 Taxes. All Charges are exclusive of taxes. Client shall pay amounts equal to any federal, state or local sales, use, excise, privilege, value added, goods and services or other taxes, duties, imposts, levies or similar assessment relating to the Services and Deli verables provided by Cognizant hereunder, exclusive of taxes based on Cognizant’s net income or net worth. Client and Cognizant agree to cooperate on any tax matters arising from the provision of the Services and Deliverables under this Agreement. Both Parties agree to provide reasonable assistance to the other in order to mitigate any taxes applicable to the Services and Deliverables provided to
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Client or to payments made pursuant to this Agreement with respect to the Services and Deliverables.
4. OBLIGATIONS OF THE PARTIES.
4.1 Working Environment. For any Services to be provided by Cognizant at any of Client’s sites, Client shall provide Cognizant ’s personnel with (i) a suitable and adequate work environment, including space for work and equipment for performance of the Services; (ii) access to and use of Client ’s facilities and relevant information, including software, hardware and documentation; and (iii) assistance to such personnel in a timely manner by promptly correcting any hardware or software problems that would affect the performance of Services; and ( v) any other items set forth in each Statement of Work.
4.2 Client’s Personnel Commitment. Client will ensure that all Client personnel who may be necessary or appropriate for the successful implementation of the Services will, on reasonable notice, (i) be available to assist Cognizant ’s personnel by answering business, technical and operational questions and providing requested documents, guidelines and procedures in a timely manner; (ii) participate in the Services as outlined in the Statement of Work ; (iii) participate in progress and other Service related meetings; (iv) contribute to software and system testing; and (v) be available to assist Cognizant with any other activities or tasks required to complete the Services in accordance with the Statement of Work.
4.3 Export Control. Client agrees to notify Cognizant of any requirements for Deliverables or any other technology, technical data or information to which Cognizant will have access as a result of the Services that, in any case, will subject the Deliverables or the other technology, technical data or information to control under applicable export regulations under any classification other than EAR99 (or its non- U.S. equivalent) and, in such event, Client will (i) identify to Cognizant the applicable regulations (e.g. the United States Export Administration Regulations (“EAR”) or the International Traffic in Arms Regulations (“ITAR”)) and classifications (e.g. ECCN) and (ii) follow such guidelines as Cognizant may communicate to Client that reasonably are required to avoid violations. Each Party acknowledges and agrees that to the extent that any tangible or intangible technical data provided under this Agreement is subject to US export laws and regulations, such Party will not use, distribute, transfer, or transmit technical data provided by the other Party under this Agreement except in compliance with US export laws and regulations. Notwithstanding the foregoing, C lient agrees that it will not provide C ognizant with any technology, technical data or information that is subject to control under the ITAR. In the event that Client wishes to provide Cognizant with ITAR-controlled technology, technical data or information, Client will notify Cognizant in writing of such intent, and the Parties agree to cooperate to determine the appropriate agreements and controls, if any, required before Client makes such disclosure.
4.4 FCPA. Neither Party shall take any action in connection with the performance of its obligations under this Agreement that violates the Foreign Corrupt Practices Act, as amended, and the rules and regulations thereunder in any manner that has a material adverse i mpact on the other Party. To the extent that any of the Services or Deliverables cannot be performed or provided without violation of any law, regulation, or other control, then Cognizant shall not be obligated to provide the same and the applicable Statement of Work shall be amended accordingly.
4.5 Work Authorization/HR Compliance/Relationship Matters . In the event that it is necessary for Cognizant to obtain visas or work permits for Cognizant personnel, Client will
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cooperate with Cognizant by taking all reasonably necessary actions to facilitate Cognizant’s efforts, including, but not limited to, providing, and hereby consents to Cognizant providing to immigration authorities, documentation indicating the nature and location of the work to be performed, the necessity of the work to be performed, and other documentation as may be reasonably required and related to this Agreement (including the existence and terms of this Agreement and the identity of the Parties hereto ), and posting such notices as may be legally required (including any legally required notice posting at Client sites from which the parties contemplate services being provided by Cognizant personnel who are foreign skilled workers) .
Notwithstanding anything herein to the contrary, Client hereby authorizes Cognizant to use Client’s name and/or logo to internally (within Cognizant) or externally reference to Client as a Cognizant customer and to describe the services provided to Client , subject to Client’s prior written approval.
