HomeMy WebLinkAboutFORMATION DATA SYSTEMS INC - CONTRACT - AGREEMENT MISC - FORMATION DATA SYSTEMS INCFORMATION DATA SYSTEMS
MASTER ENTERPRISE SOFTWARE LICENSE AGREEMENT
This FDS Master Enterprise Software License Agreement (this “Agreement”) is made and entered into as of
October 4, 2016 (the “Effective Date”), by and between Formation Data Systems Inc., a Delaware
corporation having its principal place of business at 39141 Civic Center Drive, Fremont CA 94538 (“FDS”), and
the City of Fort Collins, Colorado, a Colorado municipal corporation having its principal place of business at
300 LaPorte Ave, Fort Collins, CO (“City”), each a “Party” and collectively the “Parties”.
RECITALS
A. FDS operates a converged data platform that provides data virtualization solutions, and provides certain data
storage software in connection therewith.
B. FDS and City are entering into this Agreement to set forth the terms and conditions pursuant to which City
may procure such data storage software and related services from FDS for use in connection with operating
its business.
1. DEFINITIONS
1.1. “FDS Software” means the FDS software
product in executable code form, and related
documentation, as specified in an Order Schedule. FDS
Software also includes any error corrections and updates
thereto provided by FDS as part of the Services (defined
below).
1.2. “Expiration Date” means the expiration date of
the FDS Software licenses, as specified in an Order
Schedule.
1.3. “Hardware” means the server(s) housed at
City locations on which the FDS Software must be
installed in order to be used. City may purchase
Hardware from FDS pursuant to an Order Schedule with
the FDS Software pre-installed, or procure Hardware
separately from a third party vendor.
1.4. “Intellectual Property Rights” means patent
rights (including patent applications and disclosures),
copyrights, trade secrets, know-how and any other
intellectual property rights recognized in any country or
jurisdiction in the world.
1.5. “FDS Software License Fee” means the fee
specified in an Order Schedule and calculated in
accordance with the pricing terms set forth in Exhibit D,
which fee is required to be paid by City in order for City
to use the FDS Software as permitted herein.
1.6. “Order Schedule” means a document by which
City orders FDS Software licenses, FDS-Supplied
Hardware (defined below) and/or Services. All Order
Schedules shall be substantially in the form attached
hereto as Exhibit A, and shall reference this Agreement.
1.7. “Services” means, collectively, the support and
training services for the FDS Software, as described in
Exhibit B (“Support Services”) and any professional
services that FDS provides its customers pursuant to the
FDS Professional Services Agreement (“Professional
Services”).
2. SUBSCRIPTION LICENSE
2.1. Subscription License Grant. Subject to
City’s compliance with the terms and conditions of this
Agreement, and for the applicable subscription License
Term, FDS grants to City a non-exclusive, non-
transferable, limited license subscription to install and
run, for City’s internal business purposes, the FDS
Software on the number of authorized Hardware
devices and for the managed storage capacity specified
in the applicable Order Schedule. City may copy the
of FDS and its licensors. Accordingly, City agrees not
to disassemble, decompile or reverse engineer the
FDS Software or permit or authorize a third party to do
so, except to the extent such restrictions are expressly
prohibited by law or pursuant to applicable Open Source
Licenses.
2.3. Limited Rights. City’s rights in the FDS
Software will be limited to those expressly granted in
this Agreement. FDS reserves all rights and licenses in
and to the FDS Software not expressly granted to City
under this Agreement.
2.4. Ownership. City expressly acknowledges that,
as between FDS and City, FDS and its licensors owns
all worldwide right, title and interest in and to the
FDS Software, including all worldwide Intellectual
Property Rights embodied therein. City will not delete or
in any manner alter the copyright, trademark or other
proprietary rights notices appearing on the FDS
Software as delivered to City. City will reproduce such
notices on all copies it makes of the FDS Software.
2.5. Open Source Software. The FDS Software is
distributed with certain independent software that is
licensed under an open source license such as the
General Public License, the Apache Software License
and other open source licenses (such software, “Open
Source Software” and such licenses, “Open Source
Licenses”). City’s use of Open Source Software is
subject to the terms and conditions of the applicable
Open Source License. FDS DISCLAIMS ALL
WARRANTIES AND LIABILITY WITH RESPECT
TO CITY’S USE OF OPEN SOURCE SOFTWARE.
2.6. Verification and Audit. At FDS’s written
request, City will furnish FDS with a certification
signed by an officer of City verifying that the FDS
Software is being used in accordance with the terms of
this Agreement and the applicable Order Schedules.
