HomeMy WebLinkAbout20223384.tiffCAn-I've 57s
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: Flexential Disaster Recovery Site
DEPARTMENT: Information Technology DATE: 11/18/2022
PERSON REQUESTING: Ryan Rose.'
Brief description of the problem/issue:
As part of Weld County's Disaster recovery environment, the Flexential hosted data center is
leveraged through the State of Colorado contract. The State of Colorado is terminating their contract
with Flexential. Weld County is recommending to retain Flexential as the Disaster Recovery site
with a one time setup fee of $1,135.00 and monthly reoccurring fee of $2,569,96. Karin McDougal
has reviewed and approved the associated agreement
What options exist for the Board? (include consequences, impacts, costs, etc. of options):
Information Technology requests authorization for the chair to sign the agreement to provide
continued Disaster Recovery hosting through Flexential. If the agreement is not signed, an altemate
Disaster Recovery site will be identified.
Recommendation:
Information Technolgy recommends that the Board approve the agreement and allow the Chair to
sign the attached agreement.
Perry L. Buck
Mike Freeman, Pro-Tem
Scott K. James, Chair
Steve Moreno
Lori Saine
Coan4-419kinda-
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Schedule
mendation Work Session
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Other/Comments:
2022-3384
IFLEXENTIAL I
Notice Required by Applicable State Laws:
This MSA Includes an Auto -Renewal Provision
STANDARD TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms shall have the meaning set forth below or elsewhere in the MSA.
"Colocation Services" means Services related to the storage of Customer Equipment in the Equipment Space, including
space and power as set forth on the applicable Quote.
b. "Cloud Services" means Services related to an information technology system, operated, maintained, and housed by
Flexential, which is comprised of software and hardware including data storage, physical computing equipment (hosts), and
networking components used to provide Services to Customer.
c. "Cover Sheet" means a cover sheet to which these Standard Terms and Conditions are attached, that identifies the parties
and their notice addresses and includes signature blocks for Flexential and Customer to execute the MSA and the initial
Quote for Services.
d. "Customer Data" means all information stored, maintained, received or transmitted by Customer using the Services.
"Customer Equipment" means any equipment provided by Customer in connection with the MSA, whether or not owned by
Customer.
f. "Customer Port" means the egress port on Customer Equipment connecting to Flexential Equipment used to provide
network Service§.
g. "Dispute" means any controversy or claim arising out of or relating to the conduct of the parties under, or the interpretation of
the terms, conditions or provisions of, the MSA.
h. "Effective Date" means, with respect to the MSA or any Quote, the first date that the MSA or Quote has been signed by both
Flexential and the Customer.
i. "Equipment Space" means the designated area within the Facility that Customer may access and use.
"Facility" means the Flexential data center(s) where the Customer Equipment is located, for Colocation Services, and where
the Flexential Equipment containing Customer Data is located, for Cloud Services.
"Flexential Equipment" means any equipment provided and operated by Flexential to provide the Services. Such
equipment may be located inside or outside the Equipment Space.
I. "Flexential Network" means that portion of the network Services beginning at the ingress port of Flexential Equipment used
to provide network Services, and ending at the egress port of Flexential Equipment used to provide network Services.
P.
"Managed Services" means those additional information technology and network/data transport Services set forth in a
Quote.
"MSA" means these Standard Terms and Conditions, together with the Cover Sheet to which these Standard Terms and
Conditions are attached or incorporated by reference, and all Quotes, exhibits and other documents incorporated by
reference into the MSA pursuant to the terms hereof.
"Quote" means an order, quote, change order, proposal, exhibit, statement of work or other document, executed by both
parties, that identifies Services to be provided by Flexential to Customer pursuant to this MSA. All Quotes executed by
Customer and Flexential pursuant to this MSA are incorporated herein by reference and shall collectively constitute Exhibit A
to this MSA.
"Regulated Customer Data" means any Customer Data that is personally identifiable information ("PIP"), protected health
information ("PHI") or otherwise subject to legal or regulatory requirements.
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CONFIDENTIAL
oZO - 53.8
2. Colocation Services. The following terms and conditions apply only to the extent that Customer receives Colocation Services.
Access and Use. Starting on the applicable Billing Start Date for the Services providing for use of the Equipment Space,
Flexential hereby grants the Customer a limited, revocable as provided in this MSA, license to install and operate, maintain
and access, as well as transmit and receive to and from, the Customer Equipment within the Equipment Space. At all times
during the applicable Service Term, Customer will be entitled to access and use the Equipment Space only for placement,
operation and maintenance of computer equipment, telecommunications or Internet access equipment. Flexential will have
the right to access the Equipment Space as reasonably required to provide the Service (including, without limitation, Service
installation and Facility maintenance). Customer will install and maintain the Customer Equipment in a reasonable and
professional manner that does not adversely impact the operations of Flexential or other Flexential customers. Flexential, in
its reasonable discretion, may require that Customer and any of Customer's agents be escorted when they are in the Facility,
and may suspend Customer's access as directed by government order (including without limitation law enforcement, court or
regulatory order) or emergency responders or, in Flexential's reasonable discretion, as may be required to prevent injury or
illness to persons or damage to property.
b. Installation and Operation. Flexential will not be responsible for the operation or maintenance of Customer Equipment
unless otherwise agreed in writing.
c. Condition of Equipment Space.Customer will maintain the Equipment Space in an orderly and safe condition. Failure to do
so within five (5) days after a written request from Flexential may result in Flexential cleaning the Equipment Space and
passing the reasonable cost on to Customer.
d. Access to Equipment Space; Access Devices. Customer will provide to Flexential a written authorization of those
employees, agents, or contractors of Customer who may physically access the Equipment Space. Any changes to the listing
must be provided to Flexential in writing or by use of the Customer Portal. Flexential retains the right to deny physical access
to the Equipment Space to any individual if Customer has not included such individual on the listing to be provided to
Flexential pursuant to this Section. Flexential shall also provide Customer with access cards, keys or other access devices
("Devices"( to permit Customer entry to the Facility and, unless Customer has elected to manage its own access devices for
the Equipment Space, the Equipment Space. In the event that unauthorized parties gain access to the Equipment Space
through Devices provided to Customer, Customer will be responsible for any damages incurred as a result of any such
unauthorized access that occurs prior to such time as Customer notifies Flexential in writing that the Device has been lost or
stolen. Customer will be responsible for the cost of replacing any Devices lost or stolen after delivery thereof to Customer.
Effect of Termination of Colocation Services. Upon termination or expiration of the MSA or all or a portion of the
Colocation Services for any reason (the "Facility Exit Date"(: (i) Customer shall promptly remove all Customer Equipment
from the Facility or, in case of partial termination or expiration, the applicable portion of the Equipment Space to be vacated,
and (ii) Flexential may remove all Flexential Equipment from the applicable Equipment Space and repair any damage to the
applicable Equipment Space. The Equipment Space to be vacated by Customer shall be in the same condition as when
Customer first occupied the space, normal wear and tear excepted. Customer shall reimburse Flexential promptly for the
reasonable cost of any repairs required to restore the vacated Equipment Space to its original condition (normal wear and
tear excepted). To the extent Customer does not remove Customer Equipment from the Facility or, in case of partial
termination or expiration, the applicable portion of the Equipment Space to be vacated, upon the Facility Exit Date, Customer
shall continue to be billed for all Services except that the rates for all Services will be equal to 150% of the previously effective
rates set forth in the applicable Quotes until such Customer Equipment is removed. If Customer does not work in good faith
with Flexential to coordinate the removal of Customer Equipment from the Facility or, in case of partial termination or
expiration, the applicable portion of the Equipment Space to be vacated, within ninety (90) days of the Facility Exit Date,
subject to any applicable laws, Flexential shall be entitled to remove all Customer Equipment (the "Abandoned Customer
Equipment") from the applicable Equipment Space to another location in the Facility and/or dispose of any such Abandoned
Customer Equipment as Flexential sees fit, including, without limitation, destruction of the property in question, all at
Customer's risk and expense. Flexential shall not be liable to Customer or any third party as a result of such disposal for any
reason or under any legal theory whatsoever. At Customer's written request, Flexential shall provide transition services to
another provider at the standard rates of Flexential, plus expenses, payable in advance; provided that any undisputed
invoiced amounts due to Flexential are first paid in full.
3. CLOUD, MANAGED AND OTHER SERVICES.
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Location. Unless otherwise set forth in the applicable Quote, the location of Flexential Equipment used to provide Cloud
Services or Managed Services is at Flexential's sole discretion. Unless otherwise agreed in writing in a Quote, all Services
performed by Flexential personnel are performed from the United States.
b. Remote Hands To the extent Customer has not contracted to receive remote hands Services (eyes, ears and hands to
provide feedback to Customer) on a Quote, Customer may request such Services via phone or via the Customer Portal and
Flexential will provide such Services. Unless otherwise set forth in a Quote, Customer will be billed the then -current non -
contracted hourly rate with a minimum of 1 hour per event; additional time used on the event will be billed in 15 minute
increments. Flexential offers fixed rates for remote hands Services, which may be contracted by Customer on a Quote.
c. Removal of Customer Data from Flexential Equipment Upon Termination. Upon termination or expiration of the MSA or
all or a portion of the Cloud or Managed Services for any reason, Customer shall promptly remove and delete all Customer
Data from applicable Flexential Equipment at Customer's sole risk and expense using Customer's preferred technology
solution. Customer may request Flexential to provide professional Services at Customer's expense to assist Customer with
such removal and deletion. To the extent Customer does not remove and delete all Customer Data from applicable Flexential
Equipment by the date of termination or expiration of the MSA for any reason (or upon cessation of all or a portion of Cloud or
Managed Services) (the "Abandoned Customer Data"), Flexential shall have no responsibility to Customer or any third
party with respect to such Abandoned Customer Data and shall be entitled to destroy such Abandoned Customer Data at
Customer's sole risk and expense. Flexential shall not be liable to Customer or any third party for the security or integrity of,
or as a result of such destruction of, Abandoned Customer Data, for any reason or under any legal theory whatsoever.
4. SCOPE OF SERVICES AND CONFLICT.
Services. Flexential will provide Customer the specific services set forth on a Quote (each, a "Service", and collectively, the
"Services"), on the terms and conditions set forth in the MSA. The parties may add or modify Services by executing a Quote,
which will become a part of the MSA on the Effective Date of the Quote. Services may be provided by employees or
independent contractors of Flexential or its affiliated entities, and Flexential shall be responsible to Customer for the
performance of all Services hereunder in accordance with the MSA.
b. Incorporation; Conflict. Except as otherwise explicitly provided herein or as otherwise agreed upon in writing (including in a
Quote, but only as to the specific Services on, or explicitly referenced in, such Quote), in the event of any conflict between
these Standard Terms and Conditions and the terms and conditions of any Quote or other exhibit or referenced document,
these Standard Terms and Conditions will control. The terms and conditions contained in any Customer -provided purchase
order or other similar ordering document from Customer are not binding on Flexential.
c. Alteration of Services. So long as Flexential does not materially and adversely impact the Services, Flexential may, in its
discretion, alter its provision of any Service to Customer to, for example and without limitation, install, modify or change: (a)
HVAC, power or networking equipment in, or third party providers used to operate and maintain, the Facility, or (b) Flexential
Equipment or software, other technology, or third party providers used to provide Cloud or Managed Services; Drovided, that
Flexential's ability to alter provision of any Service shall not in any way modify Flexential's obligations, or Customer's
remedies, pursuant to the SLAs; Drovided, further, that, in addition to any other rights Customer may have pursuant to Section
15, Customer may terminate the affected Service without penalty upon written notice to Flexential delivered via email to:
cancelCtflexential.com if Customer is entitled to receive credits pursuant to Section 15 as a result of two separate instances
of Flexential's failure to comply with an SLA caused by, and occurring within sixty (60) days after, the same Service alteration
pursuant to this Section 4(c). Such termination notice must be delivered, if at all, not later than 15 days after the second SLA
failure that gives ,rise to the termination right.
5. TERM AND RENEWAL.
Service Term. The "Service Term Start Date" for the Initial Service Term for all Services on a Quote means (i) the first day
of the calendar n}onth following the earliest "Billing Start Date" (as defined in Section 6) for any Service on the Quote, or (ii)
the earliest Billing Start Date for any Service on the Quote, if such Biting Start Date is the first day of a calendar month. The
"Service Term Start Date" for Renewal Service Terms shall be the first day of such Renewal Service Term established
either by the auto -renewal provision of Section 5(b) below or by the Quote executed by Flexential and Customer for such
Renewal Servie Term. The "Service Term" fora Service on a Quote begins on the Billing Start Date for that Service and
continues thereafter until the number of months set forth on the Quote or Cover Sheet for the initial Service Term has elapsed
since the Service Term Start Date (the "initial Service Term"), and includes any Renewal Service Terms, as defined below.
