HomeMy WebLinkAboutAssetWorks Inc; 2009-09-25;Application Service Provider Agreement
Between
AssetWorks, Inc.
And
The City of Carlsbad, California
AssetWORKS
AssetWorks Hosting Services Agreement Page 1
Application Service Provider Agreement
This Application Service Provider Agreement ("Agreement") is effective as of this 23rd
day of-Sept. 2009 ("Effective Date"), by and between AssetWorks, Inc. ("Provider"), with
offices located at 998 Old Eagle School Road, Wayne, Pennsylvania, 19087 and The
City of Carlsbad ("Customer"), with offices located at 1635 Faraday Ave, Carlsbad, CA
92008, on the following terms and conditions:
AGREEMENT OVERVIEW
Provider operates an Application Service Provider ("ASP") Data Center (the "Data
Center"), located at 998 Old Eagle School Road., Wayne, PA 19087, and provides
associated services to support customers that wish to outsource the operation and
maintenance of computer applications.
This Agreement describes the services to be provided by Provider, the respective
responsibilities of the parties, the service level objectives ("SLO's"), and the
problem management process. This Agreement incorporates the following
Attachments, which are hereby incorporated by reference and shall be considered
an integral part of this Agreement:
Attachment 1 Scope of Services
Attachment 2 Service Level Agreement
Attachment 3 Fee Schedule
SERVICES
Provider will perform the services ("Services") as described in the Scope of Services,
set forth in Attachment 1.
The general scope of services addressed by this Agreement includes the operation,
maintenance and support of the Customer's:
Application software,
Database for the Applications hosted under this agreement,
Database security, and
Data Center servers operation.
The Services specifically exclude operation and maintenance of the
following:
Customer hardware, including Customer's servers, printers, network hardware
(including routers and switches) and other Customer site computing equipment;
Customer application software other than noted in the Scope of Services; and
Customer-Local Area Networks ("LAN").
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The Services shall be provided subject to the Terms and Conditions, which follow.
TERM
The Term of the Agreement shall commence as of the Effective Date and shall continue
for three (3) years ("Initial Term") unless terminated earlier as set forth below. At the
end of the Initial Term, the Agreement shall automatically renew for successive one-
year terms unless or until either party provides the other party with written notice of non-
renewal at least ninety (90) days prior to the end of the then current term.
FEES AND PAYMENT
Customer shall pay Provider the applicable fees as set forth in the Fee Schedule,
Attachment 3.
Provider shall invoice Customer monthly in advance, and all invoiced fees shall be due
and payable within 30 days of the date of an invoice. All payments shall be made in
United States Dollars without deduction for any taxes or withholding or other offset, and
shall be sent to Provider's address set forth on the signature page of the Agreement.
Any amounts not paid when due will be subject to interest accrued at twelve percent
(12%) per annum, or the maximum rate permitted by law if lower, compounded
quarterly, which interest will be immediately due and payable from the due date for
payment until the date of actual receipt of the amount in cleared funds by Provider.
Interest payments that are accrued during billing disputes should be credited back to
the Customer if said dispute is found to be through no fault of the Customer.
A Customer will be considered delinquent if payment in full is not received thirty (30)
days from the date of the invoice. Provider reserves the right to suspend or terminate
this Agreement and Customer access to the Service if the Customer account becomes
delinquent and is not cured within ten (10) days. Customer will continue to be charged
and hereby agrees to pay for Service during any period of suspension. Customer's
failure to pay any invoice after this ten (10) day period shall constitute a material default
hereunder and shall entitle Provider to exercise any and all rights and remedies
provided herein or at law including a suspension of Services under the Agreement. If
Customer or AssetWorks initiate termination under any provision of the Agreement,
Customer will be obligated to pay the balance due on their account computed in
accordance with the Fee Schedule in Attachment 3. In the event of a dispute between
the parties that does not result in a termination of the Agreement, Customer agrees to
make all Monthly Service Fee payments that are not subject to the dispute when due
under the Agreement pending the resolution of the dispute.
Upon termination for whatever reason and regardless of the nature of the default (if
any), Customer agrees to pay Provider in full for undisputed Services provided to
Customer under this Agreement within 30 days of the invoice date. If Provider invoices
Customer for disputed fees, Customer shall be entitled to deduct the disputed fee from
the invoice.
CUSTOMER RESPONSIBILITIES
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Provider responsibilities are detailed in the Service Level Agreement, Attachment 2.
The Customer is responsible for:
Assigning a primary and alternate customer representative to coordinate all
communications and activities related to Provider services.
Providing user identification data and determining the appropriate security profile for
each user. Customer will control security at the Application level.
All on-site printing. No print job will print at the Data Center. All physical printing
requirements will be the responsibility of the Customer.
The purchase and installation of printers at Customer's sites for the Application being
utilized as defined in the Scope of Services.
Installation, operation and maintenance of Customer's LAN, existing data
communications configuration, hardware, or software at the Customer's site except as
otherwise stipulated in the Scope of Services. This is defined as all lines, switches and
routers from the Customer site up to the Provider's site.
User ad hoc report generation, creation and printing (currently via the client software
GUI, web version available as an option late 2009).
Testing updates and fixes applied by Provider to Applications used by Customer. With
the exception of emergency fixes, Customer will test updates and fixes in the test
environment and confirm testing results with provider prior to their introduction to the
Production environment within a mutually agreed upon time frame.
