HomeMy WebLinkAbout2023-12-01 ApexDIGITAL UMBRELLA SERVICE AGREEMENT
This Service Agreement (“Agreement”) is made by and between Apex Technology Management, Inc.(“APEX”) with offices at 310 Hemsted Dr., Redding, CA 96002, and , with offices at the address below. (Client)
AGREEMENT EFFECTIVE DATE:
SERVICE FEES AND TERM OF AGREEMENT BEGIN THE LATER OF FIVE (5) DAYS AFTER DATA PROTECTION DEVICE SHIPS, OR THE DATE OF THE AGREEMENT (“EFFECTIVE DATE”).
TERM:
The agreement will automatically renew at the same Term unless terminated with thirty (30) days written notice prior to the end of the Term.
BILLING:
SERVICE
•RETENTION:
•SERVERS:
•VM HOSTS:
•NATIVE DATA PROTECTION:
•INCREASED OPTIONAL ENCRYPTION (*)
•TOTAL STORAGE ALLOTMENT (with retention):
(*) Consists of job level independent encryption, with key, and requires a minimum of 10Mb upload bandwidth. To ensure backup upload does not impact the production network environment, the client is advised to purchase a separate internet connection specifically for Digital Umbrella.
MONTHLY RECURRING FEE:
The Monthly Recurring Charges are based upon the current number of devices being backed up and the storage space allotment for the backed up devices, as described in the Exhibits of this Agreement. As a matter of course, Apex may adjust automatically and recalculate the Monthly Recurring Charges to adjust for additions or removals of devices, as listed on the Exhibits of this Agreement. Systems removed from the network may not automatically be removed by Apex's auditing tool for up to 120 days, therefore it is the Client's responsibility to notify Apex if a Workstation or Server has been removed so that the monthly fee can be adjusted accordingly.
Units (a) Monthly Fee Per Unit (c)
1 Unit (b) $ 175
2 Units - 10 Units $ 125
11 + Units $ 80
(a)1 Unit is equal to 1 Server and a Total of 500GB of Cloud Storage.(b)Apex has a Starter Tier for Smaller Clients which includes up to 2 Servers and up to a Total of 500GB of Cloud Storage(c) Monthly Fee Per Unit may be subject to change.
The Digital Umbrella Service Agreement constitutes the complete and exclusive understanding of the Parties in relation to the Backup and Recovery Services provided, and supersedes all prior Sales Proposals, Negotiations, Representations, Communications and Agreements, with the exception of any Apex Total Support Agreement, whether oral or written. The Parties agree that if the Customer has or enters into an Apex Total Support Agreement, nothing in this Agreement shall alter, interfere with, or cancel either Parties Rights or Responsibilities under the Apex Total Support Agreement between the two Parties. If there is any conflict between the Terms and Conditions of any other Purchase or Sales document and the Terms and Conditions of the Digital Umbrella Service Agreement, the Digitial Umbrella Service Agreement shall control. The Agreement may be modified, replaced or rescinded only in a writing signed by a duly authorized representative of each Party.
Apex Technology Management, Inc. 310 Hemsted Drive Redding, CA 96002 USA Name:Matthew FristoeTitle: Chief Operating Officer
____________________________________ ____________________________________ Signature Date Signature Date
GB
GB
Client:
City, State Zip:Address:
Name:
Title:
Town of Tiburon
Town of Tiburon
12/1/2023
1 YEAR: This Agreement is in effect for one (1) year from the Effective Date.
Service Fees Paid Monthly
31 Daily and 13 Monthly Backups
9
1
2700
No
5500
687
1505 Tiburon Blvd
Tiburon, CA 94920
Greg Chanis
City Manager
Jan 2, 2025
TERMS AND CONDITIONS
Provision of Services.1.1 Subject to the terms and conditions of the Agreement and the attached Exhibits, Apex hereby agrees to provide to Client during the term of this Agreement the Apex Digital Umbrella Service, consisting of automated off-site data protection services described in the Agreement and the attached Exhibits in connection with Client’s use of the Data Protection Device and Digital Umbrella Software.1.2 See the attached Exhibits for Service Levels
and Features.1.3 Apex agrees to hold confidential all of Client’s
data in its possession exercising the same degree of care and practices that Apex would exercise with similar data of
its own. Apex will implement reasonable security environmental precautions to promote an appropriate level of
system availability and data protection and recovery. Client Obligations.