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If the Quote or Cover Sheet does not provide for the number of months in a Service Term or provides that the Service Term
for the Services on the Quote is "coterminous", then the Service Term for the Services on the Quote will be the same as the
Service Term for Customer's other existing Services as of the Effective Date of the Quote; provided, that if multiple different
Service Terms are then in existence, then the Service Term for the new Services will be the same as the Service Term for the
existing Services identified on the Quote or, if none is identified, the same as the Service Term for the existing Services most
closely related to the new Services.
b. Renewal. Upon the scheduled expiration of the Initial Service Term or any Renewal Service Term for any Service, the
Service Term shall automatically renew for successive one (1) year periods on the same terms and conditions (each, a
"Renewal Service Term"( unless either party informs the other party in writing of its intent not to renew such Service at least
ninety (90) days prior to the scheduled expiration of the then -current Service Term; provided that, with respect to Services
provided in Facilities that are leased and not owned by Flexential, no Service Term shall extend beyond the term of the
underlying lease in the applicable Facility (unless the parties agree to relocate the Service to another Flexential-operated
Facility); rovided, further, that notice of non -renewal from Customer to Flexential pursuant to this Section 5(b) must be
provided via email to: cancel@flexential.com. A Renewal Service Term may also be established at any time pursuant to a
Quote executed by Flexential and Customer, in which case the duration and other terms and conditions of such Renewal
Service Term shall be as set forth in such Quote and this MSA.
MSA Term. The term of the MSA (the "Term"( will commence on the Effective Date of the MSA and will continue until
termination of all Service Terms or, if earlier, termination by a party pursuant to the terms hereof.
6. PAYMENTS.
Billing Start Date. Unless otherwise set forth on the Quote with respect to Services on the Quote, Billing for Services will
begin as Services are Installed or on the forty-fifth (45th) day after the Effective Date of the applicable Quote, whichever is
earlier (the "Billing Start Date"(. "Installed" means the date a Service is first made available to Customer; provided, that if
Customer is not able to use the Service beginning on the date the Service is first made available to Customer solely as a
result of delays caused by Flexential, then the Billing Start Date shall be extended for each day of delay caused by Flexential.
In the event a portion of the Services have been Installed, Flexential will invoice Customer for such portions which have been
Installed and Customer will pay for such Services in accordance with this Section 6.
b. Online Ordering. Flexential may permit Customer to add or modify Services (including adjusting volume commitments) via
the Customer Portal or other website. In such event, clicking on "I accept" or other indicia of consent will be considered a valid
Quote for Services and the addition of such Services will be governed by the terms of the MSA. Additional terms and
conditions related to the use of online ordering or to the price, quantity, description and Service Term of the ordered Service
may be provided on the applicable website and/or in the Customer Portal.
c. Invoices. All recurring charges for Services will be invoiced by Flexential on a monthly basis, except for charges that are
dependent upon the level of usage, which will be billed a month in arrears. With respect to Services dependent on the level of
usage, overages will be billed at the standard rate(s) set forth in the applicable Quote. Invoicing for partial months will be
prorated based on a calendar month (and may be billed in arrears) and setup and other non -recurring charges will be
invoiced when incurred unless otherwise set forth on the applicable Quote.
d. Due Date. All undisputed invoices are due within thirty (30) days of invoice date. All payments for Services will be paid in US
dollars. Any undisputed payment not made when due will be subject to late charges of 1.5% per month (prorated on a daily
basis beginning on the past due date), or the highest rate allowed by law, whichever is less. Customer will be liable for any
reasonable attomeys' fees or other costs associated with collecting late payments. In the event Customer fails to pay
undisputed invoices when due two or more times, Flexential may require a security deposit in the amount of one month of
recurring fees and charges as a condition to providing continued Service.
Pass -Through Service Costs. If Flexential experiences an increase in rates and charges for Services provided by or
through a third -party, including but not limited to increases in the electrical rate applicable to the Services and third -party
software license, maintenance and support fees, Flexential may increase the applicable rates and charges to Customer in a
proportional amount upon thirty (30) days prior written notice. This Section 6(e) does not permit Flexential to increase
Service fees based on increases in Flexential's internal costs of Service delivery, such as compensation of Flexential
employees and expenses to acquire, maintain and operate Flexential Equipment and Facilities.
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f. Restricted Access. Flexential reserves the right to limit or restrict Customer's access to the Services, Facility and Customer
Equipment if past -due undisputed balances remain unpaid for more than ten (10) days after Flexential provides written notice
to Customer that such amounts are past due. Customer will be notified of any such restriction via e-mail.
g.
Taxes. Except for taxes based on Flexential's income, Customer will be responsible for payment of all sales, use, gross
receipts, excise, access, bypass, franchise or other local, state and federal taxes, fees, charges or surcharges, however
designated, imposed on or based upon the provision, sale or use of the Services provided hereunder.
h. Credits. Except as otherwise set forth herein, Flexential shall work with Customer in good faith to apply credits in the
timeframe(s) reasonably requested by Customer. Notwithstanding the foregoing, Flexential reserves the right to apply any
credits to undisputed past due invoices in its discretion.
i. Invoice Disagreements. Invoice disputes must be registered in writing to Flexential, via email to:
billingdisputesi%flexential.com or such other method as Flexential may reasonably determine and communicate in writing.
Customer waives the right to dispute any invoiced amount, including all rights to otherwise claim it does not owe such
disputed amount or to seek any set -offs or reimbursements or other amounts of any kind based upon or relating to such
disputed amount, unless: (i) Customer provides Flexential with written notice in accordance with this Section that it disputes
such amount, describing the nature of the dispute with sufficient detail to reasonably permit Flexential to investigate the
dispute, by no later than sixty (60) days after the invoice due date, and (ii) Customer pays any undisputed amounts on the
same invoice, by no later than sixty (60) days after the invoice due date. Any disputed amounts resolved in favor of Customer
shall be credited to Customer's account, and amounts payable to Flexential shall be paid, within ten (10) days of dispute
resolution.
7. ANNUAL ESCALATOR FOR COLOCATION SERVICES. The monthly recurring charges for all Colocation Services and Colocation-related
Managed Services will increase 5% on each successive anniversary of the applicable Service Term Start Date, if any, that occurs
during the applicable Service Term, and on the Service Term Start Date for any Renewal Service Term established pursuant to the
auto -renewal provision in Section 5(b).
8. TERMINATION AND REDUCTION IN SERVICES.
Termination for Breach. Either party may terminate the MSA without liability if the other party materially breaches any
representation, warranty or obligation in the MSA and the breaching party fails to cure the breach within thirty (30) days of
receipt of written notice from the non -breaching party describing the breach and citing the specific MSA provision(s) that have
been breached; provided, that notice from Customer to Flexential pursuant to this Section 8(a) must be provided via email to:
cancel@fexential.com; provided, further, that Customer may not terminate the MSA pursuant to this Section as a result of
Service -related issues that are subject to the sole and exclusive remedies provided in Section 15. There is no cure period for
any material breach which is not reasonably capable of cure and the non -breaching party may immediately terminate the
MSA upon written notice in accordance with this Section in the event of such a breach by the other party. Either party shall
have the right to immediately terminate the MSA without liability if the other party is the subject of an involuntary bankruptcy
filing that is not withdrawn or dismissed within sixty (60) days of filing or any voluntary bankruptcy filing, becomes insolvent, or
is liquidated. For clarification purposes, "insolvent" means a party's admission in writing of its inability to pay its debts as they
become due.
b. Further Assurances. If Flexential reasonably believes that Customer will not be able to perform its payment obligations
hereunder, and Customer is unable to provide reasonable written assurances of due performance within ten (10) days after
written demand from Flexential, Flexential may suspend Services until such reasonable written assurances are provided, or
terminate the MSA without penalty to Flexential by written notice to Customer.
c. Service Modifications. Customer may request in writing a modification of the Services provided the total fees for Services
provided remain the same or increase. Upon receipt of such notice, the parties will work together in good faith to discuss the
modifications and a reasonable implementation timetable. Any modifications are subject to the availability of Flexential
resources and comparability of applicable product margins. By way of example and not limitation, if Customer receives
Service X for $1,000 per month, Customer may request that it instead receive Service Y and Z totaling $1,000 per month. Any
requests by Customer for modifications that reduce total fees for Services shall be governed by Section 8(d) below.
d. Termination for Convenience. Customer may terminate any Service or portion thereof for its convenience prior to the end of
the applicable Service Tens, provided that Customer gives Flexential at least ninety (90) days prior written notice of such
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termination via email to: cancel@flexential.com, and pays Flexential an early termination fee in an amount equal to: (i) 100%
of the remaining monthly recurring charges for each terminated Service or portion thereof for months one through 12 of the
then -effective Service Term; plus (ii) 90% of the remaining monthly recurring charges for each terminated Service or portion
thereof for months 13 through 24 of the then -effective Service Term, if any; plus (iii) 80% of the remaining monthly recurring
charges for each terminated Service or portion thereof for months 25 through the end of the then -effective Service Term, if
any; plus (iv) any installation or other fees identified on the Quote for the terminated Service or portion thereof as having been
previously waived; plus (v) the unamortized portion of any applicable commissions paid by Flexential to any broker, agent or
other authorized representative of Customer; plus (vi) all reasonable costs and expenses incurred by Flexential as a result of
collecting such early termination fee. Such amount will be billed to Customer in one lump sum. The parties agree that in the
event Customer terminates the MSA or a particular Service or portion thereof for its convenience, actual damages would be
difficult to determine and that these liquidated damages area reasonable and fair estimate of the damages which may be
caused by such early termination and are not a penalty. Customer shall not be liable for the early termination fee if Customer
terminates this MSA pursuant to Section 8(a) or any other Section that permits termination by Customer "without liability".
Customer shall be liable for the early termination fee if Flexential terminates this MSA pursuant to Sections 8(a) or 8(b).
9. UTILIZATION OF FLEXENTIAL NETWORK; CONTENT OF TRANSMISSIONS. At Customers request, Flexential shall use commercially
reasonable efforts to assign Internet Protocol ("IP") address space specified on a Quote for Customer during a Service Term and
to route those IP addresses on Flexential's network. Customer shall have no right to route such IP addresses outside of the
Flexential Network and Flexential Facilities. Flexential shall retain ownership of all such IP addresses at all times, and Customer's
access to such IP addresses shall cease immediately upon termination of the MSA or the applicable Service. In the event that
Customer Equipment poses a threat to Flexential's ability to provide service to other customers (e.g., malfunctioning or overheating
equipment, spam or DDoS attack on Customer's IP address, etc.), Flexential may immediately disconnect all or a portion of the
Service or, in the case of DDos attacks that impact infrastructure services for other Flexential customers despite Flexential's
automated scrubbing service, blackhole the affected IP address, with prompt notice to Customer by email and phone. Flexential
reserves the right to re-route IP data packets to any and all Internet carriers connected to the Flexential Network based upon
current load and service issues at the time of re-routing. The removal of IP data packets and the re-routing to another Internet
carrier shall not be calculated in the service level commitments set forth in Exhibit C. Customer is solely responsible for the content
of any transmissions utilizing the Services. The use of another organization's network or computing resources is subject to its
respective permission and usage policies. Customer further agrees not to use the Services for illegal purposes, or to interfere with
or disrupt other network users, other Flexential customers, network services or network equipment.
10. HAZARDS OR INTERFERENCE. If Customer or any Customer Equipment creates a hazard or interferes with Flexential's operation
and/or maintenance of the Facility or with any other Flexential customer's use thereof, and Flexential notifies Customer of the
hazard or interference by email or phone, then Customer must promptly: (a) remove the hazard or cease the interference, (b)
provide a plan to remove the hazard or cease the interference that is reasonably acceptable to Flexential, or (c) authorize
Flexential to take such action as Flexential agrees it can reasonably take to remove the hazard or cease the interference (billed at
applicable rates).
