HomeMy WebLinkAboutC2008-487 - 12/23/2008 - NA}~~
LANDesk
SERVICES AGREEMENT
This Services Agreement (the "Agreement") is dated and effective as of December 5, 2008 (the "Effective Date"), by and
between the following Parties, who, in consideration of this Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, agree as follows:
LANDesk: LANDesk Software, Inc.
698 West 10000 South, Suite 500
South Jordan, UT 84095
Tel.: (801) 208 - 1500
Fax: (801) 208 - 1727
Recipient: City of Corpus Christi
1201 Leopard Street
Corpus Christi, TX 78401
Tel.: (361) 826 - 3750
Fax:
[n consideration of the provisions of this Agreement, and for good and valuable consideration, the receipt and sufficiency
of which is acknowledged, the Parties hereby agree as follows:
Term. This Agreement shall commence on the Effective Date and will continue in effect through the completion of each
Statement of Work or until otherwise terminated in accordance with this Agreement (the "Term").
Statement of Work. All work will be performed by LANDesk, or LANDesk's contractors or consultants, and shall be
documented in a Statement of Work signed by authorized representatives of both Parties. The initial Statement(s) of
Work attached hereto as Exhibit B and all additional, amended or replacement Statements of Work signed by an
authorized representative of LANDesk and Recipient will be governed by this Agreement.
Rates and Fees. This Agreement contemplates the Parties current understanding of Recipient's requirements for the total
services performed under all Statements of Work associated with this Agreement. LANDesk estimates that the
Statement(s) of Work attached to this Agreement will require 5 days to complete in total. This estimate is a reflection
of the Parties current understanding of the work requirements and is subject to changes made by the subsequent
addition or modification of the Statement(s) of Work. The rates, fees and other payment and compensation
information for the specific work to be performed by LANDesk will be quoted separately. Recipient agrees that the
charges for any follow-on or additional work related to work described in a Statement of Work shall be performed at
LANDesk's then-current rates for such work.
Terms and Conditions. Recipient acknowledges that it has read, understood and agrees to abide by the additional terms
and conditions set forth in the attached Exhibit A, which is hereby incorporated by this reference as part of this
Agreement.
Execution. The individuals signing below represent that they are duly authorized to execute this Agreement for the Party
for whom they are signing. The Parties agree that this Agreement may be executed in one or more counterparts, each
of which shall be deemed an enforceable original of the Agreement, but all of which together shall constitute one and
the same instrument. The Parties agree that facsimile signatures shall be as effective and binding as original
signatures.
Final Agreement. This Agreement, including the Exhibits and Attachments incorporated herein, constitutes the entire
agreement and understanding between the Parties and supersedes all other prior and contemporaneous
communications, discussions, understandings, negotiations, arrangements and agreements between the Parties,
whether written or oral, relating to the subject matter of this Agreement. This Agreement may not be modified or
amended except in a writing duly executed by both Parties.
AGREED TO AND ACCEPTED BY:
LANDesk S ftw n City of C pus Christi (Recipient)
By: / ~ By: ~i~-r~rl ~
Name: SoSD~ 4J ~~ Name: /t ~ e ~ ,.''_ ~SCty~v
Title: Uit< PrYS:r~o~~i ~S'Mi^~r S.ri:.~v Title: lJl"iLi w~u ~(aC.v
LANDesk Software
t~
2008-487 pprov as o o
12/23/08 ~~~ ~~
1 Assistant Citv
Confidential and Proprietary
EXHIBIT A
1. DEFINITIONS
1.1. "Confidential Information" means information belonging to or in
the possession or control of a Party which is of a confidential, proprietary
or trade secret nature that is furnished or disclosed to the other Party
under this Agreement: (i) in tangible form and marked or designated in
writing in a manner to indicate its confdential, proprietary or trade secret
nature, or (ii) in intangible form and subsequently identified as
confidential, proprietary or trade secret in a writing provided to the
receiving Party within thirty (30) business days after disclosure.
"Confidential Information" will be deemed to exclude any particular
information that, as evidenced by written documentation: (i) is already
known to the receiving Party without restrictions at the time of its
disclosure by the furnishing Party; (ii) after its disclosure by the furnishing
Party, is made known to the receiving Party without restrictions by a third
party having the right to do so; (iii) is or becomes publicly known without
violation of this Agreement; or (iv) is independently developed by the
receiving Party without reference to the furnishing Party's Confidential
Information.
1.2. "Customizations" means any computer software code and/or
programs developed by LANDesk or delivered to Recipient by LANDesk
under this Agreement or any Statement of Work.
1.8. "Inventions" means any and all ideas, designs, concepts,
techniques, technology, know-how, processes, methods, configurations,
inventions, discoveries, and improvements, regardless of whether they
are patentable or subject to protection under applicable copyright,
trademark, trade secret or other laws governing the protection of
Intellectual Property.
1.4. "Intellectual Property" means any and all Inventions and
intellectual property rights, including, without limitation United States and
foreign patents, copyrights, trademarks, service marks, trade names,
mask works (and any and all rights in applications, actions and
registrations relating thereto), Trade Secrets, know-how, moral rights, and
rights of publicity.
1.5. "LANDesk Work Product" means any and all work products
andlor Customizations developed by LANDesk pursuant to this
Agreement or any Statement of Work.
1.6. "Party" or "Parties", as the case may require, shall refer to
LANDesk and/or Recipient.
1.7. "Reimbursable Expenses" mean incidental expenses
reasonably incurred by LANDesk in performing its obligations under this
Agreement, including courier, document duplication, postage, long-
distance telephone charges, travel and living expenses, and charges for
any non-routine supplies and equipment called for in a Statement of Work
or approved by Recipient.
