HomeMy WebLinkAbout20153701.tiff RESOLUTION
RE: APPROVE PROFESSIONAL SERVICES AGREEMENT AND AUTHORIZE CHAIR TO
SIGN - EMC CORPORATION
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Professional Services Agreement
between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, on behalf of the Department of Information Technology, and
EMC Corporation, commencing November 23, 2015, with further terms and conditions being as
stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Professional Services Agreement between the County of Weld, State
of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of
the Department of Information Technology, and EMC Corporation be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 23rd day of November, A.D., 2015.
BOARD OF COUNTY COMMISSIONERS
4rkmeyi
D COUNTY, COL RADO
ATTEST: darAvt) C .� erf Chair
Weld Co ty Clerk to the Board
Mike Freeman, Pro-Tern
BY:
Deputy Cle to t e Boar
E�a Sean P. C nway `)
AP-PR-0 jEDARM:
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1861 C?r fie A. Cozad
Attorney ,.
� Steve Moreno
Date of signature: •
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&.! /Z/a! 2015-3701
IT0003
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MEMORANDUM
To: Esther Gesick,Clerk to the Board
'1 if 6
A r r From: Ryan Rose,Chief Information Officer
Date: November 10,2015
Subject: EMC Professional Services Agreement
The EMC Professional Services Agreement has been reviewed by Weld County legal and
we're requesting the Board of County Commissioners to approve and sign the agreement.
This agreement is to engage EMC to provide professional services for the installation and
configuration of backup equipment.
We respectfully request the Weld County BOCC approve the agreement.
I
2015-3701
EMC
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (the"PSA" or"Agreement") is made effective as of (the"Effective Date")
between:
EMC Corporation And Weld County
("EMC") ("Customer")
176 South Street 1150 O St,.Greeley.CO 80632
Hopkinton,Massachusetts 01748
Email for Legal Notices:legalnotices@emc.com Email for Legal Notices:
This PSA sets forth the general terms and conditions under which Customer may periodically engage EMC to provide certain
professional, educational/training, operational and technical services ("Professional Services") on a project basis pursuant to a
Statement of Work("SOW")to be entered into between EMC and Customer for each engagement.
1. DEFINITIONS. Customer even if offered together with the sale or licensing of
A. "Affiliate" means a legal entity that is controlled by, Products by EMC in the same EMC quote or Customer purchase
controls, or is under common control with EMC or Customer, order.
respectively. "Control" means more than 50% of the voting B. Placement of EMC Personnel. EMC shall have the sole
power or ownership interests. responsibility for personnel placement as well as for all other
B. "Deliverables"means any reports,analyses, scripts,code or human resources issues (e.g. vacation). EMC will only utilize
other work results which have been delivered by EMC to employees or contractors that are sufficiently qualified. If
Customer within the framework of fulfilling obligations under specific EMC personnel cease to perform due to illness,
the SOW. resignation or any other reason, EMC shall without undue delay
C. "Proprietary Rights" mean all patents, copyrights, trade use reasonable efforts to provide a substantially equivalent
secrets, methodologies, ideas, concepts; inventions, know-how, replacement as soon as reasonably possible. EMC's contact
techniques or other intellectual property rights of a party. person responsible for liaising with Customer will exclusively be
D. "Statement of Work"or"SOW"means a document agreed the person identified by EMC as being responsible for the
between Customer and EMC containing specifications and other project. No employee/employer relationship is intended or shall
transaction-specific details of the Professional Services to be established by any SOW.
provided by EMC. SOWs may, among other things, consist of C. Standard Work Day. The standard work day is any eight
(i)a separately executed, long form services specification; or (8) hour period of work, between 8:00 AM and 6:00 PM,
(ii)a short form service description (called a "ServiceBrief') Monday through Friday, excluding public holidays at the EMC
with an accompanying EMC model number identified on a location providing Professional Services.