5. OWNERSHIP.
5.1 Ownership of Developed IP . Unless otherwise agreed in an SOW, Cognizant agrees that, upon Client’s payment in full, the software or other works of authorship developed by Cognizant or its Affiliates specifically for Client as a Deliverable or a part of a Deliverable, as set forth in a Statement of Work (“ Developed IP”) shall be the property of, and ownership shall vest in, Client. Developed IP does not include Cognizant Confidential Information, Cognizant Proprietary Intellectual Property (as defined below), any Third Party Items, or any derivative of the foregoing, that may be incorporated into a Deliverable. Cognizant agrees to take, at Client’s cost and expense, all actions requested by Client which are reasonably necessary to assure the conveyance to Client of the foregoing rights to the Developed IP.
5.2 Residual Rights. Notwithstanding anything to the contrary herein, Cognizant, Cognizant Affiliates, and their respective employees and agents shall be free to use and employ any Residual Information. “ Residual Information” means the general knowledge, ideas, know -how, experience, and techniques that would be retained in the unaided memory of an ordinary person skilled in the art, not intent on appropriating the proprietary information of the disclosing party.
Nothing in this paragraph, however, shall be deemed to grant a license under Client’s registered intellectual property rights.
5.3 Cognizant Proprietary Intellectual Property . Client acknowledges that Cognizant personnel may utilize proprietary software, methodologies, tools, specifications, drawings, sketches, models, samples, records, documentation, works of authorship, creative works, ideas, know-how, research results, data or other materials which have been or are originated, developed, licensed, purchased, or acquired by Cognizant or its Affiliates or subcontractors (collectively, “ Cognizant Proprietary Intellectual Property ”); which constitutes Cognizant Confidential Information. Client agrees that Cognizant Proprietary Intellectual Property and Residual Information, any derivatives of Cognizant Proprietary Intellectual Property or Residual Information, is the sole property of Cognizant (or its licensors) and that Cognizant (or its licensors) will retain sole and exclusive title to and ownership thereof. If any Cognizant Proprietary Intellectual Property owned by Cognizant is embedded in a Deliverable, Cognizant grants to Client a worldwide, royalty free, non -exclusive, transferable, perpetual license to use, execute and perform such Cognizant Proprietary Intellectual Property as a functional element of the applicable Deliverable, subject to any additional terms or limitations set forth in the applicable Statement of Work, and provided that no portion of the Cognizant Proprietary Intellectual Property is separated or unbundled from the applicable Deliverables or used as a stand-alone product or development tool. Except as expressly provided in the foregoing sentence, nothing contained in this Agreement or otherwise shall be construed to grant to Client any right, title, license or other interest in, to or
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under any Cognizant Proprietary Intellectual Property (whether by estoppel, implication or otherwise). Any license to Cognizant Proprietary Intellectual Property that is not embedded in Deliverables or that is commercially available will be pursuant to a s eparate license agreement between Client and Cognizant (or its licensor).
5.4 Client Provided IP and Third Party Items. Client grants Cognizant and its Subcontractors a non -exclusive, paid -up license to use, execute, reproduce, distribute, and prepare derivative works of Client software and third party software licensed to Client as reasonably required to perform Services. Cognizant shall obtain Client’s prior written consent before embedding in Deliverables or installing in Client’s environment any proprietary third party tools or applications. If any third party tools, applications, utilities and cloud infrastructure are distributed, resold, or provided to Client in connection with this Agreement (collectively, “ Third Party Items”), such Third Party Items shall be provided AS-IS and may be made available to Client under a separate agreement between Client and the licensor of the Third Party Item or made available to Client by Cognizant under a separate agreement or pass -through terms set forth in an SOW, which shall apply to the relevant Third Party Item(s) in lieu of any of the ter ms of this Agreement. Notwithstanding anything to the contrary herein, Client’s use of each open- source component incorporated by Cognizant into a Deliverable will be governed by, and is subject to the terms and conditions of the applicable open-source license.
5.5 Installation of Tools. Cognizant may use certain Cognizant owned or licensed Tools (the “Tools”), including those set forth in the applicable SOW in connection with its performance of the Services. The Tools are Cognizant Proprietary Intellectual Property and are not part of any Deliverable. As between Cognizant and Client, Cognizant is the sole owner of the Tools, together with all modifications, enhancements and changes to the Tools and the information generated by any of the foregoing. Client consent s to Cognizant’s installation of the Tools onto Client’s systems. Only Cognizant may install, configure, control, or grant access to the Tools. Client agrees that Cognizant may uninstall and remove the Tools at any time, and that the consent set forth in this paragraph is not a software license or subscription agreement. Cognizant will use the Tools as installed on Client’s systems solely to perform the Services for Client.
