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HomeMy WebLinkAboutC-7458-2 - Professional Service Agreement, Software Maintenance Agreement, Software License Agreement and related Hardware PurchaseOo AssetWORKS ORDERFORM AssetWorks LLC 998 Old Eagle School Road, Suite 1215 Wayne, PA 19087 Ship To Keith Hinckley City of Newport Beach 592 Superior Avenue (Comer of Superior Avenue and Industrial Way) Newport Beach, California 92663 United States (949) 718-3466 KHinckley@newportboachca.gov Order#: Q-02377-2 Date: 4/10/2018 Bill To City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 United States This Order Form is issued pursuant to the Software License Agreement and Related Hardware Purchase, Software Maintenance and Professional Services Agreements attached. Parties agree to be bound by those terms and conditions. License 1 FuelFocus ICU License (integration from the FuelFocus fuel management system1 7.001 USD 2,906.481 USD 20,345.361 to the AssetWorks Fleet software ) 1 Veeder Root Integration License (integration from the fueling system to the tank 2.00 USD 1,419.84 USD 2,839.68 monitoring system for product levels and tank alarms.) License TOTAL:j USD 23,185.04 Maintenance Fuel Hardware Maintenance TOTAL: Description FuelFocus Controller- Non Wireless - 2 Hose RFC1500 (hardware (ICU — Island 5.00 USD 5,165.96 USD 25,829.80 Control Unit) placed at the fuel island that authorizes fueling transactions and turns on the dispensers. (2 hoses) FuelFocus Controller- Nan Wireless - 4 Hose RFC2500 (hardware (ICU — Island 2.00 USD 7.757.75 USD 15,515.50 Control Unit) placed at the fuel island that authorizes fueling transactions and turns on the dispensers. (4 hoses) Front Panel Option — HID (standard HID reader will be install on the hardware in 7.00 USD 387.89 USD 2,715.23 the fuel island.) Page 1 of 15 AssetWORKS WAF Mast Set (mast that will be used to mount the network wireless device.) 7.00 USD 303.33 USD 2,123.31 Internal 802.11 Wireless Device with External Antenna (wireless network device so the hardware (ICU — Island Control Unit) can communicate on the internal network.) 4.00 USD 759.06 USD 3,036.24 Power Integrity Surge Suppression 7.00 USD 153.75 USD 1,076.25 Omron DPST-NO Relays 14.00 USD 25.73 USD 360.22 Omron Base 14.00 USD 17.12 USD 239.68 Spare Kit HID - Includes 4 line display WIN7 1.00 USD 4,734.65 USD 4,734.65 Fuel Shipping Costs 1.00 USD 875.00 USD 875.00 Fuel Hardware Sub -total: Sales Tax (7.75%) Fuel Hardware TOTAL: USD 56,505.88 USD 4,311.39 USD 60,817.27 Service Description Line Total Project Kickoff & Orientation USD 470.00 Island Controller Terminations & Start Up Services USD 0.00 Fuel Software Installer/Trainer USD 3,280.00 Remote FuelFocus Site Startup Services USD 2,460.00 Project Management Services USD 2,820.00 Travel Costs USD 2,500.00 Service TOTAL: USD 11,530.00 TOTAL: USD 100,169.32 Page 2 of 15 AssetWORKS NOTES/ASSUMPTIONS This quote is based on site being "FMS Ready". FMS Ready means that all FMS System pedestals will be mounted to the appropriate location. All conduits will be connected between the FuelFocus Controllers and pumps, junction boxes and breaker panels. Assumes all dispensers have pulsers and are fuel system compatible. All wires will be pulled and left disconnected at each end. See full FMS Ready description below. Does not include permits, permit fees or site as built drawings. * Subject to any applicable state and/or local sales tax, import duties, PST, VAT. * Warranty for hardware is one (1) year parts with telephone help desk support. Extended warranty plans are available for subsequent years. Warranty expires at 12 months from date of install or 15 months from date of shipment, whichever comes first. Client must have a tested network connection at the fuel island. This connection needs to be able to ping the FleetFocus Server successfully. Delay of this connectivity could result in additional time being added to contract. Following represents a checklist of items that need to be performed to comply with "FMS Ready". 1. Have an electrical contractor mount the FMS System pedestals and fasten to concrete. 2. Conduit Requirements - Have electrician run a conduit from the master dispensers to pedestal as needed. Our electrical requirements to each FMS Controller are as follows: 1. We will need dedicated power from a circuit breaker panel to each FMS Controller. The power for each FMS Controller can be pulled off one circuit breaker. 2. We will need a dedicated conduit back to the building from each FMS Controller for communication wiring unless RF IAN connectivity will be used. These may be looped also. Please note that a maximum cable length for CATS is 300 feet. 3. We will need one conduit from the pedestal to be terminated in the dispenser electrical junction box. 4. We will either need: i.A second conduit from the pedestal to the pulser junction box in the dispenser, or ii.The pulser junction box in the dispenser piped over to the electrical junction box in the dispenser 1. Contractor must mount WAF Antenna centrally to all fuel lanes if WAF option is purchased. Must have conduit from nearest ICU to this point. Please discuss location with AssetWorks Project Team. 2. (For Transit Lanes only) Mount Banner sensor in each fuel lane and run conduit from sensor to respective FMS Controller. Cable Requirements - Have electrician pull the following cables - leaving at least three feet extra to extend above the top of the pedestal and as much as possible to fit in the electrical junction box within the dispensers: The items lettered below correspond with the same letter of the conduit above. 