Upon at least thirty (30) days prior written notice, FDS
may audit City’s use of the FDS Software to ensure that
City is in compliance with the terms of this
Agreement and the applicable Order Schedules. Any
such audit will be conducted during regular business
hours at City’s facilities and will not unreasonably
interfere with City’s business activities. City will
provide FDS with reasonable access to the relevant
City records and facilities. If an audit reveals that City
has underpaid fees to FDS during the period audited
based on City’s use of the FDS Software, then City will
promptly pay FDS for such underpaid fees based on
FDS’s price list in effect at the time the audit is
completed, subject to annual appropriation. If the
underpaid fees exceed five percent (5%) of the license
fees paid by City for the FDS Software, then City will
also pay FDS’s reasonable costs of conducting the audit,
provided such underpayment was not due to an error of
FDS for which the City would have been unaware or
unable to detect.
3. PROCUREMENT OF HARDWARE
3.1. City may purchase Hardware from FDS pursuant
to an Order Schedule with the FDS Software pre-
installed (“FDS-Supplied Hardware”), or procure
4. SERVICES
Subject to City’s payment of the applicable
Services fees specified in an accepted Order
Schedule, FDS will provide City with Services in
accordance with the terms of this Agreement
(including Exhibit B). Additional services will be
provided pursuant to the Agreement (Exhibit D).
5. ORDERING, DELIVERY AND PAYMENT
5.1. Ordering. City may submit Order
Schedules to FDS. No Order Schedule will be deemed
accepted by FDS unless and until FDS accepts such
Order Schedule in writing. Any terms and conditions
contained in any Order Schedule or other City
communication that are inconsistent with or in addition
to the terms and conditions of this Agreement will be
deemed stricken, unless expressly agreed to in writing by
FDS. Order Schedules are non-cancelable and non-
refundable except as expressly provided herein.
5.2. Delivery. FDS Software that is pre-installed on
FDS-Supplied Hardware will be delivered pursuant to
the Terms and Conditions of Sale. If not provided to
City installed on FDS-Supplied Hardware, then the FDS
Software will be shipped FOB City.
5.3. Fees and Expenses. Subject to annual
appropriation, City will pay FDS the FDS Software
Subscription License Fee and the fees for the FDS-
Supplied Hardware and Services specified in an accepted
Order Schedule. City will also reimburse FDS for any
reasonable and customary pre-approved out-of-pocket
travel and lodging expenses incurred by FDS in
connection with performing any Services hereunder. At
City’s request, FDS will furnish City with receipts and
other documentation for all such expenses.
5.4. Payment Terms. All fees and expenses will be
due and payable after the 180 day no obligation
trial period. City will pay all invoices in full, without
reduction or setoff of any kind. Any payment due under
this Agreement not received by FDS within ten (10)
days of the due date will incur interest at a rate of 1.5%
per month, or the maximum rate allowed by law,
whichever is lower.
5.5. Taxes. All fees payable under this Agreement
are net amounts and are payable in full, in U.S. currency
only, without deduction for taxes or duties of any kind.
City will be responsible for, and will promptly pay, all
taxes and duties of any kind (including but not limited to
sales, use and withholding taxes) associated with this
Agreement or City’s receipt or use of the FDS Software,
FDS-Supplied Hardware and Services, except for taxes
based on FDS’s net income. In the event that FDS is
required to collect any tax for which City is responsible,
City will pay such tax directly to FDS. If City pays any
withholding taxes that are required to be paid under
applicable law, City will furnish FDS with written
documentation of all such tax payments, including
receipts.
6. WARRANTY
6.1. Limited Software Warranty; Sole Remedy. FDS
warrants for a period of one (1) year after the date of
acceptance of installation by the City (“Warranty
AND FDS EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES AND CONDITIONS, INCLUDING
ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT,
FITNESS FOR A PARTICULAR PURPOSE, AND
AGAINST HIDDEN DEFECTS, TO THE FULLEST
EXTENT PERMITTED BY LAW. FDS DOES
NOT WARRANT THAT THE FDS SOFTWARE
WILL MEET CITY’S REQUIREMENTS OR THAT
USE OF THE FDS SOFTWARE WILL
BE UNINTERRUPTED OR ERROR FREE. FDS
MAKES NO WARRANTIES WITH RESPECT TO
OPEN SOURCE SOFTWARE AND THIRD
PARTY- SUPPLIED HARDWARE.
7. INDEMNIFICATION
7.1. FDS Indemnity. FDS will defend, indemnify
and hold City harmless from and against any damages,
costs and expenses (including reasonable attorneys' fees
and other professional fees) awarded against City in a
final non-appealable judgment or that are agreed to in
settlement, to the extent based on a third-party claim
that the FDS Software infringes any U.S. patent or
copyright or misappropriates the trade secret of any
third party; provided that City:
(a) promptly notifies FDS in writing of any such claim;
(b) grants FDS sole control of the defense and settlement
of the claim; and (c) provides FDS, at FDS’s expense,
with all assistance, information and authority reasonably
required for the defense and settlement of the claim.
FDS will not settle any claim that involves a remedy
other than payment without City’s prior written consent,
which may not be unreasonably withheld or delayed.
City has the right to retain counsel, at its expense, to
participate in the defense or settlement of any claim.
