MASTER SOFTWARE LICENSE, IMPLEMENTATION, APPLICATION HOSTING, MAINTENANCE AND SUPPORT SERVICES AGREEMENT
[AGREEMENT NO: 16-042418]
This Master Software License, Implementation, Application Hosting, Maintenance and Support Services Agreement (“Agreement”) is entered into as of (“Effective Date”), by and between PROCESSMAP CORPORATION, whose principal office is located at 13450 W. Sunrise Blvd, Sunrise, Florida 33323, USA (“ProcessMAP”) and CUSTOMER (“Customer”)
WHEREAS, ProcessMAP is a provider of certain environmental, health, safety, and sustainability web based software applications (“Software”), application hosting, and maintenance and support services;
WHEREAS, Customer desires to purchase licenses for such Software and utilize such ProcessMAP’s implementation, application hosting, maintenance and support services according to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual obligations set forth herein, the parties agree as follows:
1. Scope. “Agreement” means this document and the following exhibits and schedules:
Exhibit A – Service Level Commitment
Subject to the terms and conditions set forth herein, ProcessMAP will provide Customer and Customer parent, subsidiary and affiliated companies (“Affiliates”) with (i) a nonexclusive, worldwide, multi-site, enterprise-wide, irrevocable (except as expressly provided herein), nontransferable license to use the software modules listed in executed Statements of Work (“SOW”), including the Documentation (as defined in Section 12 below) and (ii) the application hosting, maintenance, and support services for the Software, which shall be accessible via the internet (collectively, the “Services“) through which Customer may enter, store, upload, download, process and manage its Data (defined in Section 13 below) related to its business. The Software and Services shall be collectively referred to herein as the “System.” All professional services desired by Customer shall be listed and described in a mutually agreed to SOW(s).
2. Agreement Term. Unless earlier terminated pursuant to this Agreement, this Agreement shall be in effect for an initial term ending Three (3) years from the Effective Date (“the Initial Term”), and thereafter shall be automatically renewed unless terminated by either party with a 30 day written notice (each such period a “Renewal Term” and together with the Initial Term, the “Term”).
3. Fees and Charges; Taxes. The fees for the Software and Services shall be as set forth in the SOW, and during each year of the Term, Customer will pay all fees in accordance with the
fees listed in the pertinent SOW(s). Unless otherwise agreed upon for a specific SOW, every year during the Term, ProcessMAP may increase the fees (each an “Annual Increase”) at its option and upon written notification to Customer. The amount of the Annual Increase shall be the adjusted based on the annual percentage change in the Department of Labor, Bureau of Labor Statistics, Consumer Price Index for Urban Consumers (CPI-U), U.S. Cities Average using the most recently published CPI-U for the one year period ending June 30th of each year. During the Term, the Annual Increase shall not exceed the greater of 5% or CPI-U.
Except as otherwise stated in an SOW, ProcessMAP’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its acquisitions hereunder, this Agreement, and the System, excluding U.S. income taxes on ProcessMAP. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer shall gross up the payments so that ProcessMAP receives the amount actually quoted and invoiced. If ProcessMAP has a legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides ProcessMAP with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Payment Terms. The invoices for Software and Services shall be submitted pursuant to the schedule established in the SOW(s). Unless otherwise agreed in the applicable SOW, payment for all invoices is due within thirty (30) days after receipt of undisputed invoices. All invoices shall separately itemize all charges for tangible personal property, professional or consulting services, shipping, handling or other similar charges and all applicable sales and use taxes due with respect to the transaction. If Customer disputes in good faith any fee, expense, or other charge, Customer will promptly provide ProcessMAP with notice of such dispute and reasons. Customer and ProcessMAP will use their reasonable efforts to promptly resolve the dispute.
5. Late-Payment. Excluding disputed amounts, if timely payment is not received within thirty (30) days from the date the payment is due, Customer will be given a written notice by ProcessMAP of its intention to suspend or terminate its Service to Customer. Customer will have thirty (30) days to cure the payment issue and/or will enter into a written payment arrangement acceptable to ProcessMAP. In the absence of a payment arrangement or full payment, ProcessMAP reserves the right to either suspend or terminate the Service to Customer upon expiration of the 30-day cure period. If any invoiced amount is not received by the due date, then without limiting other rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher.