1.8. "Statement of Work" shall mean LANDesk's standard form for
ordering services, attached hereto and in the form specified in this
Agreement.
1.9. "Services" shall mean work performed by LANDesk for
Recipient pursuant to a Statement of Work entered into between
LANDesk and Recipient under this Agreement.
1.10. "Trade Secret(s)" means any scientific or technical data,
information, design, process, procedure, formula, or improvement that is
commercially valuable to the owner and not generally known in the
industry. The obligations set forth in this Agreement and any Statement
of Work as they pertain to Trade Secret(s) shall survive termination of this
Agreement and continue for so long as the relevant information remains a
Trade Secret(s).
2. STATEMENT OF WORK. All work will be performed by LANDesk,
or LANDesk's contractors or consultants, and shall be documented in a
Statement-ot Work signetl-by authorized representatives of both Parties.
Each Statement of Work shall set forth, at a minimum, (1) the work to be
done; (2) the duration of the Statement of Work; and (3) payment and
compensation (i.e. rates, fees, etc.). Any Statement of Work will be
governed by this Agreement.
3. SCOPE OF WORK. LANDesk will perform the Services described in
the Statement of Work attached as Ezhibil B, and any other Statement of
Work subsequently issued under this Agreement, signed by each Party
and attached hereto. Each Party will designate a project manager,
identifed in said Statement of Work, authorized to give or obtain all
information, decisions and approvals of such Party relating to each
Statement of Work. Recipient will also provide LANDesk with timely
access to other appropriate Recipient personnel as requested by
LANDesk to facilitate the performance of the Services by LANDesk.
4. COMPENSATION. LANDesk will perform the Services on a time
and materials basis at the rate(s) specifed in the applicable Statement of
Work, or on such other basis as may be provided in the applicable
Statement of Work. Recipient will also pay LANDesk's Reimbursable
Expenses. Reimbursable Expenses will be billed on a flat rate of $400
dollars per day unless otherwise specifed in the applicable Statement of
Work. Should the customer location be more than four time zones away
from LANDesk corporate headquarters, two additional days of travel and
expenses will be applied to the deployment.
5. PAYMENT TERMS
5.1. LANDesk will provide Recipient with monthly invoices covering
the Services performed and LANDesk's Reimbursable Expenses. Each
invoice will show the hours worked by billable labor category and
appropriate detail for the Reimbursable Expenses. Each LANDesk's
invoice is due and payable in full within thirty (30) days from the date of
the invoice. If Recipient does not pay an invoice within thirty (30) days
after the invoice date, LANDesk may add an interest charge of one
percent and one-half (1.5%) per month, or the maximum rate allowed by
law if less; this interest will begin to accrue on the thirty-first (31st) day
after the invoice date and will accumulate on the outstanding balance on a
daily basis until paid in full. Recipient shall reimburse LANDesk for all
reasonable costs incurred by LANDesk in collecting any late payments
from Recipient.
5.2. Recipient agrees to pay directly or reimburse LANDesk for any
taxes arising out of this Agreement or LANDesk's performance under this
Agreement, excluding taxes on LANDesk's net income.
6. PROPRIETARY RIGHTS
6.1. LANDesk shall have full and exclusive right, title and ownership
interest in and to any and all LANDesk Work Product and Customizations.
Subject to payment in full by Recipient of all amounts owed fo
LANDesk under this Agreement, LANDesk hereby grants to
Recipient a limited, nonexclusive, and nonsublicenseable license to
use, execute, and reproduce fhe LANDesk Work Product for
Recipient's own infernal use.
6.2. Any Customizations provided to Recipient shall be governed by
the software license agreement governing Recipient's use of the
LANDesk software program for which the Customization is designed to be
used.
6.3. If this Agreement involves the development of Customizations,
IANDesk may, at its sole discretion, migrate such Customizations into its
software products. If the Customization is not migrated into the base
Software product, and the Recipient wishes LANDesk to maintain the
Customization to ensure compatibility with future LANDesk software
products, then a Customization maintenance fee will be negotiated by the
Parties. If Recipient does not elect to migrate a Customization into the
software product, and Recipient and LANDesk cannot agree to a
Customization maintenance fee, the Customization will be provided to
Recipient on an "AS IS" basis and without warranty to the maximum
extent possible.
6.4. If ownership of the LANDesk Work Product and/or the
Customizations does not result as provided in this Agreement by
operation of law, then Recipient assigns, and shall cause their respective
employees, agents, and contractors to assign, without further
consideration, the ownership thereof, including all associated intellectual
property rights, as necessary to give effect to the ownership terms
regarding the LANDesk Work Product and/or Customizations specifed in
this Agreement. Recipient agrees to perform, upon the reasonable
request of LANDesk, such further acts as may be necessary or desirable
to transfer ownership of, and to perfect and defend, the LANDesk Work
Product and/or Customizations in order to give effect to LANDesk's
ownership thereof.
7. NONDISCLOSURE
7.1. Confidential Information will remain the property of the
furnishing Party, and the receiving Party will not be deemed by virtue of
this Agreement or any access to the furnishing Party's confdential
Information to have acquired any right or interest in or to any such
confdential Information. The receiving Party agrees: (i) to hold the
furnishing Party's Confidential Information in strict confidence; (ii) to limit
disclosure of the furnishing Party's Confidential Information to personnel
furnished by the receiving Party to perform Services under a Statement of
Work or otherwise having a need to know the information for the purposes
of this Agreement, or as required by the Texas Public Information Act,
Chapter 552, Texas Government Code; (iii) not to disclose any such
confdential Information to any third party; (iv) to use the furnishing Party's
Confidential Information solely and exclusively in accordance with the
terms of this Agreement in order to carry out its obligations and exercise
its rights under this Agreement; (v) to afford the furnishing Party's
LANDesk Services Agreement
Confidential and Proprietary
Confidential Infonmation at least the same level of protection against
unauthorized disclosure or use as the receiving Party normally uses to
protect its own information of a similar character, but in no event less than
reasonable care; (vi) to notify the furnishing Party promptly of any
unauthorized use or disclosure of the furnishing Party's Confidential
Information and cooperate with and assist the furnishing Party in every
reasonable way to stop or minimize such unauthorized use or disclosure;
and (vii) if the receiving Party is, or believes that it will be, compelled by a
court or other authority to disclose Confdential Infonmation of the
furnishing Party, it shall give the furnishing Party prompt notice so that the
furnishing Party may take steps to oppose such disclosure.
