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P-23-515 Commvault.pdf
County of Fresno P-23-515 1 SERVICE AGREEMENT 2 This Service Agreement ("Agreement") is dated September 21,2023 and is between 3 Commvault Systems, Inc., a Delaware corporation ("Commvault"), and the County of Fresno, a 4 political subdivision of the State of California ("County"). 5 Recitals 6 A. The County desires to establish the integrity, rights, and value of the software and 7 licenses currently deployed and to provide for the purchase of additional capacity licensing, 8 maintenance, annual upgrades and support services for these systems for its County 9 departments, as needed; and 10 B. Commvault desires to confirm that software and licenses previously purchased directly 11 from Commvault or a software reseller have the same rights and value and are determined to 12 be licensed in perpetuity or on a subscription basis, as applicable, by the County, in accordance 13 with the terms of Commvault's End User License and Limited Warranty Agreement, attached as 14 Exhibit B, dated November, 2017, between the parties (the "EULA"). 15 The parties therefore agree as follows: 16 Article 1 17 Support Features and Responsibility 18 1.1 Commvault support ("Support") will only be provided on all, but not less than all, 19 Commvault Licenses that are used in the County's software configuration. If the County wishes 20 to purchase maintenance and Support for less than 100% of its Licenses, it shall forfeit the non- 21 supported Licenses. Any such forfeited License must be repurchased for future use. 22 1.2 The features and specifications of the Support shall be provided in accordance with 23 Commvault's then-current policies, which may be amended from time to time, at Commvault's 24 discretion. As part of maintenance and Support, the County shall be entitled to ongoing release 25 updates, if and when available, for the Products during the Term. 26 1.3 Beginning on the Effective Date and continuing for the life of this Agreement(Section 5, 27 Term of Agreement), Commvault shall provide Support pursuant to the specific support plan as 28 chosen by the County. Commvault may perform Support itself or subcontract the performance of 1 County of Fresno P-23-515 1 the Support, in whole or in part. Support shall be provided in accordance with Commvault's Global 2 Customer Support Services Guide, a current copy of which may be found at 3 ma.commvault.com/Guides/Commvault-Global-Customer-Support-Guide-2018-01-31.pdf. 4 1.4 Exhibit A— Pricing and Licensing Conversion Statements, attached hereto as "Exhibit 5 A" and incorporated herein by reference establishes the Software Products to be provided and 6 Support to be performed, and respective fees (hereinafter"Fees")to be paid by the County. 7 1.5 Attached as "Exhibit B" is Commvault Systems End User License and Limited Warranty 8 Agreement ("EULA") which is hereby incorporated by reference. 9 Article 2 10 County's Responsibilities 11 The County shall perform as follows: 12 2.1 Follow all of Commvault's published instructions, which include administrative 13 documentation and release notes provided to the County with respect to use and operation of the 14 Products. 15 2.2 Immediately notify Commvault's county service center of any Support requirement, at 16 (877) 780-3077 or at any other telephone number(s) as Commvault may designate from time to 17 time. 18 2.3 Provide sufficient information at the time the trouble call is placed to identify the product 19 requiring Support. Such information shall include, as applicable: remote dial-in access number, 20 product-type, and CommCell identification number. 21 2.4 To the extent possible, provide Commvault at the time of the trouble report call with 22 sufficient information to allow Commvault the opportunity to determine the cause of the problem 23 over the telephone. 24 2.5 Properly maintain, at its expense, all network Support and/or third party equipment 25 required in order to facilitate the product properly functioning and, if applicable, remote dial-in 26 access. 27 2.6 Provide Commvault personnel with full and safe access to the premises and products in 28 connection with Commvault's performance of its obligations. 2 County of Fresno P-23-515 1 2.7 Maintain products at the current generally available product version levels. 2 2.8 Otherwise cooperate with Commvault to resolve any trouble report or Support issue. 3 Article 3 4 Additional Products or Support Terms 5 3.1 Additional Products or Support. Upon the County's request, and under direction of 6 the Director of Internal Services/Chief Information Officer (CIO) or his designee, Exhibit A may 7 be amended to include additional products and Support, and shall co-terminate with the Term. 8 The County will not purchase additional products and Support exceeding the maximum 9 expenditure limits. 10 3.2 Product Relocation. The County is free to relocate Products, however, the County 11 shall provide to Commvault at least ten (10) days prior written notice of Product relocation. The 12 County shall provide Commvault information reasonably requested by Commvault, including 13 any new internet protocol address. The County acknowledges that the Product licenses are 14 dependent on an internet protocol address and in the event that the Products are relocated, the 15 Products will disable themselves immediately. The County waives any and all claims, including 16 but not limited to those regarding data loss/compromise, resulting from such an event. 17 3.3 Exclusions from Support/Product Exchange and Return/End of Life. Commvault 18 shall not be obligated to furnish Support, nor shall Commvault be liable under this Agreement, 19 or any other, for repair or replacement of Products, or additions thereto, due to improper use, 20 theft; natural disasters, strikes, riots, sabotage, acts of war, changes or modifications by other 21 than Commvault personnel or without Commvault supervision or authority, shock, electrical 22 damage, accident, fire, water damage, air conditioning failure, and/or failure by the County to 23 maintain the site specifications recommended by Commvault. The dispatch of a Customer 24 Engineer to provide such Support will be subject to availability. If Support is required due to any 25 of the above causes, Commvault will provide such Support at prevailing time and material rates, 26 plus actual expenses incurred. Commvault shall have no obligation to perform any Support if the 27 provisioning of such Support would pose a health or safety risk to Commvault's personnel. 28 3 County of Fresno P-23-515 1 3.4 In the event the County requests replacement of Products which are rendered un- 2 repairable or unusable due to an event set forth in Section 3.3, the County acknowledges and 3 agrees that Commvault shall have the right to invoice the County for such replacement 4 Products. All Products returned to Commvault for exchange shall become the property of 5 Commvault. Replacement Products delivered to the County shall become the County's property. 6 3.5 The County acknowledges that, from time to time, Commvault may obsolete certain 7 products and that the County may be required to update their product version level in order to 8 meet certain support requirements. The Support services provided hereunder remain subject to 9 Commvault's Product Obsolescence Policy, which is available on Commvault's web site at 10 ma.commvault.com/Support/ProductSupport. 11 Article 4 12 Compensation, Invoices, and Payments 13 4.1 The County agrees to pay, and Commvault agrees to receive, compensation for the 14 performance of its services under this Agreement as described in this section. 15 4.2 Maximum Compensation. The maximum compensation payable to Commvault 16 under this Agreement is $115,314.96, as set forth in Exhibit A. This entire amount was prepaid 17 on May 25, 2023, prior to the Effective Date. A true and correct copy of the Invoice for the 18 payment, Invoice No. 100-092374, is included in Exhibit A. Commvault acknowledges that the 19 County is a local government entity, and does so with notice that the County's powers are 20 limited by the California Constitution and by State law, and with notice that Commvault may 21 receive compensation under this Agreement only for services performed according to the terms 22 of this Agreement and while this Agreement is in effect, and subject to the maximum amount 23 payable under this section. Commvault further acknowledges that County employees have no 24 authority to pay Commvault except as expressly provided in this Agreement. 25 4.3 Additional Compensation Terms. The CIO may authorize changes to Exhibit A, 26 allowing for additional hardware and software components, and associated maintenance, to be 27 added, not to exceed the limits as stated in Section 4.2. 28 4 County of Fresno P-23-515 1 4.4 If the County has received a special discount based on volume or term commitment 2 and the County fails to meet that commitment for any reason other than a bona fide dispute, 3 Commvault reserves the right to back-bill the full amount of such discount. 