HomeMy WebLinkAboutAgreement A-23-632 with AssetWorks.pdf Agreement No. 23-632
1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated November 28, 2023 and is between
3 AssetWorks Inc., a Delaware corporation, whose address is 998 Old Eagle School Road, Suite
4 1215, Wayne PA 19087 ("Contractor"), and the County of Fresno, a political subdivision of the
5 State of California ("County").
6 Recitals
7 A. The County has a need for maintenance and support for their fleet management
8 software system (FleetFocus) which allow for the management, collection, and reporting of fleet-
9 related components, such as asset management, parts, inventory, labor, motor pool operation,
10 and service writing.
11 B. The County desires to engage Contractor to provide maintenance and support for
12 FleetFocus, pursuant to the terms and conditions of this Agreement.
13 C. The County previously entered into a potential five-year Agreement, No.19-736
14 ("Original Agreement") with Contractor, for a total maximum compensation payable of five
15 hundred seventy-five thousand dollars ($575,000), effective December 10, 2019 not to exceed
16 December 9, 2024.
17 D. The County and Contractor now wish to replace the Original Agreement, with this
18 Agreement, subject to approval by the County's Board of Supervisors, which is necessary to
19 allow not only for additional services, including cloud-based hosting services, to be performed
20 by Contractor, but also for the new total maximum compensation payable to $671,900, and
21 extension of the Agreement's term per Article 4 hereof.
22 The parties therefore agree as follows:
23 Article 1
24 Contractor's Services
25 1.1 Scope of Services. The Contractor shall perform all of the services provided in
26 Exhibit A to this Agreement, titled "Scope of Services."
27 1.2 Grant of License (Restated). Contractor restates and County acknowledges its
28 prior acceptance of a non-exclusive, non-transferable, perpetual license to use FleetFocus,
1
1 subject to the terms and conditions (e.g. 1.3, 1.4, 1.5. 1.6, 1.7, 1.8, etc.) set forth in this
2 Agreement ("License").
3 1.3 Ownership. The parties acknowledge and agree that, as between the Contractor
4 and the County, title and full ownership of all rights in and to the System Software, System
5 Documentation, and all other materials provided to the County by the Contractor under the
6 terms of this Agreement, shall remain with Contractor. The County will take reasonable steps to
7 protect trade secrets of the System Software and System Documentation. The Contractor
8 retains ownership of all copies. The County may not disclose or make available to third parties
9 the System Software or System Documentation or any portion thereof. The Contractor shall own
10 all right, title and interest in and to all corrections, modifications, enhancements, programs, and
11 work product conceived, created or developed, alone or with the County or others, as a result of
12 or related to the performance of this Agreement, including all proprietary rights therein and
13 based thereon. Except and to the extent expressly provided herein, the Contractor does not
14 grant to the County any right or license, express or implied, in or to the System Software and
15 System Documentation or any of the foregoing. The parties acknowledge and agree that, as
16 between the Contractor and the County, full ownership of all rights in and to all the County data,
17 whether in magnetic or paper form, including without limitation printed output from the System,
18 are the exclusive property of the County.
19 1.4 Possession, Use, and Update of Software. The County will use the System
20 Software only for its own internal purposes. The Contractor may, at reasonable times, inspect
21 the County's premises and equipment to verify that the County is observing all of the terms and
22 conditions of this License. The Contractor may create, from time to time, updated versions of
23 the System Software and System Documentation, and the Contractor shall make such System
24 Updates available to the County. All System Updates shall be licensed under the terms of this
25 Agreement. The County agrees to follow the prescribed instructions for updating System
26 Software and System Documentation provided to the County by the Contractor. The County
27 must authorize all System Updates in writing.
28
2
1 1.5 Transfer of Software. The County shall not rent, lease, license, distribute, sell,
2 transfer, or assign this License, the System Software, or the System Documentation, or any of
3 the information contained therein, other than the County data, to any other person or entity,
4 whether on a permanent or temporary basis, and any attempt to do so will constitute a breach of
5 this Agreement. No right or license is granted under this Agreement for the use or other
6 utilization of the licensed programs, directly or indirectly, for the benefit of any other person or
7 entity, except as provided in this Agreement.
8 1.6 Possession and Use of Source Code. Source code and other material that results
9 from custom programming by the Contractor released to the County under this License shall be
10 deemed to be the C software, subject to all of the terms and conditions of the License set forth
11 in this Agreement. The scope of the County's permitted use of the custom source code under
12 this License shall be limited to maintenance and support of the System Software. For purposes
13 of this Section, the term "maintenance and support" means correction of System Software
14 errors, and preparation of System Software modifications and enhancements.
15 1.7 Data Security. The Contractor will follow present practices as outlined in Exhibit E.
