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Sales Order Change Request
This Change Request ("CR") outlines changes to the Sales Order / Statement of Work ("Order") executed
between The Network, Inc. ("TNW") and The City of Rancho Palos Verdes ("Customer") on February 18,
2015. Except as specifically stated herein, each capitalized term used in this Change Order shall have the
same meaning as is assigned to it in the original Sales Order.This CR is only valid once signed by both parties.
A. Requested Change to Order:
1. Change 1: Professional Services: Hotline Implementation- Changing automated welcome message
from standard,pre-recorded message to"Hello,and thank you for calling the City of Rancho Palos Verdes'
Anonymous Fraud, Waste and Abuse Hotline.If you have an emergency, please hang up and dial 9-1-1 or
the Lomita Sheriffs Station at(310) 539-1661.You will now be transferred to an interviewer who will be
able to assist you." (then standard automated message plays)
B. Impact of Change(s):
1. Impact to costs; Professional Services: Hotline Implementation Custom Automated Welcome
Message:$850.00.One-time fee
2. Impact to delivery schedule: None
3. Impact to any other requirements: None
4. Payment terms:Upon CR execution.
The Network,Inc. 1---DocuSiyned by: City of Rancho Palos Verdes
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Name: Lucy Skelton Name: (1) o &- ( AA CD fit,e-
Title: Chief Financial officer Title: AA t,N A-& eleL
Date: 4/9/2015 Date: l
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TNW and RPV-Automated Message
Change Order 1 The Network Confidential
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Master Subscription Agreement
The terms& conditions in this Master Subscription Agreement ("Subscription Terms") govern the relationship
between The Network,Inc.,a Georgia corporation,as service provider(referred to as"TNW")and City of Rancho
Palos Verdes,a California municipal corporation ("Customer") regarding the products and services identified in
any Sales Order. These Subscription Terms and the Support Services Schedule attached hereto as Exhibit I
together with any Sales Order TNW enters into with Customer will collectively be the"Agreement".
1.Definitions.
"Customer Content" means all information for use within the Services which is provided by Customer or on its
behalf, including without limitation, all Customer Data (as defined in this Section), and any and all other
information, data, materials, software, files, text, graphics, photographs, audio visual elements, music,
illustrations,video,documents or other content,if any.
"Customer Data"means any all personal identifying information("PII"),and any other information or data relating
to a natural person who can be identified from Customer Content or Reports (as defined in this Section), or from
that data and other information in possession or likely to come into possession of Customer or User in any such
Customer Content or Reports.
"Intake Services" means hotline reporting service which provides a reporting party with the process to report
allegations of violations of the Customer's standards of conduct, or policies or legal requirements. The reporting
party may provide his/her name or remain anonymous and submit the report via the telephone or TNW's
proprietary web-based reporting form. Intake Services are available for both domestic and international
programs.
"Login Information" means the password and login identification unique to each User that is required in order to
access the Services.
"Report" means any report made or submitted by any reporting party in or through the Intake Services regarding
or containing allegations of violations of Customer's standards of conduct, policies or legal requirements,and any
and all information, data, materials, software, files, text, graphics, photographs, audio visual elements, music,
illustrations,video,documents or other content contained in any such Report.
"SaaS Offering" means TNW's proprietary GRCsm software platform that are ordered by Customer pursuant to a
Sales Order and made available by TNW online via a URL. The SaaS Offering offers various modules such as case
management, policy management, and learning management modules that may be ordered as an entire platform
or as separate modules.
"Sales Order" means a document (including any documents incorporated therein such as a statement of work)
agreed to by authorized representatives of both parties in writing that sets forth the Services to be provided by
TNW. A Sales Order shall contain, at a minimum, the items purchased, terms and fees and other mutually
agreeable terms.
"Services"means any SaaS Offerings, Intake Services and any other services as set forth in a Sales Order, including
without limitation, provision of implementation services, provision of supporting printed materials such as
brochures and posters,or the development of other deliverables provided by TNW or its licensors and contractors.
"Support Services"for the SaaS Offering or Intake Services,as applicable,and related availability as set forth in the
Support Services Schedule in Exhibit I and hereby incorporated by reference.
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"User" means with respect to the SaaS Offering, a license that cannot be shared by more than one designated
individual but can be transferred or reassigned to a new designated individual replacing a former individual no
longer using the SaaS Offering.
2.Subscription Services.
(a) SaaS Offering. During the Term (as defined in Section 9(a), and subject to payment as described in an
applicable Sales Order, TNW grants Customer a non-transferable and non-assignable right to access and use the
SaaS Offering for Customer's internal use for purposes of managing and coordinating information. Customer's
subscription for the SaaS Offering may be used by the number of Users identified in the applicable Sales Order.
TNW will maintain the SaaS Offerings on servers or equipment owned or operated on its behalf. The SaaS Offering
is provided on a subscription basis and Customer will not independently possess, install, or utilize the software
TNW uses to provide the SaaS Offering. Customer will not(1) make the SaaS Offering available to any third party
that is not a User;and (2)resell,rent,lease,assign or transfer the SaaS Offering.
(b) Intake Services. During the Term and subject to payment as set forth in the applicable Sales Order, TNW will
provide the Intake Services to Customer, provided, however,for Intake Services where translation services may be
required, TNW may use a third party for such translation services. Any third party that is retained by TNW to
provide translation services shall be required to comply with the provisions of these Subscription Terms, including
but not limited to those relating to confidentiality,security and access.
(c) Support Services. TNW will provide Customer with the Support Services for the SaaS Offering and Intake
Services, as applicable. TNW may update, enhance or modify the Support Services from time to time to include
new features,improve functionality,and address bugs or customer feedback.
(d)Content. TNW will provide certain content with the Services and use good faith efforts to cause the content to
remain current and reflect U.S.federal law. However,Customer is solely responsible to determine the accuracy of
any such content and the applicability of TNW's content to its business.
(e)User Management. Users will be required to use Login Information to access the Services and comply with this
Agreement. Customer will manage and administer the Login Information for its designated Users, including
without limitation determining the type of access each User will have to the Customer Content and any Reports
made available for viewing through use of the Services. Subject to subsection (1), Customer is responsible for all
uses of the Login Information and all actions by any individual while using Login Information, including without
limitation any breach by Customer or Users of the terms and conditions of this Agreement, and Customer will not
provide Login Information to any person that is not authorized to access and use the Services in order to access
and view the Customer Content.
In keeping with industry standards, Customer will take commercially reasonable steps designed to (i) protect
the confidentiality of all Login Information,and (ii)notify TNW of any breach of the confidentiality of any Login
Information to the extent Customer commits such breach or Customer has knowledge of,or in the exercise of
reasonable diligence should have knowledge of any such breach by Customer or any User. However, due to
the nature of the Internet and the current state of technology, TNW acknowledges that the prior sentence
represents Customer's entire obligation with respect to preventing such a breach or disclosure.
(f) Customer Responsibilities. To the extent applicable, Customer will input all Customer Content to use the
Services and obtain, install, and maintain all information technology and communications systems necessary to
access the Services. Customer represents and warrants that:
(1) Customer and Users are authorized to provide all Customer Content and any other data and information
submitted to the Services. Customer makes no representations or warranties regarding any Reports
submitted by any reporting party through the Intake Services under these Subscription Terms or any Sales
Order;
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(2) Customer's use of the Services and provision of Customer Content will comply with all applicable laws,
rules and regulations and meet any of its business requirements;
(3) TNW's use of Customer Content in providing the Services to Customer will not infringe the intellectual
property or other proprietary rights of any third party, but Customer makes no representation or warranty
regarding the intellectual or other proprietary rights of any Reports or the information or data contained in
such Reports. Customer agrees to cooperate with TNW fully to respond to any notice or inquiry from a third
party related to the Customer Content or its use of the Services, subject to the confidentiality, security,
disclosure and access provisions of these Subscription Terms.TNW recommends that Customer verify the data
contained in its Customer Content, and its completeness, by reviewing source data or physical documents
appropriate to the process or content. TNW will not be responsible for payment of any fines assessed against
Customer or its Users by any regulatory authority for Customer's failure to comply with any of Customer's
statutory or regulatory requirements of any kind with respect to its Customer Content;
(4) Customer will be responsible for promptly obtaining and providing to TNW all third party licenses and
consents required for Customer to use the Services,to the extent such third party licenses and consents relate
to any Customer Content; but Customer will not be responsible for obtaining or providing to TNW any third
party licenses required for Customer to use any Reports submitted by any reporting party; and
(5) Customer will not modify or create derivative works based on the SaaS Offering or any other Services, or
attempt to decode, decipher, decompile, disassemble or reverse engineer the SaaS Offering or any other
Services or deliverables, except that this provision shall not apply to the content of any Report submitted by
any reporting party through the Intake Services under this Agreement.
