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HomeMy WebLinkAboutC07-311 EMC CorporationE 2 where information lives EMC Contract Ref k Professional Services Agreement This Professional Services Agreement ("PSA") is effective as of 20 (the "Effective Date") between: EMC Corporation ("EMC") and Eagle County ("Customer") 176 South Street Address: 500 Broadway Hopkinton, MA 01748 Eagle, CO 81631 Fax for legal notices: 508.497.6994 Fax for legal notices: (970) 328-3599 Email for legal notices: legalnotices@emc.com Email for legal notices: scott.lingle@eaglecounty.us This PSA sets forth the general terms and conditions under which EMC and Customer may periodically engage EMC to provide certain professional, educational, operational and technical services ("Services") on a project basis pursuant to a Statement of Work that will be entered into between EMC and Customer ("SOW") for each engagement. GENERAL TERMS AND CONDITIONS 1. SERVICES. EMC shall provide the Services described in an SOW that details the relationship of the parties with regard to a specific project. Each SOW shall (i) be signed by the parties; (ii) incorporate by reference this PSA; and (iii) state the pertinent business parameters, including, but not limited to, pricing, payment, expense reimbursement, and a detailed description of the Services to be provided. Such business parameters shall control as to the engagement described in an SOW, but additional or conflicting legal terms may only be added by express amendment to this PSA signed by authorized representatives of the parties, even if they are to apply only to one SOW. 2. TERM AND TERMINATION. A. Term; Survival. The term of this PSA commences on its Effective Date and shall remain in effect unless terminated as provided below. Upon any termination of this PSA, Sections 2, 3(B), 4, 5, 6(B), and 8 through 12 hereof shall survive in accordance with their terms. Termination of this PSA or any SOW shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer of its obligation to pay all fees and expenses for all Services performed, including any deliverables associated with such Services, as of the date of termination. B. Termination for Convenience. Either party may terminate this PSA for convenience by providing the other with written notice, which termination shall become effective upon the later of (1) fourteen days after receipt of such notice by such other party or (2) completion and payment for the Services set forth in any SOW(s) effective on the date of receipt of such notice. In addition, Customer may terminate any SOW hereunder fourteen days after EMC's receipt of Customer's written notice and Rev070111 EMC Confidential Information Customer shall pay EMC for the value of all work performed through the date of termination. C. Termination for Breach. Either party may notify the other in writing in case of the other's alleged breach of a material provision of this PSA and/or an applicable SOW. The recipient shall have thirty (30) days from the date of receipt of such notice to effect a cure. If the recipient of the notice fails to effect a cure within such period, then the sender of the notice shall have the option of sending a written notice of termination of the applicable SOW(s), or the PSA if the breach affects multiple SOWs, which notice shall take effect upon receipt. 3. PROPRIETARY RIGHTS. A. Ownership. Customer shall own all copyright rights in written reports, analyses and other working papers delivered by EMC to Customer in the course of performing Services, as well as Customer's derivative works thereof, subject to Customer's payment in full under such SOW and subject to EMC's rights in the underlying intellectual property embodied therein or used by EMC to perform the Services. B. License Grant. Subject to the terms and conditions of this Agreement, EMC grants Customer the worldwide, non-exclusive, non -transferable, non-sublicenseable, perpetual, irrevocable (except as set forth in Section 2(C)) right under EMC's copyrights to use, copy, and create derivatives of any materials provided by EMC in the course of performing Services solely for Customer's internal business operations as contemplated by the applicable SOW. The foregoing license excludes EMC's generally available products which are licensed via separate ordering agreement or pre -released products Customer may have received from EMC under a separate testing agreement. Page 1 of 4 C. Reservation of Rights. EMC reserves all rights not expressly granted to Customer in this Agreement. Except as expressly stated, nothing herein shall be construed to (1) directly or indirectly grant to a receiving party any title to or ownership of a providing party's intellectual property rights in services or materials furnished by such providing party hereunder, or (2) preclude such providing party from developing, marketing, using, licensing, modifying or otherwise freely exploiting services or materials that are similar to or related to the Services or materials provided hereunder. 4. CONFIDENTIALITY. A. Confidential Information. "Confidential Information" means the terms of this PSA (including the terms of each SOW) and all confidential and proprietary information of EMC or Customer, including without limitation all business plans, product plans, financial information, software, designs, formulas, methods, know how, processes, materials provided to Customer in the course of performing Services under this Agreement, and technical, business and financial data of any nature whatsoever (including, without limitation, any marketing, pricing and other information regarding the Services), provided that such information is marked or designated in writing as "confidential," "proprietary," or any other similar term or designation. Confidential Information does not include information that is (i) rightfully in the receiving party's possession without obligation of confidentiality prior