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ORIGINAL
American COrtserveitlonFt Billing Solutions:
AQUAHAWK
"SOFTWARE-AS-A-SERVICE"MANAGED SERVICES AGREEMENT
ThisagrapmenfC'Agreement")is entered into,to be effective as of11/26./2010 C'EffeCtiVp Date'),band betWeen City
of Oshkosh located at.215 Church AvenPe, Oshkosh, WI 54903 (OuStoMer), and American Conservation
& Billing
iSeluthina,int.:(AmColal)located at! 13:0.Bok.:81358,ColOrado Springs;CO, 80949( Service Provider"):
RECITALS
WHEREAS,Customer„requires.hosted third party"sOftWare-es-a*service"(the"Services'ea Nether desttlls00 herein).
with respect-to"dertain of its infortnettOri ledfthelOgV.needs;
WHEREAS,Service Provider[lee.eVeffende and experdS0 in the;business of ProViding.the Services;
WHEREAS,based on Service Providers knowleclgeandexperiende relating to such Services,CuStoMer has-selected
Service ProvI$itc Menegttrand-provide the SerVIces;
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WHEREAS, Service Provider wishes to perfOrin the Services and acknowledges that the successful performance of.
The Services and thetthe,Sedtfrity and availability of Customers data("CustOrner Data,"aa-further described herein)are critical
to the operation:Of Customers business;and,
.WHEREASAervideProViderhasagreed to proVidelhe SerViCeS to Customeriall on thelemis:anc.1 denditibilaSetrfOrth
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NOW,THEREFORE, in consideration'of the mutual.covenants and representetioris setldrth.in this Agreement the
parties hereby agree as follows:
The:Services.
1,1 :Putobse:.Term..This Agreement sets:fortil..tha terms end conclitkirtsunder which Seri/ice.Provider agroes to
license certain hosted"software-as,s-service",and.provide all other sell/Idea;statalrilpert faxPortroionitOring,
.support :backup-and recovery, change (.00009eftent, technology upgrades, end.training necessary for
Customers productive use of such software(the "Services),aa.furtheraetiOrth on Exhibit A(Selmentielly
hurnhered)attached hereto,The Agreement and each Exhibit A shall remain In effect unless terminated as
Provided herein..
1,1,1. Authorized'Users,.Unless otherwiStS.litnited,onen ExhibitA.CustoMerand any of its employee*
agents,contractors,or suppliers of services that haVe'a need to use the for the.benefit
of Customer shall the right to operate and use the same,AS:a part of the Service Service
Provider shall be.responsible ter all,userldentificatipn and password change management
1.2 Control ofServiceS.-The method and means of providing the Services shall be under the exclusive control,
management,and supervision of Service Provider,giving.dueconslderation teiherequeStS of Customer,
1.3 Time.of Service Provider Performance-of Services;Forthe term'Ofthe:applicable EXhibit'A,es.thasamemay
be aMended, Service Provider shall provide the:Services.during the applicable Service Windows and:in
accordance with the applicable ServiceLevels,eieokaa desoribed inan:ExhibitAe tirrie..beirig-Ofthe essence.
1 A Backup and ReedVaryi Customer Data. As a part of tip $ervibes,.Service provider-is responsible'for
maintaining backup of Customer pato',for an orderly and timely recovery of such data in the event that the
Services rnay be-interrtipted. Unless otherwise described in an pthibit.A Service Provider shall maintain a
contemporaneous backup of Customer Data that can be recovered within forty eight:(48)hours at any
in time.AdOitionalIV, Service Provider shall store a backup of Customer Data an Off-site"hardened fadillty
no less than weekiyinrialntalning.thesedUrIlY PfCVStorrier.Data;the security requirements of Which are further
described herein.
1,5 Non-ekolusivity. Nothing:het-61;1.111a be.deemed to.preelucle Customer from retaining the services.of other
Persons or entities undertaking the same or similar functions as.those undertaken by Service Provider
hereunder.
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1,0 Chanee tontrol Procedure Customer may,uppn:Written nOtice,request increases or decreases to the-step°
of the,Services under an,Exhibit A. If Customer requests an increase in the scOpe, customer shall notify
.Servibe,Prpvidee ande not more than five:(5)business days (or other mutually Agreed upon period) after
receiving the request, Service Provider shall notify Customer whether or not the change has an associated
cost impeot if Customer ogee:Nes, Customer shall issue a.change control; which will be executed by the
Service Provider Customer shall have the right to decrease the scope of services and the fee for an Exhibit
A willbe reduced accordingly.
