MEMO
TO: Honorable Mayor and Council Members
FROM: M. Scott Hurlbert, City Manager
DATE: November 19, 2024
SUBJECT: Agenda item 10h – Due to technical difficulties, agenda item 10h was not compiled into the November 19, 2024, Regular Cit y Council agenda packet.
_____________________________________________________________________________________
Agenda Item:
10) CONSENT CALENDAR:
h. Adopt a Resolution Authorizing the City Manager or Designee to Finalize and Execute a Professional Services Agreement with Assured Data Protection for Rubrik Backup Solution, Subject to the City Manager and City Attorney Review, and Find that this action is not a project as defined under the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15378, no environmental review is required.
STAFF REPORT
City of Wasco
TO: Honorable Mayor and Council Members
FROM: M. Scott Hurlbert, City Manager
DATE: November 19, 2024
SUBJECT: Adopt a Resolution Authorizing the City Manager or Designee to Finalize and Execute a Professional Services Agreement with Assured Data Protection for Rubrik Backup Solution, Subject to City Manager and City Attorney Review.
_____________________________________________________________________________________ Recommendation:
Staff recommend the City Council:
1) Adopt a resolution authorizing the City Manager or designee to finalize and execute a professional service agreement with Assured Data Protection for implementing a Rubrik backup solution, subject to City Manager and City Attorney review; and
2) Find that this action is not a project as defined under the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15378, no environmental review is required.
Environmental Review:
The staff has reviewed the proposed activity for compliance with the California Environmental Quality Act(CEQA) and has determined that the activity is not a “Project” as defined under Section 15378 of the State CEQA guidelines because the proposed activity consists of a governmental fiscal/administrative activity which does not result in a physical change in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is required.
Background:
The City of Wasco currently relies on traditional backup methods that pose limitations and challenges in managing data for the Wasco Police Department. These methods, which rely heavily on manual data management, are inefficient and prone to issues. This increases the risk of errors, causes delays in data recovery, and requires significant staff time to manage, monitor, and troubleshoot. Additionally, the current system lacks real - time data security.
To address these challenges, the Wasco Police Department would benefit from adopting a modern, reliable backup solution like Rubrik. Rubrik provides a comprehensive, automated, and secure system that ensures data integrity, protection, and rapid recovery. With advanced security features, automated processes, and strong compliance support, Rubrik aligns well with the specific requirements of law enforcement, enhancing data security and operational continuity for the department.
Discussion:
Rubrik’s automated data protection solution removes the need for manual processes, providing a seamless, secure backup system that includes advanced security and compliance features tailored to sensitive law enforcement data. It also offers real -time recovery options that reduce downtime and support continuous operations. After assessing several vendors, the Wasco Police Department recommends partnering with Assured Data Protection due to their expertise in Rubrik solutio ns, their experience with law enforcement data management, and their strong support record. This partnership is expected to lower administrative workload, strengthen data security, and ensure compliance with essential state and federal guidelines.
The American Rescue Plan Act (ARPA) provides funding to help communities address COVID-19 impacts, including support for technology that enhances government services. Using ARPA funds for the Rubrik backup solution for the Wasco Police Department strengthens data security and operational efficiency, benefiting the public by ensuring that critical law enforcement data is securely stored and accessible. This allows the police to respond effectively to incidents and maintain operations, even during data loss or cyber threats. Investing in Rubrik demonstrates the city’s commitment to modern, efficient governance, enhancing public safety, transparency, and trust for Wasco residents.
Fiscal Impact:
The implementation of Assured Data Protection (Rubrik) will incur one-time costs of approximately $2,000. and ongoing annual recurring costs of approximately $6,600. If the recurring tools and services are billed annually, the entire expense will likely be recognized in the current FY 2024/2025.
Attachments:
1. Resolution
2. Draft Agreement
RESOLUTION NO. 2024 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WASCO AUTHORIZING
THE CITY MANAGER OR DESIGNEE TO FINALIZE AND EXECUTE A PROFESSIONAL SERVICES
AGREEMENT WITH ASSURED DATA PROTECTION FOR RUBRIK BACKUP SOLUTION, SUBJECT TO
CITY MANAGER AND CITY ATTORNEY REVIEW
WHEREAS, the City wishes to enter into a Professional Services Agreement with Assured Data Protection, Inc; and
WHEREAS, the City of Wasco currently uses traditional, m anual backup methods that present challenges for data management within the Wasco Police Department, leading to inefficiencies and potential vulnerabilities; and
WHEREAS, effective and secure data management is essential for the Wasco Police Department to maintain operational efficiency, compliance with state and federal guidelines, and data integrity; and
WHEREAS, the products and services proposed by Assured Data Protection, Inc have been reviewed by Staff and determined to have the required features and support to meet the City’s needs; and
WHEREAS, the Agreement shall also be subject to review and approval as to legal form by the City Attorney; and
WHEREAS, the Agreement shall not be valid unless and until so approved by the City Attorney and executed by the City Manager or designee.