quote. D. Customer Responsibilities. Customer shall provide EMC
E. "Supplier(s)"means an entity (other than Customer) whose personnel with timely access to appropriate facilities, space,
components, subassemblies, software and/or services have been power, documentation, networks (including Internet and
incorporated into Products and/or Services. telephone), files, information, additional software (if needed),
and skilled and authorized Customer personnel to assist in the
2. PROFESSIONAL SERVICES. performance and cooperate with EMC. Customer shall also
A. Scope. Each project for Professional Services shall be perform its specific obligations as described in the relevant
governed by a separate SOW. Each SOW (excluding a Service SOW,and,if necessary,assist and support EMC in the provision
Brief) shall (i)be signed by the parties; (ii) incorporate by of the Professional Services as reasonably requested by EMC,
reference this Agreement; and (iii)state the pertinent business and shall provide all conditions in its business necessary for due
parameters, including, but not limited to, pricing, payment, performance of Professional Services by EMC.
expense reimbursement, and a detailed description of the 3. PROPRIETARY RIGHTS.
Professional Services to be provided. In case of conflict between
the SOW and the terms of this Agreement, the SOW shall A. Grant of Copyright Rights in Deliverables. Subject to
normally take precedence. However, to the extent that the SOW Customer's payment of the applicable amounts due EMC and to
contains terms that conflict with terms in the Agreement EMC's Proprietary Rights in any underlying intellectual
pertaining to intellectual property and/or proprietary rights, property embodied therein or used by EMC to perform
indemnification, warranty (including remedies and disclaimers), Professional Services,Customer shall own all copyright rights to
and/or limitation of liability, the conflicting terms in the SOW the portion of Deliverables that consists solely of written reports,
shall supersede those in the Agreement only if the SOW clearly analyses and other working papers prepared and delivered by
indicates that the parties are intentionally overriding the terms in EMC to Customer in the performance of EMC's obligations
the Agreement solely for purposes of such SOW. Professional under the SOW.
Services are provided as a separate and independent service to B. Grant of License Rights in Deliverables. For the portion of
Deliverables that consists of scripts and code, EMC grants
PSA Rev 20I 5083I CONFIDENTIAL Page of 4
Customer a non-exclusive, non-transferable, irrevocable(except specified at law; or (b)the applicable law allows the parties to
in case of breach of the PSA or SOW) perpetual right to use, agree to a shorter period than that specified therein.
copy and create derivative works from such(without the right to E. Suppliers. The foregoing limitations shall also apply in
sublicense) for Customer's internal business operations, as favor of EMC's Suppliers.
contemplated by the applicable SOW.The license granted in this 5. INVOICING AND PAYMENT.
section does not apply to (i)Customer furnished materials, and
(ii)any other Products or items licensed, or otherwise provided, A. Purchasing and Invoicing. Each SOW (excluding the
under a separate agreement. Service Brief)becomes binding on both parties when it is signed
C. Customer Furnished Materials. Customer does not by EMC and Customer countersigns and returns the SOW to
relinquish any of its rights in materials it furnishes for use by EMC (along with a purchase order if so required in the SOW).
EMC in connection with the performance of Professional EMC shall submit invoices for fees and reimbursable costs and
Services. Pursuant to Customer's Proprietary Rights therein, are expenses and be paid in the manner specified in the
Customer grants EMC a non-exclusive,non-transferable right to applicable SOW.
use such solely for the benefit of Customer in fulfillment of B. Payment. Customer shall pay EMC's invoices in full and in
EMC's obligations under the SOW. the same currency as the EMC invoice within thirty (30) days
D. Reservation of Proprietary Rights. Each party reserves for after the date of EMC's invoice,with interest accruing thereafter
itself all Proprietary Rights that it has not expressly granted to at the lesser of 1.5% per month or the highest lawful rate. The
the other. EMC shall not be limited in developing, using or charges due hereunder for Professional Services and any other
marketing services or products which are similar to the items provided by EMC are exclusive of and Customer shall pay
Deliverables or Professional Services provided hereunder, or, or reimburse EMC for all value added(VAT),sales,use, excise,
subject to EMC's confidentiality obligations to Customer, in withholding, personal property, goods and services and other
taxes, levies, customs and duties resulting from a Customer
using the Deliverables or performing similar Professional
Services for any other projects. purchase order, except for taxes based on EMC's net income. If
4. LIMITATION OF LIABILITY. Customer is required to withhold taxes, then Customer will
forward any withholding receipts to EMC at tax@emc,com.