7.2. Upon tenninalion or expiration of this Agreement, the receiving
Party, at the furnishing Party's option, will return or destroy all Confidential
Information of the furnishing Party that the receiving Party does not
possess under a valid license.
8. LIMITED WARRANTIES AND REMEDIES FOR BREACH
8.1. LANDesk warrants that the Services will be performed in a
workmanlike manner consistent with industry standards reasonably
applicable to the performance of such Services. If Recipient believes
there has been a breach of this warranty and so notifies LANDesk in
writing stating in reasonable detail the nature of the alleged breach within
thirty (30) days after the Services are delivered to Recipient by LANDesk,
then LANDesk will promptly investigate the matter to determine the nature
of the alleged breach of warranty. If there has been a breach of this
warranty, then LANDesk's sole obligation, and Recipient's exclusive
remedy, will be for LANDesk to correct or re-perform any affected
Services as necessary to cause them to comply with this warranty. There
will be no additional charge to Recipient for the investigation and
correction efforts performed by LANDesk, except as provided in Section
8.4. If LANDesk is unable to correct a breach of this warranty after
repeated efforts, Recipient will be entitled to receive an equitable
adjustment in the LANDesk charges for the Services in question (up to the
total amount of such charges under the applicable Statement of Work) to
reftecl any reduction in the value of the Services as a result of the
uncorrected breach of warranty.
8.2. LANDesk warrants that any original works of authorship written
by LANDesk personnel under a Statement of Work, including their use by
Recipient in unaltered form, will not, to LANDesk's knowledge, infringe
any third party copyrights, patents or trade secrets arising under the laws
of the United States of America.
(a) If a third party brings an action against Recipient making
allegations that, if true, would constitute a breach of this warranty, then
LANDesk will, at its own expense, settle the claim or defend Recipient
in such proceeding and LANDesk will pay all settlements, costs,
damages and legal fees and expenses finally awarded provided that
Recipient (i) promptly notifies LANDesk in writing of the proceeding, (ii)
provides LANDesk a copy of all information received by Recipient with
respect to the proceeding, (iii) cooperates with LANDesk in defending
or settling the proceeding, and (iv) allows LANDesk to control the
defense and settlement of the proceeding, including the selection of
attorneys. Recipient may observe the proceeding and confer with
LANDesk at its own expense.
(b) If such a proceeding is brought or appears to LANDesk to be
likely to be brought, LANDesk may, at its sole option and expense,
either obtain the right for Recipient to continue using the allegedly
infringing item(s) or replace or modify the item(s) to resolve such
proceeding. If LANDesk fnds that neither of these alternatives is
available to it on commercially reasonable terms, LANDesk may
require Recipient to return the allegedly infringing item(s), in which
case Recipient will receive a refund of the amounts paid by it for the
returned item(s), depreciated on a straight-line basis over a fve (5)
year period commencing on the date the allegedly infringing item(s)
-were delivered td Recipient by LANDesk.
8.3. Section 8.2 states LANDesk's entire obligation to Recipient and
Recipient's sole remedy with respect to any claim of infringement.
8.4. LANDesk may, at its option, perform the investigation and
correction services pursuant to Section 8.2 at LANDesk's offices to the
extent possible and, to facilitate this work, Recipient agrees to provide
LANDesk with dial-up or other remote IP access (as determined by
LANDesk) to all of Recipients production and test computers (i.e., servers,
PC's, workstations) using the LANDesk Software in order for LANDesk to
perform the investigation and correction services. Without such access,
Recipient understands that LANDesk may not be able to remotely perform
the investigation and correction services and that LANDesk may be forced
to travel to Recipient's site to perform such services. If Recipient requires
LANDesk to travel to Recipient's place of business to correct an Error that
could otherwise have been corrected at LANDesk's offices (either via the
remote access discussed above or otherwise), Recipient will reimburse
LANDesk for the reasonable travel time and Reimbursable Expenses of
LANDesk's personnel. If a reported breach of warranty is attributable to a
cause other than the LANDesk Services, then LANDesk will be entitled to
payment for its investigation and correction efforts on a lime and materials
basis at the rates applicable to the Statement of Work.
8.5. LANDesk is not responsible for any claimed breaches of the
foregoing warranties caused by: (i) modifications made to the item in
question by anyone other than LANDesk and subcontractors working at
LANDesk's direction; or (ii) the combination, operation or use of the item
with other items LANDesk did not supply; or (iii) Recipient's failure to use
any new or corrected versions of the item made available by LANDesk; or
(iv) Recipient's failure to follow any directions or perform any procedures
prescribed by LANDesk; or (v) LANDesk's adherence to Recipient's
specifications or instructions.