(g) TNW Responsibilities. TNW will install, and maintain the Services as set forth in these Subscription Terms.
TNW represents and warrants that:
(1) TNW is authorized to provide all content and any other data and information provided by TNW in
rendering the Services to Customer;
(2) TNW will comply with all applicable laws, rules and regulations material to TNW's performance of the
Services;
(3) TNW makes no representation or warranty regarding the intellectual or other proprietary rights of any
Customer Content or any Report submitted by any reporting party pursuant to the Intake Services. Customer
and any of its designated Users will not be responsible for payment of any fines assessed against TNW by any
regulatory authority for TNW's failure to comply with any of TNW's statutory or regulatory requirements of
any kind;
(4)TNW is responsible for the set-up, hosting and management of the Services necessary to permit Customer
and Users to access and use the Services in accordance with these Subscription Terms and any Sales Order.
3.Other Services/Additional Sales Orders.
(a) Professional and Other Services. In addition to the SaaS Offerings and Intake Services,TNW may make available
certain professional and other services to Customer pursuant to TNW's then current rates, as requested and
agreed to by Customer. TNW's performance of such services will be in accordance with the terms of these
Subscription Terms and the obligations set forth in a Sales Order.
(b) Domain Names. If pursuant to Customer's request, TNW uses a specific domain name or uniform resource
locator in connection with the provision of the SaaS Offering, Customer will obtain and maintain the applicable
domain name and all associated registrations. Customer will be responsible for any claims or disputes arising from
any domain names or URLs Customer designated for TNW's use in connection with this Agreement.
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(c) Additional Sales Orders. Additional Sales Orders may be entered into by the Parties pursuant to these
Subscription Terms provided that all such Sales Orders must reference and incorporate all of these Subscription
Terms. Notwithstanding the foregoing, additional orders for Services whose fees shall not exceed $1,000 may be
approved by email acceptance by authorized representatives of both Parties in such format as is reasonably
determined by TNW and accepted by Customer.
4.Customer Content and Reports. The Customer Content and the content of any Reports shall remain Customer's
exclusive property. Customer grants TNW a limited license to access, copy, display, reproduce, and transmit the
Customer Content and the content of Reports for the sole and exclusive purpose of performing TNW's obligations
in connection with this Agreement. TNW may use the Customer Content solely to(a)improve the provision of the
Services to Customer and determine usage of the Services; and (b)TNW may also use the Customer Content in an
aggregated manner that is not linked to any personally identifiable information, any Report(or content of any such
Report) or other specific transaction of Customer, Users or representatives for the purpose of industry-wide
benchmarking. No rights are granted to TNW hereunder other than as expressly set forth herein; there are no
implied rights, and Customer reserves all rights in the Customer Content and the content of Reports not expressly
granted to TNW. TNW agrees that any use of any of Customer's trademarks or service marks will inure solely to
the benefit of Customer and that TNW will not at any time acquire any rights in Customer's trademarks or marks.
5.Mutual Confidentiality/Rights Reservation.
(a)Permitted and Restricted Uses of Trade Secrets and Confidential Information.
(1) In connection with this Agreement, each party may disclose ("Disclosing Party") to the other party
("Receiving Party")certain Proprietary Information. "Proprietary Information"means collectively,Confidential
Information and Trade Secrets. "Confidential Information" means information other than Trade Secrets that
derives economic value, actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use;
and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. With respect
to Customer, "Confidential Information" also includes any (i) Customer Data; (ii) Customer Content; (iii)
Reports, and (iv) any information, data, and documents of any kind regarding municipal or governmental
operations, systems and programs of Customer, and any information of any kind that is protected or
privileged from disclosure pursuant to any provision of governing law, including but expressly not limited to
the California Evidence Code, the California Ralph M. Brown Act (Cal. Gov. Code Section 54950 et seq.) (the
"Brown Act') and the California Public Records Act (Cal. Gov. Code Section 6250 et seq.) (the "Public Records
Act"),or any other federal or California statutory or common law privilege. No provision of these Subscription
Terms or any Sales Order shall constitute any waiver by Customer of the Brown Act or Public Records Act or
any other federal of state statutory or common law providing for the confidentiality of any of Customer's
Confidential Information. "Trade Secrets" means information deemed a trade secret under applicable law.
Proprietary Information and any derivative works thereto are the sole and exclusive property of the Disclosing
Party(or a third party providing such information to the Disclosing Party).
(2) The Receiving Party will hold in confidence, protect such Proprietary Information from unauthorized
disclosure or access, using the same degree of care it uses to protect its own similar confidential information
(but in no event less than a reasonable standard of care). The Receiving Party will not distribute the
Proprietary Information or any portion thereof except to effectuate the purposes of this Agreement and then
only to:
(i) employees, contractors and agents who have a need to know and who are subject to restrictions on
redistribution of the Proprietary Information at least as restrictive as those in this Agreement;and
(ii)those third parties whose professional involvement necessitates it, such as auditors, accountants, and
legal representatives.
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The Receiving Party's obligations under this Agreement with regard to Confidential Information shall
remain in effect until such time as the Disclosing Party authorizes the Receiving Party to publicly disclose
such Confidential Information or public disclosure is required by court order. Without limiting the
foregoing, TNW's obligations under this Agreement with regard to Customer's Confidential Information
shall remain in effect as to any document or record exempt from public disclosure pursuant to the Public
Records Act, Brown Act and/or pursuant to any other privilege or provision of governing law; and the
Receiving Party's obligations under this Agreement with regard to the Trade Secrets shall remain in effect
for as long as such information shall remain a Trade Secret under applicable law.
(3) The Receiving Party further acknowledges and agrees that the disclosure of the Proprietary Information to
it does not confer upon Receiving Party any license, interest or rights of any kind in or to the Proprietary
Information other than as set forth in this Agreement or otherwise expressly agreed upon in writing by the
parties.
(b)The obligations set forth in this section do not apply to the following information:
(1) At the time of disclosure hereunder such information is generally available to the public;
(2) After disclosure hereunder such information becomes generally available to the public through means
other than a breach of this Agreement by the Receiving Party;
(3)The Receiving Party can demonstrate such information was in its possession prior to the time of disclosure
by Disclosing Party without confidentiality obligation;
(4) The information becomes available to the Receiving Party without confidentiality obligation from a third
party which is not legally prohibited from disclosing such information;
(5) The Receiving Party can demonstrate the information was developed by or for it independently without
the use of such information;or
(6) Disclosure is required under applicable law or regulation or in connection with a judicial proceeding,court
order or legal process served with respect to such information. If disclosure by Receiving Party is required by
applicable law or in connection with a judicial proceeding, court order or legal process served with respect to
such information,the Receiving Party will give the Disclosing Party notice prior to disclosing such information
to the extent permitted by applicable law.The Disclosing Party will be responsible for any reasonable costs the
Receiving Party incurs as a result of such compelled disclosure.
(c) Customer Data. CUSTOMER CONTENT, CUSTOMER DATA AND REPORTS (AS DEFINED IN SECTION 1) WITHIN
ANY SERVER ENVIRONMENT OWNED, MANAGED OR CONTROLLED BY TNW, IS MANAGED AS CUSTOMER'S
CONFIDENTIAL INFORMATION.
(d) Rights Reserved. Subject to the limited rights expressly granted in this Agreement, TNW reserves all rights,
title and interest, including all related intellectual property rights, in and to the Services and SaaS Offering,as well
as any derivative works of the foregoing and all of the foregoing constitute Proprietary Information of TNW. No
rights are granted to Customer hereunder other than as expressly set forth herein;there are no implied rights,and
TNW reserves all rights not expressly granted to Customer. Customer agrees that any use of any of TNW's
trademarks or service marks will inure solely to the benefit of TNW and that Customer will not at any time acquire
any rights in TNW's trademarks or marks.
(e) Remedies. Each party acknowledges that (i) any use or threatened misuse of the Proprietary Information of
the other party, or (ii) either party's threatened or actual breach of license, security, access, disclosure or
confidentiality obligations will cause immediate irreparable harm to the other party for which there is no adequate
remedy at law. Accordingly, each party agrees that the other party will be entitled to seek immediate and
permanent injunctive relief from a court of competent jurisdiction in the event of any such breach or threatened
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breach by the other party. The Parties agree and stipulate that either party will be entitled to seek such injunctive
relief without posting a bond or other security; provided however that if the posting of a bond is a prerequisite to
obtaining injunctive relief,then a bond in the amount of$1000 will be sufficient.