1. Three 14AWG minimum THHN gas/oil resistant wires for power, neutral, ground to each FMS Controller from breaker panel. Terminate at panel, wire nut FMS System ends and mark breaker. Lock breaker in off position 2. Pull whatever cable is appropriate based on client demands and location parameters to ensure a reliable TCP/IP ethernet connectivity at the fuel island to each Island Control Unit. This may be a CAT5 cable, fiber optics or RF Ethernet connectivity. If the TLS Interface option is chosen, there are two methods of connecting the Veeder Root console to FuelFocus. The first method is via a RS232 card installed in the Veeder Root (client responsibility). While this is a less expensive option — RS232 is only rated to communicate effectively if the distance between the Veeder Root and the nearest FuelFocus Controller does not exceed fifty (50) feet. If RS232 is used, a four conductor shielded cable must be installed between the two. Veeder Root connectivity can also be achieved via TCP/IP as an option. This method requires the installation of a ethernet card in the Veeder Root console, and then a CAT5 network connection run from the clients network to the Veeder Root — keeping in mind CAT5 distance Page 3 of 15 AssetWORKS limitations shown above. Procurement, installation, and configuration and programming of either method are the client responsibility. 3. Pull four 14AWG minimum THHN gas/oil resistant wires to each pump/dispenser (eight if it is a two hose pump/dispenser) electrical junction box for control wiring. One of these wires should be white for neutral. Dispenser must be able to have handle wired hot at all times when using WAF technology and solenoid will be used for system control. 4. Pull a four conductor 22AWG minimum shielded cable to the dispenser for pulser communication. Please consult with an AssetWorks technician if these distances exceed three hundred (300) feet. 5. Pull the CAT5 wire included with WAF Antenna to the ICU along with a single 14AWG THHN green wire for grounding purposes. 6. (For Transit Lanes only) Pull included cable for Banner Sensor through conduit. Extend leng& ifneeded. 2. Call AssetWorks to schedule a date for final terminations when all of the above is done. Note - all wiring and conduits described above are what is needed for FMS System control only. This document assumes the station and dispensers to be wired already. TERMS OF USE Specifications AssetWorks LLC is not responsible for typographical and/or photographical errors. PAYMENT TERMS Net 30. All hardware will be billed upon delivery. All FuelFocus Integration Licenses will be billed upon delivery of hardware. Services will be billed monthly as performed. MISSING. DAMAGED, OR INCORRECT ORDERS Please inspect all orders upon receipt. Please email fuelsupport@assetworks.com to request an RMA for any missing, damaged, or incorrect orders. You may also call 610-225-8350. RETURN POLICY AssetWorks LLC products may be returned within 30 -days of invoice date for refund, replacement, or exchange. All product returns must have a Returned Merchandise Authorization (RMA) number issued by AssetWorks marked clearly on the return package, or the package will be refused, and no credit will be issued. To request an RMA, please email fuelsupport@assetworks.com . RMAs are valid for 15 days from the date of issuance. The following information is required for all RMAs: The invoice or packing list number The product name and part number Company name, point of contact, mailing address, email address, and telephone number A reason for the return If you wish to make a return or exchange, you must present the merchandise within 30 days of purchase. All goods must be returned in their original packaging. If the items are not received in their original and unused condition, a minimum re -stocking fee of 18% will be charged. Product that has been used will not be accepted for return or exchange unless under warranty or maintenance contract. Product that has been altered without the specific authorization by AssetWorks Inc. will not be accepted. Send returns with the RMA number clearly marked on the package to: AssetWorks, LLC. Attn: RMA Department 998 Old Eagle School Road, Suite 1215 Wayne, PA 19087 Page 4 of 15 AssetWORKS All returns will be processed and fully inspected. All products must be returned in original condition including packaging, manuals, and accessories (as applicable). Return Shipping All returns must be shipped freight pre -paid. Unauthorized or Refused Returns Packages without a Return Authorization Number will be refused. Additional charges may apply if all peripherals and accessories are not returned in the original packaging. Returns Older than 30 Days Returns older than 30 days from the invoice date will be subject to a 25% restocking fee. Only product that is in current production will be accepted and an RMA must be obtained in advance and clearly marked as stated above No refunds will be given. AssetWorks LLC Limited Warranty Warranty coverage for AssetWorks LLC (FuelFocus) products are described below. Additional support coverage can be purchased with your AssetWorks products. Please consult your local AssetWorks sales professional for annual support and services fees. The terms and conditions governing your warranty on AssetWorks products are located below. Such terms and conditions supersede all other terms, unless otherwise agreed by AssetWorks. Warranty Start Date "Start Date" as used in this policy means the date this product is shipped from AssetWorks manufacturing plus three (3) months or the FuelFocus go live date, whichever comes first. Limited Hardware Warranty AssetWorks, LLC. ("FuelFocus") provides a one (1) year limited product hardware warranty to purchasers of FuelFocus products. AssetWorks warrants that the product hardware will be free from defects in materials and workmanship during the warranty period, subject to the following: Labor and travel costs are not included, unless required under contract specific terms. AssetWorks will supply new or rebuilt parts to replace parts that are found to be defective while within the warranty period. New installations must be registered