2019-25 Veritas (former Hubstor Inc) - WORM Software for Laserficheta Qa�tra
— — GEM of rht DESERT —
MEMORANDUM
TO: Frank J. Spevacek, City Manager
FROM: Monika Radeva, City Clerk
DATE: December 17, 2018
RE: Agreement with HubStor Inc for WORM Software for Laserfiche
Attached for your signature.
Please sign the attached Agreement and Addendum with HubStor Inc for WORM
software for the City's Laserfiche repository.
1A
7C Contract payments will be charged to account number:
5bQ- aD Qo - 13iadd L 'a5.3o'a. N
X Amount of Agreement, Amendment, Change Order, etc.: $42,364.06 [FY 18/19 $7,060.671
N/A A Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) is attached with
no reportable interests in LQ or _ reportable interests
N/A A Conflict of Interest Form 700 Statement of Economic Interests is not required because this Consultant
does not meet the definition in FPPC regulation 18701(2).
Authority to execute this agreement is based upon:
X Approved by the City Council on NOVEMBER 6, 2018 - FY 2018/19 Budget Adjustments
X City Manager's signature authority provided under Resolution No. 2018-014 for budgeted expenditures
of $50,000 or less. This expenditure is $ 42.364.06 and authorized by [Council, Director, etc]
N/A Initial to certify that 3 written informal bids or proposals were received and considered in selection
Thefollowing required documents are attach-ed to the agreement:
X Insurance certificates as required by the agreement (approved by Risk Manager on/a V7111, te)
N/A Performance bonds as required b the agreement(originals)5
— q Y 9
N/A City of La Quinta Business License number
X A requisition for a Purchase Order has'been prepared (amounts over $5,000)
N/A A copy of this Cover Memo has been emailed to Finance
Revised May 2017
CONFIDENTIAL
MASTER SUBSCRIPTION TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions set out the provisions pursuant to which HubStor will provide services set out on the Subscription
Order Form to the Customer identified on the Subscription Order Form.
1. Definitions.
“Acceptable Use Policy” or “AUP” means the acceptable
use policy governing the Service which is available on the
Website at www.hubstor.net/aup.
“Azure” means the Microsoft cloud infrastructure and
platform offering known as “Azure”.
“Consumption” means total utilization of the Service in any
given month, enumerated by the public cloud infrastructure
to which the Service is deployed and hosted, consisting of
provisioned components (i.e. virtual machines, databases,
data storage) and Customer’s usage activities (i.e. data
transfer, storage activity, indexing).
“Customer Data” means all electronic data or information
submitted by Customer and/or its Users to the Service.
“Effective Date” means the last date on which the
Agreement is signed by either party.
“HubStor Tenant” means the isolated HubStor compute,
storage, and networking resources and related configuration
that is hosted in Azure and that is dedicated to Customer.
“Monthly Service Fee” means the monthly fees specified
on the Subscription Order Form which are payable by
Customer to HubStor for Consumption and for the right to
receive access to the Service, which fees Customer hereby
understands to be the monthly fluctuating amount derived
wholly from Customer’s month-to-month Consumption.
“Pattern Data” means non-personally identifiable
information, data and reports derived from or compiled
through the Service, including but not limited to
demographic, pattern, location and trend data such as
aggregated data and statistics indicating frequency of use
and popularity of the services. For greater certainty, Pattern
Data is data that does not identify a specific customer, its
business or its end users.
“Service” means HubStor’s cloud storage service which is
provided through a combination of the on-premises software
installed on Customer’s site and HubStor Tenant.
“Subscription Order Form” means the order form
executed by the parties that specifies the Service and any
other additional commercial terms agreed by the parties.
“Subscription Period” means the period beginning from
execution of a Subscription Order Form and ending upon
termination or cancellation of the Service, as specified in
Section 10.
“User” means an individual who is authorized by Customer
to use the Service.
“Service Documentation” means the online materials (i.e.
text, videos, audio recordings, etc.) provided by HubStor to
describe the capabilities and operation of the Service,
accessible via the user interface of the Service and/or the
Website, as updated by HubStor from time to time.
“Website” means www.hubstor.net.
2. Grant of License.
2.1 Provision of Service. HubStor shall make the
Service available to Customer for Customer’s internal
business use during the Subscription Period. Customer’s
right to use the Service during the Subscription Period shall
be in accordance with any additional conditions, restrictions
or parameters specified in Schedule A or the Subscription
Order Form(s) executed by HubStor and Customer. HubStor
places no restriction on the number of general User accounts.
2.2 Data and Tenant Location. HubStor will
coordinate with Customer to determine the Azure region(s)
where the Service will be hosted and Customer Data stored.
At Customer’s election (as specified in Schedule A), the
HubStor Tenant shall be hosted in either (i) HubStor’s own
Azure account; or (ii) Customer’s own Azure Account. If
Customer initially elects to have HubStor host their HubStor
Tenant and subsequently changes such election then (i)
HubStor shall facilitate such election as soon as practicable
following receipt of written request from Customer to such
effect; and (ii) Monthly Service Fees will increase as per
Schedule A.
2.3 Use of Software with the Service. Customer may
need, and is permitted, to install certain HubStor software on
Customer’s premises which HubStor shall make readily
available for download from the Customer’s HubStor
Tenant. See the AUP for further terms that apply to on-
premises software.
