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Home My WebLink About4.F.5. Additional Storage Purchase for SAN Consent Business 4. F. 5. SHA KOI'F F TO: Mayor and City Council Mark McNeill, City Administrator FROM: Raoul Boudreau, IT Coordinator DATE: 04/02/2013 SUBJECT: Additional Storage Purchase for SAN (F) Action Sought The Council is asked to authorize the purchase of additional storage for the City's IT network at a total cost of $28,625.40. Background The City's existing Storage Area Network (SAN) currently has 2 drive bays, which provide data storage for all seven City departments. With each passing year our storage requirements grow at a faster pace and we are currently utilizing 93% of our available space. Therefore, staff is seeking authorization to purchase a third bay for the SAN, with funds available from the IT Fund. This capacity increase will bring our total available space from 15 terabytes to 25.5 terabytes Budget Impact The cost of the additional storage, after adding tax, shipping and installation services to the attached quote, is $28,625.40, which would come from the IT Fund Relationship to Vision This is a housekeeping item, requiring Council approval only because of the cost of the purchase. Requested Action The Council is asked to authorize appropriate City staff to purchase one additional bay (roughly 10.5 Terabytes of usable storage) for the City's SAN from St Croix Solutions for an amount not to exceed $29,500. Attachments: Hardware Quote Installation Quote ST C RO SOLUTIONS A PINNACLE Business Systems Company St. Croix Solutions, LLC Proposal for City of Shakopee March 26, 2013 Submitted By: VNX5300 upgrades Jean McDonald, Account Executive 952 - 653 -2918 1 I St. Croix Solutions 1 6035 Culligan Way Minnetonka, MN 553451 TEL (952)653 -2900 1 FAX (800) 444 -3439 1 www.stcroixsolutions.com ST. CROIX 'SOLUTIONS IONS `� Where Technology & Expertise Converge A PINNACLE Rosiness Systems Company City of Shakopee: VNX5300 Upgrades March 26, 2013 Quote # 112273177 -1 EMC VNX5300 Upgrades St. Croix Solutions, LLC ( "SCS ") is pleased to present the following proposal to City of Shakopee ( "Client ") as a result of discussions between SCS and the Client. This proposal is based on specifications provided by Client. SCS may require more in -depth discussions and knowledge of Client's current environment as it relates to the goals and performance initiatives to be achieved by the solution mentioned in this proposal. Additional performance analysis may be required to further validate the sizing and configuration. Additional HW /SW /Services may be needed for actual production environment. SOLUTION OVERVIEW EMC VNX5300 Upgrades Qty Description VNX5300 Serial # APM00114502819 1 3U DAE WITH 15X3.5 INCH DRIVE SLOTS 9 VNX51/53 2TB NL -SAS UP DRV- 15X3.5 DPEDAE 5 VNX51/53 600GB15K SAS UPGDRV15X3.5DPEDAE VNX5300 Serial # APM00114502820 1 3U DAE WITH 15X3.5 INCH DRIVE SLOTS 9 VNX51 /53 2TB NL -SAS UP DRV- 15X3.5 DPEDAE 5 VNX51 /53 600GB15K SAS UPGDRV15X3.5DPEDAE *HW Maintenance is co- termed with existing HW maintenance PRICING SUMMARY Hardware Subtotal: $23,784.00 Section Total: $23,784.00 2 I St. Croix Solutions 1 6035 Culligan Way Minnetonka, MN 553451 TEL (952)653 -2900 1 FAX (800) 444 -3439 1 www.stcroixsolutions.com STCROI\ SOLUTIONS Technology er Expertise Converge A PINNACLE Business Systems Company City of Shakopee: VNX5300 Upgrades March 26, 2013 Quote # 112273177 -1 CONFIDENTIAL INFORMATION AGREEMENT SCS and Client agree that information received by and provided to or by SCS and to or by Client in connection with the Project concerning the personal, financial, or other affairs of the Client or its distributors, as well as the terms of this proposal, are confidential and proprietary. SCS will not disclose this information to any other entity or individual, except for such disclosures to its employees, consultants and equipment providers as may be necessary to develop this solution for Client or as may be required by applicable law or a court of competent jurisdiction. This obligation will survive the termination of the Project for any reason for a period of two years. The information in this proposal shall not be disclosed outside the Client organization and shall not be duplicated, used or disclosed in whole or in part for any purpose other than to evaluate the proposal. If this proposal or any variation thereof is accepted, Client shall have the right to duplicate, use or disclose the information to the extent provided by any subsequent agreement between the parties. This restriction does not limit the right of Client to use information contained in the proposal if it is obtained from another source without restriction or is generally available to the public. Each party agrees that all information of either party shall be and remain the property of the owner. Neither party grants to the other party any express or implied rights or license under any patents, patent applications, inventions, copyrights, trademarks, trade secret information, or intellectual property rights owned by such party. TERMS AND CONDITIONS • Title to each item sold to Client shall pass to Client upon payment. SCS shall retain a security interest in any item(s) delivered to the Client