2. •Terfreand Ten-gelation,
2.1. Term.Unless this Aereethent or an Exhibit A IS terminated-earlier in accordance with the terms set ferth.in this
Section, the term of an Exhibit A (the Initial Term!)shall commence on the Effective Date and continue for
'twelve(12)months thereafter.Following the Initial Tertn,an ExhibitA ehall automatically renew for successive
one*yearterms.(ea0h,a:IllenewatTerer):tietil such time.as.Customer provides Service Provider with written
inotice of termination:preVidect,however that (a)suet notice be given no fa-WO-then thirty(30)calendar days
prior to the last day of the therecurrentterm; and, (b)any such termination shall ee:effective-As of the Cate.
that would have been the-first ley of the next Renewal Term,"Terre shall CelleetiVely:Meen.and Include the
Agreement -by the Ihitial Term and the Renewal Term.
Termination for Cause.if either:party Materlelly breaches any-of its dutiee'Or obligations hereunder, including
two periods of successive failure of Service Provider to meet a Service Level,.and such breach is not cured,
or the breaching party 10.-fi0tililidOntrjr pursuing a cure to the non breaching party'S tole satisfaction,within.
thirty(30)calendar:days after written notice of the.breabh,then the nerebr0aolting party may terminate this
Agreement or:an ExhibltA:for cabeteeeof a date seecifiedinsuch notice.
2,3. Payments Litton Terniinatioe.,Upon the expiration or terrienation of this.Agreement or en:Exhibit forany
reasoni Customer shall pay to Service Provider all undisputed amountedueene payeeletterseirider.
2,4' Return of Materials.Upon expiration oreatilerterneriatiOn of this Agreement:Or an Exhibit A,each party shall;
(a)promptly return to the Other party or peen the destruction of any of the following of the party liele in
connection with the performance of this Agreement.or the Services; (i)all Confidential infermatidn; and,(II)
Any Other'data,pregrams,and materials arid (b)return to the other party or perm itthe Other party to remove;
Any properties ofthe other party then situated on such parheePremieee In the case of Customer Data,Service
'Provider shall Immediately uporttemenetion of this Agreement or ExhibitA,shall provide Customer with a
final export of the Customer Data and shall certify the destruction of any Customer Data within the possession
of Service Provider The parties to wedeln good faith to execute the foregoing trta timely and efficient
Manner. This Secticirt-theltseiVivetheterreinatien"Ofthis Agreement.
Termination Assistance Services. Provided that this Agreement,or an Exhibit:A has-not been terminated by Service
Provider due to Customers failure to pay any undisputed-amount due Service Provider Service Provider will provide
to Customer mai or to the supplier selected.by Customer(such supplier shall be known as the 4Successor Service
'Provide?), at Customers sole cost and expense assistance reasonably requested by Customer In,order te effect the
orderly transition of the applicable Services,.In whole or in parte to Customer or to Successor Ser9ice Provider(such
assistance shall be known as the.ererminateleAssistance Services)during the ninety(90)calendar day period prior
to, and/or foilowing,the expiration or of this.Agreemeet.or an Exhibit A, in whole or in pert:(s140:0041
shall be known as the.'TerreinationAesistance Perioce.),Provided that Service Provider and CqstOmer agree as price
and scope of Service Provider's provisioning of Tennihation.Assistance Services, such Termination:Assistance
Services.may include
11 Developing a plan for the transition of the terminated or expired-Services from Service ProVider to
Oustorner orthesuctosor Service Provider;
31 P:revicirit.reasonable training to.Customer staff-or the:goOtessolieimoe.PrOvider imthe-performanceof the
Senticeethen being perfOrmed by Service Provider;
3 3 UsIng commercially reasonable efforts to assist Customer;et Customer's sole cost and expense,in acquiring
any necessary rights to legally and physically access and use any third party technologies and documentation
then being used by-Service Provider in connection With:theSerelees;
3A Using.cernmerclally reasonable efforts to make,available toteettenee pursuant to mutually agreeable terms
and conditions,any thecepatty services then being Used by Service Provider in connection with the Services;
.ana,
3.6 Such otherectivities'upon welett theparees May agree.
36 The provisions of this Section shall Survive the-termination of this Agreement:
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Services:Levels
4,1 Service Levels Reviews Service Provider and Customer will meet as often as shall be reasonably requested
by Cuttomer, but no,more than Monthly,to review the performance of Service Provider'as.it relates to the
SerViCe Levels further described in Exhibit A,
•4,2 Failure to Meet Service Levelt As further in Exhibit A,:in the PhiVider does net meet
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any of the requisite.Service Levels, Service Provider Shell: (a) reduce the applicable.montnly invoice to
Customer by the amount of the applicable Performance Credits as a credit, and not at liquidated:damages;
and, (b)use its efforts to ensure that any unmet Service Level is subsequently met Notwithstanding the
foregoing,Service Provider will usecommercially reasonable efforts to minimize the Impact or duration of any
Outage, interruptjorh or degradation of Service.
