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