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HomeMy WebLinkAbout5.F.8. Renewal of Xiotech Maintenance Agreement 5:F. ~ City of Shakopee Memorandum TO: Mayor & City Council COr~SENT Mark McNeill, City Administrator FROM: Kris Wilson, Assistant City Administrator~,~ \ . SUBJECT: Renewal of Xiotech Maintenance Agreement DATE: July 31,2008 Introduction The Council is asked to authorize renewal of the City's maintenance agreement with Xiotech at a cost not to exceed $13,656. Background The City's IT system relies on a Storage Area Network (SAN) purchased from Xiotech in 2006. A maintenance agreement is entered into on both the SAN and a switch connected to the SAN to ensure that we receive ongoing customer support and emergency service at a manageable cost. Budget Impact The cost to renew this service agreement for one year is $13,656. These funds will be taken from the 2008 operating budget for the IT division. Requested Action The Council is asked to authorize appropriate City staff to renew our maintenance agreement with Xiotech at a cost not to exceed $13,656. j) Xiotech' 0: Ity of Shakopee Holmes St S arne Duckett, Quote Date: July 31, 200& 29 Holmes St S Quote Number: 92438-3081627 hakopee, MN US hone: 9522339357 mail: cduckett@cLshakopee.mn.us lis Quotation contains Xiotech's Terms and Conditions of Sale. If you did not receive Xiotech's Terms and Conditions of Sale. please contact Xlotech immediately Maintenance Renewal on 3000e and 9120 SW SSN:[ 11198] Cisco_00682 - 8/1/08-7/31109 ervice - Magnitude 3D Magnitude 3D 3000e Continuation Maintenance (4 Hour) - 1 Month 12 Combined Hardware, Software, and Phone support coverage on Magnitude 3D 3000e 020130-802 $1,725 $1,035 $12,42 and Magnitude 3D 3000e Edge systems. This offering is electronic support (e-mail, web forms, etc.) and phone support and 4 Hour parts delivery. ervice - Connectivity - Cisco 12 Cisco - SMARTnet Onsite 24x7x4hrs MOS 9120 Switch - Monthly 770317-002 $1,23 Cisco - SMARTnet Onsite 24x7x4hrs MDS 9120 Switch - Monthly Configuration Total: $13.65€ Total Investment: $13,65€ )cCon# 00000000 -00000000 Cid(71220 )[500412 -ADDRESS1 ] ,rms and Conditions ease reference the Quote Number (92438-3081627) at the top of this quotation in your purchase order. Offer valid 30 days from Quote Date. Payment Terms are Net-30. Taxes, duties, shipping and similar costs ,t included unless otherwise stated above. The attached 'Xiotech's Terms and Conditions of Sale' apply and are incorporated herein by this reference. If you did not receive 'Xiotech's Terms and Conditions of ,Ie', please contact Xiotech immediately. Customer expressly agrees ttlat all purchases from Xiotech wiii be governed by the 'Xiotecl1's T arms and Conditions of Saie' Xiotecn Terms and Conditions of Sale ese Terms and Conditions of Sale Agreement (Agreement) govern any sale of products by Xiotech Corporation ("Xiotech"). Xiotechs fulfillment of any quotation provided to Customer is subject to this Agreement y terms proposed by Customer, by purchase order or otherwise, which add, modify, limit, or conflict with Xiotechs offer are objected 10. This Agreement is effective upon acceptance by Xiotech of Customer's rchase order referencing ttle quotation provided by Xiotech, or as of the date signed by Xiotech and Cuslomer, whichever is earlier (the "Effective Dale"). ltech and Customer agree as follows; ~ This Agreement states the rights and obligations of the parties regarding products ("Products") and installation and support services ("Services") to be provided by Xiotech as described in the QuotatiOl Statement of Work. Products sold by Xiotech under this Agreement will be used for the purchaser's internal business purposes only and solely in accordance with related documentation and any applicable ecifications provided by Xiotech, and may not be distrlbuted or resold. Any software installed on the Products or otherwise provided by Xiotech ("Software") shall not be considered Products for purposes of the reement. Customer's rights and obligations with respect to Software will be governed by a separate End User License Agreement, which is incorporated herein by reference. ORDERS AND ACCEPTANCE. Customer's purchase order is deemed an acceptance of the terms of the Quotation and the terms of this Agreement, both of which Customer acknowledges receipt of prior to Istomer's delivery of its purchase order to Xiotech. All purChase orders submitted by Customer may be accepted or rejected by Xiotech, in its sole discretion, and shall be subject to this Agreement Xiotech's ceptance shall only occur upon delivery of its written acknowledgment ("Order Acknowledgment') to Customer. This Agreement supersedes all communications or agreements between the parties relating to the bject matter herein, whether or oral or written, including, but not limited to, Customer's purchase orders. Shipment within the continental United States will be F.O.B. shipping point and international shipments will be EXW shipping point (Incotenns 2000), at which time (the "Shipment Products will pass to Customer. All dUlies, import and export licenses and permits, custom charges and duty fees, taxes, excises, freight, insurances and other shipping penses will be paid by Customer. All delivery dates are estimated In good faith with no liability incurred by Xiotech for late delivery or performance under this Agreement Subject to the return