(f) Other. Except as hereinafter provided, neither party shall use, publicize, or issue any press release which
includes the name, trademarks, or other proprietary identifying symbol of the other party or its affiliates, or
Customer Confidential Information, without the prior written consent of such other party. Notwithstanding the
foregoing, TNW may name Customer as a customer of TNW. TNW will not otherwise claim or imply any
endorsement of its products or services by Customer without Customer's prior written consent.
(g) Customer's Compliance with Public Disclosure Statutes. TNW acknowledges and understands that Customer is
a municipal corporation and public entity of the State of California, and that as such, Customer is subject to the
provisions of the Brown Act and the Public Records Act, and other provisions of state law that may require, in
some circumstances, the disclosure of information and/or documents to the public. Nothing in this Section 5 or
any other provision of these Subscription Terms shall preclude or supersede Customer's obligations to comply with
any public disclosure requirements of the Brown Act, Public Records Act, and/or any other provision of governing
law. Customer agrees to provide TNW with reasonable prior notice of any request for disclosure of TNW's
Proprietary Information before making a determination to release such information to a third party, in order to
allow TNW sufficient time to oppose such disclosure.
6. Information and Security. In keeping with industry standards, TNW will take commercially reasonable steps
designed to protect the Customer Data from loss,misuse and unauthorized access or disclosure in accordance with
the following provisions. However, due to the nature of the Internet and the current state of technology,
Customer acknowledges that the prior sentence represents TNW's entire obligation with respect to preventing
such a breach or disclosure.
(a) Personally Identifiable Information. Customer acknowledges and agrees that TNW will collect, process, use
and/or store certain personally identifiable information or personal data ("PII"). TNW shall comply with all of the
following:
(1)TNW has established and shall maintain appropriate technological and organizational security measures to
protect against unauthorized access to any PII that is stored within its hosting infrastructure of its Services;
(2) TNW shall not utilize any PII for any purpose other than to provide any and all Services under these
Subscription Terms and applicable Sales Order;
(3)TNW shall not disclose any PII to any person not authorized by Customer except as necessary to comply
with federal or state law;
(4) TNW shall act solely on the instructions of Customer in respect to all PII, unless otherwise prohibited by
federal or state law;
(5)TNW shall inform Customer in a timely manner of any security breach regarding disclosure of PII,complaint
concerning disclosure or other unauthorized use of PII;and
(6) TNW shall be responsible for any non-compliance by its officers, directors, employees and any of its
subcontractors.
(b)Customer Content and Reports.
(1)In addition to subsection(a),and except as otherwise provided in this Section 6 or as required by governing
law,TNW shall not disclose,publish,or authorize others to disclose or publish,any account names,passwords,
PII, Customer Content, Reports, or information pertaining to the Services provided to TNW by Customer,
without the prior written approval of City Manager of Customer during the Term. In contracting with TNW
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pursuant to these Subscription Terms , Customer grants TNW only a limited license to access and use
Customer Content for the sole purpose of providing the Services set forth in any applicable Sales Order.
(2)TNW is and shall be responsible for ensuring the security and confidentiality of all Customer Content and
Reports in or obtained pursuant to the Services. TNW is and shall be also responsible for maintaining a backup
of all Customer Content and Reports and for the timely recovery of such Customer Content and Reports in the
event the Services are interrupted. Unless otherwise agreed upon in writing, TNW's means of data backup
shall provide for recovery of Customer Content and Reports within twenty-four (24) hours or less on
Customer's business days. Furthermore, TNW shall establish and maintain a data privacy and information
security program which includes physical,technical, administrative,and organizational safeguards designed to
protect against any anticipated threats or hazards to the security or integrity of Customer Content and
Reports, and to protect against unauthorized disclosure, access to, or use of Customer Content and Reports.
In no case shall TNW's security measures be more stringent than those used to protect Customer Content and
Reports.
(3)TNW shall at all times also implement and maintain data security procedures and protocols such as third
party auditing (e.g., SSAE-16), penetration testing, internal privacy and non-disclosure policies meeting
industry standards for data systems, and other measures as necessary, to prevent, to the maximum extent
possible, unauthorized access to and/or disclosure of Customer Content and Reports. TNW shall require its
employees, software providers, subcontractors, other independent contractors and agents to execute non-
disclosure agreements prohibiting disclosure of, or allowing unauthorized access to, any Customer Content
and Reports.
(i) The SaaS Offering is made available by a hosting environment (which means servers and other
hardware and communications equipment owned, leased, managed or otherwise controlled by TNW or
on its behalf) located within the U.S. or the United Kingdom that is subject to the AICPA Service
Organization (SOC) reporting framework under AT (Attestation Standards) Section 101 engagements to
assess controls and compliance therewith. Under this framework,TNW is issued a SOC 2 Report annually,
a copy of which will be made available to Customer upon Customer's request.
(c) Safe Harbor.As of the effective date,TNW is certified pursuant to the EU/USA Safe Harbor program in effect to
address the EU Data Protection Directive 95/46. During the Term,TNW will use commercially reasonable efforts to
maintain such certification. Additionally in accordance with Article 17 of the EU Data Directive: (i) TNW shall
process Customer Data only on behalf of and for the benefit of Customer and to carry out TNW's obligations
pursuant to this Agreement or Customer's written instructions;and(ii)TNW shall implement appropriate technical
and organizational measures to protect Customer Data against actual or suspected accidental, intentional, or
unlawful destruction or accidental loss, and against unauthorized alteration, disclosure, acquisition or access, and
against all other unlawful forms of processing of such Customer Data.
7.Fees and Payment.
(a) Fees. Except as otherwise specified herein or in any Sales Order: (1) fees are based on services purchased
(including but not limited to the number of Authorized Users purchased) and not actual usage, (2) payment
obligations are non-cancelable and fees paid are non-refundable, and (3) the number of User subscriptions
purchased cannot be decreased during the relevant subscription Term stated on the Sales Order. If Customer
exceeds the number of Authorized Users or amount of services purchased,TNW may work with Customer to seek
to reduce Customer's usage so that it conforms to that limit. If,notwithstanding TNW's efforts,Customer is unable
or unwilling to abide by the usage limit purchased,Customer will execute an Order for additional quantities of the
applicable Services promptly upon TNW's request, and/or pay any invoice for excess usage in accordance with
7(b), and/or terminate the applicable Sales Order at the end of the then-current Term, subject to thirty(30) days
prior notice in accordance with Section 9(c).
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(b) Payment. Customer will pay TNW the fees set forth in each Sales Order and payment shall be in U.S. Dollars.
Amounts undisputed in good faith are due in full within forty-five(45)days after the date of the invoice. Customer
is responsible for providing purchase orders, complete and accurate billing and contact requirements and
information and notifying TNW of any changes in such information. Any amounts not paid by the due date will be
subject to a late fee equal to one and one-half(1.5%) percent per month, or the maximum amount allowed by law
if less. Customer will be liable for all costs of collection of undisputed overdue amounts including, without
limitation,all court costs and reasonable attorneys'fees TNW incurs.
(c) Taxes. Unless otherwise stated, TNW's fees do not include any taxes, levies, duties or similar governmental
assessments of any nature, including but not limited to value-added,sales, use or withholding taxes,assessable by
any local,state, provincial,federal or foreign jurisdiction(collectively, "Taxes"). Customer is responsible for paying
all Taxes associated with Customer's purchases hereunder, to the extent imposed on Customer by the applicable
taxing authority. If TNW has the legal obligation to pay or collect Taxes for which Customer is responsible under
this paragraph,the appropriate amount shall be invoiced to and paid by Customer,unless Customer provides TNW
with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, TNW is solely
responsible for taxes assessable against it based on TNW's income, property and employees;and Customer has no
responsibility or obligation to pay any taxes, levies, duties or similar governmental assessments which, by law,
Customer is exempt from paying, provided,however,that Customer must procure a valid tax exemption certificate
as set forth in the previous sentence.
8.Warranties.
(a)TNW Warranties
(1) TNW represents and warrants that TNW will perform all Services in a professional and workmanlike
manner consistent with generally accepted industry practices and in the exercise of reasonable care. TNW
warrants that the SaaS Offering will perform in accordance with the applicable Documentation (as defined
below) in all material respects when used according to the applicable Sales Order and Documentation.
Customer's sole remedy and TNW's sole liability for any failure of the Services to conform to the foregoing
warranty is to provide the Support Services. "Documentation" means the user manual that describes the
features and functionality of the Services that is provided by TNW to Customer and to TNW's customers
generally.