4 4.5 Commvault may adjust the Support Fees during the Term if material specifications, 5 attachments or features of the products change. Commvault may increase maintenance and 6 support fees with thirty (30) days advance written notice to the County, provided that 7 Commvault may not increase Support fees more than once in any one-year period. Overall, per 8 annum fees may not increase by more than 3% per year. 9 4.6 Professional Services. The County may request professional services within the 10 terms of this Agreement ("Professional Services"). Hourly rates and other time and materials 11 rates for any Professional Services shall be those in effect when the Support is rendered and 12 shall be payable as specified in the written request for quote and resulting quote and invoice for 13 such Fees. Any and all pre-paid Professional Services Credits, including training courses and 14 eLearning materials, will expire one (1) year from the date of purchase if not used. 15 4.7 Invoices. Commvault shall submit invoices on an annual basis in advance, either 16 electronically or via mail, to the County of Fresno ISD-IT Accounts 333 W. Pontiac Way, Fresno, 17 CA 93612, or Business Office (itsdbusinessoffice@fresnocountyca.gov). The County will pay 18 Commvault in US dollars within forty-five (45) days of receipt of an approved invoice. However, 19 Commvault reserves the right to change payment terms upon written notice to the County if the 20 County is delinquent in the payment of any invoice and if Commvault deems such change 21 appropriate. Commvault reserves the right to suspend Support, without any liability to the 22 County, in the event any invoice remains unpaid for more than sixty (60) days beyond the date 23 of invoice, unless such non-payment is the result of a bona fide dispute. 24 4.8 Payment. The County shall pay each correctly completed and timely submitted 25 invoice within 45 days after receipt. The County shall remit any payment to Commvault's 26 address specified in the invoice. 27 4.9 Incidental Expenses. It is understood that all of Commvault's expenses incidental to 28 Commvault's performance of maintenance and Support services under this Agreement shall by 5 County of Fresno P-23-515 1 borne by Commvault unless otherwise approved for reimbursement in writing by the County 2 prior to the incurring of such expenses. 3 4.10 Taxes, Duties, and Tariffs. The County agrees to pay amounts equal to any 4 applicable taxes or other governmental charges imposed or levied on, or in connection with, the 5 Support rendered, the products or other transactions under this Agreement. These taxes shall 6 include, by way of illustration and not by limitation, sales taxes, use and excise taxes; all duties, 7 tariffs, and taxes (such as Value Added Tax (VAT)) imposed or levied by the US government, 8 and state or local authority, and any foreign government or agency; and any taxes or similar 9 amounts paid/payable by Commvault except taxes based on Commvault's net income. 10 Article 5 11 Term of Agreement 12 5.1 Term. This Agreement is effective on June 28, 2023 ("Effective Date") and 13 terminates one year from the Effective date (the "Term"), except as provided in section 5.2, 14 "Extension," or Article 7, "Termination and Suspension," below. 15 5.2 No Extension. The Term may not be extended past the one-year term in Section 5.1 16 Article 6 17 Notices 18 6.1 Contact Information. The persons and their addresses having authority to give and 19 receive notices provided for or permitted under this Agreement include the following: 20 For the County: 21 Director of Internal Services/Chief Information Officer County of Fresno 22 333 W. Pontiac Way, Clovis, CA 93612 23 isdcontracts@fresnocountyca.gov 24 For the Contractor: Service Contract Administrator 25 Commvault Systems, Inc. 1 Commvault Way 26 Tinton Falls, New Jersey 07724 Copy to: VP and General Counsel 27 6.2 Primary Escalation Contact Information. The persons and their contact 28 information that the County can contact to escalate problems or situations are: 6 County of Fresno P-23-515 1 For the County: Contact#1: 2 Darren Rice Network Systems Engineer 3 Office Phone: (559) 600-5828 Email: 4 Contact#2: 5 Antoine Grayson IT Manager 6 Office Phone: (559) 600-5808 Email: agrayson@fresnocountyca.gov 7 For the Contractor: 8 Commvault Systems, Inc. 1 Commvault Way 9 Tinton Falls, New Jersey 07724 Office Support: (877) 780-3077 10 ATTN: Service Contract Administrator 11 Commvault Systems, Inc. Copy to: VP and General Counsel 12 Same Address 13 6.3 Change of Contact Information. Either party may change the information in section 14 6.1 and 6.2 by giving notice as provided in section 6.4. 15 6.4 Method of Delivery. Each notice between the County and Commvault provided for 16 or permitted under this Agreement must be in writing, state that it is a notice provided under this 17 Agreement, and be delivered either by personal service, by first-class United States mail, or by 18 an overnight commercial courier service. 19 (A) A notice delivered by personal service is effective upon service to the recipient. 20 (B) A notice delivered by first-class United States mail is effective three County 21 business days after deposit in the United States mail, postage prepaid, addressed to the 22 recipient. 23 (C)A notice delivered by an overnight commercial courier service is effective one 24 County business day after deposit with the overnight commercial courier service, 25 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to 26 the recipient. 27 6.5 Claims Presentation. For all claims arising from or related to this Agreement, 28 nothing in this Agreement establishes, waives, or modifies any claims presentation 7 County of Fresno P-23-515 1 requirements or procedures provided by law, including the Government Claims Act (Division 3.6 2 of Title 1 of the Government Code, beginning with section 810). 3 Article 7 4 Termination and Suspension 5 7.1 Termination for Non-Allocation of Funds. The terms of this Agreement are 6 contingent on the approval of funds by the appropriating government agency. If sufficient funds 7 are not allocated, then the County, upon at least 30 days' advance written notice to Commvault, 8 may: 9 (A) Modify the services provided by Commvault under this Agreement; or 10 (B) Terminate this Agreement. 11 7.2 Termination for Breach. 12 (A) Upon determining that a breach (as defined in paragraph (C) below) has 13 occurred, the County may give written notice of the breach to Commvault. The written 14 notice may suspend performance under this Agreement, and must provide at least 30 15 days for Commvault to cure the breach. 16 (B) If Commvault fails to cure the breach to the County's satisfaction within the time 17 stated in the written notice, the County may terminate this Agreement immediately. 18 (C) For purposes of this section, a breach occurs when, in the determination of the 19 County, Commvault has: 20 (1) Obtained or used funds illegally or improperly; 21 (2) Failed to comply with any part of this Agreement; 22 (3) Submitted a substantially incorrect or incomplete report to the County; or 23 (4) Improperly performed any of its obligations under this Agreement. 24 (D) In no event shall any payment by the County constitute a waiver by the County of 25 any breach of this Agreement or any default which may then exist on the part of 26 Commvault. Neither shall such payment impair or prejudice any remedy available to the 27 County with respect to the breach or default. The County shall have the right to demand 28 of Commvault the repayment to the County of any funds disbursed to Commvault under 8 County of Fresno P-23-515 1 this Agreement, which in the judgment of the County were not expended in accordance 2 with the terms of this Agreement. In the event of a termination by County, County shall 3 only be entitled to a refund of prepaid unused Maintenance and Support fees. 4 7.3 Termination without Cause. In circumstances other than those set forth above, the 5 County may terminate this Agreement by giving at least 90 days advance written notice to 6 Commvault. 7 7.4 No Penalty or Further Obligation. Any termination of this Agreement by the County 8 under this Article 7 is without penalty to or further obligation of the County. 9 7.5 County's Rights upon Termination. Upon termination for breach under this Article 10 7, the County may demand repayment by Commvault of any monies disbursed to Commvault 11 under this Agreement that, in the County's sole judgment, were not expended in compliance 12 with this Agreement. Commvault shall promptly refund all such monies upon demand. This 13 section survives the termination of this Agreement. 14 7.6 Commvault's Rights. Commvault may terminate this Agreement, or Support for any 15 product set forth in Exhibit A, in accordance with the terms of the EULA and as follows: (a) for 16 the County's non-performance of any obligation hereunder upon thirty (30) days written notice; 17 and, (b) for non-payment by the County upon ten (10) days written notice following the start of 18 the delinquency period as set forth in Section 4.7. 