11. SECURITY.
Flexential Responsibilities. Flexential shall take commercially reasonable measures to provide the security safeguards
listed as a Flexential responsibility with respect to the specific Services on the R&R Matrix attached as Exhibit B to this MSA
(the "R&R Matrix"). Other than with respect to such responsibilities identified as a Flexential responsibility on the R&R
matrix, Customer acknowledges and agrees that Flexential is not responsible for the integrity or security of any Customer
Data. Although Flexential may offer various security -related Services, Flexential agrees to perform only the specific security
Services set forth in the Quote and as may be described in more detail in the R&R Matrix. Flexential agrees to notify
Customer promptly upon becoming aware of any unauthorized access to the Customer Equipment in the Facility, or any
unauthorized access to, or unauthorized disclosure of, the Customer Data hosted on Flexential Equipment.
b. Customer Data. As between Flexential and Customer, Customer Data is, and at all times will remain, the exclusive property
of Customer.
c. Customer Responsibilities. Customer shall use commercially reasonable security precautions in connection with the use of
the Services (including encrypting Regulated Customer Data) and shall require its end users and customers to use
commercially reasonable security precautions. It is Customer's responsibility to ensure logical security protection and backup
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and recovery ofCustomer Data, except to the extent Flexential has specifically agreed to provide such Services in a Quote
and as may be described in more detail in the R&R Matrix. Customer agrees to notify Flexential promptly upon becoming
aware of any unauthorized access to the Customer Equipment in the Facility or any unauthorized access to, or unauthorized
disclosure of, the Customer Data hosted on Flexential Equipment. Customer shall cooperate with Flexential in any
investigation of the use or possible use of the Customer's Equipment, the Facilities or the Services for any illegal purpose.
Customer must pply and, with respect to Services managed by Flexential, hereby consents to Flexential's application of, all
security patches or updates to Customer's software, firmware or operating system in order to mitigate the possibility of system
compromise. Uppatched systems that cause a security risk to other Flexential customers or the Flexential Network may be
shut down or blbcked in Flexential's sole discretion.
12. CUSTOMER PORTAL. Flexential will provide Customer with an account and password to access the Customer Portal. The "Customer
Portal" is the online portal designated by Flexential with respect to a particular Service through which Flexential customers may,
among other things, create service tickets and review reports and other information related to the Service. Customer is responsible
for all activities that occur under Customer's account on the Customer Portal.
13. EQUIPMENT AND SOFTWARE.
Rights To. Customer represents, warrants and covenants that it owns or has the legal right and authority, and will continue to
own or secure the legal right and authority, during the Term, to use Customer Equipment (if any) collocated in the Facility and
any software provided by Customer in connection with use of the Services.
b. Software Terms. With respect to any third -party software provided by Flexential for Customer's use in connection with the
Services, including, without limitation, any Microsoft, Anti -Virus, Double -Take, Red Hat or NetApp software (collectively
"Software") Customer represents, warrants and covenants that it will abide by the Additional Software Terms located on the
"Legal Information" page on Flexential's website (the "Additional Software Terms"). The Additional Software Terms are
hereby incorporated into the MSA. In the event of any conflict between these Standard Terms and Conditions and the
Additional Software Terms, the Additional Software Terms will control, but only with respect to the Software. Flexential will
provide Customer with prior notice (e-mail acceptable) of any material modifications to the Additional Software Terms.
14. ACCEPTABLE USE POLICY AND DATA CENTER RULES. Customer shall, and shall cause any of its customers, contractors,
subcontractors or invitees permitted by Customer to enter the Facility or directly use the Services to, comply with: (a) Flexential's
Acceptable Use Policy posted on Flexential's website and attached hereto as Exhibit D, as it may be updated from time to time by
Flexential in its discretion in compliance with this Section (the "AUP"), and (b) Flexential's Data Center Rules posted at the Facility
and attached hereto as Exhibit E, as it may be updated from time to time by Flexential in its discretion in compliance with this
Section (the "Data Center Rules"). The AUP and the Data Center Rules are incorporated by reference into the MSA. Flexential
will provide Customer with at least 30 days prior written notice (e-mail acceptable) of any substantive modifications to the AUP or
the Data Center Rules. If Customer (a) notifies Flexential in writing within fifteen (15) days of written notice of any modification to
the AUP and/or Data Center Rules that Customer does not approve of such modification and (b) can reasonably demonstrate an
adverse impact to its Llse of the Services resulting from such modification, then Flexential and Customer will use commercially
reasonable efforts to agree upon a resolution or workaround of the issue during the thirty (30) day period following delivery of such
notice by Customer. If Flexential and Customer cannot agree upon a resolution or workaround of the issue within such thirty (30)
day period, then Customer shall have the right to terminate this MSA upon thirty (30) days written notice without liability delivered
no later than thirty (30) days after expiration of the thirty (30) day dispute resolution period. Notwithstanding the foregoing,
Customer shall have no right to terminate this MSA pursuant to this Section in the event that the modification to the AUP and/or
Data Center Rules is required in order for Flexential to comply with applicable law; provided, however, that Flexential shall provide
to Customer, upon Customer's request, a copy of, or legal citation for, such law.
15. SERVICE LEVEL AGREEMENTS.
Credits. In the a ent Flexential fails to meet the service level criteria outlined in Exhibit C — Service Level Agreement (the
"SLA"), Customer will be entitled to receive the "Service Credits" (as defined below) set forth on Exhibit C. For purposes of
the SLA, each " ervice Credit" will equal 1/30t of the monthly recurring charges associated with the related Service to
which the SLA a plies. The total amount of credits for SLA failures affecting a Service during any month may not exceed the
amount of one m nth's recurring charges for the affected Service. Credits must be requested by Customer in a support
ticket/case withinl ten (10) business days of a service interruption and will be reflected as a credit on the next month's invoice,
provided that Flexential reserves the right to apply any credits to undisputed past due invoices in its discretion. No credits will
be issued, nor shall the Satisfaction Guarantee provided for in Section 15(b) apply, to Customer if (i) Customer has an
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undisputed balance more than sixty (60) days past due or (ii) Customer is in breach or default under this MSA at the time of
the event giving rise to credits. In the event that Customer is eligible to receive multiple credits under this Section 15 from the
same event pursuant to different commitments, such credits shall not be cumulative and Customer shall be eligible to receive
only the maximum credit available for such event under the service level commitment corresponding to the root service
failure.
b. Satisfaction Guarantee. In the event of noncompliance with an SLA that disrupts Customer's operations, if Flexential does
not cure the issue causing noncompliance or provide documentation to Customer demonstrating that the Service was in
compliance with the applicable SLA within 10 days after receiving written notice from Customer in a support ticket/case
identifying the SLA noncompliance and stating that its operations are disrupted by the noncompliance (an "SLA Disruption
Notice"), then Customer may terminate the affected Service without penalty upon written termination notice to Flexential
delivered via email to: cancel(a)flexential.com within 15 days following the end of Flexential's 10 -day cure period. In addition,
if Customer provides an SLA Disruption Notice to Flexential four or more times over any consecutive 12 -month period for the
same root cause resulting in noncompliance of the same SLA (which notice is not countered by documentation demonstrating
that the Service was in compliance with the applicable SLA), then Customer may terminate the affected Service without
penalty upon written notice to Flexential delivered via email to: canceliStflexential.com within 15 days following delivery of the
fourth such SLA Disruption Notice. Any Service termination by Customer pursuant to this Section 15(b) will be effective upon
the earlier of (i) the effective date stated in Customer's termination notice delivered to Flexential, or (ii) the last day of the
third calendar month after the calendar month in which the termination notice is delivered to Flexential by Customer.
Sole and Exclusive Remedy. The remedies provided under Sections 4(c), 15(a) and 15(b) are Customer's sole and
exclusive remedy for any equipment and/or software failures, service interruptions, service response issues, and/or service
deficiencies of any kind and, each of Customer and Flexential hereby acknowledge and agree that, Customer shall not have
any other claims, rights or remedies and Flexential shall have no other liabilities or obligations to Customer in connection
therewith.
16. SUSPENSION of SERVICES. Flexential reserves the right to suspend all Services in the event: (a) Flexential has the right to terminate
the MSA pursuant to Section 8(a) as a result of undisputed invoices being past due; or (b) Flexential reasonably believes: (i)
Customer is in violation of the MSA, provided, however, that Flexential will make reasonable efforts under the circumstances to
provide Customer an opportunity to cure such breach; (ii) Customer is in violation of any applicable law; (iii) it is required to
suspend Services under applicable law; or (iv) continuing to provide the Services would result in significant damage to Flexential,
the Flexential Network or other Flexential customers. Flexential will have no liability for any damages (including any SLA
violations) that Customer may incur as a result of any suspension of Services pursuant to this Section.
17. INSURANCE.
Customer Obligations. Customer shall maintain, at all times during the term of this MSA, such liability insurance, by
commercial policy or self-insurance, the following minimum insurance coverage during the Term, with respect to any claims
made policies, continuing until (1) year after the end of the Term: (i) Workers' Compensation in an amount not less than that
prescribed by statutory limits; (ii) Employer's Liability with limits of not less than $1,000,000 per occurrence; (iii) Commercial
General Liability Insurance in an amount not less than $1,000,000 per occurrence and $1,500,000 in the annual aggregate; (iv)
Auto Liability with a combined single limit of not less than $1,000,000 per occurrence or, if Customer does not provide
automobiles to its personnel, Customer must require each of its personnel driving to the Flexential Facility to maintain personal
auto liability insurance in an amount not less than $100,000; (v) "All Risk" Property insurance covering all of Customer's
Equipment colocated in any Facility in an amount not less than its full replacement cost, as well as business interruption
coverage; and (vi) Cyber Breach Liability Insurance in an amount not less than $1,000,000. No term or condition of this
Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits,
protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter
amended.
b. Flexential Obligations. Flexential shall procure and maintain, at Flexential's sole cost and expense, the following minimum
insurance coverage during the Term and, with respect to any claims -made policies, continuing until one (1) year after the end
of the Term: (i) Workers' Compensation in an amount not less than that prescribed by statutory limits; (ii) Employer's Liability
with limits of not less than $1,000,000 per occurrence; (iii) Commercial General Liability Insurance in an amount not less than
$1,000,000 per occurrence and $2,000,000 in the annual aggregate; (iv) Auto Liability with a combined single limit of not less
than $1,000,000 per occurrence; (iv) "All Risk" Property Insurance in an amount equal to the full replacement cost of any
Last updated December 2020 Page 8 of 28 CONFIDENTIAL
Flexential Equipment used to provide the Services and (v) Professional Liability (Errors and Omissions) Insurance Policy,
including Cyber Breach Liability, in an amount not less than $1,000,000. All Flexential policies of insurance with the
exception of Workers Compensation and Employer's Liability shall be secondary and in excess of Customer's liability
insurance required to be maintained hereunder and non-contributory with Customer's policies.
c. General Obligations. Each party shall: (i) provide the other party upon request with evidence of compliance with this Section
17, and (ii) notify the other party in writing at least thirty (30) days in advance of cancellation or reduction in required
coverage. None of the foregoing requirements in this Section 17 as to the type and limits of insurance to be maintained by
either party are intended to and shall not in any manner limit or qualify the liabilities and obligations for which such party is
responsible under any other section of the MSA or by law. All insurance shall be with reputable insurers having an AM Best
rating of A- or better and may be under an umbrella, blanket or similar policy. No coverage required to be maintained by
either party pursuant to this Section 17 may have a Self -Insured Retention (SIR) in an amount greater than $500,000.
18. NOTICES. Notices hereunder will be given in writing: (a) in person, (b) via express courier (e.g. FedEx), (c) via U.S Postal Service,
return receipt requested, or (d) via e-mail; provided, that any notice by Customer to Flexential to terminate, cancel, or avoid auto -
renewal of the MSA or any Service must be provided via email to: cancel@flexential.com. Notices delivered in person or via
express courier will be deemed properly given when delivered. Notices delivered via the U.S. Postal Service will be deemed
properly given three (3) business days after being deposited with the U.S. Postal Service, return receipt requested. Notices
delivered via e-mail will be deemed properly given when sent. Unless otherwise provided herein, notices will be delivered to the
addresses most recently provided by a party for notice purposes, until such time as either party informs the other of a change in
accordance with this Section.
19. CASUALTY OR EMINENT DOMAIN. Solely with respect to Colocation Services, in the event of a taking by eminent domain or damage
by fire or other casualty to the Facility, Flexential will notify Customer in writing. In the event the taking or casualty event materially
negatively impacts the provision of Colocation Services, either party may terminate the affected Services without penalty upon
thirty (30) days prior written notice.
20. SERVICE AGREEMENT. The parties acknowledge and agree that this MSA is a service agreement and is not intended to, and will not
constitute, a lease, sublease or easement. With respect to Colocation Services, Customer is hereby granted only a revocable
license to occupy the Equipment Space and Customer has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulations or ordinances. Except as set forth in Section 26 ("Assignment or Transfer"), Customer further
agrees that none of the MSA or any interest created herein may be assigned, subleased, mortgaged, encumbered, or otherwise
transferred by any act or omission on the part of Customer, directly or indirectly, to any third party.
