HomeMy WebLinkAboutContract 40081I�V.10FESSIONAL SERVICES AGREEMENT
This PROFESSIONAL S�0%�90�ES AGREEMENT ("Agreement°) is made and entered into by
and between the CITY OF FORT WORTH (the "City �, a home rule municipal corporation situated in
portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Karen L. Montgomery, its
duly authorized Assistant City Manager, and Mimosa Systems, Inc. ("Consultant"), a Delaware
corporation and acting by and through Michael Sheridan, its duly authorized Chief Financial Officer.
COIF u FACT DOCUMENTS.
The Contract documents shall include the following:
This Professional Services Agreement plus alt attachments
Exhibit A — Statement of Work
Exhibit B — Network Access Agreement
Exhibit C — End User License Agreement
All Contract documents are attached hereto and incorporated herein for all purposes. If the event of a
conflict, the order of precedence shall be (1) this Professional Services Agreement, (2) Statement of
Work, (3) End User License Agreement, (4) Payment Schedule and (5) Network Access Agreement.
Notwithstanding, the Network Access Agreement shall take precedence in matters of computer security.
1. SCOPE OF SERVICES.
Consultant hereby agrees to provide the City with professional consulting services for the
purpose of providing computing infrastructure to install and manage an email archiving and discovery
system. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A,"
Statement of Work, more specifically describing the services to be provided hereunder.
This Agreement shall commence upon the last date that both the City and Consultant have
executed this Agreement ("Effective Date") and shall continue in full force and effect until completion of
all services contemplated herein but no later than one (1) year following the Effective Date of this
Agreement, unless terminated earlier in accordance with the provisions of this Agreement.
3. COMRENSATION.
The services provided hereunder shall be provided at no cost to the City in accordance with the
provisions of this Agreement. The City has previously paid for these services valued at $32,928.00
pursuant to City of Fort Worth Purchase Order No. PO-10-00059267 with Dell Marketing, L.P., an
authorized reseller of Mimosa Systems, Inc. products and services. Consultant shall not perform any
additional services for the City not specified by this Agreement unless the City requests and approves in
writing the additional costs for such services. The City shall not be liable for any additional expenses of
Consultant not specified by this Agreement unless the City first approves such expenses in writing.
4. TERMINATION.
4.1. Written Notice.
The City or Consultant may terminate this Agreement at any time and for any reason by
providing the other party with 30 days written notice of termination. � O��rICI,�:�. ��irr�F2D'
SECRETARY
Professional Services Agreement
Mimosa Systems, Inc.
Page 1 of 9
CITY
FT. WORTH, TX
4.2 Non -appropriation of Funds.
In the event no funds or insufficient funds are appropriated by the City in any fiscal period
for any payments due hereunder, City will notify Consultant of such occurrence and this
Agreement shall terminate on the last day of the fiscal period for which appropriations were
received without penalty or expense to the City of any kind whatsoever, except as to the portions
of the payments herein agreed upon for which funds shall have been appropriated.
4.3 Duties and Obligations of the Parties
In the event that this Agreement is terminated prior to the Expiration Date, the City shall
pay Consultant for services actually rendered up to the effective date of termination and
Consultant shall continue to provide the City with services requested by the City and in
accordance with this Agreement up to the effective date of termination.
5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION.
Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any
existing or potential conflicts of interest related to Consultant's services under this Agreement. In the
event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby
agrees immediately to make full disclosure to the City in writing. Consultant, for itself and its officers,
agents and employees, further agrees that it shall treat all information provided to it by the City as
confidential and shall not disclose any such information to a third party without the prior written approval
of the City. Consultant shall store and maintain City Information in a secure manner and shall not allow
unauthorized users to access, modify, delete or otherwise corrupt City Information in any way.
Consultant shall notify the City immediately if the security or integrity of any City information has been
compromised or is believed to have been compromised.
6. RIGHT TO AUDIT.
Consultant agrees that the City shall, until the expiration of three (3) years after final payment
under this contract, have access to and the right to examine at reasonable times any directly pertinent
books, documents, papers and records of the consultant involving transactions relating to this Contract
at no additional cost to the City. Consultant agrees that the City shall have access during normal
working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work
space in order to conduct audits in compliance with the provisions of this section. The City shall give
Consultant reasonable advance notice of intended audits.
Consultant further agrees to include in all its subcontractor agreements hereunder a provision to
the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final
payment of the subcontract, have access to and the right to examine at reasonable times any directly
pertinent books, documents, papers and records of such subcontractor involving transactions related to
the subcontract, and further that City shall have access during normal working hours to all subcontractor
facilities and shall be provided adequate and appropriate work space in order to conduct audits in
compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of
iMended audits.
7. INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Consultant shall operate as an independent
contractor as to all rights and privileges granted herein, and not as agent, representative or employee of
the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant
shall have the exclusive right to control the details of its operations and activities and be solely
responsible for the acts and omissions of its officers, agents, servants, employees, contractors and
subcontractors. Consultant acknowledges that the doctrine of respondeat superior shall not apply as
Professional Services Agreement
Mimosa Systems, Inc.
Page 2 of 9
between the City, its officers, agents, servants and employees, and Consultant, its officers, agents,
employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein
shall be construed as the creation of a partnership or joint enterprise between City and Consultant. It is
further understood that the City shall in no way be considered a Co -employer or a Joint employer of
Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither
Consultant, nor any officers, agents, servants, employees or subcontractors of Consultant shall be
entitled to any employment benefits from the City. Consultant shall be responsible and liable for any and
all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees
or subcontractors.
8. LIABILITY AND INDEMNIFICATION.
8.1 CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR, AND DOES HEREBY AGREE
TO INDEMNIFY, HOLD HARMLESS AND DEFEND, ANY AND ALL PROPERTY LOSS, PROPERTY
DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY
KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE
NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF
CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES,
8.2. LIMITATION OF LIABILITY.
A. Limitation on Direct Damages. CONSULTANT'S TOTAL LIABILITY (INCLUDING THE LIABILITY
OF ANY SUPPLIER, SUBCONTRACTOR, EMPLOYEE OR AGENT OF CONSULTANT), AND
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER
ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES PROVIDED HEREUNDER, SHALL BE
LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY CONSULTANT'S SOLE NEGLIGENCE OR
INTENTIONAL MISCONDUCT.
B. No Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATIONS OF
CONSULTANT PROPRIETARY RIGHTS (INCLUDING ANY LICENSE GRANTED THEREUNDER) OR
CLAIMS ARISING UNDER SECTION 5 (CONFIDENTIALITY), NEITHER CITY NOR CONSULTANT
(INCLUDING CONSULTANT'S SUPPLIERS, SUBCONTRACTORS, EMPLOYEES AND AGENTS)
SHALL (i) HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY,
INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS,
REVENUES, USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF; AND (ii) BRING ANY CLAIM
BASED ON ANY SERVICE PROVIDED HEREUNDER MORE THAN FOUR (4) YEARS AFTER THE
CAUSE OF ACTION ACCRUES. THIS LIMITATION SHALL NOT APPLY TO DAMAGES FOR LOSS OF
DATA.
C. Delays. Consultant shall not be liable under this Agreement or any SOW because of failure or delay in
performing its obligations hereunder on account of City's failure to provide timely access to facilities,
space, power, documentation, networks, files, software, and City personnel that are reasonably necessary
for Consultant to perform its obligations, unless such failure is reasonably beyond the City's control.
