HomeMy WebLinkAboutCC Engagement Agreement (Northgate)hum
DIGITAL MOUNTAIN
ENGAGEMENT AGREEMENT
This agreement ("Agreement") is entered into as of the last signature date shown below
(the "Effective Date") between City of San Rafael ("Client") and Digital Mountain, Inc.
("Digital Mountain" or "Consultant") on a matter Northgate PRA. Client and Digital
Mountain agree that in consideration of the mutual promises and covenants contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which the parties hereby acknowledge, the parties agree as follows:
1. Engagement and Scope of Work.
Client hereby authorizes Digital Mountain to provide the services described below, and
Digital Mountain hereby agrees to provide the services in accordance with the terms of
this Agreement. The scope of work under this Agreement is as follows:
• Perform ESI (Electronically Stored Information) consulting services
• Forensically preserve data as requested by Client
• Perform electronic discovery or digital forensics procedures as requested by
Client
• Perform data hosting services on a specified review platform as requested by
Client
Client warrants any media tendered or made available to Digital Mountain for
examination or duplication and any access granted to any information, system, or
network was obtained lawfully, in full compliance with all applicable statutes and
regulations or orders or policies of any court or agency of competent jurisdiction, and
with due regard for and deference to the property or privacy rights of third parties. Client
agrees to defend, indemnify and hold Digital Mountain harmless from and against any
claim, suit, fines, liabilities, or damages, including reasonable attorneys' fees and costs
(collectively, "Claims"), to the extent such Claims allege that access by Digital Mountain
to any information, media, system, or network provided by or through Client or Client's
client, representative, or vendor, for performance of the Services under this Agreement is
or was unlawful or unauthorized as a result of Client's misconduct. As indemnitee,
Digital Mountain shall promptly notify Client in writing if a Claim is made against it for
which indemnification and/or defense is sought and cooperate with Client in the defense
and settlement of the Claim. Client may not settle a claim on behalf of the indemnitee
without the indemnitee's prior written consent, which may not be unreasonably withheld.
Digital Mountain may maintain working copies of drives at its discretion for its case
support rendered for or at the request of Client. These drives may be wiped seven (7)
years after the case has been closed, as notified by Client, or seven (7) years from the
Effective Date, whichever is earlier. Upon mutual written consent, other terms may be
agreed upon for working copy disposition.
Digital Mountain will run a conflict check against existing client records prior to
engaging in the performance of services under this Agreement. Transactional services,
including but not limited to forensics imaging or data preservation without analysis,
testifying or rendering expert opinion in oral or written form, shall not be deemed to
constitute a conflict for the purposes of this Agreement.
This Agreement shall not be amended except as mutually agreed upon in a writing signed
by Digital Mountain and the Client.
2. Fees and Expenses.
As compensation for Digital Mountain's services, the Client agrees to pay Digital
Mountain as outlined in Schedule A plus any sales or excise taxes. Schedule A may be
modified by mutual agreement based upon modification to the requested scope or the
expansion of or request for additional services. In the event of a modification to Schedule
A, a new Engagement Agreement shall not be required, provided all parties acknowledge
and affirm the modified Schedule A. There is a $1,000 project minimum.
Payment.
Digital Mountain will bill Client monthly for all fees and expenses incurred in connection
with the Services during the preceding billing period. All outstanding balances billed by
Digital Mountain to Client are due within thirty (30) days of receipt. Payments are
overdue if not received within thirty (30) days of Client's receipt of the invoice. Digital
Mountain may, at its discretion, charge interest on any overdue payments at the rate of
one- and one-half percent (1 ''/z%) per month until all such amounts, including interest,
are paid to Digital Mountain in full.
3. Confidentiality.
Digital Mountain shall retain in confidence and require its respective employees and
contractors to retain in confidence all information obtained, exchanged, collected, made
available, or furnished to it, accessed, or created in connection with the Services under
this Agreement, ("Confidential Information"). Digital Mountain agrees to take the same
care it uses to protect its own confidential information, but no less than commercially
reasonable steps, to protect the Confidential Information, whether oral or written, tangible
or intangible, physical or electronic, from access, use, modification, disposal, or
destruction by, or disclosure to, anyone other than those employees and contractors
assigned to perform services under this Agreement and Client. Digital Mountain and
Client each further agree that they will make no use of such Confidential Information
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except as consistent with the terms and purpose of this Agreement or with the specific
prior written consent of the other party. Notwithstanding the foregoing, each parry may
disclose Confidential Information on a need -to -know basis to its legal counsel.