NOW THEREFORE BE IT RESOLVED, by the City Council of the City of Wasco as follows:
SECTION 1: Authorizes the City Manager or desi gnee to finalize and execute a Professional Services Agreement with Assured Data Protection, Inc.
SECTION 2: The Agreement as attached hereto as Exhibit “ A” shall not be valid unless and until so approved by the City Attorney and executed by the City Manager or designee.
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I HEREBY CERTIFY that the foregoing Resolution No. 2024 - was passed and adopted by the Council of the City of Wasco at a regular meeting thereof held on November 19, 2024, by the following vote:
COUNCIL MEMBERS: MEDINA, SALDAÑA, MARTINEZ, RAYA, REYNA AYES:
NOES:
ABSTAIN:
ABSENT:
__________________________________
VALENTIN MEDINA
MAYOR of the City of Wasco
Attest: ________________________
__________________________
MARIA O. MARTINEZ, CMC
CITY CLERK and Ex Officio Clerk of
the Council of the City of Wasco
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Agreement Number:WAS10072024
MASTER SERVICES AND LICENSE AGREEMENT
This Master Services and License Agreement (the “Agreement”) is made and entered into effective on_______________, (the “Effective Date”) by and between:
Assured Data Protection, Inc. (“Assured”) City of Wasco 13873 Park Center Road, Suite 300N 746 8th St,
Herndon, Virginia 20171 Wasco, California 93280
1. DEFINITIONS
As used in this Agreement, the following terms shall have the corresponding definitions set forth below:
“Acceptable Use Policy” or “AUP” means the acceptable use policy for the Service, located at https://assured-
dp.com/acceptable-use-policy/.
“Affiliate” means an entity that Controls, is Controlled by or is under common Control with Client or Assured.
“Appliance” means the computer server, including standard embedded software, additional components set out in an Order and any Enhancements, that shall be installed at Client’s facility and shall submit Client Data to the Service.
“Authorized Contact Personnel” means personnel designated by Client in writing to have access to Support.
“Client” means Client or a Client Affiliate identified in an Order.
“Client Data” means Client’s data and information submitted to the Service.
“Confidential Information” means the information identifi ed in Section 9.
“Control” means the ownership of more than fifty percent (50%) of an entity’s stock or other voting interest.
“Documentation” means the current technical and user
documentation for the Service, located at https://assured- dp.com/service-descriptions/.
“Enhancements” means the updates, upgrades, modifications, new releases and corrective programming to the Service that are made available during the Service Term.
“Hosting Environment” means the environment utilized for the Hosting Services.
“Hosting Services” means the hosting of the Service by the Hosting Services Provider.
“Hosting Service Provider” means an entity that provides the
Hosting Services.
“Order” means the document set out in Exhibit 1, or a subsequent document entered into by the parties, that grants Client the right to use the Service.
“Service” means the services, including, as applicable, the Appliance, described in an Order that will be provided by Assured to Client during the Service Term.
“Service Level Agreement” or “SLA” means the service level uptime for the Service, as set out in Exhibit 2.
“Service Term” means the term of the license to the Service set out in Section 13, below.
“Support” means the technical support for the Service described in Section 4, below.
“Support Guidelines” means the documentation that describes the Support for the Service.
“Term” means the term of this Agreement set out in Section 13, below.
“Territory” means the United States or the countries or locations identified in an Order.
“Warranty Period” means the ninety (90) day period following the date the Service is initially made available to Client.
2. SCOPE OF AGREEMENT; ORDERS
During the Term, Client may obtain the right to access and use the Service pursuant to the terms of this Agreement by executing an Order. Each Order shall incorporate this Agreement by reference, identify the Service Term and shall give rise to a separate and distinct contract under this Agreement. Any event of default under an Order shall not be considered, in and of itself, an event of default under any other Order. All references to Client in this Agreement shall apply to each Client referenced in an Order.
3. GRANT OF LICENSE
Assured hereby grants Client a non- exclusive, non-transferable license during the Service Term to: (i) access and use the Service from Client’s location in the Territory; and (ii) to submit Client Data to the Service, as provided herein, subject to the Agreement and Order. The grant of rights hereunder is not a sale of the Service.
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Assured and its third- party providers reserve all rights not expressly granted by this Agreement.
4. SERVICE; SERVICE LEVEL
A. General
During the Service Term, the Service shall be made available to Client through the Hosting Services. Unless otherwise set out in an Order : (i) the current commercially available release of the Service shall be hosted in the Hosting Services; and (ii) Assured shall not provide any customization to the Service, integrate the Service to Client’s environment, except as applicable to the Appliance, or perform any other consulting services. Assured shall have primary
administrative rights and controls for the
Service and Assured shall be responsible for all costs and expenses related to the development and hosting of the
Hosting Services, including selecting the Hosting Service Provider.
B. Availability
Assured shall use commercially reasonable efforts to make the Service available in accordance with the SLA. If during any month Assured fails to satisfy the SLA, Client shall, as its sole and exclusive remedy, receive the service credit set out in the SLA.