6. CONFIDENTIAL INFORMATION.
6.1 Confidentiality Obligations. For a period of three (3) years from the date of disclosure of the applicable Confidential Information (as hereinafter defined), Client and Cognizant shall each (i) hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the other Party for a ny purpose whatsoever except as expressly contemplated under this Agreement or any Statement of Work. Except with the express written consent of the other Party, each Party shall disclose the Confidential Information of the other Party only to those of its and its affiliates’ employees , officers, directors, subcontractors, agents or representatives having a legitimate need to know the information for the purposes of this Agreement (“ Representatives”) and shall take all reasonable precautions to ensure that such Representatives comply with the provisions of this Section 6.1.
6.2 Definition. The term “Confidential Information” shall mean any and all information or proprietary materials other than Personal Information (as defined in Exhibit A attached hereto) (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by either Party (the “disclosing party”) to the other (the
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“receiving party”) in connection with the efforts contemplated hereunder, including (i) all trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements.
6.3 Exceptions. The obligations of either Party under Section 6.1 will not apply to information (other than Personal Information) that (i) was in the receiving party’s possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other w rongful act by the receiving party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement by the receiving party, or (iv) is independently developed by the receiving party without regard to the Confidential Information of the disclosing party. In addition, the receiving party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it; provided that the receiving party (a) gives the disclosing party reasonable written notice to allow the disclosing party to seek a protective order or other appropriate remedy, (b) discloses only such Confidential Information as is required by the governmental entity, and (c) uses commercially reas onable efforts to obtain confidential treatment for any Confidential Information so disclosed.
7. DATA PROTECTION
7.1 Data Protection. If and to the extent that the Services require Cognizant to process Client’s Personal Information, the Parties shall abide by the terms set forth under Exhibit A attached hereto.
8. INDEMNIFICATION.
8.1 Intellectual Property Rights Indemnity. Cognizant agrees to indemnify and hold harmless the Client from and against any costs and damages awarded against the Client by a court pursuant to a final judgment as a result of, and defend the Client against, claim s of infringement of a U.S. patent or registered copyright or misappropriation of any trade secret related to a Deliverable.
8.2 Intellectual Property Rights Exclusions.
Cognizant shall have no obligation under
Section 8.1 or other liability for any infringement or misappropriation claim resulting or alleged to result from: (i) modifications made other than by Cognizant or its Subcontractors, (ii) use of the Deliverables other than for Client’s internal purposes or in combination with any equipment, software or material not approved or provided by Cognizant or its Subcontractors, (iii) Client’s use or incorporation of materials not provided by Cognizant or its Subcontractors, (iv) the instructions, designs or specifications provided or approved by Client; (v) any software or other materials furnished by any third party other than Cognizant’s Subcontractors; or (vi) Client’s continuing the allegedly infringing activity after being notified thereof or after being informed and provided with modifications that would have avoided the alleged infringement.
8.3 Infringement Remedies. In the event of an infringement or misappropriation claim as described in Section 8.1 above arises, or if Cognizant reasonably believes that a claim is likely to be made, Cognizant, at its option and in lieu of indemnification, may: (i) modify the applicable Deliverables so that they become non- infringing but functionally equivalent; or (ii) replace the applicable Deliverables with material that is non-infringing but functionally equivalent; or (iii) obtain
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for Client the right to use such Deliverables upon commercially reasonable terms . In the event that none of the foregoing remedies are possible, then Cognizant may (iv) remove the infringing or violative Deliverables and refund to Client the fees received for such Deliverables that are the subject of such a claim based on a five (5) year straight line depreciation. This Section 8 sets forth the exclusive remedy and entire liability and obligation of each Party with respect to intellectual property infringem ent or misappropriation claims, including patent or copyright infringement claims and trade secret misappropriation.
8.4 Personal Injury and Property Damage Indemnity. Cognizant and Client each agree to indemnify, defend and hold harmless the other from and against any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys ’ fees and expenses, arising out of third party claims for bodily injury or damage to real or tangible personal property, not including software, data, and documentation, to the extent caused directly and proximately by the gross negligence or willful misconduct of the indemnifying party, its employees or agents.