Digital Mountain shall notify the undersigned Client representative in a timely manner
upon discovery of any unauthorized access, use, modification, disposal, destruction or
disclosure of Confidential Information or any other breach of this Agreement by Digital
Mountain, its employees or consultants, and will cooperate with Client in reasonable
ways to help Client regain possession of the Confidential Information and prevent its
further unauthorized access, use, modification, disposal, destruction or disclosure. Client
shall notify Digital Mountain in a timely manner upon discovery of any authorized or
unauthorized access, use, modification, disposal, destruction or disclosure of Confidential
Information and agrees to keep Digital Mountain informed of Client's efforts to regain of
the Confidential Information subject to this Agreement.
Digital Mountain shall, at Client's request, return all originals, copies, reproductions and
summaries of Confidential Information and all other tangible materials and devices
provided to Digital Mountain as Confidential Information.
In the event that Digital Mountain is served with a valid subpoena or order from a court
or other government agency of competent jurisdiction that requires disclosure of any part
of the Confidential Information, Digital Mountain shall notify Client immediately in
writing and reasonably cooperate with Client in obtaining a protective order to prohibit or
limit such disclosure of Confidential Information. In the event that Client is unable to or
chooses not to obtain a protective order to prohibit such disclosure, Digital Mountain
shall comply with said subpoena or court order as required by law.
4. Warranty and Remedies.
Digital Mountain warrants that it will perform the Services with professional
thoroughness and competence. No other warranty or representation, whether express or
implied, is created by this Agreement or in connection with the Services. Digital
Mountain's sole liability, and Client's sole remedy, in connection with this Agreement
shall be limited to having Digital Mountain bear the reasonable cost of redoing (or, at
Digital Mountain's option, having redone) any Services that do not meet the above
warranty. Such remedy shall be available only in the event that Client reports in writing
any breach of Digital Mountain's warranty within sixty (60) days of such breach and
provides documentation of such breach.
IN NO EVENT SHALL DIGITAL MOUNTAIN BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES WHATSOEVER
(INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION,
AND THE LIKE) ARISING IN CONNECTION WITH THE SERVICES OR
OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF DIGITAL
MOUNTAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME STATES RESTRICT THE EXCLUSION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION
MAY NOT APPLY IN ALL CASES.
5. Acknowledgement of Existing Conditions.
Client acknowledges that the equipment/data/media may be damaged prior to Digital
Mountain's receipt of the same, and Client further acknowledges that the efforts of
Digital Mountain to complete the engagement may result in the destruction, or further
damage to, the equipment/data/media. Digital Mountain will assume no responsibility for
additional damage that may occur to the Client's equipment/data/media due to hardware
or software failure not due to Digital Mountain's efforts to complete the engagement.
6. License Disclaimers and Conditions.
No License; Restrictions. Client and Counsel shall not receive a license to any software,
hardware, tools, solutions, or developments that are deployed under this Engagement
("Solutions"), unless agreed in a separate software license or terms of service agreement
with Consultant or the applicable third party. Client and Counsel shall comply with all
instructions provided by Consultant regarding Client or Counsel's use of the Solutions as
part of the Engagement services. Further, Client and Counsel understand that Solutions
may have limitations, including limitations on functional capability and "up -time".
Client and Counsel shall not attempt to copy, modify, create any derivative work of, sell,
rent, sublicense, distribute, disassemble, decompile, reverse engineer, or access the
source code of any Solutions.
Disclaimers. If any third -party reports or results are provided through Consultant under
this Agreement or are otherwise attached to a Consultant deliverable, such third -party
reports or results are provided "as is" and Consultant makes no warranties, express,
implied, statutory or otherwise, with respect to such reports, results or any other related
data obtained from those sources, and specifically disclaims any warranty of availability,
accuracy, reliability, usefulness, infringement, any implied warranty of merchantability,
title or fitness for a particular purpose, and any condition or warranty arising from course
of performance, dealing or usage of trade. Some jurisdictions do not allow the exclusion
of certain warranties in certain circumstances. Accordingly, some of the limitations set
forth above may not apply.
Proprietary and third -party tools disclaimers: Client understands that proprietary and
commercially available third -party tools used by Consultant (e.g. Relativity, Cellebrite,
etc.) have limitations in handling certain data types. Upon request, Consultant will
provide a reference for each third -party tool that describes the tool's limitations.
Consultant makes no warranty that the tools will be able to fully support provided data
types.
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Relativity disclaimers: In addition to the terms set forth in the Agreement, Counsel and
Client expressly understand and agree that if they elect to use Relativity hosting, data
from Counsel and Client will be hosted on a cloud services site, which is provided on an
"as is" and "as available" basis. Consultant makes no warranty that:
a. The cloud services will meet Counsel or Client requirements;
b. The quality of information or services obtained from the cloud services will
meet Counsel or Client expectations; or
c. The cloud services will be uninterrupted, timely, secure, or free of viruses,
errors, or other harmful components.