9. ASSIGNMENT AND SUBCONTRACTING.
Consultant shall not assign or subcontract any of its duties, obligations or rights under this
Agreement without the prior written consent of the City. If the City grants consent to an assignment, the
assignee shall execute a written agreement with the City and the Consultant under which the assignee
agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant
and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the
City grants consent to a subcontract, the subcontractor shall execute a written agreement with the
Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the
duties and obligations of the Consultant under this Agreement as such duties and obligations may apply.
The Consultant shall provide the City with a fully executed copy of any such subcontract.
100 ' 'INSURANCE.
Professional Services Agreement
Mimosa Systems, Inc.
Page 3 of 9
Consultant shall provide the City with certificates) of insurance documenting policies of the
following minimum coverage limits that are to be in effect prior to commencement of any work pursuant
to this Agreement:
10.1 Coverage and Limits
(a) Commercial General Liability
$1,000,000 Each Occurrence
$1,000,000 Aggregate
(b) Automobile Liability
$1,000,000 Each occurrence on a combined single limit basis
Coverage shall be on any vehicle used by the Consultant, its employees, agents, representatives
in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle
owned, hired and non -owned
(c) Worker's Compensation -Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$1003000 Disease - per each employee
$500,000 Disease - policy limit
This coverage may be written as follows:
Workers' Compensation and Employers' Liability coverage with limits consistent with statutory
benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ.
Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence,
$500,000 bodily injury disease policy limit and $100,000 per disease per employee
(d) Technology Liability (Errors &Omissions)
$1,000,000 Each Claim Limit
$1,000,000 Aggregate Limit
Technology coverage may be provided through an endorsement to the Commercial General
Liability (CGL) policy, or a separate policy specific to Technology E&O. Either is acceptable if
coverage meets all other requirements. Coverage shall be claims -made, and maintained for the
duration of the contractual agreement and for two (2) years following completion of services
provided. An annual certificate of insurance shall be submitted to the City to evidence coverage.
10.2 General Requirements
(a) The commercial general liability and automobile liability policies shall name the City as an
additional insured thereon, as its interests may appear. The term City shall include its employees,
officers, officials, agents, and volunteers in respect to the contracted services.
(b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in
favor of the City of Fort Worth.
(c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be
provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of
premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort
Worth, Texas 76102, with copies to the City Attorney at the same address.
Professional Services Agreement
Mimosa Systems, Inc.
Page 4 of 9
(d) The insurers for all policies must be licensed and/or approved to do business in the State of
Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating
Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk
Management. If the rating is below that required, written approval of Risk Management is
required.
(e) Any failure on the part of the City to request required insurance documentation shall not constitute
a waiver of the insurance requirement.
(f) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall
be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement.
11. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS
Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules
and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or
regulations, Consultant shall immediately desist from and correct the violation.
12. NON-DISCRIMINATION COVENANT.
Consultant, for itself, its personal representatives, assigns, subcontractors and successors in
interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and
obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of
individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-
discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or
successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City
and hold the City harmless from such claim.
13. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively determined
to have been delivered when (1) hand -delivered to the other party, its agents, employees, servants or
representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3)
received by the other party by United States Mail, registered, return receipt requested, addressed as
follows:
To The CITY:
City of Fort Worth/IT Solutions
1000 Throckmorton
Fort Worth TX 76102-6311
Facsimile: (817) 392-8654
14. SOLICITATION OF EMPLOYEES.
To CONSULTANT:
Mimosa Systems, Inc.
[insert info]
Neither the City nor Consultant shall, during the term of this agreement and additionally for a
period of one year after its termination, solicit for employment or employ, whether as employee or
independent contractor, any person who is or has been employed by the other during the term of this
agreement, without the prior written consent of the person's employer.
15. GOVERNMENTAL POWERS.
It is understood and agreed that by execution of this Agreement, the City does not waive or
Professional Services Agreement
Mimosa Systems, Inc.
Page 5 of 9
surrender any of its governmental powers.
16. NO WAIVER.
The failure of the City or Consultant to insist upon the performance of any term or provision of
this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or
Consultant's respective right to insist upon appropriate performance or to assert any such right on any
future occasion.
17. GOVERNING LAW /VENUE.
This Agreement shall be construed in accordance with the internal laws of the State of Texas. If
any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue
for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court
for the Northern District of Texas, Fort Worth Division.
18. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
19. FORCE MAJEURE.
The City and Consultant shall exercise their best efforts to meet their respective duties and
obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in
performance due to force majeure or other causes beyond their reasonable control (force majeure),
including, but not limited to, compliance with any government law, ordinance or regulation, acts of God,
acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor
restrictions by any governmental authority, transportation problems and/or any other similar causes.
20. HEADINGS NOT CONTROLLING.
Headings and titles used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
21. REVIEW OF COUNSEL.
The parties acknowledge that each party and its counsel have reviewed and revised this
Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto.
22. AMENDMENTS /MODIFICATIONS / EXTENSTIONS.
No extension, modification or amendment of this Agreement shall be binding upon a party hereto
unless such extension, modification, or amendment is set forth in a written instrument, which is executed
by an authorized representative and delivered on behalf of such party.
23. ENTIRETY OF AGREEMENT.
This Agreement, including the schedule of exhibits attached hereto and any documents
incorporated herein by reference, contains the entire understanding and agreement between the City
and Consultant, their assigns and successors in interest, as to the matters contained herein. Any prior or
contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with
any provision of this Agreement.
24. SIGNATURE AUTHORITY.
Professional Services Agreement
Mimosa Systems, Inc.
Page 6 of 9
The person signing this agreement hereby warrants that he/she has the legal authority to execute
this agreement on behalf of the respective party, and that such binding authority has been granted by
proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to
rely on this warranty and representation into this Agreement.
25. NETWORK ACCESS. If Consultant requires access to the City's computer network in order to
provide the services herein, Consultant shall execute the Network Access Agreement which is attached
hereto as Exhibit "B" and incorporated herein for all purposes.
[SIGNATURE PAGE FOLLOWS]
Professional Services Agreement
Mimosa Systems, Inc.
Page 7 of 9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this Ll� day of
DA 2010 (the "Effective Date").
CITY OF FORT WORTH:
Date
A'
By:
Marty Hendrix
City Secretary
APPROVED AS TO FORM AND LEGAL
3 kah & . (
Ma es 'a B. Farmer
Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: C-24145
Date Approved: _April 6, 2010
Professional Services Agreement
Mimosa Systems, Inc.
Page 8 of 9
MIMOSA SYSTEMS, INC.:
By:
Title: L�U
Date:
ATTEST:
OFFICIAL RECORD
CITY SEGRE7�RY
FT WORTH, TIC
EXHIBIT A
STATEMENT OF WORK
Professional Services Agreement
Mimosa Systems, Inc.
Page 2 of 9
F,.
NearPoint
Design &Deployment
Statement of Work
Version: 1.1
Author: SF
Date: March 4, 2010
Change History
Date Author Version Comments
Janua 14, 2010 Starleen F e 1.0 Initial document
Februa 2, 2010 Ronald Galarza 1.1 Cit of Fort Worth SOW
March 4, 2010 Qu nh Trinh 1.2 Cit of Forth Worth
SYSTEMS
Statement of Work
Statement of Work No. 101 ("SOW") is entered into by and between Mimosa Systems, Inc. ("Mimosa") and
the City of Fort Worth ("Client"), and is issued under and subject to the terms in this Agreement.