Fees and Expenses.Customer shall:beresponsible for and shall payldServiCeProvider the fees as further described.
in Exhibit A„subject to the terms and conditions contained therein. Any tom 40e• Service Provider for Services
performed for which payment is not.otherwise specified shall be due!and Payable:thirty.,(30)clays after receipt by'
Customer of an invoice from Service Provider
5.1 Billino Procedures, Unlessotherwite provided for under an.Exhibit A, Service ProvidershalIbljIjbstomer
the sums due'ptirsuant.te:-en Exhibit A by SerVice.Provider's invoice, which shall contain: (a) Customer
purchase order number,it any,and ihydee number;.(b)description of Services rPridPred;(0 the Services fee
or,portion thereof that Is due; (d) taxes, if any; and, (e)total amount.due': Service Provider shall forward
invoices in herdOopY format to:.Accounts Payable,215 Chtnth-Av.anuei Qthi$Oak.WI-54903
52 Credits.Any amounts due from Service Provider may be applied by Customer against any fees dwe to Service
provider.Any such amounts that are not so applied shall be paid to Customer by Service Provider within thirty
:(30.):days following customers request.
'5.3 Taxes;SerViCe Provider represents and warrantslhat:it is a corporation:for.purposes of federal, state, and
local amployment taxes,Service Provider agrees that Customer is not responsible to collect or withhold any
such taxes including income tax withholding and social security for Service Provider.. -Any and
all taxes interest or penalties including any federal,ttate,or local withholding or emoltiyinenttaxes imposed,
assessed,or levied:as:a result:Of this Agreement shall be paid or withheld by Service Provider,
6.. Customer Resources and Service Provider Resources,In accerdande with the terms-tettirth in-Exhibit A,eactIparty
shall.provide certain resources (Customer Resources and Provider ResOurCes., as the cate may be)to the
other party as Custorner and Service Providemay mutually deenneCesSary toperfOrrn.the.Seryiees,
t service Provider Resources. In addition to. 'Service Provider Resources,described in an Exhibit A, the
Service Provider shall, at a Minimum, provide all of the resources necessary to ensure:that the Services
continue uninterrupted,considering the'applidable.Sengice Wridowt and Service Levels that Customer Data
is-secure to the standards and satisfaction of Customer and !provide-for a reasonable response.time for
QuMomer's users of the Services. Where-Sennce Provider fails to provide such minimal Service Provider
Resources;Customer Shall have the right to terminate this Agreement or the applicable,Exhibit A,with thirty
clays(30)Written notice,.in whole or in-part,without liability.,
7:. Reoresentations and:Warranties,
7.1 Mutual Representations and Warranties, Each of Customer and Service ProVider represent and warrant that.
7;1.1 It is arbutiness..dyly incorporated, validly existing,and in.goed-Standing under the laws of its
State Of incOrporation;
7.1,2. It-has.all requisite power,Inandiar P:a0gity,-and authority to:execute,:deliver,.and
PeffOrm RS Obligati!**under this Agreement;
'This..Agreement,when.executed and delivered, Shall:be a Valid end binding obligation of it
enforceable in accordance with its terms;
The eXecutiOn,delivery;and performance of thi$Agreement has.been dulyauthorized.by Wand
this Agreement-constitutes the legal, valid, and binding agreement of it and is orifor4000le
ago.nstit in accordance with its terms, except as the enforceapility thereof may be.iirnited:by-
bankruptcy;insolvency reorganizations,moratoriums,and similar affecting creditors'rightS
!generally and,by generalaquitableprincioles;
inai6A.TAincerei..All'aight$-Resgrvecl.Prop:iletdry,&:Coiiiidenual
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It shall comply with all applicable federal,state, local, or other laws and regulations:applicable
to the performance by it of its obligations under this Agreement and,shall obtain all applicable
permits and licenses required Of itin connection With its obligations under this..Agreementandf
Thereis no outstanding litigation, arbitrated matter or other.dispute to which it is'a party which,
if decided unfavorably to It would reasonably be expected to have a potential or actual material
adverse effect on its ability tdfulfill its obligatiOna-undertrileAgreerrierit.