policy stated in bsection 3(b) below, Products will be deemed to be accepted by Customer on the Shipment Date. I Returns. Products may be returned in undamaged condition to Xiotech, at Customer's expense, within thirty (30) days after the Shipment Date if: (i) the quantity or type of Products received fail to conform to th€ rchase order, and (ii) written approval is given by Xlotech (which approvel will not be unreasonably withheld). Customer must enclose proof of purchase and a written description of the reason for return of the oducts. Upon proper return of the Products as required above, Xiotech wili refund the purchase price paid by Customer for tM returned Products. PRICE. Xiotech will invoice Customer for amounts payable under this Agreement, and Customer will pay the full invoiced amount within thirty (30) days after the invoice date. Any late payments will bear interest a: ) lesser of 1.5% per month or the maximum rate permitted by law. All prices and payments shall be In U.S. dollars. Xiotech retains a security Interest In all Products to secure the timely payment of all amounts due der this Agreement Upon Customer's failure to pay any amount when due, Xlotech may exercise all of the rights of a secured creditor under the Uniform Commercial Code. WARRANTY, Standard limited Warranty. The limited warranties described below are SUbject to Xiotech's current standard limited warranty as set forth in Xiotech's current published Product datasheet ("Datasheet"), :orporated by this reference. The warranty period commences on the Shipment Date and ends on the date described in the Datasheet Xiotech warrants that Product bearing the Xiotech name will substantially nform to Xiotech's published specifications in effect as of the date of shipment and will be free from substantial defects in material and workmanship, as more fully set forth in the Datasheet Xiotech further "rants that all Services performed by Xiotech for Customer will be provided in a workmanlike manner. These limited warranties are contingent upon proper use of the Product for tile purpose intended and in cordance with the related documentation and any specific<ltions provided by Xiotech, and without moditication, movement or attempted movement of the Product from its initial installation position except as direele! performed by Xiotech. Customer shall have no claim to Product that was replaced or the components therein which were replaced. If Xiotech provides any replacement parts on a cross ship or exchange basis a Istomer fails to return to Xiotech the part for which Xiotech has provided a replacement within thirty (30) calendar days of Xiotech shipping such replacement pert to Customer, Xiotech will invoice Customer and Istomer agrees to pay for such non-returned part at Xiotech's then current part cost plus any shipping costs incurred by Xiotech for the replacement parI. I No Other Warranty. EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, XIOTECH GRANTS NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWiSE, REGARDING THE ~ODUCTS OR SERVICES, THEIR FITNESS FOR ANY PURPOSE, THEIR QUALITY, THEIR MERCHANTABiLITY, NONINFRiNGEMENT OR OTHERWiSE ALL WARRANTIES OTHER THAN THE EXPRESSED LIMITED ~RRANTY STATED ABOVE ARE DISCLAIMED AND EXCLUDED BY XIOTECH. ALL EQUIPMENT, PARTS AND SOFTWARE NOT BEARING XIOTECH'S NAME, ARE SUPPLIED "AS IS" AND CUSTOMER WILL LOOK lLEL YTO THE WARRANTIES AND REMEDiES, iF PNY, PROVIDED BY THE EQUIPMENT MANUFACTURER Exclusive Remedy under Warranty. XIOTECH'S LIABILITY UNDER ANY WilRRANTY is LIMITED TO, IN XIOTECH'S SOLE DISCRETION, REPAIRING OR REPLACING PRODUCT WITH A CONFORMING PRODUCT, C THE CASE OF SERVICES, REPERFORMANCE OF SUCH SERVICES. AL TERNATIVEL Y, XIOTECH MAY, IN XIOTECH'S SOLE DISCRETION, REFUND THE SALES PRICE TO CUSTOMER FOR SUCH UNIT OF PRODUCT. LIMITATION OF LIABILITY. XIOTECH WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER, WITH THE EXCEPTION OF BODII JURIES, DEATH OR DAMAGE TO TANGIBLE PROPERTY DIRECTLY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF XIOTECH. IN NO EVENT SHALL XIOTECH BE LIABLE FOR Al ,MAGES FOR OR RESULTING FROM LOSS OF OR DAMAGE TO DATA. LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHI :CUNIARY LOSS AND XIOTECH FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTtAL OR OTHER SIMILAR DAMAGES REGARDLESS OF THE FOF : ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGliGENCE), STRICT PRODUCT L1ABtLlTY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF XIOTECH HAS BEEN ADVISED OF TI lSSIBILlTY OF SUCH LOSSES OR DAMAGES, THE PARTIES ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTL IRPOSE, THE LIMITATIONS OF LIABILITY, DISCLAIMERS AND OTHER EXCLUSIONS SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT NOTWITHSTANDING ANYTHING ELSE, XIOTECl- lTAL AGGREGATE LlABfLlTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE PAlD BY YOU FOR SOFTWARE PRODUCT HEREUNDER THIS LIMITATION APPLIES TO A lFTWARE PRODUCTS, SPECIFIED XIOTECH PRODUCTS, AND/OR PRODUCTS AND ALL SERVICES PERFORMED DURING AND AFTER THE WARRANTY PERIOD, PROPERTY RIGHTS AND CONFIDENTIALITY. Property Rights. Nothing in this Agreement grants to Customer any right. title, or interest in any of Xiotech's intellectual property including without limitation patenls, trademarks, trade names, logos, inventions, pyrights, know-how, or trade secrets In any way relating to lhe design, manufacture, operation, use