and in any proceeds realized from the sale or disposition until the full purchase price thereof is paid by Client and Client authorizes SCS to file any financing statements that are necessary to perfect such security interest. Should Client fail to perform any of its obligations including a default in payment of any charges hereunder when due, SCS or its assignee may remove and repossess any or all item(s) hereunder with or without notice or demand, in addition to exercising such other rights and remedies as may be available to it under the law. • Pricing does not include applicable taxes and freight and is subject to change without notice. • These terms and conditions, including all pricing terms constitute confidential information subject to the Confidential Information Agreement set forth above. 3 I St. Croix Solutions 1 6035 Culligan Way Minnetonka, MN 553451 TEL (952)653 -2900 1 FAX (800) 444 -3439 1 www.stcroixsolutions.com ST.CROIX `SOLUTIONS r-� Where 'technology cr Expertise Converge A PINNACLE Business Systems Company City of Shakopee: VNX5300 Upgrades March 26, 2013 Quote # 112273177 -1 • Proposal is valid for 30 days from date of proposal. • Pricing is based on Net 15 payment terms and is subject to change if payment is not received within payment terms and to any applicable charges for late payment set forth on SCS' invoices. • All manufacturers with whom SCS deals, reserve the right to void return of product if seal is broken on any item of equipment. • In the event of a lease transaction, Client agrees to sign Certificate of Acceptance and return to SCS and lessor within three (3) business days of receipt of item(s). If SCS does not receive a Certificate of Acceptance within such three (3) day period, Client shall be deemed to have accepted the equipment as delivered. • Upon execution by both parties, this proposal will constitute a legally enforceable obligation (except as to the Confidential Information Agreement contained above which becomes a legally enforceable obligation upon receipt of the proposal by Client). Upon acceptance, the contract can be supplemented or modified only by a purchase order accepted by SCS or by a written modification signed by both parties. If Client makes any changes or proposes additional terms to those contained herein or submits an acceptance on a different form, such changes, additional terms or alternative proposal form shall be treated as a proposal for an addition to or modification of this proposal by SCS and shall not become a part of the parties' agreement unless and until accepted by in writing by SCS. • SCS reserves the right to withdraw, change or modify any of the terms hereof if Client purports to accept some, but not all of the terms of the proposal. • The parties agree that all disputes between SCS and Client, whether or not arising under this proposal, shall be resolved by binding arbitration conducted in Minnesota pursuant to the commercial arbitration rules of the American Arbitration Association or a similar organization mutually acceptable to SCS and Client. To the extent possible, the arbitration shall be conducted without the necessity for taking depositions. This proposal is governed by and shall be construed in accordance with the law applicable to contracts made and performed in the State of Minnesota. • Client agrees to indemnify and hold SCS harmless from and against any loss, damage or expense resulting from or arising out of a breach by Client of the terms of this or any agreement between Client and SCS, including without limitation, the inaccuracy of any information provided by Client to SCS in connection with the preparation or development of this proposal. 4 I St. Croix Solutions 1 6035 Culligan Way Minnetonka, MN 553451 TEL (952)653 -2900 1 FAX (800) 444 -3439 1 www.stcroixsolutions.com ST.CROI\ SOLUTIONS Technology er Expertise Converge --o A PINNACLE Business Systems Company City of Shakopee: VNX5300 Upgrades March 26, 2013 Quote # 112273177 -1 ACCEPTANCE Agreed to: Agreed to: St. Croix Solutions, LLC City of Shakopee PO BOX 5530 129 Holmes St S Edmond, OK 73083 -5530 Shakopee, MN 55379 -1328 By: P.O. Number: Authorized signature Authorized signature Print Name: Print Name: Title: Title: Date: Date: 5 I St. Croix Solutions' 6035 Culligan Way Minnetonka, MN 553451 TEL (952)653 -2900 1 FAX (800) 444 -3439 1 www.stcroixsolutions.com STCROI\ SOLUTIONS PROFESSIONAL SERVICES A PINNACLE BUIi aC5% Systrr"s Carerpmaty STATEMENT OF WORK St. Croix Solutions, LLC a Pinnacle Business Systems Company Professional Services Statement of Work for VNX Disk Upgrade & Fast VP Enablement Prepared for City of Shakopee March 1, 2013 Submitted by Jean McDonald ST. C RO I SOLUTIONS SCS PROFESSIONAL SERVICES STATEMENT OF WORK TABLE OF CONTENTS 1. BACKGROUND 3 2. SERVICES 3 2.1 Scope of Services 3 2.1.1 Project Overview 3 2.1.2 Specific tasks to be completed 3 2.2 Project Management 3 3. ASSUMPTIONS 4 4. CUSTOMER RESPONSIBILITIES 4 5. LOCATION 5 6. FEES AND PAYMENT SCHEDULE 5 7. ACCEPTANCE 6 8. APPENDIX A— MASTER SERVICES AGREEMENT 7 Sow for City of Shakopee — VNX Disk Upgrade & Fast VP Enablement Confidential & Proprietary Updated on 3/3/2013 Page 2 STCROI SOLUTIONS SCS PROFESSIONAL SERVICES STATEMENT OF WORK 1. BACKGROUND Customer wants to upgrade two existing EMC arrays with additional disk and enable fast suite. 