21. INDEMNITY.
Flexential Indemnification Obligations. Flexential shall indemnify and defend Customer, Customer's affiliated entities and
its and their employees, officers, contractors and agents (collectively, "Customer Indemnified Parties"( from and against
any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and
expenses (including, without limitation, reasonable attomeys' fees) (collectively, "Claims.) to the extent such Claims arise
out of (i) tangible personal property damage to Customer's Equipment located in the Facility resulting from Flexential's
negligence or willful misconduct up to the full replacement cost of the damaged equipment, (ii) actual personal injury damage
resulting from Flexential's negligence or willful misconduct, in each case up to the limits covered by Flexential's applicable
insurance policies, provided, however that indemnification relating to personal injury shall not apply to any claims made by
employees of Customer or any Customer Indemnified Party that are covered under applicable workers' compensation law, or
(iii) any third party Claims that the Services infringe any third party intellectual property rights recognized in the United States
of America. In addition, if any portion of the Service becomes, or in Flexential's opinion is likely to become, the subject of a
claim of infringement of any third party intellectual property rights recognized in the United States of America, then Flexential,
at its option and expense, may do one of the following: (I) procure for Customer the right to continue using such portion of the
Service, (II) replace or modify such portion of the Service so that it becomes non -infringing, or (III) terminate the MSA and
refund Customer] a pro -rated portion of any pre -paid and unused Service fees. The obligation of Flexential set forth in the
preceding sentence does not apply (x) with respect to portions or components of the Service that are not supplied directly by
Flexential, that are made or modified in whole or in part in accordance with Customer's specifications, that are modified by
Customer to the extent the alleged infringement relates to such modification, or that are combined with other products,
processes or materials other than by Flexential to the extent the infringement relates to such combination; or (y) where
Customer's use tf the Service is not strictly in accordance with the terms of this MSA including any applicable Additional
Software Terms.; Notwithstanding anything to the contrary set forth elsewhere in the MSA, Customer's sole and exclusive
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remedies against Flexential and the Flexential Indemnified Parties for intellectual property infringement are as set forth in this
paragraph.
b. Customer Indemnification Obligations. To the extent permitted by applicable law, Customer shall indemnify and defend
Flexential, Flexential's affiliated entities and its and their employees, officers, contractors and agents (collectively, "Flexential
Indemnified Parties") from and against any and all Claims to the extent such Claims arise out of (i) any breach of this MSA
(including, without limitation, the AUP and the Data Center Rules), any use of the Service, or any negligence or willful
misconduct, by Customer, any Customer Indemnified Party or any of its or their invitees, assignees or customers, or (ii) any
third party Claims arising from the removal, storage and/or disposal by Flexential of Abandoned Customer Equipment
pursuant to Section 2(e) of the MSA or destruction by Flexential of Abandoned Customer Data pursuant to Section 3(c) of the
MSA.
c. Indemnification Procedures. The indemnified party will: (i) promptly notify the indemnifying party in writing of any losses for
which the indemnified party seeks indemnification, provided, however, that failure to give such notice will not relieve the
indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice
by such failure); (ii) cooperate with the indemnifying party in the defense; and (iii) permit the indemnifying party full control
over the defense and settlement of any matter subject to indemnification; provided that the indemnifying party will not enter
into any settlement that affects the indemnified party's right or interests without the indemnified party's prior written consent
which will not be unreasonably withheld, conditioned or delayed. The indemnified party will have the right to participate in the
defense at its expense.
22. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Flexential. Flexential represents and warrants as follows: (i) it has full power and authority to enter into this MSA, and (ii) the
execution of the MSA does not violate any agreement to which Flexential is a party. Flexential shall comply with all applicable
federal, state and local laws in the performance of the Services.
b. Customer. Customer represents and warrants as follows: (i) it has full power and authority to enter into this MSA, and (ii) the
execution of the MSA does not violate any agreement to which Customer is a party. Customer shall comply with all
applicable federal, state and local laws in using the Services, including, without limitation, applicable laws related to the
storage, transmission and use of Customer Data, information and content. To the extent Customer receives Colocation
Services, Customer also agrees with Flexential that: (x) Customer shall not make any material alterations to the Equipment
Space without first obtaining the written consent of Flexential; and (y) Customer shall not allow personnel or contractors to
enter the Equipment Space who have not been approved by Flexential in advance.
23. DISCLAIMERS. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES, INCLUDING THE EQUIPMENT SPACE, ARE
DELIVERED BY FLEXENTIAL AND ACCEPTED BY CUSTOMER "AS IS" AND "AS AVAILABLE" AND FLEXENTIAL DOES NOT
MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, WARRANTIES THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR
TRADE PRACTICE. CUSTOMER ACKNOWLEDGES THAT THERE ARE INHERENT RISKS IN INTERNET CONNECTIVITY
THAT COULD RESULT IN THE LOSS OF CUSTOMER PRIVACY AND PROPERTY, INCLUDING CONFIDENTIAL
INFORMATION. FLEXENTIAL ASSUMES NO UABILITY FOR ANY DAMAGE, THEFT OR LOSS TO CUSTOMER'S PROPERTY
(INCLUDING, WITHOUT LIMITATION, CUSTOMER EQUIPMENT AND CUSTOMER DATA) RESULTING FROM THE ACTS OR
OMISSIONS OF ANY THIRD PARTY OTHER THAN FLEXENTIAL'S CONTRACTORS, INCLUDING, WITHOUT LIMITATION,
ANY UNAUTHORIZED PHYSICAL OR NON-PHYSICAL ACCESS (SUCH AS HACKING), EXCEPT TO THE EXTENT SUCH
DAMAGE, THEFT OR LOSS RESULTS FROM FLEXENTIAL'S FAILURE TO PROVIDE THE SECURITY SAFEGUARDS WITH
RESPECT TO THE APPLICABLE SERVICES LISTED AS FLEXENTIAL'S RESPONSIBILITY ON THE R&R MATRIX.
FLEXENTIAL EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY WAIVES ANY CLAIM AGAINST FLEXENTIAL WITH
RESPECT TO, ANY LIABILITY FOR LOSS OF CUSTOMER DATA OR DAMAGE TO CUSTOMER EQUIPMENT WHERE
CUSTOMER HAS REQUESTED THAT FLEXENTIAL PACK, SHIP, RECEIVE AND/OR STORE SUCH CUSTOMER EQUIPMENT
OR WHERE CUSTOMER HAS FAILED TO REMOVE SUCH CUSTOMER DATA FOLLOWING THE END OF A SERVICE TERM.
24. LIMITATION ON LIAelurv. THE ENTIRE CUMULATIVE LIABILITY OF FLEXENTIAL AND THE FLEXENTIAL INDEMNIFIED
PARTIES OF WHATEVER NATURE ARISING OUT OF THE MSA AND THE FURNISHING OF, OR THE FAILURE TO FURNISH,
THE SERVICES DESCRIBED IN THE MSA, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS,
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DELAYS, TORTIOUS CONDUCT, NEGLIGENCE, REPRESENTATIONS, ERRORS, OR OTHER DEFECTS, WHETHER
CAUSED BY ACTS OF COMMISSION OR OMISSION, WILL BE LIMITED TO AN AMOUNT EQUAL TO $1.0 MILLION.
NOTWITHSTANDING ANY OTHER PROVISION HEREOF, FLEXENTIAL AND THE FLEXENTIAL INDEMNIFIED PARTIES
SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, CUSTOMER DATA OR USE, WHETHER OR NOT
CAUSED BY THE ACTS OR OMISSIONS OR NEGLIGENCE OF FLEXENTIAL OR ANY OF THE FLEXENTIAL INDEMNIFIED
PARTIES, AND REGARDLESS OF WHETHER FLEXENTIAL OR CUSTOMER HAS BEEN INFORMED OF THE POSSIBILITY
OR LIKELIHOOD OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION FORMS AN ESSENTIAL
BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THAT THIS LIMITATION ON LIABILITY SURVIVES ANY REMEDY'S
FAILURE OF ESSENTIAL PURPOSE.
25. PROPRIETARY RIGHTS. The MSA will not be construed to grant to Customer any ownership right, title or interest in any intellectual
property rights embodied in or associated with the Services, other than to the limited extent that any licenses are included in the
Services as specified on any Quote, or the Additional Software Terms. All intellectual property rights, title and interest in the
methodology, technology and know-how that Flexential uses to provide the Services will remain exclusively with Flexential and its
licensors, as applicable.
26. ASSIGNMENT OR TRANSFER. Neither party may assign the MSA in whole or in part without the prior written consent of the other party,
which consent will not be unreasonably conditioned, delayed or withheld. Notwithstanding the foregoing, both parties may assign
their respective rights and obligations under the MSA: (a) to any individual, corporation or other business entity which acquires all
or substantially all of its shares or assets, and upon such assignment, the assigning party will be released of all its obligations
under the MSA arising from and after the date of such assignment, provided that any such assignee entity delivers to the other
party a signed writing evidencing its agreement to be bound by the terms and conditions of the MSA, or (b) by operation of law. In
addition, Flexential may assign the MSA to an affiliate or division so long as Flexential exercises management control over or owns
a controlling interest in or is under common control with such affiliate or division. In the event of any such transfer and/or
assignment (in whole or in part) to any such affiliate, Flexential may continue to collect and receive all or any portion of the
amounts payable hereunder by the Customer as agent for and on behalf of such affiliate-transferee/assignee and notify the
Customer thereof in writing. Subject to the foregoing, the MSA will bind and inure to the benefit of the parties and their respective
permitted successors and assigns only. Customer may permit its affiliated entities to use the Services, provided that (i) Customer
shall inform such affiliated entities of the terms and conditions of this MSA, and (ii) Customer shall be directly responsible and liable
to Flexential for any breach of this MSA resulting from such use of the Services by Customer's affiliated entities. Customer shall
not resell any of the Services provided by Flexential to an unaffiliated third party without first obtaining the written consent of
Flexential.
27. ENTIRE UNDERSTANDING. The MSA, together with any exhibits hereto and all referenced documents (including all Quotes executed
pursuant to this MSA including any Professional Services Agreement(s) attached thereto, the Additional Software Terms, AUP,
R&R Matrix and Data Center Rules), constitutes the entire understanding of the parties related to the subject matter hereof and
expressly supersedes all prior or contemporaneous oral or written agreements, including any prior non -disclosure or confidentiality
agreements, or other communications between the parties with respect to the subject matter hereof.
28. GOVERNING LAW AND VENUE. The parties will attempt in good faith to resolve any Dispute within thirty (30) days of notice of a
Dispute through discussions between themselves at the operational level. The MSA will be governed and construed in accordance
with the laws of the state of Colorado without regard to any conflict of laws provisions. Should a dispute arise under or in relation to
the MSA, jurisdiction over and venue of any such suit shall be exclusively in the state and federal courts of Denver, Colorado. The
parties hereby waive any jurisdictional venue or inconvenient forum objections to such courts. EACH PARTY WAIVES ITS RIGHT
TO A JURY TRIAL FOR ANY ACTION ARISING OUT OF THIS MSA, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, AND
ALL OTHER CLAIMS.
29. CONFIDENTIALITY.
Confidential Information. The parties acknowledge that each party (the "Disclosing Party") may disclose to the other party
(the "Recipient"), in connection with the MSA, confidential information relating to the Disclosing Party's business, including
without limitation, information regarding the Disclosing Party's products, services or offerings; audit and security reports; the
Disclosing Party's business strategies, policies or practices; information received from others that Disclosing Party is
obligated to treat as confidential; the terms of the MSA and the rates charged for the Service; and, in the case of Flexential,
data center designs and pricing information (collectively, "Confidential Information"). Except as otherwise set forth herein,
each party agrees to protect and maintain the secrecy of the Disclosing Party's Confidential Information disclosed to
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Recipient by, among other things: (i) treating such information with at least the same standard of care and protection which
such party accords its own confidential and proprietary information but in any event with no less than a reasonable degree of
care; (ii) using care in the assignment of personnel who receive or have access to such information, and instructing and
obtaining the prior written agreement of such personnel to take all reasonable precautions to prevent unauthorized use or
disclosure thereof; and (iii) not using, disclosing or exploiting such information except as necessary to perform any Services
or obligations hereunder or as otherwise pm -authorized by the Disclosing Party in writing. The obligations of confidentiality of
each party under this Section shall survive for two years from the termination of the MSA or, if longer with respect to any
particular item of Confidential Information, for so long as such item of Confidential Information meets the definition of a "trade
secret" under applicable law. Flexential may share the MSA as well as information relating to the Services received by
Customer and the fees paid by Customer (but not any Customer Data) to Flexential alliance partner(s) who are associated
with Customer's account to allow the partner(s) to verify commissions payable by Flexential, provided such partner(s) are
bound to a confidentiality provision substantially similar to paragraph (a) of this Section.
b. Exceptions. Confidential Information does not include any information that the Recipient can demonstrate: (i) was in the
public domain at the time it was received; (ii) enters the public domain through no fault of the Recipient; (iii) is independently
developed by Recipient without use of or reference to the Disclosing Party's Confidential Information; or (iv) was provided to
Recipient by a third party not subject to an obligation of confidentiality to Disclosing Party with respect to the Disclosing
Party's Confidential Information. Notwithstanding Section 29(a) above, Recipient may disclose the Disclosing Party's
Confidential Information as required by a legal, judicial or governmental entity, or as otherwise required by law or regulation
(including disclosures required in filings with the Securities and Exchange Commission or other governmental body and via
subpoena, search warrant or other similar demand for production of information or materials).
c. Breach. Each party acknowledges that all of the Disclosing Party's Confidential Information is owned solely by the Disclosing
Party (or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable
harm and significant injury to the Disclosing Party, the degree of which would be difficult to ascertain. Accordingly, each party
agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach or alleged breach of
this Section, wherever it deems appropriate, as well as the right to pursue any and all other rights and remedies available at
law or in equity in the event of such a breach or alleged breach.