(2) TNW warrants that TNW has secured all necessary licenses, consents or approvals to use any
instrumentality, thing or component as to which any intellectual property right exists, including computer
software, in the rendering of all Services pursuant to these Subscription Terms and any Sales Order, and that
TNW has full legal title to the Services. TNW further represents and warrants that as of the Effective Date,
there are no claims of infringement regarding patent, copyright, trademark or any other intellectual property
rights having been asserted against TNW;and,that TNW will shall not design its systems to include any"back
door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus," "preventative routines," or other
computer software routines.
(b)Customer Warranties. Customer represents and warrants that it has secured all necessary licenses,consents or
approvals to use any Customer Content as to which any intellectual property right exists in performing its
obligations under these Subscription Terms.
(c)Mutual Warranties. Each party represents and warrants that:
(1) The execution, delivery and performance of these Subscription Terms have been and shall be duly
authorized by the executing party;
(2)The executing party's performance of its obligations will not conflict with,result in a breach of or constitute
a default under any other agreement to which that party is bound;
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(3) As of the Effective Date, no claims of infringement regarding copyright, trademark, patent or any other
intellectual property rights have been asserted against Intellectual Property provided by one party to the
other as may be required under these Subscription Terms;and
(4)The executing party is in material compliance with all governing law with regard to its obligations under
these Subscription Terms.
(d)Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THESE SUBSCRIPTION TERMS, TNW MAKES NO WARRANTIES OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TNW SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE,MERCHANTABILITY,OR TITLE TO THE MAXIMUM EXTENT ALLOWED BY LAW.
9.Term and Termination.
(a) Initial Term of Sales Order. The duration of the initial term of provision of any Services under this Agreement
shall be set forth on a Sales Order but in any event shall have a minimum term of one (1) year ("Initial Term").
Such term commences on the effective date of the applicable Sales Order or such date set forth on Sales Order.
Any new User subscriptions added during the Term shall commence on the date set forth in the applicable Sales
Order.
(b)Automatic Renewal. Each Sales Order shall automatically renew thereafter for three successive terms of one(1)
year each unless either party provides written notice of non-renewal to the other party not less than thirty (30)
days prior to the then-current expiration or renewal date (the Initial Term and any renewal term hereinafter
referred to as the "Term").After the initial three terms, the parties will follow the following process: at least sixty
(60)days prior to the end of the then-relevant Term,TNW shall provide written notice to Customer that such Term
is about to expire.The parties agree that an invoice sent by TNW(which shall include the period for which the fees
relate), will constitute such written notice. At least thirty(30) days prior to the end of such Term, Customer shall
notify TNW in writing of its desire to renew or not to renew the Sales Order for an additional one(1)year Term. If
Customer notifies TNW of renewal, then the Sales Order shall renew for said additional Term provided TNW also
wishes to renew the Sales Order. If Customer notifies TNW of non-renewal,then the Sales Order shall terminate at
the end of the then-current Term.The per user/other unit pricing during any such renewal term shall be the same
as that during the prior term unless TNW provide a written notice of a pricing increase at least 60 days prior to the
end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any
applicable renewal fee will be invoiced annually thirty (30) days prior to the applicable renewal date. If either
party provides timely written notice of non-renewal to the other party, these Subscription Terms shall expire on
the expiration date of such Term.
(c) Early Termination. Notwithstanding subsection (b) of this Section 9, an applicable Sales Order may be
terminated in either of the following situations:
(1) Either party may terminate the applicable Sales Order in-the event that a failure to fulfill obligations under
this Agreement and/or the Sales Order arises out of cause(s) beyond the control and without the negligence,
intentional or willful misconduct of the party otherwise chargeable with failure, including without limitation
action or inaction of governmental,civil,or military authority;acts of terrorism (whether domestic or foreign);
fire; strike, lockout, or other labor dispute;flood;war; riot; earthquake; natural disaster; breakdown of public
or common carrier communications facilities, or any other incident of force majeure, that results in a failure
for at least thirty(30)consecutive days.
(2) As provided in Section 7(a), Customer may terminate the applicable Sales Order at the end of the then-
current Term in the event that Customer is unable or unwilling to reduce its usage in accordance with the
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usage limit purchased under such Sales Order, provided that Customer provides TNW with thirty-(30) days
prior written notice.
(d) Suspension and Termination for Non-Payment. Without prejudice to any other rights TNW may in its
discretion: (1)suspend any or all Services where Customer is more than thirty(30)days past due in payments and
TNW has provided Customer written notice five (5)days prior to such suspension; and (2)terminate the provision
of any or all Services, including all licenses granted therewith, where Customer is more than thirty (30) days past
due in payments and TNW has provided Customer written notice five(5)days prior to such termination.
(e)Termination for Breach. Notwithstanding any other provision of this Section 9 or any other provision of this
Agreement, either party may terminate these Subscription Terms and/or any Sales Order immediately upon
written notice to the other party in the event the other party breaches its obligations under these Subscription
Terms and/or the applicable Sales Order, provided that such breach is not cured within thirty (30) days after
written notice of the breach is received from the aggrieved party.
(f)Effect of Termination. Upon the date of termination Customer will immediately cease using all Services. Within
thirty (30) calendar days after the effective date of a termination or expiration of this Agreement, Customer will
return to TNW or remove, delete and destroy all of TNW's property, including, without limitation, all copies of
TNW's Proprietary Information, and certify to TNW in writing that Customer has fully performed its obligations
under this Section, although Customer is entitled to maintain a copy in back-up for any compliance requirements
and/or any records preservation requirements under the Public Records Act, the California Government Code, or
other applicable provision of federal or state law.
(g) Return of Customer Content and Reports. Within sixty (60) calendar days after Customer's written request
following termination, TNW will deliver to Customer any and all Customer Content and Reports in TNW's
possession in a production environment via industry standard electronic files. TNW may invoice Customer or
require a prepayment of fees for this service at TNW's then-current rates. No earlier than sixty(60) calendar days
after TNW delivers all Customer Content and Reports to Customer, or if TNW has not received a written request
from Customer within sixty (60) days of termination, TNW may purge all Customer Content from its systems,
although TNW is entitled to maintain a copy in back-up for any compliance requirements. TNW shall also cause its
subcontractors and other independent contractors to destroy or securely dispose of all Customer Content and
Reports in such subcontractor's custody or control.
10.Mutual Indemnification.
(a)Indemnification by TNW
TNW shall indemnify and hold Customer and its elected officials, officers, attorneys, agents, employees,
designated volunteers, successors, assigns and those Customer agents serving as independent contractors in
the role of Customer officials(collectively"Customer Indemnitees") harmless from and against any and all any
liabilities,losses,damages,causes of action or injuries,together with costs and expenses,including reasonable
attorneys'fees, arising out of or in connection with any claims by a third party alleging that the SaaS Offering
infringes a valid registered United States copyright, trademark, or patent. If TNW determines in its own
discretion that the SaaS Offering is likely to so infringe,TNW shall,at its option:
(i) Replace the infringing portion of the SaaS Offering;
(ii) Modify the infringing portion of the SaaS Offering to make it non-infringing;
(iii) Procure the right for Customer to continue using the infringing portion of SaaS Offering,or
(iv) Terminate the affected portion of the SaaS Offering and refund any prepaid but unused fees to
Customer for the infringing portion of the SaaS Offering.
The foregoing remedies constitute Customer's exclusive remedies and TNW's entire liability with respect
to intellectual property infringement and misappropriation claims and actions against any of the
Customer Indemnitees. Notwithstanding the foregoing,TNW will have no indemnity or remedy obligation
for claims of infringement resulting or alleged to result from: (i)any modification of the SaaS Offering not
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made by TNW; (ii) Customer's failure, within a reasonable time frame,to implement any replacement or
modification of Services TNW provided;or(iii)to the extent caused by any combination,operation,or use
of the SaaS Offering with any programs or equipment not supplied or approved by TNW.
All requirements of this Section apply regardless of insurance coverage.
(b)Indemnification by Customer.
(1) Proprietary Infringement. Subject to the exclusions and limitations set forth in Section 11, Customer shall
indemnify and hold TNW harmless from and against any and all any liabilities, losses, damages, causes of
action or injuries, together with costs and expenses, including reasonable attorneys'fees, arising out of or in
connection with any claims by a third party alleging that the Customer Content infringes a valid registered
United States copyright,trademark,or patent.
(2)Subject to the exclusions and limitations set forth in Section 11,to the extent authorized by governing law
Customer shall indemnify, defend, and hold TNW and its officers, directors, employees, and agents
(collectively"TNW Indemnitees") harmless from and against any and all liabilities, losses, damages, causes of
action or injuries,together with costs and expenses,whether actual,alleged, or threatened(including without
limitation reasonable attorney's fees,court costs, interest, expert witness fees, and other reasonable defense
costs incurred by TNW),(hereinafter collectively"TNW Claims"),which arise out of, pertain to or relate to any
action, proceeding or claim made or brought against TNW by any Reporter or other third party to the extent
that such Customer Claims were caused by or arise from Customer's breach of any applicable Sales Order or
these Subscription Terms or Customer's negligence,except to the extent such TNW Claims arise from the sole
ordinary negligence, gross negligence or willful misconduct of the TNW Indemnitees as determined by final
arbitration or court decision,or to any claim covered by TNW's indemnity obligation in Section 10(a)(1).