with the FuelFocus Support Center within 48 hours of installation to receive warranty benefits, otherwise, the warranty period commences on the date of the invoice. Help Desk Support is available between the hours of 8:OOAM- 5:OOPM Monday through Friday Upon a Hardware System Failure, AssetWorks will repair or replace such product hardware within fourteen (14) working days of its receipt of the failed hardware, if in advance of its receipt, such hardware (1) was evaluated by AssetWorks Technical Support in person or via telephone, and (2) received a Technical Support RMA number from AssetWorks. Further, the product hardware must be shipped, shipment pre -paid, to AssetWorks, and the RMA number must be clearly indicated on the shipping box and papers. Problems caused by faulty installation are not covered under this warranty. This warranty applies only if the equipment has been installed and used in accordance with the AssetWorks Installation Manual. Use of service personnel other than qualified AssetWorks service providers without prior written approval of the FuelFocus Product Manager will void the warranty claim. Use of non AssetWorks replacement parts, defects caused by the use of unauthorized addition of non AssetWorks parts, or by the unauthorized alteration of FuelFocus parts or equipment will void this warranty. Damage suffered by FuelFocus equipment resulting from shipping, accident, power surges, neglect, misuse, acts of Nature, or abuse are not covered by this warranty. Limited Software Warranty AssetWorks provides a one (1) year limited software warranty to licensees of FuelFocus software accompanying AssetWorks hardware. AssetWorks warrants that the media on which the software is delivered will be free of Page 5 of 15 AssetWORKS defects in material and workmanship for a period of one (1) year following delivery of the software to licensee. AssetWorks warrants that the software, when used in accordance with the terms of the AssetWorks software license, will operate substantially as set forth in the applicable AssetWorks Documentation for a period of one (1) year following delivery of the software to licensee. Technical Support Access During the warranty period, toll free phone support is offered 5 days per week (8 a.m. to 5:00 p.m., Monday through Friday, except holidays). Calls left after hours will be returned the next business day. Access to Technical Support after warranty period is on a commercially reasonable basis (unless a AssetWorks Support Contract is purchased for all systems owned by the customer). Software Updates During the warranty period, software updates for system software and software products released by AssetWorks are available by contacting AssetWorks Technical Support. System software updates include applicable minor releases (e.g. Release 2.0 to 2.1) to the AssetWorks family of products as well as major feature releases (e.g. Release 2.x to 3.0). Customer must have access to the Internet for Web Browser or FTP downloads as directed by Technical Support. Software updates released after the initial one (1) year warranty period are available as an upgrade product for the then applicable list price. Warranty Limitations AssetWorks' warranties as set forth herein ("Warranty") are contingent on proper use of the FuelFocus hardware and software ("Products") and do not apply if the Products have been modified without AssetWorks' written approval, or if the Products' serial number label is removed, or if the Product has been damaged. The terms of the Warranty are limited to the remedies as set forth in this Warranty. THIS WARRANTY IS PROVIDED IN LIEU OF ALL OTHER RIGHTS, CONDITIONS AND WARRANTIES. ASSETWORKS MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE SOFTWARE, HARDWARE, PRODUCTS, DOCUMENTATION OR ASSETWORKS SUPPORT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT OF THIRD PARTY RIGHTS. ASSETWORKS DOES NOT WARRANT THAT ANY PRODUCTS WILL BE ERROR -FREE, OR THAT ANY DEFECTS THAT MAY EXIST IN ITS PRODUCTS CAN BE CORRECTED. IN NO EVENT SHALL ASSETWORKS BE LIABLE FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS OR ANY OTHER SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST DATA), HOWEVER CAUSED WHETHER OR NOT ASSETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Contact Us For more information, please contact your AssetWorks sales representative. INITIAL Standard Professional Services Terms FleetFocus license is based on active units in fleet Additional Components can be licensed at a rate of $5 per component Crystal Reports Enterprise Required for FleetFocus Standard Reports AssetWorks assumes that the client will install the required Oracle or SQL Server database licenses Page 6 of 15 AssetWORKS All warranties conveyed by the manufacturer to AssetWorks are included Travel: Expenses will be billed as incurred. Expenses include actual costs for lodging, air and ground travel and per diem rates for meal expenses (corporate rate/government agreement), and shall not exceed the amount provided for in the "Service" section on page 2 of this Order Form. All costs quoted in USD Costs are estimated for a time and materials project and do not include applicable taxes Actual costs might vary, but in no event shall exceed the total amount on page 2 of this Order Form of One Hundred Thousand One Hundred Sixty Nine Dollars and 32/100 ($100,169.32). Professional Services engagements have 4-8 week lead time from execution of contract/order In the event Customer's business practices require that Customer issue a purchase order number prior to payment of any AssetWorks invoices issued under this Agreement, then such purchase order number must be entered below. Customer's execution of the Order Form without designating a purchase order number shall be deemed Customer's acknowledgement that no purchase order number is required for payment of invoices hereunder. Purchase Order