8.8. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT,
THE FOREGOING WARRANTIES ARE IN LIEU OF, AND THIS
AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT
LIMITATION, (i) ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY; (ii) ANY AND ALL IMPLIED WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE; AND (iii) ANY AND ALL
IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF
DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
9. LIMITATION OF LIABILITY
9.1. IN NO EVENT WILL LANDESK OR ANY PERSON OR ENTITY
INVOLVED IN THE PERFORMANCE OF ANY SERVICES
CONTEMPLATED UNDER THIS AGREEMENT BE LIABLE FOR: (I)
ANY DAMAGES CAUSED BY THE FAILURE OF RECIPIENT OR ITS
AFFILIATES OR SUPPLIERS TO PERFORM THEIR
RESPONSIBILITIES; (Ip ANY CLAIMS OR DEMANDS OF THIRD
PARTIES (OTHER THAN THOSE THIRD PARTY CLAIMS COVERED
BY SECTIONS 8.2 OR 10.1); OR (III) ANY INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES,
INCLUDING THE LOSS OF PROFITS, REVENUE, BUSINESS, DATA,
SAVINGS OR USE OR COST OF PROCUREMENT OF SUBSTITUTE
GOODS INCURRED BY RECIPIENT OR ANY THIRD PARTY,
WHETHER IN AN ACTION IN CONTRACT, TORT OR ANY OTHER
LEGAL THEORY OR BASED ON A WARRANTY, EVEN IF LANDESK
OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
9.2. If Recipient should become entitled to claim damages from
LANDesk (including without limitation, for breach of central, breach of
warranty, negligence or other tort claim), LANDesk will be liable only for
the amount of Recipient's actual direct damages up to the amount that
Recipient paid LANDesk for the items or Services that are the subject of
the claim. LANDesk will indemnify and hold harmless the other party and
each of its affiliates, directors, offcers, and employees against any
damages, liabilities, costs, expenses, loss of or damage to property of
Recipient, or third parties arising out of or directly connected to
LANDesk's performance of Services. In no event, however, will LANDesk
be liable to Recipient in the aggregate for more than the amount paid by
Recipient to LANDesk under the applicable Statement of Work except for
claims for personal injury to or death of any person. Nevertheless, nothing
in this agreement will limit or exclude any liability for damages incurred
due to negligence, willful misconduct, or fraud.
9.3. Notwithstanding any other provision of this Agreement,
LANDesk shall not be held responsible or to have failed to meet its
obligations under this Agreement, for damages for any delay, interruption
in services, or failure to perform arising out of causes beyond LANDesk's
reasonable control which prevents or makes reasonably diffcult its
performance, provided prompt notice thereof is given to the Recipient.
Such events may include but are not limfted to acts of God or a public
enemy, ads of government in its sovereign or contractual capacity,
earthquake, fre, floods, strikes, work stoppages, accidents or degradation
of telephone or other communication service.
9.4. The foregoing limitations do not apply to the payment of
settlements, costs, damages and legal fees referred to in Section 8.2, or
to any claims by Recipient for reimbursement under Section 8.2. The
limitations of liability set forth in this Section 9 will survive and apply
notwithstanding the failure of any limited or exclusive remedy for breach
of warranty set forth in this Agreement. The Parties agree that the
foregoing limitations will not be deemed to limit any liability to an event
that would not be permitted under applicable law.
10. INSURANCE
LANDesk agrees to comply with attached insurance exhibit.
11. LAW AND DISPUTES
LANDesk Services Agreement
Confidential and Proprietary
11.1. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement shall be governed by the
laws of the State of Texas without giving effect to Texas' choice of law
rules or principles. In the event any suit is brought arising out of or in
connection with this Agreement, the Parties consent to the jurisdiction of,
and agree that sole venue will lie in, the state and federal ceurts located in
State of Texas The Parties agree that the United Nations Convention on
Contracts for the International Sale of Goods is specifically excluded from
application to this Agreement.
11.2. No proceeding, regardless of form, arising out of or related to
this Agreement may be brought by either Party more than two (2) years
after the accrual of the cause of action, except that (i) proceedings related
to violation of a Party's proprietary rights or any duty to protect
Confdential Information may be brought at any time within the applicable
statute of limitations, and (ii) proceedings for non-payment may be
brought up to two (2) years after the date the last payment was due.
11.3.
12. TERMINATION
12.1. At Will Termination by Recipient. Recipient may terminate this
Agreement or any Statement of Work at any lime and for any reason upon
thirty (30) days prior written notice to LANDesk. Termination of this
Agreement shall also constitute a termination of any and all Statements of
Work. Upon receipt of said notice, LANDesk will inform Recipient of the
extent to which performance of any outstanding Statement of Work is
completed and LANDesk will take steps to wind down work in progress in
an orderly fashion during the notice period. Recipient will pay LANDesk
for Services actually performed through the effective date of termination,
plus all Reimbursable Expenses. Upon the termination of this Agreement
for any reason, all obligations of LANDesk to provide Services shall
immediately cease.
12.2. At Will Termination by LANDesk. LANDesk may terminate this
Agreement or any Statement of Work at any lime and for any reason upon
silly (60) days prior written notice to Recipient. Termination of this
Agreement shall also constitute a termination of any and all Statements of
Work. Upon such termination of this Agreement by LANDesk , LANDesk
will take steps to wind down work in progress in an orderly fashion during
the notice period, and LANDesk shall refund to Recipient any tees paid for
Services rendered prior to the date of termination and all obligations of
LANDesk to provide Services shall immediately cease.
12.3. Other Termination Rights. Either Party may terminate this
Agreement immediately upon written notice if (i) all or a substantial portion
of the assets of the other Party are transferred to an assignee for the
benefit of creditors, or to a receiver or a trustee in bankruptcy, (ii) a
proceeding is commenced by or against the other Party for relief under
bankruptcy or similar laws and such proceeding is not dismissed within
silly (60) days, or (iii) the other Party is adjudged bankrupt.
12.4. Survival. Any provision of this Agreement that imposes or
contemplates continuing obligations on a Party will survive the expiration
or termination of this Agreement.