19 Article 8 20 Indemnity and Defense 21 8.1 Indemnity. Commvault agrees to indemnify, save, hold harmless, and at the 22 County's request, defend the County, its officers, agents, and employees from any and all costs 23 and expenses (including, without limitation, costs and fees of litigation), damages, liabilities, 24 claims, and losses occurring or resulting to the County to the extent in connection with the 25 performance, or failure to perform, by Commvault, its officers, agents, or employees under this 26 Agreement. The County agrees to indemnify Commvault in accordance with the terms of the 27 EULA. 28 8.2 Survival. This Article 8 survives the termination of this Agreement. 9 County of Fresno P-23-515 1 Article 9 2 Insurance 3 9.1 Commvault shall comply with all the insurance requirements in Exhibit C to this 4 Agreement. 5 Article 10 6 Limited Warranty, Disclaimer, and Limitation of Liability 7 10.1 Commvault warrants to the County, in accordance with the terms of the EULA, that it 8 will perform the Support in a good and workmanlike manner. The County's exclusive remedy 9 and Commvault's sole liability for the breach of such warranty shall be to re-perform the affected 10 Support. Commvault warrants its replacement parts for a period of thirty (30) days from the date 11 of receipt by the County or for the remainder of the original product warranty, whichever is 12 longer. Except as set forth in this paragraph, Commvault DISCLAIMS ALL WARRANTIES, 13 EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED 14 WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE 15 AND ANY STATUTORY WARRANTY OF NON-INFRINGEMENT. 16 10.2 Neither Commvault nor its support provider shall be liable for any incidental, special, 17 indirect or consequential damages of any kind or nature whatsoever, arising out of or in any way 18 related to this Agreement, the Products, the Support or the use or inability to use any Products, 19 including, without limitation, lost goodwill, lost profits, loss of data or software, work stoppage or 20 impairment of other goods, and whether arising out of breach of warranty, breach of contract, 21 tort (including negligence), strict liability or otherwise, even if advised of the possibility of such 22 damage or if such damage could have been reasonably foreseen, except only in case of 23 personal injury to the extent applicable law requires such liability. Such limitation is intended to 24 apply notwithstanding any failure of essential purpose of any exclusive remedy provided herein. 25 10.3 Notwithstanding any other provision hereof, in no event shall Commvault or its 26 Support provider's entire liability related to or in connection with the performance of Support 27 under this Agreement, whether based on contract, warranty, tort (including negligence), strict 28 liability or otherwise, exceed the actual amount received by Commvault for the most recent 10 County of Fresno P-23-515 1 annual fee under this Agreement. Such limitation of liability shall not apply only if and to the 2 extent required by applicable law. In all cases, any claim against Commvault or its Support 3 providers must be brought within 2 (two) years after discovery of the occurrence of the alleged 4 act or omission giving rise to damages. 5 Article 11 6 Inspections, Audits, and Public Records 7 11.1 Inspection of Documents. Commvault shall at any time during business hours, and 8 as often as the County may deem necessary, make available to the County for examination all of 9 its records and data with respect to the matters covered by this Agreement. Commvault shall, upon 10 request by the County, permit the County to audit and inspect all of such records and data 11 necessary to ensure Commvault's compliance with the terms of the Agreement. 12 11.2 State Audit Requirements. If the compensation to be paid by the County under this 13 Agreement exceeds $10,000, Commvault is subject to the examination and audit of the 14 California State Auditor, as provided in Government Code section 8546.7, for a period of three 15 years after final payment under this Agreement. This section survives the termination of this 16 Agreement. 17 11.3 Public Records. The County is not limited in any manner with respect to its public 18 disclosure of this Agreement or any record or data that Commvault may provide to the County. 19 The County's public disclosure of this Agreement or any record or data that Commvault may 20 provide to the County may include but is not limited to the following: 21 (A) The County may voluntarily, or upon request by any member of the public or 22 governmental agency, disclose this Agreement to the public or such governmental 23 agency. 24 (B) The County may voluntarily, or upon request by any member of the public or 25 governmental agency, disclose to the public or such governmental agency any record or 26 data that Commvault may provide to the County, unless such disclosure is prohibited by 27 court order. 28 11 County of Fresno P-23-515 1 (C) This Agreement, and any record or data that Commvault may provide to the 2 County, is subject to public disclosure under the Ralph M. Brown Act (California 3 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950). 4 (D) This Agreement, and any record or data that Commvault may provide to the 5 County, is subject to public disclosure as a public record under the California Public 6 Records Act (California Government Code, Title 1, Division 7, Chapter 3.5, beginning 7 with section 6250) ("CPRA"). 8 (E) This Agreement, and any record or data that Commvault may provide to the 9 County, is subject to public disclosure as information concerning the conduct of the 10 people's business of the State of California under California Constitution, Article 1, 11 section 3, subdivision (b). 12 (F) Any marking of confidentiality or restricted access upon or otherwise made with 13 respect to any record or data that Commvault may provide to the County shall be 14 disregarded and have no effect on the County's right or duty to disclose to the public or 15 governmental agency any such record or data. 16 11.4 Public Records Act Requests. If the County receives a written or oral request 17 under the CPRA to publicly disclose any record that is in Commvault's possession or control, 18 and which the County has a right, under any provision of this Agreement or applicable law, to 19 possess or control, then the County may demand, in writing, that Commvault deliver to the 20 County, for purposes of public disclosure, the requested records that may be in the possession 21 or control of Commvault. Within five business days after the County's demand, Commvault shall 22 (a) deliver to the County all of the requested records that are in Commvault's possession or 23 control, together with a written statement that Commvault, after conducting a diligent search, 24 has produced all requested records that are in Commvault's possession or control, or (b) 25 provide to the County a written statement that Commvault, after conducting a diligent search, 26 does not possess or control any of the requested records. Commvault shall cooperate with the 27 County with respect to any County demand for such records. If Commvault wishes to assert that 28 any specific record or data is exempt from disclosure under the CPRA or other applicable law, it 12 County of Fresno P-23-515 1 must deliver the record or data to the County and assert the exemption by citation to specific 2 legal authority within the written statement that it provides to the County under this section. 3 Commvault's assertion of any exemption from disclosure is not binding on the County, but the 4 County will give at least 10 days' advance written notice to Commvault before disclosing any 5 record subject to Commvault's assertion of exemption from disclosure. Commvault shall 6 indemnify the County for any court-ordered award of costs or attorney's fees under the CPRA 7 that results from Commvault's delay, claim of exemption, failure to produce any such records, or 8 failure to cooperate with the County with respect to any County demand for any such records. 9 Article 12 10 Disclosure of Self-Dealing Transactions 11 12.1 Applicability. Commvault is a publicly-traded company and as such has disclosure 12 obligations to report related party transactions in its Annual Report and Proxy Statement which 13 can be obtained through contacting Commvault Systems, Inc., through its contact address as 14 given described in section 6.1. 15 Article 13 16 General Terms 17 13.1 Modification. Except as provided in Article 7, "Termination and Suspension," this 18 Agreement may not be modified, and no waiver is effective, except by written agreement signed 19 by both parties. Commvault acknowledges that County employees have no authority to modify 20 this Agreement except as expressly provided in this Agreement. 