to receipt from the disclosing party; (ii) a matter of public knowledge through no fault of the receiving party; (iii) rightfully furnished to the receiving party by a third party without restriction on disclosure or use; or (iv) independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information. Each party shall (i) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this PSA or any SOW hereunder, and (ii) use at least reasonable care to protect from disclosure to any third parties any Confidential Information disclosed by the other party for a period from the date hereof until three (3) years following the later of (i) the termination date of this PSA or (ii) the last date of the completion or other termination of Services under each SOW entered into hereunder, provided, however, that Confidential Information that constitutes, contains or reveals, in whole or in part, EMC proprietary rights shall not be disclosed by the receiving party at any time. Notwithstanding the foregoing, a receiving party may disclose Confidential Information pursuant to a valid order of a court or authorized government agency provided that the receiving party has given the disclosing party prompt notice so that the disclosing party will have an opportunity to defend, limit or protect against such disclosure. B. Publicity. Each party shall not, and shall not authorize or assist another to, originate, produce, issue or release any written publicity, news release, marketing collateral or other publication or public announcement, relating in any way to this PSA or any SOW entered into hereunder, without the prior written approval of the other, which Rev070111 EMC Confidential Information approval shall not be unreasonably withheld; provided, however, that EMC may identify Customer for reference purposes. 5. PAYMENT TERMS. A. Invoicing and Payment. EMC shall submit invoices for fees and reimbursable costs and expenses and Customer shall pay each invoice in the manner specified in the applicable SOW. Customer will also pay all related taxes and withholdings, except for those based on EMC's net income. If Customer is required to withhold taxes, then Customer will forward any withholding receipts to EMC at tax@emc.com. Subject to EMC's credit approval, all amounts are due in the currency stated on the invoice and in full 30 days after the date of EMC's invoice, with interest accruing thereafter at the lesser of 1.5% per month or the highest lawful rate. 6. WARRANTY. A. Warranty. EMC shall perform Services in a workmanlike manner in accordance with generally accepted industry standards. Customer must notify EMC of any failure to so perform within ten (10) days after the date on which such failure first occurs. EMC's entire liability, and Customer's sole remedy, for EMC's failure to so perform shall be for EMC to, at its option, (i) use reasonable efforts to correct such failure, and/or (ii) terminate the applicable SOW and refund that portion of any fees received that correspond to such failure to perform. B. Disclaimer and Exclusions. Except as expressly stated in Section 6(A) above, EMC (including its suppliers, subcontractors, employees and agents) provides Services "AS IS" and makes no other express or implied warranties, written or oral, and ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON -INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. 7. IP INDEMNITY. EMC shall (i) defend Customer against any third party claim that the Services and the related materials provided by EMC to Customer infringe a patent, or a copyright enforceable in a country that is a signatory to the Berne Convention, and (ii) pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction or the amounts stated in a written settlement signed by EMC. Customer shall (i) defend EMC against any third party claim that the materials provided by Customer or its agents for use by EMC infringe a patent, or a copyright enforceable in a country that is a signatory to the Berne Convention, and (ii) pay the resulting costs and damages finally awarded against EMC by a court of competent jurisdiction or the amounts stated in a written settlement signed by Customer. The foregoing obligations are subject to the following: the indemnitee (a) notifies the indemnitor promptly in writing of such claim, (b) grants the indemnitor sole control over the defense and settlement thereof, (c) reasonably cooperates in response to an Page 2 of 4 indemnitor request for assistance, and (d) is not in material breach of this PSA. Should such a claim be made, or in the indemnitor's opinion be likely to be made, the indemnitor may, at its option and expense, (1) procure for the indemnitee the right to make continued use thereof, (2) replace or modify such so that it becomes non - infringing, (3) request return of the subject material, or (4) discontinue the Service and refund the portion of any pre- paid Service fee that corresponds to the period of Service discontinuation. The indemnitor shall have no liability under this Section 7 to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of the subject Services and/or materials with third party products or services, (B) use for a purpose or in a manner for which the subject Services and/or materials were not designed, (C) any modification to the subject Services and/or materials made by anyone other than the indemnitor or its authorized representatives, (D) any modifications to the subject Services and/or materials made by the indemnitor pursuant to the indemnitee's specific instructions, or (E) any technology owned or licensed by the indemnitee from third parties. THIS SECTION STATES THE INDEMNITEE'S SOLE AND EXCLUSIVE REMEDY AND THE INDEMNITOR'S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS. 8. LIMITATION OF LIABILITY. A. Limitation on Direct Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7 ABOVE, EMC'S TOTAL LIABILITY (INCLUDING THE LIABILITY OF ANY