13. GENERAL
13.1. Notice. Any notice or other communication required or
permitted to be made or given by either Party pursuant to this Agreement
will be in writing, in English, and will be deemed to have been duly given:
(i) five (5) business days after the date of mailing if sent by registered or
certified U.S. mail, postage prepaid, with return receipt requested; or
(ii) when delivered if delivered personally or sent by express courier
service. All notices will be sent to the other Party at its address as set
forth in the Agreement or at such other address as such Party will have
specified in a notice given in accordance with this Section.
13.2. Nonsolicitation. During the term of this Agreement and for
twelve months after its expiration or termination, Recipient will not
knowingly hire or directly solicit for employment by itself (or any of its
affiliates)-any employee of LANDesk (or any of fts atfiliates), unless the
Recipient obtains in advance the written consent of IANDesk. The actual
damages attributable to a breach of the provisions of Section 12.2 would
be difficult to determine and prove. Accordingly, fhe Parties agree that if
Recipient breaches this Section 12.2, Recipient will promptly pay the
LANDesk liquidated damages in an amount equal to three times (3X) the
employee's annual salary (including bonuses and incentive
compensation) prior to the breach, such sum being a reasonable measure
of the damages reasonably anticipated by the Parties.
13.3. Assignment. Neither Party may assign, sublicense or
otherwise transfer or delegate this Agreement or any of the rights or
obligations that it grants, without the prior written consent of the other
Party, which consent will not be unreasonably withheld or delayed. Any
purported assignment in violation of the preceding sentence will be void
and of no effect. This Agreement will be binding upon the Parties'
respective successors and permitted assigns.
13.d. Interpretation. This Agreement will be deemed to have been
negotiated and prepared at the joint request, direction, and construction of
the Parties, at arms length, with the advice and participation of counsel,
and will be interpreted in accordance with its terms without favor to either
Party.
13.5. Severability. The provisions of this Agreement will be deemed
severable, and the unenforceability of any one or more provisions will not
affect the enforceability of any other provisions. In addition, if any
provision of this Agreement, for any reason, is declared to be null, void or
otherwise unenforceable, the Parties will substitute an enforceable
provision that, to the maximum extent possible in accordance with
applicable law, preserves the original intentions and economic positions of
the Parties.
13.6. Relationship of the Parties. LANDesk and Recipient are
entering this Agreement as independent contractors, and this Agreement
will not be construed to create a partnership, joint venture, franchise or
employment relationship between them, and no relationship of exclusivity
is created hereby. Neither Party will represent itself to be an employee or
agent of the other or enter into any agreement on the other's behalf or in
the other's name.
13.7. Non-waiver. No failure or delay by either Party in exercising
any right, power or remedy will operate as a waiver of such right, power or
remedy, and no waiver will be effective unless it is in writing and signed by
the waiving Party. If either Party waives any right, power or remedy, such
waiver will not waive any successive or other right, power or remedy the
Party may have under this Agreement.
13.8. Injunctive Relief. Recipient recognizes that any breach by
Recipient of any obligations under this Agreement will result in irreparable
injury to LANDesk for which damages and other legal remedies will be
inadequate. In seeking enforcement of any of these obligations,
LANDesk will be entitled (in addition to other remedies) to preliminary and
permanent injunctive and other equitable relief to prevent, discontinue
and/or restrain the breach of this Agreement.
13.9. Cancellation Policy. Recipient acknowledges that cancellation
of this engagement may cause LANDesk to incur non-refundable travel
expenses and other costs. Accordingly, if Recipient cancels this project
less than 10 business days but more than 5 business days prior to the
start date of this project, Recipient shall pay LANDesk the fees equivalent
to one day of services under this project or $2,500, whichever is less. If
Recipient cancels this project less than 5 business days prior to the start
date of this project, Recipient shall pay LANDesk fees equal to one week
of services due for this project as if it had been fully performed or
$12,500, whichever is less. Such cancellation shall be in writing and shall
become effective upon receipt by LANDesk.
LANDesk Services Agreement
Confidential and Proprietary
EXHIBIT B
(See Following Page(s) for Statement of Work(s))
Services Agreement Confidential and Proprietary
LANDesk Software, Inc. 5/Ol
»>
LANDeslr
STATEMENT OF WORK
This Statement of Work SOWCCC120508 ("Statement of Work") is issued pursuant to the Services Agreement dated as of December
5, 2008 between City of Corpus Christi ("Recipient"), and LANDesk Software, Ina ("LANDesk") and is effective as of December 5,
2008.
Services to be Performed and Schedule of Performance
The services to be performed ("Services") and any associated schedule, aze detailed in Attachment 1 to this Statement of Work. All
work will be documented in this Statement of Work signed by authorized representatives of both Parties and, except as otherwise
indicated in this Statement of Work, shall be performed by LANDesk, or LANDesk's contractors or consultants.
Project Managers
Recipient: John Spies LANDesk: James Dunford
Prniect Stakeholders and Communication Contact Points
LANDesk Area Services Manager Name: James Dunford
Email: james.dunford@landesk.com
Phone: 801-208-1644
Fax: 801-208-1727
LANDesk Inside Sales Manager Name: Bazi Carney
Email: bari.carney@avocent.com
Phone:201-804-8421
LANDesk Territory Manager Name: Paul Sutton
Email: paul.sutton@avocent.com
Phone:415-543-4646
Primary Customer Con[act Name: John Spies
Email: johns@cctexas.com
Phone:361-826-3750
En a ement Address TBD
Resources and Responsibilities of Recipient
Recipient will provide the necessary resources to facilitate and support the execution of Services:
Agreed to and accepted by:
Name: S
__ _ ___ --
Date:
City of C pus ~risti Recip' nt)
By: cri
Name.