21 13.2 Non-Assignment. Neither party shall assign, transfer or otherwise dispose of this 22 Agreement or any of its rights or obligations hereunder, without the prior written consent of the 23 other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, 24 Commvault may, upon written notice to the County, assign this Agreement to an affiliate or a 25 purchaser of all or substantially all of its assets. Additionally, Commvault reserves the right to 26 sub-contract performance of any or all of its Support obligations as set forth in Section 1.3 27 above. 28 13 County of Fresno P-23-515 1 13.3 Governing Law. The laws of the State of California govern all matters arising from 2 or related to this Agreement. 3 13.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno 4 County, California. Contractor consents to California jurisdiction for actions arising from or 5 related to this Agreement, and, subject to the Government Claims Act, all such actions must be 6 brought and maintained in Fresno County. 7 13.5 Construction. The final form of this Agreement is the result of the parties' combined 8 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be 9 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement 10 against either party. 11 13.6 Days. Unless otherwise specified, "days" means calendar days. 12 13.7 Headings. The headings and section titles in this Agreement are for convenience 13 only and are not part of this Agreement. 14 13.8 Severability. If any provision of this Agreement shall be held illegal, invalid or 15 unenforceable, in whole or in part, such provision shall be modified to the extent necessary to 16 make it legal, valid and enforceable, and the legality, validity and enforceability of all other 17 provisions of this Agreement shall not be affected thereby. This Agreement shall be fairly 18 interpreted in accordance with its terms without any strict construction in favor of or against 19 either party and ambiguities shall not be interpreted against the drafting party. 20 13.9 Nondiscrimination. During the performance of this Agreement, Commvault shall not 21 unlawfully discriminate against any employee or applicant for employment, or recipient of 22 services, because of race, religious creed, color, national origin, ancestry, physical disability, 23 mental disability, medical condition, genetic information, marital status, sex, gender, gender 24 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to 25 all applicable State of California and federal statutes and regulation. 26 13.10 No Waiver. A waiver by any party hereto of a breach or violation of any provision of 27 this Agreement will not be a waiver of any subsequent breach or violation of that provision, or a 28 waiver of any other provision of this Agreement. COUNTY shall not require waivers or releases of 14 County of Fresno P-23-515 1 personal rights from employees or representatives of Commvault in connection with the fulfillment 2 of Commvault's obligations hereunder. 3 13.11 Employment Practices. Commvault shall not discriminate against any employee or 4 applicant for employment to be employed in the performance of this Agreement, with respect to 5 hire, tenure, terms, conditions or privileges of employment, or any other matter directly or 6 indirectly related to employment, because of race, sex, religion, color, national origin, ancestry, 7 age, handicap, disabled veteran status and Vietnam-era veteran status. 8 13.12 No Solicitation. The County recognizes that Commvault expends considerable time, 9 effort and expense in training its employees. As such, in the event the County hires any 10 employee of Commvault, in any capacity whatsoever, whether full-time, part-time or on a 11 consultant basis, on behalf of itself or any person or entity, during the term of this Agreement 12 and for a period of twelve (12) months thereafter, the County shall pay Commvault the sum 13 equal to three (3) months' pay at the last rate paid by Commvault to such employee or Twenty 14 Thousand Dollars ($20,000) whichever is greater. 15 13.13 Survival of Obligations. The following Sections shall survive termination of this 16 Agreement for whatever reason: Section 4(4.7 until obligations under this Agreement have been 17 paid in full), 5, 6, 7, 8, 10, 11, 12, 13.2, 13.3, 13.4, 13.8, 13.10, 13.11, 13.12, 13.13, and 13.14. 18 13.14 Entire Agreement. This entire Agreement, including Exhibits A, B, C, and D 19 constitutes the entire agreement between the parties relating to the subject matter hereof and 20 supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and 21 understands of the parties. This Agreement supersedes all pre-printed terms and conditions 22 contained in any purchases order, order acknowledgement form, invoice or other business form 23 submitted hereafter by either party to the other. This Agreement may not be changed, modified, or 24 amended, except by a written document signed by duly authorized representatives of both parties. 25 13.15 No Third-Party Beneficiaries. This Agreement does not and is not intended to 26 create any rights or obligations for any person or entity except for the parties. 27 13.16 Authorized Signature. Commvault represents and warrants to the County that: 28 15 County of Fresno P-23-515 1 (A) Commvault is duly authorized and empowered to sign and perform its obligations 2 under this Agreement. 3 (B) The individual signing this Agreement on behalf of Commvault is duly authorized 4 to do so and his or her signature on this Agreement legally binds Commvault to the 5 terms of this Agreement. 6 13.17 Electronic Signatures. The parties agree that this Agreement may be executed by 7 electronic signature as provided in this section. 8 (A) An "electronic signature" means any symbol or process intended by an individual 9 signing this Agreement to represent their signature, including but not limited to (1) a 10 digital signature; (2) a faxed version of an original handwritten signature; or (3) an 11 electronically scanned and transmitted (for example by PDF document) version of an 12 original handwritten signature. 13 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed 14 equivalent to a valid original handwritten signature of the person signing this Agreement 15 for all purposes, including but not limited to evidentiary proof in any administrative or 16 judicial proceeding, and (2) has the same force and effect as the valid original 17 handwritten signature of that person. 18 (C)The provisions of this section satisfy the requirements of Civil Code section 19 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, 20 Part 2, Title 2.5, beginning with section 1633.1). 21 (D) Each party using a digital signature represents that it has undertaken and 22 satisfied the requirements of Government Code section 16.5, subdivision (a), 23 paragraphs (1) through (5), and agrees that each other party may rely upon that 24 representation. 25 (E) This Agreement is not conditioned upon the parties conducting the transactions 26 under it by electronic means and either party may sign this Agreement with an original 27 handwritten signature. 28 16 County of Fresno P-23-515 1 13.18 Counterparts. This Agreement may be signed in counterparts, each of which is an 2 original, and all of which together constitute this Agreement. 3 [SIGNATURE PAGE FOLLOWS] 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 County of Fresno P-23-515 1 The parties are signing this Agreement on the date stated in the introductory clause. 2 COMMVAULT SYSTEMS, INC. COUNTY OF FRESNO 3 4 ��#ew Scawai4d4a Gary Cornuelle Digitally signed by Gary Cornuelle Date:2023.09.21 08:45:11-07'00' Andrew Scamardella(Sep 15,202314:34 EDT) 5 Andrew Scamardella Director,Deal Desk&Bid Desk Gary Cornuelle, Purchasing Manager 6 1 Commvault Way Tinton Falls, New Jersey 07724 7 8 9 10 For accounting use only: 11 Org No.: 8905 Account No.: 7309 12 Fund No.: 1020 Subclass No.: 10000 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 11 � k � � k � co � ■ f , 0 o 0 t � t / & t a� 0 a � co -0 0 2 0 CO \ ® / o v 5 ƒ° © o coto / � 0 k co o t 0 t ƒ \ f o f @ n g = o Q m Ul \ k / 06 -6 a ? a g & S o 0 coco 7 R (D uo 6 � CO CD �o ? S U � f $ 3 � f 0 � � t County of Fresno P-23-515 Exhibit A Commvault Product Pricing — Invoice No. 100-092374 CONIN1+AUNT SYSTEMS.INC. COMMVAULT \� Attn Finance Department RITM0032163 I CommvaultW'ay Tinton Falls,NJ 07724 (732)8704000 Accou nts Payable@ commvau ILcom INVOICE#100-092374 Date 9-May-2023 Page 1 of 1 Bill To: County of Fresno Ship To: County of Fresno I.TS.D.