8.5 Indemnification Procedures. The obligations to indemnify, defend and hold harmless set forth above in this Section 8 will not apply to the extent the indemnified party was responsible for giving rise to the matter upon which the claim for indemnification is based and will not apply unless the indemnified party (i) promptly notifies the indemnifying party of any matters in respect of which the indemnity may apply and of which the indemnified party has knowledge; (ii) gives the indemnifying party full opportunity to control the response thereto and the defense thereof, including any agreement relating to the settlement thereof, provided that the indemnifying party shall not settle any such claim or action without the prior written consent of the indemnified party; and (iii) cooperates with the indemnifying party, at the indemnifying party ’s cost and expense in the defense or settlement thereof. The indemnified party may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice on a monitoring, non-controlling basis.
9. WARRANTY.
9.1 Limited Warranty. Cognizant warrants the following:
9.1.1 the applicable Services rendered hereunder will be performed by qualified personnel;
9.1.2 the Professional Services performed will substantially conform to any applicable requirements set forth in the Statement of Work for a period of thirty (30) days (the “Warranty Period”) following performance of such Professional Services; and
9.1.3 during the Warranty Period, the Deliverable(s) will materially conform to the corresponding product specifications set forth in the applicable Statement of Work for such Deliverable.
9.2 Remedies. Cognizant does not warrant that any Deliverable will operate uninterrupted or error-free, provided that Cognizant shall remain obligated pursuant to this Section 9. In the event that any Deliverable or Service fails to conform to the foregoing warranty in any material respect, the sole and exclusive remedy of Client will be for Cognizant, at its expense, to promptly use commercially reasonable efforts to cure or correct such failure. The foregoing warranty is expressly conditioned upon (i) Client providing Cognizant with prompt written notice of any claim thereunder prior to the expiration of the applicable Warranty Period, which notice must identify with particularity the non-conformity; (ii) Client’s full cooperation with Cognizant in all reasonable respects relating thereto, including, in the case of modified software, assisting Cognizant to locate
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and reproduce the non- conformity; and (iii) with respect to any Deliverable, the absence of any alteration or other modification of such Deliverable by any person or entity other than Cognizant or its Subcontractors.
9.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR A SOW,
COGNIZANT DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR
CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR
CONDITION BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY
REPRESENTATION, WARRANTY OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE.
9.4 Responsibility of Client. In the event that Client asserts any claim for warranty services hereunder and such claim relates to any matter that is determined not to be Cognizant’s responsibility hereunder (including any problem with Client’s third party vendors, Client’s computer hardware or software that was not caused by any Services performed by Cognizant or its Subcontractors), Client will be responsible to pay Cognizant for all costs incurred for all correction or other services performed by Cognizant relating to such claim on a time and materials basis at Cognizant’s then standard billing rates.
10. LIMITATION OF LIABILITY AND REMEDIES.
10.1 Exclusion of Damages. In no event shall either Party be liable to the other Party or any other person or entity for any lost profits, special, exemplary, indirect, incidental, consequential or punitive damages or liabilities, or for any costs (including transition costs) associ ated with procuring substitute or replacement services, of any kind or nature whatsoever (collectively, “Indirect Damages”), whether in an action based on contract, warranty, strict liability, tort or otherwise, even if such Party has been informed in advance of the possibility of such Indirect Damages or such Indirect Damages could have been reasonably foreseen by such Party.
10.2 Total Liability. In no event shall Cognizant’s liability to Client or any other person or entity arising out of or in connection with this Agreement or the Services exceed, in the aggregate, the total fees paid by Client to Cognizant pursuant to the applicable Statement of Work in the twelve (12) month period preceding the last act or omission giving rise to any such liability.
11. EMPLOYEES.
11.1 No Employee Relationship. Neither Party’s personnel shall be deemed to be employees of the other Party. Each Party and its Affiliates shall be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen’s compensation and any similar taxes associated with employment of its personnel. A Party ’s employees shall not be entitled to any benefits paid or made available by the other Party to its employees.
11.2 Non-Solicitation Obligations. During the term hereof and for a period of twelve (12) months thereafter, neither Party shall, directly, solicit for employment or employ, or accept services provided by, (i) any employee of the other Party (including employees of Cognizant’s Affiliates); or (ii) any former employee of the other Party (including former employees of Cognizant’s Affiliates) who performed any work in connection with or related to the Services.