Testing upgrades. Upgrades will be moved to production by the Provider at the end of
the Customer testing period unless specific problems are documented in writing to
Provider.
Analysis of suspected problems to determine their specific nature and possible causes
before calling the Provider for assistance. Customer is responsible to report the
problems and the analysis to the provider in a complete and timely manner.
Note: Customer will not be able to build new Crystal Reports (InfoCenter Reporting) or
modify existing reports (due to firewall security issues)
OWNERSHIP OF DATA
Customer shall not obtain any ownership rights, title or interest in the software,
hardware or systems developed or employed by Provider in providing Services under
the Agreement. Provider shall not obtain any ownership rights, title or interest to
Customer's data files. Upon expiration or termination of the Agreement for any reason,
Provider agrees to provide Customer with a copy of Customer's data files, as they exist
at the date of expiration or termination pursuant to the requirements outlined in the
Obligations Upon Termination of Contract section of the Attachment 1.
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WARRANTY DISCLAIMER/LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH HEREIN, PROVIDER SPECIFICALLY
DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES, OR
WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-
INFRINGEMENT AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A
RESULT OF CUSTOM OR USAGE, ANY WARRANTY OF ERROR-FREE
PERFORMANCE, OR ANY WARRANTY OF THIRD PARTY PRODUCTS, OR
FUNCTIONALITY OF THE CUSTOMER'S HARDWARE, SOFTWARE, FIRMWARE,
OR COMPUTER SYSTEMS. PROVIDER SHALL NOT BE LIABLE FOR ANY
PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, (INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST REVENUES
OR PROFITS, LOSS OF USE OR EQUIPMENT DOWN TIME, AND LOSS OF OR
CORRUPTION TO DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT,
REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE
SOUGHT, AND EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. CUSTOMER HEREBY AGREES THAT PROVIDER'S TOTAL
LIABILITY FOR ANY AND ALL LIABILITIES CLAIMS, OR DAMAGES ARISING OUT
OF OR RELATING TO THIS AGREEMENT, HOWSOEVER CAUSED AND
REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING BREACH OF
CONTRACT OR WARRANTY, TORT, STRICT LIABILITY, STATUORY LIABILITY OR
OTHERWISE, SHALL NOT, IN THE AGGREGATE, EXCEED FEES PAID TO
PROVIDER DURING THE PREVIOUS 12-MONTH PERIOD. THE PARTIES
ACKNOWLEDGE AND AGREE TO THE FOREGOING LIABILITY RISK ALLOCATION.
ANY CLAIM BY CUSTOMER AGAINST PROVIDER RELATING TO THIS
AGREEMENT MUST BE MADE IN WRITING AND PRESENTED TO PROVIDER
WITHIN SIX (6) MONTHS AFTER THE DATE ON WHICH THIS AGREEMENT
EXPIRES OR IS OTHERWISE TERMINATED.
TERMINATION FOR DEFAULT
Either party may terminate this Agreement if (i) the other party fails to perform a
material obligation of the Agreement and such failure remains uncured for a period of
30 days after receipt of notice from the non-breaching party specifying such failure; or
(ii) a party ceases to conduct business, becomes or is declared insolvent or bankrupt, is
the subject of any proceeding relating to its liquidation or insolvency which is not
dismissed within 90 days or makes an assignment for the benefit of creditors. In
addition, Contractor may terminate this Agreement effective immediately upon written
notice to Customer if Customer fails to make any payment in full as and when due
hereunder.
8.2 Upon termination for whatever reason and regardless of the nature of the default
(if any), Customer agrees to pay Contractor in full for all goods and/or services provided
to, and accepted by, Customer under this Agreement and/or any task order hereto as of
the effective date of the Agreement within 30 days of the invoice date.
NOTICES
All notices under this Agreement will be in writing and will be delivered by personal
service, facsimile or certified mail, postage prepaid, or overnight courier to such person
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and address as may be designated from time to time by the relevant party, which
initially shall be the address set forth below:
AssetWorks CUSTOMER:
998 Old Eagle School Rd. - Suite 1215 1635 Faraday Av
Wayne, PA 19087 Carlsbad, CA 92008
Attn.: John Mines Attn.:
Copy to: Copy to:
Director of Contracts
AssetWorks
998 Old Eagle School Rd. - Suite 1215
Wayne, PA 19087 Attn:
Attn: Sandra McFarland
NON-WAIVER OF RIGHTS
The failure of either party to insist upon performance of any provision of this
Agreement, or to exercise any right, remedy or option provided herein, shall not be
construed as a waiver of the right to assert any of the same at any time thereafter.
RIGHTS AND REMEDIES NOT EXCLUSIVE
Unless otherwise expressly provided herein, no right or remedy of a party expressed
herein shall be deemed exclusive, but shall be cumulative with, and not in substitution
for, any other right or remedy of that party.
SEVERABILITY
If any provision of the Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions shall nevertheless continue in
full force without being impaired or invalidated in any manner.
ASSIGNMENT
Neither the Agreement nor any duties or obligations hereunder shall be assigned or
transferred by Customer without the prior written approval of Provider, which approval
may be withheld in the reasonable judgment of the Provider. Customer agrees that
Provider may assign its obligations to a third party subject to Customer's written
approval of such change, but Provider shall remain responsible for performance under
the Agreement. All fees will remain in tact as outlined in Attachment 3.
