Loading...
HomeMy WebLinkAboutDocumentation_Regular_Tab 04_12/11/2008-~^ x 1. VILLAGE COUNCIL MEETING: VILLAGE OF TEQUESTA AGENDA ITEM TRANSMITTAL FORM Meeting Date: December 11, 2008 Meeting Type: Regular Ordinance #: N/A Consent Agenda: No Resolution #: 54-08 Originating Department: Police 2. AGENDA ITEM TITLE: (Wording form the SUBJECT line of your staff report) Emprise 5000 Disk Based Storage System 3. BUDGET /FINANCIAL IMPACT: Account #: 001-160-664.601 -Capital Outlay Amount of this item: $35,184 Current Budgeted Amount Available: Amount Remaining after item: $35,184 $0 Budget Transfer Required: In Progress Appropriate Fund Balance: No 4. EXECUTIVE SUMMARY OF MAJOR ISSUES: (This is a snap shot description of the agenda item) Request approval to purchase Emprise 5000 Disk Based Storage network backup system complete with two (2) terabyte data packs and the required accessories and services from Xiotech Corporation of 64555 Flying Cloud Drive, Eden Prairie, MN 55344. 5. APPROVALS: a~ _.:~,~., t ':. ._ :~ew,•) Dept. Head: ~ Finance Director: Attorney: (for legal sufficiency) Keith Davis. Esq. Village Manager: ~' - • SUBMIT FOR COUNCIL DISCUSSION: ['~r • APPROVE ITEM: I~ • DENY ITEM: Form amended 08/26/08 [~~Approved~~~ No Financial Impact Yes ^ No With amended Terms and EIJLA Routing Sheet Process 1. Send ALL completed forms to Finance for review ONE WEEK prior to agenda items due into Clerk's Office. 2. Finance sends Routing Sheet to Clerk by deadline. 3. Clerk formulates agenda and sends to Manager for review /approval. To: Michael R. Couzzo, Jr. Village Manager From: Brad Gomberg IT Specialist Date: 11/17/08 Re: RESOLUTION #54-08 -PROPOSED STORAGE AND BACKUP SOLUTION I would like to request that the purchase of a new Network Backup System is placed on the December 11, 2008 Council Agenda. I have attached the necessary documentation for its submission. I have forwarded the purchase contract to our attorney, Keith Davis, Esq. to review for legal form and sufficiency. As the Village incorporates more advanced technologies into various aspects of its business, a higher demand is placed on our storage infrastructure. Systems such as Laserfiche, Mimosa Email Archival, upgrades to existing software, as well as increased use of multimedia content have exponentially increased the rate of data expansion. This increase will soon over-extend our existing backup and storage resources. This presents, not only the need to respond to the immediate problem, but also the opportunity to implement more comprehensive and enduring solution. For your consideration I offer the following data storage /backup systems, future growth potential, as well as the proposed solution to meet the increased demand. The world of medium business and enterprise class storage is complex. There are a multitude of different technologies, all presenting their own benefits and disadvantages. You must distinctly identify the needs of your organization, and find the product that most closely matches them. I have identified the following criteria for Tequesta's current and future storage needs (in no specific order). • Redundancy • Expandability • Ease of Integration • Support • Cost • Real World Application • Spectrum of Use After identifying our selection criteria I reviewed multiple systems and technologies, looking for applicable products. The selection was narrowed to three vendors offering four separate systems, and based on cost, three systems qualified for serious consideration. The most challenging aspect of this review process was the fact that, although the systems are meant to perform the same task, they are all significantly different from an operational and technological standpoint. This made an "apples to apples" comparison problematic, and a less direct comparison must be made. I have listed a brief bullet point "advantages and disadvantages" review of the considered systems below: HP DL320 NAS Storage Server ($18,772) Advantages • Low cost • Integration with existing equipment Disadvantages • No support for virtualization (limits future infrastructure plans) • Size Limit approximately 48 (terabyte)TB limits lifetime. • No support for integration with a SAN (Storage Area Network) • Expanding beyond the first purchase doubles cost. • High operating system overhead limits performance. • 3 year warranty. Xiotech Emprise 5000 ($35,184) Advantages • Low cost for the feature set. • Industry leading performance. • Extremely flexible configurations. • Fully upgradeable to the Emprise 7000 SAN infrastructure. • Full support for virtualization. • Single system expandability to over 1 petabyte (One million gigabytes), with almost limitless multi-system expandability. • Industries first self-healing disk technology. • Extremely high level of redundancy. • Local Support. • 5 year hardware warranty. Disadvantages • Relatively new product line EMC CX3-10 ($55,290.40) Advantages • Proven SAN technology. • High Level of redundancy. • High level of performance. • Full support for virtualization. • EMC is highly saturated in the market. • Highly expandable through upgrade to higher end CX platforms. Disadvantages • Older technology leading to a more complex, confusing implementation, and higher learning curve. • Higher upfront cost due to the inability to "scale down" from a SAN. • Although the system is expandable, it comes at an increasingly higher cost /space ratio. • Total expandability is limited to 353 terabytes. • 3 year warranty. Based on not only these points, but also months of research, product demos, word of mouth recommendations, and overall observation the choice was clear. The Xiotech system is as close to a "perfect match" for the Village as the industry will allow. It offers immediate resolution to existing storage issues, and an extremely long expected lifetime through its ability to expand and adapt. Although the HP alternative is less expensive initially, it does not provide the expansion capability Tequesta requires, and would present not only a higher total cost after expansion, but facilitate the need to expand far more quickly. As well, the lack of a SAN upgrade path presents issues that could necessitate complete replacement of the HP system as Tequesta moves towards a consolidated virtual environment. The EMC systems price prevents it from being a serious consideration. As Tequesta continues to increase its technological offerings to its residents, storage requirements will only increase. I believe that out of the current storage offerings, the Xiotech system will offer the greatest level of protection, availability, and return on investment. Because of this they have my official recommendation as the storage and backup system of choice. Annual Maintenance Cost The first year of annual licensing and support costs associated with Xiotech are included in the contract. Beginning in FY 2009-2010, annual maintenance costs are projected at $749.00. I want to thank you for your consideration in purchasing this backup system. As Tequesta prepares to offer increased communication with their residents and offer On-Line Billing, this is a necessary and timely investment. Note: The necessary quotations are attached. ~~~~ Director of IT / IS The Village of Tequesta RESOLUTION NO. 54-08 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA, APPROVING AN AGREEMENT, ATTACHED HERETO AS EXHIBIT "A", BETWEEN THE VILLAGE AND XIOTECH CORPORATION OF 6455 FLYING CLOUD DRIVE, EDEN PRARIE, MN 55344 TO PROVIDE A NEW DISK BASED STORAGE AND BACKUP SYSTEM FOR A TOTAL COST OF $35,184.00, PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. WHEREAS, the Village Council of the Village of Tequesta finds it necessary to expand the capabilities of its data storage infrastructure to meet the demands of current and future technologies, and; WHEREAS, Xiotech Corporation produces the Emprise 5000 line of enterprise class storage systems that has been deemed sufficiently capable of meeting and exceeding these demands, and; WHEREAS, funds for this purchase are available in account # 001-160-664.601, Computer Equipment, having an available balance of $35,184.00. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS: Section 1 Resolution No. 54-08 is hereby approved providing for the purchase of the Emprise 5000 disk based backup storage system complete with two (2) eight (8) terabyte data packs and the required accessories and services from Xiotech Corporation as listed in the agreement attached hereto as Exhibit "A" and incorporated by reference as part of this resolution and authorizing the Village Manager to execute the purchase on behalf of the Village of Tequesta. Section 2 This Resolution shall become effective immediately upon passage. 1 ~. Xiotech To: Village of Tequesta Brad Gornberg , IT Director 357 Tequesta Dr Quote Date: November 6, 2008 Quote Number: 92573-3080725 Tequesta , FL LlS Phone: 561 744 4010 Email: bgomberg@tequesta.org This Quotation contains Xiotech's Terms and Conditions of Sale. If you did not receive Xiotech's Terms and Conditions of Sale, please contact Xiotech immediately Pddng per WSCA t1A63316-FL it r II ~~~a}~~i~ ~-. Emprise 5000 ssw: ~ NEW Prit9rtg per WSCA tfA63316-FL. System -5000 .fir ~ `~ s t ~ ,7 x m'r ' ~ !! ` I • i sT f- w r ~a _ o t 9' , <,. <~~a~ S ~ .~.. ...~• 4.. YsSr.. .:L~i',, ...~~'.~ r' '~ ~t 1. t- '~~4~L..h r 1. ~ ~ ^' !Emprise b000 Virtual Storo e S tem ~ ~ ~ _ +.T , :}' •,. _ , ", ,. , c ., ' s .,.,~,x,; i . :`~r , y,, ~~_ ~ i, ~~ 9 Ys (Base Unit) ~ ~ I ~ ~ ~ '~~ ~` I t Emprise 5000 Virtual Storage System (Base Unit) includes 1 Intelligent Storage I Element (ISE) chassis for Emprise 5000 with 2 Fibre Channel host ports, power cords, I 800884-~ I S16•~ j ~'~ ~ ~•~ bezel, rail kit, and accessory kit. Holds up to 2 DataPacs. ~ ~ j I Connectivity -Cables 2 a e - m DuplexlLC Duplex Fiber Optic Patch Cord ~ i Cable - 5m LC Duplex/LC Duplex Fiber Optic Patch Cord ~ ~_~._____ ~ 840055 000 3108 ~ ~ 3108 Connectivity - HBA - Qlogic uvr ~ ~s ri 'r ' ~ c.Tn/.rq ~ ~ r .-~ ~l 7~. rwv,.r,,~ rr ~a' r ~ a~ ~,. ~..~t ~= r ;, ~ ..` ~ ~, ~ rat ~ ~... ~. r~~ ~,~ 6'S~T {. ?~-,..~t c r ;~ a ~'~`~ Y ~t+.""it • "-X- Lz @ "t -~} Y '1 'r't ~~..'y 1 .. nd~{~ ~ ~i ~{& 4 '1~;~~R° r~ ~ ~a ~ti-• ,4r;,i.:n~Hr.+r2~;.m. K S.sfi.s ..wsLY~~ y ..,,b 34e .br_*4~ ~ ,"+3iY;3...~.. ... `a t, r~~, C 1 Qlogk: - QLE2482 4Gb PCI Express x4 2.SGHz dual port Server HBA ~ _ w,~ ~~°. ~' ~~~.~ , ~, -~ ~ 1""""" . • I ` noe18-aoo ~ 52,1ao St,zSO 51,280 Drives & Bays - DataPacs C~, phi ~ r~,~ 'Y ih~~ 4 ,t:~ #.c =t ''.y~~ ~~.T '~~ y k ~, h.'. F +~+ ~- ~ {;°~~51~ ue~f}a ~' - a ~~ fJ k L+`..,d4 •"p F,~, r ; 'fib t,k ,1}._'~ F. ,?, ~+.Y~h~~~. {.l.'6 ~,y£9 _„a.~ t 1 y. '.-~ A Y ~ . Y .~I V '~i~ ` ~ ~ ~'"~Aq L1, .~ ~ 1 ,G~`.,. y''~ '1::'~.rir . ~~~ ~ ~ e ~ ~ * ` , . V h .~ , r, . .. "» _ r ._ y.<., .... .. _, _., .a .. r ~. ~ ` ,~ ~ _ ^y :. ~~,r .f 3 ;.r-• .e .' r.._ t' _ ., +Wai.~ + _ y..-h~_t. l Ei '~ r ` 3 ~ ~Em rise S p 000 - Installaton . #Ye; ~ : S . . .'t ~~_(4' i Xiotech installation of one Emprise 5000 Virtual Storage System (Base Unit) and up to t ~ ( I ~ ! j2 DataPacs. A Statement of Work may be found at 54,083 $2,042 32.042 ~~-~ I ~~ http:/Nvww.xiotech.corn/PSE5KIv001 and is included here by reference I 1 I Service -Emprise ~~~~~~'~"- wt r +~ t..mT`v-~ Aty ~ n ?•. s ~ ~q • .~ .E~ n ~ ~ ~ ~ 'c rr r ~ '~ 1~ d -t ~"iti ,~ w ^n ~ },.~k Fry. Kh : rt i," n'.; ~ x~+ .- ,a ~ :,± G + e > ? r ,n 'R~7'r°~~e T '{ k%,.~ 1 ~ m M.,.'yW~?" ~ v~ aYT~. +~ T'~ ' r yfF~~f~yi ~~ # tt a ~?t~ r . ~. ~ ~ ~ - Emprise 5000 -5 Year HW Warranty ~ 1 5 Year Hardware Warran for Em rise 5 ' ri p o00 --- ' t-- .-- ~ a7-oo5 i ~' 3 3 ~ ~ -____ mprise 5000 - 90 Day Software Warranty - __ __" --- -f- ------ -- 90 day Software Warranty for Emprise 5000 - - r - _ --- - __.. - - -- ---- - - ozo145-oo0 ~ Sj 5~ 3 _ _"_ - - 1 EEmprise 5000 -Software Maintenance Extension - Remainder of 1st Year _ __ _ _ ___. r . _ _ - _ _ } _ _ __ --___i -_ __._.. . ! ~ r (Extends initial Emprise 5000 Software warranty to 12 months. ~ ozol4s-oo1 ~ S7as j 5375 ~ 3375 Configuration Total: 337,384 Quote Discounts Professional Services -Installation/Consulting/Staf/Aug. i budget discount .a___ . _ _ _.. _-_..-- `~ i 52.200 Quote Discount: 32,200 Totallnvestment: $35,184 DocCan# 00000000-00000800 Cid(86396)[00-000] . _. i ~. ~-~~n :..,c..l:. ..i.:~.:.P,.w ~r~:;~::,o,r,~'~„lb;aril.uloprtti -;a:~!~Lor,,n••jcwp~i;:, ..>..~!.,rGrferr,...±z.J~~;.s..a~iC).uotri;_,t:.?..=r,rn.,,..1.:. a-,Flet~., ..,....,,:,u~.'., ..r;,:,. q,.ir:V.. ..._.,_r.. i,or'r Diu : c. u,J. „ nl ,, L e star.u aLc:ve, I ~ ~ ..i,ar.I ~c ,C:., s;l v I ,a s ant Crn~ ;l,o a ~f an= ..pply and c,rr. i u.rp ;-~,;d her: it ,, f, ,, : e'ercnra. Ir; rn-r did not r~~~_.i rc. ,.r'Er.#~, l s'n,., n.: Crii:r,i . .,, t ,i ; ..4,,..cay. ,,~ r,icner e .prssly agues tr.at a I r.. c ;,:..3ses ~i . t ..~otz: h veal he :)arernr 1 .r rl i ~ t.,c~, .:n ~ r:ihcn~ of ~<,~ ><iotech Y2rm.:uiJ I;red;t i ~ ,_,~ These Tel ms and Conditions of Sale Agreement (Agreement) govern any sale of products by Xiotech Corporation ("Xiolech"j. Xiotechs f~.iinllment of any quotation pro^rded to Customer is subject to the ^,greemrnt. Any terms proposed by Customer, by purchase order or other^rse, svitich add, modify, limit, or conflict with Xiotechs offer are objected to. "this Agreement is effective upon acceptance by Xietech of Customer's purchase older r#erencing il,e quotation provided by Xiotech, cr as of the vote signed by Xietech and Customer, svhichaver is earlier ti,e "Erfer_tive Date"). Xiotech and Customer agree as Icllrnus: 1. PURP05E. This ,4yreement states the fights and obligations of the parties regarding products ("Products'") and installation and support services ("Serv'ices"j to be provided by Xiotech as described in the QuMation or Statement of N/ork. Prodricts sold by Xioter..h under this Agreement will be used for the purchaser's internal businsss purposes only and solely in accordance ~~nilh related doanmentation and any applicable specifications provided by Xiotech, and may not be distributed or resold. Any software installed cn the Products or otherrise provided by Xiotech ("Sottevarz') shalt not be considered Products for purposes of the Agreement. Customer's rinhts and ,.,hligarions ~rrith respect to $oftwara will be govamed by a separate Ei ~d User I_irance q!,reemvnl which is incorneraied hnrei~l by refererce. 2. ORDERS AND ACCEPTANCE. Customer's purchase order is deemed an acceptance of the terms of the Quotation and the terms of this Agreement, both of ~rohich Rrstcmer acknowledges receipt of prior to Customer's delivery of its purchase order to Xiotech. All purchase orders submitted by Customer may be accepted or rejected by Y.iutech, in its sole discreton. 2nd shall he subject to this Agreement. Xiotech's acceptance shall only occur upon delivery of its written acknowledgment ("Order Acknewledgment") to Customer. This Agreement supcrs.~des ,311 communications or agreements between Use parties relating to the subject matter herein, whether or oral or vrritten, including, but not limited to, Custemer's pwchsse orders. 