(3) Customer shall defend the TNW Indemnitees in any action or actions filed in connection with any such
Claims with counsel of Customer's choice. However,TNW may hire counsel at TNW's own expense to monitor
the proceedings.
(4)Customer's duty to defend, indemnify and hold harmless the TNW Indemnitees as set forth in this Section
10(b)shall not include the authority to enter into any settlement or compromise on behalf of TNW or any of
the TNW Indemnitees that requires any of the TNW Indemnitees to expend TNW funds or that requires TNW
to take any actions with respect to TNW's Services, programs or activities, or any settlement or compromise
that binds or purports to bind any of the TNW Indemnitees with respect to the Services,without TNW's prior
written consent.
(c) Indemnification Process. A party seeking indemnification shall promptly provide written notice to the other
party as soon as commercially reasonable after receiving a threat of any such action or a notice of the
commencement or filing of any action which may be subject to the provisions of this Section. The failure to notify
the indemnifying party shall not relieve the indemnifying party from any liability that it may have under this
Section, except to the extent it has been materially prejudiced by such failure. Each indemnified party, as a
condition of indemnification shall cooperate with the indemnifying party in the defense and settlement of any such
claim or action.
11.Mutual Limitations on Liability.
(a) Monetary Limitation. IN NO EVENT SHALL EITHER PARTY BE LIABLE IN AN AMOUNT THAT COLLECTIVELY AND
IN THE AGGREGATE EXCEEDS THE FEES CUSTOMER PAID TO TNW IN THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE FOR THE SERVICES IN QUESTION. THIS
LIMITATION WILL APPLY REGARDLESS OF WHETHER SUCH CLAIMS OR DAMAGES WERE FORESEEABLE OR THE
LEGAL THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION ANY CLAIMS UNDER CONTRACT, TORT, AND
PRODUCTS LIABILITY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES RESULTING FROM A PARTY'S
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INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, A PARTY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT,OR FOR USE OF THE SERVICES BY A PARTY BEYOND THE SCOPE OF AUTHORIZED USE.
(b)Limitation on Types of Damages. The following limitations on the types of damages shall apply notwithstanding
any other provision of these Subscription Terms or any provision of any Sales Order:
(1) IN NO EVENT SHALL CUSTOMER BE LIABLE FOR PUNITIVE OR EXEMPLARY DAMAGES AWARDED AGAINST
TNW OR ANY OF THE OTHER TNW INDEMNITEES TO THE EXTENT ARISING OUT OF, RESULTING FROM OR IN
ANY WAY RELATED TO ANY AND ALL CLAIMS OF ANY TYPE ASSERTED AGAINST TNW OR ANY OF THE OTHER
TNW INDEMNITEES.
(2) IN NO EVENT SHALL TNW BE LIABLE FOR PUNITIVE OR EXEMPLARY DAMAGES AWARDED AGAINST
CUSTOMER OR ANY OF THE OTHER CUSTOMER INDEMNITEES TO THE EXTENT ARISING OUT, RESULTING FROM
OF OR IN ANY WAY RELATED TO ANY AND ALL CLAIMS OF ANY TYPE WHATSOEVER ASSERTED AGAINST
CUSTOMER OR ANY OF THE OTHER CUSTOMER INDEMNITEES.
(3) IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES OF ANY KIND
WHATSOEVER TO THE EXTENT ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATED TO SUCH OTHER
PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH OTHER PARTY'S EMPLOYEES,OFFICIALS,AGENTS,OR INDEPENDENT CONTRACTORS.
(4) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, CONSEQUENTIAL,
INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING REASONABLE LEGAL FEES AND EXPENSES) OR
LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY
TO USE THE SERVICES OR ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF SUCH CLAIMS OR
DAMAGES WERE FORESEEABLE. THE FOREGOING LIMITATIONS OF THIS SUBSECTION (4)SHALL NOT APPLY TO
THE EXTENT SUCH DAMAGES ARISE OUT OF OR RESULT FROM (i)A PARTY'S INDEMNIFICATION OBLIGATIONS
SET FORTH IN SECTION 10, (ii)A PARTY'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH OTHER PARTY'S EMPLOYEES, OFFICIALS, AGENTS, OR
INDEPENDENT CONTRACTORS, OR (iii) FOR A PARTY'S USE OF THE SERVICES BEYOND THE SCOPE OF
AUTHORIZED USE OR USE BY SUCH PARTY'S EMPLOYEES, OFFICIALS, AGENTS, OR INDEPENDENT
CONTRACTORS BEYOND THE SCOPE OF THE AUTHORIZED USE.
12.Insurance.
(a) During the Term,TNW shall carry and maintain at its own cost and expense,the following insurance coverages:
(1) Commercial general liability insurance on a form offering coverage including premises, products and
completed operations coverage, independent contractors/vendors, personal injury and contractual
obligations;the limits of TNW's insurance shall apply to this Agreement as if set forth herein, but in no event
shall provide combined single limits of coverage of not less than $1,000,000 per occurrence, $2,000,000
general aggregate.
(2) For TNW employee's working in California, Worker's Compensation Insurance with statutory limits as
required by California law; and for TNW employees' working in other states, any worker's compensation
insurance as required by such other state law;and Employer's Liability with limits of at least$1,000,000.
(3) TNW shall maintain automobile liability insurance, including owned, non-owned and hired vehicles,
covering bodily injury and property damage for all activities of TNW arising out of or in connection with the
services provided under this Agreement.The limits of TNW's insurance shall apply to this Agreement as if set
forth herein,but in no event shall be less than$1,000,000 per occurrence,combined single.
(4) Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form
coverage specifically designed to protect against acts, errors or omissions of TNW and "Covered Professional
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Services" as designated in the policy must specifically include work performed under this agreement. The
policy limit shall be no less than$2,000,000 per claim and in the aggregate.The policy must"pay on behalf of"
the insured and must include a provision establishing the insurer's duty to defend.The policy and any renewal
or subsequent policies'retroactive date shall be on or before the effective date of this agreement.
(5) Umbrella liability with limits not less than $5,000,000 per occurrence and aggregate in excess of each of
the limits in subsections(1), (2), (3),and (4)above;
(b) Upon written request,TNW will furnish Customer with certificates of insurance and endorsements evidencing
all of the insurance referred to herein (including renewals of insurance) and confirming that Customer has been
named as an additional insured on the comprehensive general liability policy.
(c) TNW shall provide written notice to the City in the event that of cancellation of any such policy or reduction in
the coverage limits below the amounts set forth in Subsection(a),which such notice shall be given by TNW not less
than ten days after receipt of notice from the insurer or the effective date of such cancellation or reduction,
whichever occurs first.
(d) TNW agrees that it will not cancel or reduce any required insurance coverage. This provision is a material term
of these Subscription Terms.
(e) The insurance provided by TNW shall be primary to any coverage available to Customer to the extent a claim
results from or arises out of the actions or omissions of TNW. The insurance policies (other than workers
compensation and professional liability)shall include provisions for waiver of subrogation.
(f) Unless otherwise approved by Customer in writing,TNW's insurance shall be written by insurers authorized to
do business in the State of California.
(g) Any insurance provided pursuant to the requirements set forth in this Agreement shall not be limited to
coverage for the vicarious liability or supervisory role of any additional insured. All insurance coverage and limits
provided are intended to apply to the full extent of the policies. TNW's obligations in this Section shall in no way
affect the indemnification, remedy,or warranty provisions set forth in this Agreement.
13.Compliance with Laws; Export Controls. The Services, other technology TNW makes available,and derivatives
thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party
represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to
access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in
violation of any U.S.export law or regulation.
14.Assignment/Successors and Assigns. Customer will not assign or transfer this Agreement,by operation of law
or change in control or otherwise,without TNW's prior written consent, which consent shall not be unreasonably
withheld. TNW will not assign or transfer this Agreement, by operation of law or change in control or otherwise,
without Customer's prior written consent, which consent shall not be unreasonably withheld, except with
Customer's prior written consent shall not be required for any of the following: (a) the transfer of any shares or
stock in or change in control of TNW, or (b) any merger, consolidation or reorganization of, by or with TNW or
transfer of all or substantially all of the stock or shares in TNW or assets of TNW. This Agreement shall be binding
upon and shall inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
15.Governing Law;Attorneys' Fees and Costs. This Agreement shall be governed and interpreted in accordance
with the laws of the State of California, U.S.A.,without regard to its conflicts of laws principles. Venue for any legal
action or proceeding arising from or relating to this Agreement shall be the Superior Court for the County of Los
Angeles, California or the federal district court for the Central District of California, and each party irrevocably
submits to the jurisdiction and venue of any such court in any such action or proceeding. Each party expressly
waives its right to jury trial in connection with any action or litigation arising in connection with this Agreement.