3. Use of the Service.
3.1 HubStor Responsibilities. HubStor shall, in
addition to its confidentiality obligations hereunder: (i) not
disclose the Customer Data to anyone other than Customer
and its User(s), except as directed by Customer; (ii) not use
the Customer Data (except for the purposes of performing its
obligations or exercising its rights under this Agreement);
(iii) use commercially reasonable efforts to assist Customer
with maintaining the security and integrity of the Customer
Data; (iv) provide support to Customer's named IT support
Users via telephone and e-mail during the weekday hours
from 6:00 a.m. to 5:00 p.m. Eastern Time Monday to Friday,
at no additional charge, including upgrades and maintenance
of the Service; (v) provide access to a bulk data export
capability which shall enable Customer to export any/all
Customer Data in original format from the Service; (vi)
provide notification to a named IT-support User regarding
upgrades to the Service; and (vii) use commercially
reasonable efforts to make the Service available twenty-four
(24) hours a day, seven (7) days a week, except for: (a)
CONFIDENTIAL
MASTER SUBSCRIPTION AGREEMENT
2
planned downtime (of which HubStor shall give at least
eight (8) hours’ notice via the Service and which HubStor
shall schedule to the extent reasonably practicable during the
weekend hours from 9:00 p.m. Friday to 12:00 a.m. Monday
in the Customer’s local time); or (b) any unavailability
caused by circumstances beyond HubStor's reasonable
control, including without limitation, software defects, acts
of God, acts of government, flood, fire, earthquakes, civil
unrest, acts of terror, strikes or other labor problems (other
than those involving HubStor employees), computer,
telecommunications, Internet service provider or hosting
facility failures or delays involving hardware, software or
power systems not within HubStor’s possession or
reasonable control, and denial of service attacks.
3.2 Customer Responsibilities. Customer is
responsible for all activities that occur in User accounts and
for its Users’ compliance with this Agreement and
HubStor’s Acceptable Use Policy. Customer shallhave sole
responsibility for the accuracy, quality, integrity, legality,
reliability, and appropriateness of all Customer Data.
3.3 Customer Hosting Option. Customer shall have
the option to host the HubStor Tenant in an Azure account
owned and controlled by Customer. Where the HubStor
Tenant is hosted in Customer’s Azure account, Customer
shall: (i) provide a dedicated subscription or resource group
within the Azure account and make available to HubStor at
all times during the Subscription Period all such user
account, authorizations, and permissions as may reasonably
be required to access, manage, and monitor the HubStor
Tenant’s resources for the purpose of providing the Service;
(ii) provide HubStor with the account’s billing API key (the
“Enrollment Access Key”) within three (3) business days
from written requested by HubStor which HubStor shall use
strictly for metered consumption of the resources within the
HubStor Tenant’s subscription or resource group; (iii) accept
the higher margin percentages set aside in Schedule A for
Customer hosting; and (iv) implement all reasonable best
practices recommended by HubStor for securing the
subscription or resource group. Customer agrees that
Consumption, as defined in Schedule A, shall use publicly
listed Azure prices for purposes of calculating amounts due
HubStor where Customer opts to apply “reserved instances”
pricing from Microsoft to any virtual machines within the
HubStor Tenant.
4. Fees and Payment.
4.1 Fees. In consideration for provisioning the Service
and for receipt of access to the Service, Customer shall pay
HubStor the Monthly Service Fee.
4.2 Invoicing and Payment. Fees for Consumption of
the Service will be invoiced in arrears on a monthly basis
unless otherwise specified in Schedule A or an applicable
Subscription Order Form executed by the parties. Service
Fee charges are due Net 30 days unless otherwise stated in
an invoice. Customer is responsible for maintaining
complete and accurate billing and contact information with
HubStor.
4.3 Taxes. Unless otherwise stated, HubStor's fees do
not include any direct or indirect local, state, provincial,
federal or foreign taxes, levies, duties or similar
governmental assessments of any nature, including value-
added, goods and services, harmonized, use or withholding
taxes (collectively, "Taxes"). Customer is responsible for
paying all Taxes associated with its purchases hereunder,
excluding taxes based on HubStor's net income or property.
If HubStor has the legal obligation to pay or collect Taxes
for which Customer is responsible, the appropriate amount
shall be invoiced to and paid by Customer, unless Customer
provides HubStor with a valid tax exemption certificate
authorized by the appropriate taxing authority.
4.4 Audit Rights. HubStor may use the capabilities of
the public cloud infrastructure and the Service to audit
Customer’s Consumption and compliance with this
Agreement. HubStor shall comply with the provisions of
Section 5.3 in carrying out any such Audit. HubStor shall
provide Customer, via the Service, access to auditing
information pertaining to Customer’s Consumption,
Customer Data and Users.
4.5 Suspension of Service. Provided that HubStor has
provided Customer with written notice that the account is
overdue, if Customer's account is sixty (60) days or more
overdue (except with respect to charges then under
reasonable and good faith dispute), in addition to any of its
other rights or remedies, HubStor reserves the right, after
providing at least fifteen (15) days notification, to suspend
the Service, without liability to HubStor, until such amounts
are paid in full.