3. SHIPMENT, RETURNS. (a) Shipping, Duties and Taxes. Shipment within the continental United Stales will be F.O.B. shipping point and international shipments will be EXW shipping point (Inwterms 2000), at which time (the "Shipment 'L'ate") title antl risk cf loss ter the shipped Products will pass to Customer. All duties, import and export licenses and permits, custom charges and duty fens, taxes, excises, freight, insurances and other shipping expenses will be paid by Customer All delivery dates are estimated in goad faith with no liability incurred by Xiotech for late delivery or perfom3anr~ under this ,'\greement. Subject to the return policy ,,=,tated in Subsection 3(b) below, Products veil! be deemed to be accepted by Customer on the Shipment Date. (b) Retwros. Products maybe returned in undamaged condition to Xiotcch, at Customer's expense, evithin thirty (30) days after the Shipment Date iF: (ij the quantity or type of Products recc~i^;ell fail to conform to the purchase order, ar.d (ii) written approval is given by Xiotech (which approval will not be unreasonably withheld). Customer must enclose proof of purchase and a written description of the reason for retum of the Products. Upon proper return of the Products as required above, Xiotech will refund the purchase price paid by Customer fur the returned Products. A. PRICE. Xiotech .vill invoice Customer for amounts payable under this!+greement, and Customer ;:ill pay the full imioiced amount ,within thirty (30) days after the invoice date. R,ny late payments ~:ritl bear u;tarest 3t the lesser of 1.5°L. per month or the maximum rate permitted by Iaw..~`,II prices and payments shall be in U.S. dollars. Xiotech retains a security interest in ag Products to secure the timely payment of all amounts due under this Agreement. Upon Customer's failure to pay any amount when due, Xiotech may exerdse aN of the rights of a secured creditor under the Unrfotm Commerdal Code. 5. J/,4RRANTY. (a) Standard Limited Warranty. The limited warranties describedoefow are subject to Xiotech's currwrt standard limited warranty as set forth in Xictech's current published Product datasheet ("Datasheet"), ir;carporated by This reference. The warranty period commences on the Shipment f)afe and ends on the date described in the Datasheet. Xietech r:ar.-a.^.ts that Product bE:nng the Xicfoch name +;ri;l substanti L'y conform to Xiotech's published specifications in effect as of the date cf shipment and wilt be free frern substantial defects ir, material and workmanship, as more fully set forth in the Datasheet. Xiotech further :warrants that all Services pe.rfonned by Xiotech for Customer will be provided in a vrorkmanlike manner These limited warranties are contingent upon proper t!se of the Product for the purpose intended and in accordance with the related documentation and any specifications provided by Y.iotech, and without modification, movement or attempted movement of the Product from its initial installation position e.~cept as directed er performed by Xiotech. Customer shall have no claim to Product that was replaced or the components therein v+hich were replaced. If Xiotech provides any replacement parts on a cross ship or exchange basis and Customer fails to return to Xiotech the part for which Xiptech has provided a replacement within thirty (30) calendar days of Xietech shipping such replacement part to Customer, Xiotech will invoice Customer and Customeragrees to pay for such non-returned part at Xiotech's then current part cost plus any shipping casts incwred by Xiotech for the replacement part. (b) iNo Other'rVarranty. EXCEPT FOR TFiE ECPRESS LIMITED 1^/ARRANTY STATED ABOVE, XfOTECH GRANTS NO OTHER VVr~RPJWTIES, EJ(PRESS OR Ifv1PLIED. 6Y STATUTE OR O T I-1ERV`,~SE. REGAnGiNG THE PR.000CTS CR SERVICES, THEIR RTNESS FOR MlY PURPOSE, THEIR QUALITY, THEIR Iv1ERCfiANTABILITY, NONINFRINGEMENT OR OTHERN4SF_.ALL WARRANTIES OTHER THAN THE EYPRESSED I_IMIT[D 1NARfZaNTY STATED ABOVE ARE DISCtAihfED MID EXCLUDED BY XIOTECH. ALL EQUIPivfENT. PARTS AND SOFTWARE NOT BFI' ITING XIOTECH'S NAME, ARE SUPPLIED "AS IS" i+ND CUS'f~OMER V`/ILL LOGK SOLELY 70 THE WARRANTIES ANU REMEDIES, IF ANY, PROVIDED BY 7HE EQUIPMENT PAANIJFACTURER. (c) Exclusive Remedy under Warranty. XI01'ECH'S LIABILITY UNDER ANY 4ARRANTY IS LIMITED T0. IN XIOTECH'S SOLE DISCRETION, REPAIRING OR REPLACING PRODUCT V`4TFI ACOhIFORMING PRODUCT. OR IIJ THE CASE CF SERVICES, REPERFORNIANCE OF SUCFI SERVICES. A! 7ERNATIVELY, XIOTECH MAY, IN XIOTECH'S SOLE DISCRETION, REFUND THE SALES PP,ICE TO CUS'fCMER FOR SUCH UNIT OF PRODUCE. B. LIMITATION OF LIABILITY. XIOTECH WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER, WITH TWE EXCEPTION OF BODILY IhlJURiES, DEATH OR DAfJIAGE TO TANGIBLE PROPERTY DIRECTLY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF XIOTECH. IN NO EVENT SHALL XiOTECH BE LIABLE FOR ANY DAMAOES FOR OR RESULTING FROM LOSS OF OR DAMAGE TO DATA, LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LASS OF BUSINESS INFORMATION, OR ANY 07HER PECUNIARY LOSS AND XIOTECH FURTHER DISCLAIMS ANY RND ALL LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES REGARDL'cSS OF THE FORM OF AC7ION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF XIOTECH HAS BEEN ADVISED OF TFSE POSSIBILITY OF SUCH LOSSES OR DA6IAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT, IN 7HE EVENT THAT ANY REMEUY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, THE LIMITA7tON5 OF LIABILITY, DISCLAIMERS AND OTHER EXCLUSIONS SE7 FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT NOTWITHSTANDING ANYTIiING ELSE, XIO'fECH'S iUTAL AGGREGATE LIABILI7Y UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF 7tiE LICEPdSE FEE PAID BY YOU FOR SOFTWARE PRODUCT HEREUNDER. THIS LIMITATION APPt_IES TO ALL 30FTtVARE PRODUCTS, SPECIFIED XIOTECH PRODUCTS, AND.OR PRODUCTS AND ALL SERVICES PERFORPAED DURING AND AFTER THE WARRANTY PERIOD. 7. PROPERTY RIGHTS AND COMFIDENTIALITY ;a) Property Riphts. Nothing in this Agreement grants to Customer any right, title, or interest in any of Xiotech's intellectual property including without limitation patents, trademarks, trade names, logos, inventions, ~opyr"ghts, know-hour, or trade secrets in any way relating to the design, manufacture, operation, use or service of the Products ("1P"). Use by Customer of Xiotech's IP is authorized solely tp the extent set forth in '.he EUTA. ;bj Confidentiality. Each party agrees to keep confidential any and all information received from the other party that is marked Confidential or information that should reasonably have been w3derstood by either pasty, :ecause of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the other party ("Confidential Information") including, but riot limited lo, he terms of this ;lgreeriient. Neither party vvill use or disclose the other's Confidential Information for any purpose, except to employees on a "need M know" basis, who have been informed of their obligations under his F\greement. Ear_h pasty hereto abet! remain liable to the other party for the use or disclosure of Confdential Information by any of its employees or agents in a manner inconsistent evith this paragraph. AI[ confidential Information, and any rates. documents or recordings containing Confidential Information, wilt be returned to the appropriate party immediatly upon temii;anon of this Agreement. If Customer is a lovemment entity subject to public records laws, each party agrees that any Xiptech technology made available to Customer under this Agreement constitutes Y,iotedt trade secret information or similarly-designated nfonnaticn exempt from disclosure to the maximum extent permitted under public recerds law. c) Prohibition Against Impairment of IP Interests. Customer will not alter or remove any trademark, service mark, trade name, logo or other designation applied to a Product or its packaging by Xiutec:h. ~ustomer avtll not, •.vhether acting alone, with or through ethers, in any way harm, use or impair, or attempt to harm, use or impair, any right, title or'nterest of Xiotech in any IP, or any application cr registratier, for ouch IP, including vritl;out limitation attemp8ng to register or use any trademark, service