2.1 Client will utilize regular backups using the Digital Umbrella Software which is embedded in the Data
Protection Device to hardware that Digital Umbrella owns and maintains. Client will report any errors in executing such
backups promptly by entering them in the support portal, or via e-mail to Apex. Client will arrange for and maintain
communication services used to connect to Digital Umbrella’s Data Center. Client is responsible for any
communication costs associated with the connection between Client’s site and Digital Umbrella’s Data Center.
Client shall implement reasonable security and environmental precautions to ensure a high level of system
availability and data protection and recovery.2.2 Client covenants and agrees that Client shall
not knowingly place any data in Digital Umbrella’s off-site storage that (i) infringes the intellectual property rights or
privacy rights of any third party, (ii) violates any law, statute, ordinance or regulation, (iii) is defamatory, libelous,
unlawfully threatening or harassing, (iv) is obscene, or contains any viruses, Trojan horses, worms, time bombs,
cancel bots or other programming routines that are intended to or have the effect of damaging, detrimentally interfering
with, surreptitiously intercepting or expropriating any system, data or personal information.
2.3 After setting up Digital Umbrella, it is the Client’s responsibility to notify Apex in the event of any major
changes that could impact the performance of the infrastructure environment. The following Client change
examples will impact the ability for the environment to be accessible; Change of ISP or local area networking (which
could impact site to site connectivity or firewall rules), Modification to firewall rules disallowing public or private
access, Significant modifications in backup sizes, additions or removal of servers being backed up.
2.4 Client acknowledges that Apex's provision of the Digital Umbrella Services does not include the
requirement or option to purchase the hardware or software utilized in connection with the Digital Umbrella Services,
during or after termination of this Agreement. Client will report any errors that it becomes aware of in executing such
backups promptly by phone or email to Apex. Client acknowledges that it is responsible for providing sufficient
Internet upload bandwidth to ensure the timely and
successful transfer of backup data using the Backup and Replication software from Client's site to Apex's offsite data center and that Client may need to purchase additional bandwidth, depending on the growth of Client's data and
other factors that may influence the size of the backup image files. Furthermore, by not providing sufficient upload
bandwidth and/or reliable internet connectivity, Client acknowledges that assisted export or the ability to recover
data from the off-site copies of its backup image files residing at a U.S. based highly secure offsite data center may be
impacted and may require an export. Client further agrees to implement reasonable security and environmental precautions to ensure a high level of system availability for data protection and recovery. Client is required to maintain
an environment that is free from network or physical failures including power loss, network hardware (server, switch,
routers, and firewall) failures as all of these issues will affect the quality and integrity of the backup data. In the event that any of the above occurs, Client is required to notify Apex. In addition, Client is also required to let Apex know if
applications or operating systems on the protected servers are being significantly changed as such changes may impact
the quality and integrity of the backup data. 2.5 Client agrees not to (a) modify, adapt, alter, translate, or create derivative works from the Digital Umbrella Services; (b) merge the Digital Umbrella Services with other
software; (c) sublicense, lease, rent, loan, or otherwise transfer the Digital Umbrella Services to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Backup software; (e) use the Digital Umbrella Services to process data orprovide any service bureau activity for any third party; or (f)
otherwise use or copy the Digital Umbrella Services unlessexpressly allowed under this Agreement.2.6 Client acknowledges that Apex must have access to any and all Client systems and resources involved to perform its duties under this agreement. As such, Apex must have access to various Client user IDs and passwords used on the Client's Windows domain, including administrative passwords. Bear in mind that the backup data will always be encrypted and not accessible to anyone who does not have the restore encryption password. If this encryption password is lost, the backup data will be inaccessible 3.Price and Payment Terms.3.1 Client shall pay to Apex the Monthly RecurringFee and the billed expenses described in the Agreement.Fees shall be invoiced to Client monthly in advance andpayment shall be due on or before the due date of fifteen (15)days after the invoice date. Services may be suspended ifpayment is not received within fifteen (15) days following thedue date. Invoices are prepared on a calendar month basis.3.2 Apex may charge a late fee on delinquentpayments from the date such amounts were due until paid, ata rate equal to the lesser of (a) the maximum amountchargeable by law, or (b) 1½% per month. In addition, Clientshall be liable for Apex’s costs of collection, includingreasonable attorneys’ fees.
