HomeMy WebLinkAbout5892SOFTWARE MAINTENANCE AGREEMENT
FOR AND IN CONSIDERATION of the mutual benefits accruing and expected to accrue hereunder, this Software
Maintenance Agreement ("Agreement"), dated the I IJ ofrL, 2018 (the "Effective Date"), is by and between
AssetWorks LLC., a Delaware limited liability corporation w�offices at 998 Old Eagle School Road, Suite 1215,
Wayne, PA 19087 ("AssetWorks") and City of Bremerton with offices at 100 Oyster Bay Ave North Bremerton,
Washington 98312 (hereinafter called "CUSTOMER"). Intending to be legally bound, the parties hereby mutually
agree to the following terms and conditions:
B. BACKGROUND
A�s %t�W9�rksand CUSTOMER are parties to a Software License Agreement, Number Q-00011 and dated
_,�Q� pursuant to which CUSTOMER is the licensee of certain software products ("Software" or
"Product") from AssetWorks.
The Software paid-up license fee includes a warranty without charge as set forth in the Software License Agreement.
The purpose of this Agreement is to set forth the terms and conditions upon which CUSTOMER has agreed to
subscribe to support and maintenance for the Software ("Maintenance") from AssetWorks.
C. TERMS AND CONDITIONS
1) Term
Maintenance shall commence immediately upon the Effective Date 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, it shall
communicate the circumstances and any supporting information to AssetWorks. Upon receipt, AssetWorks will
respond as follows:
a. In the event that, in the mutual and reasonable opinion of AssetWorks and the CUSTOMER, 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.
3) 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 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").
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No charge shall be made to the CUSTOMER for either Mandatory Revisions or Optional Revisions
b. New products ("New Products") may be added to the Software by AssetWorks from time to time. Compared
to a Revision, New Products substantially improve the performance of the Software and/or substantially
increase its functionality and capability. AssetWorks, in its sole discretion, shall decide which upgrades and
improvements will be issued as Revisions without charge and which shall be issued as New Products for
which there may be a charge.
4) Telephone Hotline Assistance
AssetWorks, at its expense, shall make available technically qualified personnel to respond to all reasonable
telephone requests, Monday through Friday, excluding State holidays, during normal business hours, that may be
made by the CUSTOMER relating to the application and operation of the Software. At other times such personnel
are available by pager for emergencies.
5) Technical Literature
AssetWorks shall make available to the CUSTOMER all technical literature in electronic format that is considered by
AssetWorks to be relevant to the Software and its use within the scope of CUSTOMER's operations.
6) Transmission
All Revisions and New Products will be made available for download by the CUSTOMER via access to the AssetWorks
website or other suitable media, at the option of AssetWorks. The CUSTOMER shall be solely responsible for
executing the appropriate instructions in order to transfer the Revisions or New Products onto its system.
7) Remote Diagnostic Access
The CUSTOMER shall provide appropriate remote access capabilities with which AssetWorks may, with the
permission of the CUSTOMER, remotely access the Software for the purpose of remote diagnostics and support.
S) Proper Use
a. Except as expressly authorized under this Agreement, CUSTOMER shall not modify the Source Code as
defined in the Software License Agreement.
b. The CUSTOMER agrees that all reasonable effort shall be taken to ensure that neither the Software nor data
files are misused or modified without the express written permission of AssetWorks.
c. In the event that the CUSTOMER or its agents misuses or modifies the Software or data files, including, but
not limited to, inserting, updating, deleting or otherwise modifying data through a means other than the
Software, although AssetWorks is not obligated to correct such misuse, AssetWorks shall be entitled to
attempt to correct the situation, if possible, at CUSTOMER'S expense.
d. In the event that diagnostic assistance is provided 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.
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9) Software Maintenance Fee — Paid Up License
In consideration of the Maintenance services to be provided by AssetWorks for the initial twelve month period
hereunder, CUSTOMER shall pay to AssetWorks an amount set forth on Exhibit A. For each twelve month period
thereafter, CUSTOMER will pay to AssetWorks fees in accordance with this Agreement.
10) Additional Software Maintenance Fee — Paid Up License
In the event the CUSTOMER acquires Software in addition to that indicated in Schedule 1 of the Software License
Agreement (the "Additional Software"), the Maintenance shall automatically 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 at the time of acquisition.
11) Other Fees and Expenses
If onsite maintenance is required, 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
e. 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.
a. 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.
b. 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.
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14) limitation of Liabilitlr
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.
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 State of Washington, and any disputes resulting in litigation shall be heard in the Superior Court of
Washington in Kitsap County.
f. Any communication or notice hereunder must be in writing, and will be deemed given and effective: (i)
when delivered personally with proof of receipt; (ii) when sent by a -mail; (iii) when delivered by overnight
express; or (iv) three (3) days after the postmark date when mailed by certified or registered mail, postage
prepaid, return receipt requested and addressed to a party at its address for notices. Each party's address
for notices is stated below. Such address may be changed by a notice delivered to the other party in
accordance with the provisions of this Section.
AssetWorks LLC CUSTOMER:
998 Old Eagle School Rd. - Suite 1215 Milenka Hawkins -Bates
Wayne, PA 19087 City of Bremerton
Attn: John Hines 100 Oyster Bay Ave North
Copy to:
Director of Contracts
Bremerton, Washington 98312
(360) 473-5333
milenka.hawkins-bates@ci.bremerton.wa.us
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AssetWorks, Inc.
998 Old Eagle School Rd. - Suite 1215
Wayne, PA 19087
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 any action
at law or in equity to enforce or interpret the terms of this Agreement, the prevailing party will be entitled
to all relief that the court deems appropriate to award.
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.
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.
IN WITNESS WHEREOF, the parties hereto, intending to be liable bound, have entered into this Agreement, effective
as of the Effective Date.
CUSTOMER
By; 4.
14
Name: GCew was}t.`eC'
Title: M0, YO f
Date:
AssetWo ks l C
By. �
Name: 'ti
Title: �J +'re 1 c I � l�
Date:
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Exhibit A
Maintenance Fees:
Year 1
Software Maintenance
Maintenance TOTAL:
Five year maintenance schedule:
USD 4,180.00
USD 4,180.00
USD 4,180.00
USD 4,389.00
USD 4,608.45
USD 4,838.87
USD 5,080.81
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