C. Network Connections; User Credentials
Client shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its network or s ystems to the Hosting Environment. Client shall be responsible for any problems, delays, delivery failures and all other loss or damage arising out of or relating to Client’s network connections or telecommunications links, including the internet, to the Hosting Environment or Service.
D. Support
Assured shall provide Support for the Service during the Service Term. Support shall consist of: (i) email and telephone support to assist Client with the use of the Service; (ii) the correction of errors or non-conformities with the Service in accordance with the Support Guidelines; and (iii) Enhancements. The email and telephone support described herein shall be provided only to Authorized Contact Personnel during Assured’s business hours.
Assured shall u se reasonable commercial efforts to implement Enhancements and perform other services that will minimally impact use of the Service. Certain Enhancements may require Client, in order to use the current release of the Service and access the Hosting Environment, to implement changes to Client’s computer environment. If an Enhancement will require Client to make any changes, Assured shall provide Client with reasonable prior notice of the implementation of the
Enhancements.
5. USE OF SERVICE
A. Entitlements
The Service shall only be used by and for the benefit of Client in accordance with this Agreement and an Order, including the AUP, and subject to any limitation set out in an Order. Unless permitted in an Order or agreed to by the parties in writing, Client shall not use the Service as a Service Provider nor shall the Service be used or accessed in excess of the entitlements set out in an Order.
B. Restrictions
Client shall not: (i) copy the Service, including any portion thereof; (ii) make derivative works of the Service, reverse engineer or decompile the Service, including any portion thereof; (iii) attempt to unlock or bypass any initialization system, encryption methods or copy protection devices in the Service ; (iv) modify, alter or change the Service, including any proprietary notices; (v) use the Appliance independent of the Service; or (vi) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or in violation of third party rights.
6. COMPLIANCE
A. Use of Service
Client shall comply with all applicable law, the terms of use of the Service that Assured may identify to Client from time to time, including the AUP, and the terms of services of any non-Assured provided applications that Client may use with the Service. Client shall use commercially reasonable efforts to prevent
unauthorized access to or use of the Service and shall promptly notify Assured of any unauthorized access or use that it becomes aware of.
B. Foreign Corrupt Practices Act.
Each party shall: (i) comply with all applicable laws relating to anti- corruption or anti -bribery, including but not limited to the requirements of the Foreign Corrupt Practices Act, as amended, (“FCPA”) (15 U.S.C. §§78dd- 1, et. s eq.), the UK Bribery Act (“UKBA”) and any legislation implementing the Organization for Economic Co- operation and Development “Convention on
Combating Bribery of Foreign Public Officials in International Business Transactions” (the “OECD Convention”) or other anti- corruption/anti-bribery convention; (ii) neither directly nor indirectly, pay, offer, give, or promise to pay or give, any portion of monies or anything of value received from the other party to a non-U.S. public official or any person in violatio n of the FCPA, UKBA and/or in violation of any applicable country laws relating to anti-corruption or anti-bribery. Neither party will (1) give, offer, promise or give a national of the U.K., U.S. or elsewhere, with the intention of inducing or rewarding a person to perform certain functions improperly, where there is an expectation that those functions are to be performed in good faith, impartially, or in a position of trust; or (2) request, agree to receive, or accept a financial or other advantage from another person whether a
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national of the U.K., U.S. or elsewhere, intending that, in consequence, a relevant function or activity (as explained above) should be performed improperly or as a reward for the improper perordeance of a relevant function.
C. Trade Compliance
Each party shall comply with all applicable import, re -import, sanctions, anti -boycott, export, and re- export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. Client represents and warrants that Client and Client’s financial institutions, or any party that owns or controls Client or Client’s financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
7. CLIENT DATA
A. Assured Responsibilities
Assured shall maintain appropriate administrative, physical and technical safeguards and restrictions reasonably designed to: (i ) insure the security, confidentiality, and integrity of Client Data in the Hosting Environment; (ii) protect against any anticipated threats or hazards to the security or integrity of Client Data in the Hosting Environment; and (iii) protect against unaut horized access to or use of such Client Data in the Hosting Environment that could result in substantial harm or inconvenience to Client.
Safeguards shall include, without limitation, regular monitoring, and reasonable measures to prevent access, use, modification, or disclosure of Client Data by Assured personnel, except (a) to provide the Service and prevent or address service or technical problems, (b) as compelled by law in accordance with this Agreement, or (c) as expressly permit in writing by Client.
Safeguards shall be materially consistent with the security requirements and safeguards generally utilized in the industry for protection of Client Data, subject to Client’s obligations set out in this Agreement.
B. Notification
Assured shall notify Client in writing, as soon as reasonably possible (but in no case later than five (5) business days unless applicable privacy law or regulation require earlier or delayed notice, in which case Assured shall abide by such law or regulation) of: (i) any data breach of Client Data; (ii) any use or disclosure of Client Data that is materially contrary to the authorizations or obligations in this Agreement; or (iii) any unauthorized access to or acquisition of such Client Data that materially compromises the security, confidentiality, or integrity of such Client Data of which it becomes aware and which creates a substantial risk of identity theft or fraud against one or more of Client’s customers.