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16. Notices. All notices or other communications which may be required by either party to the other party
pursuant to this Agreement shall be in writing and shall be hand delivered (including delivery by courier so long as
a receipt or confirmation of delivery is obtained),sent by recognized overnight delivery service(such as FedEx®or
UPS®), or mailed by first-class, registered or certified mail, return receipt requested, postage prepaid. Customer's
initial notice address is the billing address set forth in the Sales Order. TNW's notice address is as follows:
The Network,Inc.
333 Research Court
Norcross,GA 30092
Attention: Contracts Administration
Fax: (770)441-3634
Each notice which shall be mailed, delivered, or transmitted in the manner described above shall be deemed
sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee, or at
such time as delivery is refused by the addressee upon presentation; provided, however,that notices sent by mail
shall be deemed received on the third business day following the date such notice is deposited in the mail. Either
party may notify the other party of any change of address where notices should be sent pursuant to this Section.
17. Nondiscrimination. In the performance of this Agreement,TNW shall not discriminate against any customer,
any employee, subcontractor, or applicant for employment, or any officer, employee, agent or volunteer of
Customer, because of race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition or sexual orientation. TNW shall take affirmative action to ensure that
customers,employees,subcontractors,applicants for employment,and officers,employees,agents and volunteers
of Customer are treated without regard to their race, color, creed, religion, sex, marital status, national origin,
ancestry,age,physical or mental handicap,medical condition,or sexual orientation.
18. Conflicts of Interest. TNW agrees not to accept any employment or representation during the Term or within
twelve (12) months after completion of the work under this Agreement which is or may likely make TNW
"financially interested" (as provided in California Government Code Sections 1090 and 87100) in any decisions
made by Customer on any matter in connection with which TNW has been retained pursuant to these Subscription
Terms or any applicable Sales Order.
19. No Agency. These Subscription Terms,and any Sales Order,shall not be construed to create a joint venture or
partnership between the parties. Neither party shall be deemed to be an employee, agent, partner or legal
representative of the other for any purpose, nor shall either party have any right, power or authority to create any
obligation or responsibility on behalf of the other.
20. Compliance with Law. Notwithstanding any other provision of these Subscription Terms to the contrary,each
party shall be responsible for compliance with any and all provisions of governing law applicable related to the
performance of its obligations under these Subscription Terms or any applicable Sales Order.
21.Miscellaneous.
(a)Survival of Terms. All provisions in this Agreement which by their nature are intended to survive expiration or
termination shall so survive, including without limitation those pertaining to payment, indemnification, limitations
of liability, intellectual property, confidentiality, access, security, destruction following termination or expiration,
exclusions of damages,and governing law.
(b)Waiver/Severability. Neither party's failure to insist upon strict performance of any provision of this Agreement
shall be construed as a waiver of any of its rights under this Agreement. Any waiver or failure to enforce any
provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such
provision on any other occasion. If any term of this Agreement is held unenforceable, the unenforceable term
shall be construed as nearly as possible to reflect the original intent of the Parties and the remaining terms shall
remain in full force and effect.
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(c) Relationship of Parties/No Third Party Beneficiaries. The Parties each agree that each is an independent
contractor of the other, and not an employee of the other, and nothing in this Agreement shall be construed as
creating an employer-employee relationship or any partnership or joint venture between the Parties. There are no
third party beneficiaries to this Agreement.
(d) Conflict in Subscription Terms, Exhibits and Sales Orders. In the event of any conflict between the terms of
Exhibit I and these Subscription Terms, the provisions of Exhibit I shall control solely with respect to Support
Services, and otherwise these Subscription Terms shall prevail over Exhibit I. In the event of conflict among the
terms of these Subscription Terms and any Sales Order, then the terms of the Sales Order will control solely for
purposes of the applicable Sales Order.
(e)Consent. No required consent by a party hereto shall be unreasonably withheld or delayed.
(f) Customer's Acknowledgement. In addition to its signature on the Sales Order, Customer acknowledges that it
has read these Subscription Terms and the Sales Order and understands and agrees to be bound by all of such
terms.
(g) Force Majeure. Neither party shall be liable for failure to perform, or the delay in performance of, any of its
obligations under these Subscription Terms if, and to the extent, that such failure or delay is caused by events
beyond its reasonable control,including, but not limited to,acts of the public enemy or a governmental body in its
sovereign or contractual capacity, war, fire, floods, unusually severe weather, outside electrical failure, the
limitations or failures of third-party internet service providers and/or telecommunication providers, the
performance or failures of Internet service providers or acts of terrorism, including cyber-attacks on TNW's
computer systems, Customer's computer systems or those of third parties, including without limitation, internet
service providers and telecommunication providers. If so affected, the affected party shall use commercially
reasonable efforts to avoid or remove such causes of non-performance or delay, and shall continue performance
hereunder with reasonable dispatch whenever such causes are removed or otherwise resolved unless either party
terminates this Agreement or applicable sales order in accordance with Section 9,Termination.
(h) Neutral Interpretation and Construction. The parties agree that these Subscription Terms are the product of
joint draftsmanship and that in the event of any asserted ambiguity in or dispute regarding the interpretation of
any provision of these Subscription Terms, these Subscription Terms shall be deemed to have been prepared by
each of the Parties hereto and any uncertainty and ambiguity herein shall not be interpreted against the drafter,
and each party further waives the effect of California Civil Code Section 1654.
(i) Entire Agreement. These Subscription Terms, schedules and exhibits incorporated by reference together with
all applicable Sales Orders constitutes the entire agreement of the Parties with respect to the Services and
supersedes and replaces any other prior or contemporaneous agreement or understandings, whether oral or
written, related to the subject matter hereof or to existing services that were previously purchased by Customer
from TNW, including without limitation the terms of request for proposal or TNW's response thereto or any
agreement between the parties for existing services. Notwithstanding any language to the contrary therein, no
terms or conditions stated in Customer's purchase order or other order documentation (excluding Sales Order)
shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and
void.
(j) Modifications and Amendments. All amendments to these Subscription Terms or any of the Sales Orders shall
be in writing and signed by the Parties'authorized representatives,and if not shall be deemed null and void.
(k) Facsimile Signatures and Counterparts. These Subscription Terms, and any of the Sales Orders, will be
considered signed by a party when the signature of that party is delivered by facsimile or other electronic
transmission. Such signature shall be treated in all respects as having the same effect as an original signature.
These Subscriptions Terms, and any Sales Order, may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument and a part of the same original.
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1793312-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized
representatives below.
The Network,Inc.,a Georgia corporation City of Rancho Palos Verdes,California
municipal corporation
i
By: - - - 7-e 4....v•Nr.vN:"-V.-S&\)..t..s
_ _ ;IP By:
0, ru
Name: LttQA Skelk Name:
aOrel kh+n .--i),.kr,,,,_
Title: C4O Title: .Vor% C,►-1/4Y y
Nkmac. r
Date: 1 .D'o i Date: r-e6t%mir‘i M ,a,O‘S
16
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EXHIBIT I—SUPPORT SERVICES
This Support Services Schedule ("Support Schedule") is an Exhibit to the Master Subscription Agreement
("Subscription Terms") as applied to the Services in the applicable Sales Order. Defined terms not otherwise
defined in this Support Schedule will have the meaning set forth in the Subscription Terms. The Subscription
Terms and this Support Schedule together with any Sales Order between the parties will collectively be the
"Agreement".
Subject to the timely payment of amounts owed by Customer, TNW will use commercially reasonable efforts to
provide Customer the support services described in this Support Schedule.
1. Definitions. The following terms shall have the meanings indicated for purposes of this Support Schedule
and the provision of Support Services hereunder.
• "Availability" means the time in which TNW makes the SaaS Offering available for use by
Customer. For the sake of clarity, Customer's inablity to access the SaaS Offering due to any
problem outside of TNW's sole and exclusive control, such as issues with Customer's systems or
problems with the public Internet, are not relevant to the determination of whether the SaaS
Offering was available for use by Customer.
• "Error"means a failure of the SaaS Offering to substantially conform in all material respects with
the Documentation and which causes the SaaS Offering to be inoperable,to operate improperly,
or to fail to carry out functions as described in the Documentation.
