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HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 9200918Open International – City of Fort Collins M3PD Enrollment Page 1 of 5 Exhibit E Beneficiary Enrollment Form And Amendment Depositor and Iron Mountain Intellectual Property Management, Inc. (“Iron Mountain”), hereby acknowledge that Beneficiary Company Name: City of Fort Collins is the Beneficiary referred to in the Escrow Agreement that supports Deposit Account Number: with Iron Mountain as the escrow agent. Beneficiary hereby agrees to be bound by all provisions of such Agreement as herein amended. The last date noted on the signature blocks of this enrollment shall be the Effective Date. With respect to enrolling the Beneficiary only, the Parties agree to amend the Agreement as set forth below: 1. Section 1b of the agreement is deleted and replaced with the following: 1(b) The Beneficiary and Depositor have, or will have, entered into a Master Professional Services Agreement (“Master Professional Services Agreement”) and Software License Agreement (“License Agreement”) each executed August 9, 2018 conveying intellectual property rights to the Beneficiary, and the Parties intend this Agreement to be considered as supplementary to such agreement, pursuant to Title 11 United States [Bankruptcy] Code, Section 365(n). 2. Section 2a of the agreement is deleted and replaced with the following: 2(a) It shall be solely the Depositor’s responsibility to: (i) make an initial deposit of all proprietary technology and other materials covered under this Agreement (“Deposit Material”) also referred to as the Software Source Code Escrow by the License Agreement to Iron Mountain within thirty (30) days of the Effective Date; (ii) make any required updates to the Deposit Material during the Term (as defined below) of this Agreement; and (iii) ensure that a minimum of one (1) copy of Deposit Material is deposited with Iron Mountain at all times. At the time of each deposit or update, Depositor will provide an accurate and complete description of all Deposit Material sent to Iron Mountain using the form attached to this Agreement as Exhibit B. For the avoidance of doubt, Iron Mountain’s sole responsibility, with respect to the initial inspection of the Deposit Material, is to ensure that the materials deposited correspond to the documentation supplied in the Exhibit B, in accordance with Section 4(b) of this Agreement. Additionally, all material deposited with Iron Mountain in accordance with the terms of this Agreement shall be considered Deposit Material. 3. Section 6 of the agreement is deleted and replaced with the following: 6 The Party responsible for payment designated in the Paying Party Billing Contact Table (“Paying Party”) shall pay to Iron Mountain all fees as set forth in the Work Request (“Service Fees”). As solely agreed between Depositor and Beneficiary and as specified in the Paying Party Billing Contact Table, Beneficiary shall be the Paying Party. All Service Fees are due within thirty (30) calendar days from the date of invoice in U.S. currency and are non-refundable. Iron Mountain may update Service Fees with a ninety (90) calendar day written notice to the Paying Party during the Term of this Agreement (as defined below). The Paying Party is liable for any taxes (other than Iron Mountain income taxes) related to Services purchased under this Agreement or shall present to Iron Mountain an exemption certificate acceptable to the taxing authorities. Applicable taxes shall be billed as a separate item on the invoice. Any Service Fees not collected by Iron Mountain when due shall bear interest until paid at a rate of one percent (1%) per month (12% per annum) or the maximum rate permitted by law, whichever is less. Notwithstanding the non-performance of any obligations of Depositor to deliver Deposit Material under the License Agreement or this Agreement, Iron Mountain is entitled to be paid all Service Fees that accrue during the Term of this Agreement. 4. Section 7c of the agreement is deleted and replaced with the following: 7(c) In the event of the nonpayment of undisputed Service Fees owed to Iron Mountain, Iron Mountain shall provide all Parties to this Agreement with written notice of Iron Mountain’s intent to terminate this Agreement. Any Party to this Agreement shall have the right to make the payment to Iron Mountain to cure the default. If the undisputed portion of any past due payment is not received in full by Iron Mountain within thirty (30) calendar days of the date of such written notice, then Iron Mountain shall have the right to terminate this Agreement at any time thereafter by sending written notice to all Parties. Iron Mountain shall have no obligation to perform the Services under this Agreement (except those obligations that survive termination of this Agreement, which includes the confidentiality obligations in Section 10) so long as any undisputed Service Fees due Iron Mountain under this Agreement remain unpaid. DocuSign