7.2 By Service Provider Service Provider represents and warrants that
7:t1 Service ProVider la POssessed ofextensive knowledge with respeche the.Setvlbeei
Service Provider knows the particular purpose for WhiclitheSerViCee are required:
72.8: The Services to be performed under this Agreement shall be performed in a competent and
professional rhannerend litaCeerdartee with the:highest professional standards;
714, Service Provider has the experlenceand is ouallfied to perform the tasks inVolvedWittyproviding
the Services in an efficient and timely manner..Service Provider acknowledges that Customer Is
relying on Service ProVider's.representation of its experience and exPertise, and that any
substantial misrepresentation:may reaultin damage to Customer',
Service Provider will;use its best efforts to ensure that no computervittlapa,,Malviiere„:-Wairtillei'
Items (collectively, the 'Virus) are:. introduced into' Customer's computer and network.
emilrontlentwhile perfOrmiligthe ServiCes,
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The Services.and•any other work performed by:Service Provider hereunder shall.be Its eum,
work, and shall not infringe upon any United States or foreign copyright patent Trade Secret
or other proprietary 04 or misappropriate any Trade Secret of any third party,.and that it has
neither assigned rier otherwise:entered into an agreement by which it purports to assign or
transfer any right,title, or Interest to any technology.or intellectual property right that would
conflictwith ita•Oblidationa under this Agreement.
.s. ,Non-Disclosure of Confidential information. The parties,acknowledge that each party May be exposed tdOr•aeouire
communication or data of the other party that is confidential,privileg-„am.cOMMUnicaticin'not intended tb.loedisClosedt0
third parties.
0,1 Meaning of Confidential inforrnatiOn.For the purposes of thlii-Agreettent,:the-term,cConfidential information
shall mean all information and documentation of a party that•(a)has been.marked"Ccinfidential"or with Words
of similar meaning et the tirrleofdisolosure by such OW(b)iftfisOldsederelly or not marked"confidential"
:or with words of similar meaning was subsequently summarized in writing by the disclosing entity and Marked
.!confclentier or with words of similar meaning;(c)with respect to Information and documentation of Customer,
whether marked"Confidential°or not, consists of:Customer information and documentation included within
any of the following categories: (i)policyholder payroll account, agent customer,supplier or contractor lists;
(ii)policyholder,payroll-4ccOunt,agent oustemer.SOOplier,or contractor information;(iii)information regarding
business plans '(strategic•and tactical) and operations (including-,performance); (iv) information regarding
edMinletratiVe., Ifirlarleial, or marketing activities; (v) pricing informatlem AO-Personnel information; .(v1I)
products and/or and services offerings (including specifications:and'designs); or, processes (e,gtechnical „
logistical,and engineering);ori(d)any Confidential InforMetionidetived'from information of a perty,
The term"Confidential Information"does not include any Information or documentation that (a)'already
In the possession of the receiving entity without an.obligatlen.of confidentiality; (b).developed independently
by the receiving entity, as detrionStrated.',by the receiving:entity, without.violating The disclosing entity's
proprietary rights; (c) obtained' fron.a.source other than the disclosing entity without an obligation of
confidentiality; or„(d) publicly available when received, or thereafter became publicly available (other than
through any unauthorized dISOInture:tit through or-on behalf of,Me receiving entity).
8.2 Obliaatien.•Of Confidentiality...The parties agree to hold all Confidential.InforMation In strict confidence and net
to copy, reproduce sell,.transfer,.or otherwise dispose Of; give,or disclose such Confidential Information to
third parties other than employees,agentafcr subcontractors of a party have a need to know in connection
with this Agreement Or to use APO.Confidential Information for any purposes whatsoever other than the
performance of this Agreement or as required by the Wisconsin Public Records law-The parties agree to
advise and.require their respective etnployees, agents and subcontractors of their obligations to keep such
information:confidential,
0:3 Cooceratjon to Prevent Disclosure of Confidential Information. Each party•shall use its bestefforts to assist
the other party In identifying: and.preventing any 'unauthorized use or disclosure of. any Confidential
if4e16-1.7itntoPLAII:Right§Reseryart Proprietary St:Confidential.
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inform ationrwithout limitation of the foregoing;each party shall advise the other party immediately in the event
'either party learns or has reason to believe that any person who:has had access to Confidential Informatien
has Violated.or intends to-violate the terms of this,Agreement and each party wilt cooperate with the Oiler
Party In seeking injunctive or otherequitabla relief against any.such person.
.814 Remedies for Breach of ObliCation of Confidentiality;Service Provider acknowledges that breach of Service
Provider's obligation of confidentiality may give rise to irreparable Injury to Customer and the'customers
of
Customer,which damage May be inadequately derripensable in the form of monetary damages. Accordingly,.
Customer may seek termination with thirty (30) days written notice; without penalty to CUstOrrier, Of this
Agreement in wholsor in part.