FDS will not be liable for any settlement or
compromise that City enters into without FDS’s prior
written consent.
7.2. Exclusions. FDS's obligation to indemnify
City pursuant to Section 7.1, will not apply to the
extent any claim results from or is based on: (i) any
combination, operation or use of the FDS Software with
any product, system, device, method or data not provided
by FDS (including without limitation Third Party-
Supplied Hardware), if such claim would have been
avoided but for such combination, operation or use;
(ii) modification of the FDS Software by anyone other
than FDS, if a claim would have been avoided but for
such modification; (iii) the failure of City to install and
use any upgrades furnished by FDS to avoid a claim, if
such claim could have been avoided by such installation
and use of such upgrades; or (iv) City’s use of the FDS
Software other than in compliance with this Agreement
and any end user documentation provided in association
with the FDS Software.
7.3. Injunction. If City’s use of the FDS
Software is, or in FDS’s opinion is likely to be, enjoined
due to the type of claim specified in Section 7.1, then
FDS will at the City’s option and FDS’s expense: (i)
replace or modify the FDS Software to make it non-
infringing and of equivalent functionality; (ii) procure for
Information except as necessary for the performance or
enforcement of this Agreement and will not disclose
such Confidential Information to any third party except
to those of its employees and subcontractors who have a
bona fide need to know such Confidential Information
for the performance or enforcement of this Agreement;
provided that each such employee and subcontractor is
bound by a written agreement that contains use and
disclosure restrictions consistent with the terms set forth
in this Section. Each receiving Party will protect the
disclosing Party’s Confidential Information from
unauthorized use and disclosure using efforts equivalent
to the efforts that the receiving Party ordinarily uses with
respect to its own confidential information and in no
event less than a reasonable standard of care. The
provisions of this Section 9.3 will remain in effect during
the term of this Agreement and for a period of three (3)
years after the expiration or termination of this
Agreement.
8.4. Permitted Disclosures. The provisions of this
Section 8 will not restrict either Party from disclosing
Confidential Information pursuant to the order or
requirement of a court, administrative agency, or other
governmental body; provided that the Party required to
make such a disclosure gives reasonable notice to the
other Party to enable it to contest such order or
requirement or limit the scope of such request. The
Party responding to such an order or requirement will
only disclose that information that is expressly required.
9. LIMITATION OF LIABILITY
9.1. Exclusion of Damages. IN NO EVENT WILL
FDS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES (INCLUDING LOSS OF USE, DATA,
BUSINESS OR PROFITS) OR FOR THE COST OF
PROCURING SUBSTITUTE PRODUCTS OR
SERVICES ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR THE USE,
OPERATION OR PERFORMANCE OF THE FDS
SOFTWARE OR SERVICES, WHETHER SUCH
LIABILITY ARISES FROM ANY CLAIM BASED
UPON CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE), PRODUCT
LIABILITY OR OTHERWISE, AND WHETHER OR
NOT FDS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE.
9.2. Total Liability. EXCEPT AS
PROVIDED IN SECTION 7 , FDS’S TOTAL
AGGREGATE LIABILITY ARISING UNDER THIS
AGREEMENT, FROM ALL CAUSES OF ACTION
AND ALL THEORIES OF LIABILITY, WILL NOT
EXCEED THE AMOUNTS PAID TO FDS BY CITY
UNDER THE APPLICABLE ORDER SCHEDULE
FOR THE SPECIFIC FDS SOFTWARE OR
SERVICES GIVING RISE TO A CLAIM FOR
LIABILITY HEREUNDER.
10. MARKETING SUPPORT
10.1. Non-Disparagement. During the Term and
thereafter, except as may be required by law, charter, or
local government regulation, the Parties agree to take no
of law or otherwise, without FDS’s express prior consent.
Any attempt to assign or transfer this Agreement,
without such consent, will be void. Subject to prior
notice to City, FDS may assign this Agreement to a
third party that acquires or succeeds to all or
substantially all of FDS’s assets or related business
(whether by merger, sale, operation of law or otherwise).
Subject to the foregoing, this Agreement will inure to the
benefit of and be binding on the Parties, their respective
successors and permitted assigns.
12.2. Governing Law. This Agreement will be
governed by and construed in accordance with the laws
of the State of Colorado excluding that body of law
known as conflict of laws. Any legal action or
proceeding arising under this Agreement will be brought
exclusively in the federal or state courts located in the
District of Colorado, and the Parties hereby
irrevocably consent and waive any objection to the
exclusive personal jurisdiction and venue therein.
12.3. Severability. If for any reason a court of
competent jurisdiction finds any provision of this
Agreement invalid or unenforceable, that provision of
the Agreement will be enforced to the maximum extent
permissible and the other provisions of this Agreement
will remain in full force and effect.
12.4. Waiver. A failure by either Party to enforce any
provision of this Agreement will not constitute a waiver
of future enforcement of that or any other provision.