4.7 Termination of Service. Provided that HubStor
has provided Customer with written notice that the account
is overdue, and a second written notice that the Service is in
danger of being terminated, if Customer's account is ninety
(90) days or more overdue (except with respect to charges
then under reasonable and good faith dispute), in addition to
any of its other rights or remedies, HubStor reserves the
right, after providing at least fifteen (15) days notification,
to disable the Service provided to Customer, including a
purge of any Customer Data in the Service, without liability
to HubStor.
5. Proprietary Rights.
5.1 Reservation of Rights. Subject to the limited
rights expressly granted hereunder, HubStor reserves all
rights, title and interest in and to the Service, including all
related intellectual property rights. No rights are granted to
Customer hereunder other than as expressly set forth in this
Agreement.
5.2 Restrictions. Customer shall not (and shall not
allow any third party to): (a) modify, translate, reverse
engineer, decompile, disassemble, or create derivative works
based on the Service and its related software components
except to the extent that enforcement is prohibited by
applicable law notwithstanding a contractual provision to the
CONFIDENTIAL
MASTER SUBSCRIPTION AGREEMENT
3
contrary; (b) circumvent any user limits or other timing or
use restrictions that are built into the Service; (c) remove any
proprietary notices, labels, or marks from the Service or
Service Documentation; (d) frame or mirror any content
forming part of the Service; or (e) access the Service in order
to (i) build a competitive product or service, or (ii) copy any
ideas, features, functions or graphics of the Service.
5.3 Customer Data. As between HubStor and
Customer, Customer exclusively owns all rights, title and
interest in and to all Customer Data. Customer Data is
deemed Customer’s Confidential Information under this
Agreement. Customer confirms that Customer is rightfully
in possession of any personally-identifiable information that
may be contained in Customer Data, including any
information which any User shares with third parties on
Customer’s behalf. Customer hereby grants HubStor a
worldwide, royalty-free and non-exclusive license during
the term of Customer’s subscription to access Customer Data
in order to: (i) provide the Services, including storing,
hosting and management of such content; and (ii) create
Pattern Data. Together Sections 5.3 (i) and (ii) constitute the
“Content License”). HubStor undertakes and covenants not
to use access or use the Customer Data save as expressly set
out above. Customer understands that HubStor, in
performing the required technical steps to provide the
Services, may transmit or distribute Customer Data, in
encrypted form, over various public or private networks and
in various media. Customer confirms and warrants to
HubStor that Customer has all the rights, power and
authority necessary to grant the above Content License and
that use of the Customer Data in the manner contemplated
will not breach the rights of any third party. HubStor shall
notify Customer without undue delay, and in any event
within 24 hours, of any unauthorized access or other data
breach involving Customer Data.
5.4 Customer as Controller. Customer agrees that if
Customer, or Customer Data, is subject to the General Data
Protection Regulation (“GDPR”), or related laws including
related laws of European Union member states: (i) Customer
is the data controller of such data and HubStor is a data
processor of such data; and (ii) Customer further represents
that Customer has undertaken all requirements to comply
with all privacy and data protection laws including but not
limited to GDPR. Such requirements may include but are
not limited to maintaining adequate records and registration
requirements with supervising or other regulatory
authorities.
5.5 HubStor as Data Processor. See Schedule B.
5.6 Enhancement Requests. HubStor shall have
a royalty -free, worldwide, transferable, sublicenseable,
irrevocable, perpetual, unrestricted license to use or
incorporate into the Service and/or any other products or
services any suggestions, enhancement requests,
recommendations or other feedback, provided by Customer
or Users, relating to the Service.
6. Confidentiality.
6.1 Definition of Confidential Information. As used
herein, “Confidential Information” means all confidential
and proprietary information of a party (the “Disclosing
Party”) disclosed to the other party (the “Receiving
Party”), whether orally or in writing, including the terms
and conditions of this Agreement (including pricing terms
and this business relationship between the parties), the
Customer Data, the Service, business and marketing plans,
technology and technical information, product designs, and
business processes. Confidential Information shall not
include any information that without breach of any
obligation owed to the Disclosing Party: (i) is or becomes
generally known to the public; (ii) was known to the
Receiving Party prior to its disclosure by the Disclosing
Party; (iii) was independently developed by the Receiving
Party; or (iv) is received from a third party.
6.2 Confidentiality. The Receiving Party shall not
disclose or use any Confidential Information of the
Disclosing Party for any purpose outside the scope of this
Agreement, except with the Disclosing Party's prior written
permission.
6.3 Protection. Each party agrees to protect the
confidentiality of the Confidential Information of the other
party in the same manner that it protects the confidentiality
of its own proprietary and confidential information of like
kind (but in no event using less than reasonable care).
HubStor agrees that any and all electronic transmission or
exchange of Customer Data shall take place via secure
means (i.e. with end-to-end encryption).
6.4 Compelled Disclosure. If the Receiving Party is
compelled by law, regulation or order of any court of
competent jurisdiction to disclose Confidential Information
of the Disclosing Party, it shall provide the Disclosing Party
with prior notice of such compelled disclosure (to the extent
legally permitted) and reasonable assistance, at the
Disclosing Party's cost, if the Disclosing Party wishes to
contest the disclosure.
7. Warranties and Disclaimers.
7.1 Mutual Warranties. Each party represents
and warrants to the other that : (i) it has the legal power
and authority to enter into this Agreement; (ii) it shall
comply with all applicable law in its capacity as either a
recipient of the Service or a provider of the Service (as
applicable); and (iii) it has obtained all necessary and
required consents (as applicable) from third parties as
required to enter into and participate in this Agreement
including to grant any licenses pursuant to this Agreement.