-ATTN-Accounts Payable 333 W PONTIAC WAY 333 W PONTIAC WAY CLOVIS CA 93612-5613 CLOVIS CA 93612-5613 US Invoice Information Payment Information Currency US Dollar Bank Details Check Payment Mailing Address: Commvault Svstems,Inc. Terms NET 30 28496 Network Place Chicago.IL 60673-1284 Due Date 8-June-2023 Overnight/UPS Mailing Address: JPMorgan Chase Customer PO# PR 8905210951 Attn:Commvault Systems,Inc Box 29496 131 S Dearborn,6th Floor End User County of Fresno Chicago,IL 60603 CCID F4272 Electronic Pavment: JPMorgan Chase Bank,N.A ABA#021000021 Sales Rep Georgian,Ryan SWIFT code:CHASUS33 Account#691185032 Qty Item Rate Amount 15.03 SB-C-DPF-IT-D-33 2,304.00 34,629.12 CVLT Data Protection Foundation:Per TB 28-June-2021-27-June-2024 12.358 SB-C-DPE-1T-D-33 3,340.80 41,285.60 CVLT Data Protection Enterprise Per TB 28-June-2021-27-June-2024 42.752 SB-cSIM-S-AF-33 921.60 39,40024 CVLT VM B&R Advanced:Per Socket 28-June-2021-27-June-2024 Subtotal 1115,314.96 Tax Total(0%Avg) 0-00 Total USD 115,314.96 All products are shipped electronically.All items listed above are sold separately A-1 County of Fresno P-23-515 Exhibit B CommVault Systems, Inc. End User License and Limited Warranty Agreement CommVault"Software Release 11.0.0 (including Microsoft° SQL Server®2008 Enterprise Edition, Microsoft"' SQL Server"'2008 R2 Enterprise Edition, Microsoft° SQL Server°2012 Enterprise Edition, SQL ServerTm 2008 Express Edition, SQL ServerTm 2008 R2 Express Edition, SQL Server TM2012 Express Edition, SQL ServerTm 2014 Standard Edition and Windows Pre-Installation Environment) End User License Agreement THIS END USER LICENSE AGREEMENT("EULA")IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AS AN INDIVIDUAL OR ENTITY)("YOU")AND COMMVAULT SYSTEMS,INC. ("COMMVAULT")FOR SERVICES PROVIDED BY COMMVAULT,AS WELL AS THE ABOVE- REFERENCED SOFTWARE PRODUCT(S),WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED HARDWARE,MEDIA,AND"ONLINE"OR ELECTRONIC DOCUMENTATION("SOFTWARE").BY INSTALLING,COPYING OR OTHERWISE USING THE SOFTWARE,OR RECEIVING THE SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA,DO NOT INSTALL OR USE THE SOFTWARE AND/OR THE HARDWARE.YOU SHALL INFORM ALL USERS OF THE SOFTWARE OF THE TERMS AND CONDITIONS OF THIS EULA. This EULA,grants You,the user,a non-exclusive license to use the Software(and including any hardware appliance,if applicable)under the terms and conditions stated herein.You agree that all updates, enhancements, maintenance releases,patches,bug-fixes or other modifications to the Software provided to You,on a when and if available basis,shall be governed by the terms and conditions,including the limited warranty,exclusive remedies and limitations of liability provisions,contained in this EULA,or the then-current version of this EULA.This EULA may be amended from time to time by CommVault,in its discretion,and will be made available at www.CommVault.com.Except as otherwise provided herein,the license granted herein shall be perpetual provided You comply with the terms hereof. This EULA shall be in effect until terminated except as expressly otherwise provided herein.You may terminate this EULA at any time by destroying all copies of Software and corresponding documentation.This EULA will terminate immediately without notice from CommVault if You fail to comply with any provision of this EULA.Upon termination,You must destroy all copies of Software in Your possession or control. In the event You license the Software on a temporary,term or subscription basis(the"license period"),Your license to use the Software shall not be perpetual,notwithstanding any conflicting language contained in this EULA.In the event of any such license,Your license shall expire at the end of the license period which shall be as set forth on the applicable ordering document.If no license period is stated,then Your license shall continue on a month to month basis,unless terminated by either You or CommVault.You may be required to periodically re-apply license keys during such license period,which shall be provided by CommVault.Following the license period,You may use a limited recovery version of the Software solely for recovering data stored using the Software during the license period.Maintenance and support services shall only be provided during the license period. You may: (i)use the Software,with the same or lower version number identified herein,in numbers equal to the number of licenses purchased for all items, or in the event You are licensing the Software on a capacity basis,up to the maximum capacity purchased;(ii)make copies of the Software,documentation or other user information accompanying the Software solely for back-up purposes,provided such back-up copies are only utilized as a replacement for the original copy on the same computer that the Software was previously installed;and,(iii)make a copy of or print documentation provided in electronic form for Your internal use only,and You may use CommVault trademarks solely for these purposes,but You must incorporate all patent,copyright,trademark and other notices included on the materials on any copies or partial copies that You make. B-1 County of Fresno P-23-515 Exhibit B You may not:(i)make a copy of any of the Software for any purpose not explicitly permitted herein;(ii)provide commercial hosting services,sell, sublicense,rent,loan or lease the Software to another party,without the prior written consent of CommVault;(iii)except to the extent that such a prohibition is expressly prohibited by law, decompile,disassemble,reverse engineer or modify, in any manner,any of the Software;(iv)transfer or assign Your rights to use the Software;(v)use the Software in violation of applicable local,federal or other laws or regulations; (vi)use the Software for any purpose other than as permitted in this EULA;or,(vii)remove, destroy,erase,alter or otherwise modify CommVault's trademarks. Unless this software is provided to You for beta,demonstration,test,or evaluation purposes or is labeled"Not for Resale"as further described herein,You agree to use the Software solely for Your internal data center operations and to restrict any access to the Software,documentation, or other user information accompanying the Software only to those of your employees having a demonstrable need to have such access for your internal data processing operations.You agree that you shall not permit any access to the Software,documentation,or other user information accompanying the Software to any person engaged in product research,development,support, sales,marketing,or other functions not directly related to your internal data processing operations.You also agree not to use the Software,documentation,or user information accompanying the Software to assist, directly or indirectly,in the development or design of any computer hardware or software program including,but not limited to,a program that provides or is intended to provide or include a similar feature or functionality as the Software,or any conversion utility or aid relating to the Software intended to enable or facilitate a user's conversion from the use of the Software to an alternative program.Any software CommVault and/or its licensors may provide You as part of maintenance and support services are governed by this EULA,unless separate terms are provided. This EULA does not obligate CommVault and/or its licensors to provide any maintenance and support services or to support any Software provided as part of those services.If support services are provided,they shall be provided subject to the terms of this EULA and in accordance with CommVault's then current policies,as such may be amended from time to time.In the event You elect to purchase maintenance and support services,You must purchase such maintenance and support services for all of the licensed Software in Your entire environment. Such maintenance and support services shall begin on the date Software is shipped to You.Personal health information,personal financial information,or any other personally identifiable information is not necessary for CommVault's provision of services.You agree that You will not provide any such information to CommVault. You agree that CommVault and/or its licensors may,for business purposes, collect,process,and use technical information gathered as part of any product maintenance and support services provided to You related to the Software and any other technical information You provide to CommVault provided that such information does not personally identify You.By providing data or information to CommVault,including personal data or information, You hereby consent to CommVault's use, storage or processing of such data or information in the United States(or in any other country in which we operate)for purposes of providing products and/or services to You. All title and intellectual property rights in and to the Software,and any copies You are permitted to make herein,are owned by CommVault and/or its licensors and is protected by United States and other country patent,copyright, trade secret,and other laws and by international treaty provisions. Such licensors,in addition to any other rights or remedies available to them, are third party beneficiaries of this EULA for their respective software and may have the right to enforce such terms against You.This Software is licensed,not sold. The purchase of a license to the Software is final,non-returnable and