C. Client Responsibilities
Client shall be solely responsible for all Client Data in transit to and from the Hosting Environment, including, without limitation, the accuracy, quality, integrity and legality of such Client Data, and Client shall encrypt all Client Data. Assured shall not be liable for any damages arising from the failure of Client to encrypt the Client Data or for any lost or damaged Client Data.
D. License to Client Data
Client owns and retains all rights in and to all Client Data. Client grants Assured a non-exclusive, non-transferable limited license to host, copy, transmit and display Client Data and any non- Assured applications utilized by Client with the Client Data, as reasonably necessary for Assured to provide the Service.
Subject to the limited licenses granted herein, Assured acquires no right, title, or interest from Client under this Agreement in or to any Client Data or non- Assured applications licensed or owned by Client. Client represents and warrants that the Client Data does not contain viruses, worms, Trojan horses or other harm ful computer code, files, scripts, agents, or programs.
8. FEES; PAYMENT TERMS
Client shall pay the fees set out in an Order. Client shall also pay applicable sales, use, value added, personal property, Internet- related or other taxes and government charges imposed on transactions hereunder, exclusive of Assured’s net income or corporate franchise taxes. Unless set out in an Order, fees are due thirty (30) days from the date of invoice. Client shall pay a late charge of one percent (1%) per month or the highest amount permitted by law, whichever is lower, on any fees not paid by the due date. Unless identified in an Order, all fees are stated in and shall be paid in United States currency via an approved electronic method.
9. CONFIDENTIALITY
A. Definition
During the Term, Assured and Client may have access to
Confidential Information of the other party. Confidential Information means all confidential and proprietary information of either party that may be disclosed (the “Disclosing Party”) to the other party (the “ Receiving Party”) under this Agreement; including, but not limited to: (i) this Agreement, Orders, Documentation, Support Guidelines and SLA; (ii) customer and prospect lists, existing agreements with vendors and business partners; ( iii) pricing proposals, financial and other business information, data processes and plans; (iv) research and development information, analytical methods and procedures, hardware design; (v) business practices, marketing, methods, know-how, processes, desi gns, performance tests, product evaluations, Appliance, Service, software, bug fixes and reported problems with the Service or Appliance; (vi) Client Data,
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information concerning the personnel, clients and potential clients of the Disclosing Party; and (vi i) any other information identified in writing as confidential or information that the Receiving Party knew or reasonably should have known was confidential.
B. Use of Confidential Information
Confidential Information shall be used solely for the Receiving Party’s performance under this Agreement and the exercise of its rights hereunder and shall not be disclosed to any third party.
The Receiving Party shall take reasonable precautions, at least as great as the precautions it takes to protect its own confidential information, to maintain the Confidential Information of the Disclosing Party in strict confidence. Assured may, subject to the terms of this Agreement, disclose Client’s Confidential Information to an Affiliate or a third- party consultant assisting Assured with the performance of Support or any of Assured’ other obligations under this Agreement. Assured shall require such Affiliate or consultant to agree in writing to confidentiality provisions at least as protective of confidential information as the provisions set out herein.
C. Exclusions
Confidential Information shall not include any information that the Receiving Party can establish: (i) is or subsequently becomes publicly available through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to disclosure of such information; (iii) is subsequently disclosed to Receiving Party by a third party who is not in breach of an obligation of confidentiality; or (iv) is independently developed by the Receiving Party without the use or benefit of the Confidential Information. Confidential Information may be disclosed under a court order, or a valid subpoena, to the extent counsel for the Receiving Party determines in its reasonable discretion that the disclosure of such Confidential Information is reasonably required and promptly notifies the Disclosing Party in writing of such determination and provides the Disclosing Party an opportunity to seek an appropriate protective order prior to disclosing such Confidential Information.
D. Injunctive Relief
The Disclosing Party may be irreparably damaged if the
obligations under this Section 9 are not enforced and such party may not have an adequate remedy in the event of a breach by the Receiving Party of its obligations hereunder. The parties agree, therefore, that the Disclosing Party may be entitled, in addition to other available remedies, to an injunction restraining any actual, threatened, or further breaches of the Receiving Party’s obligations under this Section or any other appropriate equitable order or decree.
10. INDEMNIFICATION
A. Mutual
Each party (the “ Indemnifying Party”) shall indemnify, defend, and hold the other party (the “Indemnified Party”) harmless from all losses, damages, costs, and expenses incurred by the Indemnified Party resulting from (i) the Indemnifying Party’s gross negligence or willful misconduct; or (ii) bodily injury, including death, or damage to tangible property caused by the Indemnifying Party’s negligence.