2. SERVICES This Statement of Work ( "SOW ") defines the scope of work to be performed by St. Croix Systems, LLC ( "SCS, LLC ") for City of Shakopee ("Customer). All terms and conditions of the agreement between SCS, LLC and City of Shakopee are contained in Appendix A, the MASTER SERVICES AGREEMENT. 2.1 Scope of Services 2.1.1 Project Overview Customer has requested SCS to install and configure one tray of disks in two EMC VNX 5300 arrays, and install and configure EMC FAST Suite for VNX 5300. 2.1.2 Specific tasks to be completed Initial Systems Review & Verification prior to starting (remote access preferred) • Install VNX Disk & Configure Fast VP at Primary Site • Rack & Configure 1 VNX Disk shelf • Install & Configure FAST VP Enabler • Enable Fast VP on existing Pool 0 • Add newly installed disk to Pool 0 • Install VNX Disk & Configure Fast VP at Secondary Site • Rack & Configure 1 VNX Disk shelf • Install & Configure FAST VP Enabler • Enable Fast VP on existing Pool 0 • Add newly installed disk to Pool 0 2.2 Project Management SCS, LLC uses the Analyze, Design, Plan, and Implement model as a standard for all projects. This model is an industry accepted best practice that allows for the optimal system configurations and usage of appropriate tools / functionality. A Project Manager is assigned and provides the following: 1. Coordinates and facilitates kickoff and scheduling of resources 2. Documents and distributes meeting notes /action items for all calls 3. Creates and distributes escalation and contact lists 4. Conducts daily status meetings with the SCS, LLC's consulting engineer to proactively identify any issues that may arise in order to mitigate risk 5. Facilitates any necessary change orders and administrative tasks as necessary Sow for City of Shakopee — VNX Disk Upgrade & Fast VP Enablement Confidential & Proprietary Updated on 3/3/2013 Page 3 ST,CROI` SOLUTIONS t r. ay. sn,« ., c n :A.,Y SCS PROFESSIONAL SERVICES STATEMENT OF WORK 6. Monitors project scope and expectations 7. Identifies and manages project risks 8. Monitors the status and progress of the project and the quality of deliverables 9. Communicates with Customers designated contact at regular intervals as agreed upon 10. Acts as the main POC to the Customer if requested 11. Ensures project timelines, dependencies, budgets and closure are met within the project lifecycle 12. Conducts Project Close 3. ASSUMPTIONS The project time estimates and associated fees quoted within this Statement of Work are based on the following assumptions and responsibilities. Should any element(s) of these be lacking during execution of services, additional time and associated fees and expenses may be required to complete this Statement of Work. • SCS, LLC is not responsible for delays caused by failures, including but not limited to, failures caused by systems, personnel or environmental causes or in using incorrect or insufficient data provided by Customer or Client. • SCS, LLC will not develop applications as a part of this Statement of Work. • SCS, LLC engineers shall not be asked to perform, nor volunteer to perform, engineering and /or consulting tasks that are outside their skill sets and experience. SCS, LLC consultants have the right to decline a Service request if the request falls outside the scope of this Statement of Work. • SCS, LLC shall have access to systems, networks, and facilities that must be made available prior to the start of work, and will be provided on an ongoing basis to the SCS, LLC team as necessary to complete tasks. • Customer shall make the facilities available to SCS, LLC for extended amounts of time if necessary, including evenings and weekends where required. • Customer shall make the necessary power and rack space is available to support the installation. • While not required, it is recommended that Customer updates the Block & File OE to latest versions. • SOW assumes new disk and Fast VP will be added to existing Pool 0. 4. CUSTOMER RESPONSIBILITIES • Assign a dedicated project manager or point of contact for SCS, LLC during performance of the Services. • Customer warrants that it has obtained any and all permissions and /or licenses from third parties necessary for SCS, LLC or an SCS, LLC subcontractor to successfully perform the Professional Services, and hereby grants SCS, LLC and its subcontractors all necessary licenses for SCS, LLC or an SCS, LLC subcontractor to successfully perform the Professional Services. • Performing a full working backup of its systems prior to commencement of the Services. SCS, LLC is not responsible for lost data. • Provide a resource dedicated to this project that is designated for the knowledge transfer. The extent of the knowledge transfer is dependent upon the availability of this resource. Please note that the time designated for knowledge transfer is throughout the project. • Provide SCS, LLC in writing with any restrictions or requirements regarding the SCS, LLC consultant's use of personal equipment in advance of the commencement of the project. • Supply the necessary administrative usernames and passwords available to the SCS, LLC consultant. • Grant access to building(s) and room(s) as necessary to complete the Services. Sow for City of Shakopee — VNX Disk Upgrade & Fast VP Enablement Confidential & Proprietary Updated on 3/3/2013 Page 4 ST. CROI \ SOLUTIONS Pi" "A"` ° sir",t !,v.t `s SCS PROFESSIONAL SERVICES STATEMENT OF WORK • Provide all hardware and /or software required to perform the Services, including ensuring that all wiring, hardware, and software required to perform the Services are in working order. 