6. Restrictions. Unauthorized use of the Service, or the resale of the Service, is expressly prohibited. Customer shall not copy, license, sell, transfer, make available, distribute, or assign the Service or any of its license or rights to use or access the System or the Service to
any third party, except as provided for herein or authorized by ProcessMAP, and except for copies made in the ordinary course as an essential step in using the Software.
7. Information Control; Release. ProcessMAP does not control the entry or manipulation of Data by Customer or its third party contractors. Accordingly, ProcessMAP has no control over or liability for the integrity, truth or accuracy of information entered, processed or managed by Customer and/or its third party contractors.
8. Third Party Users. Customer may allow certain parties with whom Customer has a contractual relationship such as a supplier or customer and the employees of third party contractors (hereunder “Business Third Parties“) to use the Service solely for the purpose of providing services to Customer. All such persons must maintain the Confidential Information (as herein defined) in confidence and use the Service only as permitted by this Agreement. Customer agrees to use commercially reasonable efforts to enforce the provisions of such confidence set forth in this section and all other provisions of this Agreement as applicable to any and all uses of the Service. Customer will take reasonable care with information release, integration, and Business Third Parties.
9. Links To and Integration with Third Party Sites. ProcessMAP does not endorse any third party systems or sites (or products, services or opinions offered on any sites) which are linked through the Service. ProcessMAP will provide these links to Customer only upon written approval, and in no event shall ProcessMAP be responsible for any content, products, or other materials on or available from such sites.
10. User Accounts. A user account is required to access the Service and may be accessed and used only by those authorized individuals who are registered with ProcessMAP.
11. Customer Responsibilities. Except to the extent resulting from ProcessMAP’s breach of its obligations in this Agreement, negligence or willful misconduct, Customer is responsible for any and all activities that occur under Customer account and ensuring that Customer exits or logs off from Customer account at the end of each session of use. Customer shall notify ProcessMAP as soon as commercially reasonable of any known unauthorized use of Customer password or account or any other breach of security that is known or suspected by Customer. Customer shall also use Customer commercially reasonable efforts to stop immediately any copying or distribution of the Service or any content displayed or stored on or through the Service by it or its authorized third party users that is known by Customer.
12. Documentation. The written instructions, manuals, materials and other documentation, including all subsequent revisions thereto, if any, created and/or provided by ProcessMAP as part of the Service (the “Documentation”) may be used by Customer and Business Third Parties solely at the site(s) of Customer and Business Third Parties’ and Customer Affiliates’ business operations for the purpose of assisting Customer in using the Service for the internal business purposes of Customer and its Affiliates. ProcessMAP agrees to deliver one copy of the Documentation, if any, to Customer in electronic form. Documentation provided in machine-readable form may be printed and used solely for the internal purposes of Customer and its Affiliates. Except for production copies and a reasonable number of
additional back-up archival copies, no other reproduction or use of the Documentation is permitted unless mutually agreed upon in writing. The Documentation will be provided solely in the English Language unless and agreed by ProcessMAP.
13. Account Information and Data. ProcessMAP does not own any data, information or material that Customer submits to the Service (“Data“). As between ProcessMAP and Customer, Customer shall be the exclusive owner of all such Data and all Data shall be deemed the Confidential Information of Customer, subject to Section 19 of this Agreement. ProcessMAP will not monitor, edit, or disclose any information regarding Customer or Customer account, including any Data, without Customer prior written permission except in accordance with this Agreement (including Section 19 regarding Confidential Information). ProcessMAP shall not be responsible for any alteration of Customer transmissions or Data by Customer third party contractors. Customer acknowledges that ProcessMAP may use certain data in aggregate form to develop statistical models or share with third parties, but such information will not include personally identifying information or information identifying Customer. Customer, not ProcessMAP, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data. ProcessMAP shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data, except as set forth in the Exhibits, and except to the extent resulting from ProcessMAP’s negligence or willful misconduct. It is understood that ProcessMAP is responsible for backup, recovery and safekeeping of data.