mark, trade name, patent, copyright or other intellectual property which may in any way be confusingly similar to any IP. S. INDEfdN1FICAT!CNRND HOLD HARMLESS FOR INFRINGEMENT BY XIOTECH. a) Indemnification. Subject to the limitations stated below, Xiotech Witt defend, indemnify and hold hanmless Customer from soy claim, suit, or proceeding to the extent made against Customer for infringement of any Jnited States patent, copyright, or trademark by the Products sold to Customer under this Agreement. Xiotech will have sole control of any such claim, suit or proceeding including, in its sole diseretia3 and at its own expense, the right to settle. Xiotech',rill be relieved of any or all of its ebligations under this provision, in its sole discretion, if Customer fails to: (i) promptly send notice to Xiptech of any such claim, suitor prereediny; ;r (ii} give Xiotech all infennalion, authority and assistance reasonably necessary to settle and,'or defend any such claim, suit, or proceeding. b} Limitation. Notwithstanding Subsection g(a) above, Xiotech assumes no liability for any claim, suit or proceeding for infringement arising or alleged to arise from use of a Product as part of any completed :quipment or software not supplied by Xiolech, or as part of any assernbty, circuit, combination, method or process not supplied by Xiotech. Xiotech assumes no liability for any claim, suit or proceeding arising ar tlleged to arise from: (i) any marking or branding applied to a Product by a party other than Xiolech; (ii) any marking or branding applied to a Product by Xiotech at the request of Customer; (iii) rneoification or servicing rf all or part cf a Product by any pally other than Xiotech (except as expressly authorized by Xiotech in vrriting); or (iv) modification of all or pan of a Product by Xiptech at Customer's request. c) Entire Liability. This Section 8 states the entire liability antl obligations of Xiotech, and the exclusive remedy of Customer, with respell to any actual or alleged infringement of any Unit=d States patent, copyright, rademark and/or other intellectual property light by the Products, Services or any part thereof. r. SERVICES. Services shalt be provided as specified in Xiotech's most current Datasheet available at the time Customer purchases such Services. Customer understands Xiolech has relied on :ustomar's commitir~ent for the length and scope of Services set forth in the Datasheet in determining the fee payable by Customer for any Services purchased. based on that relianr e, a nen-renewal or temination :beige may apply to any early termination of Services by Customer. Xiotech may charge Customer an inspection or re-certification fee for reinstatement of a lapsed or terminated support period. Fees will he based on ter current time and Products charges. Xiotech may refuse to perform Services in its sole discretion if (a) Customer faits to use a Product consistent with related documentation and any applicable specifications provide by X-tech, (b) a Product is moved from its initial install position, (c) Custcmer attempts arty modification or repairs of the P: oduct without Xiotechs approval, or (d) Customer faits to perform wider any prevision .f ibis Agreement. 0. RE5PONSlBILiTiES OF CUSTOb9ER. Customer agrees to: maintain operating :,onditions within the common environmental range of alt Products revered under this Agreement in accordance v/ith manufacturers' or Xictech's specifications; Q nutiry Xio±ech immediately of any Product failures or defects; ; ~.1rir ^c' : t, , Jj _:-t' a ~~ dry. ~ tr_,~ m.~+,, ,, ;, 4otec t of ,t~.r: ;,r =.:o-; , ,~ r~.,m; , e ~ carat ~~rn ~.~.:: , n .. ;rr ~ _.,s iNo ,u~ , „~.cval :.y cc.cur . ;i „ a ; , t.,_h .. ~, ., 1dri , ..r.ti; 1) ~ ;.I t,u ou .ts ( y.:u,~ ~_c, ~ u~, A~:7r -~m ut ,x,'r:r, dire; ; s_.,.t .adr.:,op,r„c ., ,,,.:.- ,.:,lib,.: --..,~.:G.l .I'.;..i.::~l: ~,.r,;ci ..:.~~ a., rn a„~.,,. , .. _ ~ ~.._,. _ ,, . .. t;,.- . e,r. ;~'ifO,i'iiGn3itri:i•.1 G iJlf'~II '.,I r.y .entbr~t, ~:.!I;f:;~ a ,_o, :;!. .n. ~:;r n i :;r;d rat t nc. r ':,.... : k; y r^qr:c -~ , nir,,~:ei:h' , f)cesol.'J r_ ~c:i£i,n ~o~p,ee~i~~,north..> .ti r i~h,-_:oct:.d~:ar.,, t ~~..,-..n:~. ic,ih ._if~c_~,u_ aitci.r? ...c, ,anac^ •,'bt:neh,ir. c,,.~.:;~. :a*edin+t ,i..:ab.,,.i~':_~I-, ,t vn~- :,,i,:~~o,t r~i;,,o . r 1 us? h: ~ + ffcrls .: make r - n rhz ; Ir safe; g) fulh, c mhly, ,;i~to;,t _„c ;:,'ri,.':•rifh all ::prlicab;z!i s ;federal.:;;a!e and e :I}, ;•cvcar:,nental orders tan ntairltut and pay for all c7aVatio, s -r,rar.;reel un 1r•r ;e h a+rs. cn _„ .r i iuta~ r, , ~,,;,,c,ai; f,;r I:Crfoniiar~ce under r ~, feu:azn. ;i r ai a u! intal~l, . t° ; riot ~;;e ,rid use or i :.~~~t r, ;ham :er,zfit of r;udc~ts. Custoir+=r will routtain ail c_.;istratwn ..;I'. sov. i; me ~sl c rr ~, ,i,,: ,~ ~,., it ;istres, ..t, t . , s o.` commerce, cr other of;ice°~ which .nay Gz required under few in cider to prcpzrly ccitduct ccrnmzrrial business; and hj pilot tr., khe date .per.ir'ied in iha Caotat cr and!or Staterneni of'JHork for Gta perfontiarre of Service, !i) cb?ain and pay for al! jovernrnzntal cr utird pa,^,y cr,;aents, pr:r~nits, apt .o,~ls, tic cn..=s ani! ;_til tic aid L•irate ca_:a n~„tt„ nom. _e ssar,~ fo ~,; l:..Y- urn ., :ict_d a:cess to any site or {oration needed for p .~toi'r a!:cc of the Sen;ics <utd del'~ery of thz ~r~rr ct_ ~ .d li.; ~:~;~ 1 oL`y X~e,e :'~ in ac'v., tc:, rr ..;:•.y i. ;~ r._m.;,,'•s including all !oral Iwrs. regulations, o;~,iinances and :'nz iil;e to vrhich Xiotech is or will he rcruired to comply in lire rendering of Services grid in lire supply;ng of Products hereun~er. 11, ALLOCATION OP RISK. CUSTOPJiER AGREES THAT TI-!E tiiSCt ^INiER Or V'lARRF+NT'lES, L.IPRII"ATIOPdS Of•I LiAk31LITY, ANV INDENNIF!CA7iGN ?ROVISIONS SE7 EGRTH IN PHIS AGREE'rAEiJT REPRFBENT AN AuFtEcC UPON ALLOCATION OF Ft1SK SE ia^,'EEN CUS'I"O."ILR,~.I+IG XIOTECH;~i~D t=ORM :`,N E3SEN"rVaL P:4RT OF TFiE 6ASI5 OF THE BAR!sA:P7 63ET4^IEEN THE PARTIES, tiJl7ii•JUT'1`1HIi~f-t Y.IU t EC}t'`JOULD hdOT EN i =R IP! f r_,~ i'HIS AGREEMENT. 12. GENERAL PROVISIONS. (a) Governing I_avv/Venue. These terms and conditions shall be construed, interpreted and applied in accordance rritit the otternal laws of the State or` ~'.inr,eeota (trot including i"s I:nv of conflicts} and the Unfed States, including U.S. copyright laws. The parties agrzz that [he United Nations Convention on Contracts for the Intentational Szle of Goods shall not apply to any transaction bc-.rivzen the p r:izs. (h) Dispute Resolu*,ion. (I) Tl:e parries dzsire io resolve, ad;ertever possible, any controversy, claim or dispute arising out of or relating to this Agreemen4 or the brza~h or creaking thereof, inc!udiny claims cf rraud in the fnducemerd, without Ittiation. (ii) A party which believes that a dispute, ccnVOVersy er claim has risen ~-order or relates to this Agreement vrill notify the other party regarding the dispute, controversy or claim sod attempt to negotiate a resolution tetvveen the pasties. If such dispute, controversy or claim is not resolved within thirty (~0) calendar days after the commencement of such nagotiationa, it shall be submiYed to iiral and bin;ling arbitration in accordance with the Commercisi Arbitration Pules of the American Arbib'ation Fssociation subject to subsection (iii}. (iii) The arbitration sessions will be conducted in English and will rake place in Pdir.neapoiis. P;linneseta, USA. Such sessions may be conducted in person or, if permitted by the arbitrator, by telephone conferznre call or videoconference. The arbitrator will resolve the dispute within thirty (30) calendar days after selection. The losing party shall bear its own costs rind expenses of such arbitration and the fees and expenses of the arbitrator The arbitrator