3.3 Apex fees are exclusive of any sales, use, excise, value-added, or similar taxes, and exclusive of any duties or fees payable on the delivery of the Digital Umbrella Service in countries other than the United States. Any such taxes, duties, or fees that are required to be levied shall be added to the Apex Digital Umbrella invoice or paid directly by
Client. 3.4 Unless otherwise waived by Apex herein, Client agrees to pay a one-time data seed/upload/installation charge relating to initialization of the Digital Umbrella Services. Apex will invoice Client once data migration/installation is complete.
3.5 Apex will perform periodic audits of the Total Storage Allotment to adjust for growth in the Total Storage Allotment of Digital Umbrella off-site storage for retention. Additional storage can be increased based on requirements
and automatic repository disk space increases when usage exceeds 90% of allocated space (regular rates apply).
3.6 Labor for services related to a data export will be billed separately if these services are not covered under an Apex Total Support Agreement between the Parties. Recovery or data export of up to 5GB of data per month is
included in the Monthly Recurring Charge. Recovery or data export in excess of 5GB and less than 5TB will be billed an
export fee of $500 for each export. Recovery or data export in excess of 5TB will be billed an export fee of $500 for each
export and additional applicable data fees at the time of export. 4.Warranty Disclaimer and Limitation of Liability.4.1 Client acknowledges that it is responsible for
determining whether the Digital Umbrella Service isappropriate for Client’s data protection needs. Apex’s solewarranty is that the Digital Umbrella Service shallsubstantially comply with any standard specificationsprovided in writing by Apex. Client's sole and exclusiveremedy, and Apex’s entire liability under this Agreement shall
be limited to the following: (i) Apex shall use reasonablecommercial efforts to correct any substantial non-compliancewith the above warranty; (ii) if such non-compliance cannotbe corrected after using commercially reasonable efforts,
Client may terminate the Agreement and receive a refund ofany amounts paid since the time of the non-compliance.4.2 Client agrees to indemnify, defend, and holdharmless Apex, its directors, officers, agents and employeesfrom any claim, liability, loss, injury, damages or attorney feesor costs, arising out of the performance of this Agreement.
4.3 Except for the limited warranty in Section 4.1above, Apex makes no warranties, express, implied orstatutory, regarding the Digital Umbrella service, the dataprotection device or the Digital Umbrella software, including
warranties of merchantability and fitness for a particularpurpose and non-infringement. Client acknowledges it has
relied on no warranties with respect to the Digital Umbrellaservice, the data protection device or the Digital Umbrellasoftware in entering into this agreement.4.4 In no event will Apex be liable for any
consequential, indirect, exemplary, special or incidentaldamages, including any lost data and lost profits, arising from
or relating to the agreement. In no event shall Apex’s totalcumulative liability in connection with the agreement exceedthe amount of fees and amounts paid by Client under theagreement during the preceding six (6) month period prior to
the date the cause of action arose. Client acknowledges that the amounts paid under the agreement reflect the allocation of risk set forth in the agreement and that Apex would not enter into the agreement without these limitations on its
liability. 4.5 All other warranties, of any type, whether
express or implied are hereby disclaimed and Client acknowledges they are waiving the enforcement of any such warranties as to Apex by entering into this agreement. 5.Term and Termination.5.1 The Agreement shall have the term as specifiedin the Service Agreement. The Agreement shall
automatically renew at the end of the term unless Clientprovides Apex with 30 days written notice of termination.