7.2 HubStor Warranties. HubStor represents and
warrants to Customer that: (i) it will provide the Service
diligently using qualified and experienced personnel using
due care and skill in a manner consistent with general
industry standards; (ii) the Service shall perform in
accordance with the Service Documentation; (iii) to
CONFIDENTIAL
MASTER SUBSCRIPTION AGREEMENT
4
HubStor’s knowledge, the Service does not infringe the
intellectual property rights of any person; (iv) HubStor will
not use, install or implement any unauthorized code
including any computer virus, Trojan horse, worm, logic
bomb, spyware, malware, malicious disabling code,
backdoor or other destructive or harmful mechanism or code
or combination of any of the foregoing that is intended or
designed to or likely to or has the effect of disabling,
deleting, erasing, denying authorized access to, damaging,
destroying or corrupting Customer’s hardware, software or
systems or any data or files on or used in conjunction with
any of the foregoing; (v) each version, release and upgrade
of the Service shall be fully backwards and forwards
compatible with the proceeding and subsequent version,
release and update, as the case may be; and that it shall use
all reasonable endeavors to ensure that any maintenance fix,
release, update, or upgrade of the Service shall not require
Customer to incur any material costs and expenses changing
or upgrading any third party hardware, software or interfaces
so that Customer can continue to fully use Service; and (vi)
it has no plans which would require Customer to incur
material costs and expenses changing or upgrading any third
party hardware, software or interfaces so Customer can
continue to fully use such Service in accordance with the
Service Documentation.
7.3 Disclaimer. EXCEPT AS EXPRESSLY
PROVIDED IN SECTIONS 7.1 AND 7.2 AND WITHOUT
LIMITING THE INDEMNITIES SET OUT IN SECTION
8.1, HUBSTOR MAKES NO REPRESENTATIONS AND
PROVIDES NO WARRANTIES OR CONDITIONS OF
ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AND SPECIFICALLY
DISCLAIMS ALL IMPLIED REPRESENTATIONS,
WARRANTIES AND/OR CONDITIONS, INCLUDING
ANY REPRESENTATIONS, WARRANTIES AND/OR
CONDITIONS OF MERCHANTABILITY,
MERCHANTABLE QUALITY, DURABILITY, TITLE,
SATISFACTORY QUALITY OR FITNESS FOR A
PARTICULAR PURPOSE, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW.
8. Indemnification.
8.1 Indemnification by HubStor. HubStor shall, at
its own expense, defend Customer in any action, suit or
proceeding by a third party alleging that : (i) the Service
infringes or misappropriates any patent, trademark, trade
secret, copyright or any other intellectual property rights of
such third party (an “IP Claim”); or (ii) the delivery of the
Service by HubStor breaches applicable laws (“Applicable
Law Breach”) (IP Claims and Applicable Law Breaches
together constitute “Claims”), and shall indemnify and hold
Customer harmless from and against any settlement amounts
agreed in writing by HubStor and/or any losses, damages,
expenses or costs (including but not limited to reasonable
attorneys' fees) incurred by Customer or awarded to such
third party against Customer by a court or tribunal of
competent jurisdiction in any such Claim. As conditions for
such defense and indemnification by HubStor: (i) Customer
shall notify HubStor promptly in writing upon becoming
aware of all pending Claims; (ii) Customer shall give
HubStor sole control of the defense and settlement of such
Claims; (iii) Customer shall cooperate fully with HubStor in
the defense or settlement of such Claims; and (iv) Customer
shall not settle any Claims without HubStor’s written
consent, or compromise the defense of any such Claims or
make any admissions in respect thereto.
8.2 Mitigation. If (a) HubStor becomes aware of an
actual or potential IP Claim, or (b) Customer provides
HubStor with notice of an actual or potential IP Claim,
HubStor may (or in the case of an injunction against
Customer, shall), at HubStor’s sole option and
determination: (I) procure for Customer the right to continue
to use the Service; (II) replace or modify the Service with
equivalent or better functionality so that Customer’s use is
no longer infringing; or (III) if (I) or (II) are not
commercially feasible, terminate provision of the Service
and refund to Customer any pre-paid Monthly Service Fees
for any periods after the termination of the Service, less any
outstanding moneys owed by Customer to HubStor.
8.3 Exclusions. The obligations in Sections 8.1 and
8.2 do not extend to: (i) any IP Claim based upon
infringement or alleged infringement of any patent,
trademark, copyright or other intellectual property right by
the combination of the Service furnished by HubStor with
other products, software or services not provided by
HubStor; (ii) any Claim related to any Customer Data; or (iii)
any Claim related to any use or exercise of any other right in
respect to the Service outside the scope of the rights granted
in this Agreement.
9. Limitation of Liability.
9.1 Limitation of Liability. IN NO EVENT SHALL
EITHER PARTY'S AGGREGATE LIABILITY ARISING
OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR UNDER ANY OTHER THEORY OF
LIABILITY, EXCEED THE LESSER OF USD $150,000
OR THE AMOUNTS ACTUALLY PAID BY AND DUE
FROM CUSTOMER HEREUNDER IN THE TWELVE
MONTHS PRECEDING THE INCIDENT GIVING RISE
TO LIABILITY.