SUPPLIER, SUBCONTRACTOR, EMPLOYEE OR AGENT OF EMC), 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 EMC'S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED (i) US$1,000,000, FOR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; AND (ii) THE PRICE PAID BY CUSTOMER TO EMC FOR THE SPECIFIC SERVICE FROM WHICH SUCH CLAIM ARISES, FOR DAMAGE OF ANY TYPE NOT IDENTIFIED IN (i) ABOVE BUT NOT OTHERWISE EXCLUDED HEREUNDER. B. No Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF EMC PROPRIETARY RIGHTS (INCLUDING ANY LICENSE GRANTED THEREUNDER), CLAIMS ARISING UNDER SECTION 4 (CONFIDENTIALITY), OR CLAIMS FOR INDEMNITY ARISING UNDER SECTION 7 (IP INDEMNITY), NEITHER CUSTOMER NOR EMC (INCLUDING EMC'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, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF; AND (ii) BRING ANY CLAIM BASED ON ANY SERVICE Rev070111 EMC Confidential Information PROVIDED HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. 9. GOVERNMENT REGULATIONS. The Services and any technology delivered in connection therewith pursuant to this PSA and/or any SOW entered into hereunder may be subject to governmental restrictions on exports from the U.S.; restrictions on exports from other countries in which such Services and technology may be provided or located; disclosures of technology to foreign persons; exports from abroad of derivative products thereof; and the importation and/or use of such technology included therein outside of the United States (collectively, "Export Laws"). Diversion contrary to U.S. law is expressly prohibited. Customer shall, at its sole expense, comply with all Export Laws and EMC export policies made available to Customer by EMC. Customer represents that it is not a Restricted Person, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti- terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; or (2) on any restricted person or entity list maintained by any U.S. governmental agency. Certain information, Services or technology may be subject to the International Traffic in Arms Regulations. This information, Services or technology shall only be exported, transferred or released to foreign nationals inside or outside the United States in compliance with such regulations. 10. NOTICES. Any notices permitted or required under this PSA and/or any SOW entered into hereunder shall be in writing, and shall be deemed given when delivered (i) in person; (ii) by overnight courier, upon written confirmation of receipt; (iii) by certified or registered mail, with proof of delivery; (iv) by facsimile transmission with confirmation of receipt; or (v) by email, with confirmation of receipt. Notices shall be sent to the address, facsimile number or email address set forth above, or at such other address, facsimile number or email address as provided to the other party in writing. 11. INDEPENDENT CONTRACTORS. The parties shall act as independent contractors for all purposes under this PSA. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party will have authority to speak for, represent or obligate the other party in any way without the prior written approval of the other party. 12. MISCELLANEOUS. This PSA and any SOW(s) entered into hereunder (i) shall constitute the complete statement of the agreement of the parties with regard to the subject matter hereof and (ii) may be modified only by a writing signed by authorized representatives of both parties. Except for the payment of fees, neither party shall be liable under this PSA or any SOW because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, Page 3 of 4 insurrection, terrorism, fires, natural disasters, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party. EMC shall not be liable under this PSA or any SOW because of failure or delay in performing its obligations hereunder on account of Customer's failure to provide timely access to facilities, space, power, documentation, networks, files, software, and Customer personnel that are reasonably necessary for EMC to perform its obligations. Neither party may assign this Agreement to a separate legal entity, without the other party's written consent. Neither party shall unreasonably withhold or delay such consent; provided, however, that such written consent shall not be required if (i) either party assigns this Agreement to a separate entity in connection with a merger, acquisition, or sale of all or substantially all of its assets with or to such IN WITNESS WHEREOF, the parties hereto have representatives as of the Effective Date. f" EMC CORPORATION` By (Sign): Name (Print): CARY PLATKIN Title: DIVISION COq NSEL Date: l c q U s.,e a! Approved �. other separate entity, unless the surviving entity of the merger, acquisition, or sale of assets is a direct competitor of the other party. Nothing herein shall limit EMC's right to assign its right to receive and collect payments hereunder. This PSA (including any SOW entered into hereunder) is governed by the laws of the Commonwealth of Massachusetts, excluding its conflict of law rules. All terms of any purchase order or similar document provided by Customer, including but not limited to any pre-printed terms thereon and any terms that are inconsistent, add to, or conflict with this PSA and/or an SOW, shall be null and void and of no legal force or effect. No waiver shall be deemed a waiver of any prior or subsequent default hereunder. If any part of this PSA and/or any SOW entered into hereunder is held unenforceable, the validity of the remaining provisions shall not be affected. caused this PSA to be executed by their duly authorized CUSTOMER By (Sign): _ Name (Print) Title: �.. t'_ Date:- Rev070111 EMC Confidential Information Page 4 of 4 ADDENDUM TO PROFESSIONAL SERVICES AGREEMENT BETWEEN EAGLE COUNTY AND EMC CORPORATION 1. Section 12. MISCELLANEOUS shall be amended to read as follows: This PSA and any SOW(s) entered into hereunder (i) shall constitute the complete statement