Number: Accepted by Customer: CITY OF NEWPORT BEACH, a California municipal corporation Date: By: :— > Grac eung City Manager ATTEST: /� ZI Date: (f� 0K j����� By: c �U �V /-- Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORI� EY'S OF ICS Date: I U /S / $ By: r Aaron C. Harp 04wi o• is •te City Attorney Accepted by AssetWorks: ASSETWORKS LLC Date. By — Name: Page 7 of 15 Signed in Counterpart AssetWORKS All warranties conveyed by the manufacturer to AssetWorks are included Travel: Expenses will be billed as incurred. Expenses include actual costs for lodging, air and ground travel and per diem rates for meal expenses (corporate rate/government agreement), and shall not exceed the amount provided for in the "Service" section on page 2 of this Order Form. All costs quoted in USD Costs are estimated for a time and materials project and do not include applicable taxes Actual costs might vary, but in no event shall exceed the total amount on page 2 of this Order Form of One Hundred Thousand One Hundred Sixty Nine Dollars and 32/100 ($100,169.32). Professional Services engagements have 4-8 week lead time from execution of contract/order In the event Customer's business practices require that Customer issue a purchase order number prior to payment of any AssetWorks invoices issued under this Agreement, then such purchase order number must be entered below. Customer's execution of the Order Form without designating a purchase order number shall be deemed Customer's acknowledgement that no purchase order number is required for payment of invoices hereunder. Purchase Order Number: Accepted by Customer: CITY OF NEWPORT BEACH, a California municipal corporation Grace K. Leung City Manager ATTEST: Date. Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTOR EY'S OF IC Date:_ I /S By: Aaron C. Harp p4wr e•i5 16 City Attorney Accepted by AssetWorks: ASSETWORKS LLC Page 7 of 15 AssetWORKS ASSETWORKS SOFTWARE LICENSE AGREEMENT AND RELATED HARDWARE PURCHASE This Agreement applies to all software provided to The current list of Third Party Software, if any, is Customer by AssetWorks LLC a Delaware limited listed in electronic documentation available upon liability company ("AssetWorks"), including software request. Customer acknowledges and agrees that owned by AssetWorks and software owned by other future updates, enhancements and upgrades to the parties that is embedded in software owned by Software may include additional Third Party AssetWorks or that is included in hardware provided Software, which will be identified in the revised by AssetWorks. This Agreement further applies to documentation furnished to Customer with such hardware provided to Customer by AssetWorks. updates, enhancements and upgrades to the Software. Customer agrees to be bound by the 1. LICENSE. AssetWorks grants to Customer a terms and conditions, if any, imposed by the non-exclusive, perpetual non -transferable license to developer/owner of each component of the Third make use of the software specified in the attached Party Software, which may be found at web site(s) PO (herein "Software") on the Customer's database listed in the documentation, as amended from time servers, and application servers and/or web servers to time. (referred to as the "Enterprise"). Customer shall have the right to use only one copy or image of the Software for production purposes to the limits set forth in the PO. Customer may increase those limits by executing a subsequent quotation or PO and paying in full the applicable fees. Upon signing the subsequent quotation or issuing PO and paying in full the applicable fees, Customer shall have the right to the limits of the original PO and all subsequent PO(s). Customer may make one copy of the Software for backup purposes. The backup copy must contain the complete program name, copyright and trademark notices. Backup copies are for Customer use only and cannot be assigned or transferred to another person or used on another computer. 2. RESTRICTIONS. Customer cannot sell, rent, lease, loan, transfer, distribute, copy electronically, or transfer any copy or part of this software without prior written consent of AssetWorks and the payment of additional license fees. Customer cannot modify, translate, disassemble, decompile, or create derivative works of the software or any copy in whole or in part. 3. INTELLECTUAL PROPERTY. Customer Customer agrees that AssetWorks is the owner of all right, title and interest in all AssetWorks Software, including (i) any Source Code, Object Code, enhancements and modifications; (ii) all files, including input and output materials pertaining to the AssetWorks Software, (iii) all documentation related to the AssetWorks Software; (iv) all media upon which any such computer programs, files and documentation are located (including tapes, disks and other storage media); and (v) all related material that is furnished by AssetWorks. Customer agrees that, notwithstanding inclusion of Third Party Software in the Software, neither the AssetWorks Software nor the Software shall enter the public domain by reason of the terms and conditions of this Agreement or the inclusion of Third Party Software in the Software, and Customer shall do nothing to cause any infringement of AssetWorks' proprietary rights or to cause the AssetWorks Software or the Software to enter the public domain. Customer agrees that it will not remove or alter any legends, trademarks, trade names, service marks, copyrights, logos, markings or other brand designations of the AssetWorks Software, the Third Party Software or the Software. acknowledges and agrees that the Software consists Neither Party grants to the other Party under this of proprietary source code developed and owned by Agreement any actual or implied license to use its AssetWorks ("AssetWorks Software"). It may also trademarks, trade names, service marks, copyrights, include contributions made by third parties whose logos, markings or other brand designations. source code ("Third Party Software) is incorporated into and made a part of the Software. 