30. COMPLIANCE.
Business Associate Agreement. Customer agrees to notify Flexential before using the Services to create, receive, transmit,
use or disclose "Protected Health Information" as defined in regulations established in accordance with the Health Insurance
Portability and Accountability Act ("HIPAA"(, including by maintaining any Protected Health Information on Customer
Equipment colocated in the Facility, or on Flexential Equipment, so that the parties can prepare and enter into a mutually
agreeable Business Associate Agreement ("BAA") based on Flexential's form BAA. If the parties are unable to execute a
BAA within a reasonable period of time, either party may terminate the MSA without liability upon thirty (30) days prior written
notice.
b. Data Protection Addendum. Customer agrees to notify Flexential before using the Services in a manner that may involve
the processing by Flexential of any personal data subject to Regulation (EU) 2016/679 of the European Parliament and of the
Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC ("GDPR"), including without limitation before disclosing any such
personal data to Flexential, or storing any such personal data on Customer Equipment colocated in the Facility or on
Flexential Equipment. As mutually agreed following such notification by Customer, the parties shall cooperate in good faith to
prepare and enter into a mutually agreeable Data Protection Addendum ("DPA") based on Flexential's form DPA. If the
parties are unable to execute a DPA within a reasonable period of time, either party may terminate without penalty the
applicable Services that involve Flexential's processing of personal data subject to GDPR, upon thirty (30) days prior written
notice.
c. California Consumer Privacy Act. If and to the extent the California Consumer Privacy Act of 2018, as amended ("CCPA"),
applies to the provision and use of the Services, Flexential hereby agrees as follows: (i) Flexential is a Service Provider to
Customer with respect to Personal Information, and Flexential shall not: (x) Sell Personal Information or (y) retain, use, or
disclose any Personal Information for any purpose other than for the specific purpose of providing the Services specified in
the MSA, including retaining, using, or disclosing Personal Information for a Commercial Purpose; for the avoidance of doubt,
this clause (i) prohibits Flexential from retaining, using or disclosing Personal Information outside of the direct business
relationship between Flexential and Customer; (ii) Flexential hereby certifies that it understands the obligations under clause
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(i) and will comply with them; and (iii) Flexential shall promptly take such actions and provide such information as Customer
may reasonably request to help Customer fulfill requests of individuals to exercise their rights under the CCPA, including,
without limitation, requests to access, delete, opt out of the sale of, or receive information about Personal Information
pertaining to them. Flexential shall inform Customer of Flexential's receipt of any requests under clause (iii) of the preceding
sentence, and Flexential may inform individuals making such requests that the requests should be directed to Customer.
Customer and Flexential acknowledge and agree that Flexential's access to Personal Information is not part of the
consideration exchanged by the parties in respect of the MSA. For the purposes of this Section 30(c), the terms "Commercial
Purpose," "Sell,' and "Service Provider," shall have the meanings given in the CCPA, and the term "Personal Information"
means any information that Flexential has at any time, whether before or after the date hereof, collected, accessed, received,
used, disclosed, or otherwise processed on behalf of Customer in relation to Flexential's provision of Services to Customer
under the MSA and that constitutes "personal information" under the CCPA.
d. PCI DSS. Flexential acknowledges it will maintain all applicable published PCI DSS requirements to the extent Flexential
handles, has access to, or otherwise stores, processes, or transmits cardholder data or sensitive authentication data, or
manages Customer's cardholder data environment on behalf of Customer.
Responsibility. Customer acknowledges and agrees that Flexential is neither responsible for knowing what type of
information may be created, stored, used or managed by Customer in connection with the Services nor for knowing or
investigating which laws may or may not apply to such information. If any international, state or federal law requires any
specific agreement about such information, it is Customer's responsibility to notify Flexential and, in such event, the parties
will work together in good faith to modify the MSA as may be required.
f. Risk Assessment. Customer acknowledges and agrees that it: (i) has conducted an assessment of the potential risks and
vulnerabilities to the confidentiality, integrity and availability of Customer information to be created, transmitted, stored, used
or maintained in connection with the Services; (ii) has determined that the Services are sufficient for Customer's purposes
and Customer's,.compliance with applicable law; and (iii) Flexential is not responsible for determining whether any Services
are sufficient for, Customer's compliance with any applicable law.
31. MISCELLANEOUS.
Counterparts. The MSA and any Quote may be executed simultaneously in two or more counterparts, each of which will be
deemed an original, but all of which together will constitute one instrument. In the event any signature is delivered by
facsimile or by electronic signature, such signature will create a valid and binding obligation on the executing party with the
same force and effect as if such facsimile or electronic signature were an original thereof.
b. Tariffs. Customer understands that Internet use, and related products and services provided under the MSA, may require
registration and related administrative reports which are public in nature. Flexential may elect or be required to file with the
appropriate regulatory agency tariffs respecting the delivery of certain services by Flexential to Customer. In the event that
such tariffs are filed respecting services ordered by Customer, then the terms set forth in the applicable tariff will govern
Flexential's delivery of, and Customer's consumption or use of, such services.
c. Publicity. Neither party will use the other party's name, trademarks or logos without the prior written consent of the other
party unless otherwise required by applicable law; provided, however, Flexential may include Customer's name and logo in a
list of customers in its marketing materials, including on the Flexential website.
d. Severability. If any provision of the MSA is found by a court of competent jurisdiction to be invalid or unenforceable, such
provision will be severed and will be inoperable, and, provided that the fundamental terms and conditions of the MSA remain
legal and enforceable, such finding will not affect the validity or enforceability of the MSA as a whole or of any other provision
of the MSA.
Modifications. Except to the extent specifically set forth herein: (i) the MSA may not be modified except by a writing signed
by an authorized signatory of each party, and (ii) no waiver, modification or amendment of the MSA will be effective unless
made in a writing signed by the party to be bound.
f. Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or
subsequent breach or default.
Last updated December 2020
Page 13 of 28 CONFIDENTIAL
g•
Independent Contractors. Nothing in the MSA or in the course of dealing between Flexential and Customer pursuant hereto
will be deemed to create between Flexential and Customer (including their respective directors, officers, employees and
agents) a partnership, joint venture, association, employment relationship or any other relationship other than that of
independent contractors with respect to each other.
h. No Brokers. Customer covenants and represents that it has negotiated the MSA directly with Flexential, and has not
authorized any broker, salesperson or finder to act for it in the negotiation and execution of the MSA. Customer agrees to
indemnify and hold harmless Flexential from any and all claims by any such broker, salesperson or finder for a commission or
finder's fee as a result of Customer having entered into the MSA.
i. Third Party Beneficiaries. Except as otherwise explicitly agreed, there will be no third party beneficiaries to the MSA.
j•
Force Majeure. Notwithstanding Section 15, Flexential will not be liable for any failure of performance or equipment due to
causes beyond its reasonable control, including but not limited to: acts of God, fire, flood or other catastrophes; any law,
order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national
emergencies, insurrections, riots, terrorist attack or wars.
k. Non -Solicitation. Unless otherwise approved in writing, during the Term and for one (1) year thereafter, Customer will not
hire any person who is or was an employee of Flexential during the Term, provided, however, that this provision will not apply
to general advertising solicitations or similar efforts not targeted towards current or former Flexential employees.
I. Survival. All provisions which by their nature are intended to survive, will survive the expiration or termination of the MSA.
Last updated December 2020
Page 14 of 28 CONFIDENTIAL
In Witness Whereof and Intending to be Bound Hereby, the parties have caused this agreement to be executed by
their duly authorized representatives as of the Effective Date:
Flexential LLC SOC - Weld County
Do.Signed by:
Signature: Cr;new, u Signature:
n2Bn3A7cn3Fago
Name:
Brian LaComb
Title: RVP
Date: 11/4/2022
Name:
Title:
Date:
Steve Moreno
Acting Chair Pro-Tem, Board of
Weld County Commissioners
DEC 0 7 222
ATTEST: W...terlf4/0 v•Jel't`-'
Weld Co,. Clerk to the board
Exhibit B
Security and Compliance Roles & Responsibilities Matrix
Legend:
1. F = Flexential's responsibility
2. C = Customer's responsibility
3. C* = Responsibility dependent on whether the applicable Service has been purchased ("F" if purchased; "C" if not purchased)
4. "Colocation Services" as used in this Exhibit includes colocation space and power, and associated network and Managed Services purchased by
Customer.
5. "Cloud Services" as used in this Exhibit includes the applicable Cloud Service environment (Multi -tenant Cloud, Hosted Private (Single -tenant)
Cloud, DRaaS/Recovery Cloud Services, Backup as a Service (Baas) and/or Object Storage), and associated network and Managed Services
purchased by Customer. The responsibilities for Dedicated Servers are set forth under "Additional Managed Services" in the table below.
Security
and
La
e
Compliance
s
I
..
!
•
De
criptio
olocatio
S - _.
ices
::
IF
Cloud
Services
-
-
-
ea'v
Audits & Information Security
Program
Flexential
Assessments
Certifications
Compliance
and
Obtain
27001,
covering
hypervisor
described
Copies
and
PCI-DSS,
U.S.
level,
in
of the
maintain
Facility
each
most
HITRUST,
and,
during the
FISMA,
operations
as applicable,
case in such
recent Flexential
Term
and
assessment
ITAR,
the
Cloud
Flexential
Audits
following
SOC-1,
Service
reports
are
SOC-2
infrastructure
corporate
and
available
assessments
and
and certifications:
SOC-3 or successor
up to
(i.e. non -Service)
certifications ("Flexential
to Customer on
and
the
standards,
including
environments,
Customer
Audits").
ISO
the
as
Portal.
F
I
F
Other Compliance
Assessments
Certifications
and
Obtain and
respect to
Audits, including
servers, applications,
maintain,
the
to the
Customer information
any dedicated/private
data,
extent desired
environment
infrastructure
personnel and operational
by Customer, assessments
not covered
and Customer's
practices.
in the
and
scope
private
certifications
of
the
network,
Flexential
with
C
C
Flexential
Program
Checks
Information Security
and Background
Implement
the
Audits
pre -hire
look
driver
state/jurisdiction
repository
Services
and
-back
record,
background
and
and
Flexential's
period
education
record
maintain
corporate
of
screen
at least
(non -sex
and
Information
environments
contractual
from
seven
verification,
offender)
county criminal
responsibilities
a third
(7)
record,
Security
-party
years,
excluded
record.
during
to
Social
Program
the
vendor
include:
parties
Term
including
Security
governing
in
this
for all
arrest
list, federal
Number
compliance
Flexential
record,
Flexential's
Matrix.
criminal
Obtain
employees
sex offender
trace,
with
record,
state
operation
the
Flexential
and
with
registry,
multi-
criminal
review
a
of
a
F
F
Customer information
Security Program
Implement and maintain Information Security Program governing Customer operations as
desired by the Customer.
C
C
Flexential
Management
Infrastructure
Flexential Facility
Environmental
- Physical &
Environmental
Facility with redundant power and communications to reduce risk of system damage and
destruction, including emergency shut-off, emergency power, emergency lighting, fire
protection, water damage protection, and temperature/humidity controls.
F
F
Video
Video surveillance
of entry and exit points to white floor and operations monitoring.
F
F
Video Retention
Video logs stored 90 days.
F
F
Access
Limit access to raised floor through role -based access, isolated phases, and validation
procedures through identification, detection and alerting.
F
F
Access reports
Visitor and authorized Facility access logs, monthly review of activity reports.
F
F
Customer
Cabinet
Colocation Cage,
or Suite - Physical
Video
Video surveillance and operations monitoring of Customer Equipment Space.
C*
n/a
Video Retention
Video logs stored 90 days (only available if Video Service is purchased).
C*
n/a
Access
Limit access to scoped environment through role -based access, isolated phases, locked cages
cabinets, validation procedures and customer -authorized list through identification, detection
alerting.
and
and
C
n/a
Access Control Device
Electronic
access control device on scoped environment.
