HomeMy WebLinkAboutContract 21152115
V
`~ Covera a Selection Sheet ; ~~
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Date
13 Au 2008 Customer
Cit of Columbia Hei hts
Customer Type
Corporate
Pricin Valid if sf ned b : i 5 Au 2008 Customer Contact Sales Representative Chris Hegberg
Billing Address/Information Name Aleksandr Chernin Sales Engineer Brian Kelleher
City of Co{umbfa Heights
590 40th Ave. NE
Columbia Heights, MN., 55421 Address
Telephone
Email
Activation small 590 40th Ave, NE
Columbia Heights, MN., 55421
763-706-3638
is@ci.columbla-helghts,mn.us
Is@ci.columbia-hei hts.mn.us Contract Term
Contract Type
Invoice Terms
Service Start Date 14 Months
New
Annual Prepaid '
On Provisionin
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Service Annual Unit Price MailboxeslUnits Annual Ch t e
Google Message Security $12.00 125 1, OC1
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TOTAL $1,50 ..00
One-Time Fees Char e Other Terms: '
PowerUp for Qoogle Message Security $750 Includes 1024 (MB) of allocated spooling.
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Includes first 2 months free. { :
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ONE-TIME FEES TOTAL $750
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This Coverage Selection Sheet, together with the Master 5eivices Contract (the "Services Contract"), the exhibits thereto, and an;
documents expressly referenced herein or therein {collectively, the "Contract") shall constitute the entire and exclusive agreemen
between Postinf, Inc. ("Postini"}, a wholly owned subsidiary of Google Inc., and the Customer identified above (the "Customer")
regarding its subject matter. This Contract shalt supersede and replace any previous or contemporaneous written or oral contras
warranty, representation or understanding regarding its subject matter. By signing below the parties acknowledge that they have
received, understood and agreed to, In a legally binding manner, all components of the Contract. ~
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PO is required, PO# is: If NO PO # required: {executor of contract)
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1. rvic
MASTER SERVICES CONTRACT
1.1 This Master Services Contract (this "C n ra ") is between the Postin(
entity set forth In the Coverage Selection Sheet ("Postini"), a wholly owned
subsidiary of Google Inc., and the Customer set forth in the Coverage
Selection Sheet ("Customer"). Postini will provide to Customer each
service specified In the Coverage Selection Sheet (the "Services"), as more
fully described in the applicable Postini user guides and/or manuals far the
operation of the Services in written or electronic form, made available with
the Services, and which may be periodically updated (in its most current
form, "Documentation"). Within three (3) business days of the date on
which this Contract is signed by both parties (the ")mffectivgD,~te°), Postini
will provision the Services for Customer {"Provisionino"), unless otherwise
agreed to by the parties, and Customer shall thereafter be able to complete
the process for activating Customer's account. Postini reserves the right to
modify the Services, at no additional cost to Customer, with the objective of
providing Customer with equal or enhanced Services. The "Email Services"
means the portion of the Services designed to process, filter and deliver
small to Customer servers.
1.2 Subject to the terms and conditions of this Contract, Postini shall
provide technical support services ("Postini TSS") to Customer during the
Term in accordance with the Technical Support Services Guidelines ("TSS
u s") then in effect for the applicable Services. The TSS Guidelines
may be accessed at the fallowing url: www.postini.cornlsupgortinfo (or such
other url as may be provided by Postini). Postini reserves the right to make
changes to the TSS Guidelines from time to time.
1.3 if Customer is purchasing Message Encryption, this shall be made
available only For so long as Customer has an active contract for the
purchase of Message Security or Message Discovery, unless Postini
otherwise agrees In writing.
2. Fees and Billing.
2.1 The "Billing Start Daie" for this Contract shall commence three (3)
days after Provrsioning.