4. HARDWARE PURCHASES. Customer shall purchase the hardware listed on the attached PO. Title to the hardware shall pass upon shipment. Page 8 of 15 AssetWORKS 5. FEES AND PAYMENT. All fees set forth in the PO are payable by Customer within thirty (30) days of receipt of invoice. 6. NO OTHER RIGHTS. Except as stated herein, this Agreement does not grant Customer any rights to patents, copyrights, trade secrets, trade names, trademarks, (whether registered or unregistered), or any other rights or franchises in respect to the software and its documentation. 7. TERM. This license is effective upon the date it is first fully executed by both parties and continue until terminated. Customer can terminate it at any time by destroying the software including all media and documentation and erasing any copies residing on Customer system. Or, AssetWorks can terminate this License immediately for nonpayment of license fees or if Customer fail to comply with the terms and conditions of this Agreement. 8. TRANSFER. Customer cannot transfer, sublicense, or assign the license or the software except as expressly provided in this Agreement. Any attempt otherwise to sublicense, assign or transfer any of the rights, duties, or obligations hereunder is void and will terminate Customer license. 9. NOT USED. 10. LIMITATION OF LIABILITY. In the event of any claim brought by one party against another hereunder, a party will be liable only for actual, direct losses or damages incurred, limited to the amount of fees for which AssetWorks contracted under the PO that is the subject of the claim provided, the claiming party shall be obliged to take reasonable steps to mitigate its losses or damages. Irrespective of the basis of the claim, neither party will be liable for any special, punitive, exemplary, indirect, incidental or consequential damages of any kind, including, without limitation, lost profits or loss of data, even if it has been advised of the possibility of such damages. 11. ENTIRE AGREEMENT. Customer further agrees that it is the complete and exclusive statement of the Agreement between us which supersedes any proposal or prior agreement, oral, or written, and any other communications between us relating to the subject matter of this Agreement. It is expressly agreed that if Customer issues a purchase order or other document for the services provided under this Agreement, such instrument will be deemed for Customer's internal use only, and any provisions contained therein shall have no effect whatsoever upon this Agreement. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated. 12. THIRD PARTY SOFTWARE. Any third party software is provided subject to the terms and conditions of license of such third party. The additional terms and conditions that apply to such third party software may be included in printed materials delivered by AssetWorks or available online or through electronic documentation delivered by AssetWorks. 13. GENERAL. This Agreement will be governed by the laws of the State of California, excluding its conflict of laws rules. If any provisions of this Agreement shall be held by any court of competent jurisdiction to be contrary to the law, the provisions will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. Neither party will assign or transfer its interest in this Agreement without the prior written consent of the other party. 14. EXPORT. Customer must comply fully with all laws and regulations of the United States and other countries ("Export Laws") to assure that neither the Software, nor any direct products thereof are (1) exported, directly or indirectly, in violation of Export Laws, or (2) are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. 15. ADDITIONAL PROVISIONS. No other party or company may make any warranty, either express or implied, regarding the software, its merchantability or its fitness for any particular purpose. 16. Notices Addresses: AssetWorks LLC 998 Old Eagle School Rd. - Suite 1215 Wayne, PA 19087 Attn.: John Hines Division President Page 9 of 15 AssetWORKS ASSETWORKS SOFTWARE MAINTENANCE AGREEMENT 1. TERM. Maintenance shall commence on the date of delivery and shall have a term of twelve (12) months. The term shall automatically renew each year thereafter for an additional twelve (12) month period unless terminated as set forth below. 2. CORRECTION OF DEVIATIONS. In the event that the Customer encounters an error and/or malfunction ("Deviation") in the Software, Customer shall communicate the circumstances and any supporting information to AssetWorks. Upon receipt, AssetWorks will respond as follows: a. In the event that there exists a Deviation that does not constitute a serious impediment to the normal intended use of the Software, AssetWorks will correct the Deviation and distribute the correction to the Customer in accordance with AssetWorks' normal Software revision schedule. b. In the event that, in the mutual and reasonable opinion of AssetWorks and the Customer, there exists a Deviation that does constitute a serious impediment to the normal intended use of the Software, AssetWorks will take such steps as are reasonably required to correct the Deviation and promptly correct the Deviation or provide a commercially reasonable work around. 