I. Overview
This SOW sets forth the Professional Services to be provided by Mimosa relating to (a) the remote
installation of the NearPoint Software ordered by Client through the SOW and (b) certain on -going support
related services to be provided by Mimosa on an as -requested basis following the completion of the
installation. Mimosa professional services team will perform the Professional Services remotely, using the
telephone and Internet tools and under the supervision of Client's IT employees, for 7,000 mailboxes
utilizing NearPoint archiving, PST and eDiscovery at two (2) installation site(s) with 113 (number of) Storage
Groups,
II. Mimosa Responsibilities
Mimosa will be responsible for the following;
1. Project Manager- Provide (i) direction and control of Mimosa project personnel and (ii) a framework
for project planning, communications, reporting, and procedural and contractual activity
• Project Manager Name: Ronald Galarza
• Phone: 408-961-5237
• Email: rgalarza@mimosasystems.com
2. Consultants — Provide technical expertise in relationship to the installation of the NearPoint
software.
3. Mimosa will ensure all Tasks in Section V. have been completed.
4. Mimosa will ensure all Deliverables in Section VI, have been met.
III. Client Responsibilities
To enable a successful and timely execution of this project, Client is responsible for the following:
1. Designate a full time Project Manager/Coordinator who will interface directly with the assigned
Mimosa Project Manager.
• Project Manager Name: Monty Hall
• Phone: 682-432-4808
• Email: monty.hall@fortworthgov.org
2. Cooperate promptly in the overall project, particularly regarding requests for documentation and
informational meetings. Client will ensure that appropriate personnel are available to meet with
Mimosa personnel as necessary. These personnel may include project managers with specific
system objectives and requirements and technical personnel with an understanding of the current
technical and network architecture. Notification of deviations from the project plan and the impact in
time will be provided.
3. Provide a technical contact that is trained in Exchange Systems Administration.
4. Provide experienced system administrators familiar with the infrastructure administration and the
internal and external TCP/IP networking features.
NearPoint Installation SOW Page 3 Dated: 4/8/2010
r Information Immediacy, Discovery & Continuity
SYSTEMS
5. Manage internal Change Request process, ensuring that all required changes are submitted and
approved prior to any scheduled Mimosa Professional Services work.
6. Provide appropriate remote access to systems for Mimosa resources identified by Mimosa as
essential to complete work activities.(VPN or WebEx)
7. Provide all DNS facilities.
8. Provide all network addressing and configuration information.
9. Provide stable power and network access to all systems.
10. Notify Mimosa of any system, network, application, or equipment modifications that may cause
potential problems or deviations.
11. Provide all servers and storage as defined for successful deployment.
12. Provide all other equipment, information, and materials that may be identified from time to time as
essential to perform work activities.
13. Provide all 3`d party software licenses required for the completion of this project.
14. Confirm, by the execution of this SOW, that current valid Software licenses exist for all Software
associated with Deliverables provided herein. This includes but is not limited to providing patch
levels and 3`d party software release versioning requirements.
15. Provide expertise and maintenance on existing environment. (i.e. databases and platforms)
16. Execute and monitor PST Migration unless otherwise contracted with Mimosa.
17. Define and Implement Corporate Policies/Auditors as they pertain to;
• Archive
• Extensions
• Exclusions
• Retentions
• eDiscovery Auditors
18. Required to participate in Mimosa formal training prior to the deployment of NearPoint environment.
The following is offered;
• System Engineer Training or
• eLearning
Please visit www.mimosasystems.com for registration.
IV. Assumptions
The following are key assumptions for this SOW:
1. Client has received and completed the initial Site Survey.
2. Mimosa Professional Services expects that Client will execute the initial steps of any new hardware
configuration (i.e., installation of OS and other necessary Software) as defined by Mimosa pre-
requisites for compatibility.
3. All work will be completed during normal business hours in the time zone where the system is
located. Out of hours work, if requested, is billed on a time basis at a minimal additional cost of;
• $800 for evenings (7:00 p.m. — 12:00 midnight)
• $2000/per day for weekends and local holidays (assuming 8 hour work day).
4. Mimosa will take reasonable measures not to interrupt normal operations and will rely on the Client
to assist and assure process and procedures are communicated to the Mimosa Consultants during
the installation process.
NearPoint Installation SOW Page 4 Dated: 4/8/2010
Information Immediacy, Discovery & Continuity
SYSTEMS
5. Mimosa represents that the estimates included in this SOW have been prepared in good faith and
represent Mimosa 3s best understanding of the requirements and efforts required for installation.
6. All Hardware and Architecture plans will be based upon physical hardware unless VMware is
requested. VMware planning will require additional time toward the project.
7. Mimosa will work with client to install all patches required for any of the Software at the time of
installation.
8. Client will provide executive sponsorship and active management participation for timely issue
resolution and overall project support.
9. Mimosa assumes Exchange Databases (EDB) and Active Directory (AD) are free of any
corruptions and are maintained according to Microsoft's best practices recommendations. If
corruptions are encountered, Client will address the issue within reasonable amount of time.
10. Client will provide the technical infrastructure to support the installation of Mimosa NearPoint.
Mimosa assumes client will follow the recommended hardware requirements for proper support of
the NearPoint environment.
V. Tasks
The following list of tasks describes the activities which are to be performed under this Order Form:
1. Mimosa will schedule and execute a project kick-off meeting, the purpose of which will be to define
the process and policies to be used to manage the project.
2. Mimosa will work with Client to update the site survey which includes the following Exchange
details;
• Daily volume of total Exchange transaction logs
• Retention policies for email
• Operating Systems used for the Exchange environment
• Version(s) of Exchange within the environment
• Location of PST files for import into NearPoint
3. Perform an assessment of Client's e-mail requirements —the purpose of this task will be to define
Client's a mail management needs as they pertain to the intended archiving of Client's email, to
identify how those needs can be supported by NearPoint, and to identify the gaps between the
needs and NearPoint functions and features
4. Develop a Hardware and Architecture Plan based on Client's technical and business requirements
—the purpose of this task is to develop the optimum technology architecture for NearPoint in
Client's environment.
5. Mimosa Systems Professional Services will require client to execute a series of performance tools
against the equipment in order to identify any potential hardware bottlenecks that could adversely
affect the NearPoint environment.
6. Install current version of the NearPoint application software as defined in Hardware and
Architecture Plan, Applicable NearPoint modules will be installed and configured along with testing
the associated components utilizing the Installation check list.
7. Mimosa will conduct a remote Pilot testing up to 25 accounts to ensure applicable feature
functionality of the recently installed NearPoint product.
8. The Professional Services Consultant will perform periodic health checks of the client's
environment for up to 10 days. Mimosa will execute Mimosa Monitoring (Mimmon) tool on a
scheduled basis to capture Windows System and Application events, Windows & SQL performance
logs, and Mimosa NearPoint job metrics and Errors and will parse the data into well formed XML
files. Mimmon will display data by rendering the XML-encapsulated data into a status page and
detailed reports. This information is used to monitor NearPoint health or to help troubleshoot
problems that may emerge, including process, handler, job, and system bottlenecks and errors.