9.2 Certain Damages Not Excluded.
NOTWITHSTANDING THE FOREGOING, NO
LIMITATION OF EITHER PARTY’S LIABILITY SET
FORTH IN THIS AGREEMENT SHALL APPLY TO (I)
DAMAGES ARISING FROM INFRINGEMENT AND/OR
MISAPPROPRIATION OF A PARTY’S
INTELLECTUAL PROPERTY RIGHTS; (II) CLAIMS
FOR NON-PAYMENT; (III) INDEMNIFICATION
OBLIGATIONS PURSUANT TO THIS AGREEMENT;
(IV) DAMAGES ARISING FROM DEATH OR
PERSONAL INJURY CAUSED BY EITHER PARTY’S
NEGLIGENCE; OR (V) DAMAGES FOR FRAUD,
FRAUDULENT MISREPRESENTATION, AND/OR
WILLFUL MISCONDUCT.
CONFIDENTIAL
MASTER SUBSCRIPTION AGREEMENT
5
10. Term and Termination.
10.1 Term of Agreement. This Agreement shall
commence as of the Effective Date and shall continue in
effect unless or until terminated in accordance with the terms
hereof. If this Agreement is terminated for cause by either
of the parties then all Subscription Order Forms shall also
terminate.
10.2 Termination by Customer. Customer may
terminate this Agreement for any or no reason at any time.
Upon any such termination, at Customer’s sole discretion,
HubStor shall (i) immediately cease providing the Service,
destroy any remaining Customer Data in the Service, and all
usage rights granted under this Agreement shall terminate or
(ii) continue to provide the Service to Customer for up to
ninety (90) days (the “Termination Period”) so that
Customer may extract Customer Data from the Service, after
which HubStor shall immediately cease providing the
Service, destroy any remaining Customer Data in the
Service, and all usage rights granted under this Agreement
shall terminate. During the Termination Period Customer
shall continue to pay applicable Monthly Service Fees.
10.3 Termination by HubStor. HubStor may
terminate this Agreement for cause: (i) upon thirty (30) days
written notice of a material breach to Customer if such
breach remains uncured at the expiration of such period; or
(ii) if Customer becomes the subject of a petition in
bankruptcy or any other proceeding relating to insolvency,
receivership, liquidation or assignment for the benefit of
creditors. Upon any termination for cause, HubStor shall
continue to provide the Service to Customer for up to ninety
(90) days (the “Termination Period”) so that Customer may
extract Customer Data from the Service, after which
HubStor shall immediately cease providing the Service,
destroy any remaining Customer Data in the Service, and all
usage rights granted under this Agreement shall terminate .
During the Termination Period Customer shall continue to
pay applicable Monthly Service Fees.
10.4 Outstanding Fees. Termination or cancellation of
this Agreement shall not relieve Customer of the obligation
to pay any fees accrued or payable to HubStor (except with
respect to charges then under reasonable and good faith
dispute) prior to the effective date of termination or
cancellation of this Agreement.
10.5 Surviving Provisions. The following provisions
shall survive any termination or cancellation of this
Agreement: Sections 4-10.
11. Right to use HubStor Tenant in event of Insolvency
11.1 In the event HubStor is adjudicated bankrupt or
otherwise is declared insolvent by a court of competent
jurisdiction (where such declaration is not subject to appeal),
is liquidated, has a receiver appointed over all its assets or
suffers an assignment of all or most of its assets for the
benefit of creditors (together, an “Insolvency Event”) then
this Section 11 shall apply.
11.2 If HubStor suffers an Insolvency Event during the
Term then:
(a) Customer is granted a perpetual, irrevocable,
world-wide, royalty-free license to use the
HubStor Tenant in Customer’s Azure account for
Customer’s own internal purposes, including
without limitation the right to maintain the
HubStor Tenant for such purposes;
(b) If the Customer’s HubStor Tenant instance is
deployed in HubStor’s Azure account, HubStor
agrees to transfer such HubStor Tenant instance to
Customer, subject to Customer providing the
required account information to HubStor within 60
days of notification of the Insolvency Event. If
Customer fails to provide their Azure account
information within 60 days of notification of such
Insolvency Event, HubStor obligations under this
Section shall terminate and it may decommission
the customer’s HubStor Tenant without liability.
11.3 Where Customer exercises its right under Section
11.2, Customer shall be responsible for paying all costs
associated with the applicable Azure account and services.
12. General Provisions.
12.1 Relationship of the Parties. The parties are
independent contractors. This Agreement does not create a
partnership, franchise, joint venture, agency, fiduciary, or
employment relationship between the parties.
12.2 No Third-Party Beneficiaries. Except as
expressly provided in this Agreement, there are no third-
party beneficiaries to this Agreement.
12.3 Notices. All notices shall be in writing and shall
be deemed to have been given upon: (i) personal delivery;
(ii) the second business day after mailing; (iii) the second
business day after sending by confirmed facsimile; or (iv)
the second business day after sending by email. Notices to
HubStor shall be addressed to the attention of the Legal
Department. Notices to Customer shall be addressed to
Customer’s Legal Department.
12.4 Severability. If any provision of this Agreement
is held by a court of competent jurisdiction to be contrary to
applicable law, the provision shall be modified by the court
and interpreted so as best to accomplish the objectives of the
original provision to the fullest extent permitted by law, and
the remaining provisions of this Agreement shall remain in
effect.