nonrefundable.Acceptance of the Software occurs upon shipment by CommVault or its licensors.No rights are granted to You other than a license to use the Software upon the terms expressly set forth in this EULA.The structure,sequence, organization and source code of the Software are valuable trade secrets of CommVault and/or its licensors. The export of the Software may be restricted by the export control laws of the United States of America and other countries.You agree to comply strictly with all such regulations and acknowledge that You have the responsibility to obtain licenses to export,reexport, or import Software.This EULA shall be governed by the laws of New Jersey,USA,without regard to any provisions concerning the applicability of the laws of other jurisdictions.You agree that exclusive jurisdiction for any claim or dispute arising out of or in connection with this EULA resides in the courts of New Jersey and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.This EULA is the complete and exclusive statement of Your agreement with CommVault with respect to the subject matter hereof and supersedes all prior agreements. This EULA supersedes all terms and conditions contained in any purchase order,order acknowledgment form,invoice or other business form submitted by You.No advertisements,catalogues or other publications or statements,whether written or oral,regarding the performance of the Software licensed under this B-2 County of Fresno P-23-515 Exhibit B EULA shall form part of this EULA. If any provision of this EULA is held to be invalid or unenforceable by a court of competent jurisdiction,the remaining provisions of this EULA shall remain in full force and effect. In the event You license the Software on a capacity basis,if you exceed the maximum capacity purchased,the Software may cease to operate normally and/or performance may be impaired;provided however that reducing Your usage to the purchased capacity level or purchasing additional capacity will return the Software to its normal operation.Any excess capacity usage above the purchased maximum shall entitle CommVault to invoice You for licensed capacity and maintenance and support amounts owed,and if You fail to pay for the excess usage, CommVault shall be entitled to any self-help or other remedies available.You shall provide CommVault with any usage reports immediately upon request(and You shall not interfere with any automated reporting features)in order to enable CommVault to verify Your capacity usage. In the event that You license the Software by virtue of Your purchase or use of a hardware appliance,this license is limited to the hardware appliance on which the Software was originally shipped,and the Software may not be used on or transferred to any other hardware or appliance.If you have purchased the CommVault hardware appliance,by agreeing to this EULA,you are also acknowledging that you have received,read and agree to accept the hardware warranty terms as separately provided to you together with the hardware appliance. To ensure compliance with this EULA,You agree that upon reasonable notice,CommVault or CommVault's authorized representative shall have the right to inspect and audit Your installation and use of the Software.Any such inspection or audit shall be conducted during regular business hours at your facilities or electronically.Any information obtained during the course of such audit will be used by CommVault solely for the enforcement of CommVault's rights under this EULA and applicable law.If such audits disclose that you have installed,accessed, used,or otherwise permitted access to the Software in a manner that is not permitted by the terms of this EULA, then CommVault may terminate this EULA immediately and You shall reimburse CommVault for any unpaid license fees and all reasonable expenses related to such audit.Nothing in this section shall be deemed to limit any legal or equitable remedies available to CommVault for violation of this EULA or applicable law. Any reports regarding Your use of the Software and any other usage information,results, comments,or suggestions provided by You to CommVault regarding the Software(collectively,the"Feedback")shall be deemed non- confidential to You.By providing Feedback,You grant and assign to CommVault,under Your intellectual property rights and other ownership rights, a worldwide,royalty-free,irrevocable,and non-exclusive license,with the right to sublicense to CommVault licensees and customers,the rights to use and disclose the Feedback in any manner CommVault chooses,and to display,perform,copy,make,have made,use,sell,and otherwise dispose of CommVault's products embodying the Feedback in any manner and via any media CommVault or its licensees choose,without obligation to You.You also agree that the Software may automatically provide certain reports and survey information, including the generation and collection of geolocation data,regarding its use to CommVault and its third-party licensors,and which reporting features You may disable at any time.Any such reports or information shall be used in a manner that does not identify you or shall be kept confidential and used solely by CommVault or its third party licensors for internal purposes. Your agreement to this EULA serves as Your consent to the generation and collection of such reports and information by CommVault and its third-party licensors. To the extent that You may acquire by operation of law or equity,any right,title,or interest, including any intellectual property rights,in or to the Feedback,or any modifications,or developments related thereto,You hereby assign to CommVault Your entire right,title,and interest,including all intellectual property rights,therein and thereto,and agree to execute any necessary documents as reasonably required and requested by CommVault in connection with the foregoing. The above provisions and rights granted regarding title and intellectual property rights associated with the Software and the Feedback shall survive termination of this EULA. You agree that any information provided to You by CommVault,including the Software and related Documentation, shall be considered confidential information.You shall not disclose such confidential information without the prior written consent of CommVault.If the Software is provided to You electronically,You may not request,and CommVault is under no obligation to provide,physical delivery of any Software or media.You agree to be responsible for all taxes and any penalties and/or interest associated with Your purchase or use of the Software.You understand and agree that subsequent Software deliveries may not be eligible for electronic delivery,and in the B-3 County of Fresno P-23-515 Exhibit B event physical delivery is made,You shall be solely responsible for any taxes on that,or any prior,purchase.You represent and warrant that neither You,nor any of Your affiliates,have received any physical media from CommVault containing the Software.In the event that any taxing or governmental authority makes a claim against CommVault for taxes,interest,penalties or other payments related to the delivery and/or purchase by You of the Software,You agree to indemnify and hold CommVault harmless from and against all such claims,proceedings, actions and liabilities associated therewith. All rights not expressly granted hereunder are expressly reserved by CommVault. Software Labeled"Not for Resale"or Provided for Beta,Demonstration, Test,or Evaluation Purposes If the Software is provided to You for beta,demonstration,test or evaluation purposes or is labeled"Not for Resale,"then,notwithstanding anything to the contrary in the EULA: (i)The licenses granted herein shall be for a term of thirty(30)days(the"Evaluation Period")unless otherwise agreed to in writing by CommVault,and CommVault reserves the right to terminate this EULA or any licenses granted hereunder immediately upon written notice at its convenience;(ii)Your use of the Software is limited to use for demonstration,test or evaluation purposes,and You may not resell or otherwise transfer the Software;(iii)You agree to keep confidential and not to disclose or otherwise make publicly available any information related to the Software,including,but not limited to test results,characteristics, and performance of the software;(iv)You agree not to copy the Software and not to provide a copy of the Software to any other party;(v)You agree not to use the Software in a production environment or for production data processing purposes,and that any use of the Software in a production environment or for production data processing purposes is at Your sole risk to backup data and take other appropriate measures to protect Your computer programs and data;and(vi)You agree to immediately,on or before the end of the Evaluation Period,promptly remove,destroy,and erase from computer memory and storage media any installed copy of the Software, and return the Software to CommVault together with all documentation