5 The proviSIOnSof thisSeotion shall survivetheterrerinatien Otis Agreement.
9. Proprietary Ridhia..
91 .PreexiStino Materials: Customer acknowledges that,. in the degree of.performing:the Services, Service
Provider may use software and related.processes, instructions, methods, and techniques that have been
previously developed:by Service Provider (ooileotivoly, the "Preexisting Materials') and that same shall
remain the sole and exclusive property of teniice:ProVider
9 2 ..Data,of Customer, Custemers-information,.or any derivativesthereef, contained-0 any SerVice.Provider
repository(theCiistOrtier Data Which shall also be kriown.andIreatect by Service Provider as Confidential
Information)shall be and remain the sole and exclusive property of Customer CuStOrrier'shell.:be entitled to
an export of Customer Data; without'oharge, upon the request of Customer and upon termination of this
Agreement Service Provider is provided•a license to Customer Data hereunder for The sole and exclusive
purpose of providing the. Services, including, a license:to. store, -record, transmit, maintain,. and 'display
Qusterner Date only to the.extent necessary in thelrovisioning of the Soo/Ices
93 License eXpressly set forth herein,no literise is granted by either party to the with respect
'to the Corifidential Inforrnation,Pre existing Materials,or Customer Data Nothing In this Agreement shall be
construed to grant to either party any ownership or other Interest,in the Confidential Information,Pre-existing
Materials,. or Customer Data, except es may be:provided under a license specifically applicable to such
Confidential Mtn-nation; Fire-existing Materialkor Customer Data,
9.4 'The provisions Of this Section shall Survive-the terminationsof thisAgreement
10. Information Security: Service Provider aCknoWledges that'CuStOrnerMaY.haVe..imPlehiented an inforinatiPn!security
program.(the-Customer inforMatiOn Security:program) to protect Customers information assets, such information
assets as further defined and classified in the Customer Information Security Program (colleCtiVely, the,"PrOteeted.
Data ). Where Service Provider has access Protected Data,Service Provider acknowledges and agrees to the
following.
10.1 Undettakinti by.Service Provider,Without limiting Service Provider's:obligation.of confidentiality as further
described herein, Service .Provider shall be responsible for establishing and maintaining an information
;security program that is designed to:(i)ensure the secority'and confidentiality of the Protected Data;(II)Protect
against any anticipated threats or hazards to the security(*integrity of the ProtectectOata;.(iii)-protett against
unauthorized access 0:or use of the Protected Data (iv)ensure the proper disposal of Protected Data,and,
(v)ensure that all subcontractors of Serylors-ProVider;if any,comply with all of theforegoing.In:nape-se:shall
the safeguards of Service Provider's information security program be less stringent than the information
security safeguards used by the gystomer Information Security Program as provided by Customer to Service
Provider for this: purpose. The Customer inforthation. Security .Program is Confidential .infOlmatiO0.
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Customer.
10.2 Right:of Audit by Customer, COStomer shall have the right to review Service Provider's:information security
program prior to the commencement of Services and from time to time during the.term of this Agreement.
During the performance of the Services on an ongoing basis from time to time and without notice,Customer,
at its own expense shall he entitled to perform, or to have performed an on-site audit of Service.Providers'
inforMatiOn•se0OritY•progreM.10 lieu of an on site audit upon request by Customer Service Provider agrees.
to complete withIn..fortyfive (45 days)of receipt;an audit-.questionnaire-provided by Customer regarding:
Service:Provider's information;Security pregraM,
11. Proprietary'Rights:Indemnification„Service Provider.agree S to indemnify; defend, and hold Customer Indernnitoes.
harmless from and against any and all claims including reasonable attorneys'fees, costs;and expenses incidental;
thereto,which may be:suffered.by,accrued against,charged to,dr recoverable from any.Cuttomerindernhitee,arising:
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out of a clairrithat the Services infringes ormisapPrOPrIates any United States arfOreign.patent.copyright trade seCret
trademark or other proprietary right In the event that Service Provider is enjoined from delivering either preliminary or
permanently, or continuing to.license to Customer,the Services and such injunction is not dissolved within:thirty (30)
clays„or in the event that Customer is adjudged; in any final order of a court of competent:jurisdiction from which no
appeal is taken,to have,infringed upon or misappropriated any patent, copyright, trade secret,trademark or other
proprietary right in the use of the Services,then Service Provider Shall;at its expense.,(a)obtain for Customer the right
to continue using such Services;(b)replace cirtodify such Services so that it does not infringe upon or misappropriate
such proprietary right and is free to be delivered to.anctused by Customer,or,-(c)in the event that Service Provider*
unable or determines„:in its reasonable judgment, that it is commercially unreasonable to do either of the.:
"afOreirrientioned, Service Provider shall reimburse to Customer the full cost associated with Termination-AssiStance.