12.5 Assignment. Except for a merger or acquisition,
or a reorganization which results in the assignment and
assumption of this Agreement to and by an affiliate, neither
party may assign any of its rights or obligations hereunder,
whether by operation of law or otherwise, without the prior
written consent of the other party.
CONFIDENTIAL
MASTER SUBSCRIPTION AGREEMENT
7
SCHEDULE A – MONTHLY SERVICE FEE
The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Schedule shall
have the meaning ascribed to such words in the Agreement.
MONTHLY SERVICE FEES
HubStor installs and operates the HubStor Tenant exclusively in the Microsoft Azure cloud platform where a unique and dedicated
subscription is provisioned and configured for Customer following the execution of this Agreement and the Subscription Order
Form. The HubStor Tenant incurs fees from the public cloud provider (the “Costs of Goods Sold”) based on usage of the cloud
infrastructure in the subscription (i.e. storage, compute, data transfer, etc.).
HubStor’s Monthly Service Fees, which are dynamically calculated and readily available to Customer, are hence calculated as a
gross margin percentage above the Costs of Goods Sold, as metered by the public cloud provider, accrued within each month. The
Monthly Service Fee is billed in arrears at the start of each month for Consumption of the Service in the prior month.
Customer may at any time use the functionality provided within the Service to export, tier, and/or delete data to reduce Consumption
levels, and may request changes to their HubStor Tenant configuration which may increase or decrease the Costs of Goods Sold .
Customer may view the enumerated Consumption details at any time in the Subscription Per iod.
DISCOUNTED PRE-PAY OPTION
Customer may elect to pay in advance for estimated annual Consumption wherein HubStor shall provide a 5% discount and shall
maintain a Consumption credit system whereby monthly invoices shall be issued detailing the drawdown of remaining credits based
on monthly Consumption. Customer and HubStor shall have a quarterly true -up to ensure sufficient Consumption credits are
available for the next quarter. Customer agrees that no negative credit balance shall exceed the mo nthly pay-as-you-go invoicing
model. HubStor agrees that available credits shall have no expiry, and HubStor shall refund any unused balance if Customer elects
to terminate the Subscription.
HUBSTOR’S GROSS MARGIN SCHEDULE
The following table provides HubStor’s volume-discount margin which shall be applied on all Costs of Goods Sold deriving from
all Consumption other than the Service’s content indexing option:
Costs of Good Sold (COGS) in Monthly Service Fee
($) (not including optional content indexing)
HubStor’s Gross Margin (%)
– Hosted in Customer’s
Account
HubStor’s Gross Margin (%)
– Hosted in HubStor’s
Account
0-499 75.9% 71.6%
500-999 75.4% 71.1%
1000-1249 75.0% 70.6%
1250-1499 74.5% 70.0%
1500-1749 74.0% 69.5%
1750-1999 73.4% 68.8%
2000-2249 72.6% 68.0%
2250-2499 72.1% 67.4%
2500-2749 71.5% 66.8%
2750-2999 70.8% 66.0%
3000+ 70.2% 65.3%
The following table provides HubStor’s volume-discount margin which shall be applied on all Costs of Goods Sold deriving from
Consumption specific to the Service’s content indexing option:
Costs of Good Sold in Monthly Service Fee ($)
(specifics to content indexing COGS)
HubStor’s Gross Margin (%)
– Hosted in Customer’s
Account
HubStor’s Gross Margin (%)
– Hosted in HubStor’s
Account
0-99 78.9% 78.9%
CONFIDENTIAL
MASTER SUBSCRIPTION AGREEMENT
8
100-249 73.3% 73.3%
250-499 70.0% 69.2%
500-749 70.0% 66.7%
750+ 70.0% 66.1%
HUBSTOR PRICE GUARANTEE
HubStor agrees that no changes shall be made to increase HubStor’s rates in either margin schedule during the initial three (3) years
of the Subscription Period. HubStor reserves the right to increase margin rates after the initial three-year Subscription Period
provided that such increases shall be no more than five percent per annum.
CONFIDENTIAL
MASTER SUBSCRIPTION AGREEMENT
9
SCHEDULE B – HUBSTOR GDPR OBLIGATIONS AS DATA PROCESSOR
The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Schedule shall
have the meaning ascribed to such words in the Agreement.
