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HomeMy WebLinkAbout19- Amendment 1 to Master Services Agreement - Creative Breakthroughs, Inc. (CBI) - E-Discovery Software License and Maintenance Services co.tap? FIRST AMENDMENT TO MASTER SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE MASTER SERVICES AGREEMENT FOR e- discovery software license and services dated September 23, 2015 (the"Agreement")is made and entered into this _QI "day of March, 2019, by and between the CITY OF BOZEMAN, MONTANA,a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as "City," and Creative Breakthroughs, Inc., a Michigan corporation,hereinafter referred to as "CBI." In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged,the parties hereto agree to amend the Agreement as follows: 1. Extension of Term. Section 5 of the Agreement is amended to extend the termination date by 36 months to September 30, 2022 (the "Renewal Term"). 2. Scope of Services; Pricing. The license, scope of maintenance services, and pricing for the Renewal Term shall be as set forth in the attached Exhibit A: Price Quotation No. BOZ41014-07a. 3. Payment. City agrees to pay the amounts as shown on the attached Exhibit A in accordance with the payment terms set forth in the Agreement. 4. Purchase Subject to Budget Appropriation. CBI understands and agrees that the City's two payments under this First Amendment to the Agreement are contingent on budget appropriations in each of the first two fiscal years of the Renewal Term by the Bozeman City Commission ("City Commission"). The City agrees to include the cost of each payment in its annual request for budget appropriation for that fiscal year. In the event of non-appropriation by the City Commission,the Agreement will terminate effective on the last day of the then-current term for which City has made payment to CBI. First Amendment to Master Services Agreement for E-Discovery Software License and Maintenance Services FY 2020-2022 Page 1 of 3 5. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. IN WITNESS WHEREOF,the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA Creative Breakthroughs, Inc. I -;a� 4 By By Andrea Surratt, jityT4anagcr Print Name: Kurtis Hardy Title: Director of Professional Services APPROVED AS TO FORM By, Ko.-ram., S�cw.►�... �-. Ass;st�...r Greg Su ,Tiozeman City Attorney First Amendment to Master Services Agreement for E-Discovery Software License and Maintenance Services FY 2020-2022 Page 2 of 3 EXHIBIT A QUOTE FOR RENEWAL TERM BOZ41014-07a First Amendment to Master Services Agreement for E-Discovery Software License and Maintenance Services FY 2020-2022 Page 3 of 3 AIIII Price Quotation No.: BOZ41014-07a Quotation Date: March 14,2019 Expiration Date: March 30,2019 Contact Name: Heather Bienvenue Contact Name: Paul Ver Hoven Company: City of Bozeman Company: Creative Breakthroughs,Inc.(CBI) Address: 20 East Olive Address: 1260 Woodward Heights City/State/Zip: Bozeman,MT 59715 City/State/Zip: Ferndale,MI 48220 Country: USA Country: USA Telephone#: (406)582-2277 Telephone#: (248)515-1366 Fax#: Order Fax#: (248)856-3335 Email: hbienvenue a(�.BOZEMAN.NET Email: Pverhoven()cbisecure.com 0 e "EDISCOVERY PLATFORM STARTER KIT OM SUITE 1 MULTI METER ONPREMISE 1 STANDARD MULTI LICENSE+ESSENTIAL 12971-M0034 1 $149,565.00 $149,565.00 $59,787.15 $59,787.15 MAINTENANCE BUNDLE INITIAL 36MO GOV Start Date:03/29/2019 End Date:09/30/2022" 2 CLEARWELL APPLIANCE 12MONTHS RENEWAL 1234-01 1 $5,000.00 $5,000.00 $1,786.67 $1,786.67 e "Financing pre-approved at0%for a March purchase Terms are governed by fully executed MSA SOFTWARE FINANCE AGREEMENT IngramMicro AGREEMENT NO.:1449705 CUSTOMER • OR • FULL LEGAL NAME: Bozeman, City of ADDRESS: 411 E Main St Bozeman, MT 59715-4700 Creative Breakthroughs, Inc. Detroit, MI SOFTWARE SOFTWARE NAME,VERSION,AND PUBLISHER ❑SEE ATTACHED SCHEDULE 1 36MO PREPAID SUBSCRIPTION EDISCOVERY PLATFORM STARTER KIT OM SUITE 1 MULTI METER ONPREMISE STD LIC 1 36MO PREPAID SUBSCRIPTION CLEARWELL APPLIANCE PRIMARY LOCATION OF SOFTWARE USE:20 E Olive St Bozeman MT 597 1 5-47 9 0 TERM IN MONTHS: 24 1 ANNUAL PAYMENT OF:$30,786.91 (DUE IN JULY 2019) SOFTWARE COST/AMOUNT FINANCED:$61,573.82 FOLLOWED BY 1 ANNUAL PAYMENT OF:$30,786.91 (DUE IN JULY 2020) DOCUMENT STAMP(IF APPLICABLE):N/A THIS AGREEMENT IS NON-CANCELABLE AND IRREVOCABLE. IT CANNOT BE TERMINATED.PLEASE READ CAREFULLY BEFORE SIGNING.THE PARTIES AGREE THAT THIS AGREEMENT IS BEING ENTERED INTO AND PERFORMED IN THE STATE OF IOWA AND THAT THIS AGREEMENT AND ANY CLAIM RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF IOWA IN ALL RESPECTS INCLUDING,WITHOUT LIMITATION,IOWA'S USURY LAWS.ANY DISPUTE WILL BE ADJUDICATED IN A FEDERAL OR STATE COURT IN LINN COUNTY,IOWA.YOU HEREBY CONSENT TO PERSONAL JURISDICTION AND VENUE IN SUCH COURTS,WAIVE TRANSFER OF VENUE AND ACKNOWLEDGE THAT(A)YOU APPLIED FOR CREDIT WITH US IN IOWA,(B)WE MADE THE DECISION TO EXTEND CREDIT TO YOU IN IOWA,AND(C)THIS AGREEMENT WILL BE INVOICED AND ADMINISTERED IN IOWA(THOUGH YOU MAY BE DIRECTED TO SEND PAYMENTS TO OUR LOCKBOX IN A DIFFERENT STATE).EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL. ETelF.11,1roni9 OF • YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR RIGHTS IN THE SOFTWARE ARE SUBJECT TO WHATEVER LIMITATIONS MAY EXIST IN ANY AGREEMENT YOU MAY HAVE WITH YOUR VENDOR OR THE PUBLISHER OR LICENSOR OF THE SOFTWARE,INCLUDING LIMITATIONS ON THE TERM OF THE LICENSE,IF APPLICABLE,AND THE MANNER IN WHICH THE SOFTWARE IS DELIVERED OR MADE AVAILABLE TO YOU. YOU FURTHER ACKNOWLEDGE THAT YOU HAVE READ YOUR LICENSE AGREEMENT(S) AND ALL OTHER RELATED DOCUMENTATION RELATING TO THE SOFTWARE TO DETERMINE YOUR RIGHTS IN THE SOFTWARE. CUSTOMER'SAUTHORIZED BY SIGNING THIS PAGE,YOU REPRESENT TO FINANCING SOURCE THAT YOU HAVE RECEIVED AND READ THE ADDITIONAL TERMS AND CONDITIONS APPEARING ON THE SECOND PAGE OF THIS TWO-PAGE AGREEMENT.ONCE YOU SIGN THIS AGREEMENT AND WE ACCEPT IT,YOUR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT ARE NON-CANCELABLE AND IRREVOCABLE FOR THE FULL AGREEMENT TERrt As Stated Above c 0 CUSTOMER SIGNATURE PRINT NAME&TITLE ATE SOURCEIMCING • Ingram Micro Lease-IT! FINANCING SOURCE SIGNATURE PRINT NAME&TITLE DATE UNCONDITIONAL The undersigned,jointly and severally if more than one,unconditionally guarantees)that the Customer will timely perform all obligations under the Agreement.The undersigned also waive(s)any notification if the Customer is in default and consents)to any extensions or modifications granted to the Customer. In the event of default,the undersigned will immediately pay all sums due under the terms of the Agreement without requiring us or our assignee to proceed against Customer or any other party or exercise any rights in the Software.The undersigned, as to this guaranty, agree(s)to the designated forum and consents)to personal jurisdiction, venue, and choice of law as stated in the Agreement, agrees)to pay all costs and expenses,including attorney fees,incurred by us or our assignee related to this guaranty and the Agreement,waive(s)a jury trial and transfer of venue, and authorizes)obtaining credit reports. SIGNATURE:X INDIVIDUAL: DATE: SIGNATURE:X INDIVIDUAL: DATE: (1449705)009065-VG02SFAA_0817 03/27/19 PAGE 1 OF 2 340 ADDITIONAL • • AGREEMENT.You want us to provide financing to you pursuant to this Software Finance Agreement("Agreement")in connection with your acquisition of rights in the software referenced herein ("Software")from or through your Vendor. In consideration of us now paying your Vendor, on your behalf, the amounts your Vendor invoiced you for the Software, and,if applicable,related installation,training,and/or implementation costs,you unconditionally agree to pay us the principal amount set forth above as the Software Cost/Amount Financed,with interest thereon,which interest compounds monthly,at the rate implicit in the annual amounts payable under the terms of this Agreement,which you agree to make each year by the due date.This Agreement will begin on the date we pay your Vendor for the Software or any later date we designate.We may charge you a one- time origination fee of$89.50.If any amount payable to us is past due,you will pay us a late charge equal to:1)the greater of ten(10)cents for each dollar overdue or twenty-six ($26.00)dollars;or 2)the highest lawful charge, if less. If you choose to make any payments under this Agreement early,you will not be entitled to take a discount off of the aggregate amount of the annual payments to be made under this Agreement.We made an investment in this Agreement in reliance on the anticipated stream of cash flows and any early discounted payment would frustrate our purpose in extending you credit under this Agreement. NET AGREEMENT.THIS AGREEMENT IS NON-CANCELABLE FOR THE ENTIRE AGREEMENT TERM.YOU UNDERSTAND WE ARE PAYING YOUR VENDOR FOR THE SOFTWARE ON YOUR BEHALF BASED ON YOUR PROMISE TO PAY US UNDER THE TERMS OF THIS AGREEMENT,WITHOUT SET-OFFS FOR ANY REASON. SOFTWARE USE.Until your obligations under this Agreement are satisfied in full,you agree to use the Software for business purposes only,not modify or move it from its initial location without our consent,and bear the risk of its non-compliance with applicable laws. NO WARRANTY. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.YOU CHOSE THE SOFTWARE,YOUR VENDOR,AND THE SOFTWARE PUBLISHER OR LICENSOR BASED ON YOUR JUDGMENT.YOU MAY CONTACT YOUR VENDOR FOR A STATEMENT OF THE WARRANTIES,IF ANY,THAT YOUR VENDOR OR THE SOFTWARE PUBLISHER OR LICENSOR IS PROVIDING. ASSIGNMENT.You may not sell, assign or transfer the Software or this Agreement without our written consent. We may sell or assign this Agreement or our rights in the Software,in whole or in part,to a third party without notice to you.You agree that if we do so,the assignee will have our rights but will not be subject to any claim,defense,or set- off assertable against us or anyone else. INACCESSIBILITY OF SOFTWARE.We are not responsible for providing you access to the Software. If you chose to have your Vendor provide you access to the Software through the internet instead of having the Software installed locally on your hardware,any accessibility issues relating to the internet,the Software,or your Vendor are solely your responsibility,and no such issues will relieve you from your obligation to make the payments required by this Agreement. LOSS OR DAMAGE.You are responsible for any damage to or loss of the Software.No such loss or damage will relieve you from your payment obligations hereunder.We are not responsible for,and you will indemnify us against,any claims,losses or damages,including attorney fees,in any way relating to the Software.In no event will we be liable for any consequential or indirect damages. OWNERSHIP.We do not own the Software and cannot transfer any interest in it to you.We are neither responsible for the Software nor the obligations of you or the licensor under any license agreement related to the Software.You agree that you will look only to the publisher, licensor,or other third parties,if any,who actually granted to you your right(s)to use the Software to determine those rights and any limitations thereon.You hereby grant us a security interest in the Software to secure your performance under this Agreement,to be released at the end of the term provided you have performed all of your obligations under this Agreement. TAXES. You agree that you will pay when due, either directly or by paying your Vendor, all taxes and fees relating to the Software, your purchase of the Software or this Agreement.If your Vendor invoices you for taxes,we may include the invoiced taxes in the amounts we finance for you under this Agreement.However,payment of sales,use,or property taxes shall not be our responsibility under any circumstances. DEFAULTIREMEDIES.If a payment becomes 10+days past due,or if you otherwise breach this Agreement,you will be in default,and we may require that you pay us: 1)all past due amounts and 2)all remaining payments for the unexpired term, discounted at 3% per annum. We may also use all other legal remedies available to us, including foreclosing on our security interest in the Software.You agree we may disable the Software if you are in default.You agree to pay all costs and expenses(including reasonable attorney fees)we incur in any dispute with you related to this Agreement.You agree to pay us 1.5%interest per month on all past due amounts.In the event of your default,you waive notices of our intent to accelerate the payments, the acceleration of the payments and of the enforcement of our rights under this Agreement. To the extent you are permitted by law,you waive all defenses you would otherwise have under the Uniform Commercial Code,if any,and common law. MISCELLANEOUS.This Agreement is the entire agreement between you and us relating to the Software and supersedes any prior representations or agreements,including any purchase orders.Amounts payable under this Agreement may include a profit to us.The parties agree that the original hereof for enforcement and perfection purposes,and the