12.5. Relationship of Parties. The Parties to this
Agreement are independent contractors and this
Agreement will not establish any relationship of
partnership, joint venture, employment, franchise, or
agency between the Parties. Neither Party will have the
power to bind the other or incur obligations on the
other’s behalf without the other’s prior written consent.
12.6. Notice. All notices required or permitted under
this Agreement will be in writing and will be deemed
given: (a) when delivered personally; (b) two (2)
business days after deposit with an internationally-
recognized express courier, with written confirmation of
receipt; or (c) five (5) business days after having been
sent by registered or certified mail, return receipt
requested, postage prepaid. All such notices, approvals,
consents and other communications will be sent to the
addresses set forth above or to such other address as may
be specified by either Party to the other Party in
accordance with this Section.
12.7. Force Majeure. Neither Party will be
responsible or liable to the other Party for any failure or
delay in its performance under this Agreement due to
causes beyond its reasonable control, including, but not
limited to, labor disputes, strikes, lockouts, shortage of
or inability to obtain energy, or supplies, war, terrorism,
riot or acts of God (each a “Force Majeure”). In the
event of a Force Majeure, the Party that is unable to
perform or whose performance is delayed will promptly
notify the other Party of the Force Majeure and will use
its commercially reasonable efforts to resume
performance.
12.8. Export Control. City agrees to comply fully
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their duly authorized
representatives as of the Effective Date.
THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Purchasing Director
DATE:
ATTEST:
APPROVED AS TO FORM:
FORMATION DATA SYSTEMS, INC.
By:
Printed:
Title:
Date:
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Chief Customer Officer
Kevin Chew
10/4/2016
Assistant City Attorney
10/6/2016
City Clerk
EXHIBIT A
ORDER SCHEDULE
Enterprise Software License (Capacity Based)
Quantity
Number of
Authorized Servers* Storage Capacity Expiration Date Subscription License Fee
2
N/A. (Capacity
Based License).
Actual configuration
will be 4+ nodes
Primary site, and 3+
nodes Secondary
site.
150TB (Usable) per
site. One
Production Site,
and One DR Site.
5 years from date of
Installation
Bundle: See Exhibit D for
established, discounted
software upgrade rates
and fees.
FDS-Supplied Hardware - Primary Site
Quantity* Description Price
4
2U Supermicro Server containing at minimum 64GB of memory,
and Two 6-core processors. Total aggregate (Usable) capacity of
50TB~ across all nodes based on a replication factor of 3.
Bundle: See Exhibit D for
established, discounted
software upgrade rates
and fees.
FDS-Supplied Hardware - Secondary (DR) Site
Quantity* Description Price
3
2U Supermicro Server containing at minimum 64GB of memory,
and Two 6-core processors. Total aggregate (Usable) capacity of
50TB~ across all nodes based on a Replication Factor of 2.
Bundle: See Exhibit D for
established, discounted
software upgrade rates
and fees.
* Minimum of 4 nodes for primary site, minimum of 3 nodes for secondary site.
~ Actual USABLE capacity may be +/- 2-3TB (Usable) due to the resulting yield from aggregating multiple drive
counts with various densities, while factoring in the relative Replication Factor for the FDS Domain.
Services
Description Term Services Fee
Support Services
From the expiration of the Warranty Period
through the Expiration Date.
Included as part of the
applicable Subscription
License Fee.
Certification and Configuration Planning and on-site installation included
Bundle: See Exhibit D for
established, discounted
software upgrade rates
and fees.
EXHIBIT B
SUPPORT SERVICES
Unless otherwise specified in an Order Schedule, (i) FDS will provide City with the Support
Services specified in this Exhibit B upon the expiration of the Warranty Period for the applicable FDS
Software for the duration of the applicable License Term; and (ii) the fee for such Support Services will be
deemed included in the FDS Software License Fee.
1. Training
1.1 Remote training for up to three City employees.
2. Support
2.1 Remote support 24 hours per day, 365 days per year.
2.2 Target Response Times
Critical (Severity 1) 4 hours or less: 24x7
Major (Severity 2) 24 hours or less: 24x7
Minor (Severity 3) 1 business day
Cosmetic (Severity 4) 2 business days
2.3 All FDS Software Updates and Upgrades as they become available.
3. City Obligations
3.1 Subject to City network and cybersecurity protocols, City will provide FDS access to the FDS
Software as reasonably required to perform the Support Services. For standard support, FDS
requires remote online access to perform system diagnostics and maintenance (such access will
not include access to City’s stored data). If City is unable to provide remote access, onsite
support is available.
3.2 The FDS Software collects via the Telemetry Alerting and Bundling Systems (TABS), telemetry
information (hereinafter “Information”) from the City machines, such as, but not limited to:
Licensed Software version
IP addresses
Hardware and software configuration of each Server
OS level
Memory and data storage size
This information is limited to Meta-data only.