5.1.1 Either Party may terminate thisAgreement (i) upon the occurrence of a material breach of a
material provision of this Agreement (other than a failure topay) if such breach is not cured within thirty (30) days of
written notice; (ii) upon the other party’s filing a petition inbankruptcy, being adjudicated bankrupt, not dismissing a
petition in bankruptcy that is filed against it within thirty (30)days of filing, the other party becoming insolvent, the other
party making an assignment for benefit of creditors, or areceiver is appointed for the other party.5.1.2 In the event of a failure by Client tocomply with its payment obligations, APEX may terminatethis Agreement and the licenses granted hereunder upon 5days notice of breach and Client’s failure to pay all amountsdue and outstanding.5.2 Upon termination, Client shall promptly pay anyamounts due and owing to Apex, return the Digital UmbrellaSoftware as instructed by Apex and at client’s expense, andif Digital Umbrella Software has been installed by Apex on acomputer device other than the Data Protection Device,deinstall the Digital Umbrella Software and at Apex’s solediscretion, either destroy or return all Software copies anddocumentation. Client shall certify to Apex in writing withinfive (5) business days of a termination notice that Client hascomplied with this Subsection 5.2 and that no DigitalUmbrella Software is being used or retained on any computeror storage device.5.3 Upon termination or expiration of thisAgreement for any reason, all rights granted in thisAgreement will immediately cease to exist, any Client backupimages residing at a U.S. based highly secure offsite datacenter will be destroyed, and Client must promptlydiscontinue all use of the Digital Umbrella Services, and anyApex provided backup software; erase all copies of anyApex-provided backup software from Client's systems. Apexwill provide Client with a copy of the backup images that existat the time of termination or expiration of this Agreement inthe data center, provided that Client makes available anexternal, portable storage device with sufficient free storagespace within 10 days of request of delivery. Labor forservices related to a data export will be billed separately ifthese services are not covered under an Apex Total SupportAgreement between the Parties. Recovery or data export ofup to 5GB of data per month is included in the MonthlyRecurring Charge. Recovery or data export in excess of 5GBand less than 5TB will be billed an export fee of $500 for eachexport. Recovery or data export in excess of 5TB will bebilled an export fee of $500 for each export and additional
applicable data fees at the time of export. 5.4 At no time shall a disaster constitute a reason for terminating this Agreement. Client acknowledges that many factors contribute to an ability to successfully recover data from any backup system and further agrees that Apex cannot guarantee the recovery of any data backed up
by Backup and Replication software and that any assistance provided by Apex in recovering data is provided on a best-effort basis. In some cases, the original Client data may already be corrupted and Apex cannot take ownership as to the quality or state of the recovered data. Client's covered servers will be categorized in accordance with the degree to
which each server is critical to Client's business. 5.5 Client may cancel Services or any portion thereof upon written notice to Apex identifying the affected Services ("Cancellation Notice"). If Client provides Apex with
a Cancellation Notice, Client shall pay Apex a cancellation charge equal to the sum of: (i) a termination charge; and (ii)
if not recovered by the foregoing, any termination liability payable by Apex to other parties resulting from the cancellation. The termination charge shall be equal to the sum of: 100% of the remaining monthly recurring charges for
Services through the Term. Client hereby acknowledges that the above charges are a genuine estimate of Apex's actual
damages and are not a penalty. 5.6 Upon termination or cancellation of this
Agreement by Client, it is Client's sole responsibility to switch to a new service provider and pay for all costs associated
therewith. 5.7 APEX agrees that upon termination, all data of
Client, including any data maintained in a Digital Umbrella datacenter, shall be removed and deleted.
5.8 The provisions of Sections 1.3, 3, 4, 5 and 6 shall survive the termination of this Agreement. 6.General.6.1 Neither the Agreement nor any license
hereunder may be assigned (whether by operation of law orotherwise) by Client without Apex’s prior written consent.6.2 This Agreement may be executed in one ormore counterparts, each of which will be deemed to be anoriginal copy of this Agreement and all of which, when takentogether, will be deemed to constitute one and the sameAgreement.6.3 As part of the provisioning of the DigitalUmbrella and Cloud Connect Services, Backup andRecovery software must be installed on Client's systems.