C*
n/a
Access reports
Customer Equipment Space access logs (only
available if Access Control Device is purchased).
C*
n/a
Last updated December 2020
Page 15 of 28
CONFIDENTIAL
curity
and
Layers
Compt'
4
Delivery
Description
Colocation
Services
Cloud
Service
•
Flexential Cloud Services
Infrastructure
Physical Security - Video
Video
Equipment
surveillance and operations monitoring of entry and exit to cage or
used to provide Cloud Services (the "Cloud Node") is located
cabinet where Flexential
(excluding Amsterdam).
n/a
F
Physical Security - Video
Retention
Video logs stored 90 days.
n/a
F
Physical Security — Cage Access
Limit physical access to Cloud Node through role -based access, isolated phases, locked cages and
cabinets, validation procedures and authorized list through identification, detection and alerting.
n/a
F
Physical Security - Authorization
reports
Authorized access logs, monthly review of activity reports.
n/a
F
Physical Security - Access
Control Device
Electronic access control device on Cloud Node.
n/a
F
Cloud Services Infrastructure
Firewall
Redundant firewalls with IDPS deployed in the Cloud Services infrastructure with respect to all
connections outside the Flexential Network to provide proper segmentation and isolation, built to
industry hardening standards in conjunction with authorized traffic requirements and build
approval. Firewall resource monitoring and integrity changes with alerting, and log collection,
retention and reporting.
n/a
F
Compute Environment
Physical hardware platform designed with a segmented network controlled and managed by
&uthorized staff. Compute resource monitoring and integrity changes with alerting, and log
collection, retention and reporting.
n/a
F
Vulnerability Management
Continuous infrastructure device hardening, vulnerability and configuration management, including
installation of recommended security patches and updates.
n/a
F
Storage Environment
Storage environment utilizing a segmented network controlled
Encryption -at -rest is enabled on multi -tenant Cloud Service
and Object Storage) storage arrays.'
and managed by authorized staff.
(including Recovery Cloud, DRaaS, BaaS
n/a
F
Logical Access Control
Unique logical
Infrastructure
(system) 2 -factor authentication access control to Flexential Cloud Services
based on Flexential role -based requirements, IP restriction and business need.
n/a
F
Scanning, pen testing
Quarterly internal network vulnerability scanning and annual network external and internal
penetration testing, up to and including the Hypervisor level.
n/a
i
F
Additional
Managed Services
Managed Firewall
Service
Applicable
only to the extent Customer purchases Managed Firewall
Service
Virtual Firewall
Virtual firewall restricting network access to Customer's cloud environment.
n/a
F
Physical Firewall
Physical firewall restricting network access to Customer's hardware including VLAN configuration.
F
n/a
Networking Access
Enforcement of authorized access controls.
F
F
Firewall — Vulnerability
Management
Vulnerability and configuration management, including installation of recommended security
updates.
F
F
IDPS/IDS — Advanced Firewall
Service only
As directed by Customer, either: (i) IDPS including detection, protection, and alerting or (ii)
detection and alerting only (no protection).
IDS
C"
C*
2 factor/ VPN
SSL and IPSEC with soft tokens.
C3(
C*
Managed
(OS)
Services
and
Operating System
Managed Database
Applicable only to the extent Customer purchases Managed OS Service and, if applicable,
Managed Database Service
Setup, patching and
maintenance
P-ovision, patch, and maintain the OS and, if Managed Database Service is purchased, the
server.
Database
n/a
F
Anti-malware
Irstallation and maintenance of anti-malware client at the OS level with updates as released.
n/a
F
Logical access control
Enforce authorized access controls by Flexential personnel through Flexential managed directory
services.
n/a
F
File
Management
Integrity/ Configuration
Configuration management and enforcement of key OS files and directories.
n/a
Cx
Dedicated
Servers
Applicable only
Service
to the extent Customer purchases Dedicated
Servers with Managed OS
Physical Security - Video
Video surveillance and operations monitoring of entry and exit to cage or cabinet where Dedicated
Servers are located.
n/a
F
Physical Security - Video
Retention
Video logs stored 90 days.
n/a
F
Note: Encryption -at -rest is not enabled for renewals of previously installed Capacity Storage legacy Service.
Last updated December 2020 Page 16 of 28
CONFIDENTIAL
and
Layers
Compliance
Delivery
Description
Colocation
Services
Pirecurity
Cloud
Services
Physical Security — Cage Access
Limit physical access to cage or cabinet through role -based access, isolated phases, locked cages
and cabinets, validation procedures and authorized list through identification, detection and
alerting.
n/a
F
I
Physical Security - Authorization
reports
Authorized access logs, monthly review of activity reports.
n/a
F
Physical Security - Access
Control Device
Electronic access control device on cage or cabinet.
n/a
F
Setup, patching and
maintenance
Provision, patch, and maintain the Operating System.
n/a
F
Anti-malware
Installation and maintenance of anti-malware client with updates as released.
n/a
F
Logical access control
Enforce authorized access controls by Flexential personnel through Flexential managed directory
services.
n/a
F
File Integrity/ Configuration
Management
Configuration management and enforcement of key O/S files and directories.
n/a
C*
Other
Managed Services
Applicable
only
to the
extent Customer purchases the applicable
Managed Service
Log Management Service
Log collection, retention, reporting and alerting.
C=
C*
Vulnerability Scanning
Quarterly internal and external network vulnerability scanning.
C*
C*
IDPS/IDS
As directed by Customer, either:
detection and alerting only (no
(i) IDPS including detection, protection, and alerting or (ii)
protection).
IDS
C*
C*
Encryption as a Service
Provisioning, setup and infrastructure maintenance for encryption service.
Cs
C*
Encryption as a Service
Determination of which Customer Data to encrypt, and encryption key management custodian
responsibilities.
C
C
(ADaaS)
Active Directory as a Service
Provisioning, setup and infrastructure maintenance for ADaaS service.
C*
C*
Active Directory as a Service
(ADaaS)
Management and configuration of active directory instance.
C
C
Flexential Professional
Services
Applicable
only to the extent Customer purchases
the
applicable
Professional
Service
Penetration Testing
Network external and internal penetration testing of Customer environments as specified in
applicable SOW.
L.
C*
Migration Services
Migration of Customer virtual servers and data as specified in applicable SOW.
C"
C*
Disaster Recovery Design,
Planning and Testing Services
Disaster Recovery consulting, planning, documentation, and testing as specified in applicable SOW.
Cs
C
Security and Compliance
Assessment Services
Assessment of Customer environment security controls and compliance status as specified in
applicable SOW.
L"
CM
Managed DevOps Services
24x7 Full
Stack
management of DevOps environments as specified in applicable
SOW.
C"
C*
Security Remediation
Remediation
applicable
of technical
SOW.
vulnerabilities and implementation of security controls as specified in
Cs
C*
Security Forensics & Incident
Response
Acquisition of forensic evidence and investigation of compromise as specified in applicable SOW.
C=
C5
Last updated December 2020
Page 17 of 28 CONFIDENTIAL
Exhibit C
Service Level Agreement
The Service Level Agreement ("SLA") does not cover Service unavailability caused either directly or indirectly by:
1) Acts or omissions of Customer or its employees, contractors. agents or end -users, including software or hardware
configuration changes not made or approved by Flexential;
2) Regular scheduled or emergency system maintenance;
3) Failure, malfunction or limitation of throughput of any equipment, network, software, applications; systems, components or
services not managed by Flexential, including but not limited to third party vendor support; or
4) Circumstances or causes beyond the control of Flexential, including third -party attacks (such as ping or denial of service
attacks) on the Flexential Network.
Co -location Services
Service Level
Non-compliance Applicable Service Credits
Power will be available to Customer computer infrastructure in the
Flexential data center 100% of the time provided Customer
subscribes to redundant power circuits. Customer is responsible for
proper connectivitylIand cabling of circuits to support redundancy
within the Customer Equipment Space. This SLA does not cover
outages caused, either directly or indirectly, by overloaded power
strips or circuits. The availability of power through only one power
circuit where such pourer is supplied through a primary and
redundant circuit does not entitle Customer to a credit under this
SLA.
Any failure of both primary
and redundant circuits
One Service Credit for each
day in which there is non-
compliance during any month
Data Center Network Services
Service Level
Non-compliance
Applicable
Service
Credits
< 99.9% (43 minutes
per
Network
availability.
Network
unavailability
shall
exist
when
a
month)
for Customers
particular
such
subscribing
Customer
Customer
to
redundant
Port
Port
across
is unable
network
the
Flexential
connections,
to
transmit
Network.
data
downtime
packets
For
Customers
during
from
the
subscribing
redundant
connection
to
a
network
single,
non -
One
day
compliance
Service
in which
during
Credit
there
any
for each
is non -
month
process
from this
of
SLA.
routine
failcver
to
the redundant
resource is excluded
<
subscribing
100%
network
for Customers
to redundant
connections
Network
cross -con ec: availability.
Customer's
network
cross-
< 99.9% (43 minutes
per
connects
begin at t
e initial
piece of
Flexential
Equipment
or third
month)
for Customers
party carrier equipment,
as applicable,
to which
the
applicable
circuit
subscribing
to
a single,
non -
connects,
and
end
at
the
demarcation
point
installed
in Customer's
redundant
network
cross -
cabinet
and/or
cag
Network
cross -connect
unavailability
exists
connect
One Service Credit
for
each
.
when
due
to a
failu
of
Customer's
network
cross-connect(s),
a
day
in which
there
is non -
particular
Custome
Port
is unable
to transmit
data
from the
compliance
during
any month
Flexential
Network
9r.
third
party
carrier connection(s),
as applicable.
< 100%
for Customers
For Customers
sub
cribing
to
redundant
network
cross -connects;
subscribing
to
redundant
downtime
during
the
process of
routine
failover
to
the redundant
network
cross -connects
resource is excluded
from
this SLA.
Last updated December 2020
Page 18 of 28
CONFIDENTIAL
Packet
loss
between
any
two
points
on
the
Flexential
Network
.
>1%
One
day
compliance
Service
in which
during
Credit
there
any
for each
is non-
month
Round-trip
Flexential
Network
Latency
between
any
two points
in
the
U.S.
on
the
>90 ms
One
day
Service
in which
during
Credit
there
any
for each
is non-
compliance
month
Cloud Services
Service Level
Non-compliance Applicable Service Credits
Cloud Service availability. Availability for Cloud Service is access to
compute, network and storage resources, provided Customer
subscribes to and configures redundant resources. Unavailability of
the Cloud Service is measured when a running virtual machine
stops functioning due to cloud infrastructure failure below the
applicable commitment level, or, with respect to the network
component of Cloud Services. when a particular Customer Port is
unable to transmit data packets from such Customer Port across the
Flexential Network. Failure of Customer to maintain compliance
with Flexential sizing recommendations may render this SLA void.
Downtime during the process of routine failover to the redundant
resource is excluded from this SLA.
< 99.999% (26 seconds per
month)
One Service Credit for each
day in which there is non-
compliance during any month
Flexential DRaas/Recovery Cloud — Recovery time. Recovery time
is defined as the duration of time from customer service request to
instantiation (power -on ready) of the disaster recovery virtual
machine instance, not including instance boot time and boot priority
controlled by Customer. The instance must be in a valid virtual
protection group and in a Protected state as reported by Flexential
Portal. This SLA is not valid with respect to any particular disaster
recovery event unless a successful failover test was completed
within the preceding 12 months or, if a material change in the
Customer's protected environment occurred at any point during the
preceding 12 months, after the most recent such material change.
Standard DRaaS/Essentials*
> 8 hours
RTO 4 -hour Package/Prime*
> 4 hours
RTO 2 -hour
Package/Premium* > 2
hours
One Service Credit for each
day in which there is non-
compliance during any month
* RTO 4 -hour and RTO 2 -hour Packages are additional Services that can be purchased as separate line
items on a Quote, and "Essentials", "Prime" and "Premium" refer to Service names. If no RTO 4 -hour or 2 -
hour hour Package has been purchased for Flexential DRaaS, the time commitment for `Standard DRaaS"
shall apply.
Data Protection Services
Service
Level
Non-compliance
Applicable
Service Credits
Backup
jobs
will
start
within
4
hours of
scheduled
start
time slot*
>3
failures
in a month
One
fourth
failure
Service
and
during
each
Credit
successive
any
month
for the
Restores
initiated
within
30 minutes
of receiving the
request
Any
failure
One
day
compliance
Service
in which
during
Credit
there
any
for each
is non-
month
Restores
or
of
off
-site
data
initiated
within
30 minutes
of
receipt
of
tape
Any failure
One
day
compliance
Service
in which
during
Credit
there
any
for each
is non -
month
media
*Reporting on job start performance will be by Customer request. Flexential is not responsible for jobs failing to start due to
previous job still running where Customer server/configuration is the cause of the job completion delay.