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11.3 Subcontractors and Third-Party Providers. In addition to the right to engage Affiliates to provide Services as specified hereunder, Cognizant may engage non- Affiliate third parties which will be responsible for providing a portion of the Services that Cognizant provides to Client (such as field services and end user support) where such services are not dependent on a product being provided by such third party (“ Subcontractors”), provided that such Subcontractors have executed appropriate confidentiality agreements with Cognizant. Cognizant may also (i) engage vendors providing equipment or software (and services in support of such equipment or software) to support the provision of Services and/or (ii) subcontract for third party services or products that are not principally dedicated to performance of Services for the Client, which are not material to a function constituting a part of the Services, do not result in a material change in the way Cognizant conducts its business, or are composed of small scale temporary labor (collectively, “Third Party Providers”). For the avoidance of doubt, Third Party Providers shall not be deemed “Subcontractors” as such term is defined under this Section 11.3;. Cognizant may engage such Third Party Providers pursuant to such Third Party Providers’ standard terms and conditions.
Client shall agree in writing to be bound by the Third Party Providers’ standard terms and conditions to the extent necessary, if at all, for Client to (iii) be able to use of the relevant Third Party Provider’s product or services in connection with its receipt of the Services and/or (iv) make use of any of the Services supported by such Third Party Provider’s product/services. No engagement of Subcontractors or Third Party Providers hereunder will relieve Cognizant from any of its obligations under this Agreement.
11.4 Nondiscrimination. To the extent applicable to Services under this Agreement, Cognizant shall abide by the requirements of 41 C .F.R. §§ 60- 1.4(a), 60 -300.5(a) and 60- 741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
12. TERM AND TERMINATION.
12.1 Term. The Agreement is effective as of the date on the Agreement and shall continue in effect for an initial term ending three years thereafter. The Agreement shall thereafter continue in effect for successive one- year terms, unless not later than sixty (60) days prior to the end of the then- current successive term, either party shall notify the other that the Agreement shall expire, in which event the Agreement shall expire on the last day of the then- current successive term (except with respect to any Statement of Work for which the term set forth in such Statement of Work has not yet been completed, which Statement of Work shall continue until expiration or termination).
12.2 Termination or Suspension. This Agreement may be terminated in whole or in part by either Party (the “non-breaching party”) upon written notice to the other Party if any of the following events occur by or with respect to such other Party (the “breaching party”): (i) the breaching party commits a material breach of any of its obligations hereunder and fails to cure such breach within thirty (30) days after receipt of notice of such breach or fails to reach an agreement with the non- breaching party regarding the cure thereof; or (ii) any insolvency of the breaching party, any filing of a petition in bankruptcy by or against the breaching party, any appointment of a receiver for the breaching party, or any assignment for the benefit of the breaching party’s creditors. In addition to any right to terminate as provided in this Agreement, the Parties agree that in connection with any dispute for which Client withholds the payment of charges pursuant to this Agreement, if the
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total amount being disputed (other than amounts in dispute resulting from clear billing errors of Cognizant), plus any amount that is undisputed but past due and any interest that has accrued thereon, exceeds the amount of fees billed by Cognizant in the then-prior three-month period (the “Disputed Amount”), Cognizant may, without liability to Client or its Affiliates, with at least 30 days’ prior written notice to Client, suspend the further delivery of Services that are not paid for in advance until all payment disputes are resolved using the dispute resolution process set forth in this Agreement. If Client pays the Disputed Amount, Cognizant shall promptly recommence performance of the Services and all Cognizant timing obligations and delivery commitments under this Agreement and/or each applicable SOW shall be extended by the number of days between the date of suspension and the date Cognizant recommences performance of the relevant Services.
12.3 Payment upon Termination. Upon termination, Cognizant will be entitled to recover payment for all Services rendered that have been accepted by Client as conforming to the associated specification through the date of termination (including for work in progress), and in the event of termination of this Agreement, in whole or in part, by either Party pursuant to this Section 12 , Cognizant will also be entitled to recover those reasonable costs incurred in anticipation of performance of the Services to the extent they cannot reasonably be eliminated.
12.4 Survival. In the event of termination or upon expiration of this Agreement, Sections 3, 5, 6, 8, 9 (subject to the expiration of any warranty period), 10 , 11, 12, and 13 hereof will survive and continue in full force and effect.
13. MISCELLANEOUS.
13.1 Governing Law. This Agreement will be governed by the laws of the State of California without reference to the principles of conflicts of law. The Parties acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any State having jurisdiction. In addition, the provisions of the Unif orm Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
13.2 Dispute Resolution.
13.2.1 Informal Negotiations. In the event of any dispute, controversy, or claim of any kind arising out of or relating in any way to this Agreement or the breach thereof (each a “ Dispute”), prior to filing a notice of claim , the Party claiming a Dispute shall send a written notice to the other Party describing the basis for the Dispute and the requested remedy, and inviting the other Party to have its executive confer with a named executive of the claiming party to attempt to negotiate a resolution.