Subject to the term and conditions of this Agreement, Apexcan provide the Client a limited, non-exclusive,nontransferable license, without the right to sublicense, toinstall and execute on their system solely in connection withApex's provision of the Digital Umbrella and Cloud ConnectServices. All rights not specifically granted to Client herein
are expressly reserved by Apex.6.4 Client understands that Apex has made asignificant investment in hiring and training outstandingpersonnel and likewise, Apex understands that the Client has
done the same for the Client's employees. Therefore, duringthe term of this Agreement and for a period of one (1) year
thereafter, neither party shall employ nor solicit foremployment, either directly or indirectly (whether as anemployee, independent contractor, consultant or otherwise),any person who is a current employee of the other party or
who has been employed by the other party, for a period of one (1) year after last date of employment, unless acceptable
to both Apex and Client. Client and Apex agree that failure to abide by this section will cause financial damage to the other
party in an amount equal to at least one (1) year of compensation for the person, based on the rate paid by the
first party. 6.5 Except as provided in Section 4, the parties’ rights and remedies under the Agreement are cumulative. Apex shall be entitled to seek injunctive relief (without the
requirement of posting a bond) with regard to any breach by Client (other than a breach for failure to pay).
6.6 The Agreement is the entire agreement of the parties and supersedes all previous and contemporaneous communications, representations, or agreements regarding the subject matter hereof. The
Agreement may be modified only in writing signed by both parties. Waiver of any breach or failure to enforce any term of the Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any other part or provision of this Agreement. 6.7 Nothing in this Agreement shall alter, interfere with, or cancel either Parties rights, obligations or
responsibilities under any existing Apex Total Support agreement or arrangement between the Parties.
6.8 Neither party shall be held liable for any damages or penalty for delay in the performance of its obligations hereunder (other than Client’s obligation to make payments under the Agreement) when such delay is due to
the elements, acts of God or other causes beyond its reasonable control. 6.9 If Client is a branch or agency of the United States Government, the following provision shall apply. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or
otherwise, all Digital Umbrella Software and accompanying documentation provided by APEX are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the US. Government shall be governed solely by the terms of the Agreement and shall be prohibited except to the extent expressly permitted by the terms of the Agreement. 6.10 This Agreement shall be deemed made in Redding, California. This Agreement shall be governed by and construed in accordance with the laws of the State of California and each party hereby irrevocably submits to venue and personal jurisdiction in the State court for Redding, California, or the Federal Court in Redding, California in any action or proceeding arising out of, or relating to, this Agreement and its enforcement, and agrees that all claims in respect of any such action or proceeding may be heard and determined in either such court. If any legal proceeding is commenced for the purpose of interpreting or enforcing any provision of this Agreement, at law or in equity, including any proceeding in the United States Bankruptcy Court, the prevailing party shall be entitled to
recover attorney’s fees incurred in such proceeding, or any appeal thereof, to be set by the court without the necessity of hearing testimony or receiving evidence, in addition to the costs and disbursements allowed by law. 6.11 The agreement shall be governed by and construed under the laws of the State of California excluding
its conflict of law rules. It shall not be governed by the United Nations Convention on the International Sale of Goods, the application of which is expressly excluded. The exclusive jurisdiction and venue of any action with respect to this agreement shall be the Superior Courts of Shasta County or the United States District Court for the Northern District of
California and each party submits itself to the jurisdiction of such courts. 6.12 The agreement constitutes the complete and exclusive understanding of the Parties, and supersedes
all prior proposals, negotiations, agreements and other representations or communications, whether oral or written.
If there is any conflict between the terms and conditions of any other document and the terms and conditions of the agreement, the agreement shall control. The agreement may be modified, replaced or rescinded only in a writing signed by
a duly authorized representative of each Party.
EXHIBIT ADescription of Features and Services
Description of Included Services:
Services listed below and provided on devices listed in Exhibit B of this agreement will be provided to the Client during Apex Normal Business Hours as part of this agreement.