Title: ~ ~ ~U a ~'P ./
Date
Document Revision Loa
Date Revision Authors Chan es
12/5/08 N/A James Dunford Initial draft for Reci lent.
Approved as to form: ~~ °I
Services Agreement
LANDesk Software, Inc.
Assist~t City Attorney
For City Attorney
and Proprietary
5/Ol
ATTACHMENT 1 TO STATEMENT OF WORK SOWCCC120508
Project Definition
The content of this Statement of Work is based on LANDesk's current understanding of Recipient requirements.
LANDesk will use a `commercially reasonable effort', based on industry standards, to deliver the Project and Services
within 5 days in accordance with the following tasks:
A. Project Tasks
1. Install the LANDesk Patch Manager (stand alone) application with "out of the box" functionality
including configuration of deployment solutions within Recipient environment.
2. Deploy the LANDesk client agent with commercially reasonable effort, to a total of 700 client nodes
of the 2000 node Recipient environment.
3. Conduct Transfer of Information (TOI) with the designated Recipient LANDesk administrator(s) via
over-the-shoulder training.
4. Document the installation and customization of the LANDesk Patch Manager for Recipient in the
post-project documentation.
5. Distribute daily status reports to all project stakeholders, and as requested, to detail daily events.
B. Recipient Project
Task /Phase Overview
A proposed high-level project plan is described below. The LANDesk and Recipient Project Managers will
review the Statement of Work, and may create a revised project plan at the start ("kick-off') of the project. Tasks
may be completed in a different order than listed at the discretion of the onsite LANDesk Consultant, LANDesk
Project Manager, and/or Recipient Project Manager.
I. Phase I -Planning - 0.25 Day
1) Planning: Planning will consist of identification of key deliverables, risks, opportunities, and
organization of priorities as directed through the Statement of Work, and Recipient.
II. Phase II -Software Installation and Configuration - 1.00 Day
1) LANDesk Core Server Installation and Configuration: Install and configure required LANDesk
Software to customer-provided core server hardware, to specifications. Implement services necessary for
inventory and software scanning. Configure software scanning for expanded data collection as necessary.
Verify Core server patch level and DBMS patch level.
2) Windows Client Agent Configuration: Create a standard Windows client agent configuration package.
3) LANDesk Patch Manager Configuration: Configure download settings, verify patch storage location
and available disk space, update definitions, and review best practices for patch management. Note:
Vulnerability scan will be performed later in the deployment.
__
III. Phase III -Pilot Testing - 1.00 Day
1) Pilot: Subsequent to Windows client agent configuration, deploy Windows client agent to a small group
of local target computers. Target computers should represent typical field computer configurations.
Services Agreement Confidential and Proprietary
LANDesk Software, Inc. 5/Ol
N. Phase N -Production Roll-out - 2.50 Davs
Note: Remaining tasks have many common factors, and will overlap to varying degrees. Additionally, the
'roll-out' phase will continue throughout the remainder of the deployment.
1) Perform Roll-out: Continue client agent deployment into the Recipient production environment. Note:
Number of nodes deployed will vary based on many network environment factors as well as the allowed
impact on network users.
2) Perform Security Sweep: Perform a security sweep of computers with LANDesk client agents.
Vulnerabilities, required patches, spyware, and other findings will be recorded and a cursory remediation
plan established. Remediation will be performed throughout the remainder of the deployment, and again,
number of nodes is directly driven by unknown network health as well as the allowed impact on
production network users.
3) Perform Vulnerability Scan: Perform a vulnerability scan of computers with LANDesk client agents.
Vulnerabilities, required patches, and other findings will be recorded and a cursory remediation plan
established. Remediation will be performed throughout the remainder of the deployment, and again,
number of nodes is directly driven by unknown network health as well as the allowed impact on
production network users.
4) Configure Reporting /Queries: Configure basic reporting and queries to show Recipient benefits and
flexibility of inventory management.
5) Configure Roles and Scopes: Configure basic LANDesk administrator roles and scopes meet Recipient
requirements.
6) Implement LANDesk Network Access Control (NAC): Implement and configure LANDesk Network
Access Control into Recipient production environment. Note: Previous testing in test lab with Recipient
supplied routers and server equipment is mandatory prior to roll-out.
7) Configure and Demonstrate Package Building Methodology & Test: Configure and test basic
software distribution packages and scripts for Recipient.
8) Configure and Demonstrate Software Distribution Delivery Methodology: Review, demonstrate, and
reinforce software distribution and deployment methodologies.
9) Confgure and Demonstrate Operating System Deployment (OSD) /Profile Migration: Configure
OSD and Profile Migration for Recipient environment. Perform basic testing in lab environment.
] 0) Create Custom Scripting: Create and integrate customized scripting per Recipient requirements, using
industry standard tools (Visual Basic, WMI, AutoIT, or others).
11) Configure and Demonstrate Software License Monitoring: Configure two applications for monitoring,
usage, or management.
12) Conduct Project Knowledge Transfer: Perform over-the-shoulder training throughout the project. Note:
over-the-shoulder training is secondary [o the project process itself, and is in no way intended to be a
replacement for formal LANDesk training.
13) Distribute Daily Status Reports: Distribute Daily Status Reports detailing project progress, scope
modifications, and outstanding issues, to all project stakeholders.
14) Pr2vide Project Documentation: LANDesk Consultant will provide thorough documentation including
screen captures and step-by-step instructions on all key objectives of this project. Documentation will
include specificity as it relates to the Recipient environment.
V. Phase V -Project Closure Meeting - 0.25 Day
1) Project Closure Meeting: LANDesk Consultant will meet with the respective Recipient Project Manager
and/or Project Stakeholders to discuss the deliverables defined in the Statement of Work for this project.