NearPoint Installation SOW Page 5 Dated: 4/8/2010
0 S A information Immediacy, Discovery & Continuity
SYSTEMS
9. PST Migration Consulting will be provided (up to 4 hours) to analyze the current PST environment.
Mimosa will provide input/knowledge transfer towards development of a communications plan for
process/procedures along with impact of the PST migration. Mimosa will provide input /knowledge
transfer on how to utilize NearPoint in order to discover and ingest PST Is into the archive.
Additional PST ingestion services beyond knowledge transfer may be contracted if required.
10. Professional Services will enable the eDiscovery module within client environment.
11. Provide the Final Project Plan with the support and maintenance processes to be used with
NearPoint.
VI. Deliverables
Deliverables)
Description(s)
Sizing - Validation
The Professional Services Consultant will review the
specific hardware and Software components necessary to
deploy the proposed architecture. This is inclusive of Clients
e-mail policy requirements.
NearPoint Hardware and Architecture Plan
The NearPoint Consultants will be responsible for
completing the NearPoint Hardware and Architecture Plan
that defines the supporting infrastructure and configuration
of NearPoint for Clients e-mail solution.
NearPoint Prerequisites
The Professional Services Consultant will forward the
NearPoint site readiness check list document for the client
to complete prior to the installation of the NearPoint
software.
Project Plan
An updated project plan in MS Project or PDF format that
includes milestone dates once the schedule is finalized.
Status Meeting Minutes
Mimosa will provide the Client Project Manager/Coordinator
status meeting minutes from each Status Meeting with
current weekly activities and upcoming milestones.
Final Project Report
The NearPoint Professional Services Consultant will
complete the detailed specific components of the
installation. It Includes;
• Executive Summary
• Installation Related Issues
• Configuration Information
• Mimosa Systems Support Handoff
Installation Completion Document
Mimosa Project Management will forward the formal
Installation Completion Document (ICD) for Client signature
upon completion of the installation and the periodic health
check monitoring.
NearPoint Installation SOW Page 6 Dated: 4/8/2010
information Immediacy, Discovery & Continuity
r SYSTEMS
VII. Estimated Project Schedule
The estimated schedule for this Installation related to Professional Services (Sections V. and VI.) is an
estimate only and is based on the material and information received by Mimosa as of the SOW Effective
Date.
MIMOSA SYSTEMS INSTALLATION PROJECT PLAN
PHASE I — PLANNING AND DESIGN
Kick off Presentation
Project Planning
Technology Planninq
Site Survey Validation and Updates
Define Storage Requirements
Define Email Policy Requirements
Hardware and Architecture
PHASE II —REMOTE INSTALLATION
Install NearPoint
Provision
Enable email archiving
PST Consulting
Enable eDiscovery
� Test Pilot - up to 25 accounts (remove if not applicable) �
Set up Test Accounts
Conduct Test
PHASE III -MONITORING
Monitor NearPoint Application
Modify if applicable
PHASE — IV —Project
Deployment Documentation Completed
Installation Completion Signoff
Technical Support Turnover
VIII. Fees
Installation
The cost estimate for this project is $33,600 covering up to 17 days of consulting. All hours will be billed in 2.
hour blocks for remote and 8 hour blocks for onsite work by Technical Consultants, and 1 hour blocks for
Project Management. Any additional consulting days, if required will be subject to the Change Orders
described in Appendix A. The project will be billed time and material twice a month which is based upon the
number of consulting days delivered.
Note -All installations are remote unless otherwise negotiated. In the event of an onsite visit the Client is
responsible for all travel hours and travel related expenses (airfare, hotel, meals etc). Mimosa will request
pre -approval for all travel related expenses in advance for any travel if it becomes necessary. The Client will
be invoiced separately for travel and expenses.
NearPoint Installation SOW Page 7 Dated: 4/8/2010
SYSTEMS
tniormation Immediacy, Discovery & Continuity
Client Obligations
Client acknowledges and agrees that Mimosa's ability to perform as described in this SOW is contingent
upon Client's performance of its obligations described herein. If Client fails to perform any of its obligations
under this SOW, Mimosa may take any actions as is reasonably required, including without limitation extend
any relevant dates for such period of time as is reasonable or charge Client additional consultants' fees.
Schedule Changes
Mimosa and Client will jointly agree on the installation date for the NearPoint Installation. Once the
installation date is set, Mimosa will allocate and commit the appropriate resource(s) for the project. Client
has the option to reschedule or cancel two weeks prior to the installation and Mimosa will reschedule
according to next available date. In the event of rescheduling or cancellation within less than two weeks to
the installation date, Mimosa will charge a minimum of $4,000.00 for the delay and will reschedule according
to next available date.
Invoices shall be sent to:
Company:
Name:
Email:
Bus:
Fax:
Version 1.2
City of Fort Worth Address:
Monty Hall
monty.hall @fortworthgov.org
682-432-4808
Mobile:
275 West 13'h Street
Fort Worth, TX 76102
This Statement of Work expires if not signed and returned to Mimosa Systems Professional Services within
60 days.
By:
Name:
Title:
Date:
0
1V�arty �-I�ndri
By:
Name: U
Karen L. Montgomery
Title: r
Date:
���¢ na�l� 1Y�N � CITY ATTORNEY
x 0 OFFICIAL RECORD
add CITY SECRETARY
FT. WORTH, TX
NearPoint Installation SOW � P3ge 8
Dated: 4/8/2010
x
SYSTEMS
Exhibit A - Project Change Order
EnFormation immediacy, Discovery & Continuity
In the event a Change Order is required, due to project changes, Mimosa Project Manager will deliver a
Change Order to the Client for approval. If the Client requests a Change Order, the following process will be
followed:
The Client will request changes) to this Statement of Work by submitting these changes in detail to the
Project Manager using the Change Order form in Exhibit B.
Mimosa will review such request in good faith and will provide to the Client a written proposal explaining (i)
whether such change(s) is/are technically feasible and (ii) if technically feasible, the reasonable impact of
such change(s) on the terms agreed to in this Scope of Work, including changes to the delivery and cost
schedule.
If Client agrees to Mimosa's proposal, Mimosa and Client will sign a Change Order detailing the changes)
to this Statement of Work. After execution of the Change Order, the amendments detailed in such Change
Order will be incorporated into and be part of this Statement of Work. Mimosa will be under no obligation to
accept the terms of any request by Client for changes to this Statement of Work.
For all change orders that result in a change to the project schedule in excess of 30 days, a new project
schedule will be created. Additional fees will be applied based upon length of delay.
For all change orders that result in a change to the project cost, a signed purchase order is required before
the work will be started. Note that purchase order delays may result in additional scheduling delays.
No charges in excess of $50,000 shall be made without approval of the Client's City Council.
NearPoint Installation SOW Page 9 Dated: 4/8/2010
SYSTEMS
Exhibit B - Change Order Form
Information Immediacy, Discovery & Continuity
Originator name
Company
Originator phone number
Request date
Originator email address
Project name
Mark Add or change project functionality
Out of business hours
all that Assum tions Chan es
apply
Additional Milestones
Schedule extension
Other
Describe request in detail (add additional pages if
necessary)
F
NearPoint Installation SOW Page 10 Dated: 4/8/2010
NETWORK ACCESS AGREEMENT
This NETWORK ACCESS AGREEMENT ("Agreement") is made and entered into by and
between the CITY OF FORT WORTH ("City"), a home rule municipal corporation with its principal
location at 1000 Throckmorton Street, Fort Worth, Texas 76102, organized under the laws of the State of
Texas and situated in portions of Tarrant, Denton and Wise Counties, Texas, and MIMOSA SYSTEMS,
INC. with its principal location at , ("Contractor").