5. LOCATION Services will be performed at customer location. 6. FEES AND PAYMENT SCHEDULE SCS, LLC will charge a one -time fee of $3,000.00 to complete the services defined in this Statement of Work. This fee includes any incurred travel expenses required to perform services at customer location. Payment is due upon receipt and will be invoiced upon project completion. Sow for City of Shakopee — VNX Disk Upgrade & Fast VP Enablement Confidential & Proprietary Updated on 3/3/2013 Page 5 ST. C RO I \ SOLUTIONS ` " "NA"' ° "" " " "` "'" ` mw ° " y SCS PROFESSIONAL SERVICES STATEMENT OF WORK 7. ACCEPTANCE The undersigned Customer agrees and accepts all of the terms and conditions of the Statement of Work. St. Croix Solutions, LLC. ( SCS, LLC) City of Shakopee PO Box 5530 129 S. Holmes Street Edmond, OK. 73083 -5530 Shakopee, MN 55379 By: By: Authorized signature Authorized signature Print Name: Print Name: Title: Title: Date: Date: Sow for City of Shakopee — VNX Disk Upgrade & Fast VP Enablement Confidential & Proprietary Updated on 3/3/2013 Page 6 ST C RO ` SOLUTIONS ' 4l9ACt ° "..r,5 s "' " "" ` " " SCS PROFESSIONAL SERVICES STATEMENT OF WORK 8. APPENDIX A - MASTER SERVICES AGREEMENT The Master Service Agreement (the "Agreement ") between Pinnacle Business Systems, Inc., an Oklahoma corporation ( "PBS ") and City of Shakopee, sets forth the terms and conditions pursuant to which PBS agrees to provide consulting services to City of Shakopee and by which City of Shakopee agrees to obtain such services from PBS. 1. Services 1.1 Statement of Work. PBS agrees to provide to City of Shakopee ( "CUSTOMER ") certain computer consulting and /or programming services (the "Services ") under the terms and conditions set forth herein (the "Services Terms "). CUSTOMER agrees to pay for the Services in the manner described herein. The scope of the Services to be performed, project schedule and fees and rates for such Services are detailed in the written SOW(s) attached hereto or hereinafter attached hereto (as modified, amended or changed, from time to time. CUSTOMER acknowledges and agrees that these Services Terms govern services only and do not involve the sales of goods. 1.2 Non - Exclusivity. The Services Terris shall not preclude PBS from providing services to others that may result in computer programming techniques, products and documentation that are competitive, whether or not such materials are similar to materials developed by PBS pursuant to the Services Terms. 2. Payment 2.1 Payment Terms. Unless otherwise provided in the SOW, PBS shall send [weekly] invoices to CUSTOMER for Services rendered plus any applicable sales /use /excise tax based on fees and charges under this Agreement for Services rendered hereunder. Payment is due immediately upon receipt of invoice. CUSTOMER agrees that any payment not received by PBS within thirty (30) days from the date of the invoice shall be subject to an interest charge of 18% per annum, or the maximum allowed by law, whichever is less. 2.2 Fees and Expenses. CUSTOMER shall pay fees for the Services performed by PBS in accordance with the schedule of fees included in the SOW; provided, however that fee rates may be adjusted by PBS from time to time. Unless otherwise provided in the SOW, CUSTOMER shall reimburse PBS for all reasonable out -of- pocket expenses incurred by PBS in the performance of the Services for CUSTOMER. 3. Cancelled Time Scheduled time must be cancelled in writing no later than five (5) business days prior to the first day scheduled. If CUSTOMER fails to provide PBS at least five (5) business days' prior written notice of a cancellation, CUSTOMER may be invoiced for fifty percent (50 %) of the time scheduled based on quoted hourly rates per the applicable SOW. CUSTOMER will be billed for all non - refundable travel expenses if CUSTOMER cancels scheduled time regardless of the notice given. 4. Scheduling of Resources; Change Orders 4.1 Scheduling of Resources. PBS will use its commercially reasonable efforts to satisfy CUSTOMER'S resource requirements for Services under the SOW, and will inform CUSTOMER of the status thereof. PBS is not required to schedule resources or provide Services if CUSTOMER has invoices that are more than thirty (30) days past due. 4.2 New SOW; Change Orders 4.2.1 The parties agree that from time to time during the terms of the Agreement, CUSTOMER may request, or PBS may propose, that PBS perform additional services unrelated to the existing SOW, or implement a change to the Services reflected in an existing SOW including, without limitation, (a) a change to the scope of Services described in the SOW, or (b) a change in the prioritization or manner in which PBS is performing the Services (each, a "Change "). PBS reserves the right to assess a rework or cancellation charge or adjust the fee schedule applicable to the work if CUSTOMER notifies PBS of a change or cancellation after acceptance of this Agreement or the applicable SOW. 4.2.2 In the event of a proposed new SOW for additional services, such SOW shall only be effective upon acceptance in writing by both parties. Upon acceptance, such SOW shall be incorporated by reference herein and the work set forth therein shall constitute the Services. 