• "Error Correction"means either a modification or patch that corrects an Error.
• "Response Time"means the amount of time from when the Customer properly reports an issue
until a support consultant acknowledges receipt and initiates troubleshooting to resolve.
• "Recovery Declaration"means the time period in which a disaster would be declared and
recovery plans are enacted.
• "RPO"or"Recovery Point Objective"means the maximum amount of potential data loss in the
event of a disaster.
• "RTO"or"Recovery Time Objective"means the period of time to restore services from point of
Recovery Declaration.
• "Severity Level"means the impact level TNW assigns to an issue based on the level of service
degradation or loss of functionallity.
• "Service Credit"means a credit based on and calculated against the fees Customer pays for the
SaaS Offerings as set forth on a Sales Order.
• "Support Hours"means the hours of 07:00 AM to 7:00 PM Eastern Standard time Monday
through Friday except for federal holidays recognized by the U.S.federal government(including
without limitation New Year's Day, Memorial Day, Independence Day,Labor Day,Thanksgiving
Day,and Christmas Day).
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2. Description of Services.
2.1 Phone and E-mail Support. For Intake Services,TNW shall provide support via e-mail or
telephone on a 24X7 hours basis. For SaaS Offerings, TNW shall provide support via e-mail and telephone,
according to the Error Correction Process set forth in Section 2.3 below during Support Hours.
Support Type Expectation
• Live support during Support Hours only
• Voicemail during non-Support Hours
Toll Free Phone • Note: For Sevl issues during non-Support Hours, please call
TNW Contact Center(800-253-0453 X6869)
E-mail Monitored during Support Hours only
Note: If an issue is considered Severity 1/Critical,Customer must call the Support Desk.
2.2 Additional Support. TNW shall provide any additional services as provided in a written
statement of work entered into between the parties at TNW's then-current rates. Such assistance includes, but is
not limited to,custom programming,data conversion and consulting.
2.3 Error Correction Process. The SaaS Offering is designed and configured to meet minimal
functionality standards as described in the Documentation. The following table illustrates the response level for
loss of functionality of the SaaS Offering:
Severity Level Severity Description Response Time
Severity 1 • Critical service functionality is down • 30 minutes during Support Hours
• Major impact to Customer's business • 60 minutes during non-Support Hours
• No reasonable workaround(s)exists
Severity 2 • Critical functionality is impaired or degraded • 60 minutes during Support Hours
• There are time-sensitive issues that impact ongoing • Next Business Day during non-Support
production Hours
• Workaround exists,but it is only temporary
Severity 3 • Non-critical functionality is down or impaired • Next Business Day
• Does not have significant current production impact
• Performance is degraded
• A short to medium term work-around is available
Severity 4 • SaaS Offering is working according to specification • N/A
but Customer has identified an enhancement to
improve product experience
3. Maintenance Windows. TNW will conduct regular weekly maintenance and any unavailability or
degradation to SaaS Offering performance during maintenance windows shall not be considered for service level
calculation. The standard maintenance windows will be six(6) hours in length. In the event there is a need for a
non-standard maintenance window,TNW will provide a written notice(email or providing an electronic notice to a
Customer administrator account is sufficient)at least twenty four hours in advance.
Standard Maintenance Windows:
United States: Eastern Standard Time: Thursday or Friday 9:00 pm—3:00 am
United Kingdom: Eastern Standard Time: Thursday or Friday 3:00 pm—9:00 pm
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4. Disaster Recovery. A disaster situation must be declared by TNW personnel at the CTO level or above.
The RTO/RPO times would commence once that declaration was made.
A disaster situation for TNW would imply full failure of the entire Governance, Risk, & Compliance (GRC) suite at
the remote data center,Sungard.This would include environmental disasters in which the entire Sungard facility is
affected, such as extensive power or network failure. It could also imply a complete failure of redundant, key
components which comprise or support our applications.
Objective Metric
Recovery Declaration <12 hours
RTO <2 hours
RPO <2 hours
5. Hosting Environment
Objective Metric
Vulnerability
Management Quarterly Vulnerability Scans and review of systems and applications
Monitoring
24x7x365 SaaS Offering health (CPU, RAM, Disk Usage, Services, etc.) and
Application Functionality
Redundancy Maintain redundant/fault tolerant infrastructure for production environment
Control Audit TNW Hosting Environment is subject to the AICPA Service Organization (SOC)
reporting framework. A SOC 2 report is issued annually.
6. Availability. The SaaS Offering will be available ninety-eight and a half percent(98.5%) of the time with
the exception of scheduled maintenance periods with the following monthly calculation:
Availability% = (Total Minutes minus Scheduled Down Minutes minus Unscheduled Down Minutes of the
SaaS Offering)
divided by (Total Minutes minus Scheduled Down Minutes of the SaaS Offering)
7. Service Level Credits. Customer's sole and exclusive remedies for TNW's failure to meet the Availability
commitment in Section 6 will be the provision of Service Credits against the fees for the SaaS Offering as detailed
in the table below:
SaaS Offering Availability Percentage Service Credit as a Percentage of
Applicable Month's Subscription Fees
<99.00%but>_97.00% 5%
<97.00%but>_96.00% 10%
<96.00%but>_95.00% 20%
<95.00% 30%
The Service Credit is tentatively created after two (2) consecutive Measurement Periods of failure to meet all
Availability Service Levels; Customer must request any credit due hereunder within sixty(60) calendar days of the
conclusion of the month in which the failure occurred. Credits will be issued once validated by TNW and applied
toward any outstanding balance. All performance calculations and applicable service credits will be based on TNW
records and data.
19
1793312-1
TNetwo-rk
Sales Order
„ ,
Customer Name: City of Rancho Palos Verdes
CUSTOMER. OT CE ADDRESS: CUSTOMER BILA I G ADDRE
City of Rancho Palos Verdes City of Rancho Palos Verdes
30940 Hawthorne Blvd 30940 Hawthorne Blvd
Rancho Palos Verdes,CA 90275 Rancho Palos Verdes,CA 90275
Attn:City Manager Attn:City Manager
(310) 544-5212 (310) 544-5212
citymanager@rpv.com citymanager@rpv.com
This Sales Order ("Order") details products and services to be provided for City of Rancho Palos Verdes
("Customer") located at 30940 Hawthorne Blvd, Rancho Palos Verdes, CA 90275 by The Network, Inc.
("TNW"), collectively known as the "Parties". Except as expressly stated in this Order, all products and
services included in this Order are subject to the terms and conditions of the Master Subscription Agreement
("Subscription Terms") executed on I , 2015,which is hereby incorporated by reference
as executed between the Parties as of the date sig d by the Customer below.
1. Term
This Order is effective upon the date of the last signature below(the"Effective Date"). The initial term of
this Order shall be one (1) year commencing upon the Effective Date and shall thereafter automatically
renew for three optional renewal terms of one(1)year each,subject to Customer's right to continue with
the same tier or to select any higher service tier in any renewal term after the first year based on
Customer's analysis of utilization levels (which may result in an increase in fees),and in accordance with
the terms set forth in the Subscription Terms. This Order shall also be subject to termination as provided
in the Subscription Terms.
2. Services and Fees
Hotline Program
All fees are based upon information provided by the Customer.Customer acknowledges and agrees that
the following information provided by Customer and used to develop the Order is correct and complete
as of the date hereof.Any deviation from this information may result in changes to deliverables and fees.
Country Users Access Method Primary Language
United States 65 Employees Domestic Toll-Free English
43,000 Citizens Web
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Program Quantity Annual One-Time
Program Fee Fee
Hotline Program 1 $3,000
Hotline-Tier 2 Implementation 1 $1,000
Provider will invoice Customer based on number of reports exceeding the indicated "Report Volume
Cap"at the Overage Fee rates defined below.
Original Report Volume Cap: 50
General Inquiry Call Cap: 50
Overage Fees:
$50 per phone report,$10 per web report,$3 per General Inquiry
Original Report - A report that alleges a violation of the Customer's standards of conduct or of a
Customer policy. Original reports can be taken through the telephonic or web intake process.
General Inquiry - An inquiry call on matters pertaining to subjects such as benefits questions, payroll
questions or any other matter Customer requires TNW to refer the person making the call to a Customer
department.
The Annual Fee covers the Hotline reporting program for all countries listed above, and includes 24x7
coverage from its contact center in Norcross(Atlanta),Georgia.
Translation Fees-$125 for each translated telephonic report.
Incident Management
Software Service Quanti Annual Fee Extended Annual One-Time
(per user) Service Fee Fee
User Licenses 6 $500 $3,000
Incident Management-Tier 1 1 $1,500
Implementation
Incident Management User Training-
Shared Online
Service access to Incident Management and Reporting & Analytics modules for TNW's GRC Suite.