will award to the prev::iling party, if any, its reason;,ble attorney; fees and expenses incurred in connection with the dispute and its resolution, in addition to any other damages, however, the arbitrator may not assess p~.tn.itivz cr exemplary clan*.ages. Judgment upon the award rendered by such arbitrator may he entered in any court of canpalent jurisdiction. (iv) Nothing contained hzrei~ guilt preclude Xiotech from seekiry injunctive relief from a court of canpetent jurisdiction pending :F.e resolution of any dispute. (cj Entire Aprearnent. This Agreement and EULA sets forth the entire agreement and understanding of th? patties regarding the subject matter hereof, and nterres all prior discussions bei:vzen the parties. Wtodifications of or amendments to This Agreement must ba .written and signed by both parties to have affect. (d) hJotices. To be effective, all notices required by this Agreement must be v,iitten and must be sent by overnight mail. Notices must be addressed and son? to the respective addresses shown above, or as may be designated in writing by a party from time le tine. Notice periods t;egin to run on the date notice is received. (e) Force Ma'eure. Nonperformance of either pasty (other than failure to pay amounts due hereundt;r) will he excused only to the eMent pzrfonnancz is r?ndered impossible by >trike, firz, t!ood, governmental acts or orrters or rastricticns, failure of suppliers, or any ether reason vrhere failure to perform is beyond the rzasonable control of and is no? caused by the negligence of the non-performing party. ?f) Nonassi~anability. Cusfaner may not assign all or any part of this Agreement or move or transfer the Product without the prior written consent of Xiotech. In the event Xiotech expressly or irnpliedty consents to an assignment of all or any part of this Agreement Permitted Assignment, such Pzrmii[ed Assignment sha71 not remove Customer's obligation to honor the terms and conditions to lire extent that Customer remains in possession of Xiotech Products and Software or continues to receive Services. (g) Counterparts. This Agreement may be executed in two or more cor.tnterparts, each of which shall pe deemed an original, but vrhich together shag constitute one contract or document. (h) Import and Export Controls. Customer wtderstands and acknowledges thatliotech is subject to regulation by agencies of the U.S. government which prohibit a::poit or dh,~zr_c=ion of cwlein products and technology to certain countries. Customer ::hat! not export, re-zxpo~t or transship, directly a' indirectly, any conies of the Products, except ir, compliance ,^,ith the Fxnnrf AdminisUr4Na RnyrJ;.tinnc a!td appricable !a+~r of the United States and any other country having jurisdiction. (ij Survival of Certain Terms and Obli ations. Tzrmination ,,vill not relieve eitfrer pasty of obligations incurred prior to termination. All payment obligations of Customer and the terms and provisions of Sections f; S 7, H and 12 will survive any lznninatian of this Agreement ' TERMS AND CONDITIONS QUOTE #92573-3080725 AMENDMENT #1 -t This Amendment #1 ("Amendment") to Terms and Conditions is made and entered into this~~ day of December, 2008, between Xiotech Corporation ("Xiotech")and Village of Tequesta, Florida ("Customer"). A. Xiotech and Customer have entered or propose to enter into certain Terms and Conditions (the "Agreement") in connection with quotation #92573-3080725 for the sale by Xiotech and purchase by Customer of certain Emprise 5000 computer equipment described in an attachment to the Agreement. B. The parties wish hereby to amend certain provisions of the Agreement. Accordingly, the parties agree as follows, any thing contained in the Agreement to the contrary notwithstanding: 1. Terms used in this Amendment shall have the same meaning as those used in the Agreement, unless the context hereof clearly requires a different meaning. 2. The parties affirm the Agreement, as modified by this Amendment. 3. Section 7(b) of the Agreement is amended to strike the existing wording thereof and to read in its entirety as follows: To the extent permitted by law, including, but not limited to Chapter 119, and Sections 812.041, 815.04 and 815.045, Florida Statutes, any software or related documentation which meets the definition of "trade secrets" shall be considered confidential and exempt from disclosure under Florida's public records laws, and shall not be disclosed by Customer pursuant to a public records request or otherwise, except to employees of Customer who may need to have such information for operational purposes. 4. Section 9 of the Agreement is amended to add the following sentence: Nothing herein shall be construed to require Customer to enter into or to renew any contract for services, and no charge shall be imposed upon Customer in connection therewith. For purposes of clarification, service agreement early termination charges shall only be imposed on Customer by Xiotech if Customer terminates an existing written service agreement prior to its stated expiration date, in which case Xiotech's standard early termination fees will apply, which in any case will not exceed the fees due during the remaining term of the service agreement. Subject to the foregoing, Customer may terminate any agreement for services upon ti0 days' prior written notice to Xiotech. 5. Section 12(a) of the Agreement is amended to read in its entirety as follows. Governing LawNenue. FLORIDA LAW WILL GOVERN THE AGREEMENT. VENUE FOR ANY DISPUTE RESOLUTION, WHETHER LITIGATION, ARBITRATION, MEDIATION OR OTHERWISE IS IN PALM BEACH COUNTY, FLORIDA. EACH PARTY SHALL BEAR ITS OWN COSTS OF LITIGATION, MEDIATION OR ARBITRATION AND SHALL SHARE EQUALLY IN THE COST OF ANY MEDIATOR OR ARBITRATOR. 6. Section 12(b) iii of the Agreement is amended by chan¢in¢ the location of anv dispute resolution arbitration. mediation or lit igation to Palm Beach Countv .Flori da and by ctatin¢ hat each party shall bear its own fees and cos ts associated with anv dispute reso iution includin¢ mediation. arbitration and/or liti¢ation. and that t he costs of anv arbitrator or mediato r shall be sharers nvPr-Iv by the narripc and by deletin¢ the fotlowin ¢ lan¢ua¢e: . In witness whereof, the parties have signed this Amendment as of the date given above. Village of Tequesta Print N~ie: Title: (®,~®~~ C.~°c.°.`~..~.~ Xiotech Corporation Print Name: ~ Title: CFO Xiotech' END USER LICENSE AGREEMENT NOTICE TO USER: This is a legal agreement between you, the end with other software, or of the Related Documentation is expressly user ("You"), and Xiotech Corporation (including its affiliates) ("Xiotech") forbidden. Any copies that You are permitted to make pursuant to this regarding the use of Xiotech software (including firmware) ("Xiotech EULA must contain the same copyright and other proprietary notices as Software") and/or third-party software ("Third-Party Software") provided to they appear on or in the Software Product and Related Documentation. You by Xiotech either separately or as incorporated into Xiotech or third- 7. Trade Secrets. The Software Product, Related party hardware (hereinafter referred to collectively as "Software Product"), Documentation and Specified Xiotech Product contain trade secret and the use of Related Documentation provided therewith. By reviewing, information of Xiotech. You agree to keep such trade secret information installing and/or using the Software Product and/or Related confidential and not to use or disclose any of it except as needed to use Documentation accompanying this document (referred to as "EULA" or the Specified Xiotech Product in accordance with the Related "End-User License Agreement"), You agree to be bound by all of the Documentation