HubStor shall:
(i) process Customer Data only on the written instructions of the Customer, unless required by Law to act without such instruction
in which case HubStor shall promptly notify Customer of this before performing the processing;
(ii) have in place at all times appropriate technical and organizational measures (which shall be subject to inspection and a udit by
the Customer);
(a) to prevent and protect against any unauthorized access, loss, destruction, theft or damage to Customer Data or
unauthorized or unlawful processing or disclosure of the Customer Data (having taken account of the risks of the same),
(b) to ensure confidentiality, integrity, availability and resilience of its systems,
(c) to ensure timely restoration after an incident of availability of and access to Personal Data, and,
(d) to provide for regular assessment and evaluation of the effectiveness of those technical and organizational measures;
(iii) ensure that only employees who need to have access to Customer Data for the purposes of supporting the Service shall ha ve
access;
(iv) ensure that such employees who have access are obliged to keep the Customer Dat a confidential and are subject to legally
binding confidentiality obligations;
(v) not transfer any Customer Data outside of the hosting Azure region except with the Customer’s written consent obtained pr ior
to any such transfer;
(vi) assist Customer in responding to any request from a data subject (whether received by the Customer or HubStor) and ensure
that it takes all necessary action as requested by the Customer in respect of a data subject exercising their rights under the GDPR;
(vii) ensure compliance with its obligations under the GDPR with respect to breach notifications, impact assessments and
consultations with supervisory authorities or regulators;
(viii) notify Customer without undue delay and in any event within 24 hours on becoming aware of a Customer Data breach;
(ix) at the written direction of Customer, delete or return Customer Data and copies thereof to Customer at any time and on
termination of the Agreement unless required by Law; and
(x) maintain complete and accurate records to demonstrate its compliance with its obligations under this Schedule B and allow for
audits by Customer in accordance with the following:
(a) without prejudice to any other rights of inspection and audit under the Agreement by the Customer, at Customer's
request and expense and with reasonable prior written notice to HubStor, HubStor shall grant Customer or its auditors
and professional advisors access to any of the Supplier’s records, policies, processes and premises (provided this is during
a business day) in relation to Customer's HubStor Tenant or the Agreement, in each case as is reasonably necessary to
allow Customer to comply with any Law or orders of any governmental or regulatory body to which Customer is subject,
and
(b) where Customer reasonably believes that HubStor is in breach of its obligations under this Schedule B, HubStor shall
grant access to Customer or its auditors and professional advisors as soon as possible to carry out an urgent audit and
investigation. If HubStor is confirmed to be in breach of its obligations under this Schedule B, then the reasonable costs
of such audit shall be borne by HubStor.
2762/015610-0002
13102001.2 a12/05/18
ADDENDUM TO
MASTER SUBSCRIPTION AGREEMENT TERMS AND CONDITIONS OF SERVICE
by and between HubStor, as independent contractor, and the City of La Quinta,
a California municipal corporation, as “Customer” defined therein
Notwithstanding the terms and conditions set forth in the MASTER SUBSCRIPTION
AGREEMENT TERMS AND CONDITIONS OF SERVICE, SUBSCRIPTION ORDER
FORM, and any other agreements relating to those agreements and/or amendments thereto
(collectively, the “Agreement”), the following terms and conditions apply and shall replace or
supersede all other terms to the extent of any conflict:
1.Confidentiality.
The Agreement including this Addendum (which is integrated into the Agreement) approved by
the La Quinta City Council is a public record under the California Public Records Act (Gov.
Code § 6250 et seq. or successor statutes (“Public Records Act”), shall be subject to public
disclosure, and shall not be confidential.
Section 6.4 “Compelled Disclosure” is hereby deleted in its entirety and replaced to read as
follows:
6.4 Compelled Disclosure. If the Receiving Party is compelled by law, regulation or
order of any court of competent jurisdiction, including but not limited to the Public
Records Act, to disclose Confidential Information of the Disclosing Party, it shall provide
the Disclosing Party with prior notice of such compelled disclosure (to the extent legally
permitted). HubStor expressly acknowledges and agrees that Customer, as a public entity
within the state of California, is subject to the disclosure requirements of the Public
Records Act, and nothing in the Agreement shall be grounds for withholding disclosure
of records or information, including Confidential Information, that is otherwise required
by law to be disclosed.
2. Limitation of Liability.
Section 9.1 “Limitation of Liability” is hereby deleted in its entirety and replaced to read as
follows:
9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED USD $150,000.
Section 9.2 “Certain Damages Not Excluded” is hereby amended to add subsection (VI), and
Section 9.2 hereby reads in its entirety as follows:
9.2 Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING,
NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS
AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM
2762/015610-0002
13102001.2 a12/05/18 -2-
INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S
INTELLECTUAL PROPERTY RIGHTS; (II) CLAIMS. FOR NON-PAYMENT; (III)
INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT; (IV)
DAMAGES ARISING FROM DEATH OR PERSONAL INJURY CAUSED BY
EITHER PARTY’S NEGLIGENCE; (V) DAMAGES FOR FRAUD, FRAUDULENT
MISREPRESENTATION, AND/OR WILLFUL MISCONDUCT; OR
(VI) CUSTOMER'S RIGHT TO SECURE AN ALTERNATIVE PROVIDER FOR THE
SERVICES AND RECEIVE REIMBURSEMENT OF THE REASONABLE COVER
COSTS IN THE EVENT HUBSTOR FAILS TO PERFORM UNDER THIS
AGREEMENT.
3. Governing Law and Venue. Section 12.6 “Governing Law” and Section 12.7 “Venue” are
hereby deleted in their entirety and replaced with the following:
12.6 Governing Law. This Agreement shall be interpreted, construed, and governed
both as to validity and to performance of the parties in accordance with the laws of the
State of California. No choice of laws rules of any jurisdiction shall apply to this
Agreement. The application of the United Nations Convention on Contracts for the
International Sale of Goods to this Agreement is expressly excluded.
12.7 Venue. Legal actions concerning any dispute, claim, or matter arising out of or in
relation to this Agreement shall be instituted in the Superior Court of the County of
Riverside, State of California, or any other appropriate court in such county, and HubStor
covenants and agrees to submit to the personal jurisdiction of such court in the event of
such action.