or service oHhe Products ("IP"). Use by Customer of Xiotech's IP is authorized solety to Ihe extent set forth In ,EULA I Confidentiality. Each party agrees to keep confidential any and all information received from the other party ttlat is marked Confidential or information fhat should reasonably have been understood by either par cause of legends or other markings, the circumstances of disclosure, or the nature of the infonnation itself, to be proprietary and confidential 10 the other party ("Confidential Information") including, but not limited I , terms of this Agreement. Neither party will use or disclose the other's Confidential Information for any purpose, except 10 employees on a "need to know" basis, who have been informed of their obligations unde, s Agreement Each party hereto shall remain liable to lhe other party for the use or disciosure of Confidential Information by any of its employees or agents in a manner inconsistent with this paragraph. All ,nfidentiallnformation, and any notes, documents or recordings containing Confidential Information, will be retumed to the appropriate party immediately upon fermination of this Agreement If Customer is a vernment entity subject to publiC records laws, each party agrees that any Xiotech technology made available to Customer under this Agreement constitutes Xiotech trade secret Information or similarly -designate( ormation exempt from disclosure to the maximum extent permitted under public records law. Prohibition AQalnstlmpalrment of IP Interests, Customer will not alter or remove any trademark, service mark, trade name, logo or othar designation applied to a Product or its packaging by Xlolech. ,stomer will not, whether acting alone, with or through others, in any way harm, use or impair, or attempt to harm, use or impair, any right, titie or interest of Xiotech in any IP, or any application or registration for ch IP, Including without limitation attempting to register or use any trademark, service mark, trade name, patent, copyright or other intellectual property which may in any way be confusingly similar to any IP. tNDEMNiFiCA TION AND HOLD HARMLESS FOR INFRINGEMENT BY XtOTECH. Indemnification, Subject to the limitations stated below, Xiotech will defend, indemnify and hold harmless Customer from any claim, suit, or proceeding to the extent made against Customer for infringement of a ,ited States patenl, copyright, or trademark by the Products sold to Customer under this Agreement Xiotech will have sole control of any such claim, suit or proceeding including, in its sote discretion and at its own pense, the right to settle. Xiotech will be relieved of any or all of its obligations under this provision, in its sole discretion, if Customer fails to: (I) promplly send notice to Xiotech of any such claim, suit or proceedin~ (ii) give Xiotech all information, authority and assistance reasonably necessary to setlle and/or defend any such claim, suit, or proceeding. : limitation. Notwithstanding Subsection B(a) above, Xiotech assumes no liability for any claim, suit or proceeding for Infringement arising or alleged to arise from use of a Product as part of any completed uipment or software not supplied by Xiotech, or as part of any assembly, circuit, combination, method or process not supplied by Xiotech. Xiotech assumes no liability for any claim, wit or proceeding arising or aged to arise from: (i) any marking or branding applied to a Product by a party other than Xiotech: (Ii) any marking or branding applied to a Product by Xiotech at the request of Customer; (iii) modification or servicin- all or part of a Product by any party other than Xiotech (except as expressly authorized by Xiotech in writing); or (iv) modification of all or part of a Product by Xiotech at Customer's requesL Enllre Liability. This Section B states the entire liability and obligalions of Xiotech, and the exclusive remedy of Customer, with respect to any actual or alleged infringement of any United States patent, copyright demark andior ottler intellectual property right by the Products, Services or any part thereof. SERVICES. Services shall be provided as speCified In Xlotech's most current Datasheet available at the time Customer purchases such Services. Customer understands Xiotech has relied on lstomer's commitment for the length and scope of Services set forth in the Datasheet In determining the fee payable by Customer for any Services purchased. Based on that reliance, a non-renewal or termination arge may epply to any early temlination of Services by Customer. Xiotech may charge Customer an inspection or re-certification fee for reinstatement of a lapsed or tenninated support period. Fees will be based, m current time and Products charges. Xiotech may refuse to perform Services in its sole discretion jj (a) Customer fails to use a Product consistent with related documentation and any applicable specifications )vide by Xiotecl1, (b) a Product is moved from its initial install position, (c) Customer attempts any modification or repairs of the Product without Xiotechs approval, or (d) Customer fails to perfonn under any provisi, this Agreement Customer agrees to: maintain operating the common environmental range of all Products covered under this Agreement in accordance with manufacturers' or Xlotech's specifications: nntifv XintAr:h immAriiAtplv of ::mv PmrilJ~t f::tilttn:::~f; or dPTAf:t!=<.