and in accordance with applicable specifications. You terms and conditions set forth herein. If You do not agree to all of the also agree not to modify, prepare derivative works, reverse engineer, terms of this EULA, Xiotech is unwilling to license the Software Product to decompile, disassemble or otherwise attempt to discover the source code You. In such event, You may not use or copy the Software Product, and of the Software Product or any Related Documentation, except and only You should promptly return this EULA along with the Software Product, to the extent that such activity is expressly permitted by applicable law Related Documentation, product packaging and any other accompanying notwithstanding this limitation. In the event that and solely to the extent items to Xiotech or the location where You obtained them in accordance that applicable law permits any of the foregoing, You agree that (i) the with the applicable return poVicy. results of any such activity ("Permitted Results") shall be confidential Xiotech grants to You a nonexclusive, nontransferable, nonsublicensable, trade secret information of Xiotech; (ii) any Permitted Results shall be limited license to use, without modification, the Software Product and used only for the express purposes permitted by applicable law and (iii) Related Documentation, provided that You agree to the following: the Permitted Results shall not be disclosed to any other party. 1. Software. You agree to use the Software Product only on the 8. Transfer. Under no circumstances may You distribute, specified Xiotech product (identified by the Xiotech system serial number transfer, rent, sell, offer to sell, lend, lease, sublease, assign, in whole or as provided on the certification card enclosed with such Software/Xiotech " in part, any of Your rights and/or obligations under this EULA and/or any product(s) ( Specified Xiotech Product")) and only in accordance with the portion of the Software Product ,Related Documentation or Permitted Related Documentation and applicable specifications. You are permitted Results to a third party, whether by assignment, merger, transfer of to make one copy of the Software Product to maintain as a replacement assets, sale of stock, operation of law or othewise, and any attempt to do copy in the event that the original copy fails or becomes unusable. In the so shall be deemed void. event the Software Product fails or becomes unusable, You shall 9. Confidentiality. To the extent permitted by law including but promptly return the failed or unusable Software Product to Xiotech for not limited to Chapter 119 and Sections 812.041 815 04 and 815 045 replacement. Florida Statutes anv software or related documentation which meets the 2. Related Documentation. You agree to use the operating definition of "trade secrets" shall be considered confidential and exempt manuals, charts, tables, written descriptions and handbooks in any from disclosure under Florida's public records laws and shall not be medium related to the Software Product ("Related Documentation") only disclosed by Customer pursuant to a public records request or otherwise in conjunction with the Specified Xiotech Product. You are not permitted except to emplovees of Customer who may need to have such to make additional copies of the Related Documentation without the information for operational purposes Subiect to the foregoing vYou shall express written consent of Xiotech. In the event the Related maintain the confidentiality of the terms of this EULA the Software Documentation is lost or destroyed, upon Your request, Xiotech will , Product, Related Documentation and Permitted Results and any other provide a replacement copy of the Related Documentation at its then confidential inforrnation provided to You by Xiotech, by taking those current standard fee. precautions in protecting the Software Product and Related 3. License Fee. In consideration of the license granted to You Documentation You employ to protect Your own confidential information herein, You agree to pay the license fee for the Software Product as set which shall in no case be less than a reasonable amount of care You forth in documentation between You and Xiotech related to the purchase ' . shall insure that the Software Product, Related Documentation and of the Specified Xiotech Product, within the terms of such documentation. Permitted Results are not made available by You or by any of Your 4. Term and Termination. Subject to termination for breach as employees, agents, clients or customers to any other person firm or set forth in the following sentence, the term of the license granted by this , corporation. You shall notify Xiotech promptly, in writing of the EULA shall extend for as long as You own the Specified Xiotech Product; , circumstances of any event of unauthorized possession use or and, upon termination of Your ownership of the Specified Xiotech , knowledge of the Software Product, Related Documentation or Permitted Product, Your license to use the Software Product and Related Results. You agree that any unauthorized distribution transfer sale offer Documentation shall automatically terminate. Without prejudice to any , , , for sale, reproduction, or use of the Software Product Related other rights, Xiotech may terminate this EULA and Your license and , Documentation and/or Permitted Results will cause irreparable harm to rights to the Software Product and Related Documentation with no prior Xiotech for which money damages would not be a adequate remedy. notice if You fail to comply with each of the terms and conditions as You shall inform Your employees having access to the Software Product stated herein. Upon termination of this EULA for any reason, You shall and/or Related Documentation of the limitations and obligations of You immediately destroy or return all originals and all copies of the Software regarding non-disclosure and copying of the Software Product Related Product, Related Documentation, Permitted Results and all of their , Documentation and Permitted Results. This section shall survive component parts as directed by Xiotech. These terms and conditions take termination of this Agreement. precedence over any terms and conditions of any other agreement 10. Upgrades. You agree that any and all upgrades between Xiotech and You regarding the Software Product. The , modifications, patches and the like supplied You for the Software Product provisions contained in this EULA that protect the interests of Xiotech in or Related Documentation shall be used only in accordance with this the Software Product and/or Related Documentation shall survive the EULA, and that the terms and conditions of this EULA shall apply to such termination of this EULA. 5. Ownership. All right, title and interest in and to and the upgrade(s), modifications, patches, etc., to the same extent as they apply to the Software Product and Related Documentation Software Product (including but not limited to any images, photographs, . 11. Warranty. Xiotech warrants to You that the Xiotech Software animations, video, audio, music, test, and "applets" incorporated into the will perform substantially in accordance with the Related Documentation Software Product), Related Documentation, Permitted Results and all for a period of ninety (90) calendar days ("Warranty Period") from the copies thereof, including without limitation the copyrights, patent rights, date of shipment from Xiotech ("Limited Warranty") trade secrets and other proprietary rights, are, and shall continue to be, . 