RECALL TOTAL INFORMATION MANAGEMENT, INC. 1 -2010

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• C: ilx� JAI_ C/ r RECALL DATA PROTECTION SERVICES AGREEMENT E=XPIRES C, c 2 It, G _ F COUNCIL Date N- 2010 -029 February 9, 2010 SECTION A — Description of Services This Recall Data Protection Services Agreement (the "Agreement ") by and between Recall Total Information Management, Inc ( "Recall ") with corporate offices located at 180 Technology Parkway, Norcross, Georgia 30092 and Customer (as defined below) consists of this Section A (Description of Services), the Section B (Terms and Conditions) below and as continued on the next page of this Agreement, Schedule 1 (Description of Services) and any exhibits and addenda attached hereto, and such amendments as may be entered into by the parties from time to time. Customer: City of Santa Ana Effective Date: C1 ae) j t) Billing Address: 20 Civic Center Plaza M -12 Term: 24 months City, State, Zip: Santa Ana, CA 92702 Exp Date: C/ % Attention: Schedule 1 Reference: SO# 66438 SECTION B — Terms and Conditions 1. Agreement: By tendering materials to Recall for destruction or other related services by Recall you accept these terms and conditions. Any different or additional terms in any documents from Customer are objected to and rejected, are deemed to materially alter these terms, and will not become a part of this Agreement. Recall agrees to provide Customer certain pickup, transport, storage and delivery services for tapes, disks, disk packs, cases and similar media items registered with Recall by Customer for storage ( "Customer Materials "), all in material accord with Recall's standard operating procedures as modified in Recall's sole discretion from time to time and Recall's schedules as modified from time to time upon notice to Customer. Customer Materials will be deposited at the Recall facility in Norwalk, California, in the secure, climate controlled, hi tech fire detection and suppression area. Customer Materials will not be moved to any other facility without the prior written approval of the City of Santa Ana Information Services Manager or any Authorized User (defined below), provided, however, that in the event the specified Recall facility reaches maximum capacity during the term of this Agreement and Customer requires new Customer Materials to be stored with Recall, Recall will notify Customer of any additional facility being utilized for such newly stored Customer Materials. Customer will provide Recall with a list of Customer's personnel authorized to receive Customer Materials and other services under this Agreement ( "Authorized Users "), by executing Recall's standard authorization form (the "Authorization List "). 2. Term: The initial term of this Agreement ( "Initial Term ") shall commence on the Effective Date, and shall continue for a period of 24 months. Thereafter this Agreement shall renew, on a month to month basis, unless Customer provides written notice to Recall not less than 30 days before the end of the Initial Term or then - current Renewal Term, that it wishes to renew for an additional 24 month renewal term. 3. Fees: All fees in effect for the Initial Term of this Agreement are specified in Schedule 1. During the first Renewal Term fees may be increased by an amount not to exceed four percent (4 %). During the first renewal term, or any subsequent Renewal Term fees shall be calculated in accordance with Recall's then - current pricing methodology and shall be increased by an amount calculated by applying to the then - current fees the percentage increase in the consumer price index (all items, US, as published by the United States Department of Labor, Bureau of Labor Statistics) during the period since the then - current fees were established. If Customer requests any services in addition to those set forth in Schedule 1 and Recall provides such services, Customer will pay for such services at Recall's then - current standard rates. The parties agree that Customer's request of a change in storage quantity will not trigger the imposition of new rates, but the then current agreement rates will be applied to the new quantities; provided however, the minimum volume requirement shall remain and will be enforced if the quantity stored falls below the requisite minimum. During the term of this Agreement Customer agrees to pay a minimum monthly fee as specified in Section 6 below. 