To the fullest extent permitted by Law, each Party irrevocably waives all rights to a trial by jury.
13.3 Binding Effect and Assignment. Neither Party may assign or otherwise transfer any of its rights, duties or obligations under this Agreement without the prior written consent of the other Party, except either Party may, upon prior written notice to the other Party (but without any obligation to obtain the consent of such other Party ), assign this Agreement or any of its rights hereunder to any Affiliate of such Party, or to any entity who succeeds (by purchase, merger, operation of law or otherwise) to all or substantially all of the capital stock, as sets or business of
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such Party, if such entity agrees in writing to assume and be bound by all of the obligations of such Party under this Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assignees.
13.4 No Third Party Beneficiaries . This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.
13.5 Notices. All notices required by this Agreement will be given in writing to the other Party and delivered by registered mail, international air courier, facsimile, or the equivalent. Notices will be effective when received as indicated on the facsimile, registered mail, or other delivery receipt.
All notices will be given by one Party to the other at its address stated on the first page of this Agreement unless a change thereof previously has been given to the Party giving the notice.
13.6 Amendments and Waivers. This Agreement may be modified only by a written amendment executed by duly authorized officers or representatives of both Parties. No waiver by either Party of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the Party giving such waiver. No waiver by either Party with respect to any default, misrepresentation, or breach of warranty or covenant hereunder shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
13.7 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, then such provision shall be severed from this Agreement and the remaining provisions will continue in full force.
13.8 Counterparts. This Agreement and each Statement of Work may be executed in several counterparts and by facsimile signature, each of which will be deemed an original, and all of which taken together will constitute one single agreement between the Parties with the same effect as if all the signatures were upon the same instrument. A telecopy signature shall be as legally effective as an original signature. Any executed copy shall not be binding upon any Party until all Parties have duly executed a copy of this Agreement. This Agreement shall be effective upon the date of the last such signature, so long as all signatures are obtained within fifteen (15) days of each other.
13.9 Entire Agreement This Agreement and all Statements of Work and Contractor agreements attached hereto constitute the complete and exclusive statement of the agreement between the Parties and supersede all proposals, oral or written, and all other prior or contemporaneous communications between the Parties relating to the subject matter herein.
13.10 Press Releases and Announcements . Either Party may make any public disclosure it believes in good faith is required by applicable law, regulation or stock market rule (in which case the disclosing party shall use reasonable efforts to advise the other Party and provide it with a copy of the proposed disclosure prior to making the disclosure).
13.11 Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
13.12 Consents and Approvals. Except where expressly provided as being in the discretion of a Party, where approval, acceptance, consent or similar action by either Party is required under this Agreement or the applicable Statement of Work , such action shall not be unreasonably withheld or delayed.
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IN WITNESS WHEREOF, Cognizant and Client have caused this Agreement to be signed and delivered by their duly authorized officers, all as of the date first herein above written.
COGNIZANT WORLDWIDE LIMITED
Signature:
Print Name:
Title:
CITY OF SANTA MARIA, CALIFORNIA
Signature:
Print Name:
Title: _______________________________
Solely for the purpose of acknowledging that CTS US may perform local services in the United States of America in accordance with Section 1.1:
COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORPORATION
Signature:____________________________
Print Name:____________________________
Title:_________________________________
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EXHIBIT A
DATA PROTECTION AGREEMENT
This Data Protection Agreement (this “DPA”), is entered into by and between Cognizant Worldwide Limited (collectively with its Affiliates, “Cognizant”) and City of Santa Maria, California (“Client”) (each a “ Party” and collectively, “Parties”), pursuant to the terms and conditions of the Master Services Agreement (the “Agreement”) effective March __, 2024 between the Parties.
General Data Protection Terms
1. Introduction.
1.1. Order of Precedence . This DPA is part of the Agreement, and the terms of this DPA are in addition to, and not in lieu of, the terms in the Agreement. Other than with respect to the limitations of liability set forth in the Agreement, which shall govern and control in all cases, the terms of this DPA shall prevail over any conflicting terms in the Agreement’s other sections.