A. Limitation on Direct Damages. EMC'S TOTAL
LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE 6. TRAINING SERVICES.
REMEDY FOR ANY CLAIM OF ANY TYPE A. Courses. EMC's standard training Services are available
WHATSOEVER, ARISING OUT OF PROFESSIONAL through the applicable catalogue or website. EMC customized
SERVICES PROVIDED HEREUNDER,SHALL BE LIMITED training Services are available pursuant to an SOW.
TO PROVEN DIRECT DAMAGES CAUSED BY EMC'S B. Cancellation and Refunds. If Customer prepays and
SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED subsequently cancels standard training Services, EMC shall
(i)US$1,000,000, FOR DAMAGE TO REAL OR TANGIBLE provide (i)a full refund, if EMC receives written notice of
PERSONAL PROPERTY; AND (ii)THE PRICE PAID TO cancellation two (2) or more weeks before the scheduled start
EMC FOR THE SPECIFIC PROFESSIONAL SERVICE date; or (ii)a 50% refund, if EMC receives written notice of
(CALCULATED ON AN ANNUAL BASIS, WHEN cancellation less than two (2) weeks before, but prior to, the
APPLICABLE) FROM WHICH SUCH CLAIM ARISES, FOR scheduled start date. Cancellation charges for customized
DAMAGE OF ANY TYPE NOT IDENTIFIED IN (i)ABOVE training Services shall be as mutually agreed between the parties
OR OTHERWISE EXCLUDED HEREUNDER. in the applicable SOW.
B. No Indirect Damages. EXCEPT WITH RESPECT TO 7. WARRANTY.
CLAIMS REGARDING VIOLATION OF EMC'S A. Professional Services. EMC shall perform Professional
INTELLECTUAL PROPERTY RIGHTS, NEITHER Services in a workmanlike manner in accordance with generally
CUSTOMER NOR EMC SHALL HAVE LIABILITY TO THE accepted industry standards. Customer must notify EMC of any
OTHER FOR ANY SPECIAL, CONSEQUENTIAL, failure to so perform within ten(10)days after the performance
EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES of the applicable portion of Professional Services.
(INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, B. Customer Remedies. EMC's entire liability and
REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF Customer's sole remedy for EMC's failure to so perform shall
THE POSSIBILITY THEREOF. be for EMC to, at its option, (i)correct such failure; and/or
C. Regular Back-ups. As part of its obligation to mitigate (ii)terminate the applicable SOW and refund that portion of any
damages,Customer shall take reasonable data back-up measures. fees received that correspond to such failure to perform.
In particular, Customer shall provide for a daily back-up process C. No Further Warranties. EXCEPT AS EXPRESSLY
and back-up the relevant data before EMC performs any STATED HEREIN, AND TO THE MAXIMUM EXTENT
remedial, upgrade or other works on Customer's production PERMITTED BY APPLICABLE LAW, WITH REGARD TO
systems. To the extent EMC's liability for loss of data is not PRODUCTS, PROFESSIONAL SERVICES OR ANY OTHER
anyway excluded under this Agreement, EMC shall in case of ITEMS OR MATTERS ARISING HEREUNDER, EMC
data losses only be liable for the typical effort to recover the data (INCLUDING ITS SUPPLIERS) MAKES NO OTHER
which would have accrued if Customer had appropriately backed EXPRESS WARRANTIES, WRITTEN OR ORAL, AND
up its data. DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS
D. Limitation Period. All claims must be made within(i)the PERMITTED UNDER APPLICABLE LAW, ALL OTHER
time period specified by applicable law; or (ii)eighteen (18) WARRANTIES ARE SPECIFICALLY EXCLUDED,
months after the cause of action accrues if(a)no such period is INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
PSA Rev 20150831 CONFIDENTIAL Page 2 of 4
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A Compliance Group Office has signed a specific agreement
PARTICULAR PURPOSE, TITLE AND NON- consenting to provide ITAR controlled Materials or Professional
INFRINGEMENT, AND ANY WARRANTY ARISING BY Services to Customer. Customer represents and warrants that it
STATUTE, OPERATION OF LAW, COURSE OF DEALING is not(a)listed on any of the lists of restricted parties found at
OR PERFORMANCE,OR USAGE OF TRADE. http://www.bis.doc.gov/index.php/policy-guidance/lists-of-
8. CONFIDENTIALITY. "Confidential Information" parties-of-concern;(b)located in any country subject to embargo
means any information that is marked "confidential" or by the U.S.(identified as an E: country in Supplement I to Part
"proprietary"or any other similar term or in relation to which its 740 of the United States Export Administration Regulations
confidentiality should by its nature be inferred or, if disclosed ("EAR"), as shown here and updated from time to time:
orally,is identified as being confidential at the time of disclosure http://www.ecfr.gov/cgi-bin/text-
and, within two (2) weeks thereafter, is summarized, idx?SID7f5lb38428b0614519eea4b4fdc8640e&node=15:2.1.3.