B. Intellectual Property
Assured shall indemnify, defend and hold Client, its officers, directors and employees, harmless from all losses, damages, costs and expenses to the extent they arise out of any claim by a third party that the Service, when used in accordance with the Documentation and in compliance with the terms of this
Agreement and the applicable Order, infringe or misappropriate any copyright, trade secret, United States trademark or United States patent.
C. Assured Obligations
If the Service are subject to a claim of infringement or misappropriation, or if Assured reasonably believes that the Service may be subject to such a claim, Assured shall have the right to: (i) replace the Service, as applicable, with functionally equivalent technology; (ii) modify the Service, while retaining substantively equivalent functionality; (iii) procure at no cost to Client the right to continue to use the Service; or (iv) if the foregoing is not commercially reasonable, direct Client to terminate use of the Service. If Assured directs Client to terminate use of the Service (or a permanent injunction is issued against such use), Client shall immediately terminate such use and Client’s remedies, in addition to the indemnification set out herein, shall be limited to a refund of any pre- paid fees for the Service for the remaining months in the Service Term.
D. Exclusions
Assured shall have no obligation to indemnify Client under this Section 10 if the infringement or misappropriation results from: (i) Client’s combination, operation or use of the Service with non- Assured provided products if such claim of infringement or misappropriation would have been avoided had such
combination, operation or use not occurred; (ii) Client’s use of the Service in breach of this Agreement or Order; (iii) Client Data or a non- Assured provided application; or (iv) unauthorized modification of the Service.
E. Client Obligations
Client shall indemnify, defend and hold harmless Assured, its officers, directors and employees, from all losses, damages, costs and expenses arising from or in connection with: (i) the unauthorized use of the Service; or (ii) a claim that the Client Data infringes or misappropriates any third party intellectual property right or v iolates any applicable federal, state or local laws, rules, statutes and regulations.
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F. Process
The Indemnified Party shall promptly notify the Indemnifying Party of any claim covered under this Section 10. The
Indemnifying Party shall have control of the defense of any such claim and shall defend at its own expense, any such claim or litigation, in cluding the right to settle any such claim. The Indemnified Party shall reasonably cooperate with Indemnifying Party, upon Indemnifying Party’s request and at Indemnifying Party’s cost, to defend such claim. Indemnified Party may elect to participate in the defense of any claim with counsel of its choosing at its own expense.
11. WARRANTIES
A. General
Each party represents and warrants that: (i) it has and will continue to have during the Term all rights, power, and authority necessary to enter into this Agreement and perform all of its obligations hereunder; (ii) the performance of its obligations under this Agreement does not and will not violate any law applicable to such party’s performance, any rights of any third party, or any agreement by which such party is bound; and (iii) it will procure all rights, certificates, licenses, permits or other approvals required for its performance under this Agreement.
B. Performance
Assured further represents and warrants that during the Warranty Period that the Service shall perform all material functions set out in the Documentation and shall otherwise operate in substantial accordance with such Documentation. If during the Warranty Period the Service fails to comply with this warranty, Client shall promptly notify Assured in writing of any alleged errors or non- conformities with the Service. Thereafter, Assured shall have thirty (30) days from receipt of such notice or an additional period of time as reasonably agreed to by the parties to correct such errors or non- conformities in accordance with the Support Guidelines. If Assured is unable to timely correct such errors or non-conformities, Client may elect to terminate the license to the Service.
C. Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN
THIS AGREEMENT, THE SERVICE ARE PROVIDED “AS IS”
AND ASSURED DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE,
INCLUDING BUT NOT LIMITED TO, A NY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE IN TRADE.
12. LIMITATION OF LIABILITY
EXCEPT FOR EITHER PARTY’S LIABILITY UNDER SECTIONS
9 AND 10, UNDER NO CIRCUMSTANCES SHALL EITHER
PARTY BE LIABLE FOR ANY PUNITIVE, SPECIAL,
CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR
REVENUE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT
FOR ASSURED'S LIABILI TY ARISING UNDER SECTION 10,
ASSURED’S TOTAL LIABILITY, IN TORT, CONTRACT OR
OTHERWISE, FOR ANY CLAIM ARISING UNDER THIS
AGREEMENT, SHALL NOT EXCEED THE AMOUNT OF FEES
PAID BY CLIENT TO ASSURED UNDER THE APPLICABLE
ORDER DURING THE PRIOR TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE CLAIM. The rights and
remedies set out in this Agreement allocate the risks between Assured and Client under this Agreement and the fees set out in an Order reflect the allocation of risks.
13. TERM; TERMINATION
A. Agreement
The term of this Agreement shall commence on the Effective Date and shall remain in effect until terminated as set out herein (the “Term”). The term of an Order shall commence on the Effective Date of such Order and shall remain in effect for the term identified in the Order (the “Service Term”). Unless otherwise provided in an Order, the Service Term shall automatically renew in additional twelve (12) month terms unless either party provides the other party with notice of termination at least thirty (30) days prior to the expiration of the then current Service Term of the intent to terminate. Upon commencement of a Service Term renewal, Assured may upon notice to Client increase the fees for the Service by up to 5%.