Envelope ID: 7E111619-0B09-4FBC-940D-264B3143DB67 Open International – City of Fort Collins M3PD Enrollment Page 2 of 5 5. Section 13c of the agreement is deleted and replaced with the following: 13(c) Choice of Law. The validity, interpretation, and performance of this Agreement shall be construed under the laws of the State of Colorado, USA, without giving effect to the principles of conflicts of laws. 6. Section 13f of the agreement is deleted and replaced with the following: 13(f) Force Majeure. No Party shall be liable for any delay or failure in performance due to events outside the defaulting Party’s reasonable control, including but not limited to, acts of God, riots, war, acts of any government or agency thereof, acts of terrorism, fire, explosion, epidemics, quarantine restrictions, embargoes, or severe weather conditions. The obligations and rights of the excused Party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. 7. Section 13n of the agreement is deleted and replaced with the following: 13(n) Disputes. Except for a dispute arising between Depositor and Beneficiary under Exhibit C of this Agreement regarding the release of the Deposit Material to the Beneficiary, which shall be resolved solely between Depositor and Beneficiary under the disputes provision of the Master Professional Services Agreement, any dispute, difference or question arising among any of the Parties concerning the construction, meaning, effect or implementation of this Agreement or the rights or obligations of any Party will be submitted to, and settled by arbitration by a single arbitrator chosen by the corresponding Regional Office of the American Arbitration Association in accordance with the Commercial Rules of the American Arbitration Association. The Parties shall submit briefs of no more than 10 pages and the arbitration hearing shall be limited to two (2) days maximum. Arbitration will take place in Denver, or Fort Collins, Colorado, USA. Any court having jurisdiction over the matter may enter judgment on the award of the arbitrator. Service of a petition to confirm the arbitration award may be made by regular mail or by commercial express mail, to the attorney for the Party or, if unrepresented, to the Party at the last known business address. 8. Exhibit C of the agreement is deleted and replaced with the following: Exhibit C Release of Deposit Material Iron Mountain will use the following procedures to process any Beneficiary Work Request to release Deposit Material. All notices under this Exhibit C shall be sent pursuant to the terms of Section 13(g) Notices. 1. Release Conditions. Depositor and Beneficiary agree that a Work Request for the release of the Deposit Material shall be based solely on one or more of the conditions set forth below (defined as “Release Conditions”): (i) Depositor’s breach of the License Agreement or other agreement between the Depositor and Beneficiary regulating the use of the Deposit Material covered under this Agreement; or (ii) Failure of the Depositor to function as a going concern or operate in the ordinary course; or (iii) Depositor is subject to voluntary or involuntary bankruptcy; or (iv) The occurrence of any condition set forth in Exhibit G to the Master Professional Services Agreement between Open International LLC and the City of Fort Collins executed August 9, 2018. 2. Release Work Request. A Beneficiary may submit a Release Work Request to Iron Mountain to release the Deposit Material covered under this Agreement. Iron Mountain shall not exercise any discretion nor make any determination regarding the validity of a Release Condition nor the Beneficiary’s eligibility to submit such Release Work Request for the release of the Deposit Material. To the extent that the Deposit Material is subject to applicable U.S. export control regulations and laws, including ITAR, the Release Work Request to release the Deposit Material must include Beneficiary’s certification that such release would be compliant with the applicable U.S. export control regulations and laws, including ITAR. Iron Mountain will sent a written notice of this Demand Release Work Request within five (5) business days to the Depositor’s Authorized Person. 3. Contrary Instructions. – From the date Depositor receives written notice of the Beneficiary Work Request to release Deposit Material covered under this Agreement, Depositor’s Authorized Person shall have ten (10) business days to deliver to Iron Mountain contrary instructions. Contrary instructions shall mean the written representation by Depositor that a Release Condition has not occurred or has been cured (“Contrary Instructions”). Contrary Instructions shall be on company letterhead and signed by a Master Deposit Account Number DocuSign Envelope ID: 7E111619-0B09-4FBC-940D-264B3143DB67 Open International – City of Fort Collins M3PD Enrollment Page 3 of 5 Depositor Authorized Person. Upon receipt of Contrary Instructions, Iron Mountain shall within two (2) business days send a copy to Beneficiary’s