appropriately labeled and provided in tangible form. 4.25.0.1.2 I.28&rgn=div9; or (c)engaged in the proliferation of
Confidential Information does not include information that is weapons of mass destruction (i.e., nuclear, chemical or
(i)rightfully in the receiving party's possession without prior biological weapons or missiles). Customer will not participate or
obligation of confidentiality from the disclosing party; (ii)a ask EMC to participate in any illegal boycott.
matter of public knowledge; (iii)rightfully furnished to the 10.TERM AND TERMINATION. This Agreement takes
receiving party by a third party without confidentiality effect on the Effective Date and continues until(i)terminated for
restriction; or (iv)independently developed by the receiving cause; or (ii)terminated by either party for convenience by
party without reference to the disclosing party's Confidential giving sixty (60) days' prior written notice. Any provision that
Information.Each party shall(a)use Confidential Information of by its nature or context is intended to survive any termination or
the other party only for the purposes of exercising rights or expiration, including but not limited to provisions relating to
performing obligations in connection with this Agreement or any payment of outstanding fees, confidentiality and liability, shall
purchase order hereunder;and(b)protect from disclosure to any so survive.
third parties, by use of a standard of care equivalent to that as A. Term of SOW. Each SOW begins on the date stated therein,
used by recipient to protect its own information of a similar and, unless terminated for breach, continues in accordance with
nature and importance, and, no less than the use of reasonable its terms. A termination for convenience shall only be permitted
care, any Confidential Information disclosed by the other party if expressly agreed in the SOW.
for a period commencing upon the date of disclosure until three B. Termination for Breach of SOW. Either party may notify
(3)years thereafter, except with respect to (I)Customer data to the other in writing in case of the other's alleged breach of a
which EMC may have access in connection with the provision of material provision of the applicable SOW. The recipient shall
Professional Services, which shall remain Confidential have thirty (30) days from the date of receipt of such notice to
Information until one of the exceptions stated in the above effect a cure (the "Cure Period"). If the recipient of the notice
definition of Confidential Information applies; and fails to effect a cure within the Cure Period, then the sender of
(2)Confidential Information that constitutes,contains or reveals, the notice shall have the option of sending a written notice of
in whole or in part, EMC proprietary rights, which shall not be termination of the applicable SOW(s), which notice shall take
disclosed by the receiving party at any time.Notwithstanding the effect upon receipt.
foregoing, the receiving party may disclose Confidential 11.MISCELLANEOUS.
Information (A)to its Affiliate for the purpose of fulfilling its A. References. EMC may identify Customer as a user of
obligations or exercising its rights hereunder as long as such EMC's Professional Services. Each party shall not,and shall not
Affiliate complies with the foregoing; and (B)to the extent authorize or assist another to,originate,produce,issue or release
required by law (provided the receiving party has given the any written publicity,news release, marketing collateral or other
disclosing party prompt notice). publication or public announcement, relating in any way to this
9. TRADE COMPLIANCE. All content, Professional Agreement, without the prior written approval of the other,
Services and the technology included therein (collectively the which approval shall not be unreasonably withheld.