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The FDS Software transmits the collected Information automatically to FDS, unless The City opt-out
during the installation of the FDS Software. FDS will use the Information internally for statistical product
deployment analytics, to identify and analyze trends and comparisons in the aggregated install base, to help
FDS understand the hardware and software configuration, to improve FDS products and services, and to fulfill
technical support requests received from the City.
FDS will not share, sell, rent, lease or transfer the information to any third party. The Information may be
correlated with other personal information held by FDS, as needed for technical support and for error analysis.
FDS may disclose the Information if asked to do so by a law enforcement official as required or permitted by
law or in response to a subpoena or other legal process.
4. Exclusions
4.1 The above support does not include any services not specified above, and specifically
excludes (a) technical consulting (any custom coding, on-site support, etc.) and (b) business consulting (advice
on how to integrate the FDS Software with City’s systems, on-site training, etc.).
4.2 Hardware Configuration Changes – The FDS software is supported on the hardware
configuration as demonstrated during the 180 day proof of concept period. The City may deploy the FDS
software onto other industry standard x86 based platforms, but upon doing so, FDS reserves the right to
perform additional hardware qualification testing on the proposed hardware platform before support is
provided by FDS. This additional qualification may be subject to professional services rates; at no time shall
City be subject to such additional costs unless approved by City in writing.
2
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EXHIBIT C
Hardware Terms and Conditions of Sale
1. SCOPE
The terms and conditions of sale set forth herein (“Terms and Conditions”) apply to all quotations
issued and purchase orders accepted by FDS for the sale of Hardware to City. To the extent the
Hardware contains software in any form, such software is licensed to City, not sold, solely for use in
conjunction with the Hardware with which such software is delivered. These Terms and Conditions
will apply whether or not they are enclosed with the Hardware sold hereunder.
2. ORDERING
City will submit a written purchase order signed by an authorized representative of City. No such order
will be binding on FDS unless and until FDS accepts City’s order and sends City a written order
confirmation (“Order Confirmation”), which will confirm the quantity of Hardware purchased
and the selling price, and will specify a shipment date (“Order Confirmation Shipment Date”).
Cancellation of an order is permitted only if FDS receives City’s cancellation notice at least thirty
(30) days prior to the Order Confirmation Shipment Date.
3. SHIPMENT AND DELIVERY
A. FDS will ship the Hardware FOB City. Title to the Hardware (except to the extent that the
Hardware consists of software) and risk of loss will pass to City upon delivery to the City.
B. City acknowledges that all scheduled shipment dates, including the Order Confirmation
Shipment Date, are estimates only. FDS will make reasonable efforts to meet the scheduled shipment
dates, but in no event will FDS be liable for any loss, damage, or penalty resulting from any delay in
shipment or delivery.
4. PRICE; PAYMENT TERMS
The prices for the Hardware will be as specified in an Order Confirmation. Prices are stated in U.S.
dollars and are exclusive of all applicable sales, use, excise, withholding, value-added and other taxes,
duties and charges (collectively, “Taxes”).
5. LIMITED WARRANTY AND DISCLAIMERS
A. FDS will pass through to City all third party warranties for the Hardware, and will assist with
identifying such warranties and providing documentation relating to such pass through rights.
B. FDS SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS
WITH RESPECT TO THE HARDWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT,
AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
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6. LIMITATIONS OF LIABILITY
IN NO EVENT WILL FDS BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS
OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING
SUBSTITUTE HARDWARE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THESE TERMS AND CONDITIONS OR THE PURCHASE, SALE, USE, OPERATION OR
PERFORMANCE OF THE HARDWARE, WHETHER SUCH LIABILITY ARISES FROM ANY
CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE),
PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT FDS HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT WILL FDS’S LIABILITY TO
CITY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS, FROM ALL
CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL
AMOUNT PAID TO FDS BY CITY FOR THE HARDWARE THAT GIVES RISE TO THE CLAIM.
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EXHIBIT D
AGREEMENT BETWEEN THE CITY OF FORT COLLINS
AND FORMATION DATA SYSTEMS FOR A PRODUCTION STORAGE SYSTEM
This Agreement dated October 4, 2016, is entered into by and between the City of Fort Collins, a
Colorado home rule municipality (“City”), and Formation Data Systems, a Delaware corporation with a
principal office located at 39141 Civic Center, Fremont, CA 94538 (“FDS”).
WHEREAS, FDS offers the Formation One Storage Platform for production data storage (the “System”); and
WHEREAS, FDS has offered the City a 180 day risk-fee, no-obligation to purchase offer to evaluation the
System; and
WHEREAS, the City has a need for reliable production data storage.
NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants set forth below, the
parties agree as follows:
1. The System - A Hybrid, Formation Data Systems Turnkey solution comprised of:
a) System Overview
150TB Formation One Storage Platform 5-year Capacity Subscription License for each of the City’s primary
and your secondary DR sites (all platform features are inclusive of this license, as well as any future releases
during the term of this plan).