3. SOFTWARE REVISIONS AND NEW VERSIONS. a. The Software may be revised by AssetWorks as a result of the correction of Deviations and/or the release of upgrades or improvements or modifications designed to improve the performance of the Software and/or to increase the capabilities of the Software (hereafter "Revisions"). Revisions shall be of two kinds: i. Revisions that the Customer is obliged to implement ( "Mandatory Revisions'); ii. Revisions that may be implemented by the Customer at its option ("Optional Revisions"). iii. No charge shall be made to the Customer for either Mandatory Revisions or Optional Revisions. b. New versions ("New Versions') of the Software may be issued by AssetWorks from time to time. Compared to a Revision, a New Version substantially improves the performance of the Software and/or substantially increases its functionality and capability. Customer, in its sole discretion, may elect to purchase any New Versions. AssetWorks shall notify Customer when and if new versions are issued through the customer portal. 4. TELEPHONE HOTLINE ASSISTANCE. AssetWorks, at its expense, shall make available technically qualified personnel to respond to all reasonable telephone requests from Customer, Monday through Friday, excluding holidays, during normal business hours, relating to the application and operation of the Software. At other times such personnel of AssetWorks are available by beeper for emergencies. 5. TECHNICAL LITERATURE. AssetWorks shall make available electronically to the Customer technical literature that is considered by AssetWorks to be relevant to the Software. 6. TRANSMISSION. All Revisions and New Versions will be available for download or transmitted to the Customer electronically as mutual agreed. The Customer shall be solely responsible executing the appropriate instructions in order to transfer the Revisions or New Versions onto to its system. 7. REMOTE DIAGNOSTIC ACCESS. The Customer shall provide appropriate remote access where AssetWorks may, with the permission of the Customer, use for the purpose of remote diagnostics and support of the Software. 8. PROPER USE a. The Customer agrees that all reasonable effort shall be taken to ensure that neither the Software nor data files are misused. b. In the event that the Customer or its agents misuses the Software or data files, including, but not limited to, inserting, updating, deleting or otherwise modifying data through a means other than the Software. AssetWorks is not obligated to correct such misuse, however, as mutually agreed, AssetWorks may attempt to correct the situation, if possible, at Customer's expense. c. In the event that diagnostic assistance is provided at Customer's request by AssetWorks, which, in the reasonable opinion of AssetWorks and the Customer, relates to problems not caused by a Deviation in the Software, such assistance shall be at the Customer's expense. Page 10 of 15 AssetWORKS 9. SOFTWARE MAINTENANCE FEE. In consideration of the Maintenance services to be provided by AssetWorks for the Software each twelve month period hereunder, Customer shall pay to AssetWorks an amount equal to twenty percent (20%) of the total amount of the non -discounted License Fee for the Software in effect at the time of the renewal. 10. ADDITIONAL SOFTWARE MAINTENANCE FEE. In the event the Customer acquires additional software to that indicated in the attached PO from AssetWorks (the "Additional Software"), the Maintenance set forth herein shall be extended to cover the Additional Software, and the Customer shall pay an additional annual Maintenance fee in an amount equal to twenty percent (20%) of the then current license fee for the Additional Software starting with the next renewal date unless otherwise agreed by the parties in writing. 11. OTHER FEES AND EXPENSES. If onsite maintenance is required, AssetWorks will provide a quotation of fees and expenses; if quotation is approved by Customer, Customer will pay reasonable travel and living expenses of AssetWorks' employees or agents, which shall be billed and paid as the expenses are incurred. 12. PAYMENT TERMS a. Annual payments for Maintenance will be due in advance of the commencement of the initial one-year term of the Maintenance and each anniversary thereafter. Invoices are due thirty (30) days after date of the invoice. b. AssetWorks reserves the right to change the annual Maintenance fee by providing Customer written notice of the increase at least thirty (30) days prior to any scheduled renewal date. c. AssetWorks reserves the right to apply a late payment charge of 1.5% per month to amounts outstanding more than thirty (30) days after the date of the invoice. 13. DEFAULT AND TERMINATION a. The Customer shall have the right to terminate Maintenance upon delivery of written notice at least ninety (90) days prior to any scheduled renewal date. b. AssetWorks may cancel Maintenance in the event that the Customer does not implement a Mandatory Revision within sixty (60) days of receipt thereof or such longer period as AssetWorks may consent to in writing. In the event that Customer does not implement a Mandatory Revision within thirty (30) days following receipt of written notice from AssetWorks of Customer's failure to implement a Mandatory Revision, AssetWorks may then cancel Maintenance, effective immediately, by notice in writing to the Customer. c. In the event of any breach of the terms and conditions of this Agreement by the Customer, AssetWorks will, by written notice to the Customer, give the Customer a period of thirty (30) days within which to institute remedies to correct such breach. In the event that such breach has not been corrected to AssetWorks' satisfaction within said thirty (30) day period, AssetWorks may then cancel Maintenance, effective immediately, by notice in writing to the Customer. d. In the event that Maintenance is terminated by AssetWorks, AssetWorks shall have no continuing obligations to the Customer of any nature whatsoever with respect to Maintenance. Furthermore, termination by AssetWorks pursuant to the provisions hereof shall be without prejudice to any right or recourse available to AssetWorks, and without prejudice to AssetWorks' right to collect any amounts, which remain due to it hereunder. 