4.2.3 In the event of the occurrence of a mutually agreed Change, PBS shall prepare and provide to CUSTOMER a proposed change order. PBS shall include in the proposed change order the effect, if any, the Change will have on PBS' schedule of delivery of the Services, and if there will be any effect on the estimated cost or other CUSTOMER payments under the Services Terms. PBS shall not be responsible or liable for any delays, costs or damages resulting Sow for City of Shakopee — VNX Disk Upgrade & Fast VP Enablement Confidential & Proprietary Updated on 3/3/2013 Page 7 ST C R_I I\ SOLUTIONS . 1 u 3�..�„ SYMRa ron c�pror SCS PROFESSIONAL SERVICES STATEMENT OF WORK from CUSTOMER'S rejection of, or delay in approving, a proposed change order relating to a Change. If a representative of CUSTOMER requests that PBS perform out -of -scope work without a mutually agreed upon change order, CUSTOMER shall compensate PBS for the additional fees and expenses incurred by PBS related thereto, If the invoice for such out -of -scope work is not objected to in writing within ten (10) days after receipt thereof, CUSTOMER will be deemed to have accepted the performance of such work and shall waive any rights to object or contest the amounts due under such invoice. 5. Responsibilities 5.1 Of PBS. PBS will provide personnel, expertise, professional, technical and project management resource(s) to perform the Services outlined in the SOW, and will assign a Project Manager who will serve as the primary contact for PBS to interface with CUSTOMER for the Services. 5.2 Of CUSTOMER. CUSTOMER will provide a suitable work environment to include work space, terminal, access to pc based printer, remote access to systems (if applicable), access to outside telephone line that can be used for Internet access, etc., and will assign a Project Manager who will serve as the primary contact for CUSTOMER to interface with PBS for the Services. The SOW sets forth the name(s) of customer's Authorized Representative(s) who are authorized to request and approve any changes to the SOW. CUSTOMER shall provide PBS with full, free, and safe access to CUSTOMER'S facilities for PBS to fulfill its obligations. CUSTOMER shall promptly notify PBS of any unsafe conditions to which PBS resources could be exposed at any of CUSTOMER'S facilities. CUSTOMER will comply with all federal, state and local laws applicable to the transactions occurring under this Agreement, including without limitation payment of all sales and use taxes applicable to transactions occurring under this Agreement. 5.3 Use of Subcontractors. PBS may use subcontractors without the consent of CUSTOMER. PBS will not be relieved of its obligations hereunder by use of any such subcontractors. If CUSTOMER reasonably determines that the performance or conduct of any PBS subcontractor is unsatisfactory, CUSTOMER may notify PBS in writing of such determination, indicating with specificity all reasons therefore, and PBS will promptly take all necessary actions to remedy the performance or conduct of such subcontractor. 5.4 Employees. CUSTOMER agrees to immediately report to PBS all accidents and injuries involving PBS employees assigned to CUSTOMER. The Services Terms are between PBS and CUSTOMER and create no individual rights in or for PBS employees. 5.5 Discrimination. PBS is an equal opportunity employer and does not discriminate on the basis of race, gender, national origin, age, disability, religion or veteran status. PBS reserves the right to immediately remove any of its employees from CUSTOMER'S premises if PBS believes its employee is subjected to any discriminatory or other prohibited conduct or if CUSTOMER is not in compliance with federal or state requirements governing the workplace. Such immediate removal will not constitute a breach of the Agreement by PBS or cause for termination of the Agreement by CUSTOMER. 5.6 Inventions. "Inventions" shall mean the ideas, routines, object and source codes, flow charts and other materials, documentation, and reports, together with all information, data and know -how, technical or otherwise and any changes, modifications or improvements related thereto, or any other inventions or intellectual property authorized, created, or conceived by PBS in connection with the performance of the Services provided hereunder. Without limiting any of PBS' rights under the law, all right, title and interest in and to the Inventions shall be and remain the sole property of PBS. CUSTOMER agrees to execute and deliver such further documents as may be necessary or appropriate to vest in PBS all rights and interest to which it is entitled pursuant to this Section 5.6 or under law. 5.7 Confidential Information; Intellectual Property Agreement. PBS and CUSTOMER agree that information received