1. The Network. The City owns and operates a computing environment and network (collectively
the "Network"). Contractor wishes to access the City's network in order to provide [professional services
by installing and configuration of Mimos Software ]. In order to provide the necessary support, Contractor
needs access to [IT server, Internet, Intranet, and email.].
2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's
Network for the sole purpose of providing [professional services]. Such access is granted subject to the
terms and conditions forth in this Agreement and applicable provisions of the City's Administrative
Regulation D-7 (Electronic Communications Resource Use Policy), of which such applicable provisions
are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are
available upon request.
3. Network Credentials. The City will provide Contractor with Network Credentials consisting of
user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor.
Access rights will automatically expire one (1) year from the date of this Agreement. If this access is being
granted for purposes of completing services for the City pursuant to a separate contract, then, this
Agreement will expire at the completion of the contracted services, or upon termination of the contracted
services, whichever occurs first. Services are being provided in accordance with City Secretary Contract
No. .
4. Renewal. At the end of the first year and each year thereafter, this Agreement may be renewed
annually if the following conditions are met:
4.1 Contracted services have not been completed.
4.2 Contracted services have not been terminated.
4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the
Contractor has provided the City with a current list of its officers, agents, servants, employees or
representatives requiring Network credentials.
Notwithstanding the scheduled contract expiration or the status of completion of services, Contractor shall
provide the City with a current list of officers, agents, servants, employees or representatives that require
Network credentials on an annual basis. Failure to adhere to this requirement may result in denial of
access to the Network and/or termination of this Agreement.
5. Network Restrictions. Contractor officers, agents, servants, employees or representatives may
not share the City -assigned user IDs and passwords. Contractor acknowledges, agrees and hereby gives
its authorization to the City to monitor Contractor's use of the City's Network in order to ensure
Contractor's compliance with this Agreement. A breach by Contractor, its officers, agents, servants,
employees or representatives, of this Agreement and any other written instructions or guidelines that the
City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny
Contractor access to the Network and Contractor's Data, terminate the Agreement, and pursue any other
remedies that the City may have under this Agreement or at law or in equity.
6. Termination. In addition to the other rights of termination set forth herein, the City may terminate
this Agreement at any time and for any reason with or without notice, and without penalty to the City.
Upon termination of this Agreement, Contractor agrees to remove entirely any client or communications
Vendor Network Access Agreement Rev. 12/10/2009
software provided by the City from all computing equipment used and owned by the Contractor, its
officers, agents, servants, employees and/or representatives to access the City's Network,
7. Information Security. Contractor agrees to make every reasonable effort in accordance with
accepted security practices to protect the Network credentials and access methods provided by the City
from unauthorized disclosure and use. Contractor agrees to notify the City immediately upon discovery of
a breach or threat of breach which could compromise the integrity of the City's Network, including but not
limited to, theft of Contractor -owned equipment that contains City -provided access software, termination
or resignation of officers, agents, servants, employees or representatives with access to City -provided
Network credentials, and unauthorized use or sharing of Network credentials.
8. LIABILITY AND INDEMNIFICATION. CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE
FOR ALL DAMAGES THAT THE CITY MAY INCUR DIRECTLY ON ACCOUNT OF ANY BREACH OF
THIS AGREEMENT BY CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES.
THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, SHALL NOT BE LIABLE FOR
ANY DAMAGES THAT CONTRACTOR MAY INCUR AS A RESULT OF THE CITY'S RESTRICTIONS
TO OR DENIAL OF ACCESS TO CONTRACTOR'S DATA ON ACCOUNT OF ANY BREACH OF THIS
AGREEMENT BY CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES, OR FOR
ANY REASONABLE SECURITY MEASURES TAKEN BY THE CITY. IN ADDITION, CONTRACTOR
SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY
DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, AND ALL CLAIMS, DEMANDS AND
JUDGMENTS THEREFOR, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR
OMISSIONS) OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS,
SERVANTS AND/OR EMPLOYEES, CONTRACTOR, AT CONTRACTOR'S OWN COST OR
EXPENSE, HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, ITS
OFFICERS, AGENTS, SERVANTS AND/OR EMPLOYEES FROM AND AGAINST ANY CLAIM,
LAWSUIT, DEMAND OR OTHER ACTION TO THE EXTENT THAT THE SAME ARISES FROM THE
NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS
OFFICERS, AGENTS, SERVANTS OR EMPLOYEES.
9. Confidential Information. Contractor, for itself and its officers, agents, employees, and
representatives, agrees that it shall treat all information provided to it by the City as confidential and shall
not disclose any such information to a third party without the prior written approval of the City. Contractor
further agrees that it shall store and maintain City Information in a secure manner and shall not allow
unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Contractor
shall notify the City immediately if the security or integrity of any City information has been compromised
or is believed to have been compromised.
10. Right to Audit. Contractor agrees that the City shall, during the initial term, any renewal terms,
and until the expiration of three (3) years after termination or expiration of this contract, have access to
and the right to examine at reasonable times any directly pertinent books, data, documents, papers and
records, both hard copy and electronic, of the Contractor involving transactions relating to this
Agreement. Contractor agrees that the City shall have access during normal working hours to all
necessary Contractor facilities and shall be provided adequate and appropriate work space in order to
conduct audits in compliance with the provisions of this section. The City shall give Contractor
reasonable advance notice of intended audits. Contractor further agrees to include in all its
subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City
shall, during the initial term, any renewal terms, and until expiration of three (3) years after termination
or expiration of the subcontract, have access to and the right to examine at reasonable times any
directly pertinent books, data, documents, papers and records, both hard copy and electronic, of such
subcontractor involving transactions related to the subcontract, and further that City shall have access
during normal working hours to all subcontractor facilities and shall be provided adequate and
appropriate work space in order to conduct audits in compliance with the provisions of this paragraph.
City shall give subcontractor reasonable notice of intended audits.
Vendor Network Access Agreement 2
MIMOSA SYSTEMS, INC. Rev. 12/10/2009
11. Agreement Cumulative. This Agreement is cumulative of and in addition to any written
contracts, agreements, understandings or acknowledgments with the City signed by Contractor. This
Agreement and any other documents incorporated herein by reference constitute the entire
understanding and Agreement between the City and Contractor as to the matters contained herein
regarding Contractor's access to and use of the City's Network.
12. Amendments. The terms of this Agreement shall not be waived, altered, modified,
supplemented, or amended in any manner except by written instrument signed by an authorized
representative of both the City and Contractor.
13. Assignment. Contractor may not assign or in any way transfer any of its interest in this
Agreement. Any attempted assignment or transfer of all or any part hereof shall be null and void.
14. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected or
impaired.
15. Force Maieure. Each party shall exercise its best efforts to meet its respective duties and
obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in
performance due to force majeure or other causes beyond their reasonable control (force majeure),
including, but not limited to, compliance with any government law, ordinance or regulation, acts of God,
acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor
restrictions by any governmental authority, transportation problems and/or any other similar causes.
16. Governing Law /Venue. This Agreement shall be construed in accordance with the laws of the
State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this
Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United
States District Court for the Northern District of Texas, Fort Worth Division.