B. Termination
This Agreement may be terminated by either party upon written notice to the other party if: (i) the other party is in breach of any material obligation under this Agreement and such breach continues uncorrected for a period of thirty (30) days after notice or an additional period of time as may be agreed to by the parties; or (ii) the other party becomes insolvent or is adjudged as bankrupt under Chapter 7 of the United States Bankruptcy Code, makes an assignment for the benefit of creditors; has a receiver appointed or files a petition of bankruptcy. Notwithstanding the foregoing, Assured may, in its sole option, terminate this Agreement or suspend performance arising from a breach by Client, including, without limitation, use of the Service in a manner inconsistent with the terms of this Agreement or Client commits an act constituting a criminal activity, or fraud.
C. Effect of Termination
Except as provided herein, upon termination or expiration of the Term: (i) all rights granted under this Agreement shall terminate immediately and Client shall immediately cease use of the Service and any other Confidential Information of Assured; (ii) Client shall pay any and all sums then owing to Assured as of the effective date of termination; and (iii) the parties shall promptly return or destroy all Confidential Information of the other party in its possession. Upon termination or expiration of a Service Term,
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the rights granted under the Order, and each party’s obligation thereunder, shall immediately terminate.
D. Survival
Sections 7- 10, 12, 13 and 15 shall survive termination of this Agreement indefinitely or to the extent set out therein.
14. PUBLICITY
Assured may use Client’s name and logo to identify Client as a customer of Assured. Subject to Client’s consent, which shall not be unreasonably withheld, delayed, or denied, Assured may prepare a press release, case study or other collateral regarding Client’s use of the Service. Upon termination of this Agreement, Assured shall cease use of Client’s name and logo, but Assured may continue to use Client’s name and logo in any materials produced prior to termination of this Agreement. Except as provided herein, neither party shall use the name of the other party in publicity releases or similar activity without the consent of the other party.
15. GOVERNING LAW; DISPUTE RESOLUTION
A. Governing Law
This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Virginia, excluding its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.
Any dispute arising under this Agreement shall be brought i n a state or federal court located in Alexandria, Virginia. Neither party shall be entitled to bring any claim under this Agreement more than twenty-four (24) months after the cause of action upon which the claim is based arose.
B. Arbitration
Except as provided in Section 9(D), above, or any other circumstance in which a party is authorized under this Agreement to seek an injunction or other equitable relief, any controversy or claim arising out of or relating to this Agreement, including the determination of whether a dispute between the parties is subject to this provision, shall be settled by binding arbitration. The arbitration shall be held in the Washington, D.C. metropolitan area before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The decision of the arbitrator shall be rendered within thirty (30) days following conclusion of the arbitration, shall be in writing and shall set forth in detail the reasons for such decision.
Judgment upon the award may be entered in any court of
competent jurisdiction. The arbitrator shall not award punitive or exemplary damages or any damages in excess of the limitations set out in this Agreement. Notwithstanding the above, Assured may bring legal action to recover any amounts due under this Agreement. The parties shall maintain the confidential nature of the arbitration proceeding and any award, except as may be necessary to prepare for or conduct the arbitration hearing or in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law. In the event of any action or proceeding (including arbitration) brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees arising from such action or proceeding.
16. GENERAL
A. Assignment
Neither party shall assign its rights under this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld, delayed or denied. Notwithstanding the foregoing, Assured may upon written notice to Client assign this Agreement to an Affiliate or a third party that acquires all or substantially all of Assured’s equity or assets. This Agreement shall be binding upon and inure to the benefit of Assured and Client and their successors and permitted assigns.
B. Waiver
No course of dealing or failure to enforce any provision of this Agreement or any Order shall constitute a waiver of any rights under this Agreement or an Order. To be effective, any waiver to this Agreement must be in writing and signed by both parties.
C. Notice
Any notice alleging a breach of this Agreement shall be in writing and shall be sent by overnight courier or delivered in person to the party's address set forth in this Agreement. Any other notice required to be provided under this Agreement may be sent by U.S. mail or e-mail to the individual designated by each party.
D. Severability
If any provision of this Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be severed therefrom and the remaining provisions of the Agreement shall remain in full force and effect.
E. Force Majeure
Except for Client’s payment obligations, neither party shall be liable for any failure to perform or for delay in performance due to causes beyond its reasonable control.
F. Audit Rights
Assured (or a third party designated by Assured) shall have the right, upon reasonable notice to Client, one (1) time per each twelve (12) month period and at Assured’ sole cost and expense during regular business hours to conduct an audit of Client's use of the Service. Any such audit shall consist solely of a review of Client's compliance with the terms and conditions of this Agreement. Client shall provide all reasonable assistance to
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Assured during such review. If an audit determines that Client’s use of the Service fails to comply with the terms of the Agreement, Client shall reimburse Assured for the cost of such audit.
19. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between Assured and Client, and supersedes all proposals,
understandings, representations, prior agreements, or
communications relating to the Service and the subject matter of this Agreement. This Agreement also supersedes any pre- printed terms contained on any purchase order or similar document issued by Client. Client has not been induced to enter into this Agreement by any representations or promises not specifically stated herein. Neither this Agreement nor any Order shall be construed against the party that has prepared such Agreement or Order, but instead shall be construed as if both parties prepared the Agreement or Order. This Agreement shall only be modified or amended upon the written agreement of the parties. This Agreement, an Order or any modifications or amendments thereto shall be signed by authorized
representatives of the parties.
Agreed to and accepted:
ASSURED DATA PROTECTION, INC. C ITY OF WASCO
By: By:
Name: Name:
Title: Title:
Date: ____________________________________ Date: ____________________________________
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EXHIBIT 1
ORDER #001
This Order #001 (the “Order”) to Master Services and License Agreement #WAS10072024 (the “Agreement”) is made and entered into effective on _________________, (the “Order Effective Date”) by and between:
Assured Data Protection, Inc. (“Assured”) City of Wasco 13873 Park Center Road, Suite 300N 746 8th St,
Herndon, Virginia 20171 Wasco, California 93280
1. PRODUCTS:
Product Description Term
Rubrik Consumption - Tier III
Enterprise Edition
SKU: ADPCON110_3EE
Rubrik Software Consumption - Managed Rubrik appliance, on- premises, Replication to 2nd Rubrik Instance, DRaaS, and archive enablement; Enterprise Edition; Minimum Commit: 2TB
36 Months
Assured Data Protection Archive
(Per TB)
SKU: ADPMOS007
Assured Data Protection managed archive, Minimum Commit, 2TB 36 Months
2. SERVICE TERM
• 36-MONTHS
• Setup fees are billed upon signature
• Service billing will begin upon commencement of the Service Term • Service Term will commence upon Service delivery or the month following the arrival of on-premises hardware, whichever comes first. Notwithstanding, all billing will commence within 60 days of contract signature
3. FEES:
Product Contract Price Amount Client Price
Initial Install and Configuration
SKU: ADPSTP015 $2,000.00 NRC 1 $2,000.00 NRC
Rubrik Consumption - Tier III Enterprise Edition
SKU: ADPCON110_3EE $265.00 2 $530.00
Rubrik Consumption - Tier III Enterprise Edition Overages SKU: ADPCON110_3OEE $265.00 Actuals Actuals
Assured Data Protection Archive (Per TB)
SKU: ADPMOS007 $10.00 2 $20.00
Assured Data Protection Archive Overages (Per TB)
SKU: ADPMOS007_OVE $10.00 Actuals Actuals
Total Monthly Estimated Charges (36 Month contract) $550.00/Month
* Service includes disaster recovery resources: 4 vCPU and 32 GB of RAM (no additional charge). Customer has the ability to spin up and Livemount VMs in our data center on request. DR consumption beyond the allotment is charged on a per usage basis. Pricing is below for On Request VMs recovered and operated in the DR environment. The idea behind allotting some DR capacity is to give you the abili ty to stand up something critical, like AD, and power it on/off for DR testing whenever you feel like it. DR resources can also be reserved.
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**Actual On Demand Protected TBs will fluctuate monthly based on usage.
On Demand DR Resource pricing. Reserved resources with guaranteed availability are available Description Client Price
Disaster Recovery vCPU, On-demand; per Month (pro-rated hourly) $17.90 Disaster Recovery RAM (Per GB), On Demand; per Month (pro-rated hourly) $5.85 Disaster Recovery Persistent Disk (Per GB), On Demand; per month (pro-rated hourly) *** $0.21 Disaster Recovery Rubrik-based Livemount No Additional Cost
*** Persistent Disk is SSD fronted SATA, to be compared with Amazon EBS Provisioned IOPs with 5k shared available IOPs.
4. SCOPE OF LICENSE
License limited to Client internal use
5. SUPPORT
A. Maintenance Services
Assured shall provide Client with Support during the Service Term.
B. Implementation Services
Assured shall provide Client with the implementation services (the “Implementation Services”) for the Service as set out in Exhibit 1A, hereto. The Implementation Services shall be provided in accordance with the Agreement and this Order. If Client desires to retain Assured to perform additional services, the parties shall enter into a change order or amendment hereto.
6. GENERAL
The terms of this Order, including the license or rights granted herein and applicable fees, are conditioned upon Client’s execution and Assured’s receipt of this Order by 12/31/2024. If Client fails to execute and return this Order to Assured by such date, Assured may, in its sole discretion, decline to honor the terms of this Order, including the fees and license set out herein. The Agreement is supplemented as set forth herein. In the event of a conflict between the Agreement and this Order, the terms and conditions of this Order shall govern. Otherwise, all the terms and conditions of the Agreement not amended herein shall remain in full force and effect.