"Materials") provided under this Agreement are subject to B. Notices. Any notices hereunder shall be in writing.
governmental restrictions on exports and imports including C. Entire Agreement. This Agreement and each purchase
without limitation (i)exports from the U.S and the European order and its referenced SOW (i)comprise the complete
Union as well as re-export from third countries in the form statement of the agreement of the parties with regard to the
received;(ii)exports from other countries in which the Materials subject matter thereof;and(ii)may be modified only in a writing
may be produced or located; (iii)disclosures of technology to with evidence of acceptance by both parties. All terms of any
non-U.S persons; (iv)exports from other countries of the same purchase order or similar document provided by Customer,
or products derivative of Materials; and (v)the importation including but not limited to any pre-printed terms thereon and
and/or use the Materials outside of the U.S. or other countries any terms that are inconsistent or conflict with this Agreement
(collectively, "Trade Laws"). Customer must comply with all and/or EMC quote, shall be null and void and of no legal force
Trade Laws. Diversion contrary to U.S. law or other Trade Laws or effect, even if EMC does not expressly object to such terms
is expressly prohibited. In addition, Customer shall not send or when accepting a purchase order or similar document provided
deliver to EMC any data controlled by the International Traffic by Customer; however, terms in such document deviating from
in Arms Regulations ("ITAR"), and shall not request Materials an EMC quote do become binding upon the parties when such
or Professional Services from EMC where an ITAR license is deviating terms are expressly accepted by EMC in writing in an
required in order for EMC to provide such Materials or order acknowledgement or similar document.
Professional Services, unless the EMC Global Trade
PSA Rev 2O150831 CONFIDENTIAL Page 3 of 4
D. Force Majeure. Except for payment of fees, neither party jurisdiction for disputes arising out of or in connection with this
will be liable for failure to perform its obligations during any Agreement. The U.N. Convention on Contracts for the
period if performance is delayed or rendered impracticable or International Sale of Goods does not apply.
impossible due to circumstances beyond that party's reasonable G. Waiver. No waiver shall be deemed a waiver of any prior or
control. subsequent default hereunder.
E. Assignment. Customer will not assign this Agreement, an H. Independent Contractors. The parties shall act as
SOW or a purchase order or any right or obligation herein or independent contractors for all purposes under this Agreement.
delegate any performance without EMC's prior written consent, Nothing contained herein shall be deemed to constitute either
which consent will not be unreasonably withheld. Any other party as an agent or representative of the other party, or both
attempted assignment or transfer by Customer will be void. parties as joint venturers or partners for any purpose. Neither
EMC may use its Affiliates or other sufficiently qualified party shall be responsible for the acts or omissions of the other
subcontractors to provide Professional Services to Customer, party, and neither party shall have authority to speak for,
provided that EMC remains responsible to Customer for the represent or obligate the other party in any way without the prior
Professional Services'performance. written approval of the other party.
F. Governing Law. This Agreement is governed by the laws I. Severability. If any part of this Agreement, a purchase
of the Commonwealth of Massachusetts (excluding its conflict order,SOW or an EMC quote is held unenforceable,the validity
of law rules) and the federal laws of the United States. To the of the remaining provisions shall not be affected.
extent permitted by law, the state and federal courts located in
the Commonwealth of Massachusetts will be the exclusive
EMC Corporation("EMC")
By(Sign): x+4
Name(Print):Rita Roles
Title:Sr.Federal Contracts Manager 11/10/15
WELD COUNTY (�
ATTEST: Vregritet) G p,r, BOARD OF COUNTY COMMISSIONERS
Weld Countyrk to the Board WELD COUNTY,COLORADO
BY:
Deputy Cler to a •
azbthirfY
NOV 2 3 2015.
1861
PSA Rev 20150831 CONFIDENTIAL Page 4 of 4
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