Under no circumstances will Consultant or its vendors be liable for any damages or loss
of profit, whether directly or indirectly resulting from the use of or inability to access the
cloud services.
7. Controlling Law; Venue; Arbitration.
This Agreement shall be governed by and construed in accordance with the laws of the
State of California. Any controversy or claim arising out of or relating to this Agreement
shall be settled by arbitration using a single arbitrator in Santa Clara County, California
and in accordance with the American Arbitration Association's rules of commercial
arbitration. Judgment upon any award rendered in such arbitration may be entered in any
court having jurisdiction thereof. Notwithstanding the foregoing, any party shall be
entitled to apply to any court to pursue expedited relief as necessary in connection with
this Agreement, for example regarding injunctive relief, unlawful detainer, or claims in
bankruptcy. In the event legal action or arbitration is commenced by either parry in
connection with this Agreement, the prevailing party shall be entitled to recover from the
other reasonable attorneys' fees and costs, including expert witness' costs, expended by
the prevailing parry in connection with such action.
8. Notices.
Any and all notices, invoices, requests, demands, and communications provided for by
this Agreement shall be in writing and shall be effective when delivered in person, sent
by facsimile with confirmation, sent via e-mail with confirmation, or upon receipt via
U.S. Mail postage prepaid, with return receipt requested, as follows:
To Digital Mountain:
Digital Mountain, Inc.
Attn: Julie Lewis
4633 Old Ironsides Drive, Suite 401
Santa Clara, CA 95054
Phone: (866) 344-3627 x101
Fax: (408) 845-9455
Email: iulie.lewis@digitalmountain.com
To Client:
City of San Rafael
Attn: Lindsay Lara
1400 Fifth Avenue, #209
San Rafael, CA 94901
Phone: (415) 485-3066
Email: lindsay.lara@cityofsanrafael.org
9. General.
This Agreement shall not be revised except by a written agreement executed by both
Client and Digital Mountain. Subject to the restrictions on assignment contained herein,
this Agreement shall be binding upon Client's heirs, executors, administrators, other legal
representatives, successors, and assignees.
If any provision of this Agreement is voided, unenforceable or not enforced, this
Agreement shall be considered divisible as to such provision, and the remainder of this
Agreement shall be valid and binding as if such provision were not included in it.
Failure of either party to insist upon the strict performance of any provision of this
Agreement or to exercise any option, right, remedy, or power contained in this
Agreement will not constitute a waiver or relinquishment thereof for the future.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date
indicated herein.
CITY OF SAN RAFAEL
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Name: Lindsay Lara
Title: City Clerk
Date: 02/14/2024
DIGITAL MOUNTAIN, INC.
By:
Name: Josip Markovic
Title: Project Manager
Date: 02/14/2024
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Exhibit A — Data Collection, Digital Forensics, Processing & Relativity Hosting
Price Schedule
Digital Forensics, Data Collections & ESI Consulting
%,t
~ %No -0 Coordination and client communication by project manager
Project Management
^9 Working with law firms, corporate counsel and corporate IT
departments, Digital Mountain's experienced consultants will
assist in identifying data sources, architecting a data
discovery plan, and recommending the most cost-efficient
methods for electronic data collection, processing and
Data Discovery/ review.
ESI Consulting
Our highly trained professionals use the most advanced
tools available in the industry. Examples of services we
perform include:
• Onsite Data Collection, Hard Drive Imaging & Data Restores
• Digital Forensics Analysis
10141 Smartphone & Cellphone Extractions
\0> Database Restorations
# ,1W Internet identity tracing, Website screen captures or social
A • A network site captures
Digital Forensics & Our extensive knowledge of data storage and operating
Onsite Electronic Data systems allows us to collect data with minimal interruption to
Collection your client's daily activities.
(except for *See Expedited Service and Cancellation below for
international data additional conditions
collections — call for
quote)
Driving Time
Mileage
$250/hr
$350/h r
Standard Rate*
$350/hr
(2-hour per visit minimum)
50% of Standard Rate
IRS Rate
(67¢/mile presently)
7
Hard Drives:
0-250 GB
$500/each
251-500 GB
$750/each
501-750 GB
$1,000/each
L=
751-1 TB
$1,250/each
Offsite Copy or
1-1.99 TB
$1,500/each
Forensic Image
2 TB
$1,750/each
(excludes encrypted
Over 2.01 TB
Call for Quotation
drives)
CDs/DVDs/Floppy Disk/Thumb Drive
Remote collections of Web -based email (Google Mail,
$150/each
Yahoo, M365, etc.) or cloud -based storage sites.
Pricing is based on per account size.