GOVERNING LAW; VENUE
The Agreement shall be governed and construed in accordance with the laws of the
State of California without regard to choice of law principles. EACH OF THE PARTIES
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
LOCATED IN THE CITY OF SAN DIEGO, OR IF SUCH COURT DOES NOT HAVE
JURISDICTION, THE STATE COURTS OF THE STATE OF CALIFORNIA LOCATED
IN THE CITY OF SAN DIEGO, FOR THE PURPOSES OF ANY SUIT, ACTION OR
OTHER PROCEEDING IN CONNECTION WITH THIS AGREEMENT AND THE
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TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE
LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN THE
COURTS REFERRED TO ABOVE, AND HEREBY FURTHER IRREVOCABLY AND
UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
INTERPRETATION
The captions and headings used in this Agreement are solely for the convenience of
the parties, and shall not be used in the interpretation of the text of this Agreement.
Each party has read and agreed to the specific language of this Agreement; therefore
no conflict, ambiguity, or doubtful interpretation shall be construed against the drafter.
DISPUTES
The parties will seek a fair and prompt negotiated resolution within ten (10) days of the
initial notice of the dispute ("Dispute"). If the dispute has not been resolved after such
time, the parties will escalate the issue to more senior levels. If the parties are unable
to resolve any dispute at the senior management level, then any controversy, claim or
Dispute arising out of or relating to this Agreement shall be resolved by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. Before commencing any litigation or such arbitration, the
parties agree to enter into negotiations to resolve the Dispute. If the parties are unable
to resolve the Dispute by good faith negotiation, either party may refer the matter to
arbitration before initiating any litigation. The arbitrator(s) shall be bound to follow the
provisions of this Agreement in resolving the dispute, and may not award any damages,
which are excluded by this Agreement. Any request for arbitration of a claim by either
party against the other relating to this Agreement must be filed no later than six (6)
months after the date on which Provider concludes performance under this Agreement.
This dispute resolution process shall not relieve any party from complying with any
claims presentation requirements as a condition precedent to initiating litigation.
MULTIPLE COPIES OF COUNTERPARTS OF AGREEMENT
This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement shall not be effective until the execution and delivery
between each of the parties of at least one set of the counterparts.
FORCE MAJEURE
Neither party shall be liable for any failure of or delay in performance of its obligations
(except for payment obligations) under this Agreement to the extent such failure or
delay is due to acts of God, acts of a public enemy, fires, floods, power outages, wars,
civil disturbances, sabotage, terrorism, accidents, insurrections, blockades, embargoes,
storms, explosions, labor disputes (whether or not the employees' demands are
reasonable and/or within the party's power to satisfy), failure of common carriers,
Internet Service Provides, or other communication devices, acts of cyber criminals,
terrorists or other criminals, acts of any governmental body (whether civil or military,
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foreign or domestic), failure or delay of third parties or governmental bodies from whom
a party is obtaining or must obtain approvals, authorizations, licenses, franchises or
permits, inability to obtain labor, materials, power, equipment, or transportation, or other
circumstances beyond its reasonable control (collectively referred to herein as "Force
Majeure Occurrences"). Any such delays shall not be a breach of or failure to perform
this Agreement or any part thereof and the date on which the obligations hereunder are
due to be fulfilled shall be extended for a period equal to the time lost as a result of
such delays. Neither party shall be liable to the other for any liability claims, damages
or other loss caused by or resulting from a Force Majeure Occurrence.
RELATIONSHIP OF PARTIES
Contractor is an independent contractor in all respects with regard to this Agreement.
Nothing contained in this Agreement shall be deemed or construed to create a
partnership, joint venture, agency, or other relationship other than that of contractor and
customer.
THIRD PARTY BENEFICIARIES
This Agreement does not create, and shall not be construed as creating, any rights or
interests enforceable by any person not a party to this Agreement.
WAIVER OR MODIFICATION
No provision of the Agreement may be waived or modified unless in writing specifically
referencing this Agreement and signed by representatives of both parties against whom
enforcement of the purported modification or waiver is sought. Waiver of default of any
provision of the Agreement shall not operate or be construed as a waiver of any
subsequent default of such provision, nor shall a waiver of any one provision of the
Agreement be deemed to be a waiver of any other provision.
ENTIRE AGREEMENT; CONFLICTING PROVISIONS
The Agreement and any schedules and exhibits thereto contain the entire agreement
and understanding of the parties with respect to the subject matter hereof, and
supersedes and replaces any and all prior or contemporaneous proposals, discussions,
agreements, Customer issued purchase order or document of like intent or purchase,
understandings, commitments, representations of any kind, whether oral or written,
relating to the subject matter hereof or the Services to be provided hereunder. In the
event that any provision in any attachment conflicts with any provision of this
Agreement, then this Agreement shall be deemed to control, and such conflicting
provision to the extent it conflicts shall be deemed removed and replaced with the
governing provision herein.
AUTHORIZATION
Each of the parties represents and warrants that the Agreement is a valid and binding
obligation enforceable against it and that the representative executing the Agreement is
duly authorized and empowered to sign the Agreement
SURVIVAL
The provisions of sections 4, 6, 7, 14, 16 and 22 shall survive the termination or
expiration of this Agreement.
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COUNSEL
By execution of this Agreement, each of the Parties acknowledges and agrees that it
has had an opportunity to consult with legal counsel and that it knowingly and
voluntarily waives any right to a trial by jury of any dispute pertaining to or relating in any
way to the transactions contemplated by the Agreement, the provisions of any federal,
state or local law, regulation or ordinance notwithstanding.