and other materials provided by CommVault.Limited duration licenses,site licenses,beta,evaluation,test or demonstration Software products are delivered"AS IS"without a warranty of any kind.CommVault shall have no obligation to support,maintain,or provide other assistance regarding any limited duration licenses, site licenses, beta,evaluation,test,or demonstration Software products.IF THE SOFTWARE IS PROVIDED TO YOU FOR BETA,DEMONSTRATION, TEST,OR EVALUATION PURPOSES OR IS LABELED"NOT FOR RESALE," IN NO EVENT WILL COMMVAULT BE LIABLE FOR ANY DAMAGES FOR ANY CAUSE OR FOR ANY CLAIM BY BORROWER OR FOR ANY THIRD PARTY CLAIM,INCLUDING BUT NOT LIMITED TO ANY DIRECT DAMAGES,ACTUAL DAMAGES,LOST PROFITS,LOST DATA OR ANY SPECIAL,INDIRECT, INCIDENTAL,OR CONSEQUENTIAL DAMAGES,EVEN IF COMM-VAULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Note on JAVA Support THIS SOFTWARE PRODUCT MAY CONTAIN SUPPORT FOR PROGRAMS WRITTEN IN JAVA.JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED,MANUFACTURED,OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAILSAFE PERFORMANCE,SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS,AIR TRAFFIC CONTROL,DIRECT LIFE SUPPORT MACHINES,OR WEAPONS SYSTEMS,IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH,PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.Microsoft Corporation obligated CommVault to make this disclaimer. Limited Warranty With the exception of Software provided to You for beta,demonstration,test or evaluation purposes or that is labeled"Not for Resale",CommVault warrants that the Software licensed hereunder shall be new and shall operate substantially in accordance with its user documentation for a period of ninety(90)days from the date of shipment by CommVault or its licensors(hereinafter the"Warranty Period").If,during the Warranty Period,You believe any Software product to be defective,You must immediately notify CommVault in writing and follow CommVault's instructions regarding the return of such Software.Nothing in this EULA is intended to exclude,restrict or modify any rights that You may have under any applicable legislation,which may not be excluded,restricted or modified by agreement(hereinafter the"non-excludable statutory rights").Except in relation to any non-excludable statutory rights which may not be restricted or modified by agreement,CommVault's sole liability to You,and Your sole B-4 County of Fresno P-23-515 Exhibit B remedy, shall be,at CommVault's option,(i)repair or replacement of the Software product which does not comply with this Limited Warranty,or(ii)return of the amount paid by You for the Software product which does not comply with the Limited Warranty.In the event CommVault determines that the Software product is in compliance with this Limited Warranty,You shall pay the cost of all charges associated with the inspection and shipment of such Software product by CommVault. The user documentation is the exclusive statement of performance of the Software licensed hereunder. CommVault warrants that any services provided by CommVault shall be performed by competent personnel of CommVault's and shall be of professional quality consistent with generally accepted industry standards for the performance of such services. The following four sentences only apply if You purchased CommVault Software in Australia and You are a `consumer'under the Australian Consumer Law: CommVault's Software comes with guarantees that cannot be excluded under the Australian Consumer Law.You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.You are also entitled to have the Software repaired or replaced if the Software fails to be of acceptable quality and the failure does not amount to a major failure. If You have an enquiry or You wish to claim under this Limited Warranty,please contact CommVault. Disclaimer COMMVAULT DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE.THE LIMITED WARRANTIES PROVIDED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES.COMMVAULT AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,EITHER IN FACT OR BY OPERATION OF LAW,STATUTORY OR OTHERWISE,AND COMMVAULT AND ITS LICENSORS EXPRESSLY EXCLUDE AND DISCLAIM ANY WARRANTY OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE,LACK OF VIRUSES OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.THE PROVISIONS SET FORTH ABOVE STATE COMMVAULT'S AND ITS LICENSORS'ENTIRE RESPONSIBILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF ANY WARRANTY. Limitation of Liability NEITHER COMMVAULT,NOR ANY OF ITS LICENSORS,WILL,UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY OTHER PARTY,FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES,LOST PROFITS,LOSS OF INFORMATION OR DATA OR ANY OTHER SPECIAL,INCIDENTAL,PUNITIVE,INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER OR FOR DEATH,PERSONAL INJURY OR DAMAGE TO PHYSICAL PROPERTY OR ENVIRONMENTAL DAMAGES,REGARDLESS OF THE FORM OF ACTION,EVEN IF COMMVAULT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF THIS LIMITED WARRANTY. IN THE EVENT COMMVAULT OR ITS LICENSORS ARE SUBJECT TO ANY LIABILITY IN CONNECTION WITH THE SOFTWARE PRODUCTS OR ANY SERVICES FOR ANY REASON WHATSOEVER,WHETHER ARISING FROM NEGLIGENCE,BREACH OF CONTRACT OR OTHERWISE,NEITHER COMMVAULT'S LIABILITY NOR THE LIABILITY OF ITS LICENSORS SHALL EXCEED THE SUM PAID BY YOU TO COMMVAULT FOR THE SOFTWARE PRODUCT WHICH WAS FOUND TO HAVE NOT COMPLIED WITH THE LIMITED WARRANTY.THIS LIMITATION SHALL APPLY EVEN IF COMMVAULT OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY. These terms and conditions,warranties,limitations and remedies contain an allocation of risk between You and CommVault.Accordingly,CommVault's prices reflect such allocation of risk.Because some jurisdictions restrict the ability to exclude implied warranties,limit or exclude incidental or consequential damages or limit liability,the foregoing limitations and exclusions may not apply to You. B-5 County of Fresno P-23-515 Exhibit B United States Government and DOD This article applies to all acquisitions of this Software by or for the Federal Government.By accepting delivery of this Software,You hereby agree that this software qualifies as"commercial computer software"as that term is used in the acquisition regulation(s)applicable to this procurement. The terms and conditions of this EULA shall pertain to the Government's use and disclosure of this Software,and shall supersede any conflicting contractual terms and conditions.If this EULA fails to meet the Government's minimum needs or is inconsistent in any respect with Federal procurement law,the Government agrees to return this software,unused,to CommVault. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein.All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with"Restricted Rights" as provided for in FAR,48 CFR 52.227-14(JUNE 1987)or DFAR,48 CFR 252.227-7013 (OCT 1988),as applicable. The following paragraph is applicable only to CommVault 1-Touch products containing Microsoft Windows Pre- Installation Environment(WinPE)software: (i)The license for the CommVault 1-Touch product is limited to its use as a boot,diagnostic,disaster recovery, setup,restoration,emergency services,installation,test and/or configuration utilities program and not for use as a general purpose operating system or a fully functional version of any operating system product;(ii)the WinPE software is provided"as is";(iii)the 1-Touch products,by virtue of the inclusion of WinPE,contain a security feature that will cause the computer system to reboot without prior notification to You after 24 hours of continuous use;(iv)neither Microsoft nor any Microsoft affiliate shall have any liability related to the 1-Touch or the WinPE products;and(v)all customer support issues will be handled solely by CommVault. The Software may contain certain software licensed by Microsoft to CommVault.This Software incorporates Microsoft SQL Server 2014 Standard Edition,Microsoft requires that Your use be subject to the terms of their End- User License Agreement,located here http://documentation.CommVault.com/CommVault/vll/article?p=features/misc/ms_Sgl_server_eula.httn.You warrant that You are not licensing Microsoft products under this EULA and that any copies of Microsoft software that You receive from CommVault as a result of licensing the Software do not entitle You to maintain on Your computer systems any more copies of Microsoft software than you may have previously licensed from Microsoft or other third parties.Microsoft is an intended third party beneficiary of this EULA with the right to enforce warranties and any other provision of the EULA and to verify Your compliance with same. If You license or otherwise use any Lucidworks software(the"Lucidworks Software"),then the following additional terms and conditions apply solely with respect to Your use of the Lucidworks Software:Lucidworks,Inc. ("Lucidworks")is an intended third party beneficiary of this EULA with the right to enforce warranties and any other provision of the EULA to verify Your