12. Limitation of Warranty. A. Xiotech does not warrant that the owned by Xiotech or its licensors, applicable, regardless of the form or media in or on which the original and other copies ma exist The artie operation of Xiotech Software or the media on which it is contained will b i y . p s agree that nothing herein is, or shall be deemed to be, a sale or e un nterrupted or error-free. Xiotech furthermore states that not all errors in Xiotech Software or its media can be corrected or need assignment of the Software Product, Related Documentation, Permitted Results or any portion or copy of any of the foregoing correction, nor does Xiotech warrant that all defects in Xiotech Software i . 6. Copyright. United States copyright laws and international or ts media will be corrected. Xiotech has no control over the conditions under which You use the Xiotech Software or media and does not and treaty provisions protect the Software Product and the Related Documentation. Unauthorized use or copying of the Software Prod ct cannot warrant the results obtained by such use. Xiotech does not u , including Software Product that has been modified, merged, or included warrant that the functions contained in the Xiotech Software will meet Your requirements or that Xiotech Software or its m dia ill e w operate in 1 of 3 Xiotech END USER LICE combination with other software or hardware selected by You for use by You. B. Any Third-Party Software delivered by Xiotech, is supplied "AS IS." In the case of Third-Party Software and/or third party hardware, You will look solely to the warranties and remedies, if any, provided by the Third- Party Software and/or hardware manufacturer. You understand and agree that Third-Party Software may be subject to additional terms and conditions imposed by the applicable licensor of such Third-Party Software. C. Xiotech is not responsible for problems caused by changes in or modifications to the operating characteristics of any computer or operating systems for which the Software Product is being licensed, nor is Xiotech responsible for problems which occur as a result of the use of Software Product in conjunction with any software supplied not supplied by Xiotech or with a computer which is incompatible with the Software Product or the operating system for which the Software Product is being licensed or any use not in accordance with the Related Documentation and applicable specifications. D. Xiotech's entire liability and Your sole, exclusive remedy shall be, at Xiotech's sole discretion, the replacement of the Software Product that does not meet the Limited Warranty and which is returned to Xiotech within the Warranty Period, or, the reimbursement of the license fee paid by You for such Software Product. This Limited Warranty is void if failure of the Software Product has resulted from accident, misuse, abuse, attempted repair or maintenance, causes external to the Specified Xiotech Product, Software Product or Related Documentation such as electrical power fluctuations or failure, neglect, water, fire, normal wear and tear, failure to follow supplied user instructions or misapplication of either the Software Product or the Specified Xiotech Product. Any replacement Software Product will be warranted as provided above from the date of replacement by Xiotech for the remainder of the original Warranty Period or thirty (30} calendar days, whichever is longer. XIOTECH DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE PRODUCT AND THE RELATED DOCUMENTATION. 12. LIMITATION OF LIABILITY. XIOTECH WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER, WITH THE EXCEPTION OF BODILY INJURIES, DEATH OR DAMAGE TO TANGIBLE PROPERTY DIRECTLY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF XIOTECH. IN NO EVENT SHALL XIOTECH BE LIABLE FOR ANY DAMAGES FOR OR RESULTING FROM LOSS OF OR DAMAGE TO DATA, LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS AND XIOTECH FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF XIOTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, THE LIMITATIONS OF LIABILITY, DISCLAIMERS AND OTHER EXCLUSIONS SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT NOTWITHSTANDING ANYTHING ELSE, XIOTECH'S TOTAL AGGREGATE LIABILITY UNDER THIS EULA SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY YOU FOR SOFTWARE PRODUCT HEREUNDER. THIS LIMITATION APPLIES TO ALL SOFTWARE PRODUCTS, SPECIFIED XIOTECH PRODUCTS, AND/OR PRODUCTS AND ALL SERVICES PERFORMED DURING AND AFTER THE WARRANTY PERIOD. 14. Construction. Xiotech is willing to license the Software Product to You only in consideration of and in reliance upon the provision of this EULA limiting the exposure of Xiotech to liability. Such provisions constitute an essential part of the bargain underlying this EULA and have been reflected in the license fee and other consideration specified in this EULA. 15. U.S. Government Restricted Rights. The Software Product and Related Documentation have been developed exclusively at private expense by Xiotech or its suppliers. The Software Product and Related !NSE AGREEMENT Documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Xiotech Corporation (or its affiliates), 6455 Flying Cloud Drive, Eden Prairie, MN 55344-3305. 16, Governing LawNenue. FLORIDA LAW WILL GOVERN THE AGREEMENT. VENUE FOR ANY DISPUTE RESOLUTION. WHETHER LITIGATION, ARBITRATION., MEDIATION OR OTHERWISE IS IN PALM BEACH COUNTY, FLORIDA. EACH PARTY SHALL BEAR ITS OWN COSTS OF LITIGATION. MEDIATION OR ARBITRATION AND SHALL SHARE EQUALLY IN THE COST OF ANY MEDIATOR OR ARBITRATOR.These terms and senditiens shall o~ 17. Dispute Resolution. A. The parties desire to resolve, whenever possible, any controversy, claim or dispute arising out of or relating to this EULA or the breach or making thereof, including claims of fraud in the inducement, without litigation. B. A party which believes that a dispute, controversy or claim has arisen under or relates to this EULA will notify the other party regarding the dispute, controversy or claim and attempt to negotiate a resolution between the parties. If such dispute, controversy or claim is not resolved within thirty (30) calendar days after the commencement of such negotiations, it shall be submitted to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association subject to subsection (C) below. C. The arbitration sessions will be conducted in English and will take place in Palm Beach Countv. Florida, USA. Such sessions may be conducted in person or, if permitted by the arbitrator, by telephone conference call or videoconference. The arbitrator will resolve the dispute within thirty (30) calendar days after selection. Each partv shall bear its own fees and costs associated with anv dispute resolution including mediation, arbitration and/or litigation and the costs of anv arbitrator or mediator shall be shared evenly by the parties tThe arbitrator or mediator may not assess punitive or exemplary damages. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. D. Nothing contained herein will preclude Xiotech from seeking injunctive relief from a court of competent jurisdiction pending the resolution of any dispute. 18. Severability. If any provision or any part of a provision of these terms and conditions are held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions but rather the entire EULA shall be construed as if it did not contain the particular invalid, illegal or unenforceable provision or provisions, and the rights and obligations of each party shall be construed and enforced accordingly. 19. Export. You may not export the Software Product or any portion thereof outside of the United States without first obtaining all required licenses from the United States Department of Commerce and any other United States or foreign governmental agency. 