Signatures
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly
authorized representative(s).
"Provider"
AssetWorks, INC.
Namely JO
Title:
Sign:
Date:
"Customer"
Date:
Address:
998 Old Eagle School Road
Suite 1215
Wayne, PA 19087
Telephone (610) 687-9202
Fax (610) 971-9447
Address:
Telephone:
FAX:
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Attachment 1 - Scope of Services
All the services, functions, processes and activities described below will be collectively
described as the "Services" for purposes of this Agreement. All Services will be
provided by the Provider to and for the Customer's benefit in a manner, which will
adequately meet or exceed the SLA, Attachment 2. Provider's failure to deliver the
services and meet SLO's defined in the SLA will constitute Default by the Provider.
Neither the SLA nor these Services can be changed in any way without written
Amendment.
1. Application
Application or Applications refers to the FleetFocusFA (a.k.a. FASuite) software and
modules. Applications for purposes of this Agreement also include the operating
system, utilities, scheduled batch cycles, database software and all necessary licenses
required to successfully and adequately operate the software in a manner to meet the
SLA, Attachment 2.
Hardware
The Application will be hosted on AssetWorks supplied servers.
The Server will always provide adequate facility to meet the SLOs. If required by
Customer, Customer shall provide the telecommunications equipment (including the
routers to be installed at the Data Center and Disaster Recovery Center site),
communication line and services for connection from Customer's site to the Data
Center and Disaster Recovery Center.
Database Instances
A single Production Database instance will be maintained for Customer. This
Production Database will provide the daily, real-time transaction data to the Application
Users.
In addition to the Production Database, Provider shall create an additional, non-
production Test Database. Upon request by Customer, Provider will populate the
Test Database with Customer's Production data up to 4 times in any 12 month
period with no additional cost. More frequent data updates will be performed with
charges to the Customer using the Service Fee rates cited in Section 4 of
Attachment 3.
For an additional charge, Provider will furnish an Ad-hoc Reporting Database for use
with the Customer developed ad-hoc reports. This Database will be updated from
the production database every night and will allow the Customer direct access to
its data for purposes of ad-hoc reporting. Further, for an additional charge Provider
will certify a Customer built Ad-hoc Report for scheduling execution from within the
Application directly against the production database, certifying that the Report
performs within appropriate guidelines and does not cause unacceptable response
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time issues. Once certified, Provider will install the Report into Customer's ASP
production environment to make it available for execution submission from within
the Application.
Hours of System Operations
The Application will be accessible and available to the Customer and capable of any
and all normal operating functions 24 hours a day, seven days a week except for
previously approved and Scheduled Maintenance. The Provider will not be held
responsible for inaccessibility arising from communications problems occurring
anywhere beyond the Provider's side of the router resident at the Provider's Data
Center and Disaster Recovery Center, nor will these hours of unavailability be
counted as unavailable for purposes of Contractual Non-Compliance.
Help Desk Operations
Provider will maintain a Help Desk to receive Customer calls to report, log and resolve
any problems with the Services identified by the Customer. Business hours and
response times are listed in Attachment 2 - Service Level Agreement, Service Level
Category 4 - Customer Service.
Customer will be allowed unlimited calls to the Help Desk as long as Customer remains
in compliance with all contractual commitments between Customer and Provider.
While the Application will be available to the Customer on Holidays, the Help Desk will
operate on an "after Business Hours" schedule on Holidays. Provider currently
recognizes the following Holidays:
New Years Day Memorial Day Columbus Day
Martin Luther King Day Fourth of July Thanksgiving Day
Presidents Day Labor Day Christmas Day
Additional Holidays may be added upon prior written notice to Customer.
Online Data Retention
All data in the Customer's Production database as provided at time of conversion will be
available online. Older data will be archived in a process to be defined in the future, but
mutually agreed upon by the Provider and the Customer. This data can be reloaded
upon request by Customer for Service Fees identified in section 4 of Attachment 3.
Maintenance
The Provider will complete Scheduled Maintenance of the Application on a weekly
basis. This Scheduled Maintenance will consist of downtime of the Application mutually
agreed upon by the Customer and the Provider. Scheduled Maintenance will include
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database reorganization and any other weekly requirements that allow the Application
to successfully and adequately operate in a manner to meet the SLA, Attachment 2.
If the Provider is required to perform additional maintenance outside of the Scheduled
Maintenance window, it will notify the Customer in writing of its request. The Customer
and the Provider will mutually agree on the downtime, which will then be considered
Approved Maintenance.
Disaster Recovery
Back-up frequency and data retention services will be provided as outlined in the SLA,
Attachment 2. The Provider will identify an authorized agent to provide off-site storage
services.
Reporting
The Provider will produce quarterly communications and reports as requested by the
Customer.
Examples of the possible requests:
Service Level Performance Metrics
Problem Trend Analysis
Status of Current and Future Activities
Application Availability Percentages
Monthly Unit Counts
Database Usage and Statistics
Server Statistics
Obligations Upon Termination of Contract
Customer's Obligations Upon Termination or Expiration Upon termination due to a
Default by the Customer or expiration of this Agreement, all rights granted
hereunder to the Customer shall forthwith terminate, and:
• Customer shall immediately and permanently cease to use the ASP Services in
any manner whatsoever,
• Customer shall pay to the Provider all damages, costs and expenses, including
reasonable attorneys' fees, incurred by the Provider as a result of the termination
or expiration of this Agreement due to Default by the Customer, including costs
in obtaining injunctive or other relief for the enforcement of any provision of this
Agreement, and
• Customer shall make all payments due.