14. LIMITATION OF LIABILITY a. In the event of any claim brought by one party against another hereunder, a party will be liable only for actual, direct losses or damages incurred (including cost of cover), limited to the amount of fees paid to AssetWorks for maintenance services; provided, the claiming party shall be obliged to take reasonable steps to mitigate its losses or damages. b. Irrespective of the basis or theory of the claim, neither party will be liable for any special, punitive, exemplary, indirect, incidental or consequential damages of any kind, including, without limitation, lost profits or loss of data, even if it has been advised of the possibility of such damages. 15. GENERAL TERMS a. Neither AssetWorks nor Customer will assign or transfer its interest in this Agreement or any Attachment without the prior written consent of the other party. b. All provisions of this Agreement, which by their nature should survive termination of this Agreement, will so survive. c.. No delay or failure by either party to exercise any right hereunder, or to enforce any provision of this Agreement will be considered a waiver thereof. No single waiver will constitute a continuing or subsequent waiver. To be valid, a waiver must be in writing, but need not be supported by consideration. Page 11 of 15 AssetWORKS d.. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, such provision will be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement will not be affected. e. This Agreement, including its interpretation and enforcement, will be governed by the substantive laws of the laws of the state of California excluding its conflict of laws rules. g. In the event of any dispute arising in the performance of this Agreement, AssetWorks and the Customer will seek to resolve such dispute through good faith, amicable discussions and negotiations. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. h. Neither party will be liable for any failure to perform or any delay in performing any of its obligations hereunder when such failure or delay is due to circumstances beyond its reasonable control and without its fault (Force Majeure), including, without limitation, any natural catastrophe, fire, war, riot, strike, or any general shortage or unavailability of materials, components or transportation facilities, or any governmental action or inaction. Upon the occurrence of such event of Force Majeure, the affected party will immediately give notice to the other party with relevant details, and will keep the other party informed of related developments. i. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous oral, and all prior written, negotiations, commitments and understandings of the parties relating to the subject matter hereof. This Agreement may not be modified except by a writing executed by both parties. Page 12 of 15 AssetWORKS ASSETWORKS STANDARD PROFESSIONAL SERVICES AGREEMENT 1. SERVICES. This Agreement shall apply each time Customer engages AssetWorks to provide services. All services provided will be described in an AssetWorks' quotation or a mutually agreed upon "Statement of Work" ("SOW") as applicable (hereinafter referred to as "Services"), if attached. Initial SOW is the attached PO. 2. TERMS 2.1 Requests for Service; Quotes and Orders. Customer shall sign and return this agreement for the initial order for Services. All subsequent orders for Services must specify AssetWorks' quotation (if any), and reference the Service(s) requested and invoice address. All orders are subject to acceptance by AssetWorks. 2.2 Prices. The prices charged for Services purchased under this Agreement will be AssetWorks' then current charges for such services in each AssetWorks region or as quoted by AssetWorks. If the Services are being performed on a time and materials basis, any estimates provided by AssetWorks are for planning purposes only. 2.3 Additional Fees; Taxes. Prices are exclusive of all country, provincial, state and local sales, use, value added, excise, privilege, franchise and similar taxes. Taxes imposed on AssetWorks (other than taxes related to AssetWorks' income) in connection with the Services purchased under this Agreement will be paid by Customer and will appear as separate items on AssetWorks' invoices. 2.4 Invoicing and Payment. Customer's payment terms will be net thirty (30) days from the date of invoice. 2.5 Term. This Agreement will begin on the date executed by both parties and will continue until terminated in accordance with its terms. Each SOW will continue for the term stated therein, unless otherwise terminated pursuant to this Agreement. 2.6 Termination. Either party may terminate this Agreement by providing at least thirty (30) days prior written notice to the other. Termination of the Agreement will not terminate any outstanding SOWS and the terms of this Agreement will survive such termination to the extent that such terms are incorporated into any outstanding SOWs. Either party may terminate an individual SOW if the other party commits a material breach of such an agreement and the breach is not cured within thirty (30) days of receipt of written notice from the injured party. Termination of one or more SOW will not terminate this Agreement. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination. 