4. Payments: All monthly retention charges due under this Agreement will be invoiced monthly in advance and all other amounts due under this Agreement will be invoiced monthly in arrears. All amounts due under this Agreement will be due and payable within thirty (30) days after Customer's receipt of the invoice. Customer shall also pay all applicable federal, state, local, use and other taxes relating to this Agreement or any services or products provided hereunder, excluding only taxes based on Recall's net income. Time is of the essence for all payments due hereunder, and if any payment due Recall is collected at law, or through an attorney -at -law or under advice therefrom, or through a collection agency, Customer agrees to pay all costs of collection, including, without limitation, all court costs and reasonable attorneys' fees. If payment has not been made by Customer in accordance with this Agreement then Recall may suspend all or any part of the services provided to Customer until all payments due are made. If services are suspended during a Term of this Agreement due to a default of Customer, the Customer will remain responsible for payment of all charges accruing during such suspension. 5. Limitation of Liability: (a) In the event of any loss, damage or destruction of Customer Materials caused by Recall's breach of any obligation to Customer, Recall's liability shall be limited to (i) $6.00 per registered carton, container, diskette, tape, or other such item. (b) With respect to any other claims, including, without limitation, any failure or delay in the performance of the services in accordance with this Agreement, Recall's liability shall be limited to the fee paid by Customer for the particular service. In no event shall Recall's liability exceed an amount equal to the fees paid hereunder for the 12- months immediately prior to the date of Customer's first claim. (c) NOTWITHSTANDING ANYTHING IN SUBSECTIONS (a) OR (b) ABOVE, OR ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT SHALL RECALL BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, WHETHER IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) FOR LOST PROFITS OR REVENUES, LOSS OF USE OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES TO BE PROVIDED HEREUNDER, OR FOR ANY CLAIM MADE AGAINST CUSTOMER BY ANY OTHER PERSON, EVEN IF RECALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. 6. Minimum Volume. After 4 month(s) after the Effective Date hereof, Customer shall maintain a minimum storage level, as indicated in Schedule 1 attached hereto, throughout the Initial Term and all subsequent Renewal Terms which will generate associated storage fees, as calculated pursuant to Section 3, above, equal to or less than $360 per month. Recall understands and agrees that Customer, for its purposes, has set up sub - accounts which will be, for Recall billing purposes, treated as one cumulative account to meet the minimum volume agreement. 7. Delivery Service. Recall shall pick -up Customer Materials at the Customer location(s) for which Recall agrees in writing to provide services, in accordance with Recall's standard schedules, as modified from time to time upon notice to Customer. Recall shall use commercially reasonable efforts to provide pick -up services within the time periods specified in this Agreement and to deliver and pickup Customer Materials at the Customer's locations according to written instructions provided by Customer to Recall. 8. Restriction on Stored Materials. Customer represents that it is the owner or legal custodian and has the lawful right to possess and transfer all of the Customer Materials provided to Recall. Customer represents and warrants that the Customer Materials will not include or contain any (a) highly flammable, explosive, toxic materials, or any illegal, hazardous, dangerous or unsafe materials, (b) memorabilia or collectibles, (c) materials having historical value (such as fossils or historical manuscripts, journals or photographs), (d) artwork, (f) any negotiable instruments, currency, negotiable or uncancelled stocks or bonds, jewelry, or (g) other items that have intrinsic market value. Recall reserves the right to open and inspect any cartons or containers of Customer Materials tendered for storage and refuse acceptance of any Customer Materials which fail to comply with Recall's storage restrictions and guidelines. Recall may refuse any materials stored in unusual or non - standard containers. 9. Confidentiality. Recall will use commercially reasonable efforts to (a) maintain as confidential the Customer Materials and all nonpublic information obtained by it with respect to Customer in the performance of Services hereunder that should reasonably be understood by Recall at the time of disclosure, because of (i) legends or other markings, (ii) the circumstances of disclosure or (iii) the nature of the information itself, to be confidential and proprietary to Customer (collectively "Confidential Information "), and (b) not to use such Confidential Information other than in the performance of the Services and exercise of 20070809 Short Form DPS Contract 1 of 6