17. Signature Authority. The signature below of an authorized representative acknowledges that the
Contractor has read this Agreement and agrees to be bound by terms and conditions set forth herein.
ACCEPTE9 AND AGREE®:
CITY OF FORT WORTH:
Karen L. Montgomery (�
Assistant Cit anager
Date: ! 4/ I! ::i/ l D
MIMOSA SYSTEMS INC.:
By:
Na : M.A AIV/ ��4/a4
Title: GF'U
Date:
MIMOSA SYSTEMS, INC.
Rev. 12/10/2009
END USER LICENSE AGREEMENT (11/09)
MIMOSA NEARPOINT TM
This End User License Agreement (the "Aareement")
is a legal agreement between City of Fort Worth ("End Use
and Mimosa Systems, Inc. ("Mimosa") regarding the use of the
Mimosa NearPointTM software and accompanying user
documentation provided in electronic form (together, the
"Software"). This Agreement governs use of the Software and
any updates to the Software, regardless of how it was
delivered to the End User,
1. Grant and Use Rights. The Software is a collection of
numerous software components and documentation, some of
which are owned by Mimosa and referred to as the "Mimosa
Software" and other third -party components which are subject
to various license agreements which are included in the user
documentation provided with the Software.
(a) Software License For the Mimosa
Software, each End User is granted a perpetual, non-
exclusive, non -transferable, non-sublicensable right and
license to install and use, solely in accordance with the user
documentation provided by Mimosa (the "Documentation"),
one (1) copy of such Mimosa Software for End User's internal
purposes on one or more machines (designated as the
NearPoint Server in the accompanying confirming email sent
by Mimosa ("Order Acceptance") for a number of Users not to
exceed the number of licensed Users indicated in the
accompanying Mimosa Order Acceptance (also referred to as
the "User Count Limit" or "UCL"), for any specified license
subscription period indicated in the Acceptance. The definition
of a licensed User is a user that has been archived once on the
Mimosa NearPoint Server.
(b) Limitations and Restrictions. The Software
cannot be distributed without the prior written permission of
Mimosa and cannot be copied, except as necessary for back-
up purposes. End User may not itself or knowingly allow a
third party to remove, alter, or obscure any proprietary notices
contained on or within the Software and shall reproduce such
notices on any permitted copies of Software. End User
acknowledges that the scope of the licenses granted
hereunder do not permit End User (and End User may not
knowingly allow any third party) to: (i) create derivative works
of, copy, alter or in any way modify the Software (except to the
extent that such restrictions not permitted under applicable
law); (ii) translate, decompile, disassemble, reverse compile,
reverse engineer, interrogate, or decode the Software or in any
other manner reduce the Software to human perceivable form
(except to the extent that such restrictions are not permitted
under applicable law); (iii) bypass or delete any copy protection
methods that are for preventing unauthorized copying or use of
the Software; or (iv) electronically distribute, timeshare, provide
as a commercial hosted service or service bureau, market by
interactive cable or remote processing services the Software;
or (v) use the Software except as set forth in this Agreement.
This Agreement entitles End User to delivery of the object code
form of the Software as indicated in the Order Acceptance.
(c) Third Party Software. Components of the
Software that are not Mimosa Software are licensed by
Mimosa from third -parties under various other licenses,
including but not limited to Mozilla licenses which are included
in the documentation for the Software. If End User does not
agree to abide by the applicable license terms, which are
included within this agreement, for any such programs, then
End User may not be permitted to install or use them.
(d) Audit Right. No more than once any calendar
year, Mimosa may, at its sole discretion and upon reasonable
prior written notice of no less than ten (10) days to End User,
and only for the purpose of auditing End User's compliance
with the terms of by this Agreement, visit any End User facility
where the Software is installed and inspect and review any
relevant records, equipment, and installed instances of
Software. Any such audit may not unreasonably interfere with
End User's ordinary course of business. Any audit shall be at
the sole expense of Mimosa.
2. Ownership. The Software and each of its components,
including the source code, documentation, appearance,
structure, and organization are owned by Mimosa and others
and are protected under copyright and other laws. Mimosa and
its licensors, retains all right, title, and interest in and to the
Software and in all related copyrights, trade secrets, patents,
trademarks, and any other intellectual and industrial property
and proprietary rights, including registrations, applications,
renewals, and extensions of such rights. This Agreement does
not permit End User to use Mimosa trademarks. All other
trademarks are the property of their respective owners.
3. Fees and Payment.
3.1. License Fees. In consideration of the license granted to
End User pursuant to Section 1, End User will pay to Mimosa
the license fee for the Software (the "License Fee") in
accordance with the Mimosa Order Acceptance. The License
Fee covers the use of the Software and Documentation by the
specified number of Users during the term of this Agreement.
If the End User's number of actual users exceeds the number
of Users, then the End User shall pay Mimosa, at the then
current list price, the applicable license fee and maintenance
and support fee for the total incremental number of users
above the number of Users for which the End User has paid.
Mimosa will invoice End User upon shipment of the Software
and payment in US dollars will be due within thirty (30) days of
the invoice date.
3.2. Maintenance Fees. In consideration of the maintenance
and support services for the Software to be provided to End
User by Mimosa pursuant to Section 6, End User will pay to
Mimosa the maintenance and support fee for the Licensed
Software (the "Maintenance Fee") in accordance with the
License Description, commencing on the date on which End
User receives the Mimosa Order Acceptance and for a period
of 12 months thereafter ("Initial Period"). Following the Initial
Period, End User may renew the maintenance and support
services for additional one (1) year terms, subject to
Section 6.2, by paying Mimosa's then -current yearly
Maintenance Fee,
3.3. Late Payments. All overdue payments will incur a late
fee at a rate of one and one half percent (1.5%) per month or
the maximum allowed under applicable law, whichever is less.
4. DELIVERY, ACCEPTANCE AND INSTALLATION. Mimosa will
deliver the Software to End User via File Transfer Protocol
(FTP) which will be provided in the Order Acceptance
("Delivery ). Without limiting the warranties in Section 7 below,
the Software will be deemed accepted upon delivery. End
Page t of 4
User is responsible for installing the Software in accordance
with the Documentation and the installation instructions as
provided by Mimosa to End User,
5. TAxES. Any prices provided to End User exclude all
applicable sales, use and other taxes, and End User will be
responsible for payment of all such taxes, if applicable, (other
than taxes based on Mimosa's income), fees, duties, and
charges, and any related penalties and interest, arising from
the payment of the license fees, training fees, and renewal
fees. End User will make all payments to Mimosa free and
clear of, and without reduction for, any withholding taxes; any
such taxes, if any, imposed on payments of the license fees to
Mimosa will be End User's sole responsibility
6. Maintenance and Support.
6.1 Scope. During the term of this Agreement, and subject to
End User's payment of all of the Maintenance Fees described
in Section 3.2, Mimosa will provide End User with those
maintenance and technical support services for and updates to
the Software as described Mimosa's latest Support Policy,
which shall be provided to End User,
6.2. Previous Versions. Subject to the commitment by
Mimosa to provide maintenance and support services for the
Software during the Initial Period as described in Section 3.2,
Mimosa will provide such support services only for the most
current version (i.e. v3.1) and the immediately preceding minor
release version (i.e. v.3.0) of the Software, each for at least
one (1) year from date of release
7. Limited Warranties.
7.1 Media. Mimosa warrants that the media, if any, on which
the Software is furnished will be free from defects in materials
and manufacture under normal use for a period of thirty (30)
days from the date of delivery to End User. This warranty
extends only to the End User who receives the Software
directly from Mimosa or its authorized distributor. Mimosa's
entire liability, and End User's sole remedy, shall be: if the
Software media is defective, End User may return it within
thirty (30) days of delivery along with a copy of the End User's
payment receipt for replacement of the media. This Section
7.1 does not grant End User a right to a refund.