14. Use, Storage and Other Limitations. ProcessMAP will consult and will obtain approval from Customer to establish or modify general practices and limits concerning use of the Service, including without limitation the maximum number of days that Content (as defined in Section 20 below) and Data will be retained by the Service. The maximum disk space that will be allotted on ProcessMAP’s or its business partners’ or service providers’ servers on Customer behalf is based upon the scope of the proposal in the SOW(s)
15. Parties Conduct. The parties agree to abide by all applicable local, state, national and foreign laws, treatises and regulations applicable to the performance of their respective obligations under this Agreement.
16. Implementation Services. ProcessMAP will provide Customer with its implementation services as per the SOW(s).
17. Service Levels. ProcessMAP represents and warrants that it will provide the Services in accordance with the “Service Level Commitment” document attached hereto as Exhibit A to this Agreement which shall be incorporated herein by this reference, and in accordance with good industry practices. ProcessMAP shall be responsible for meeting or exceeding the applicable Service Levels even where doing so is dependent on the provision of Services by an authorized subcontractor.
- For Cause. Either party may terminate this Agreement if the other party fails to comply with a material term of this Agreement, in addition to exercising any other rights or remedies available to that party, provided that the terminating party gives written notice (“Intent to Terminate”) to the other party of the non-compliance and the other party be afforded a thirty (30) day period to cure the non-compliance. “Effective Date of Termination” shall mean the date after the expiration of the thirty (30) day cure period following an uncured breach.
- Termination and Transition Assistance Services. From the date that either Party receives or gives a written notice of termination of a SOW and for not less than twelve (12) months after such expiration or termination, ProcessMAP will provide to Customer , as Customer requests in writing, ongoing services under such SOW and transition services (“Termination & Transition Assistance Services”). Fees for Termination and Transition Assistance Services shall be an amount equal to a pro rata portion of the fees for the period during which Termination Assistance Services are delivered. ProcessMAP will not be required to provide Termination and Transition Assistance Services in case of Customer breach of the Agreement for its failure to make on time payment.
19. Confidential Information; Data Security.
a) Each party when it is the “Receiving Party” agrees to maintain the confidentiality of the other party’s (“Disclosing Party”) Confidential Information, including taking the following steps: using the Confidential Information only as expressly authorized herein; safeguarding and maintaining the Confidential Information in confidence, and not disclosing, providing, or making the Confidential Information or any part thereof available in any form or medium to any third party except to Receiving Party’s employees, contractors and consultants who have a need to access such Confidential Information hereunder and are bound by an obligation to keep such information confidential.
b) The provisions of Section 19 shall not apply to any information which: (i) was at the time of disclosure to Receiving Party, available to the public or otherwise in the public domain, (ii) after disclosure becomes available to the public or otherwise part of the public domain through no breach of this Agreement by the Receiving Party, (iii) was in the possession of Receiving Party prior to the time of initial disclosure to it by Disclosing Party, (iv) was received by Receiving Party from a third party who had a lawful right to disclose such information to it, (v) was independently developed by Receiving Party without reference to Disclosing Part’s Confidential Information or (vi) was ordered to be disclosed by the court, administrative agency, or other governmental body with jurisdiction over the parties hereto, or as otherwise required by law, provided that Receiving Party will have provided Disclosing Party with prompt written notice, in advance if legally permissible, of such required disclosure and will allow Disclosing Party to seek a protective order with respect to the confidentiality of the information required to be disclosed. Further, Receiving Party will reasonably cooperate with and assist
Disclosing Party, at Disclosing Party’s cost and expense, in connection with obtaining such protective order.