Agreed to and accepted by:
ASSURED DATA PROTECTION, INC. City of Wasco
By: By:
Name: Name:
Title: Title:
Date: Date:
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EXHIBIT 1A
IMPLEMENTATION SERVICES
The Implementation Services shall consist of the following:
1. Kick off call will introduce the installer and review the steps needed for appliance configuration. (1) Customer will be provided with the quick start guide with the request to fill out. (2) Once filled out the installer will complete pre-configuration of the appliance(s) and ship on prem. (3) For remote install, the customer/msp is requested to complete physical install.
2. Initial backup configuration call
3. Configuration review call to ensure all in scope objects are protected
4. Restore Testing Call
5. Offsite replication configuration call
6. DR Network Deep Dive (Tier III)
7. DR Settings Review (Tier III)
8. DR Smoke Test (Tier III)
9. Steady State Call
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EXHIBIT 2
SERVICE LEVEL AGREEMENT
1. DEFINITIONS
For the purpose of this SLA, the following terms shall have the corresponding definitions:
"Availability" means the total percentage of time within a Calendar Month that the Service are available, excluding Scheduled Downtime and Emergency Maintenance, and shall be calculated as follows:
Availability = Maximum Availability – Service Outage / Maximum Availability x 100 “Calendar Month” means each calendar month during the Service Term. “Emergency Maintenance Support” means instances where it is not practical for Assured to provide advance notice of a maintenance event, such as an unforeseen disruption of a critical service. Addressing these events may require that emergency maintenance be performed which may result in the disruption of the Hosting Services in order to conduct this emergency maintenance without prior notice.
“Incident” means a report issued to Assured by Client informing Assured that the Service is experiencing a Service Disruption.
“Maximum Availability” means the total number of minutes in a Calendar Month less the Scheduled Downtime.
"Scheduled Downtime” means routine tests, maintenance, upgrades, or repairs performed by Assured on the Hosting Environment; provided, Assured will use reasonable commercial efforts to provide Client fourteen (14) days prior notice of Schedule Downtime. “Service Disruption” means each occasion of 10 or more consecutive minutes in which Client is unable to access the Service. “Service Level” means the Availability of the Service in a Calendar Month. “Service Level Exceptions” means the exclusions from a Service Outage set out in Section 3, below. “Service Outage” means the aggregate of Service Disruptions in a Calendar Month, excluding the Service Level Exceptions.
2. INCIDENT PRIORITIZATION
All Incidents that are reported to Assured or that Assured otherwise becomes aware of will initially be assigned a priority by Assured as set forth in the Support Guidelines.
3. SERVICE CREDITS
Subject to the Service Level Exceptions, Assured shall provide Client with the following Service Level Credits if in any Calendar Month the Service Availability is 99.5% or lower:
AVAILABILITY SERVICE LEVEL CREDIT
99% - 99.49% 2.5%
95% - 98.90% 5%
90.1% - 94.9% 10%
<90.0% 20%
4. SCHEDULED MAINTENANCE SUPPORT
Standard Support, including the implementation of Enhancements and routine maintenance for the Service shall be scheduled outside of standard business hours. The expected window for Support that, for whatever reason, has to be conducted during business hours is
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Tuesday’s between 10:00 AM and 3:00 PM Eastern Time. Assured shall notify Client as provided herein if Scheduled Downtime is required.
5. NOTICE OF SERVICE OUTAGE; REMEDY
If Client is unable to access the Service, Client shall promptly notify Assured. To receive a Service Level Credit, Client must notify Assured during the occurrence of the outage problem to provide Assured an opportunity to resolve the outage. Upon the conclusion of each Calendar Month, Assured shall determine the Service Level for such Calendar Month. If Client is entitled to a Service Level Credit, Assured shall, as Client’s sole and exclusive remedy for the Service Outage, include the Service Level Credit on the subsequent monthly invoice. If the Service Level Credit occurs in the last month of the Service Term, Assured shall provide Client with a refund equal to the Service Level Credit within thirty (30) days following termination of the applicable Service Term.
6. SERVICE LEVEL EXCEPTIONS
Assured shall not be liable for any failure to meet the Service Levels, to the extent such failure was caused by one or more of the following:
• Scheduled Downtime or Emergency Maintenance.
• non-production use of the Services.
• a Force Majeure.
• any act or omission of Client, including the failure to comply with the Agreement or Order. • an outage caused by Client’s hardware, software or other third-party equipment procured, licensed, or controlled by Client, including network connections and telecommunication problems. • Deactivation or unavailability of the Call-Home Utility
7. RESPONSE TO SERVICE LEVEL FAILURE
In the event of a Service Failure, Assured shall promptly address such failure as provided herein:
• Promptly investigate and report on the causes of such problem based on the assigned severity level. • Provide a root cause analysis of such failure as soon as practical after such failure or at Client’s request. • Correct such Service Failure that is Assured’s fault or responsibility as provided herein. • Advise Client of the status of remedial efforts being undertaken with respect to such problem. • Demonstrate that the causes of such problem (that is Assured’ fault or responsibility) has been, or shall be, corrected. • Take corrective actions to prevent any recurrence of such problem (that is Assured’ fault or responsibility).