Authorized Person. Additionally, Iron Mountain shall notify both Depositor and Beneficiary Authorized Persons that there is a dispute to be resolved pursuant to the Disputes provisions indicated in section 17.3 of the Master Professional Services Agreement. Iron Mountain will continue to store Deposit Material without release pending (i) instructions from Depositor to release the Deposit Material to Beneficiary; or (ii) dispute resolution pursuant to the Disputes provisions indicated in section 17.3 of the Master Professional Services Agreement; or (iii) withdrawal of Contrary Instructions from Depositor’s Authorized Person or legal representative; or (iv) receipt of an order from a court of competent jurisdiction. The existence of a Release Condition dispute shall not relieve the Paying Party from payment of applicable Service Fees. 4. Release of Deposit Material. If Iron Mountain does not receive timely Contrary Instructions from a Depositor Authorized Person or receives written instructions directly from Depositor’s Authorized Person to release a copy of the Deposit Material to the Beneficiary, Iron Mountain is authorized to release the Deposit Material to the Beneficiary, or if more than one Beneficiary is registered to the deposit, to release a copy of the Deposit Material to the Beneficiary. Iron Mountain is entitled to receive any undisputed, unpaid Service Fees due Iron Mountain from the Parties before fulfilling the Demand Release Work Request to release Deposit Material covered under this Agreement. Any Party may cure a default of payment of Service Fees. 5. Termination of Agreement Upon Release. This Agreement will terminate upon the release of Deposit Material held by Iron Mountain. For the avoidance of doubt, each enrollment of a Beneficiary made by the respective parties signing the Beneficiary Enrollment Form attached to this Agreement as Exhibit E constitutes and shall be construed as a separate agreement between Iron Mountain, Depositor, and the signing Beneficiary. 6. Right to Use Following Release. Beneficiary has the right under this Agreement to use the Deposit material for the sole purpose of continuing the benefits afforded to Beneficiary by the Master Professional Services Agreement and License Agreement. Notwithstanding, the Beneficiary shall not have access to the Deposit Material unless there is a release of the Deposit Material in accordance with this Agreement. Beneficiary shall be obligated to maintain the confidentiality of the released Deposit Material. Authorized Person(s) Notices Table Please provide the name(s) and contact information of the Authorized Person(s) under this Agreement. Please complete all information as applicable. Incomplete information may result in a delay of processing. DEPOSITOR (Required information) BENEFICIARY (Required information) Print Name Print Name Title Title Email Address Email Address Street Address Street Address City City State/Province State/Province Postal/Zip Code Postal/Zip Code Country Country Phone Number Phone Number Fax Number Fax Number DocuSign Envelope ID: 7E111619-0B09-4FBC-940D-264B3143DB67 80524 City of Fort Collins Director of Purchasing USA Gerry Paul gspaul@fcgov.com 215 N. Mason CO (970) 221- 6779 Hernando Parrott 305-265-0310 USA 13019 Mar Street hernando.parrott@openintl.com President North America Coral Gables 33156 Open International – City of Fort Collins M3PD Enrollment Page 4 of 5 Billing Contact Information Table Please provide the name and contact information of the Billing Contact under this Agreement. All Invoices will be sent to this individual at the address set forth below. DEPOSITOR BENEFICIARY Check if same as Authorized Person Check if same as Authorized Person Company Name Company Name Print Name Print Name Title Title Email Address Email Address Street Address Street Address Province/City/State Province/City/State Postal/Zip Code Postal/Zip Code Phone Number Phone Number Fax Number Fax Number Purchase Order # Purchase Order # BALANCE OF THIS PAGE LEFT INTENTIONALLY BLANK – SERVICE DESCRIPTION PAGE FOLLOWS DocuSign Envelope ID: 7E111619-0B09-4FBC-940D-264B3143DB67 hernando.parrott@openintl.com President North America 33156 Hernando Parrott Open International LLC Coral Gables/Florida 130 Mar Street 305-265-0310 Open International – City of Fort Collins M3PD Enrollment Page 5 of 5 Beneficiary Enrollment Form Work Request Please check boxes to order services and to identify the Paying Party Service Service Description One-Time Fees Annual Fees Paying Party Add Additional Beneficiary Iron Mountain will fulfill a Work Request to add a new Beneficiary to an escrow deposit account in accordance with the Agreement. $950 Depositor Beneficiary Add Additional Deposit Account Iron Mountain will set up one additional deposit account to manage and administrate access to new Deposit Material that will be securely stored in controlled media vaults in accordance with the Agreement that governs the Initial Deposit Account. $1,200 Depositor Beneficiary Add File