0-5G6
$500
5-10G13
$1,000
Cloud -Based
11-50GB
$1,500
Collections
51-100G13
$1,750
(Email and Storage
101-200GB
$2,000
accounts only)
Over 200GB
Call for Quotation
Upon request, we will assign forensic professionals qualified
�Q to provide expert testimony. This is expert witness time for
depositions, appearance preparation (deposition or trial), or $525/hr
court appearances, which are billed at a minimum of 4 hours
per day. Remote appearances and wait time require a
Expert Witness 2-hour minimum.
Testimony
_*/
lid
Media & Storage
Thumb Drive (64GB or less) $50/each
Hard Drive (100GB minimum) $100/each
Increments Thereafter $.50/GB
External Enclosure $50/each
Media Storage/Archiving*
CD/DVD/Floppy Disk/Thumb Drive (each) $30/quarter prepaid
Internal hard drives (each)
*First 90 days included at no charge $90/quarter prepaid
Expedited Service and
Cancellation
Other
Expedited service (2 business days or less, if available)
Cancellation fee (if job cancelled or rescheduled less than
24 hours before start date/time)
Out-of-pocket expenses
50% labor surcharge
$500 per technician per day,
plus out-of-pocket expenses
Cost
E
Electronic Data Processing & Email Conversion
0,t'0
= Our Project Managers assist in identifying the most optimal
data processing approach and providing specialized reports.
Customization of load files.
'rotect Mana ement
Conversion of Groupwise, Lotus Notes, Mac Mail, Outlook
1F5A6W*9164CC-Z for MAC and other email files to Outlook .pst files
E-mail Conversion
Deduplication and filtering of e-mail and files based on
keywords, date ranges and file types.
Follow-on Searches
Filtering I
Deduplication See also Unique File Type Processing below.
Option 1 — Email and non -email data: Metadata and full
text extraction with optional links to native files, including
standard TIFF conversion, optional OCR, bates numbering
and designation stamping.
Option 2 — Email and non -email data: Metadata and full
text extraction with optional links to native files, excludes
TIFF conversion. Also includes RSMF output and
♦ "no
messaging processing for other review tools.
4(4'0
*Messaging requires a 10GB per account minimum.
Processing &
Add: per TIFF image
Production
Add: OCR
Add: per bates stamp
Add: per designation stamp
See also Unique File Type Processing below.
0
ph
Unique File Type
Processing
Not all data can be extracted, processed, and reviewed
(e.g., AutoCad & QuickBooks). Our specialists can
independently process these files and recommend
applications for review.
$250/hr
$300/GB
(min $300 per user
email instance)
Base Price
$50/GB uncompressed
(3GB minimum)
25% of Base Price
$300/GB
uncompressed
(1GB minimum)
$150/GB
uncompressed
(1GB minimum)*
4¢/page
2¢/page
1 0/page
1 0/page
$350/hr
10
Thumb Drive (64GB or less)
Hard Drive (100GB minimum)
Increments Thereafter
External Enclosure
Media & Storage
Media Storage/Archiving*
CD/DVD/Floppy Disk/Thumb Drive (each)
Internal hard drives (each)
*First 90 days included at no charge
LOA
Expedited service (2 business days or less, if available)
�Cancellation fee (if job cancelled or rescheduled less than
Expedited Service and 24 hours before start date/time)
Cancellation
Other Out-of-pocket expenses
$50/each
$100/each
$.50/GB
$50/each
$30/quarter prepaid
$90/quarter prepaid
50% labor surcharge
$500 per technician per day,
plus out-of-pocket expenses
Cost
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Relativity Hosted Review & Production
Web Hosting in Relativity
Database Setup & Training (1 hour) $300
Monthly Hosting Fee $12/GB/month
($300/month min)
®Monthly User Fee
® $130/User/month
Tech Support, Additional Training or Project Management $250/hour
TIFF Production (post review) $.04/page
Relativity Hosted Bates or Other Endorsement
Review & Production $.01/page/each
Relativity Analytics (if requested) - RelativityOne $30/GB indexed
(1GB min)
Inactive Storage (if requested) $5/GB/month
Delete DB (if requested) ($1 B month min)
$2/GB ($40 min)
DB Export (if requested) $20/GB ($300 min)
TIFF Production:
- Grayscale 300 dpi Pricing above
- Color Call for Quotation
♦ r ♦ - High -resolution (600 dpi) Call for Quotation
41( 4 '* Training/Support/Project Management:
Additional Options Upon client request, Digital Mountain staff may perform user $250/hr
functions such as system/case administration, exception (30-minute increments)
handling, and execution of productions.
LN
Expedited service (2 business days or less, if available) 50% labor surcharge
�o Cancellation fee (if job cancelled or rescheduled less than $500 per technician per day,
Expedited Service and 24 hours before start date/time) plus out-of-pocket expenses
Cancellation
Other Out-of-pocket expenses Cost
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