20. Proprietary Rights. Except for the license to access and use the Service granted to Customer pursuant to the terms of this Agreement and Customer ownership of the Data, Customer has no right, title or interest in or to the Service or any other software, source code, object code, data model or platform, information, images, products, services, documentation, materials or content of or provided as part of or through the Service (the “Content“) and ProcessMAP retains all proprietary right, title and interest, including copyright and all other intellectual property rights, in and to the Service and Content, including, without limitation, stories, articles, text, images, and other multimedia data. ProcessMAP and/or other ProcessMAP products and services referenced herein are either trademarks or registered trademarks of ProcessMAP. The names of other companies and products mentioned herein may be the trademarks of their respective owners. Customer agrees not to disassemble, decompile, translate or convert into human readable form or into another computer language, reconstruct or decrypt, or reverse engineer, all or any part of the Service. Further, Customer shall not write or develop derivative works or computer programs based upon any part of the Software.
21. Indemnification. ProcessMAP shall defend, indemnify and hold harmless Customer , its Affiliates, and their respective officers, directors, employees, attorneys, and agents (the “Customer Indemnified Parties”), from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs), and the reasonable costs of Customer in any legal proceeding enforcing this indemnification obligation if Customer is successful in such proceeding, arising out of or in connection with any claim that the System or Customer use of the System infringes upon a third party’s right of patent (or a patent published) or a copyright, trademark, service mark, design industrial property right, trade name, trade dress, right of publicity or other proprietary or intellectual property right, or misappropriates a trade secret of any third party (collectively “Third Party IPs”) except to the extent that such infringement is caused by Customer direction to ProcessMAP, on a non-discretionary basis, to use Third Party IPs and/or information, materials, instructions, or specifications provided by Customer to ProcessMAP that contained Third Party IPs.
22. Audit Rights. ProcessMAP shall provide Customer with access to audit and inspect any facility that ProcessMAP utilizes to provide any services including implementation, hosting (such as data centers), system monitoring, maintenance, and customer support. Customer shall provide ProcessMAP with a thirty (30) day written notice prior to visiting the applicable facility. Customer shall cover all costs related to the audits of its personnel, including travel time and costs of ProcessMAP personnel.
23. WARRANTIES. ProcessMAP represents and warrants, and covenants throughout the Term and any Termination Assistance Period to each of the following.
a) The System: (i) conforms to the Documentation; (ii) will perform in accordance with the Documentation; and (iii) does not violate or in any way infringe upon the intellectual property rights of third parties, including non-disclosure rights, contractual, trade secret or any other intellectual property rights or rights of publicity or privacy, and will not defame any third parties or constitute false or misleading advertising. When any breach of the foregoing is brought to ProcessMAP’s attention by Customer, or is a breach of which ProcessMAP becomes aware, in addition to any other remedy available to Customer, ProcessMAP will correct or repair any errors so that the System meets the foregoing criteria. b) The Services will be performed in a diligent and professional manner; consistent with the industry standards, by qualified workers experienced in performing the type of work that comprises the Services. In addition to any other remedy available to Customer, ProcessMAP will promptly re-perform, at no charge, any Services which are in breach of this warranty when such breach is brought to its attention by written notice, or of which it becomes aware, within ninety (90) days after such Services are performed. c) All of the ProcessMAP personnel performing any Services are bound by written confidentiality obligations with at least the same level of protection as set forth herein.
- ProcessMAP represents and warrants that it: i) has the right to enter into this Agreement and to provide the products and services provided hereunder; ii) is not under any conflicting obligations that would prevent its performance hereunder; and, iii) is and shall remain in compliance with all applicable laws, regulations and ordinances of the United States.
- EXCEPT AS PROVIDED IN THIS AGREEMENT, INCLUDING ITS EXHIBITS, PROCESSMAP MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SYSTEM OR ANY CONTENT. PROCESSMAP DOES NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE ACCURACY OR RELIABILITY OF Customer ’S DATA, (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY Customer THROUGH THE SYSTEM WILL MEET Customer ‘S REQUIREMENTS OR EXPECTATIONS. EXCEPT AS PROVIDED IN THIS AGREEMENT, ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PROCESSMAP AND ITS LICENSORS.
24. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 21 ABOVE, THE CONFIDENTIALITY OBLIGATION SET FORTH IN SECTION 19, IN NO EVENT SHALL PROCESSMAP’S AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY Customer FOR THE SERVICE, SYSTEM OR CONTENT IN THE THREE (3)
MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 21 AND THE CONFIDENTIALITY OBLIGATION SET FORTH IN SECTION 19, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SYSTEM, INCLUDING BUT NOT LIMITED TO Customer ‘S USE OR INABILITY TO USE THE SERVICE OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, EVEN IF THAT PARTY BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
26. Local Laws and Export Control. ProcessMAP controls and operates this Service from its location in the United States of America and is subject to the United States Export Administration Laws and Regulations. ProcessMAP understands that Customer may make use of the System in other geographic locations. Customer acknowledges and agrees that the System is subject to the export control laws and regulations of the United States, including the Export Administration Regulations of the U.S. Department of Treasury, Office of Foreign Asset Control, and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Control, and agrees to comply therewith. Customer further agrees that (i) it is not a Specially Designated National, Denied Party or other entity restricted or prohibited from receiving U.S. exports (“Restricted Entity”); (ii) it will not export, re-export or otherwise transfer the System to any Restricted Entity, to any country subject to a United States trade embargo (i.e., Cuba, Iran, North Korea, Sudan, and Syria as of the Effective Date), or to a national or resident thereof; and (iii) it will not export, re-export, or transfer the System to an end user engaged in activities related to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or chemical or biological weapons. ProcessMAP will assist Customer in obtaining any licenses to export or re-export as may be required for an additional fee.
- 27. RESERVED.
28. Notice. Any notice provided for or permitted under this Agreement will be treated as having been given when (a) delivered personally, (b) sent by commercial overnight courier with written verification of receipt, or (c) mailed postage prepaid by certified or registered mail, return receipt requested.
29. Force Majeure. Neither party will be liable when and to the extent its failure to perform is due to unforeseen circumstances or causes beyond its reasonable control, including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, fire, flood, accident, world wide web (WWW) related issues beyond ProcessMAP’s control, global
internet strikes, inability to secure transportation, facilities, fuel, energy, labor or materials, and provided such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the nonperforming party through the use of alternate sources, work-around plans or other means (a “Force Majeure Event”). The Party suffering a Force Majeure Event shall give notice to the other Party as soon as reasonably practicable, stating the period of time the Force Majeure Event, and the effects thereof are expected to continue and shall use reasonable efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
30. General. This Agreement will be governed by State of Delaware, USA law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction.
31. Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and ProcessMAP as a result of this Agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the other party in writing. This Agreement (including its Exhibits) comprises the entire agreement between Customer and ProcessMAP and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
32. Severability. Any provision of this Agreement that is unenforceable in any jurisdiction shall be ineffective only as to that jurisdiction and only to the extent of such enforceability without invalidating the remaining provisions hereof.
33. Source Code. Customer will be provided access to the current version of the Software source code if ProcessMAP or its successor(s) discontinues business during the Initial Term or any Renewal Term. However, under no circumstances, shall Customer claim ownership of the source code to license, sell, transfer, distribute, make available or assign the source code to any third party. ProcessMAP will make Customer a multi-party beneficiary to its software escrow service during the Term.
34. Survival. The rights and obligations of the parties which, by their nature, are normally intended to survive the termination or completion of the Services shall remain in full force and effect following termination of Services for any reason.
35. Assignment. Other than a Change of Control, neither party may assign or transfer any or all of its rights, or delegate any or all of its duties, under this Agreement or any SOW, in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party. “Change of Control” means a change in ownership of the party via a merger or consolidation or sale (“Transaction”) in which the shareholders of the party after the Transaction would own, in the aggregate, less than 50% of the total equity.