Services Agreement Confidential and Proprietary
LANDesk Software, Inc. 5/Ol
Any open issues and items of concern will be addressed during this meeting. The objective of this
meeting is to finalize and obtain Recipient signoff on this project.
C. Change Control Process
Recipient understands that change(s) may result in changes to scope and duration of the project and may incur
additional charges. The Change Request Form will describe the change(s), the reason for the change(s), the
charges for the change(s) (if any), and the effect(s) the change(s) will have on the project.
The change control process consists of the following steps:
a. The LANDesk Consultant or LANDesk Project Manager will complete the Change Request form in
Attachment 2 of this Statement of Work.
b. The LANDesk Consultant or LANDesk Project Manager will forward the Change Request form to
Recipient for review and agreement.
c. Recipient agrees to changes and costs (if any) in the Change Request form.
d. The LANDesk Consultant or LANDesk Project Manager will forward the Change Request form to the
LANDesk Professional Services Manager for approval.
e. The Change Request form is signed by LANDesk and Recipient.
£ The changes are implemented.
Responsibilities
A. LANDesk Project Resources and Responsibilities
LANDesk will assign adequate resources to initiate the project in a timely manner with high quality standards.
LANDesk will make every effort to maintain a consistent staff for the period of 5 `man days' from project
commencement. However, LANDesk reserves the right to assign and remove resources as required.
LANDesk may choose to utilize the services of our qualified partners to complete the services. These partners are
experienced with LANDesk product implementation. While on contract to LANDesk, our partners are fully
recognized and supported as an extension of LANDesk's Professional Services Group.
B. Recipient Responsibilities
1. Recipient project personnel will be available on a timely basis and will be able to allocate the necessary time
to the LANDesk Consultant while onsite. Anticipated Recipient resources required will be Administrators for
the following:
o Window 9X, NT, 2000, XP Operating Systems
o Relational Database Management System
o Infrastructure
2. The required LANDesk and Database Management System server's Operating Systems must be installed,
patched to environmental standards, and in place prior to the arrival of the LANDesk Consultant for
deployment and implementation services.
3. Recipient will be responsible for conducting any necessary backups of the system, as well as any subsequent
restorations-that may be required.
4. Recipient acknowledges that all work will be performed from a centralized location.
5. Recipient will provide relevant application and process documentation, and assist with information, as deemed
necessary, as it relates to the LANDesk product(s). LANDesk will define required documentation as
appropriate.
6. Meetings and interviews will be conducted at a single location, and as required, Recipient personnel will be
made available at either that location or via alternate means (e.g. teleconference or videoconference).
Services Agreement Confidential and Proprietary
LANDesk Software, Inc. 5/Ol
7. Adequate workplace facilities shall be made available to the LANDesk Consultant for the duration of the
project, (e.g., desk, network connection with Internet access <or an analog line to the desk>, telephone, test
account, and contractor identiFcation with afterhours access as needed), and will be provided by Recipient at
the commencement of the project.
8. Recipient will be responsible for establishing and maintaining a test lab to be used for the duration of this
project. Lab must include:
o Network access to the LANDesk Server
o One fully functional computer representative of a standard production computer build
o One fully functional computer for each unique production computer configuration
9. Recipient will assign a Project Manager who will serve as LANDesk's executive-level and primary contact.
C. Project Completion
Recipient acknowledges that the project will be considered completed upon signing the Project Completion form.
Services Agreement Confidential and Proprietary
LANDesk Software, Inc. 5/Ol
ATTACHMENT 2 TO STATEMENT OF WORK SOWCCC120508
CHANGE REQUEST FORM
This document serves as an addendum to the Statement of Work executed between LANDesk Software, Inc. ("LANDesk") and City of
Corpus Christi ("Recipient") dated December 5, 2008 ("Addendum"). Recipient has requested that changes be made to this Statement
of Work. If additional time is required to implement these changes, LANDesk will provide an additional quote. This Addendum is not
considered approved until all necessary initials are gathered and a purchase order is received (if days are added). Changes in this
Addendum may impact the original project schedule and price.
Change: Briefly describe the changes to the initial
Statement of Work: Impact: (Additional
Days) Acceptance -Please Initial
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6.
7.
8.
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Services Agreement Confidential and Proprietary
LANDesk Software, Inc. 5/Ol
EXHIBIT
INSURANCE REQUIREMENTS
I. CONTRACTOR'S LIABILITY INSURANCE
A. Contractor must not commence work under this agreement until Contractor has obtained all
insurance required herein and such insurance has been approved by the City. Contractor
must not allow any subcontractor to commence work until all similar insurance required of the
subcontractor has been so obtained.
B. Contractor must furnish to the City's Risk Manager 2 copies of Certificates of Insurance,
showing the following minimum coverage by insurance company(s) acceptable to the City's
Risk Manager. The City of Corpus Christi must be named as an additional insured for all
liability policies and a blanket waiver of subrogation is required on all applicable policies.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
Will endeavor to provide 30 day written Bodily Injury and Property Damage
notice of cancellation or non-renewal and a Per Occurrence /Aggregate
10 day written notice of cancellation for non-
payment of premium
Commercial General Liability including:
1. Commercial Broad Form $1,000,000 Combined Single Limit
2. Premises -Operations
3. Products/Completed Operations Hazard
4. Contractual Liability
5. Independent Contractors
6. Personallnjury
Automobile Liability owned, non-owned or $1,000,000 Combined Single Limit
rented
Computer Software Professional Liability $1,000,000 Combined Single Limit
Coverage provided must cover officers,
directors, employees and agents to include:
1. Errors and Omissions
Which complies with the Texas Workers'
Workers' Compensation Compensation Act and Paragraph II of this
exhibit
Employers' Liability $500,000/ $500,000/ $500,000
C. In the event of accidents of any kind, Contractor will endeavor to furnish the Risk Manager with
copies of all reports of such accidents within thirty (30) days of the accident.