Requires one of the following browsers: Internet Explorer versions 8,9, 10 and 11,Google Chrome(latest
available version),or Mozilla Firefox(latest available version).
The number of users is as specified above. Each user in the system is required to have a distinct user
identification and password to the service. See more detailed usage rules in the Subscription Terms.
All training classes will be conducted in English.
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Education and Awareness Materials
Awareness Materials(Ready-Made) Quantity/Language(s) One-Time Fee
Brochures with Perforated Wallet Cards 100/English $120
11 x 17 Speak Up Posters 20/English $80
Shipping and Handling charges not included in this price.
3. Summary Payment Schedule
All fees associated with this Order shall be invoiced in accordance with the schedule below and payment
terms shall be in accordance with the Subscription Terms.
Service Fee Amount Fee Type Billing Schedule
Hotline Program Service $3,000 Annual Upon Order Execution
Incident Management Software Service $3,000 Annual Upon Order Execution
Awareness Materials $200 One-time Upon Order Execution
Implementation Fees $2,500 One-time Upon Order Execution
Amounts stated on this Order exclude any applicable taxes, duties, shipping or other third-party fees
and/or taxes.Any taxes or fees due will be calculated and specified on the applicable invoice.
----REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the Parties hereto have caused this Order to be approved by their duly authorized
representatives as of the date(s)indicated below.
The Network,Inc. , a Georgia City of Rancho Palos Verdes, California
corpor; • , municipal corporation
By:
S kelq By: , ��►.1/4_,
Name: Llity Ske HU h Name: Cae-o1Yw,. �. -k v-v‘_
Title: lip() Title: AG-V%V1q I� l�c��na�c�r
Date: .0 /i t/ o lc Date: v
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Exhibit A
Schedule of Implementation Services
This Exhibit details the services to be performed by TNW and is hereby attached to this Order.Any deviation
from this information may result in changes to project schedule, fees and the level of effort required to
perform the services detailed below. Such changes may result in a Change Request ("CR") to be executed
between the Customer and TNW:
Domestic Hotline-Tier 2
1. Toll-free number from AT&T for use throughout the United States,Canada,Puerto Rico,Guam,and the US
Virgin Islands.If applicable,TNW can assume ownership of an existing number for incoming calls.
2. Automated Welcome Message - Standard, pre-recorded message validating to the caller that they have
reached the appropriate phone number.
3. Call Greeting- Call greeting can be customized with the specific name of Customer's intake program.Call
greeting must not exceed 255 characters of text.
4. Dissemination-Reports can be disseminated to up to ten (10) named recipients via email,fax or XML file
by email or FTP.PGP encryption is available upon request.
5. Escalation - Based on standard escalation criteria, incident reports can be escalated to up to three (3)
contacts by telephone only.Escalation occurs within 15 minutes of the end of the intake call.
6. Callback period - Follow-up timeframe questions from investigators to reporters (employees) are
standardized at 14 calendar days,but can be configured from 3 to 21 calendar days upon request.
7. Locations Database-one-time upload of Customer locations along with monthly changes as needed.
8. Standard Incident Codes-The following list of 24 standard incident codes are included:Accounting/Audit
Irregularities,Conflicts of Interest,Customer Relations,Discrimination,Employee Relations,Falsification of
Customer Records, Fraud, Fraudulent Insurance Claims, Improper Loans to Executives, Insider Trading,
Kickbacks, Policy Issues, Product Quality Concern, Release of Proprietary Information, Retaliation of
Whistleblowers, Safety Issues and Sanitation,Sexual Harassment,Substance Abuse,Theft of Cash,Theft of
Goods/Services,Theft of Time,Unauthorized Discounts,Wage/Hour Issues,Workplace Violence/Threats.
9. Employee Web-based Reporting Form(Domestic)setup includes
a. Branding-upload personalized logo provided by Customer,
b. Incident codes as listed above and,
c. File attachment support for electronic files that can be attached to a reported incident. No more
than 10 files can be attached to a single incident report and combined size of attached files cannot
exceed 10MB.No single attached file can exceed 5MB.
10. Manager's Walk-up Form - TNW will setup and deploy the standard manager-facing Web-based method
(English only) allowing managers to enter responses to certain critical questions in order to capture and
centralize all reported issues.Setup includes
a. Branding-upload personalized logo provided by Customer,
b. Incident codes as listed above and,
c. File attachment support for electronic files that can be attached to a reported incident. No more
than 10 files can be attached to a single incident report and combined size of attached files cannot
exceed 10MB.No single attached file can exceed 5MB.
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.
Incident Management-Tier 1
1. Initial User Setup -TNW will create initial user profiles,standard roles (Administrator, Case Manager and
Investigator)and up to five(5)customized work groups.
2. Location Hierarchy-TNW will configure the Customer-specific location hierarchy.
3. Branding-TNW will upload personalized logo provided by Customer.
4. Workflows - Incident Management will be configured with the following standard workflows defined by
TNW and affiliated partners.Customer may modify these workflows as well as create new workflows:
a. Conflict of Interest
b. Theft of Cash
c. Vendor Fraud
d. Kickbacks
e. Employee Matters
5. Standard notification business rules will be configured to support the following:
a. Notification upon case assignment(no conditionality applied)
b. Notification upon Follow-up Received(no conditionality applied).
6. Business rules will be configured to support the following:
a. Automated conversion of Events to Cases
b. Automated Follow-up.
7. Utilization of TNW's best business practice configuration of the following: Incident Codes, Incident Class,
Status Types, Priority Types, Risk Types, Outcome Types, Disposition Types, File Categories, Notes
Categories,and Involved Party Types Categories.
8. Initial Setup of standard custom fields to track the following information from Hotline Reports:
a. Anonymity of Caller
b. Management Notified
c. Caller Type
9. Standard authenticated Intake Form
10. Product Training-Customer users may attend TNW-provided Shared Training sessions for Administrators
or End Users. These are open,web-hosted classes offered on a regular basis at no charge. Custom, web-
hosted classes are offered on a fee basis.
Reporting&Analytics(included in all Incident Management implementations)
1. User Permissions-Customer will have the ability to grant any user that has a login to Incident Management
access to Reporting and Analytics.
2. Standard Reports - Reporting and Analytics will be configured with the following standard reports as
defined by TNW:
a. Activity by Location
b. Activity by Hierarchy
c. Case Status Count
d. Cases Closed in Last X Days
e. Workload by Assignee
f. Case due in Next X Days
3. Customer-defined and built reports utilizing the standard TNW templates.
4. Customer-defined and built dashboards,utilizing the available system widgets.
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Current Browser and Environment Requirements
Internet Browser Requirements and Tips:
1. Internet Explorer versions 8,9,10 and 11,Chrome and Firefox are supported
2. In Internet Explorer version 9,Flash ActiveX plug-in must be enabled
3. Security settings must be set to default(Medium).
For All Browsers:
1. Flash Player 9.0 or higher is required
2. Silverlight(for InsightView reporting)
3. Pop-ups,3rd party Cookies,JavaScript,XMLHTTP Support must be allowed
Hardware,Software&Security Requirements and Tips:
1. 1024 x 768 minimum recommended screen resolution(with no toolbars visible).
2. 100 MB of free hard disk space.
3. 1 Ghz processor/CPU and higher and 1GB memory/RAM and higher.
4. Graphics and sound cards with the latest drivers installed.
5. Broadband Connection(756/kbps or better)
6. System calendars and clocks must be set to the accurate date and time.Users will not be able to
log into the LMS if the date and time are incorrect.
White-listed Sites
In order to ensure that your users receive email notifications and access course and other multimedia
content,please be sure that the following sites are white-listed by your IT group based on each product:
1. Incident Management: tnwgrc.com
2. Policy Management: amazonses.com,tnwgrc.com
3. Training:amazonses.com, tnwgrc.com,scorm.com
4. Surveys and Assessments:amazonses.com,tnwgrc.com
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Change Request Process
1. A Change Request("CR")is defined as a written agreement between the parties for additions,modifications,
and/or deletions to this Order. The steps required to accommodate requested change(s) to the Order
include:
a. The Customer and/or TNW will identify requested change(s) and document the new
requirements.
b. TNW will determine the impact of requested change(s) on the project scope, schedule and/or
budget, and will provide Customer with a CR that documents its findings within a commercially
reasonable time after TNW determines the feasibility of the requested change(s).
c. If Customer chooses to accept the CR,Customer shall sign and return the CR to TNW.
d. TNW will schedule the work to support the requested change(s) and will invoice Customer for
any additional fees described in the CR in accordance with the terms of the Agreement.
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