Services,
-12. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH'HEREIN, NEITHER pARTy'
:SHALL BE LIABLE FOR ANY INDIRECT SPECIAL AND/OR CONSEQUENTIAL DAMAGES;ARISING OUT OF OR,
IN CONNECTION WITH THIS AGREEMENT PROVIDED HOWEVER,THAT THEPOREGOING:EXCLILPAT1 ON OF
UABILITY SHALL—NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT'OF THE GROSS
NEGLIGENCE OR WILFULL MISCONDUCT OF A.PARTY.A PARTY SHALL BE LIABLE TO THE 2THER FOR ANY
DIRECT DAMAGES ARISING OUT OF OR RELATING To. ITS PERFORMANCE OR FAILURE TO PERFORM
• UNDER THIS AGREEMENT; PROVIDED,.HOWEVER THAT THE LIABILITY OF A PARTY,.WHETHER BASED ON
AN ACTION OR CLAIM IN CONTRAPT,EQUITY;NEGLIGENCE,TORT,OR OTHERWISE FOR ALL EVENTS,ACTS;
OR OMISSIONS UNDER.THIS.AGREEMENT SHALL NOT EXCEED THE LESSER OF ANY APPLICABLE
STATUTORY LIMITATIONS OR INSURANCE .POLICY LIMITS, AND PROVIDED FURTHER. THAT THE
FOREGOING LIMITATION SHALL NOT APPLY TO (A)DAMAGES CAUSED BY A PARTy'S GROSS NEGLIGENCE
OR WILFULL MISCONDUCT; OR (B) A PARTY'S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALI'TY, AS
FURTHER.DESCRIBED IN THIS AGREEMENT. This-Section shall survive•thetentination of this Agreement:
11, General.
1:3A Relationship:between Customerand-Service Provider. SeiViae ProVidet repreSents.aridWArrantaltratit is an
Independent corporation with no authority teCeritiact for Customer or in any way to bind:art°commit Customer
to any ogreOrnOnt of any kind or to assume any liabilities of any nature in the-name of or on behalf of Ctistoiger
Under no circumstances shall Service Provider;or any of Its staff if any,hold itself out as or be considered an
agent employee,joint Venture or partner of Customer,In recOgnition.of Service Providers status as an
independentcOrporatieni Customer shalt:carry:ha Workers,'Compensation Insurance or any health or accident
insurance to cover Service Provider or Service Provides agents or staff;If any, Customer shall nat pay any
contributions to Social Security, unemplOyMenLinsuratice, federal.or state,Withholding taxes; any other'
applicable taxes whether federal state,or local', nor provide any other contributions or benefits which might
be expected in.an employer employee relationshiP, Neither Service Provider nor its staff, If any shall tie
.ellgible for,participate in, or accrue any direct or indirect benefit under any other compensation,-benefit,or
penslanplan of Customer.
13.2 Governing Law.This Agreernent-Shall be governed by and construed In accordance with the laws of -State
of Wisconsin and The federal laws of the United States OfAmerica. Service Provider hereby consents and
submits to thejurisdiation,and.forum of the state and federal:Courts in the State of Witico.nein in all questions
and controversies arising out of this Agreement.
13.3 Dispute Resolution,. In the event of any dispute or disagreement between the parties with respect to the
interpretation:of any provision of this Agreement,or with respect to the performance of either party hereunder,
Customer and Service Provider will meet-for:the purpose of resolving the dispute If the parties are unableto
resolve the dispute WithitrfiVe 0/Waking days ar.as otherwise agreed,:either party.Maythen seek whatever
remedy is available in law ortr.eqUity, The provisions of this SectiOrt will not apply to any dispute relating to
the parties'-obligations ofnen.disolooteend•Confiaeritiality ea.fOrther described,herein.
13,4 Ootnollence•Wth LaW4-CUStoiner Policies anctProceduresr Both parties'agree to.comply applicable
federal,state, and local laws executive orders And regulations iisueg, where applicable Service Provider
shall comply With.Customer policies and procedures Whets;the same are posted conveyed or otherwise
made-eyallable to Service Provider Without limiting Service.Providers other obligations of indemnification
herein, Service Provider shall defend,.indemnify, and hold Customer Ihdemnitees harmless from.and against
any:aridall Claims;including reasonable expenses suffered by accrued against,or charged to or recoverable
froaranybustomer•Indeninitee,on account 0f-06100re:of Service Provider to perform its obligations imposed
herein.