Initial Rollout Services May Include:
Configuration of VMware Operating System on BDR Host
Configuration of out of band management on BDR Host
Deploying Digital Umbrella virtual appliance with the following:
•Backup and Recovery software,
•Cloud Connect and
•WAN acceleration software
•Encrypted storage disks with AES 256 bit encryption
Deploying encrypted cloud repository and encrypted tunnel between local and cloud sites
Configuring monitoring and email alerting
Seed process (if necessary)
Services and Scheduled Maintenance:
Apex will make its “best efforts” to ensure that schedule maintenance will not result in the interruption of Services. If
schedule maintenance requires Services interruption, Apex intends to provide affected Clients with digital notice prior
to the maintenance period and work with Client to minimize such interruptions. However, there may be unforeseen
situations whereby emergency and critical maintenance actions need to be taken with very short notice periods.
Apex will log all restore requests from the Client. Apex will attempt to resolve issues relating to the Backup and
Offsite cloud storage software and services that are related to both local and cloud based software based issues. All
troubleshooting efforts of issues related to Non-Digital Umbrella and Cloud Connect software are not covered under
this service agreement and may be billable separately at Client's standard rates in accordance with the terms of an
Apex Total Support Agreement. Backup monitoring services will be provided during business hours with email alerts
for failed backup jobs, free disk space less than 5% and Host Hardware health.
Backup and Disaster Recovery software:
Backup and Recovery software availability is specifically based upon the number of systems listed in this Agreement.
Every system that requires backup protection must be included and listed on this agreement.
As part of the provisioning of the Digital Umbrella Services, Backup and Recovery software will need to be installed
on Clients systems that are not currently virtualized. Subject to the term and conditions of this Agreement, Apex can
provide the Client a limited, non-exclusive, nontransferable license, without the right to sublicense, to install and
execute on their system solely in connection with Apex’s provision of the Digital Umbrella Services. All rights not
specifically granted to Client herein are expressly reserved by Apex.
Passwords:
Apex will store Client required domain credentials required for backups in a secure encrypted format on Apex
password management security software
Cloud Connect software:
With Cloud Connect, all data is stored at a U.S. based highly secure, SOC 1 and SOC 2, HIPAA, and PCI compliant
off-site data center. All data is fully encrypted during offsite replication using SSL (Secure Socket Layer) 3.0.
Encrypted traffic to transfer backups from local to cloud storage
Built-in WAN Acceleration, with global caching, variable block length data fingerprinting, traffic compression and
multi-thread TCP/IP protocol optimizations significantly reduces bandwidth requirements.
EXHIBIT A
WAN Acceleration:
host-based agents to install, no special network setup required, and no general-purpose WAN accelerator appliance to purchase and deploy specifically for copying Client's VM backups offsite.
Backup Appliance:
Virtual Windows Operating system with local storage allocated from client hardware
Memory and Disk allocation are allocated based on backup host hardware
Encrypted storage volumes with AES 256 bit encryption
Secure Offsite Storage hosted at security hardened data center:
Encrypted offsite at rest storage with AES 256 bit encryption
United States based highly secure Data Center storage meets a broad set of industry-specific compliance standards,
such as ISO 27001, HIPAA, FedRAMP, SOC 1 and SOC 2.
Offsite storage allotment and increases:
Offsite storage allotment is in relation to monthly service amount. Additional storage can be increased based on
requirements and automatic repository disk space increases when usage exceeds 90% of allocated space (regular
rates apply and increase will result in additional monthly charges)
Digital Umbrella Client Portal:
Web based access to manage account and access cloud storage statistics and account status
Client entitled to one cloud based user account per account
Support Escalation During Normal Business Hours:
Apex will respond to Client’s service requests by prioritizing based on the impact to the Client’s business operations
and Client’s existing Total Support Contract. Service requests must be submitted to Apex by Client's designated
Contact Person(s) and must be submitted using any of the following methods:
•Via email to service-request@apex.com
•Online to our Managed Services Client Portal website at www.apex.com/support-portal
•Or via telephone by calling our Remote Operation Center at (530) 248-1041 or (800) 310-2739
Each service request will be assigned an Apex service ticket number for tracking. Our escalation process is started
when the service ticket is created by any of the above submission processes.