Attachment 1 attached hereto and incorporated herein detail the System and related services.
b) Price: The Price is fixed at $60,000.00 (US Dollars). Payment terms are net 180 days from the date of
System implementation and subject to the City’s acceptance of the System. FDS shall submit an invoice
for payment.
c) Storage System
FDS will provide a physical storage system comprised of 50 TB~ (Usable capacity) via a multi-node (4
node) storage system. This production storage system is designed to minimize the time required to get the City
running in its primary data center. T h e production license will allow the City to expand the System from FDS’s
50TB footprint up to 150TB (USABLE) to accommodate the City’s 5-year growth projections. FDS i s
p roviding the hardware for the first 50TB~ usable and the City can expand the System out to a total of 150TB
usable by adding the City’s own x86 hardware, or through additional hardware procurement from F DS. An
upgrade from the 50TB starter system up to 150TB usable will not require any additional F DS licensing or
result in any additional support costs to the City.
d) Disaster Recovery (DR)
FDS will provide a physical off-site DR storage system comprised of 50 TB~ (Usable capacity) via a multi-
node (3 node) system for the City’s off-site DR storage system (ie: replication / DR target for your production
storage system). S i milar t o t h e C i t y ’ s production license, the City’s DR license will allow the City to
expand the System from the 50TB starter footprint up to a total of 150TB (USABLE) to accommodate the City’s 5-
year growth projections. FDS will provide the hardware for the first 50TB~ usable and the City can then
expand this 50TB system up to 150TB usable, by adding the City’s own x86 hardware, or through additional
hardware procurement from FDS. An upgrade from the 50TB starter system up to 150TB will not require any
additional F D S or result in any additional support costs.
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e) Licenses
The Price includes a full 5-year FormationOne Software subscription license for each of the City’s
production site(s) and the City’s DR site (based on the system configurations below).
If, during the License Term, FDS reduces its standard Software License Fees, FDS will increase
Customer’s total authorized storage capacity for the remainder of the License Term to reflect the
change for no additional charge. For example, if Customer purchased a license at Level 2, and
thereafter FDS’s standard fee for such license was reduced by 10%, then Customer’s total authorized
storage capacity from the effective date of the price change to the end of Customer’s License Term
will be increased by 10%.
f) Service and Support
The Price includes FormationOne Deployment Planning, on-site Installation, Training, Maintenance, Customer
Support, and Professional Services are INCLUDED to GUARANTEE success at NO ADDITIONAL COST.
2. 180-Day No-Cost and No-Obligation
The City shall have an unconditional 180 day (no questions asked) full right to cancel this Agreement and
associated license agreements without cause at no cost or further obligation.
3. Hardware and License Renewal
The City shall own the hardware provided under this Agreement and delivered in this “starter” System. T h e
C i t y s h a l l h a ve t h e r i ght t o continue the 150TB~ Usable Subscription license associated with
each of the Primary and DR systems in years 6, and out, at a flat discounted rate not to exceed of $6,500.00
per year, per system license.
The City of Fort Collins may grow the storage system beyond our 150TB Usable offering as follows:
A fixed upgrade rate of $10,000.00 per 100TB RAW capacity per year, less 35% for a discounted price of
$6,500.00 per 100TB RAW capacity increment, per year.
This amount will be pro-rated, or quoted to align with the existing 150TB usable, 5-year licenses
(whichever is appropriate based on the time of addition). Any variations of capacity will be calculated
based on an adjustment of the above pricing. In this upgrade scenario, the City may deploy any Increased
Formation One Capacity License (Quoted and Licensed based on RAW capacity), across “Industry
Standard, X86 Hardware” which the City may choose to procure using other third party sources or from
FDS at a rate TO BE CONFIGURED and QUOTED.
4. Delivery and Installation
Best commercial efforts will be made to deliver the hardware components to the City, FOB City no later than
November 30, 2016. Installation and start-up will be completed by December 31, 2016.
5. Assignment
FDS shall not assign or subcontract any services hereunder without the express written approval by the City.
6. Governing Law
This Agreement will be construed and enforced in accordance with applicable federal law, the laws of the
State of Colorado. Any litigation that may arise between the parties involving the interpretation or
enforcement of the terms of this Agreement shall be initiated and pursued by the parties in the District Court of
the County of Larimer, State of Colorado.
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Attachment 1
INCLUDED IN THIS AGREEMENT AND FEE ARE:
Primary - Production Site:
• 4 Storage Nodes - Four 2U SuperMicro Servers.
• Formation Data Systems Replication Factor (RF) set at default of 3 copies.
• 64 Gb of memory per node.
• 6-core processors per node.
• Physical, usable capacity of 50TB~
• A 5-year 150TB Formation Data Systems Usable Capacity License (based on an RF3).