2. Definitions.
2.1. In this DPA:
a. “Access” or “Accessing” means to access, view, alter, use, process, transfer, store, host, disclose, erase, destroy, or dispose of Protected Data, and includes any operation or set of operations performed upon Protected Data, whether or not by automated means.
b. “Applicable Laws ” means the privacy, data security, and data protection laws, directives, regulations, orders, and rules in the jurisdiction(s) applicable to the Cognizant and/or the Services provided under the Agreement. c. “Applicable Standards ” means government standards, industry standards, and commercially reasonable practices related to privacy, data security or data protection that are applicable to Cognizant and the Services provided under the Agreement, or such other standards as otherwise agreed to by the Parties and specifically set forth in an applicable Statement of Work or other written agreement. d. “Authorized Person(s)” means the individual(s) to whom Client or Cognizant has granted Access to Protected Data.
e. “Employee Personal Data” means the Personal Information of the personnel of Cognizant, Cognizant ’s Affiliates, or Cognizant subcontractors or other representatives.
f. “European Data Protection Legislation” means: Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (“General Data Protection Regulation”), including
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any applicable delegated acts adopted by the European Commission and any applicable national legislation made under or otherwise adopted by member states of the EEA (defined below), Switzerland, or the UK pursuant to specific rights or powers contained within the General Data Protection Regulation and all other applicable legislation in the EEA, Switzerland, and the UK relating to the protection of Personal Information.
g. “include” or “including” means including but not limited to. h. “Personal Data” means: any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person. i. “Personal Information” means: (i) information relating to an identified or identifiable individual in any form or medium; (ii) information related to an identified or identifiable individual that is protected under Applicable Law (including Personal Data); or (iii) information that is not specifically about an identified or identifiable individual but, when combined with other information, may identify an individual. In the event that the definition of Personal Information in this DPA is inconsistent with a definition of Personal Data, Personal Information, or similar concept under an Applicable Law, then the definition of such concept under the Applicable Law shall prevail solely to the extent of the inconsistency.
j. “Protected Data” means the Personal Information to which Client has granted Cognizant access for the performance of Cognizant’s obligations under the Agreement.
k. “Security Incident” means the unauthorized or unlawful destruction, loss, alteration, or disclosure of Protected Data caused by Cognizant’s breach of this DPA . Security Incidents will not include unsuccessful attempts to Access Protected Information or to interfere with system operations in an information system, such as “scans” or “pings” on a firewall.
l. “Security Standards” has the meaning set forth in Section 5 of this DPA.
2.2. All capitalized terms that are not expressly defined in this DPA will have the meaning given to them in the Agreement. All examples are illustrative and not the sole or exclusive examples of a particular concept.
3. General Obligations.
3.1. Compliance. Cognizant agrees that, during the period in which Cognizant has been given Access to Protected Data, it will comply with its obligations under Applicable Laws.
Cognizant will provide commercially reasonable information, assistance, and cooperation regarding the processing of Personal Information as Client may reasonably require to enable Client to comply with Applicable Laws, including (when required by Applicable Laws) assisting Client (at Client’s expense) with its security, notification, communication, recordkeeping, and reporting obligations under Applicable Laws.
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3.2. Purpose Limitation. Cognizant agrees that it will Access Protected Data : (i) in accordance with the lawful, written instructions of Client (provided such instructions are reasonable and provided that Client shall be responsible for any material costs incurred by Cognizant in order to comply with such documented instructions) ; (ii) for the proper management and administration of Cognizant or to carry out Cognizant’s legal responsibilities under Applicable Laws; and (iii) to fulfill its obligations under the Agreement and the relevant Statement(s) of Work.
3.3. International Transfers of Personal Information . When applicable, and where required by Applicable Laws, the Parties agree to execute appropriate data transfer agreements to ensure the lawfulness of cross-border transfers of Personal Information.
3.4. Duty of Confidentiality . Cognizant agrees that Authorized Persons to whom Cognizant has granted Access to Protected Information will be subject to a duty of confidentiality (whether such duty is contractual, statutory, or otherwise).
3.5. Individual Rights. Cognizant will reasonably assist the Client to fulfill or resolve an individual’s request for access to his or her Personal Information, including with respect to a request from a data subject to exercise any of his or her rights under Applicable Laws (including the rights of access, correction, blocking, objection, erasure and data portability, as applicable). If Cognizant receives such a request directly from the individual(s), Cognizant will promptly inform Client of the request.
3.6. Prohibited Personal Information. Client will not provide Cognizant with Access to Personal Information that contains any special categories of Personal Data or information related to criminal convictions and offenses that are not expressly disclosed in the relevant SOW(s).