Instant Server Failover:
Assuming the BDR Host(s) have sufficient resources servers, production servers that are being successfully
protected/backed up can be recovered on the BDR Host within a few minutes to the last good backup restore point
Disaster Recovery Process: In the event that the end-user determines it is necessary to retrieve a particular backup, there is an immediate need to contact Apex. The Client will reach Operations Support at (530) 248-1041 or (800) 310-2739. Clients needing to retrieve backup data from their repository have two basic delivery options of a) “Over-the-Wire:” If possible, Apex will increase port speed to 100Mb/s to facilitate internet file transfer or b) Physical Media: Apex will move specifically requested data to an encrypted hard drive for shipment (Data Export fees may apply). Please note that the Service Level Objective for this option includes the file copy time as well as applicable shipping and handling time. Apex reserves the right to physically ship the backup data on tape or other media to the Client’s site.
Description of Excluded Services:
It should be understood that any and all Services requested by Client not specifically identified in this agreement as
being included, fall outside of the terms of this Agreement and will be considered Projects. Any requested services
not covered by this Agreement will be quoted and billed separately from this Agreement.
Service rendered under this Agreement do not include: Any additional professional or technical services requested by Client, including, but not limited to bare metal recovery
of server image back to hardware, or any additional disaster recovery assistance not covered in the Digital Umbrella and Cloud Connect Services shall be invoiced by Apex to Client on a time and materials basis at Apex's standard
professional services rates then in effect.
•Backing up data that may reside on systems not specifically included in this agreement.
•Services to create an exclusion partition: To reduce the cost of off-site backups and backup data transport traffic
from unnecessary backup data, a separate drive partition is typically created on the source server(s) and used to
store files which do not need to be backed up. The contents of this partition are specifically excluded from the
backup process. Files stored on this partition may include items such as temporary files, downloaded programs,
or internal routing backups such as SQL database backups, exchange offline defrags, etc. This partition is
appropriately labeled and should only be used for files, which do not need to be backed up. While this service is
not covered as part of this agreement it can be done and billed separately.
•Services related to performing scheduled audits and verification of backups and recovery
•Shipping costs
•On-site support services and expenses, including travel, are not covered under the Digital Umbrella agreement
and are separately billable.
•Services related to Client or end user training
•Hardware or services related to exporting data from either local or cloud storage
•Services for configuration/programming changes (backup jobs, networking changes or VMWare changes, etc.)
•Services related to the movement of equipment from one Client location to another, irrespective of whether or
not the equipment is listed in this agreement.
•The BDR Host hardware replacement cost and any cost associated with hardware repairs or replacement due to
damage, loss or destruction.
•Services incurred to repair, replace or troubleshoot BDR host
•Services incurred due to any equipment or software alteration, modification, services, repairs or relocation made
by anyone other than Apex or an authorized Apex agent.
Exhibit B Backed-Up Devices Servers That Will Be Included in the Back Up by the BDR Device:
Servers That Will Be Excluded in the Back Up by the BDR Device:
Workstations That Will Be Included in the Back Up by the BDR Device:
(No Offsite storage of backup data is included unless indicated next to the workstation name)
Every system that requires backup protection must be expressly listed as Included on this Exhibit B. Any system not expressly listed as Included may be Excluded from the backup protection. Both Parties agree that the expressly listed Excluded systems may not be an all-inclusive list of systems Excluded from backup protection.
EXHIBIT C Minimum Standards Required for Services
Minimum Standards Required for Services
In order for Client's existing environment to qualify for Apex's Rescue Programs, certain minimum requirements must be met. The following defines the minimum requirements for participation in the Apex Rescue Management Program. Services provided by Apex to bring Client's system(s) up to these standards, if required, are not included in this agreement and will be billed to the client separately. 100 Mb (minimum) network connection between the BDR Device and the server(s) and/or workstation(s) it will be backing up is required in order for the backup process to complete in a timely manner
Adequate Internet Access bandwidth to allow for the daily transfer of offsite backup data
BDR Device must be located in a facility with normal air conditioning and power sources
Participation in one of Apex's support programs so that Apex connectivity and monitoring of the BDR Device will be available Devices being backed up by this system must consist of versions of hardware, software and Windows operating system that are all currently supported by their manufacturers. Necessary credentials to backup production systems (domain, root, etc)
BDR Host with minimum of one available VMware Essentials Host license at version level 6.5 or higher.