Provider's Obligations Upon Termination or Expiration Upon termination due to a
Default by the Provider or expiration of this Agreement, all rights granted
hereunder to the Provider shall forthwith terminate, and:
• Provider shall immediately and permanently cease to use, in any manner
whatsoever, all of the Customer's Proprietary Marks and distinctive forms,
slogans, signs, symbols, and devices associated with the Customer including,
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without limitation, all signs, advertising materials, displays, stationary, forms and
any other articles which display such proprietary marks,
Provider will copy the Customer's Production Database, and any and all other
databases, scripts, utilities or files maintained by Provider on behalf of Customer,
and forward the copies to the Customer in machine-readable format acceptable
to the Customer,
Provider will use all reasonable efforts to assist Customer in affecting a smooth
transition of the ASP Services to Customer or any other vendor chosen by
Customer, and
Provider, when directed by Customer to do so, will delete all of Customer's data in
Provider's possession from any data storage media under control of the
Provider.
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Attachment 2 - Service Level Agreement
This Service Level Agreement ("SLA") is intended to provide an understanding of the
level of service to be delivered by the Provider for the Services specified in Attachment
1.
The Service Level Objectives ("SLO") will be reviewed annually by the Provider and
Customer to determine if new business conditions or new technology support a
modification of the Agreement. The Provider and Customer will mutually agree upon
any recommended modifications. Failure to reach mutual agreement will prompt
Dispute Resolution as outlined in Section 16 of the Agreement.
Service Level Non-Compliance
Non-Compliance is the inability to achieve any SLO. There are two kinds of Non-
Compliance: Operational Non-Compliance and Contractual Non-Compliance.
Operational Non-Compliance is the instance or onset of the inability of the Provider to
meet an SLO (e.g., unavailability of the Application). Contractual Non-Compliance is the
failure of the Provider to adhere to the services described in this Agreement. The
response outlined below is required for both Operational Non-Compliance and
Contractual Non-Compliance. Instances of Operational Non-Compliance can, with
multiple occurrences, extended time, or severity, become issues of Contractual Non-
Compliance.
Should the Customer identify an instance of Operational Non-Compliance, the
Customer will notify the Help Desk.
Should the Customer identify an instance of Contractual Non-Compliance, the
Customer will deliver written notification to the Provider. Upon notification by the
Customer of Contractual Non-Compliance, the Provider will research the problem and
respond to the Customer by the next business day. This response will outline:
What actions will be taken to resolve this specific instance of the problem;
How long it will take to implement these actions; and
What process will be undertaken to ensure that the SLO will be successfully met in
the future.
Possible actions to ensure that Provider will meet the SLO in the future include:
• The establishment of additional policies or business process enhancements
to increase the likelihood of meeting the existing SLOs;
• The employment of additional hardware, software, personnel or additional
resources to increase the likelihood of meeting the existing SLOs; and
• A review of the existing SLOs to determine if they are no longer appropriate
given changes in Customer usage, other conflicting demands, or new
technology. Based on mutual agreement between the Customer and
Provider, more realistic goals may be established based on information . f-
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gathered since the goals were last set.
best overall interests of the Customer.
This will only be done if it is in the
Non-Compliance
Provider will achieve the SLOs on a quarterly calendar basis. The following chart and
text describe several categories of SLOs. Contractual Non-Compliance is defined
differently for Category 1 (Application Availability and Performance) than it is for all
other SLO's. The Provider will be given seven (7) days to cure a Category 1 Non-
Compliance instance and thirty (30) days to cure all other Non-Compliance instances.
If the Application is available less than 95% of all "Available Hours" in the calendar
quarter, Customer may at its option terminate this Agreement and Provider will waive
the Service Termination Fee identified in Section 5 of Attachment 3. Scheduled
Maintenance hours will not count as unavailable hours. "Available Hours" means the
product of the number of days in the quarter times 1440 minutes, less Scheduled
Maintenance.
Failure to meet one or more of the SLOs other than Category 1 (Application Availability
and Performance) for any given month does not constitute a Default of the Agreement.
If Provider fails to meet one or more of the other SLOs for two consecutive calendar
quarters, Customer may at its option terminate this Agreement and the Service
Termination Fee identified in Section 5 of Attachment 3 will be waived by Provider.
Service Level Categories and Objectives
No.
1
2
3
Category
Application Availability
and Performance
Security
Application
Maintenance
Subcategory
Normal Operating
Conditions
Data Recovery
Response Time
Front Door Access to
Data
Backdoor Access
Major Upgrades
Minor Upgrades/Bundled
Fixes
Immediate Fixes
Objective
Regular hours
Provider network
Backup Frequency
Data Retention
Data Recovery
On-line Screens
Queries
Batch Cycles
Access Authorization
Customer Network
Physical Access to Data
Center
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4 Customer Service Help Desk
Communication
Initial Contact
Inquiry Settlement
Technical Administration
Scheduled
On Request
Data Center Announcements
Feedback
Service Level Category 1: Application Availability and Performance
Subcategory: Normal Operating Conditions
Regular Hours
Objective
The Application will be available as defined in section 4 of Attachment 1. The Test
Application which accesses the Test database instance will be available during
Business Hours as defined in Service Level Category 4: Customer Service.