16 1.8 Restrictions on Use. The County shall not (i) license, sublicense, sell, resell,
17 transfer, assign, distribute or otherwise commercially exploit, or make available to any third
18 party the System Software or the System Documentation in any way; (ii) modify or make
19 derivative works based upon the System Software or the System Documentation; (iii) create
20 Internet "links" to the System Software or"frame" or "mirror" any System Documentation on any
21 other server or wireless or Internet-based device; (iv) send spam or otherwise duplicative or
22 unsolicited messages in violation of applicable law; (v) send or store infringing, obscene,
23 threatening, libelous, or otherwise unlawful or tortious material, including material harmful to
24 children or violative of third party privacy rights; (iv) send or store material containing software
25 viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or
26 programs; (vii) interfere with or disrupt the integrity or performance of the System Software or
27 the data contained therein, including but not limited to the County Data; (viii) attempt to gain
28 unauthorized access to the System Software or its related systems or networks; (ix) reverse-
3
1 engineer or access the System Software in order to (a) build a competitive product or service,
2 (b) build a product using similar ideas, features, functions or graphics of the System Software,
3 or (c) copy any ideas, features, functions or graphics of the System Software.
4 1.9 Intellectual Property, Trademark, and Copyright. The Contractor retains
5 ownership of the System Software, any portions or copies thereof, and all rights therein. The
6 Contractor reserves all rights not expressly granted to the County. This License does not grant
7 the County any rights in connection with any trademarks or service marks of the Contractor, its
8 suppliers or licensors. All right, title, interest and copyrights in and to the System Software, and
9 the accompanying System Software Documentation, and any copies of the System Software
10 are owned by the Contractor, its suppliers or licensors. All title and intellectual property rights in
11 and to the content which may be accessed through use of the System Software are the property
12 of the respective content owner, and may be protected by applicable copyright or other
13 intellectual property laws and treaties. This License grants the County no rights to use such
14 content.
15 1.10 Representation. The Contractor represents that it is qualified, ready, willing, and
16 able to perform all of the services provided in this Agreement.
17 1.11 Compliance with Laws. The Contractor shall, at its own cost, comply with all
18 applicable federal, state, and local laws and regulations in the performance of the Contractor's
19 obligations under this Agreement, including but not limited to workers compensation, labor, and
20 confidentiality laws and regulations.
21 Article 2
22 County's Responsibilities
23 2.1 The County shall provide a County representative to represent the County, who will
24 work with the Contractor to carry out the Contractor's obligations under this Agreement. The
25 County Representative will be the County's Fleet Services Manager, and/or their designees.
26 2.2 The County shall be responsible for its responsibilities set forth in Exhibit A.
27
28
4
1 Article 3
2 Compensation, Invoices, and Payments
3 3.1 The County agrees to pay, and the Contractor agrees to receive, compensation for
4 the performance of its services under this Agreement as described in Exhibit B. In no event shall
5 compensation paid for services performed under this Agreement (nor Contractor's aggregate
6 liability) exceed the maximum compensation payable under Section 3.2 during the term of this
7 Agreement.
8 3.2 Maximum Compensation. The maximum compensation payable to the Contractor
9 under this Agreement for the first year is $258,278. The maximum compensation payable to the
10 Contractor for the second year of this Agreement is $92,219. The maximum compensation
11 payable to the Contractor for the third year of this Agreement is $98,675. The total maximum
12 compensation payable to the Contractor in the initial three-year term is $449,172. Upon
13 utilization of the first one-year extension option, if any, this maximum shall increase by
14 $106,568. Upon utilization of the final one-year extension option, if any, this maximum shall
15 increase by an additional $116,160. The total maximum compensation payable to the
16 Contractor under this Agreement is $671,900 for the entire potential five-year term as set forth
17 in Exhibit B. In the event that the total compensation amount for each year is not fully expended,
18 the remaining unspent funding amounts shall roll over into each subsequent year's established
19 compensation. The Contractor acknowledges that the County is a local government entity and
20 does so with notice that the County's powers are limited by the California Constitution and by
21 State law, and with notice that the Contractor may receive compensation under this Agreement
22 only for services performed according to the terms of this Agreement and while this Agreement
23 is in effect, and subject to the maximum amount payable under this section. The Contractor
24 further acknowledges that County employees have no authority to pay the Contractor except as
25 expressly provided in this Agreement.
26 3.3 Invoices. For any time-and-materials services to be provided, the Contractor shall
27 submit monthly invoices referencing the provided agreement number to Fresno County Fleet
28 Services, 4551 E. Hamilton Ave Fresno, CA 93702. (tieetservices(W-tresnocountyca.qov). The
5
1 Contractor shall submit each invoice within 60 days after the month in which the Contractor
2 performs services and in any case within 60 days after the end of the term or termination of this
3 Agreement. Contractor shall invoice County annually in advance for subscription to
4 maintenance and support as well as for annual subscription for hosting services.