7.2 Performance. Mimosa warrants that the Software will
substantially conform to the description contained in the
Documentation with respect to the particular Software licensed
under this Agreement for a period of ninety (90) days after
Delivery ('Warranty Period"). If during the Warranty Period the
Software does not substantially conform to the Documentation,
your sole remedy will be that Mimosa shall, at its option,
correct the defects in the Software or refund the license fees
you paid, if any, related to the Software provided that (a) the
Software has been properly installed and used at all times and
in accordance with the instructions in the applicable end user
documentation; (b) no modification, alteration or addition has
been made to the Software product by persons other than
Mimosa or Mimosa's authorized representative; and (c)
Mimosa receives written notice of the non -conformity within
ninety (90) days following Delivery.
7.3. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY
STATED IN THIS AGREEMENT, a separate Services
Agreement, OR A LICENSE FOR A PARTICULAR
COMPONENT, TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, THE SOFTWARE AND
RELATED SERVICES (IF ANY) ARE PROVIDED AND
LICENSED AS IS, AS AVAILABLE, AND WITH ALL FAULTS
AND MIMOSA, ITS AUTHORIZED DEALERS AND
LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND,
EXPRESSED OR IMPLIED OR STATUTORY, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. MIMOSA DOES
NOT WARRANT THAT THE FUNCTIONS CONTAINED IN
THE SOFTWARE WILL MEET THE END USER'S
REQUIREMENTS OR THAT THE OPERATION OF THE
SOFTWARE WILL BE ERROR FREE,
8. Limitation of Remedies and Liability. End User assumes
sole responsibility for decisions pertaining to suitability of the
Software to meet the objectives or to perform specific tasks.
Any statements made by any Mimosa representatives do not
supersede this Agreement. End User may link to third -party
sites though the Software, Mimosa and its licensors are not
responsible for any content, data or software accessed from
such third -party sites.
A. Limitation on Direct Damages. MIMOSA'S TOTAL
LIABILITY (INCLUDING THE LIABILITY OF ANY SUPPLIER,
SUBCONTRACTOR, EMPLOYEE OR AGENT OF MIMOSA),
AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR
ANY CLAIM OF ANY TYPE WHATSOEVER ARISING OUT
OF OR IN CONNECTION WITH ANY SOFTWARE AND
SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED
TO PROVEN DIRECT DAMAGES CAUSED BY MIMOSA'S
SOLE NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN
AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNTS
PAID BY CUSTOMER TO MIMOSA OR ITS AUTHORIZED
RESELLER FOR THE SOFTWARE AND RELATED
SERVICES DURING THE TERM OF THIS AGREEMENT,
B. No Indirect Damages. EXCEPT WITH RESPECT TO
CLAIMS REGARDING VIOLATION OF MIMOSA
PROPRIETARY RIGHTS (INCLUDING ANY LICENSE
GRANTED THEREUNDER) OR CLAIMS ARISING UNDER
SECTION 9 (CONFIDENTIALITY), NEITHER CITY NOR
MIMOSA (INCLUDING MIMOSA'S SUPPLIERS,
SUBCONTRACTORS,EMPLOYEES AND AGENTS)SHALL
(i) HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL,
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR
INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO,
LOSS OF PROFITS, REVENUES, OR USE), EVEN IF
ADVISED OF THE POSSIBILITY THEREOF; AND (ii) BRING
ANY CLAIM BASED ON ANY SERVICE PROVIDED
HEREUNDER MORE THAN FOUR (4) YEARS AFTER THE
CAUSE OF ACTION ACCRUES. THIS LIMITATION SHALL
NOT APPLY TO DAMAGES FOR LOSS OF DATA.
Mimosa shall not be liable under this Agreement because of
failure or delay in performing its obligations hereunder on
account of City's failure to provide timely access to facilities,
space, power, documentation, networks, files, software, and
City personnel that are reasonably necessary for Consultant to
perform its obligations, unless such failure is reasonably
beyond the End User's control.
9. CONFIDENTIALITY. In connection with Mimosa's provision of
products or services to End User, each party, including
Mimosa's subcontractors, may have access to certain valuable
materials and information and data that the other party
considers to be confidential and proprietary. This may include,
without limitation, information relating to the disclosing party's
and its affiliates' research data, business and marketing
strategies and plans. During the term of this AarPPmPnt and
Page 2 of 4
thereafter for a period of three (3) years (including following
any termination or expiration), the receiving party agrees to
retain in confidence and to refrain from disclosing and/or using
for its benefit or the benefit of any third party, any or all
information and/or data disclosed to it as a result of its
activities under this Agreement and/or, as to Mimosa, obtained
by Mimosa or its representatives while visiting End User's
facilities ("Confidential Information"). The restrictions of this
Section 9 shall not apply to Confidential Information: (i) which
is or becomes public knowledge (through no fault of the
receiving party or its representatives); (ii) which is lawfully
made available to the receiving party by an independent third
party (and such lawful availability can be properly
demonstrated by the receiving party); (iii) which is already in
the receiving party's possession at the time of initial receipt
from the disclosing party (and such prior possession can be
properly demonstrated by the receiving party); or (iv) which is
independently developed by the receiving party or its
representatives (and such independent development can be
properly demonstrated by the receiving party). In addition, a
party receiving Confidential Information of the other party will
be allowed to disclose such information to the extent that such
disclosure is required by law, regulation, rule, act or order of
any governmental authority or agency to be disclosed by the
receiving party; provided, however, that the receiving party
gives the disclosing party sufficient advance written notice to
permit it to seek a protective order or other similar order with
respect to such information and thereafter the receiving party
discloses only the minimum Confidential Information required
to be disclosed in order to comply.
10. Export Control. As required by U.S. law, End User
represents and warrants that it: (a) understands that the
Software is subject to export controls under the U.S.
Commerce Department's Export Administration Regulations
("EAR"); (b) is not located in a prohibited destination country
under the EAR or U.S. sanctions regulations (currently Cuba,
Iran, Iraq, Libya, North Korea, Sudan and Syria); (c) will not
export, re-export, or transfer the Software to any prohibited
destination, entity, or individual without the necessary export
license(s) or authorizations(s) from the U.S. Government; (d)
will not use or transfer the Software for use in any sensitive
nuclear, chemical or biological weapons, or missile technology
end -uses unless authorized by the U.S. Government by
regulation or specific license; and that it (e) understands and
agrees that if it is in the United States and exports or transfers
the Software to eligible end users, it will, comply with all U.S.
and foreign applicable export laws.
11. Term and Termination. Unless terminated earlier as set
forth herein, this Agreement will remain effective for the lesser
of (1) the period as indicated in the Order Acceptance for the
Software, or (2) the period specified for the Software
Maintenance and Support item on the Order Acceptance. The
start of this period is the date that the Software is Delivered
(including by email) from Mimosa or its authorized distributors.
re authorize the Software in accordance with such instructions
provided by Mimosa at that time, or the Software may become
disabled.