Verification Method
The Application availability will be monitored by Data Center staff and verified by
the Customer using alternate sources available.
Provider Network
Objective
The Data Center will be responsible for the dependability, accessability, and security of
the Provider's internal communication network that begins at either the Customer-
provided routers at the Provider's sites or mutually agreed upon routers.
Verification Method
The Provider network availability will be monitored by Data Center staff and verified by
the Customer.
Subcategory: Disaster Recovery
Back-up Frequency
Objective
All Customer data and all other configuration files, scripts, and any other files necessary
for complete and successful operation of the Application will be copied to and backed-
up to tape at a pre-defined schedule developed byProvider. For an additional fee,
Provider will schedule other 'Critical Points' for back-up, as defined and required by the
Customer (e.g., month-end, year-end and before upgrades.)
Back-ups of the Customer's Production and Test data will be performed in accordance
with Provider's standard back up schedule and tapes sent to off-site storage via an
authorized escrow agent within 24 hours of the back-up being taken. The Customer
retains the right to have copies of back-up tapes mailed to the Customer's site on
schedule determined by Provider.
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Verification Method
The Data Center will verify daily that each back-up's status is listed as complete by the
system.
Data Retention
Objective
Data will be retained for a reasonable timeframe, for recoverability. Daily back-ups will
be available for recovery for 2 weeks. Without additional charge, Provider will furnish
the most recent back-ups and copies of the Application to enable Customer to run in
production on its Disaster Recovery Site.
Verification Method
The data recovery tests listed under Data Recovery will be used to verify Data
Retention. The results of Customer requested restorations will also be recorded.
Data Recovery
Objective
In cases where copies of back-up data exist at the Data Center and the systems
supporting the Customer's data are intact, the data will be successfully restored within
one (1) calendar day. In cases where the requisite back-up data is stored off-site and
the systems supporting the Customer's data are intact, the data will be successfully
restored within three (3) calendar days. In the event that the Data Center is severely
damaged and Customer processing is moved to the Disaster Recovery Center, due to
fire or other disasters, the Data Center will provide Application availability to the
Customer within three calendar days at the Disaster Recovery Center. The Provider
will return Customer processing to the Data Center from the Disaster Recovery Center
as soon as possible. Customer data will be restored from off-site back-ups, which will
contain data 1 day prior to the disaster. Customer will be responsible for providing the
telecommunications and telecommunications hardware to the Disaster Recovery
Center.
Verification Method
The Data Center and the Disaster Recovery Center will conduct periodic data
recovery tests at least annually to confirm that the recovery objectives can be
met. The results of Customer requested restorations will also be recorded.
Subcategory: Response Time
Queries
Objective
The Data Center will ensure that the Production database is able to facilitate the
completion of queries through the Application that have been supplied by the Customer
in a manner which is comparable to what the Customer experiences through their
current production configuration as outlined in the Baselines. This excludes Customer
network issues. In the case of additional Customer created queries through the
Application, due to their unpredictable levels of complexity, the Provider cannot make a
response time commitment. The Provider will be able to provide additional support to
assist Customer query optimization on a time and materials basis.
AssetWorks Hosting Services Agreement Page 17
Verification Method
AssetWorks expects screen and query response times to more than exceed Customer
expectations. However. AssetWorks is unable to produce exact performance
benchmarks. Anything outside of the routers at the Data Center is not in AssetWorks'
control. AssetWorks expects screen response times to be a maximum of two seconds.
AssetWorks anticipates the same for data queries with the assumption that the proper
user filters are in place. Upon going into production with the Application. Customer and
AssetWorks will agree upon a benchmarking method to derive more accurate results to
be included into the SLA as a benchmarking addendum. Annual benchmarking
evaluations will be conducted in conjunction with both parties.
Online Screens
Objective
Response time for Customer's use of the Applications should be no longer than
two seconds. The expectation is for on-line window response times for normal
transactions (e.g., screen changes, repair order retrievals, file updates, report
generation, etc.) to be equal to or better than that currently experience by
Customer using other applications via the internet. This excludes Customer
network issues.
Verification Method
System load and response time will be monitored to determine if queries are negatively
impacting system response time for Customer. Monitoring tools and reports will be
defined once the Application is set up and loaded for production use and will be
mutually agreed upon by Provider and Customer.
Batch Cycles
Objective
The Data Center will ensure that the daily, weekly, monthly, and yearly batch
cycles run in a manner, which is comparable to what the Customer experiences
through their current Production configuration as outlined in the Baselines.
Verification Method
This will be measured by the total execution times from start to finish of each
batch cycle. Monitoring tools and reports will be defined once the Application is
set up and loaded for production use and will be mutually agreed upon by
Provider and Customer.
Service Level Category 2: Security
This Service Level Category covers two subcategories of data security. The first
involves preventing users not authorized to use the Application from using the
Application to access Customer data ("Front Door"). The second subcategory involves
accessing Customer data from outside the Application in any other manner ("Back
Door").
AssetWorks Hosting Services Agreement Page 18
Subcategory: "Frontdoor" Access to Customer Data (via the Application)
Access Authorization
Objective
Customer Application and data will only be accessible by authorized users as defined
and managed by the Customer. Customer data is secured in separate database
instances.
Verification Method
To be determined by the Customer.