of the agreement of the parties with regard to the subject matter hereof and (ii) may be modified only by a writing signed by authorized representatives of both parties. Except for the payment of fees, neither party shall be liable under this PSA or any SOW because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party. EMC shall not be liable under this PSA or any SOW because of failure or delay in performing its obligations hereunder on account of Customer's failure to provide timely access to facilities, space, power, documentation, networks, files, software, and Customer personnel that are reasonably necessary for EMC to perform its obligations. Neither party may assign this Agreement to a separate legal entity, without the other party's written consent. Neither party shall unreasonably withhold or delay such consent; provided, however, that such written consent shall not be required if (i) either party assigns this Agreement to a separate entity in connection with a merger, acquisition, or sale of all or substantially all of its assets with or to such other separate entity, unless the surviving entity of the merger, acquisition, or sale of assets is a direct competitor of the other party. Nothing herein shall limit EMC's right to assign its right to receive and collect payments hereunder. This PSA (including any SOW entered into hereunder) shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth Judicial District for the State of Colorado. Except for the terms of this Addendum, all terms of any purchase order or similar document provided by Customer, including but not limited to any pre-printed terms thereon and any terms that are inconsistent, add to, or conflict with this PSA and/or an SOW, shall be null and void and of no legal force or effect. No waiver shall be deemed a waiver of any prior or subsequent default hereunder. If any part of this PSA and/or any SOW entered into hereunder is held unenforceable, the validity of the remaining provisions shall not be affected. 2. The following language shall be added to the agreement as Section 13. BUDGETING AND APPROPRIATION. Funds equal to or in excess of the contract amount will be budgeted and appropriated for any project or services described in any SOW entered into hereunder. Notwithstanding anything to the contrary contained in this PSA or any SOW entered into hereunder, no charges shall be made to Customer nor shall any payment be made to EMC in excess of the above amounts, and EMC shall not be responsible for performing any services beyond this point, for any work done without the written approval of the County in accordance with a budget adopted by the Board of County Commissioners in accordance with the provisions of the Colorado Revised Statutes. The parties recognize that the Client is a governmental entity and that all financial obligations beyond a current fiscal year are subject to funds being budgeted and appropriated. 3. The following language shall be added to the agreement as Section 14. PROVISION MANDATED BY COLORADO REVISED STATUTES § 8-17.5-102: PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES. i. EMC shall not knowingly employ or contract with an illegal alien to perform work under this agreement; or enter into a contract with a subcontractor that fails to certify to the contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this agreement. ii. EMC shall confirm or attempt to confirm through participation in the Basic Pilot Verification program, as administered by the United States Department of Homeland Security, that EMC does not employ any illegal aliens. If EMC is not accepted into the Basic Pilot Verification Program prior to entering into this Agreement, EMC shall apply to participate in the Program every three months until the contractor is accepted or the services provided under this Agreement have been completed, whichever is earlier. Information on applying for the Basic Pilot Verification Program can be found at: https://www.vis-dhs.com\employerregistration iii. EMC shall not use the Basic Pilot Verification Program procedures to undertake pre-employment screening of job applicants while services under this Agreement are being performed. iv. If EMC obtains actual knowledge that a Subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, EMC shall be required to: a. Notify the Subcontractor and the County within three days that EMC has actual knowledge that the Subcontractor is employing or contracting with an illegal alien; and b. Terminate the Subcontract with the Subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the Subcontractor does not stop employing or contracting with the illegal alien; except that EMC shall not terminate the contract with the Subcontractor if during such three days the Subcontractor provides information to establish that the Subcontractor has not knowingly employed or contracted with an illegal alien. V. EMC shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority. vi. If EMC violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is terminated specifically for breach of this prohibition on public contracts for services provision, EMC shall be liable to the County for actual damages and for consequential damages, as provided by Colorado law. 4. The following language shall be added to the agreement as Section 15. CONFLICTS CLAUSE. If any conflict exists between the provisions of this Addendum and the existing Professional Services Agreement, the provisions of this Addendum shall control. 5. This Addendum shall be binding on the Parties hereto, their heirs, executors, successors and assigns. Dated this day of 2007. ATTEST: 4t) Teak J. Simonto , Cler Board of County Commissioners COUNTY OF EAGLE, STATE OF COLORADO By and Through its Board of County Commissioners By: - dJQ&a._ l ,,(. /IZ AAA - Arn M. Menconi, Chairman poo •ir►1� EMCr-lFtt-: By: Signature CARY PLATKIN DIVISION COUNSEL Print Name Title Date Legal Approved