Last updated December 2020
Page 19 of 28
CONFIDENTIAL
Incident Response Time
Service Level
Flexential shall Respond to any request for incident resolution from
an authorized Customer representative with respect to any Service
within 1 hour of creation of the applicable ticket for a "high priority"
incident, and within 2 hours of creation of the applicable ticket for
any non -high priory incident. A "high priority" incident means that
the Service is una ailable or has been materially impacted.
`Respond" means that a ticket has been created/submitted and the
ncident has been assigned to the Flexential representatives
responsible for resolving the incident.
Non-compliance Applicable Service Credits
Any failure to Respond
within the required
timeframe
One Service Credit for each
failure
Last updated December 2020
Page 20 of 28 CONFIDENTIAL
Exhibit D
AUP
Acceptable Use Policy
Flexential Corp , formerly known as Peak 10, Inc , and its affiliated entities ("Flexential") has published this
acceptable use policy ("AUP") in an effort to provide reliable, high -quality service to our clients By using
Flexential's services or network, you agree to the latest version of this AUP We may modify this policy at any
time by posting a revised version on the Flexential website
Illegal, Harmful, or Offensive Conduct
You may not use Flexential's services or network for illegal purposes or to take actions that are infringing,
offensive, fraudulent or harmful to the Flexential network or others Examples of prohibited activities include
any use of the Flexential services or network
in violation of any applicable local, state, or federal law or regulation,
in a manner that infringes or may infringe upon any copyrights, trademarks, patents, trade secrets, or
other types of intellectual property,
to transmit offensive or threatening materials, including materials that are obscene, pornographic,
defamatory, libelous, abusive, hateful, excessively violent, or otherwise inappropriate,
to export software to points outside the United States in violation of applicable export control laws,
to transmit fraudulent, deceptive, or misleading materials or to advance any type of financial scam,
to transmit any materials that harass another person orrentity,
to transmit viruses, Trojan horses, or other materials or components harmful to any network or
equipment or other users or third parties, or
in a manner that exposes or may expose Flexential, its clients, partners, or vendors, or any other person
or entity using the Flexential network to abuse, complaints, retaliation, connectivity issues, or other
negative impact
Network, Application and System Security
You may not use Flexential's services or network to violate, monitor or interfere with, or to attempt to violate,
monitor or interfere with, the security or reliability of any network, service, data, or other system without proper
authorization Examples of prohibited activities include any attempt to
access any network, service, data, or other system that you are not authorized to access,
probe, scan, or test the vulnerability of any network, service, or system without proper authorization,
breach any security or authentication measures,
monitor data or traffic on any network or system without proper authorization or in a manner that
disrupts or impairs the network or system,
Last updated December 2020 Page 21 of 28 CONFIDENTIAL
interfere with service to any user, host, or network, including, without limitation, by means of
overloading, mailbombing, flooding, crushing, or any denial of service attacks,
forge any TC�/IP packet header or any part of the header information in an e-mail message or a
newsgroup p sting,
attempt any action designed to circumvent or alter any method of measuring or billing for services, or
use the account name of another person without proper authorization
Flexential reserves the right to investigate any actual or suspected security violation or incident In the event of
an actual or suspected security violation or incident, Flexential may take any actions that Flexential deems
reasonably necessary to prevent harm to Flexential and/or Flexential clients, including the network, systems and
data of Flexential an /or Flexential clients Such actions may include, but are not limited to, the following
removing, dis bling access to, or suspending Services,
® disconnecting a host from the network and preparing for investigative services,
® reporting to appropriate law enforcement officials, regulators, or other appropriate third parties any
activity that F exential believes may violate any applicable law or regulation, and
® cooperating
prosecution
ith law enforcement agencies and regulators to assist with any investigation and/or
In order to maintain etwork, application and system reliability and security for you and other Flexential clients,
you must use commei cially reasonable efforts to keep your network, applications and systems secure and
current by applying, or consenting to Flexential applying, if applicable, the most recent patches, updates and
upgrades as they are ade available by the applicable providers, and appropriately configuring your firewalls
and other component of your network, application and system security
If Flexential notifies ou in writing, including by sending an email or notification through Flexential's ticketing
system to any of the persons identified by you as administrators with respect to your Services, of particular
patches, updates, upg ades or configuration settings that Flexential identifies as "critical", then you must apply
those critical patches, updates, upgrades or configurations, or consent to Flexential applying those critical
patches, updates, upgrades or configurations, as applicable, within thirty calendar days of the notification If you
fail to timely comply With your obligations in the previous sentence, then (1) you shall reimburse Flexential, at
Flexential's standard ates, for all labor, administrative time, or other activity of Flexential's personnel
expended in an effort o cure, mitigate or otherwise resolve any problems attributable to such failure and, (2)
Flexential shall not b obligated to provide any credits to you with respect to any failure by Flexential to meet
its service level coin itments that is attributable to such failure
You are prohibited fr m taking any action, intentional or unintentional with respect to the Services, which will
negatively impact the lexential business operations, the operations of our clients including shared
infrastructure , such a cloud or network services, as a whole
You are responsible f
access or any person
Abuse Violations
Last updated December 2020
r the use of the Services by any of your employees, any person to whom you have given
ho gains access to your data
Page 22 of 28 CONFIDENTIAL
No spam You may not use Flexential's services or network to transmit any unsolicited commercial or
unsolicited bulk e-mail messages (commonly known as "spam") In addition, you may not use the services or
network of another provider to send spam or to promote a site hosted on or associated with Flexential's services
or network
Newsgroups and Online Forums All postings to newsgroups and online forums must comply with the written
charters, rules, or FAQs for that group You are responsible for determining the policies of a newsgroup or
online forum before posting to it In addition, you may not attempt to flood or disrupt the newsgroups
Web Pages As part of the services, Flexential may provide web hosting services You are solely responsible for
any content that you publish or display on your web pages or web site, including ensuring that the content
complies with the terms of this AUP
Content Flexential is not responsible for any material created, stored, distributed or accessible on or through the
services Flexential is not obligated to monitor or exercise any editorial control over such material, but reserves
the right to do so Flexential reserves the right to block access to such material and suspend or terminate
services in the event Flexential determines, in its sole discretion, that any materials may expose Flexential to
civil or criminal liability To the extent you use cloud -related services, all Microsoft® licenses must be provided
by Flexential unless specifically approved by Flexential In all events, you will provide Flexential with a count
of all Microsoft licenses used by you in connection with the services
Attacks
If you are using Flexential network services and
• you are the subject of a network attack, such as a DDoS attack, that is large enough to affect network
traffic, or
• your server and/or application is compromised,
Flexential has the right, immediately and without prior notice, to terminate routing, block ports and IP address
space, and/or suspend services in order to protect the integrity of the Flexential network and preserve the
services provided to other users
IP Addressing
Flexenttal endeavors to utilize its ARIN (American Registry of Internet Numbers) IP space allocations as
efficiently as possible, as IP address space is a finite resource that is shrinking quickly and going up in cost
ARIN requires Flexential to justify current and future allocations when additional IP space is requested for
customer and or Flexential network use, which requires that 80% of all past allocations are in legitimate use and
that the use of said space is within ARIN's allocation guidelines Therefore your IP space assignments are
required to meet the same ARIN guidelines, which can be found at www arm net In the event you violate the
ARIN guidelines or -this AUP with respect to IP Addressing, Flexential may revoke your IP addresses without
liability to you
You may not advertise your Flexential-assigned IP space, or use it outside of the Flexential ASN (13649) or
outside of Flexential owned facilities without prior express written approval from Flexential This includes
utiliztng Flexential IP space and 3rd party services such as DDOS or DNS
Last updated December 2020
Page 23 of 28 CONFIDENTIAL
You have no right to
addresses at all times
Agreement for servic
oute IP addresses assigned by Flexential Flexential shall retain ownership of all such IP
and your access to such IP addresses shall cease immediately upon termination of your
s with Flexential
Flexential assigns IP space based off individual customer datacenter assignment/installation IP blocks may not
be transportable between datacenters below a /24 If you desire to move an IP block with /24 or larger IP
assignments to a difffrent datacenter, you must request approval for the move, and Flexential shall have no
liability to you if Fle,iential is unable to accommodate such request
INetU Terms of Use and Acceptable Use Policy
If you are using services pursuant to an agreement with INetU, Inc ("INetU") then
(1) This AUP supersedes, replaces, amends and restates in its entirety the Schedule B Terms of Service
and Acceptable Use olicy of INetU applicable to you through your agreement with INetU, effective as of the
date this AUP is first ublished online and provided to you in writing,
(2) you must rovide INetU with accurate information to help INetU determine if any tax is due with
respect to the provisi n of the services,
(3) you are responsible for keeping your billing and other account information with INetU up to date,
and
(4) you must �ay when due the fees for the services stated in your agreement with INetU and any
additional services or er(s) or other agreements between you and INetU
Consequences
If Flexential determm s that you have violated any of the terms of this AUP, Flexential has the right to (i)
demand immediate re oval of the violating material and/or (ii) restrict, suspend or terminate all or a portion of
your services Flexen al may involve and will cooperate with law enforcement authorities In addition, if you
violate this AUP, you may be subject to civil or criminal liability Flexential shall not be liable for any damages
suffered by any user r third party resulting directly or indirectly from any actions taken by Flexential pursuant
to this AUP All dete mations by Flexential as to whether abuse or violations of the AUP have occurred shall
be conclusive and bin ing
Violation Reporting
Violations or potentia violations of this AUP may be reported to Flexential at abuse@Flexential com
Last updated December 2020
Page 24 of 28 CONFIDENTIAL
Data Center Rules
Welcome to Flexential
IFLEXENTIAL I
These rules and procedures are designed to provide for the safety of the individuals visiting and working at our
facilities, to protect the confidentiality of our customers, and to support the safe operation of our facilities. All
individuals accessing a Flexential facility must strictly comply with these rules. Any individual found to be in
violation of these rules while in the Flexential facility will have their access rights immediately terminated.
General Rules
• Access badges must be worn and clearly visible at all times in all areas of the facility.
• Customers and v ndors are responsible for requiring their employees, agents, vendors and contractors to
comply with these Data Center rules.
• No one under 16 years of age may enter the raised floor.
• Drinking, eating, or smoking is not allowed except in designated areas, and is never allowed on the raised
floor.
• Weapons, explosives, hazardous materials, electro-magnetic devices which could interfere with computer and
telecommunications equipment, radioactive materials, mace, alcohol, or illegal drugs are never allowed in
the facility
• Doors may not be left partially open or blocked under any circumstances.
• No photographing or filming any areas in the data center or the entrances to the facility without Flexential's
consent (see "Data Center Security" section below for rules governing security cameras in the customer
space)
• Customer -owned or operated wireless access points are not permitted in Flexential facilities without consent.
• Combustible materia s, such as paper or cardboard, may not be stored in customer space/equipment space.
• Customer space must be kept clean of debris and spare equipment at all times.
• No boxes or equipment may be stored in the facility unless arrangements for storage have been approved by
Flexential.
• Customers must maintain their space in compliance with all applicable legal requirements (including OSHA).
• Customers are not allowed to remove floor or ceiling tiles and are not allowed to access under the floor tiles or
above the ceiling t les.
• Customer must in tall equipment in accordance with hot and cold aisle arrangement as directed by Flexential.
Flexential reserved the right immediately to disconnect power to any Customer equipment installed contrary to
the prescribed hot and cold aisle arrangement.
Access Proc
dures
• Each individual with data center access must pass through access control systems and use his or her own
access badge to enter the data center, even when entering as a group. No tailgating is allowed.
• Access badges may not be transferred or loaned to other individuals, including other employees,
subcontractors
or vendors.
• Access badges are linked to a central monitoring system that identifies individuals and records access
activities
• Each customer must identify the individuals (employees or third -party vendors) who are authorized to access
colocation facilities on their behalf through the customer's Customer Portal account by customer -designated
User Administrators.
Number: CSU.UPD.002
FLEXENTIAL UNCLASSIFIED PUBLIC
Last Revised: November 2020 Page 1 of 3
FLEXENTIAL 1
Data Center Rules
• Customer representatives without a permanently issued access badge may exchange a valid government -
issued photo ID (or approved substitute) for a temporary badge (day pass) if their contact record
designates them as authorized for Day Pass or Permanent Badge distribution or a customer's designated
UserAdministrator has approved, in writing, the specific visit.
• Vendor permanent access badges must be approved by Flexential data center operations.
• Vendor representatives without a permanent access badge may exchange a valid government -issued photo ID (or
approved substitute) for a temporarybadge if Flexential data center operations approves the specific visit.