Change Management Requirements After initial delivery of the Service, it is the Client’s responsibility to notify Apex in the event of any major changes that could impact the performance of the Digital Umbrella service. The following client-side changes will impact the ability for the environment to be accessible: Change of ISP or local area networking
Modification to firewall rules disallowing public or private access
Significant modifications to backup sizes (production server storage increases)
Addition or removal of servers being backed up
EXHIBIT D Terminology for Digital Umbrella
Name Definition
BDR Host Backup and Disaster Recovery hardware server with hypervisor operating system responsible for local backup storage and hosting the Digital Umbrella backup appliance as
well as immediate but temporary disaster recovery location for production servers. A BDR Host is required at each client site. The sizing of the BDR Host will be based on client production and recovery needs.
Minimum hardware requirements are as follows:
•Hardware disk controller
•CPU that supports virtualization and hyper threading
•RAID 5, 10, 50 or 60 disk array configurations
•Serial Attached Scsci (SAS) disks (SATA disks are not recommended) 4x3TB
•Redundant power supplies
•Memory: 16GB
•Out of band management (iDRAC, ILO)
Client Site Physical location separated by sub 100Mbps local area network connectivity. Each client site requires a BDR Host and broadband WAN connectivity sufficient to meet production and offsite backup data transfer requirements. Digital Umbrella Appliance Virtual Windows Operating system with local storage allocated from client hardware Memory and Disk allocation are allocated based on backup host hardware
Seed Drive Encrypted external hard drive owned and used by Apex to upload initial full backup data from client local site to cloud storage. This is needed for clients where the available ISP bandwidth prevent a complete and successful upload of the initial full backup data set to the cloud in under 2 weeks/10 business days. The drive is encrypted using AES256 bit encryption to protect client data in transit. This seed drive is for the initial seed and returns to Apex inventory after use. Export Drive Encrypted external hard drive owned and used by Apex to export backup data from client cloud storage. The export drive is encrypted using AES256 bit encryption to protect client data in transit. The encryption key to access the data is communicated to the client via encrypted email or secure mail separate from the actual export drive. The data that can be stored on this disk can be point in time server files or digital umbrella backup files. Digital Umbrella software is required to access the digital umbrella backup files and if needed can be purchased as a one time purchase to keep for future access needs. Cloud Connect Responsible for transferring data from local storage to cloud storage securely using secure shell encrypted traffic with RSA 2048 bit encryption.
Backup Monitoring Email alerts generated from the Digital Umbrella Appliance
Total Support Contract A Total Support contract is a separate contract for providing IT services for monitoring, alerting, patching, troubleshooting and supporting Client’s ongoing maintenance and IT service desk needs. Backup troubleshooting and data recovery efforts can be included in a separate Total Support Contract. Client Standard Rates Apex standard rates. If Client has an active Total Support contract then the Client Standard rates would reflect the discounted rates of the active Total Support contract.
DIGITAL UMBRELLA SERVICE AGREEMENT
3.1 - Town of Tiburon
Final Audit Report 2025-01-03
Created:2025-01-02
By:tom grisell (tom@apex.com)
Status:Signed
Transaction ID:CBJCHBCAABAAn-0D2fl7KfcXhhgB4h_pdpCoLuaLtrG8
"DIGITAL UMBRELLA SERVICE AGREEMENT 3.1 - Town of Ti
buron" History
Document created by tom grisell (tom@apex.com)
2025-01-02 - 11:32:05 PM GMT
Document emailed to Greg Chanis (gchanis@townoftiburon.org) for signature
2025-01-02 - 11:36:43 PM GMT
Email viewed by Greg Chanis (gchanis@townoftiburon.org)
2025-01-03 - 0:10:26 AM GMT
Document e-signed by Greg Chanis (gchanis@townoftiburon.org)
Signature Date: 2025-01-03 - 0:11:00 AM GMT - Time Source: server
Agreement completed.
2025-01-03 - 0:11:00 AM GMT