13.5: Cooneration. Where agreement, approval, acceptance, consent or similar action by either party hereto:is
required'by any provision of this Agreettetit,sUitin action shall'not be unreasonably delayed.arwitnheld, Each
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A IlleeiCa.I/COMM ad 0 n Billing Solutions
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party will cOoPerateWith:the other by,among other things;Making available as reasonably requested by the
other,management decisionstinformation,approValSiand'acceptantes in order that each party may property
accomplish.Its obligations and responsibilities hereunder, Service Provider will cooperate with any Customer
supplier Performing seniices,and all parties supplying hardware,software communication services and other
liftVibes and products.to Customer, including,without limitatitin,'the Successor Service.Provider Service
.:PrO0cleragrees to cooperate with such suppliers and shall not commit or permit which mayinterfere
:with'the performance OffserViCee:Weny such supplier.
13 6 Force Maratha..Neither party shall be liable for delays or any failute to perform the Services or this Agreernent.
. .
due to causes beyond its reasonable Such delays*Ride,but are not limited*);fire,explosion,flood
or other natural catastrophe, 0Vemmental legislation acts,orders.1 or regulation, strikes or labor difficulties,
to the extent not occasioned by the fault or negligence of the deilayedparty.Any such excuse for delay shall:
last Only.46 long as the event remains beyond the reasonable control of the delayed party;However the
:delayed party shall use its best effonSteMiniMige_thedelays.caused by any such eyentbeyOnditaroasonable.
06rikeo,Where se.n4c4 provider fails to use Its best efforts to minimize such delays, the delays shall be,
Included in the determination of Service Level;achievement The delayed party must notify the other party
promptly upon the occurrence ofany such event,or performance by the delayed party will'riot be
excused pursuant to this Section rand inform the other party of Its plans to resume,performance A force
majeure event does not excuse Service,Provider from providing Senilcas and]fulfilling its responsibilities
relating to the requirements of backurand.tecOvery of Customer Data.Configuration changes other changes,
viruses:/maIwater or other errors or omissions introduced,or permitted to nelntrOOPOeci;by Service Provider
that result in an outage or:Inability for Customer to'uSe the Services shall rtOt gonstitOtee force majeure event
No Waiver.The failUteof either party at.any time to requireperformance by the other.party of any provisiOn of
thisAgreement shall in noway affactlhat party's right to enforce:such proviSions,nor shall thewaiver by either
party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach
lofthesanie*vision.
'It8 Notices.Any notice given-m*10m toltije Agreement shelf()eh writing and stiail:be given by:perscria!service
or by United States certified.mell,.return receipt requested;postage prepaid to the addressee:appearing-at the
end of this Agreement or as Changed through-written not!ce to.the gMer party. Notice given by personal
service shall be deemed.effectivef on the date it is,delivered to the addressee, and notice'Mailed shall be
deemed effective-oh the thirdday f011Owing its-placement.in'the milfeddressed to the-addressee.
13.9' Assignment Of.Agreernent This Agreement and the obligations Or$ervice PrOVider hereunder may be
assigned In connection With:a-sale of:.$ervice,Provider's assets or stock or through merger; an Insolvency
proceeding orothetWIteiWith:otior Written notice to the tustorner.
13.10 Counterparts Facsimile.This Agreement,may be-executed'In.one or more CoUtiterParts,each of Whictishall
be deemed an:original, bot-all of which together Shell conStitute,one.and the same Agreement The parties
agreelhat.a facSirnilesignettttemay substitute and have the same:legal-effect:as the original Sigriaturai.
13.11 Entire Agreement This Agreement and its attached exhibits constitute the entire agreement betWeen•The
parties and $Pper$04.e. any and all previous reprieseiritatioris, understandings, or.agree.ments. between
customer and.Senilda:Provider as lathe subject Matter ti9rOof.This 4greement may only be amended by an
Instrument in Writing signed by the Oartlea,
13.1 Cumulative'Remedies.All righteand.remedies of Customer herein shall be in addition to all other rights and
remedies:available at law or in equity, InoludIngi without limitation, specific performance,against Service
Provider for the enforcement of this Agreement,and temporaryand permanent injunctive'relief.
140447 Ame,oal..All Rights Resehied,'PeOpriObty&Copfiderif01
S.
i . American ConservationS Billing Solutions
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gaii.„4,11,41;
EXe011ted oaths dates set forth belOw.bytheundemigned authorized representative of Customer and Service Provider
to be effectiVe:aSof the Effective Date,..Additionally,:bytheir signature;the undersigned egret?to:the:tenns In Exhibit A
and Exhibit
CIWOF OSHKOSH. AMERICAN CONSERVATION 8.t BILLING SOWTIONS,INC
(CUSTOMER) (SERVICE PROVIDER)
• %:
Ma A,RohlOff By:
Name: Charles Whiteside
Gi •Manager
Title;President
And!.