3. PROPRIETARY RIGHTS AssetWorks will retain exclusive ownership in all deliverables created by AssetWorks hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how, documentation or techniques developed by AssetWorks under this Agreement. AssetWorks will also retain all intellectual property rights with respect to the tools and/or software that AssetWorks uses to deliver the Services. Subject to payment in full for the applicable Services, AssetWorks grants Customer a perpetual, non-exclusive, non -transferable, royalty - free right to use the deliverables solely for Customer's internal use. 4. EXPORT; REGULATORY REQUIREMENTS Customer acknowledges that the Services sold under this Agreement, which may include technology and software, are subject to the customs and export control laws and regulations of the United States ("U.S.") and may also be subject to the customs and export laws and regulations of the country in which the Services are rendered and/or received. Customer agrees to abide by those laws and regulations. Customer further represents that any software provided by Customer and used as part of the Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. If Customer cannot make the preceding representation, Customer agrees to provide AssetWorks with all of the information needed for AssetWorks to obtain export licenses from the United States government and to provide AssetWorks with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, Customer is solely responsible for obtaining any specific licenses relating to the export of software if a license is needed. AssetWorks may also require export certifications from Customer for Customer provided software. AssetWorks' acceptance of any order for Services is contingent upon the issuance of any applicable export license required by the United States Government; Page 13 of 15 AssetWorks is not liable for delays or failure to deliver Services or a product resulting from Customer's failure to obtain such license or to provide such certification. 5. CUSTOMER RESPONSIBILITIES It is the Customer's responsibility to backup data on Customer's system. AssetWorks WILL NOT BE RESPONSIBLE FOR LOSS OF OR DAMAGE TO DATA OR LOSS OF USE OF ANY COMPUTER OR NETWORK SYSTEMS. Customer acknowledges that AssetWorks' performance and delivery of the Services are contingent upon: (i) Customer providing safe and hazard -free access to its personnel, facilities, equipment, hardware, software, network and information and (ii) Customer's timely decision- making, notification of relevant issues or information and granting of approvals and/or permission. Customer will promptly obtain and provide to AssetWorks any required licenses, approvals or consents necessary for AssetWorks' performance of the Services. Information disclosed by Customer pursuant to a separate Nondisclosure Agreement ("NDA") signed by both parties will be protected under the terms of the NDA. Customer acknowledges that any information or data disclosed or sent to AssetWorks that is not protected under a separate NDA is not confidential or proprietary to Customer. 6. LIMITED WARRANTY & LIMITATION OF LIABILITY 6.1 Limited Warranty. ASSETWORKS WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, ASSETWORKS MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY RELATING TO THIRD PARTY PRODUCTS OR THIRD PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES; ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION ASSETWORKS MAY MAKE; AND,ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, NON -INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION ASSETWORKS MAY PROVIDE. 6.2 Limitation of Liability. NEITHER CUSTOMER, ASSETWORKS NOR ASSETWORKS'S ASSETWORKS Confidential and Proprietary Page 14 of 15 SUBCONTRACTORS WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY ASSETWORKS EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ASSETWORKS SHALL NOT HAVE LIABILITY FOR (1) LOSS OF INCOME, PROFIT, OR SAVINGS, WHETHER DIRECT OR INDIRECT, (II) LOST OR CORRUPTED DATA OR SOFTWARE, OR (111) PRODUCTS NOT BEING AVAILABLE FOR USE. EXCEPT FOR CLAIMS THAT THE SERVICES (EXCLUDING THIRD PARTY PRODUCTS) CAUSED BODILY INJURY (INCLUDING DEATH) DUE TO ASSETWORKS'S NEGLIGENCE OR WILLFUL MISCONDUCT, ASSETWORKS'S TOTAL LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, ANY SERVICES PURCHASED PURSUANT TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE MONTH PERIOD. 7. NOT USED 8. MISCELLANEOUS ITEMS 8.1 Assignment; Subcontracting. Unless otherwise provided in the SOW, CUSTOMER may not assign this Agreement without the prior written consent of AssetWorks. AssetWorks has the right to hire subcontractors to perform the Services provided that AssetWorks shall remain responsible for the performance of Services under this Agreement, or to assign Services to its affiliates. 8.2 Entire Agreement; Severability. This Agreement (with attachments) is the entire agreement between AssetWorks and CUSTOMER with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between AssetWorks and CUSTOMER. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated. 8.3 Independent Contractor. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. 8.4 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, labor conditions, material shortages or any other cause which is beyond the reasonable control of such party. 8.5 Dispute Resolution. The parties will seek a fair and prompt negotiated resolution within ten (10) days of the initial notice of the dispute. If the dispute has not been resolved after such time, the parties will escalate the issue to more senior levels. Nothing herein shall prevent either party from seeking a preliminary or permanent injunction to preserve the status quo or prevent irreparable harm during the negotiation process or diminish the respective rights of the parties to pursue any and all remedies available in law and/or equity at any time. 8.6 Notices. To give notice under this Agreement, the notice must be in writing and sent by postage prepaid first-class mail, receipted courier service, facsimile telecommunication or electronic mail to the address which appears below each party's signature below or to such other address as any party shall specify by notice in writing to the other party and will be effective upon receipt. 8.7 Section Headings. The section headings contained in this Agreement are inserted for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 8.8 Governing Law, Jurisdiction and Language. The laws of the State of California will govern this Agreement. ASSETWORKS Confidential and Proprietary Page 15 of 15