2008 MIS - LanDesk agreement ins. req.
12-16-08 ep Risk Mgmt.
Services Agreement Confidential and Proprietary
LANDesk Software, Inc. 5/Ol
2. II. ADDITIONAL REQUIREMENTS
A. Contractor must obtain workers' compensation coverage through a licensed insurance
company in accordance with Texas law. The contract for coverage must be written on a policy and
endorsements approved by the Texas Department of Insurance. The coverage provided must be in
amounts sufficient to assure that all workers' compensation obligations incurred will be promptly met.
B. Certificate of Insurance:
The City of Corpus Christi must be named as an additional insured on the liability coverage,
except for the Workers' Compensation coverage and a blanket waiver of subrogation in favor
of the City of Corpus Christi in all applicable policies. I
The name of the project must be listed under "Description of Operations".
Coverage provider will endeavor to provide a 30-day written notice of cancellation or non-
renewal and a 10 written notice of cancellation for non-payment of premium
2008 MIS- LanDesk agreement ins. req.
12-16-OS ep Risk Mgmt.
Services Agreement Confidential and Proprietary
LANDesk Software, Inc. 5/Ol
Customer Software, Services and Education order form
(Please use this form when pumhasing software,servicesesnd etlucatlon coursesfmm Touchpaper Corpomtbn in the US)
Touchpaper
TO TouchpaperCOrpom[bn SalesEnewlNe paulSutton
440 9th Avenue, 8th Floor
New York, NV 10001 Dete 09 December 2008
oNerNO OBUJ9A004LS2
Pumhase Order No
rom ("The Customer")
City of Corpus Dhdsa
1201 Leopartl SL
MIS DepenmeM
Corpus Chdstl, TX, 78401
Tel: 381-826-3750
jJygy- Jeh TYIa Emell lddrrs Phones 8Nr Rela I
Mr. John SDiess HelpDesk Manager JOhnS~ate:as.com 381826J750
Plame supply the following products and aervicr under the terms of the Touchpaper Messier Agreement referenced aDOVe.
nroas m omwu awiaa w,w, ry.
1?r~uM 9gL Sub-Trial NelMansnca ~,
Software 8 PMA
1 LANDesk®Patch Manager-SubsMption 2,000 4.06 8,120.00 0.00 8.120.00
2 LANDask®Patch Manager(Stand Abne Product wtth Annual Subscnptbn) 2,000 10.98 21,960.00 0.00 21.960.00
3 LANDesk Management Gateway appliance 12 month PMA 1 570.00 570.00 0.00 570.00
4 LANDeak Management Gateway appliance 1 2,280.00 2,280.00 0.00 2,280.00
Software TOtal 0.00 32.930.00
Education
1 Training-5-0ays Desktop Management wtth LANDesk®
Management Sutte
Consultancy
1 LANDesk consuNancy fordepbymeM
2 LANDesk - Pmfesslonal Services Daly Expenses
Invoice Address (if different)
1.0 2,120.75 2,120.75 0.00 2,120.75
Education Total 0.00 2,120.75
5 days 1,950.00 9,750.00 0.00 9,750.OD
5 days 400.00 2,000.00 0.00 2,000.00
Consultancy Total 0.00 11,750.00
Order TOtal 48,800.75
Customer Software, Services and Education order form
(Please use This formwhan purchasing software,servkes and educatlon courses fmm Touchpaper Corporetbn in the US)
To aper
Ciy of Corpus Chdstl Sales Executive paUl SUlf00
1201 Leopam SL
MIS Department Date 09 December 2008
Corpus Chrtstl, TX, 78401
Omer No OBUJ9A004LS2
Pumhase Omer No
Tht xnfN.rare Sarv4wx and Eduratlnn Omar Form lnmrooretes and aucments the Touchoaper Master ACreementand isalegal agreement between you,
the Customer, and Touchpaper Software pk. The parties have mad arm agree to the terms of Nis agreemem.
Order 8 Payment Terms:
1. Produds - 30 days from Ne day of delivery.
2. Support and Melrrtenance -annualy in advance.
3. Education Course - Eadier of 30 days fmm the date of inwice or 7 days prtor to start of course.
4. SeMCes - 30 days from dale of invoke (normaly imroiced in smears).
5. The prtces exdude Sales Tax (whkh will be charged at the appmpna[e mm at the time of soppy).
8. Tmvel and am/ other inddeMal expanses will be charged es Incurted.
7. Cancellation fees am tlue for customer cancelled courses - 50% of the course fee tl cancelled within one week of the start of the course, or 100% gf the
course fee tl Ne course is not attended or less Nan 5 working days rwece given.
8. Canrsllalkn fees are due for customer cancelled consultancy days -100% of Ne consultancy fee d cancelled wtlhin 14 working days of the booked date
ant Touchpaper am unable reasonaby to re-schedule the consuftard on another pmjecl.
9. Touchpaper reserves the dgM to charge the dates of courses and consultancy days booked.
10. The pdrss am valid for 30 days from Ne date shown.
11.Omers for pm-Dail Educatlon ant Consultancy SeMCes must be booked antl used within 12 Calendar Momhs fmm the date of omer.
12. All cred'R wm payments will be subled to a 4% sumhage
Authori>:ed for Touchpaper:
Signed:
Name:
Title:
Dale
AW hMked for the Customer
Signed
Name: tI
Title:
Date: '
Approved as to form: ~ 3 ~Og
._,i/Y~
Lisa Aguilar
Assistant Ci ttorney
For City Attorney