Pamela E01/. fig Date 12-.
CityCletk.
"rDn[
Address for Notice
Date: /
PO Bo 51356.'
I hereby Certikthatthe necessary proyiSions have Colorado Springs,.CO.809.*
been made to'pey the liability "Ich.WillSocrue under
this agreemen
Russ Van 0:Orval
Fin co Director
hv\AA—,
"• "n Loreirison
citOtterneY
Address for Notice:
215 Church.Street
Oshkosh,W! 54g03
eqe.40-17A740.134AliFilghts ilwrkieci.Proprietary&Confidential a
k "
V4 Aniericanconservatiortatilling Solutions
EXHIBIT
Aqua Hawk
SoftwarePas44erviee Statement,of Managed Seivices
This Exhibit A-Service Provider 3:66ftWare-eei•a-Seirvide Staternentof Work shall be incorporated in and gpyernedliy
the terms of that certain Master Professional Services Agreement by and between CITY OF OSHKOSH ( Customer) and
Amerttati Conservation & Billing ;Solutions, Inc. (AmCoBl) ("Service Provider") dated 1112712019 as amended (the
lAgreemenr). Unless expressly provided for in.this Exhibit A in the event of a:ccinflidt between the Orevislens-contained in the
Agreement and these contained in this Exhibit Ar theprovisions contained.im the Agreement shall prevail.
„. . . .
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Services Dee0dOttee! AquaHawk v.1.2.14- A-bustomer portal-sOlutlorffor
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SOppOrt Description; CUstomertupport f,itiltioph.onstatid e-maills included far utilityamployees.
. . .
Training Descriptinn; Online.training for Op to fiVe dillitY•eMplOyees is:inOlUded.
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Backup Requirements Data will be managed and backed up atAmCOBNcibud-based hosting-PrOvlder.
Standard service levels apprk.AmCoBi will use commercially reasonable.efforts:to
make Aqua Hawk available with a monthly uptime percentage of at least 90,,5°A.
Service Levels: Should Issues occur,.ArilCoBi will work diligently and expediently to.correct Vieril SO
as not to negatively impact the City's•custornerlbase.
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Customer Resources The AiinaHaWklearn will proVide iat level AquaHaWkatippeitteltS'OtiatornetA;
3ervloe FroVider
Customer support via.telephone and e-mail is included for utility employees.
Resources:
Ntintheref Accounts: Notte exceed:22;500
. . . .
-AqueHawk.v.'12j4
Setup fee (orie4010).,$19,800
Monthly fee OM§
MOM Workflow.
Setup.fee.(One-tierie)-=$9,900
Services Fees or Betel Monthly fee=-$1,375
Managed Service
Monthly fee=$311
Meter Change Module
Onetime Setup=912,900
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Start Date; January 10,2020-Launch Production Site
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January 10.2021 Contract will renew Automatically unless the City of OshkpAti
End Dale:.
'POOPS AnicOOICif its intent to terminate prior to December 2020;.
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Executed on the.dates set abovabylhaundersigned autna000 representative of•Custorner and SerVice-PnOvider to be
effective as ofthe•StartDate.
0..201647 ArriCdEtl:All RIghtkite49rvecr,Pmpilitatititonfidentia)
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eri Ca n CO n SerVa tiOn B I i ng Solutions
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Exhibit'13
Project.Timeline
'The standard setup time forimpierrienting the AquaHaWic solution:4'3'u'days:TheaubOestful imPlementatiorfin a 30 day
window will depend upon receiving all setup materials which inducle'the'fPlieWirig;
• Export from the City of Oshkoth's utility billing'apPlicaltOnte PtipulatetheAqUaRawk,systen
• Deveipp a daily export of this application to AquaHawk to incorporate all account arid meter thange6o ..
NOTE:It may be necessary to solicit the assistance of the billing application provider to Implement this
.scheduled export;
• Receiving the rate tiers to incorporate into the application.
• Receiving the daily consumption data from the Sensus AN11%Mem,
o NOTE;This step will require the.City of Oshkosh to contact Sensus;and'reemat this data to be made
available to AquaHawk,via an SFTP site• If .
Al materials are provided:ina timely manner,the.sCheduled start
NOTE i Any delay In receiving the data as noted above will directly affect the production start date. AquaHawk will be available
• to the City 903ShResti within 14 days following receipt of:a complete and accurate Set of data noted above.
061647 AmC013.1,All Rights'Reserved.ProptIEtahr&Confider 10