by and provided to or by CUSTOMER in connection with the Services conceming the personal, financial or other affairs of the CUSTOMER, as well as these Services Terms or the SOW, are confidential and proprietary. PBS will not disclose this information to any other entity or individual, except for such disclosures to its employees, consultants and equipment providers are may be necessary to perform its obligations under the Agreement, or the Services Terms, or as may be required by applicable law or a court of competent jurisdiction. This obligation will survive termination of the Agreement for any reason for a period of two years. The information in the Agreement and the Services Terms shall not be disclosed outside the CUSTOMER'S organization and shall not be duplicated, used or disclosed in whole or in part for any purpose other than to evaluate the SOW and perform the Agreement. This restriction does not limit the right of PBS to use information contained in the Services Terms if it is attained from another source without restriction or is generally available to the public. Each party agrees that all information of either party shall be and remain the property of the owner. Neither party grants to the other party any express or implied rights or license under any patents, patent Sow for City of Shakopee — VNX Disk Upgrade & Fast VP Enablement Confidential & Proprietary Updated on 3/3/2013 Page 8 ST, CROI\ SOLUTIONS SCS PROFESSIONAL SERVICES STATEMENT OF WORK applications, inventions, copyrights, trademarks, trade secret information, or intellectual property rights owned by such party. The parties acknowledge that violation by either party of this Section 5.7 would cause irreparable harm to the other party not adequately compensable by money damages. The parties agree that injunctive relief may be available to prevent any actual or threatened violation of this provision. 6. Indemnification; Exclusive Remedies; Limitation of Liability 6.1 Indemnification. Subject to the limitations on liabilities and damages set forth in Section 6.3, each party (the "Indemnifying Party ") agrees to indemnify and hold harmless the other party (the "Indemnified Party ") for, and to pay the Indemnified Party, the amount of, any loss, liability, claim or damage or expense (including costs of investigation and defense and reasonable attorneys' fees) (collectively, "Damages "), incurred or suffered by the Indemnified Party to the extent directly arising from: (i) any breach of any express written representation or warranty made by the Indemnifying Party herein or in the Services Terms; (ii) any breach by the Indemnifying Party of any express written covenant or obligation herein or in the Services Terms; or (iii) any bodily injury or death to persons, or physical damage to or loss of tangible personal property, caused by the gross negligence or willful misconduct of the Indemnifying Party in connection with the Services performed hereunder. In addition, PBS agrees to indemnify and hold harmless CUSTOMER for, and to pay CUSTOMER to the extent directly arising from any infringement or misappropriation of a third party's proprietary rights by PBS in connection with any document, tools, methodology or software provided and used by PBS in the Services provided hereunder. 6.2 Exclusive Remedy. The indemnification provided for in Section 6.1 shall be the exclusive remedy in any action seeking Damages or any other form of monetary relief brought by any party to the Agreement against another party to the Agreement with respect to any provision of the Services Terms or otherwise arising in connection with the Services (regardless of the basis of such claims); provided that nothing herein shall be construed to limit the right of a party, in a proper case, to seek injunctive relief for a breach of the Services Terms. 6.3 Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH HEREIN PBS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO CUSTOMER OR TO ANY OTHER PERSON OR ENTITY REGARDING SERVICES, SOFTWARE OR OTHER ITEMS PROVIDED BY PBS UNDER THIS AGREEMENT OR THE RESULTS TO BE DERIVED FROM THE USE THEREOF, AND PBS EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OF TRADE OR COURSE OF PERFORMANCE, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL PBS BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR ANY OTHER NON - DIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR FUTURE REVENUES, COST OF CAPITAL, LOSS OF BUSINESS REPUTATION OR OPPORTUNITY OR ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY OTHER PARTY DUE TO ANY CAUSE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, PBS' OWN NEGLIGENCE OR OTHER TORT), EVEN IF PBS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PBS LIABILITY UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION (INCLUDING, WITHOUT LIMITATION, PBS' OWN NEGLIGENCE OR OTHER TORT), SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY CUSTOMER TO PBS AS SHOWN ON THE APPLICABLE PURCHASE ORDER OR THE STATEMENT OF WORK, AS THE CASE MAY BE. PBS' ENTIRE LIABILITY FOR ANY CLAIMS BY CUSTOMER, REGARDLESS OF THE BASIS, IS SET FORTH IN THIS ARTICLE. Notwithstanding any provisions in this Agreement to the contrary, in each instance in which CUSTOMER has Damages with respect to which it is entitled to recover from PBS arising from: (i) bodily injury or death to persons, regardless of the basis including, without limitation, PBS' own negligence), PBS will only be liable for Damages directly attributable to physical bodily injury (including death); and (ii) physical damage to or loss of tangible personal property and /or damage to real property caused by PBS. The Damages to which CUSTOMER is entitled shall be limited to the lesser of the replacement cost or the cost of repair of such real or tangible personal property. In no event shall customer be entitled to Damages from PBS arising from damage to customer's intangible personal property. This Article shall survive termination of this Agreement. 