• The initial capacity delivered under this Agreement will be configured and balanced based on the system
being a production storage system, resulting in a 20%~ Flash, and 80%~ HDD media ratio. (Actual
ratio to be validated against workload and use cases via further discussion between FDS Service
Engineers (“SE”) and the City IT team).
• The FDS SE and engineering teams are available for consultation in the event the City elects to
expand the initial 50TB storage offering up to the City’s licensable limit of 150TB (USABLE).
• On-Site Installation and Professional Services
• Guaranteed Success (Full 180 Day, no questions asked, full right to cancel the Agreement at no cost or
liability)
Secondary Site – DR Site:
• 3 Storage Nodes - Three 2U SuperMicro Servers.
• Formation Data Systems Replication Factor (RF) set at default of 2 copies.
• 64 Gb of memory per node.
• 6-core processors per node.
• Physical, usable capacity of 50TB~
• A 5-year 150TB Formation Data Systems Usable Capacity License (based on an RF2).
• The initial capacity delivered under this Agreement will be configured and balanced based on a
Replication Factor of 2, and primarily comprised of HDD and minimal Flash drives (reflecting that of
a DR site).
• FDS SE and engineering teams are available for consultation in the event the City elects to grow
the initial 50TB storage offering up to the City’s licensable limit of 150TB (USABLE).
• On-Site Installation and Professional Services
• Guaranteed Success (Full 180 Day, no questions asked, full right to cancel the Agreement at no cost or
liability)
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with all relevant export laws and regulations of the
United States (“Export Laws”) to ensure that to the best
of the City’s knowledge, neither the FDS Software
nor any direct product thereof is:
(i) exported or re-exported directly or indirectly in
violation of Export Laws; or (ii) used for any purposes
prohibited by the Export Laws, including but not limited
to nuclear, chemical, or biological weapons proliferation.
12.9. Entire Agreement. This Agreement, including
all exhibits (and any attachments or schedules thereto)
and Order Schedules, constitutes the complete and
exclusive understanding and agreement between the
Parties regarding its subject matter and supersedes all
prior or contemporaneous agreements or understandings,
written or oral, relating to its subject matter. The
provisions of an Order Schedule will supersede the
provisions of this Agreement to the extent of any express
inconsistency. This Agreement may be modified or any
rights under it waived only by a written document
executed by both Parties.
12.10. Counterparts. This Agreement may be executed
in counterparts, each of which will be deemed an
original, but all of which together will constitute one and
the same instrument.
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action which is intended, or would reasonably be
expected, to harm either Party or its reputation or which
would reasonably be expected to lead to unwanted or
unfavorable publicity to either party.
11. TERM AND TERMINATION
11.1. Agreement Term. This Agreement will
commence on the Effective Date and, unless terminated
earlier by either Party in accordance with the terms of
this Agreement, will continue for f ive (5) years.
11.2. Software Subscription License Term. The term
of each FDS Software Subscription license will
commence upon the applicable Order Effective Date and,
unless terminated earlier by either Party in accordance
with the terms of this Agreement, will continue until the
applicable expiration date (the “License Term”).
11.3. Termination for Breach. Each Party will have
the right to terminate this Agreement (or as to FDS only,
any FDS Software license) if the other Party breaches
any material term of this Agreement and fails to cure
such breach within thirty (30) days after written notice
thereof. The City shall have the right to terminate the
Agreement at no cost or obligation anytime during the
initial 180 day no obligation period.
11.4. Effect of Termination. Upon the expiration or
termination of this Agreement: (i) all FDS Software
licenses and Services purchased by City will
terminate; and (ii) each Party will promptly destroy or
return to the other Party all Confidential Information of
the other Party in its possession or control.
11.5. Survival. The rights and obligations of the
Parties under Sections 1 (Definitions), 2.6 (Open Source
Software), 2.7 (Verification and Audit), 6.4 (Disclaimer),
8 (Confidential Information), 9 (Limitation of Liability),
11 (Term and Termination), and 12 (General) will
survive the expiration or any termination of this
Agreement.
12. GENERAL
12.1. Assignment. City may not assign or
transfer this Agreement, in whole or in part, by operation
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City the right to continue using the FDS Software under
the terms of this Agreement; or (iii) if FDS is unable to
accomplish either (i) or (ii) despite FDS using its
reasonable efforts, the City may terminate this
Agreement with respect to such FDS Software and FDS
shall refund to City a pro-rata portion of the license fees
paid for such FDS Software for the remaining License
Term.
7.4. Sole Remedy. THE FOREGOING
PROVISIONS OF THIS SECTION 7 SET FORTH
FDS’s SOLE AND EXCLUSIVE OBLIGATIONS,
AND CITY’S SOLE AND EXCLUSIVE REMEDIES,
WITH RESPECT TO INFRINGEMENT OR
MISAPPROPRIATION OF INTELLECTUAL
PROPERTY RIGHTS OF ANY KIND BY THE FDS
SOFTWARE OR ANY USE THEREOF.