2.2 On or after the Billing Start Data, Postini shall invclce Customer as
follows, for each Service:
(a) Such one-time fees as are set forth in the Coverage Selection
Sheet under One-Time Fees;
(b) if selected by Customer as set forth in the Coverage Selection
Sheet, the applicable fees for Express or Premier Support;
(c) in advance, a fee equal to the Monthly Charge or Annual Charge
(as may be applicable) set forth in the Coverage Selection Sheet; and
(d) In arrears, a fee if the number of units enabled and/or for which
Customer actually routed messages through the Postini system during the
preceding calendar month exceeds the Mailboxes/Units set forth in the
Coverage Selection Sheet (such additional units, the "Additional Units").
Such fee shall be equal to the amount calculated by multiplying (i) the
Additional Units by (ii) the Monthly Unit Price set forth in the Coverage
Selection Sheet or the Annual Unii Price set forth in the Coverage Selection
Sheet divided by 12 (as the case may be).
2,3 Each invoice Is due and payable thirty (30) days following the invoice
date. Delinquent payments shall bear interest at the rate of one-and-one-
half percent (1.5°!°) par month (or the highest rate permitted by law, if less)
from the payment due date until paid in full. Customer will be responsible
for all reasonable expenses (including attorneys' fees) incurred by Postini in
collecting unpaid or delinquent amounts, except where such unpaid or
delinquent amounts are due to billing inaccuracies attributable to Postini.
Postini reserves the right to suspend the Services (of which it shall provide
advance notice, which may be by email) until Customer pays all past due
amounts. Customer shall pay Postini the fees in the amount and on the
terms specified in the Coverage Selection Sheet and Contract, free and
clear of, and without any reduction for, any and all taxes. Customer shall
pay any duties anti taxes, including sales, use, personal property, value-
added, excise, customs fees, Import duties or stamp duties Imposed by
governmental agencies of whatever kind and imposed with respect to all
transactions under the Contract, including penalties and interest
{"Transaction Related Taxes"), but specifically excluding taxes based upon
Postini's assets or net income. When Postini has the legal obligation to pay
or collect Transaction Related Taxes, the appropriate amount shall be
invoiced to and paid by Customer unless Customer provides Postini with a
valid tax exemption certificate authorized by the appropriate taxing
authority. All fees end remittances will be in iho currency indicated in the
Coverage Selection Sheet.
3. Term. The initial term ("Initial Tenn") of this Contract shall commence
on the Effective Date and shall continue for the "Contract Term" (set forth in
the Coverage Selection Sheet) from the BIIIing Start Date. At the end of the
Initial Term, this Contract she!! be renewed automatically for consecutive
renewal terms of twelve (12) months (such renewal terms together with the
Initial Term, the "Term"), unless terminated by either party (effective as of
the end of the current term) by providing the other party written notice at
least fifteen (15) days prior to the end of the applicable term delivered in
accordance with Section 18, "Notices". Postini may revise its rates
(including, but not limited to, the fee per Mailbox/Unit) with at least thirty
(30) days prior written notice to Customer, effective for the following term.
4. Termination. Either party may terminate this Contract For cause upon
written notice If the other party fails to cure any material breach of this
Contract within thirty (3D) days after receiving written notice of such breach;
provided however that the period to cure a breach with respect to payment
shall be ten (10) days. Other than as may be provided elsewhere In this
Contract, such termination shall be Customer's sole and exclusive remedy
in case of a material breach of this Contract by Postini.
5. Customer Obligations. During the Term of this Contract, Customer
shall have the following obligations, in addition to those sat forth elsewhere
in this Contract.
5.1 Customer is and will remain solely responsible for complying with all
laws, rules and regulations regarding the management and administration
of its etecironlc messaging system. Customer acknowledges and agrees
that 4TOStini's responsibilities end Ifabiflly do not extend to the internal
management or administration of Customer's electronic messaging system
or messages and that Postini is merely adata-processor,
5.2 Customer agrees that it shall not resell the Services or create or offer
derivative versions of the Services either directly or through a third party.