7. Warranties PBS warrants that PBS will perform the Services in a timely, competent and professional manner, and substantially in accordance with the description in the SOW. CUSTOMER acknowledges and agrees that with respect to the software that is the subject of the Services, CUSTOMER is relying solely on the representations and warranties of the licensor of such software. Without limiting the generality of the foregoing, CUSTOMER acknowledges and agrees that PBS does Sow for City of Shakopee — VNX Disk Upgrade & Fast VP Enablement Confidential & Proprietary Updated on 3/3/2013 Page 9 ST C RO I ` SOLUTIONS A v 14wncu: a e,, SyNtcms or,se.y SCS PROFESSIONAL SERVICES STATEMENT OF WORK not make any representations or warranties with respect to the software that is the subject of the Services and that PBS shall not be liable or responsible for the subject software or any defects thereof or any liabilities or obligations of the licensor of such software. 8. No Solicitation. For a period of one year following the completion or termination of any Services provided hereunder, CUSTOMER hereby agrees that neither CUSTOMER nor any of its direct or indirect subsidiaries or affiliates (i.e., entities or persons controlled by or under common control of CUSTOMER) will, directly or indirectly, solicit to employ or employ, or otherwise engage the services of, any of the current employees or independent contractors of PBS for so long as they are employed or engaged by PBS and for a period of one (1) year from the termination of their employment or services, without obtaining the prior written consent of PBS. This provision will survive the termination of the Agreement. 9. Independent Contractor. Under the Agreement, PBS shall be an independent contractor. The Agreement shall not be construed as creating a partnership, joint venture, agency or employment relationship, or as granting a franchise under either federal or state law. 10. Miscellaneous. 10.1 Notices. All notices, requests, demands, and other communications hereunder shall be in writing and, unless otherwise provided herein, shall be deemed to have been duly given upon delivery in person, by overnight courier or by certified or registered mail, return receipt requested, at the addresses set forth on the attached signature page. 10.2 Amendments and Waivers. This Agreement may only be amended or modified by a written instrument executed by all the parties hereto. The terms of this Agreement may only be waived by a written instrument executed by the party against whom such waiver is sought to be enforced. With respect to PBS, CUSTOMER acknowledges and agrees that only the President or any Vice President of PBS are authorized to execute, amend, modify or waive this Agreement or any provision hereof and no other employees of PBS have any authority (express or implied) to bind PBS or make any representations or warranties on its behalf regarding the Services to be provided hereunder. 10.3 Termination. Either party may immediately terminate this Agreement in the event that (i) the other party defaults in a material obligation under the Agreement and fails to cure such default within thirty (30) days after written notice or five (5) days with respect to a failure of CUSTOMER to timely pay any amounts due under an invoice) or (ii) the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceeding under any bankruptcy or insolvency law, or has wound up or liquidated its business, voluntarily or otherwise. CUSTOMER shall pay for Services rendered by PBS up to the effective date of termination. All obligations of CUSTOMER, including without limitation, the obligation to pay all charges due to PBS, shall survive the termination of this Agreement, together with all costs reasonably associated with termination. CUSTOMER shall specify in any notice of termination given hereunder whether it is terminating the Agreement in its entirety, one or more specified SOW, or both. If a termination covers less than all of the Agreement and all SOW, the items not terminated will continue in full force and effect. For any outstanding SOW, the terms of this Agreement will continue in effect until the SOW is fulfilled or terminated. 10.4 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. This Agreement shall not be assigned by customer without the prior written consent of PBS which will not be unreasonably withheld. 