8. CONFIDENTIAL INFORMATION.
8.1. Definition. “Confidential Information” means
any business or technical information disclosed by one
Party to the other Party that: (i) if disclosed in writing, is
marked “confidential” or “proprietary” at the time of
disclosure; (ii) if disclosed orally, is identified as
“confidential” or “proprietary” at the time of disclosure,
and is summarized in a writing sent by the disclosing
Party to the receiving Party within thirty (30) days after
any such disclosure; or (iii) under the circumstances, a
person exercising reasonable business judgment would
understand to be confidential or proprietary. For clarity,
the FDS Software is FDS’s Confidential Information and
the terms of this Agreement constitute Confidential
Information of both Parties, subject to applicable public
records law.
8.2. Exclusions. The obligations and restrictions set
forth in Section 8.3 will not apply to any information
that: (i) is or becomes generally known to the public
through no fault of or breach of this Agreement by the
receiving Party; (ii) is rightfully known by the receiving
Party at the time of disclosure; (iii) is independently
developed by the receiving Party without use of the
disclosing Party’s Confidential Information; (iv) the
receiving Party rightfully obtains from a third party who
has the right to disclose such information without breach
of any confidentiality obligation to the disclosing Party;
(v) subject to disclosure under the Colorado Open Records
Act.
8.3. Use and Disclosure Restrictions. A receiving
Party will not use the disclosing Party’s Confidential
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Period”) that the FDS Software will substantially
conform to FDS’s published specifications for the
FDS Software when ordered, if properly used in
accordance with the procedures described in the user
documentation. City’s sole and exclusive remedy and
FDS’s entire liability for any breach of the warranty
set forth in this Section 6.1 shall be, at FDS’S
option, (a) to replace the non-conforming copy with one
that conforms to the specifications, (b) to use
commercially reasonable efforts to provide City with a
correction of or a reasonable procedure to circumvent
the nonconformity, or (c) to refund to City the fee
paid for the nonconforming copy. Any nonconformity
will be reported to FDS in a form and with supporting
information reasonably requested by FDS to enable it to
verify, diagnose and correct the nonconformity. THIS
SECTION STATES CITY’S SOLE AND EXCLUSIVE
REMEDY, AND FDS’S SOLE AND EXCLUSIVE
LIABILITY, FOR ANY BREACH OF WARRANTY
BY FDS WITH RESPECT TO THE SOFTWARE.
6.2. Services Warranty. FDS warrants that it will
perform the Services in a professional manner in
accordance with generally accepted industry standards.
If any Services do not comply with the warranty in this
Section, FDS will, at its discretion, either perform the
Services again or refund the relevant fees paid for such
Services. THIS SECTION STATES CITY’S SOLE
AND EXCLUSIVE REMEDY, AND FDS’S SOLE
AND EXCLUSIVE LIABILITY, FOR ANY BREACH
OF WARRANTY BY FDS WITH RESPECT TO THE
SERVICES.
6.3. Warranty Exclusions. The warranties set forth
above shall not apply to Open Source Software, or to any
FDS Software that has been modified, repaired or altered,
except by or as authorized by FDS, or has not been
maintained in accordance with any handling or operating
instructions supplied by FDS.
6.4. Disclaimer. THE WARRANTIES SET FORTH
IN SECTION 6 ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES OR CONDITIONS
RELATING TO THE FDS SOFTWARE OR
SERVICES, WHETHER EXPRESS OR IMPLIED,
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Hardware separately from a third party vendor (“Third
Party-Supplied Hardware”). This Agreement does not
apply to any Third Party-Supplied Hardware. Third
Party-Supplied Hardware must be certified and
configured with the FDS Software by FDS. City will be
responsible for paying the rate referenced on the
applicable Order Schedule, plus expenses (including
reasonable travel expenses), for such certification and
configuration Services. City’s purchase of FDS-
Supplied Hardware will be governed by the Hardware
Terms and Conditions of Sale, a current version of which
is attached hereto as Exhibit C. City agrees that it will
abide by both this Agreement and the Terms and
Conditions of Sale in order to use the FDS Software and
FDS-Supplied Hardware or to receive any support in
connection with either.
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FDS Software as reasonably required to exercise its
rights under this Section, and may make a reasonable
number of copies for backup or archival purposes.
2.2. Subscription License Restrictions. Except as
expressly provided in this Agreement, City will not, nor
will it permit any third party to: (i) copy or modify the
FDS Software, in whole or in part; (ii) transfer,
sublicense, lease, lend or rent or otherwise distribute the
FDS Software to any third party; or (iii) make the
functionality of the FDS Software available to third-
party users through any means, including but not limited
to by uploading the FDS Software to a network or file-
sharing service or through any hosting, application
services provider, service bureau, software-as-a-service
(SaaS) or any other type of services. City
acknowledges and agrees that portions of the FDS
Software, including but not limited to the source code
and the specific design and structure of individual
modules or programs, constitute or contain trade secrets
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