5.3 The Services are for use with normal business messaging traffic only,
and may not be used for any other purpose, including use of the Message
Encryption Services (if applicable) with machine generated message
encryption and delivery. For each user for which Customer will be routing
email and/or archiving email, if any, through the Postini system, Customer
shall establish an email account in the Postini Administration Console.
5.4 Customer agrees to comply with the terms and conditions of the
Postini Acceptable Use Policy (" l~E") as published or posted on Postini's
website at ~vww,gostini.com and as may be periodically amended by
Postini. The AUP is hereby incorporated into this Contract.
5.5 IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET
FORTH IN SECTION 52 AND/OR SECTION 5.3, POSTINI SHALL
INFORM CUSTOMER THEREOF AND RESERVES THE RIGWT TO
SUSPEND THE SERVICES UNTIL SUCH FAILURE IS REMEDIED.
NOTWITHSTANDING THE FOREGOING, THE FAILURE OF CUSTOMER
TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 5
MAY BE DEEMED A MATERIAL BREACH OF THIS CONTRACT,
5. Warranties.
6.1 Postini warrants that the Services will conform in all material respects
to the applicable bocumentation, in the event of a breach of the foregoing
warranty, as Customer's sole and exclusive remedy, Postini will, at its
expense, use commercially reasonable efforts to cause the Services to
conform.
6.2 Postini warrants that the Email Services will meet the requirements
set forth in the Service Level Agreements (the ",BAs"), as set forth on
Exhibit A attached hereto. In the event of a breach of the foregoiny
warranty, as Customer's sole and exclusive remedy, Postini will provide the
remedy set forth in the respective SLA.
6.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6,
POSTINI MAKES NO WARRANTIES OF ANY KIND, INCLUDING, BUT
NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
ACCURACY OR NON-INFRINGEMENT. TO THE EXTENT ANY
EXCLUSION OF IMPLIED WARRANTIES DOES NOT APPLY AS A
MATTER OF LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN
DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE.
7. Ownership. The Services and alt intellectual property rights relating
to the Services are and shall remain fire exclusive property of Postini, Its
licensors and/or.its affiliates.
8. Gonfldentiality.
8.1 Definition. "Confidential Information" is information disclosed by one
party to the other party under this Contract that Is marked as confidential or
would normally under the circumstances be considered confidential
Information of the disclosing party. Confidential Information does not
include information that the recipient already knew, that becomes public
through no fault of the recipient, that was independently developed by the
recipient, or that was rlyhtfully given to the recipient by another party. For
(v021508) 1 US -Master Services Contract
clarity, Customer's Confidential Information shall also include Customer's
electronic messages that are subject to the Services ("Cu o er
Messages").
8.2 Confidentiality Obligations. The recipient will not disclose the
Confidential Information, except to affiliates, employees and agents who
need to know It and who have agreed in writing to keep it confidential.
Those people and entities may use Confidential Information only to exercise
rights and fulfill obligations under this Contract, while using reasonable care
to protect It. The recipient may also disclose Confldentlal Information when
required by law after giving reasonable notice to discloser. Postini further
agrees that it will not change or copy Customer Messages, and It will not
read or distribute Customer Messages, except as required to perform the
Services. Postinl hereby agrees that it has implemented industry standard
procedures to: (1) ensure the security and confidentiality of Customer's
Confidential Information; (2) protect against any anticipated threats or
hazards to the security or integrity of such information; and (3) protect
against unauthorized access to or use of such information. If this Contract
is subject to the Health Insurance Portability and Accountability Act of 1996
(HIPAA), the parties agree to comply with the applicable laws thereunder
and shall negotiate in good faith, if necessary, to execute any other
docpments that may be required to comply with such applicable laws.
9. Indemnity. Postini, at its expense, shall indemnify, defend and hold
harmless Customer against any losses, costs and damages arising from a
claim by a third party against Customer that the Services, or any part
thereof, Infringe any intellectual property or proprietary rights of such third
party or misappropriates any protected trade secret of such third party.