Subcategory: "Backdoor"Access to Customer Data (Outside of the Application)
Customer Network
Objective
If Customer elects to make use of a dedicated telecommunication line, Provider will
provide guidelines and technical recommendations to assist Customer in connecting to
the Application at the Data Center via its internal communication network beginning at
the Customer-provided router at the Provider's site. The Data Center is not ultimately
responsible for the dependability or security of the Customer's internal network beyond
the router.
Verification Method
The Data Center will verify the delivery of the guidelines and technical
recommendations.
Physical Access to the Data Center
Objective
The Data Center has implemented security measures to protect against physical
intrusion. Access to the Data Center building and the computer room is limited to
Data Center staff only. The Customer retains the right to inspect the physical
access to the facility.
Verification Method
Customer may verify by inspection.
AssetWorks Hosting Services Agreement Page 19
Service Level Category 3: Application Maintenance
An important element of providing Hosting Services for the Application is ensuring that
all appropriate upgrades, updates and fixes are applied in a timely manner.
Subcategory: Major Upgrades
Objective
Application upgrades (as defined by version number changes) will be installed and
tested by the Data Center within six months of their release by the Provider. Customer
will be provided with each module upgrade and documentation upon a mutually agreed
upon time frame within which to test the upgrade prior to its being available to the
Customer's users and interfacing with the Production database.
Verification Method
The Data Center will record the time between the Application release date and the end
of the Customer test period.
Subcategory: Minor Upgrades/Bundled Fixes
Objective
Updates, fixes, patches or similar minor changes to the Application will be installed
and tested by the Data Center within six weeks of their release. Customer will be
provided each module upgrade upon a mutually agreed upon time frame within
which to test the said change prior to its being available to the Customer's users
and interfacing with the Production database. Customer's custom modifications
will be tested by the Data Center and the Customer prior to their being available to
the Customer's users and interfacing with the Production database.
Verification Method
The Data Center will record the time between the Application release date and the
end of the Customer test period.
Subcategory: Immediate Fixes
Objective
Once the Data Center is aware of an Application problem, fixes available from the
Application vendor will be installed within a timely period, based on the criticality of the
problem as defined by the Customer or identified in Category 1 SLOs.
Verification Method
Percent of fixes that are completed within their target times.
AssetWorks Hosting Services Agreement Page 20
Service Level Category 4: Customer Service
Three subcategories of customer service are included in this Service Level Category.
The first examines the responsiveness of the Help Desk. The second examines the
Data Center's reponsiveness to requests for Technical Administration. The final
Customer Service subcategory examines a number of aspects of general
communication between the Data Center and the Customer.
Subcategory: Help Desk
The Provider will maintain a Help Desk whose function will be to support and assist the
Customer in diagnosing and resolving problems associated with the Application.
Initial Contact
Objective
The Help Desk phone line will be staffed during Business Hours. Business Hours
are defined as 8:00 a.m. to 6:00 p.m. EST, Monday through Friday except
Holidays. If a message is left during these Business Hours, a return call will be
issued within 15 minutes. Outside of Business Hours, in the event of a critical
application issue, a Data Center representative will be available by pager to return
Help Desk messages within 15 minutes. Additional pager phone numbers will be
provided to Customer for escalation if the first contact is not returned within 15
minutes. A Data Center representative will always be available by pager outside of
Business Hours, including Holidays.
Verification Method
Customer may place calls at any time to determine if the phone is staffed appropriately.
Inquiry Settlement
Objective
Customer inquiries to the Help Desk will be settled in a manner to achieve the SLOs.
Help Desk personnel will attempt to resolve the inquiries themselves at initial contact
with the Customer. In more complicated cases, the inquiry may be settled by assigning
a task to a Data Center specialist. In such cases, the SLO performance will be
monitored under the appropriate Service Level category depending on the nature of the
task.
Verification Method
The average time that is needed to resolve a Help Desk incident will be tracked.
Technical Administration
Objective
At times the Customer may request additional administrative services such as creating
a new database instance, modifying software or requesting an extra back-up of data.
Such services will be performed in a timely and cost effective manner to the Customer's
benefit. For each typical service, the cost (if any) and time to complete are listed in the
Scope of Services. Services not listed there may be handled on a time and materials
basis.
AssetWorks Hosting Services Agreement Page 21
Verification Method
The average time that is needed to complete an administrative request will be tracked.
Subcategory: Communication
Scheduled
Objective
Regularly scheduled Data Center communications with the Customer will be performed
in a timely manner and monthly at a minimum. Examples of potential communications
that are considered as regularly scheduled is contained in the Scope of Services
section of the Agreement. Late or missing communications should be reported by the
Customer to the Help Desk which will escalate and resolve the issue.
Verification Method
The Data Center Help Desk system will track the number of reported communications
problems.
On Request
Objective
Ad-hoc requests for information by the Customer will be handled in a timely manner
based on the timing commitment made by the Data Center or Help Desk in each case.
The delivery times for these ad-hoc communications will be estimated by the Data
Center or Help Desk as they are requested, based on their criticality and the length of
preparation time required. Additional charges may apply for these communications at
rates established in Section 4 of Attachment 3.
Verification Method
The Data Center Help Desk system will track the number of reported communications
problems.
Data Center Announcements
Objective
The Data Center will inform the customer of anticipated changes in Application
availability or performance with as much advance notice as possible but always
reasonably before any change occurs. The Data Center will contact the designated
Customer representative via e-mail and by telephone depending on the anticipated
criticality and time remaining before the event. These events will not be considered as
approved and will represent a failure of the Provider to meet the related SLO.