36. Insurance; Risk of Loss. ProcessMAP agrees that it shall, at its own expense, obtain and maintain in full force and effect at all times during the Term of this Agreement, policies of
insurance with insurance companies having a rating of at least A-VII or better in the current Best’s Insurance Reports published by A.M. Best and adequate to fully protect Customer as well as ProcessMAP from and against all expenses, claims, actions, liabilities and losses related to the subjects covered by the following policies of insurance:
- Workers’ Compensation insurance covering all costs, benefits and liabilities under Workers’ Compensation and similar laws which may accrue in favor of any person employed by ProcessMAP for all states in which ProcessMAP operates, and Employer’s Liability insurance with limits of liability of at least $1,000,000 per accident or disease and $1,000,000 aggregate by disease.
- Commercial General Liability insurance, including but not limited to, premises/operations liability, contractual liability, with limits of at least $1,000,000 per occurrence and $2,000,000 in the aggregate. Limits of liability requirements may be satisfied by a combination of Commercial General Liability and Umbrella Excess Liability policies.
Automobile Liability insurance, for owned, non-owned and hired vehicles used in connection with the Services to be performed under this Agreement, with limits of at least $1,000,000 for bodily injury and property damage combined. Limits of liability requirements may be satisfied by a combination of Automobile Liability and Umbrella Excess Liability policies.
- Professional Liability Errors & Omissions insurance with limits of at least $1,000,000 per occurrence.
- Employee Dishonesty and Computer Fraud coverage for loss arising out of or in connection with any fraudulent or dishonest acts committed by the employees, officers, or agents of ProcessMAP, acting alone or in collusion with others, including the property and funds of others in their care, custody or control, in a minimum amount of $1,000,000 per loss. Customer shall not be named as a loss payee under such policy.
Prior to the commencement of this Agreement, and upon renewal of insurance policies, thereafter, ProcessMAP shall provide Customer with a certificate of insurance evidencing that the coverage’s are maintained in force.
ProcessMAP shall provide Customer with not less than thirty (30) days prior written notice of any reduction in the coverage provided under, or cancellation or non-renewal of, the policies set forth above.
Any and all deductibles or self-insured retentions on referenced insurance coverage’s must be borne by ProcessMAP. ProcessMAP agrees that insurers must waive their rights of subrogation against Customer and its Affiliates.
Risk of Loss. Each Party shall be responsible for risk of loss of, and damage to, any equipment, software or other materials in its possession or under its control, unless such loss of damage was caused by the acts or omissions of the other Party or its agents.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have caused their respective authorized representatives to sign this Agreement effective as of the day and year first written above.
ProcessMAP Corporation CUSTOMER
- (“ProcessMAP”) (“Customer”)
- By: __________________________ By: __________________________
- Name: __________________________ Name: __________________________
- Title: __________________________ Title: __________________________
- Date: __________________________ Date: __________________________
EXHIBIT – A
SERVICE LEVEL COMMITMENT
This Service Level Agreement (“SLA”), by and between ProcessMAP Corporation (“ProcessMAP”) and CUSTOMER (“Customer”) and, sets forth certain terms and conditions relating to the performance of ProcessMAP pursuant to Master Software License, Implementation, Application Hosting, Maintenance and Support Services Agreement (the “Agreement”).
1. Certain Definitions
a) “Disaster” means the unavailability of the System lasting more than 30 minutes to cause significant interruption of ProcessMAP Services.
b) “Outage” means the inability of users accessing the System. Outages shall be measured in minutes.
c) “Availability” means (i) Actual Uptime divided by (ii) Scheduled Uptime less Excused Downtime. For purposes of this Agreement, “Actual Uptime” means that Customer is able to access all features and functions of the System. Availability shall be measured in percent.
d) “Scheduled Uptime” shall mean twenty-four (24) hours per day, seven (7) days per week, and three hundred sixty-five days a year. Scheduled Uptime shall be measured in minutes.
e) “Excused Downtime” shall include the following, which shall be measured in minutes:
- Within routine scheduled maintenance windows in accordance with Section 2;
- Due to unscheduled preventive (but not remedial) maintenance of which Customer has been reasonably notified;
- Due to a Force Majeure Event;
f) System” shall mean ProcessMAP’s platform on its production (live) or backup environments.