Customer, at its expense, shall Indemnify, defend and hold harmless Postinl
against any losses, costs and damages arising from a claim by a third party
against Postinl based upon or otherwise arising out of the contents of the
Customer Messages. Each party's obligations under this Section 9 are
subject to the party seeking indemnification ("Indemnitee") provlding the
other party (°Indemnltor") with (i) prompt written notice of the claim, (ii) sole
control over the defense or settlement (provided, however, that any such
settlement shall not result in financial liability on Indemnitee or require its
admission of any fault without Its prior written consent), and (Iii) reasonable
support and cooperation with regard to the defense. In the event that
Postinl's right to provide the Services Is enjoined or in Postini's reasonable
opinion is likely to be enJolned, Postinl may, at its expense, obtain the right
to continue provlding the Services, replace or modify the Services so that
they become non-infringing but remain functionally equivalent, or if such
remedies are not reasonably available, terminate this Contract without
liability to Customer.
10. Limitation of Liablllty. EXCEPT REGARDING THE
CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO 7HE OTHER FOR ANY SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA
OR LOSS OF GOODWILL), ARISING OUT OF OR IN CONNECTION
WITH THIS CONTRACT OR THE PERFORMANCE OR OPERATION OF
THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY
CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF
WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY
OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT
REGARDING THE INDEMNITY OBLIGATIONS UNDER SECTION 9,
"INDEMNITY," IN NO EVENT SHALL EITHER PARTY'S LIABILITY FOR
ANY bAMAGES HEREUNDER EXCEED THE AMOUNTS PAID
HEREUNDER BY CUSTOMER TO POSTINI DURING THE TWELVE (12)
MONTH PERIOD PRECEDING THE CAUSATION OF THE DAMAGES.
11. Assignment. Neither party may assign or transfer this Contract
without the written consent of the other party, except to a third party who
controls, is controlled by, or is in common control with all or substantially all
of the assigning party's business and who agrees In writing to be bound by
the terms of this Contract. Any other attempt to transferor assign Is void.
12. Governing Law. This Contract Is governed by Callfornla law
excluding California's choice of law rules. FOR ANY DISPUTE RELATING
TO THIS CONTRACT, THE PARTIES CONSENT TO PERSONAL
JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN
SANTA CLARA COUNTY, CALIFORNIA.
13. Severability. IF any provision is found unenforceable, it and any
related provisions will be Interpreted to best accomplish the unenforceable
provision's essential purpose.
14. Survival. The rights and obligations of Postini and Customer
contained in this Section end in Sections 2.3, 7-10, 12-18 and 24 survive
any expiration or termination of this Contract.
15. Waiver. Failure to enforce any provision will not constitute a waiver.
16. Amendments. Any amendments must be agreed upon in writing.
17. Force Maleure. Neither party will be liable for inadequate
performance to the extent caused by a circumstance beyond its reasonable
control, including, without limitation, Domain Name Server issues outside its
direct control, labor strikes or shortages, riots, insurrection, fires, flood,
storm, explosions, acts of God, war, terrorism, governmental action, labor
conditions, earthquakes and material shortages.
18. Notices. All notices must be In writing (including a-mail) and sent to
the attention of the other party's Legal Department and primary point of
contact. Notice will be deemed given when delivered.
19. Counteraarts. The parties may execute this Contract in
counterparts, Including facsimile, PDF or other electronic copies, which
taken together will constitute one instrument.
20. Publicity. Neither party may make any public statement regarding
the relationship contemplated by this Contract without the other's prior
written approval.
21. No Third-Party Beneficiaries. There are no third-party beneflclaries
to this Contract.
22. Chance of Control. A party may terminate this Contract If a third
party or parties gets the direct or indirect right to control the other party's
management or policies after the Effective bate.