10.5 No Implied Rights or Remedies; Third Party Beneficiaries. Except as otherwise expressly provided herein, nothing herein expressed or implied is intended or shall be construed to create any third party beneficiary rights or confer upon or give to any person, firm, or corporation, other than the parties hereto and their respective successors and assigns, any rights or remedies under or by reason of this Agreement. 10.6 Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties hereto relating to the subject matter hereof and supersedes any prior agreements and understandings relating to the subject matter hereof. In the event of any conflict between the terms set forth herein and any other document referenced herein, the terms set forth in this Agreement shall control. CUSTOMER EXPRESSLY WARRANTS, REPRESENTS AND ACKNOWLEDGES THAT NO PROMISE, AGREEMENT, REPRESENTATION OR STATEMENT HAS BEEN MADE TO CUSTOMER, OTHER THAN THOSE EXPRESSLY STATED IN WRITING IN THIS AGREEMENT, UPON WHICH CUSTOMER HAS RELIED IN ENTERING INTO THIS AGREEMENT, AND CUSTOMER EXPRESSLY WAIVES AND DISCLAIMS ANY CLAIMS AGAINST PBS FOR FRAUD OR FRAUDULENT INDUCEMENT TO ENTER INTO THIS Sow for City of Shakopee — VNX Disk Upgrade & Fast VP Enablement Confidential & Proprietary Updated on 3/3/2013 Page 10 ST. C ROI` SOLUTIONS A Pt+ueaAcir c n.RR..,y SCS PROFESSIONAL SERVICES STATEMENT OF WORK AGREEMENT IN RELIANCE UPON OR BASED UPON ANY SUCH PROMISES, AGREEMENTS, REPRESENTATIONS OR STATEMENTS. 10.7 Severability. If any part or provision of this Agreement is or shall be deemed violative of any applicable laws, rules or regulations, such legal invalidity shall not void this Agreement or affect the remaining terms and provisions of this Agreement, and this Agreement shall be construed and interpreted to comport with all such laws, rules or regulations to the maximum extent possible. 10.8 Dispute Resolution. Except as otherwise provided for herein and subject to the right of either party to seek emergency injunctive relief from a court of competent jurisdiction in order to protect its rights under this Agreement, any and every dispute of any nature whatsoever between the parties shall be determined by binding arbitration conducted in Oklahoma City, Oklahoma, administered by the American Arbitration Association ( "AAA') and shall be conducted under the AAA's then - effective commercial arbitration rules to the extent such rules do not conflict with the provisions of this Section 10.8. To the extent possible, the arbitration shall be conducted without the necessity of taking depositions. Unless otherwise agreed upon by the parties, the arbitration shall be conducted by one (1) neutral arbitrator. Judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The arbitrators shall have no authority to award consequential, punitive or exemplary damages or any statutory multiple damages, and shall only have the authority to award compensatory damages, arbitration costs, attorney's fees, declaratory relief, and permanent injunctive relief, if applicable, consistent with the terms of this Agreement. All costs of arbitration and the arbitrators (not including the legal fees and expenses of the prevailing party) shall be borne equally by the parties. As part of its award, the arbitrators shall award to the prevailing parties its legal fees and costs incurred in connection with the proceeding. In the event a party seeks injunctive relief pursuant to this Agreement, such action shall not constitute a waiver of the provisions of this Section 10.8, including, without limitation, any cross claim or counterclaim that customer may have or assert against PBS or the right to damages, permanent injunctive relief and any other remedy, at law or in equity. This Agreement, including all disputes between the parties arising hereunder, shall be construed in accordance with Oklahoma law, without regard to any choice of law provisions thereof. 10.9 Limited Time for Action. No action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two (2) years after the cause of action has accrued. 10.10 Force Majeure. PBS shall not be liable for any delay in performance or any failure in performance hereunder caused in whole or in part by reason of force majeure, which shall be deemed to include the occurrence of any event beyond the control of PBS, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other acts of civil disobedience, action of a public enemy or other acts of terrorism, failure or delays in transportation, laws, regulations or acts of any national, state or local government (or any agency, subdivision or instrumentality thereof), judicial action, labor dispute, accident, fire, explosion, ice storm, flood, storm or other act of God, shortage of labor, fuel or raw materials or machinery or technical failures. 10.11 Applicable Law. This Agreement has been accepted and to be performed in Oklahoma County, Oklahoma. This Agreement and the rights and obligations of the parties hereto shall be construed under and govemed by the laws of the State of Oklahoma, without giving effect to principles of conflict of laws. 10.12 Counterparts. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered (which deliveries may be made by facsimile) shall be deemed to be an Sow for City of Shakopee — VNX Disk Upgrade & Fast VP Enablement Confidential & Proprietary Updated on 3/3/2013 Page 11