- g) “Severity” is the assessed possible risk or effect of a Problem impacting Customer business operations.
h) “Problem” shall mean any problem, inquiry or request relating to Customer System.
i) Problems shall be initially classified in accordance with the following Severity level classifications, as follows:
- Severity 1 – is a Problem that has a critical impact on Customer business, where the System is not available;
- Severity 2 – is a problem that has a moderate impact on Customer business, where System is available but it is impacting the use of a major System functionality;
- Severity 3 – is a problem that has minor impact on Customer business, where the System is available but it is impacting the use of a minor System functionality;
- Severity 4 – is a problem that has no impact on Customer business, where the System is available but it is not impacting the existing System functionality.
- J) “Help Desk Response Time” shall mean the time elapsed between the time ProcessMAP is contacted by a User via Phone or Email (“Start Time”) and ProcessMAP’s response to the User and/or Customer Project Manager via phone or email. It is understood that Help Desk Response Time may not include time required to rectify and/or resolve any problems identified.2. Measurement and Reportinga. ProcessMAP’s trouble tickets are the only source for measurement of Outages. Customer agrees to contact ProcessMAP’s Help Desk to report problems so ProcessMAP can open tickets (“Trouble Tickets”) that reflect the begin time of Outage events. Customer may subsequently revise the beginning (start) time of the Outage if it subsequently learns that the problem occurred earlier. In addition, ProcessMAP will deploy mechanisms to detect Outage events and open trouble tickets. Outage end time is based upon Customer reasonable acceptance to the problem resolution as reflected in ProcessMAP’s trouble ticket. The duration of all Outage events for a month are added together to determine the actual cumulative hours of Outage for the subject month.
b. Service Level reports will be provided on a monthly basis, or as may be otherwise agreed by Customer in writing. ProcessMAP shall provide to Customer by the tenth (10th) day of each month following the month in which the data was collected. Monthly Performance Report which shall document ProcessMAP’s performance with respect to each Service Level during the previous month and explain deviations from the Service Levels, if any, including a plan for corrective action where appropriate.
3.MAINTENANCEa. All scheduled maintenance of the System shall be performed by ProcessMAP only during standard maintenance window of 10 PM EST Friday and 10 PM EST Sunday. If the maintenance period is scheduled to be for more than 8 hours, Customer will be notified Two
Weeks in advance and ProcessMAP will obtain written approval from Customer Project Manager.
b. If the System is not available during scheduled maintenance, ProcessMAP system shall (a) activate the backup System and (b) notify such unavailability and remedy such unavailability or as soon as practicable thereafter.
4. SERVICE LEVELS 4.1Availabilitya. The System’s Availability shall be at 99.9%.
4.2 Help Desk Response Time
a. In no event shall the Help Desk Response time for any issue exceed the applicable response time set forth in the table below:
b. For Severity 1 and 2, ProcessMAP shall work continuously (24 x7) until resolution is achieved. For Severity 3 and 4, ProcessMAP shall use Best Efforts to timely resolve any problems identified within ten (10) business days. Best Efforts means commercially reasonable efforts to resolve the Severity 3 or 4 issues in light of the business need.
4.3 Disaster Recovery and Restoration
a. In case of a Disaster, the stand-by system will be activated within 30 minutes of system unavailability. This service level is valid only for domains managed by ProcessMAP.
5. SERVICE LEVEL CREDITS
5.1. Service Levels and Credit. ProcessMAP’s failure to keep System Availability at least 99.9% of the time in any given month during the Term shall be deemed a service level default (“Service Level Default”) and Customer may obtain the exclusive remedies set forth below.
5.2. Service Level (Monthly) Service Level Credit (Prorated Fees – Monthly)
Service Level Credits shall be applied against the next invoice or, if fees are prepaid, refunded by the end of the month following the month in which the Service Level Default occurred.
6. CONTINUOUS IMPROVEMENT IN SERVICE LEVELS
6.1 ProcessMAP shall host quarterly reviews with Customer and shall present its analysis of the performance trends and recommendations to improve performance reduce cost and increase value to Customer. The Parties agree that there shall be continued improvement in the Service Levels over time with the specific adjustments to be mutually agreed upon.