23, No Agency. The parties are independent contractors, and this
Contract does not crease an agency, partnership or)olnt venture.
24. Archived Messages. If the Services contain archiving functlonalliy,
Customer Messages shall be retained for up to the period set forth in the
Coverage Selection Sheet (in the Services name), provided that Customer
renews the applicable Services with Postini for each year of such retention
period. The retention period shall apply to all data archived under the
Services. Failure to renew the applicable Services during the retention
period shall terminate Postini's obligation to retain any of Customer's data
or Indexes. Following such an event, Postinl shall, at Customer's election,
(i) delete Customer's data (at no charge), (il) provide an offllne copy via
hard disk media (at Postini's then-current rates for such) or (ill) extend the
period for Customer to access such data (at Postlnl's then-current rates for
such).
25. ISP Google Message Filtering. If Customer is an Internet service
provider that purchases the Google Message Filtering edition of the
Services, then notwithstanding Section 5.2, Customer may provision such
Services to, and acquire compensation from, its individual consumer
customers and those entities for which it hosts and manages email services
on its systems or those of Google, provided that Customer remains solely
liable for all Customer obligations under the Contract and any breach of This
Contract by its users.
26. Message Filtering. if Customer purchases Message Filtering, then
notwithstanding any provision to the contrary in this Contract, the 100%
Anti-Virus Filtering Service Level Agreement set forth on Exhibit A attached
hereto shall be deleted in its entirety as inapplicable.
(v021508) 2 US Master Services Contract
EXHIBIT A
SERVICE LEVEL AGREEMENTS
During the Term, Postini shall provide the following Service Level Agreements (each an "SLA"). The following provisions shall apply to each SLA
1. Force Majeure. in no event shall Customer have any remedies under any SLA in connection with any circumstance addressed in Section 17, "Force
Majeure" of the Master Services Contract.
2. Reporting Process. Customer must inform Postini's Customer Support Department in writing or by email within 10 business days of the time if first believes
that it Is eligible to receive a remedy under any one of the SLAs set forth below. Customer must also provide to Postini a live copy of the applicable email with the
original Postini headers (complete and untampered with) for analysis. If a dispute arises with respect to any SLA, Postini shall make a determination in good faith
based on its system logs, monitoring reports, configuration records, and other available Information, which Postini shall make available for auditing by Customer at
Customer's request. Failure to comply with these reporting requirements will forteit Customer's right to receive a remedy in connection with an SLA.
3. Remedy Cap. In any given month, Customer shall in no event be entitled to receive more than 100% of its monthly fee for the Email Services pursuant to
these SLAB. For clarity, Customer's Email Services fee for a given month shall equal, as may be applicable, either (i) 100% of the Google Message Filtering fee for
that month, (ii) 100% of the Google Message Security fee for that month or (iii) 33% of the Google Message Discovery fee for that month.
99.999% Ema11 Processln_n Avallabfllty
1. Service Level Agreement. The Email Services shall be operational at least 99.999% of the time in any given month during the Term of the Contract. The
"Operational Percentage" means the percentage of the total time during any given month that the Email Services are not subject to an Outage. An outage
("Outage") means that Postini fails to apply filtering in accordance wlih Customer's configuration selection. Outage does not include service suspension (i) for
reasons outside of Postini's sphere of control (es described in Section 17 of the Master Services Contract) or (ii) during times of maintenance (as described below
in this SLA).
2. Remedy. If the Operational Percentage is less than 99.999%, and if Customer has fulfilled all of its obligations under the Contract and this SLA, Customer
shall have the following sole and exclusive remedy: Postini will provide Customer with a pro rata credit on Customer's Email Services fee for the month in which
the Outage occurred as set forth in the table below:
Operational
Percenta a Portion of Monthly Email
Services Fee Credit
< 99.999% - ? 99.9% 20%
< 99.9% - z 99.0% 40%
< 99.0% 100%
If Customer experiences 1 or more Outages In each of 3 consecutive calendar months and/or 3 or more Outages in any period of 30 consecutive days, Customer
can terminate the Contract upon 30 days prior written notice.