20. Entire Agreement. These terms and conditions represent the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede and replace any and all prior representations, and negotiations whether written or oral. No modifications or waiver of these terms and conditions hereof will be binding upon Xiotech unless approved in writing by an authorized representative of Xiotech. 21. Governing Language. The parties hereto hereby confirm that they have agreed that all written agreements between them be prepared in the English language only and such language shall be the governing language. Les parties aux pr~sentes conferment qu'elles ont agree que tous les documents entre eux par ~crit soit redig~ dans la langue anglaise seulement, et telle langue sera la langue de contrble. 2 of 3 Xiatech~ END USER LICENSE AGREEMENT XIOTECH is the trademark of Xiotech Corporation. Copyright ©1999-2007 Xiotech Corporation. Printed in the United States of America Rev 061218. 3 of 3 Page 1 of 6 This message was sent with high importance. Gomberg, Brad From: Langer, Richard E. [Dick_Langer@Xiotech.com] Sent: Wed 12/3/2008 3:37 PM To: Gomberg, Brad; Jones, Bernard Cc: Subject: RE: Network Backup System Attachments: Brad: This is fine; these documents are acceptable to Xiotech. Thanks for making these changes. Please let me know the timing of your approvals going forward, and what I can do here to finalize these documents. Dick -----Original Message----- From: Gomberg, Brad [mailto::bgombe~_@te~uesta_.o~] Sent: Wednesday, December 03, 2008 2:24 PM To: Langer, Richard E.; Jones, Bernard Subject: FW: Network Backup System The revised documents. Please send me your approval or disapproval asap. Thank you, Brad Gomberg Director of IT / IS The Village of Tequesta 561-744-4055 561-262-5173 C. www.tequesta.org -----Original Message----- From: Trela White [mailto:trela corbettandwhite com] Sent: Wednesday, December 03, 2008 3:22 PM To: Gomberg, Brad Subject: RE: Network Backup System Brad: As you requested, please find the 2 documents with my revisions. Thank you, Trela https://teq-exh/exchange/bgomberg/Inbox/RE:%20Network%20Backup%20System-14.E... 12/3/2008 Page 2 of 6 -----Original Message----- From: Gomberg, Brad [mailto_:,bgomberg@tequesta..org] Sent: Wednesday, December 03, 2008 1:28 PM To: trela@corbettandwhite.com Subject: FW: Network Backup System I believe the last issue that Keith had found was making sure the EULA language doesn't conflict with the new amendment page. Both are attached. If you can please send me an approval the unresolved items (if found) ASAP I would greatly appreciate it. Thank you for your time. Thank you, Brad Gomberg Director of IT / IS The Village of Tequesta 561-744-4055 561-262-5173 C. www.tequesta.org -----Original Message----- From: Langer, Richard E. [mailto Dick Langer@Xotech.com] Sent: Wednesday, December 03, 2008 11:14 AM To: Gomberg, Brad; Jones, Bernard Subject: RE: Network Backup System Here is the EULA. I think these mods address your issues, but if not please make more. Is the Amendment now OK? rel -----Original Message----- From: Gomberg, Brad [mailto:bg_ombergCa~tequesta.or~] Sent: Wednesday, December 03, 2008 9:59 AM To: Langer, Richard E.; Jones, Bernard Subject: RE: Network Backup System Hello Richard. Any update on this? I need to have this done today or we will need to wait another month for approval. Thank you for your assistance. Thank you, Brad Gomberg Director of IT / IS https://teq-exh/exchange/bgomberg/Inbox/RE:%20Network%20Backup%20System-14.E... 12/3/2008 Page 3 of 6 The Village of Tequesta 561-744-4055 561-262-5173 C. www.tequesta.org -----Original Message----- From: Langer, Richard E. [mailto:Dick Langer@X.otech.co...m. ] Sent: Tuesday, December 02, 2008 6:25 PM To: Jones, Bernard Cc: Gomberg, Brad Subject: RE: Network Backup System I sent it to you earlier. r From: Jones, Bernard Sent: Tuesday, December 02, 2008 4:46 PM To: Langer, Richard E. Cc: Gomberg, Brad Subject: FW: Network Backup System Richard, Thanks for preparing the Amendment to the T&C, but it looks like we still need to address the EULA. See the comment below. Thanks BJ From: Gomberg, Brad [mai,1.to.;_bgom.be.rg@tequ..esta.o_rg] Sent: Tuesday, December 02, 2008 5:43 PM To: Jones, Bernard Subject: Fw: Network Backup System Please see below regarding the EULA. The other issue has been resolved. ----- Original Message ----- From: keith W. Davis <keith@corbettandwhite.com> To: Gomberg, Brad Cc: McCollom, William Sent: Tue Dec 02 17:40:54 2008 https://teq-exh/exchange/bgomberg/Inbox/RE:%20Network%20Backup%20System-14.E... 12/3/2008 Page 4 of 6 Subject: RE: Network Backup System Brad: Attached is the Amendment to the Agreement which I modified as to the changes to paragraph 12 of the original Agreement. The previous language I provided was in the line of direction as opposed to actual text. I have therefore fixed it with actual language as attached. However, the other issue, as I stated yesterday, is that the EULA must also be revised to reflect these changes, in paragraphs 9 and 17 of the EUTA. Otherwise, we will have conflicting language. Keith W. Davis, Esq. Corbett and White, P.A. Tel: (561) 586-7116 -----Original Message----- From: Gomberg, Brad [mailto:b~omberg to uesta.org] Sent: Tuesday, December 02, 2008 4:52 PM To: keith@corbettandwhite.com Cc: McCollom, William Subject: FW: Network Backup System Importance: High Hello Keith. I just received the revisions you suggested from Xiotech. The come in an amendment form. Can you please review them for legal sufficiency. Thank you for your time. Regards, Brad Gomberg Director of IT / IS The Village of Tequesta 561-744-4055 561-262-5173 C. www.tequesta.org -----Original Message----- From: Jones, Bernard [mailto:_bj,jo.n_e_.s@xiotech_..com] Sent: Tuesday, December 02, 2008 4:42 PM https://teq-exh/exchange/bgomberglInbox/RE:%20Network%20Backup%20System-14.E... 12/3/2008 Page 5 of 6 To: Gomberg, Brad Cc: Langer, Richard E. Subject: FW: Network Backup System Importance: High Brad, Here is the Terms and Conditions document as requested. Please let me know if this addresses all concerns. Thank you for your patience. BJ Bernard Jones Account Executive CXE, BCFP, CNE, MCP, VSP Xiotech Corporation bj,jones@xiotech.com <mailto:bj,jon..es xiotech.c_om?subject.=Xiotech> 941 743 7350 (Office) 941 661 9993 (Mobile) 941 743 8911 (Fax) www.xiotech.com <http J/..www xiotech c.....o.,.m> :Toll-Free 866 472 6764 Technical Support: 1-800-734-4716 Xiotech Website <htt~:.~/www.xiotech.comLe.mailsig.aspx?personID=bj~ones a xiotech...com> From: Langer, Richard E. Sent: Tuesday, December 02, 2008 4:34 PM To: Jones, Bernard Cc: Arnold, Christopher D. Subject: RE: Network Backup System Importance: High BJ: I think this should do. Please pass this back to the Village. Call with questions. Dick *** eSafe scanned this email for malicious content *** *** IMPORTANT: Do not open attachments from unrecognized senders *** hops://teq-exh/exchange/bgomberg/Inbox/RE:%20Network%20Backup%20System-14.E... 12/3/2008 Page 6 of 6 No virus found in this incoming message. Checked by AVG - http://www.avg.com Version: 8.0.176 /Virus Database: 270.9.12/1824 -Release Date: 12/2/2008 9:31 AM No virus found in this incoming message. Checked by AVG - http/fwww.av_g.com Version: 8.0.176 /Virus Database: 270.9.13/1826 -Release Date: 12/3/2008 9:34 AM No virus found in this incoming message. Checked by AVG - htt~/Jwww.avg.com Version: 8.0.176 /Virus Database: 270.9.13/1826 -Release Date: 12/3/2008 9:34 AM No virus found in this incoming message. Checked by AVG - h...ttp /Jww.....w avg.co...m..... Version: 8.0.176 /Virus Database: 270.9.13/1826 -Release Date: 12/3/2008 9:34 AM No virus found in this incoming message. Checked by AVG - http,(Lww.ava.com Version: 8.0.176 /Virus Database: 270.9.13/1826 -Release Date: 12/3/2008 9:34 AM hops://teq-exh/exchange/bgomberg/Inbox/RE:%20Network%20Backup%20System-14.E... 12/3/2008