Except as expressly provided in this Addendum, the terms and conditions in the Agreement shall
govern and control.
[signatures on next page]
Insurance Requirements
Insurance. Prior to the beginning of and throughout the duration of this
Agreement, the following policies shall be maintained and kept in full force
and effect providing insurance with minimum limits as indicated below and
issued by insurers with A.M. Best ratings of no less than A -VI:
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Non-contributory
Errors and Omissions Liability
$1,000,000 (per claim and aggregate)
Network Security & Privacy Liability
Date: 5AWO-1 , 2019
HubStor, Inc.
_:;0Z
offrey A. Bourgeois, CEO
Date:
City of La Quinta, a California municipal corporation and charter city
Digitally signed Pam Nieto
DN: cn m =PaNieto, o=City of La Quinta,
ou=City Clerks Dept.,
pt., email=pnieto@la-
quinta.org, c=US
Date: 2019.01.03 07:47:22-08'00'
Pam Nieto, Management Specialist
Risk Management Division
SUBSCRIPTION ORDER FORM
This Subscription Order Form (“Order Form”) together with the Master Subscription Agreement (the “Agreement”)
and any and all schedules, exhibits, statements of work, appendices or other documents referenced by or attached to
the Agreement or this Order Form by HubStor is a binding contract between HubStor Inc. (“Provider”) and the
Customer identified below (the “Customer”) for the software-as-a -service offering(s) identified in this Order Form
(each a “Service” and collectively, the “Service”). This Order Form and the Service are subject to the Acceptable Use
Policy, which are available at: http://www.hubstor.net/aup/ or http://www.hubstor.net/download/10802/ (PDF format)
and are incorporated herein by this reference. Customer acknowledges and agrees that it has reviewed the Acceptable
Use Policy and agreed to the terms of the Agreement prior to executing this Order Form. Capitalized terms not
otherwise defined in this Order Form, will have the meanings given to them in the Agreement and/or Acceptable Use
Policy.
1. Ge neral Information
Customer Name:
Order Form Effective Date:
Billing Contact:
Billing Phone:
Billing Email:
Billing Address:
Purchase Order #:
Sales Representative (if
applicable):
Sales Partner (if applicable):
Cancellation:
Cancel at any time without cancellation fees. Any requested assistance
for performing data extraction beyond technical support of the Service’s
capabilities are subject to HubStor’s Professional Services fees and a
Statement of Work.
2. Monthly Service Fee
Monthly Service Fee amounts are based on Customer’s Consumption of the Service (i.e. data volumes, data transfers,
compute, and other such activity). Provider therefore is not able to agree to any fixed price amounts for the Service.
By executing this Subscription Order Form, Customer acknowledges and agrees that the Monthly Service Fee amount
is variable from month to month. Provider shall make available in the Service a usage and billing portal providing
User access to Consumption amounts and related fees at any given time. Customer is able to use capabilities provided
in the Service to manage data retention and/or perform data extraction at any time.
SUBSCRIPTION FEES FOR THE S ERVICE (MONTHLY S ERVICE F EE) WILL BE INVOICED MONTHLY IN
ARREARS. I NVOICES ARE GENERATED AUTOMATICALLY, PUBLISHED IN THE S ERVICE, AND ARE EMAILED
TO THE C USTOMER BILLING CONTACT. PAYMENT IS DUE N ET 30 DAYS FROM THE INVOICE DATE .
I F C USTOMER REQUIRES AN ESTIMATE OF THE M ONTHLY S ERVICE F EE P ROVIDER CAN SUPPLY A
PRICING ESTIMATE BASED ON A NEEDS ASSESSMENT OF THE C USTOMER. C USTOMER ACKNOWLEDGES
AND AGREES THAT ANY SUCH PRICE ESTIMATE SHALL NOT BE BINDING ON P ROVIDER IN DETERMINING
M ONTHLY S ERVICE F EES FOR THE S ERVICE.
3. Professional Services
Provider shall provision the Service along with six (6) hours of courtesy training for Customer’s Designated Users at
no charge.
SUBSCRIPTION ORDER FORM
Please select the following only if Customer requires implementation services for Provider’s on-premises software
components (i.e. the HubStor Virtual Cloud Gateway, HubStor Utilities, etc.) or additional components such as Azure
Active Directory and directory synchronization:
☐ Implementation Services required.
Professional Service:
Method of Delivery:
Fees:
SOW #:
T HIS S UBSCRIPTION O RDER F ORM IS NOT A S TATEMENT OF W ORK. W ORK WILL COMMENCE ONLY
WITH A SIGNED S TATEMENT O F W ORK.
4. Discount Options for Acting as a Reference
HubStor values your commitment to us as a customer and would like to join with you to promote our partnership. If
you would be willing to agree to any of the below items, HubStor would always obtain your prior review and approval
as well as offer you a courtesy discount (reflected with each option below).
Please select any reference customer discount you wish to apply:
☐ Use of company name and logo in a blog post on the HubStor website announcing your subscription to our
Service within thirty (30) days of the Order Form Effective Date. (10% off for the first month.)
☐ Participation in a case study commencing within sixty (60) days after completion of implementation. (10% off
for the three successive months following the case study publish date.)
NOTE: C OURTESY CREDIT IS CONDITIONAL ON SELECTION OF AT LEAST ONE OF THE ABOVE MARKETING
OPTIONS.