12. Indemnification. Mimosa will defend (or settle) any claim
or action brought against End User for actual or alleged
infringement of any U.S. patent, copyright, or trademark based
upon the authorized use of the Mimosa Software by End User
in accordance with this Agreement, provided that End User
promptly notifies Mimosa in writing of the claim and allows
Mimosa to control, and fully cooperates with Mimosa in the
defense and all related settlement negotiations. Mimosa shall
pay any final judgment or settlement approved by Mimosa to
settle such claim or allegation made against End User and
Mimosa shall have no liability for any settlement or
compromise made without its consent. Upon notice of an
alleged infringement, or if in Mimosa's opinion such a claim is
likely, Mimosa shall have the right, at its option, to obtain the
right for End User to continue to exercise the rights granted
under this Agreement, substitute other software with similar
operating capabilities, or modify the Software so that it is no
longer infringing. In the event that foregoing options are not
reasonably available, in Mimosa's sole opinion, Mimosa party
may terminate this Agreement with written notice and provide a
pro rata refund of the license price paid by End User for the
Mimosa Software based as calculated on a three year useful
life. Mimosa shall have no obligation under THIS Section 12
with respect to any claim of infringement based upon
modification of the Software by End User, or the combination,
operation or use of the Software with materials not supplied by
Mimosa. This Section 12 sets forth the sole liability and
sole remedy of End User for infringement or
misappropriation of the intellectual property rights of a
third party.
13. Assignment. This Agreement may not be transferred or
assigned by either party without the prior written consent of the
other party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, consent of the other party shall
not be required for assignment or transfer made by
(i) reorganization or (ii) to an entity that acquires substantially
all of its stock, related assets or business. Except as provided
in this Section, any attempts by either party to assign any of its
rights or delegate any of its duties hereunder without the prior
written consent of the other party shall be null and void.
14. Notices. All inquiries, notices, consents and approvals
must be delivered in writing by courier, by facsimile (fax), or by
certified or registered mail, (postage prepaid and return receipt
requested) to the other party at the address set forth below for
Mimosa and on the signature page for End User. Either party
may change its address by giving written notice of the new
address to the other party.
Attn:
15. INJUNCTIVE RELIEF. The parties agree that a breach of
Sections 1 or 9, or of the scope of any of the licenses granted
hereunder, may result in irreparable and continuing damage to
Mimosa for which there may be no adequate remedy at law,
and Mimosa is therefore entitled to seek injunctive relief as well
as such other relief as may be appropriate.
for the Software and End User will be required to 16o
including the attachments and exhibits, constitutes the entire
agreement of the parties with respect to the subject matter
hereof and (i) supersedes all prior or contemporaneous oral or
written communications, proposals, and representations with
respect to its subject matter; and (ii) prevails over any
conflicting or additional terms of any quote, purchase order,
acknowledgment, or similar communication between the
parties. This Agreement may be amended only by a writing
executed by a duly authorized representative of each party.
17a General. If any provision of this Agreement is held to be
unenforceable, that shall not affect the enforceability of the
remaining provisions. This Agreement is the only agreement
between End User and Mimosa with respect to the Software
and if any portion of this agreement is found to be invalid, or
not legal, all other terms will continue as valid and legal. This
Agreement shall be governed by the laws of the State of Texas
and of the United States, without regard to any conflict of laws
provisions, except that the UNITED NATIONS CONVENTION
ON THE INTERNATIONAL SALE OF GOODS SHALL NOT
APPLY. This Agreement may be executed in counterparts
which taken together shall be regarded as one and the same
Agreement.
IN WITNESS WHEREOF, the parties hereto, through their duly
authorized representatives, have entered into this Agreement
as of the later of the dates set forth below.
MIMOS Sy , INC.
By:
Name: 2%74
Title:
Date:-
CITY OF FORT WORTH
Name: Karen Le Montgomery
Title: r
Date:
Address:
Attested byo
Page 4 of 4
_ i •
ANT C[TY ATTORNEY
��ty �ecTetary
OFFICI�41 RECORD'
CITY SEGRETi�RY �
FT. WORTH, TX
M&C Review
COUNCIL ACTION: Approved on 4/6/2010
DATE: 4/6/2010 REFERENCE O.: **C-24145 L NAME: 04EMAIL ARCHIVING AND
DISCOVERY SOFTWARE
CODE: C TYPE. CONSENT PUBLIC HEARING: NO
SUBJECT: Authorize an Agreement with Dell Marketing, L.P., for Hardware, Email Archiving and Discovery Software Licenses
Utilizing the State of Texas Department of Information Resources Contract, DIR-SDD-890 and Authorize Execution
of a Professional Services Agreement with Mimosa Systems, Inc., for Services for Computing Infrastructure to
Install and Manage the Email Archiving System for a Total Amount Up to $228,533.00 Reduce Costs and Improve
Responsiveness to Public Information Requests for Email
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize an agreement with Dell Marketing, L.P., for hardware, email archiving and discovery software licenses utilizing the
State of Texas Department of Information Resources Contract, DIR-SDD-890; and
2. Authorize execution of a professional services agreement with Mimosa Systems, Inc., for services for computing inftastructure to
install and manage the email archiving system.
DISCUBBION-
Dell Marketing, L.P. (Dell) is an authorized reseller of Mimosa Systems, Inc., (Mimosa) hardware and software for email archiving.
The Information Technology Solutions Department {ITS) will use this agreement to purchase email archiving and discovery
software from Dell. Mimosa will provide professional services for the computing infrastructure to install, run and manage the
software as well as archive emails. Payment will be made directly to Dell as authorized reseller of Mimosa products and services.
This solution will reduce the time and costs for City staff to respond to discovery requests and Public Information Requests for
email ensuring compliance with the Public Information Act and other discovery requirements.
The existing procedures in place to respond to PIR's are very labor intensive for City staff, costly to requestors due to the labor
involved and in most cases, the amount the City is authorized to recover under the law does not sufficiently cover the actual labor
costs required to fulfill these requests. By implementing these new tools and procedures, City staffs time required for responding to
PIR's will be greatly reduced. Payment will be made directly to Dell as authorized reseller of Mimosa products and services.
The State of Texas Department of Information Resources (DIR) is authorized to offer the cooperative purchasing. programs to state
agencies, public institutions of higher learning, public schools districts and local governments. Pursuant to Government Code
Section 791.025, a local government that purchases goods and services under the Intedocal Cooperation Act satisfies otherwise
applicable competitive bidding requirements.
By leveraging the State DIR Cooperative Purchasing Program, the City will be able to execute this Agreement quickly and cost
effectively. This Agreement will begin upon execution and expire on January 13, 2011 to correspond with the DIR contract term.
M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the Information Technology Solutions
Department and approved by the M/WBE Office because the purchase of goods or services is from sources where subcontracting
or supplier opportunities are negligible.
http:/Japps.cfwnet.org/council�adcet/mc_review.asp?ID=13138&coundldate=4/6/2019 (1 of 2) [4/7/2010 4:36:04 PM]
M&C Review
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of
the Information Systems Fund.
TO Fund/Account/Centers
.. I mod , IF . ,
228 533.00
•
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
Karen Montgomery (6222)
Peter Anderson (8781)
Steve Streiffert (2221)
http://apes.cfwnet.org/council�adcet/mc_review.asp?ID=13138&councildate=4/6/2010 (2 of 2} [4/7/2010 4:36:04 PM]