List Test Iron Mountain will perform one (1) File List Test, which includes a Deposit Material media readability analysis, a file listing, a file classification table, virus scan outputs, and confirmation of the presence or absence of a completed escrow deposit questionnaire. A final report will be sent to the requesting Party regarding the Deposit Material.. Deposit must be provided on CD, DVD-R, or deposited electronically. $3,000 N/A Depositor Beneficiary Add Level 1 - Inventory and Analysis Test Iron Mountain will perform an Inventory Test on the initial deposit, which includes Analyzing deposit media readability, virus scanning, developing file classification tables, identifying the presence/absence of build instructions, and identifying materials required to recreate the Depositor's software development environment. Output includes a report which will include build instructions, file classification tables and listings. In addition, the report will list required software development materials, including, without limitation, required source code languages and compilers, third-party software, libraries, operating systems, and hardware, as well as Iron Mountain’s analysis of the deposit. $6,000 or based on SOW if custom work required N/A Depositor Beneficiary Add Level 2 – Deposit Compile Test Iron Mountain will fulfill a Work Request to perform a Deposit Compile Test, which includes the outputs of the File Listing Report and the Level 1 - Inventory Test as described above plus recreating the Depositor’s software development environment, compiling source files and modules, linking libraries and recreating executable code, pass/fail determination, creation of comprehensive build instructions with a final report sent to the Paying Party regarding the Deposit Material. The Paying Party and Iron Mountain will agree on a custom Statement of Work (“SOW”) prior to the start of fulfillment. Open International – City of Fort Collins M3PD Enrollment Page 6 of 5 IN WITNESS WHEREOF, the Parties have duly executed this Enrollment as of the Effective Date by their authorized representatives: DEPOSITOR BENEFICIARY Signature Signature Print Name Print Name Title Title Date Date All notices to Iron Mountain Intellectual Property Management, Inc. should be sent to ipmclientservices@ironmountain.com OR Iron Mountain Intellectual Property Management, Inc., Attn: Client Services, 6111 Live Oak Pkwy, Norcross, GA 30093. Telephone: 800-875-5669. Facsimile: 770-239-9201 IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC. Signature Print Name Title Date Approved as to form and content for Beneficiary Signature Print Name Title Date Approved as to Form and Legal Content: Iron Mountain IPM Service Delivery Name: Susannah E. Scott, Contracts Specialist Date: May 26, 2020 DocuSign Envelope ID: 7E111619-0B09-4FBC-940D-264B3143DB67 May 28, 2020 | 13:47 MDT Cyril Vidergar Assistant City Attorney II Director of Purchasing Gerry Paul May 29, 2020 | 09:46 PDT May 28, 2020 | 12:01 PDT Hernando Parrott President North America Based on SOW N/A Depositor Beneficiary Add Level 3 - Binary Comparison Test Iron Mountain will fulfill a Work Request to perform one Deposit Usability Test - Binary Comparison which includes a comparison of the files built from the Deposit Compile Test to the actual licensed technology on the Beneficiary’s site to ensure a full match in file size, with a final report sent to the Requesting Party regarding the Deposit Material. The Paying Party and Iron Mountain will agree on a custom Statement of Work (“SOW”) prior to the start of fulfillment. Based on SOW N/A Depositor Beneficiary Add Level 4 - Full Usability Test Iron Mountain will fulfill a Work Request to perform one Deposit Usability Test - Full Usability which includes a confirmation that the built applications work properly when installed, based on pre- determined test scripts provided by the Parties. A final report will be sent to the Paying Party regarding the Deposit Material. The Paying Party and Iron Mountain will agree on a custom Statement of Work (“SOW”) prior to the start of fulfillment. Based on SOW N/A Depositor Beneficiary Dual Vaulting Iron Mountain will fulfill a Work Request to store and manage a redundant copy of the Deposit Material in one (1) additional location. All Deposit Material (original and copy) must be provided by the Depositor. N/A $750 Depositor Beneficiary Remote Vaulting Iron Mountain will fulfill a Work Request to store and manage the Deposit Material in a remote location, designated by the client, outside of Iron Mountain’s primary escrow vaulting location. All Deposit Material (original and copy) must be provided by the Depositor. N/A $750 Depositor Beneficiary Custom Contract Fee Custom contracts are subject to the Custom Contract Fee, which covers the review and processing of custom or modified contracts. $900 N/A Depositor Beneficiary BALANCE OF THIS PAGE LEFT INTENTIONALLY BLANK – SIGNATURE PAGE FOLLOWS DocuSign Envelope ID: 7E111619-0B09-4FBC-940D-264B3143DB67 Florida