Verification Method
The Data Center Help Desk system will track the number of reported communications
problems.
Feedback
Objective
The Data Center will conduct periodic surveys of key customer contacts to assess
general Customer perceptions of the level of service being provided. Surveys will be
formatted to support Data Center SLOs. Printed surveys at the subcategory level will
be utilized annually. Telephone surveys at the category level will be utilized at least bi-
annually.
Verification Method
The Data Center Help Desk system will track the number of reported communications
problems.
AssetWorks Hosting Services Agreement Page 22
Attachment 3 - Fee Schedule
Start-up Fee
The implementation, development, training, interface, and data conversion pricing
("Start-Up Fee") is set forth below.
$ 4,875.00
$ 2,437.50
SOFTWARE- FleetFocus FA
Set-up Fees (one time) 1
Crystal Server Set-up 1
(Customer will purchase Crystal as per the license quote...)
Monthly Service Fees (billed annually in advance- Syr contract)
The monthly fee will be $ 1,472.25 per month for the term. The monthly service fees
(billed annually in advance), minimum or otherwise, will begin the 1
following the execution of this contract.
Fee Adjustments
st day of the month
For additional vehicle units beyond the existing contract, the fee will be $ 2.79 per
vehicle and/or $9.75 per month per MobileFocus unit
The fees set forth herein shall remain in effect during the initial 3- year term of the
Agreement. Thereafter, Provider shall have the right to adjust its fees upon 60 days
prior written notice to Customer. Provider shall not adjust its fees more often than once
per year. Notwithstanding Sections 3 and/or 8 of the Agreement, Customer reserves the
right to terminate this Agreement on less than 60 days notice if Customer does not
agree to accept Provider's proposed fee increase.
Total Fee Schedule:
AssetWorks Hosting Services Agreement Page 23
Hosting Services- FleetFocus FA
Set-up Fees (one time)$ 4,875.00 $ 4,875.0 One Time
FleetFocusFA, hosting pricing by vehicle equipment units
Reports/ Adhoc Server Set-up
(Customer will purchase Crystal as per the license quote.. .)
Crystal Server monthly
Test Reports/ Adhoc Database, monthly
MobileFocus monthly, per pda
'I-' ••'•-. -^tK& ^r..vjSuBS$ii
Units Per unit Monthly
350 $ 2.79 $ 975.00
1 $ 2,437.50 $
$
$
1 $ 9 75 $
:• *
Subtotal
2,437.50
487.50
500.00
9.75
$
$
$
$
J
Year One
11,700.00
16,575.00
One Time
Year One
5,850.00
6,000.00
117.00
'-
Invoiced annually in advance Year One $
Test Reports/ Adhoc Database, monthly discount (valid
I
Invoiced annually in advance Year Two
Test Reports/ Adhoc Database, monthly discount (valid
I
Invoiced annually in advance Year Three
Test Reports/ Adhoc Database, monthly discount (valid
I
One Time Fees
7,313
for 3 years)
None
for 3 years)
None
for 3 years)
$
$
$
$
$
$
$
$
$
Monthly
1,972.25
(500.00)
1,472.25
Hosting Total Year One
1,972.25
(500.00)
1,472.25
Hosting Total Year Two
1,972.25
(500.00)
1,472.25
Hosting Total Year Three
$
$
$
$
$
$
$
$
$
Total
30,979.50
(6,000.00)
24,979.50 |
23,667.00
(6,000.00)
17,667.00 |
23,667.00
(6,000.00)
17,667.00 |
AssetWorks will supply use of Oracle Database licenses in our datacenter.
Service Fees
Work requested by Customer beyond that described in Attachment 1, will be charged at
the following rates. Before any work is done which would incur charges billed as
Service Fees, the Provider will supply a proposal describing the work and providing an
estimate of hours, cost and completion date. Customer approval will be required before
work can begin.
$195.00/perhour
$195.00/perhour
Project Management
Programming and Training
Actual travel, meals and lodging expenses incurred in performing such services will be
included per the travel, meals and lodging section of this Fee Schedule.
Service Termination Fee
AssetWorks Hosting Services Agreement Page 24
If Customer terminates this Agreement other than pursuant to Section 8.2, "Termination
for Default," of the Agreement or Section 3 of this Attachment 3, a Service Termination
Fee equal to 100% of the Monthly Service Fees will be billed monthly until the end of
the then current Term of this Agreement or 90 days, whichever is less.
Travel, Meals and Lodging
In addition to the fees set forth above, Customer shall reimburse Provider for pre-
approved airfares, meals, ground transportation and other reasonable living expenses
incurred by Provider in support of the Agreement during provision of support services at
the Customer site. Provider will adhere to the Customer's Corporate Travel Polices to
the extent possible. In the case of an emergency requiring immediate air travel
arrangement, Provider shall use its best efforts to secure the lowest cost airfares. Under
no circumstances shall Customer be responsible for business or first class airfare
expenses.
Data Processing Audits
Eight hours per year shall be allocated to support Customer's personnel or Customer's
designee in an audit of Provider's services and records during Business Hours at
Provider's location. Additional hours, if needed, will be billed at the hourly rates noted
above. All out of pocket expenses incurred by Customer in connection with such audits
will be borne by the Customer.
AssetWorks Hosting Services Agreement Page 25