compliance with the same.Your use of the Lucidworks Software shall be strictly limited to any subscription period You purchase to license the Lucidworks Software and any renewals thereof.Only You may directly use or access the Lucidworks Software;provided,however,that if You are a service provider,You shall not be restricted from providing access to the output resulting from Your use of the Lucidworks Software to your customers.Lucidworks and its licensors own and retain all right,title and interest in the Lucidworks Software,and any improvements or derivative works thereof. You shall not:reverse engineer, decompile or otherwise attempt to learn the source code of the Lucidworks Software;or combine or distribute the Lucidworks Software with any software that is licensed under terms that seek to require that any of the Lucidworks Software be provided in source code. The Software may contain certain software licensed by third parties to CommVault. Such licensors are intended third party beneficiaries of this EULA with the right to enforce warranties and any other provision of the EULA and to verify Your compliance with same. Certain software components are subject to the end user license agreement located at www.redhat.com/licenses/eulas.Your use of these components of the Software are subject to the terms and conditions set forth therein. Portions copyright© 1991,2011 Oracle and/or its affiliates.All rights reserved. B-6 County of Fresno P-23-515 Exhibit B The Software may contain Data Files of IBM Lotus Domino©Copyright IBM Corporation 2007.All Rights Reserved. Portions copyright 1992-2010 FairCom Corporation. Trademark Acknowledgment CommVault,CommVault and logo,the"C hexagon"logo,CommVault Systems, Solving Forward, SIM,Singular Information Management, Simpana,the"Simpana"logo,CommVault Galaxy,Unified Data Management,QiNetix, Quick Recovery,QR,CommNet,GridStor,Vault Tracker,InnerVault,QuickSnap,QSnap,Recovery Director, CommServe,CommCell,ROMS,IntelliSnap and CommValue are trademarks,and may be registered trademarks,of CommVault Systems,Inc.By using any of the CommVault trademarks as authorized herein, in whole or part,You agree to be bound by the then-current CommVault Trademark Guidelines located at www.CommVault.com/trademarks.All other third party brands,products,service names,trademarks,or registered service marks are the property of and used to identify the products or services of their respective owners. Patent Acknowledgment This Software is patented: see www.CommVault.com/legal-notices for information about the patents and patents pending covering this Software. Copyright Acknowledgment ©1997-2018 CommVault Systems,Inc.All rights reserved. B-7 County of Fresno P-23-515 Exhibit C Insurance Requirements 1. Required Policies Without limiting the County's right to obtain indemnification from Commvault or any third parties, Contractor, at its sole expense, shall maintain in full force and effect the following insurance policies or a program of self-insurance, including but not limited to, an insurance pooling arrangement or Joint Powers Agreement (JPA) throughout the term of this Agreement. (A) Commercial General Liability. Commercial general liability insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence and an annual aggregate of Two Million Dollars ($2,000,000). This policy must be issued on a per occurrence basis. Coverage must include completed operations, products liability, contractual liability, Explosion-Collapse-Underground, fire legal liability or any other liability insurance deemed necessary because of the nature of this contract. (B) Automobile Liability. Automobile liability insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages. Coverage must include any auto used in connection with this Agreement. (C)Workers Compensation. Workers compensation insurance as required by the laws of the State of California with statutory limits. Commvault shall obtain endorsements to the Commercial General Liability insurance naming the County of Fresno, its officers, agents, and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned. Such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by the County, its officers, agents and employees shall be excess only and not contributing with insurance provided under Commvault 's policies herein. This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written notice given to the County. If Commvault maintains broader coverage and/or higher limits than the minimums shown above, the County requires and shall be entitled to the broader coverage and/or higher limits maintained by Commvault. (D) Technology Professional Liability (Errors and Omissions). Technology Professional Liability (Errors and Omissions) Insurance appropriate to Commvault's profession, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Commvault in this agreement and may include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy may provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. (E) Cyber Liability. Cyber Liability Insurance, with limits not less than $1,000,000 per occurrence or claim, $1,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Commvault in this agreement and may include, but not be limited to, claims involving infringement of intellectual C-1 County of Fresno P-23-515 Exhibit C property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy may provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. 2. Additional Requirements (A) Additional Insured Status. The County, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Commvault including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Commvault's insurance. (B) Primary Coverage. For any claims related to this contract, Commvault's insurance coverage shall be primary insurance coverage as respects the County, its officers, officials, and employees. Any insurance or self-insurance maintained by the County, its officers, officials, employees, or volunteers shall be excess of Commvault's insurance and shall not contribute with it. (C) Verification of Coverage. Upon request, Commvault shall furnish the County with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the County before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Commvault's obligation to provide them. The County reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Within 30 days after Commvault signs this Agreement, and at any time during the term of this Agreement, Commvault shall provide certificates of insurance and endorsements as stated above for all of the foregoing policies, as required herein, to the County of Fresno as requested by the County's Risk Manager or the County Administrative Office, Commvault shall deliver, or cause its broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th Floor, Fresno, California 93721, or HRRiskManagement@fresnocountyca.gov, and by mail or email to the person identified to receive notices under this Agreement, certificates of insurance and endorsements for all of the coverages required under this Agreement. i) Each insurance certificate must state that: (1) the insurance coverage has been obtained and is in full force; (2) the County, its officers, agents, employees, and volunteers are not responsible for any premiums on the policy. ii) In the event Commvault fails to keep in effect at all times insurance coverage as herein provided, the County may, in addition to other remedies it may have, suspend or terminate this Agreement. All policies shall be issued by admitted insurers licensed to do business in the State of California, and such insurance shall be C-2 County of Fresno P-23-515 Exhibit C purchased from companies possessing a current A.M. Best, Inc. rating of A FSC VII or better. (D) Claims Made Policies. If any of the required policies provided claims made coverage, the Retroactive Date must be shown, and must be before the date of the contract of the beginning of contract work. (E) Acceptability of Insurers. All insurance policies required under this Agreement must be issued by admitted insurers licensed to do business in the State of California and possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no less than A: VI I. (F) Notice of Cancellation or Change. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the County. (G)Special Risks or Circumstances. The County reserves the right to request modifications to these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. (H) Waiver of Subrogation. Commvault hereby grants to County a waiver of any right to subrogation which any insurer of said Commvault may acquire against the County by virtue of the payment of any loss under such insurance. Commvault agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the County has received a waiver of subrogation endorsement from the insurer. (1) Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the County. (J) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the County. The County may require Commvault to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. C-3