3. Maintenance. To ensure optimal performance of the Services, Postini reserves the right to perform unscheduled emergency maintenance at any time.
Additionally, Postini reserves the right to perform scheduled maintenance that Is designed not to Impact the Services ai any time. Postini will make all reasonable
attempts to schedule maintenance events that are expected to have an impact on the Services between 10:00 p.m. Pacific Time on Fddays and 12:00 p.m. Pacific
Time on Sundays.
?00% Antl-Virus Flltering
1. Service Level Agreement. The Email Services will detect and stop 100% of ail Viruses (as defined below) propagated by an inbound email to Customer that
is subject to the Email Services from creating an Infection (as defined below) of Customer's systems. For purposes of this SLA, an "Infection" of Customer's
systems shall be deemed to occur if an inbound email to Customer that is subject to the Email Services is delivered with a Virus. For purposes of this SLA, a
"Virus' is a binary or executable code whose purpose (s to gather information from the infected host (such as Trojans), change or destroy data on the infected host,
use inordinate system resources in the form of memory, disk space, network bandwidth or CPU cycles on the Infected host, use the infected host to replicate Itself
to other hosts, or provide control or access to any of the infected host's system resources. For the avoidance of doubt, e Virus does not include: (i) text messages
that use fraudulent claims to deceive the Customer and/or prompt the Customer to action (such as phishing); (il) a binary or executable code installed or run by the
end user that gathers information for sales and marketing purposes (such as spyware); (iii) a virus that has been detected and has been cleaned by other virus
scanning products or (iv) an Ineffective or inactive virus contained In a bounced email.
2. Conditions. The following conditions must be satisfied by Customer to be eligible to receive the remedy specified In this SLA:
a. Customer must have enabled full virus protection for all users to be eligible to receive the remedy. Customer's administrative settings must be
configured with the maximum Anti-Virus protection, including, if configurable, Postinl's Attachment Manager to bounce Executables and Compressed Files
as defined within the System Threats category of Postini's Attachment Manager, message fragment blocking, Connection Manager, Virus Outbreak configuration
set to "Very High", user-enabled virus cleaning and non-account Virus bouncing enabled for all organizations in a Customer account. Use of Postini s "Message
Header Tagging' feature will result in Customer forfeiting its right to receive a remedy.
b. A Virus must pass through the filtering technology of the Email Services and be received by one of the Customer's end users to qualify for the remedy
set forth below. Messages Infected with a Virus that are quarantined by the Email Services, but are subsequently delivered to the end user or administrator by
such end user or administrator are not covered by this SLA. Messages containing attachments that are password protected, encrypted or otherwise under the end
user's control are not covered by this SIA. Any action by an end user or administrator of the Customer that results in deliberate self-infection will result in
Customer forfeiting Its right to receive a remedy.
3. Remedy. If Customer experiences 1 or more Infections in a calendar month, and if Customer has fulfilled all of its obligations under the Contract and this
SLA, Customer shall have the following sole and exclusive remedy: Postini shall credit Customer in an amount equal to 100% of the monthly charge for its Anti-
virus protection services (which is currently equal to 33% of the monthly charge for the Email Services). Only 1 claim per calendar month may be made under this
SLA. If Customer experiences 3 or more separate Virus Infections in a consecutive 30 day period, Customer may terminate the Contract with 30 days notice.
4. Exceptions. In the event that Postini detects but does not stop an email Infected with a Virus that Is filtered by the Email Services, Postini will promptly notify
the Customer and provide sufficient Information to enable the Customer to Identify end delete the Virus-infected email. If such a notification results in the
prevention of an Infection, Customer shall not be eligible for the remedy set forth In this SLA.
(v021508) US Master Services Contract