• Each properly badged customer or vendor representative is allowed up to three (3) visitors to accompany
him/her into the facility for the purpose of installation or support assistance only. The customer or vendor
representative must check -in and obtain the necessary temporary badges for their guests. Each customer or
vendor has full responsibility for their guests and must accompany them at all times.
• Flexential, in its sole discretion, may require that Customer and any Customeragents be escorted in the
Flexential data center, and may suspend Customer's access as directed or required in an
emergency situation.
• Notify Flexential immediately if an access badge is lost or stolen.
Data Center Security
• Closed-circuittelevision security cameras monitorentrances and are strategically located throughoutthe facilities.
• Customer -provided video monitoring must exclusively capture customer space. Camera placement is
subject to Flexential review and approval. Customer must provide camera screenshots to Flexential
upon request.
• Customer spaces are secured individually; it is each customer's responsibility to ensure that their space is locked after
use
• Lost or stolen keys and access cards are subject to replacement fees at then -current rates.
Equipment Delivery & Storage
• Customers must provide Flexential with advance notice of all equipment deliveries.
• All shipping charges must be pre -paid by the customer.
• If any equipment is delivered for a customer by a third party, Flexential will receive the equipment on behalf
of the customer provided that the customer has pre -scheduled the delivery with Flexential. The customer
must arrange for shipping crate or pallet removal.
The following information must be included with all equipment delivered to the facility. Failure to follow
these instructions may result in delays locating stored packages: Flexential ticket number; customer's
name and/or customer billing ID, if possible; and number of pieces shipped.
Upon receipt of any equipment delivered by a third party on a customer's behalf, Flexential will notify the
customer of receipt and store the equipment
• Customers must claim their equipment within 7 calendar days of notification of receipt by Flexential or storage
charges will be charged to the customer at the then -current rates.
• All equipment left in storage for more than 30 calendar days may be shipped back to the customer at the
customer's expense.
• Flexential is not responsible for loss or damage to customer equipment stored in the common areas of a
Flexential facility or in transit or packaged and shipped by Flexential at Customer's request.
• Flexential cannot guarantee storage space availability and will provide this service on a "reasonable efforts" basis.
• Flexential package acceptance services do not include verifying the contents of a box or boxes.
Number: CSU.UPD.002
FLEXENTIAL UNCLASSIFIED PUBLIC
Last Revised: November 2020 Page 2 of 3
I FLEXENTIALData Center Rules
Power
• All individual power whips/power under the floor must be installed and maintained by Flexential.
• All equipment installed in the facility must meet the standards of Underwriters Laboratories (UL) listing or a
similarly recognized governing board.
• No soldering or open flames are allowed.
• Customer's primary/redundant, or A/B circuit pair total power utilization across the circuit pair must not
exceed 80% of the rated power of the primary circuit, and customer's power utilization must not exceed
80% of the circuit breaker's rated current. If customer exceeds either of these thresholds, then one of the
following must occur: (1) customer shall purchase additional power circuits in order to reduce the overall
power load on the circuit pair below the threshold; or (2) customer shall reduce its power load on the
applicable circuit pair below the threshold. If customer does not implement one of the two foregoing
options within 7 business days of written notification from Flexential, then Flexential shall have the right to
charge a power overage fee and/or limit power consumption or disconnect power circuits in order to
reduce customer's power load across the circuit pair below the thresholds.
• Only data center rated electrical equipment allowed. Examples of equipment not allowed are: In cabinet UPS
modules; lead acid batteries; home type 120V power strips; small step-down transformers for 208V to 120V.
We reserve thg right to deny installation or request removal of electrical equipment that does not meetour
standards
• None of customer's equipment, connections, or wiring is permitted to enter any space outside of
the customer's cabinet and/or rack.
Telecommunication Facilities
All interconnects (tele
and charges.
om cross -connect) must be approved by Flexential and are subject to fees
Number: CSU.UPD.002
FLEXENTIAL UNCLASSIFIED PUBLIC
Last Revised: November 2020 Page 3 of 3
Contract Form
New Contract Request
Entity information
Entity Marne*
FLEXENTIAL CORP
Contract Name"
STANDARD TERMS AND CC*IDITIONS
Contract Status
CTB REVIEW
Entity ID*
A00046432
❑ New Entity?
Contract ID
6524
Contract Lead*
SWHITMORE
Contract Lead Email
swhitrnore,Pco.weld.co.us
Parent Contract ID
Requires Board Approval
YES
Department Project #
Contract Description
AS PART OF WELD COUNTY'S DISASTER RECOVERY ENVIRONMENT, THE FLEXENTIAL HOSTED DATA CENTER LEVERAGED
THROUGH THE STATE OF COLORADO CONTRACT. THE STATE OF COLORADO IS TERMINATING THEIR IS CONTRACT WITH
FLEXENTIAL. WELD COUNTY IS RECOMMENDING TO RETAIN
Contract Description 2
FLEXENTIAL AS THE DISASTER RECOVERY SITE WITH A ONE TIME SETUP FEE OF $1,135.00 AND MONTHLY REOCCURRING FEE
OF 52,569,96. ((2,569.96 X 12)) + $1 1 35.00,) = $31,926.52
Contract Type *
AGREEMENT
Amount*
$31,926.52
Renewable"
YES
Automatic Renewal
NO
Grant
IGA
Department
INFORMATION
TECHNOLOGY-GIS
Department Email
CM-
InformationTechnologyGIS
weldgov.com
Department Head Email
CM-
InformationTechnologyGIS-
DeptHeadgVeldgov.com
County Attorney
GENERAL COUNTY
ATTORNEY EMAIL
County Attorney Email
CM-
COU NTYATTO RN EY@WELDG
OV.COM
Requested BOCC Agenda
Date"
12 +'05 2022
Due Date
12101;`2022
Will a work session with BOCC be required?*
NO
Does Contract require Purchasing Dept. to be included?
If this is a renewal enter previous Contract ID
If this is part of a NSA enter MSA Contract ID
Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in
OnBase
Contract Dates
Effective Date
Termination Notice Period
Contact Information
Review Date.
10'01 2023
Renewal Date.
11'01/2022
Committed Delivery Date Expiration Date
Contact Info
Contact Name Contact Type Contact Email Contact Phone 1 Contact Phone 2
Purchasing
Purchasing Approver Purchasing Approved Date
CONSENT 12;01;2022
Approval Process
Department Head
RYAN ROSE
DH Approved Date
12''01.2022
Final Approval
BOCC Approved
BOCC Signed Date
BOCC Agenda Date
12/07,2022
Originator
SW'HITMORE
Finance Approver
CONSENT
Legal Counsel
CONSENT
Finance Approved Date Legal Counsel Approved Date
12 01:'2022 12;'01;'2022
Tyler Ref #
AG 120722
Houstan Aragon
From:
Sent:
To:
Cc:
Subject:
Thank you!
Houstan Aragon
Deputy Clerk to the Board
Clerk to the Board's Office
Weld County
1150 O Street
Greeley, CO 80631
Tel: (970) 400-4224
Email: haragon@weldgov.com
Houstan Aragon
Thursday, December 1, 2022 4:41 PM
Ryan Rose; Skyler Whitmore
Esther Gesick; Chloe White
RE: Contract ID #6524 - Master Service Agreement for Disaster Recovery with Flexential,
LLC
Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended
o nly for the person or e tity to which it is addressed and may contain information that is privileged, confidential
o r otherwise protected from disclosure. If you have received this communication in error, please immediately
n otify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the
taking of any action co cerning the contents of this communication or any attachments by anyone other than
the named recipient is trictly prohibited.
From: Ryan Rose <rrose@weld.gov>
Sent: Thursday, December 1, 2022 4:35 PM
To: Houstan Aragon <haragon@weldgov.com>; Skyler Whitmore <swhitmore@weld.gov>
Cc: Esther Gesick <egesicl@weldgov.com>; Chloe White <cwhite@weldgov.com>
Subject: Re: Contract ID #6524 - Master Service Agreement for Disaster Recovery with Flexential, LLC
Correct
From: Houstan Aragon <haragon@weldgov.com>
Sent: Thursday, December 1, 2022 4:27:06 PM
To: Ryan Rose <rrose@weld.gov>; Skyler Whitmore <swhitmore@weld.Rov>
Cc: Esther Gesick <egesicl4@weldgov.com>; Chloe White <cwhite@weldgov.com>
Subject: RE: Contract ID #6524 - Master Service Agreement for Disaster Recovery with Flexential, LLC
Thank Ryan,
Given the information that you provided, I was able to locate this former contract, is this what is considered the
State of Colorado contract that is being terminated? Please Advise.
1
Thanks,
Houstan Aragon
Deputy Clerk to the Board
Clerk to the Board's Office
Weld County
1150 O Street
Greeley, CO 80631
Tel: (970) 400-4224
Email: haragon(W,weldgov.com
Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended
o nly for the person or entity to which it is addressed and may contain information that is privileged, confidential
o r otherwise protected from disclosure. If you have received this communication in error, please immediately
n otify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the
taking of any action concerning the contents of this communication or any attachments by anyone other than
the named recipient is strictly prohibited.
From: Ryan Rose <rrose@weld.gov>
Sent: Thursday, December 1, 2022 3:58 PM
To: Houstan Aragon <haragon@weldgov.com>; Skyler Whitmore <swhitmore@weld.gov>
Cc: Esther Gesick <egesick@weldgov.com>; Chloe White <cwhite@weldgov.com>
Subject: RE: Contract ID #6524 - Master Service Agreement for Disaster Recovery with Flexential, LLC
Houstan,
This is our disaster recovery site. We have had equipment in this facility for 8 years, the reason for the new agreement
is that the our agreement is changing from one company to another. Nothing new, nothing changes from our end, just
updating the agreement. These funds have been encumbered and are a part of our annual budget. Please let me know
if you have further questions.
Ryan
From: Houstan Aragon <haragon@weldgov.com>
Sent: Thursday, December 1, 2022 3:24 PM
To: Skyler Whitmore <swhitmore@weld.gov>
Cc: Esther Gesick <egesick@weldgov.com>; Chloe White <cwhite@weldgov.com>; Ryan Rose <rrose@weld.gov>
Subject: Contract ID #6524 - Master Service Agreement for Disaster Recovery with Flexential, LLC
Good Afternoon Skyler,
I have received Contract ID #6524, which was routed Consent, as it is a Master Service Agreement; however,
due to the financial cost of $31, 926.52, which is over the $25,000.00 threshold, and is being recommended as
an IT Resource, I believe this contract needs to be sent upstream and re-routed for full review and be
presented as a New Business item. Please let me know if there are any questions.
• Sec. 9-5-40. - Procedures for purchasing IT Resources.
2
All purchases made by
Weld IT will follow the procedures in the purchasing policy outlined in Chapter 5,
Article IV of this Code; however, the following also applies:
A. Given a unique and limited number of vendors for certain software and other IT -related products, Weld IT
shall develop requests for proposals (RFPs) from user requirements and send them to known vendors who
provide such solutions. Weld IT should consider the use of the Rocky Mountain E -Purchasing application
when it is in the best interest of the County.
B. Recommendations for purchase of IT Resources must be presented to the Board of County
Commissioners for approval.
C. Annual requests for hardware, such as PC and laptop replacements, must go through a bid process. A
request for quote must include hardware specifications and verbiage so that the quote may be used
throughout the year approved. Vendor responses must be presented to the Board of County
Commissioners for selection and approval.
D. For the purchase of IT Resources for the Weld County Public Safety IT function, the Director of
Communications Public Safety shall independently follow the same procedures, and, where appropriate,
coordinate with the Weld IT Director.
E. The Board of County Commissioners has delegated to the Weld IT Director the authority to sign on behalf
of the County any IT license agreements or IT maintenance agreements under the amount established by
Appendix 5-L of this Code.
F. Weld IT shall use Weld County Purchasing for all non -IT Resource purchases, such as furniture, office
supplies, etc.
G. All IT Resources must be disposed of in accordance with the County surplus property policy and
procedures set forth in Section 5-4-160 of this Code after IT approval is obtained to ensure appropriate
removal of any data contained on the device. This includes IT Resources to be traded or returned at the time
of a new equipment purchase.
(Weld County Code Ordinance 2014-9 ; Weld County Code Ordinance 2020-01 )
Thanks,
Houstan Aragon
Deputy Clerk to the Board
Clerk to the Board's Office
Weld County
1150 O Street
Greeley, CO 80631
Tel: (970) 400-4224
Email: haragon(weldgov. corn
3
Confidentiality Notice This electronic transmission and any attached documents or other writings are intended
only for the person or entity to which it is addressed and may contain information that is privileged, confidential
or otherwise protected from disclosure If you have received this communication in error, please immediately
notify sender by return e-mail and destroy the communication Any disclosure, copying, distribution or the
taking of any action concerning the contents of this communication or any attachments by anyone other than
the named recipient is strictly prohibited
4
Hello