sole"record"constituting"chattel paper"under the UCC,is the paper copy hereof bearing(i)the original or a copy of either your manual signature or an electronically applied indication of your intent to enter into this Agreement,and(ii)our original manual signature.If a court finds any provision of this Agreement unenforceable,the remaining terms of this Agreement shall remain in effect.You authorize us to either insert or correct the Agreement number,serial numbers,model numbers,beginning date,and signature date,and acknowledge that if your Vendor filled in any blanks above,they did so on your behalf.All other modifications to the Agreement must be in writing signed by each party. Agreement No.:1449705 Initials:' (1449705)009065-VG02SFAA_0817 03/27/19 PAGE 2 OF 2 340 GOVERNMENTAL ENTITIES ADDENDUM This is an addendum ("Addendum") to and part of that certain agreement between Ingram Micro Lease-IT! ("we", "us", "our") and Bozeman, City of ("Governmental Entity", "you", "your"), which agreement is identified in our records as agreement number 1449705 ("Agreement"). All capitalized terms used in this Addendum which are not defined herein shall have the meanings given to such terms in the Agreement. APPLICABLE TO GOVERNMENTAL ENTITIES ONLY You hereby represent and warrant to us that as of the date of the Agreement: (a) the individual who executed the Agreement had full power and authority to execute the Agreement on your behalf; (b) all required procedures necessary to make the Agreement a legal and binding obligation against you have been followed; (c) the Equipment will be operated and controlled by you and will be used for essential government purposes for the entire term of the Agreement; (d) that all payments due and payable for the current fiscal year are within the current budget and are within an available, unexhausted, and unencumbered appropriation; (e) you intend to pay all amounts payable under the terms of the Agreement when due, if funds are legally available to do so; (f) your obligations to remit amounts under the Agreement constitute a current expense and not a debt under applicable state law; (g) no provision of the Agreement constitutes a pledge of your tax or general revenues; and (h) you will comply with any applicable information reporting requirements of the tax code, which may include 8038-G or 8038-GC Information Returns. If funds are not appropriated to pay amounts due under the Agreement for any future fiscal period, you shall have the right to return the Equipment and terminate the Agreement on the last day of the fiscal period for which funds were available, without penalty or additional expense to you (other than the expense of returning the Equipment to the location designated by us), provided that at least thirty (30) days prior to the start of the fiscal period for which funds were not appropriated, your Chief Executive Officer (or Legal Counsel) delivers to us a certificate (or opinion) certifying that (a) you are a state or a fully constituted political subdivision or agency of the state in which you are located; (b) funds have not been appropriated for the applicable fiscal period to pay amounts due under the Agreement; (c) such non-appropriation did not result from any act or failure to act by you; and (d) you have exhausted all funds legally available for the payment of amounts due under the Agreement. You agree that this paragraph shall only apply if, and to the extent that, state law precludes you from entering into the Agreement if the Agreement constitutes a multi-year unconditional payment obligation. A copy of this document containing your original or facsimile signature, or other indication of your intent to agree to the terms set forth herein, shall be enforceable for all purposes. The undersigned, as a representative of the Governmental Entity, agrees that this Addendum is made a part of the Agreement. GOVERNMENTAL CERTIFICATE I,THE UNDERSIGNED,HEREBY CERTIFY THAT,AS OF THE DATE OF THE AGREEMENT,(A)THE INDIVIDUAL WHO EXECUTED THE AGREEMENT HAD FULL POWER AND AUTHORITY TO EXECUTE THE AGREEMENT AND (B) THE REPRESENTATIONS SET FORTH ABOVE IN THE PARAGRAPH TITLED "APPLICABLE TO GOVERNMENTAL ENTITI ONLY"ARE TRUE AND ACCURATE IN ALL MATERIAL RESPECTS. ] SIGNATURE: X NAME&TITLE: �Y TE: OUR SIGNATURE Ingram Micro Lease-IT! SIGNATURE PRINT NAME&TITLE DATE 009065-VG07NAMC 0517