4. Obligations for Special Categories of Personal Information.
4.1. European Data Protection Requirements. If Cognizant or a Cognizant Affiliate: (i) is established within the European Economic Area (“ EEA”), Switzerland, or the UK and processes Personal Data of EEA or UK data subjects on behalf of Client or a Client Affiliate as part of the Services; (ii) processes Personal Data on behalf of a Client Affiliate established in the EEA, Switzerland, or the UK as part of the Services; or (iii) processes the Personal Data of data subjects located in the EEA , Switzerland, or the UK on behalf of the Client or a Client Affiliate as part of the Services , then the Parties will enter into additional EU -specific data privacy terms with respect to the Services that involve processing of such Personal Data.
4.2. HIPAA. If and to the extent Cognizant has Access to Protected Health Information as defined at 45 C.F.R. §160.103 ( “PHI”) subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), then the Parties shall enter into a mutually agreeable Business Associate Agreement subject to the provisions of the Agreement.
5. Security Standards.
5.1. Minimum Security Standards . Cognizant agrees to implement and maintain commercially reasonable and appropriate administrative, technical, organizational, and physical controls designed to provide a level of security appropriate to the risk and to protect the confidentiality, integrity, and availability of Protected Data ( “Security
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Standards”), including: (i) controls designed to secure facilities, infrastructure, data centers, servers, hard copy files, systems, equipment, applications, and devices used to Access Protected Data, including controls to monitor, prevent, detect, and respond to Security Incidents; (ii) policies and practices limiting Access to Protected Data only to Authorized Persons; and (iii) procedures to regularly assess and evaluate the effectiveness of the Security Standards.
5.2. Training. Cognizant will provide privacy and security training for all Authorized Persons who Access Protected Data.
5.3. Client Responsibility for Employee Personal Data. To the extent that Client has Access to Employee Personal Data, Client shall implement and maintain, in compliance with Applicable laws, a data privacy and security program to protect Employee Personal Data to a standard materially the same as those required of Cognizant hereunder. Client shall collect only the minimum necessary amount of Employee Personal Data to comply with Client’s obligations under Applicable Laws.
6. Return and Disposal of Protected Data. Upon the earlier of Client’s written request or termination or expiration of the Agreement, Cognizant will securely destroy or, at Client’s expense, return the Protected Data in accordance with Client’s reasonable written instructions. Cognizant agrees to return or destroy Protected Data within ninety (90) days of receipt of Client’s written request or expiration or termination of the Agreement, as applicable; provided, however, that Cognizant may retain copies of Protected Information that Cognizant is legally required to retain, subject to a continued obligation to hold the same in confidence in accordance with this Agreement.
7. Security Incident Response.
7.1. Security Incident Response Program. Cognizant will maintain an incident response program in compliance with Applicable Laws to respond to Security Incidents.
7.2. Notice, Investigation, and Remediation. In the event of a Security Incident, Cognizant will notify Client without undue delay (and in no event more than seventy -two (72) hours after confirmation of the Security Incident). This notification will include, to the extent know at the time notice is s ent: (i) a description of the Security Incident; (ii) the categories and types of Protected Data affected; and (iii) if applicable, the categories and number of data subjects and individual records affected. Additionally, Cognizant will promptly investigat e and remedy the Security Incident, take commercially reasonable steps to mitigate the effects of the Security Incident and to prevent further Security Incidents, and take other actions required of it by Applicable Laws.
7.3. No Unauthorized Statements . Except as required by Applicable Laws, neither Party will make public statements concerning a Security Incident that references or identifies either Party, unless both Parties have provided express written consent for any such statement prior to its release.
8. Change in Law. If an Applicable Law becomes effective after the execution of this DPA and is inconsistent with the terms of this DPA or otherwise requires the Parties to amend this DPA or change the Services, the Parties agree to enter into good faith negotiations to ma ke required changes to the Security Standards, the Serv ices, and/or to amend this DPA or the Agreement.
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9. Survival. Cognizant’s obligations under this DPA will survive termination or expiration of the Agreement and/or completion of the Services solely to the extent Cognizant is required to Access Protected Data.
IN WITNESS WHEREOF, Cognizant and Client have caused this DPA to be signed and delivered by their duly authorized officers, all as of the date first herein above written.
COGNIZANT WORLDWIDE LIMITED
Signature:
Print Name:
Title:
CITY OF SANTA MARIA, CALIFORNIA
Signature:
Print Name:
Title: ______________________________