REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
May 24, 2022
FROM
LARRY AINSWORTH, Chief Information Officer, Innovation and Technology Department
SUBJECT
Title
PowerControls Agreements with KLDiscovery Ontrack, LLC for Software and Maintenance
End
RECOMMENDATION(S)
Recommendation
1. Approve Ontrack PowerControls Terms of Sale Agreement, including non-standard terms, with KLDiscovery Ontrack, LLC for software and maintenance to search, recover and restore data from Microsoft Exchange, SharePoint and SQL environments, for purchase amounts as authorized by County Policy beginning May 24, 2022, and continuing until terminated by either party.
2. Approve Ontrack PowerControls Maintenance Agreement, including non-standard terms, with KLDiscovery Ontrack, LLC for maintenance of software to search, recover and restore data from Microsoft Exchange, SharePoint and SQL environments, for purchase amounts as authorized by County Policy for the period of May 24, 2022 through May 23, 2027.
3. Approve Ontrack PowerControls End User License Agreement, including non-standard terms, with KLDiscovery Ontrack, LLC for software to search, recover and restore data from Microsoft Exchange, SharePoint and SQL environments, for purchase amounts as authorized by County Policy for the period of May 24, 2022 through May 23, 2027.
(Presenter: Jake Cordova, Assistant Chief Information Officer, 388-5501)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Operate in a Fiscally-Responsible and Business-Like Manner.
FINANCIAL IMPACT
Approval of this item will not result in the use of Discretionary General Funding (Net County Cost). The Agreements are non-financial in nature and do not commit the County to make any purchases. If future purchases are made under the Agreements, the Innovation and Technology Department (ITD) will adhere to County purchasing policies and return to the Board of Supervisors (Board) for approval, if necessary.
BACKGROUND INFORMATION
The County has many computer systems that use Microsoft operating systems and related software products, such as Microsoft Exchange, SharePoint and SQL. Ontrack PowerControls is a software that streamlines the recovery process of individual mailboxes, messages and attachments from Microsoft Exchange, SharePoint and SQL environments.
The KLDiscovery Ontrack, LLC (Ontrack) PowerControls Terms of Sale, Ontrack PowerControls Maintenance Agreement and Ontrack PowerControls End User License Agreement (Agreements) with Ontrack for PowerControls software and maintenance are Ontrack’s standard commercial agreements, which include terms that differ from the standard County contract and omit certain County standard contract terms. While the parties negotiated certain contract terms to County standards, Ontrack would not agree to all County standard terms. The non-standard and missing terms include the following:
1. There is no stated contract period in the Terms of Sale.
• County Policy 11-06SP does not permit indefinite term or automatically renewing contracts unless approved by the Board.
• Potential Impact: There is no end term to the contract and the County is indefinitely bound to the terms and conditions of the contract until terminated by either party upon 30 days’ prior written notice.
2. Ontrack’s maximum aggregate liability under its indemnification obligations in the Agreements are limited to $15 million, and for all other claims is limited to $1 million, excluding liability for death or personal injury resulting from Ontrack’s negligence, fraud or fraudulent misrepresentation, gross negligence, willful misconduct, violation of law, of any other liability that cannot be excluded or limited by applicable law.
• The County standard contract does not include a limitation of liability.
• Potential Impact: Claims could exceed the liability cap and the contract amount leaving the County financially liable for the excess.
3. The insurance terms do not include the County standard waiver of subrogation.
• The County standard contract requires contractors to carry appropriate insurance at limits and under conditions determined by the County’s Risk Management Department.
• Potential Impact: No waiver of subrogation may allow Ontrack’s insurer to bring suit against the County, which could result in expenses that exceed the total contract amount.
4. OnTrack provides the software “AS IS” and disclaims all warranties of any kind.
• There is no warranty requirement in the County standard contract. The County expects its vendors and service providers to fully warrant the products and services they provide to the County.
• Potential Impact: The County’s use of the software is solely at its own risk.
ITD recommends approval of the Agreements, including the non-standard terms, to allow ITD to purchase Ontrack PowerControls software licenses and maintenance used for searching, recovering and restoring data from Microsoft Exchange, SharePoint and SQL environments.
PROCUREMENT
The Agreements, including non-standard terms, will be used to accompany future purchase orders to be approved, as necessary, per County Policy 11-04 Procurement of Goods, Supplies, Equipment and Services.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Bonnie Uphold, Deputy County Counsel, 387-5455) on April 25, 2022; Purchasing (Tevan Stremel, Buyer III, 387-2098) on April 27, 2022; Risk Management (Victor Tordesillas, Director, 386-8623) on April 29, 2022; Finance (Sofia Almeida, Administrative Analyst, 387-4378) on May 9, 2022; and County Finance and Administration (Paloma Hernandez-Barker, Deputy Executive Officer, 387-5426) on May 9, 2022.