5 3.4 Payment. The County shall pay each correctly completed and timely submitted
6 invoice, without set-off or deduction and during the pendency of any dispute within 30 days after
7 invoice date. The County shall remit any payment to the Contractor's address specified in the
8 invoice.
9 3.5 Incidental Expenses. The Contractor is solely responsible for all of its costs and
10 expenses that are not specified as payable by the County under this Agreement.
11 Article 4
12 Term of Agreement
13 4.1 Term. This Agreement is effective on December 01, 2023, and terminates on
14 November 30, 2026, except as provided in section 4.2, "Extension," or Article 6, "Termination
15 and Suspension," below.
16 4.2 Extension. The term of this Agreement may be extended for no more than two, one-
17 year periods only upon written approval of both parties at least ninety (90) days before the first
18 day of the next one-year extension period. The Director of Internal Services/Chief Information
19 Officer or his or her designee is authorized to sign the written approval on behalf of the County
20 based on the Contractor's satisfactory performance. The extension of this Agreement by the
21 County is not a waiver or compromise of any default or breach of this Agreement by the
22 Contractor existing at the time of the extension whether or not known to the County.
23 Article 5
24 Notices
25 5.1 Contact Information. The persons and their addresses having authority to give and
26 receive notices provided for or permitted under this Agreement include the following:
27
For the County:
28 Director of Internal Services/Chief Information Officer
County of Fresno
6
1 333 W. Pontiac Way
Clovis, CA 93612
2 isdcontracts(a-)fresnoCountyca.gov
3 For the Contractor:
AssetWorks Inc.
4 Legal Counsel
998 Old Eagle School Road, Suite 1215
5 Wayne, PA 19087
6 WITH COPIES TO:
tyler.beaty(a)assetworks.com
7 legal(a)assetworks.corn
8 5.2 Change of Contact Information. Either party may change the information in section
9 5.1 by giving notice as provided in section 5.3.
10 5.3 Method of Delivery. Each notice between the County and the Contractor provided
11 for or permitted under this Agreement must be in writing, state that it is a notice provided under
12 this Agreement, and be delivered either by personal service, by first-class United States mail, by
13 an overnight commercial courier service, with copies by Portable Document Format (PDF)
14 document attached to an email.
15 (A) A notice delivered by personal service is effective upon service to the recipient.
16 (B) A notice delivered by first-class United States mail is effective three County
17 business days after deposit in the United States mail, postage prepaid, addressed to the
18 recipient.
19 (C)A notice delivered by an overnight commercial courier service is effective one
20 County business day after deposit with the overnight commercial courier service,
21 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
22 the recipient.
23 (D)A notice delivered by PDF document attached to an email is effective when
24 transmission to the recipient is completed (but, if such transmission is completed outside
25 of County business hours, then such delivery is deemed to be effective at the next
26 beginning of a County business day), provided that the sender maintains a machine
27 record of the completed transmission. Contractor reserves the right to receive written
28
7
1 notice to its office address specified in section 5.1 for purpose of notices under section
2 5.4 and section 6.
3 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
4 nothing in this Agreement establishes, waives, or modifies any claims presentation
5 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
6 of Title 1 of the Government Code, beginning with section 810).
7 Article 6
8 Termination and Suspension
9 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
10 contingent on the approval of funds by the appropriating government agency. If sufficient funds
11 are not allocated, then the County, upon at least 30 days' advance written notice to the
12 Contractor, may:
13 (A) Modify the services provided by the Contractor under this Agreement (provided
14 that Contractor shall not refund any prepaid annual fees); or
15 (B) Terminate this Agreement.
16 6.2 Termination for Breach.
17 (A) Upon determining that a breach (as defined in paragraph (C) below) has
18 occurred, the County may give written notice of the breach to the Contractor. The written
19 notice may suspend performance under this Agreement, and must provide at least 30
20 days for the Contractor to cure the breach.
21 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
22 time stated in the written notice, the County may terminate this Agreement immediately.
23 (C) For purposes of this section, a breach occurs when, in the determination of the
24 County, the Contractor has:
25 (1) Obtained or used funds illegally or improperly;
26 (2) Failed to comply with any part of this Agreement;
27 (3) Submitted a substantially incorrect or incomplete report to the County; or
28 (4) Improperly performed any of its obligations under this Agreement.
8
1 6.3 Termination without Cause. In circumstances other than those set forth above, the
2 County may terminate this Agreement by giving at least 30 days advance written notice to the
3 Contractor. Contractor shall not provide any refunds for annual amount prepaid for any
4 termination hereunder.
5 Article 7
6 Independent Contractor
7 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
8 agents, employees, and volunteers, is at all times acting and performing as an independent
9 contractor, in an independent capacity, and not as an officer, agent, servant, employee,joint
10 venturer, partner, or associate of the County.
11 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
12 manner or method of the Contractor's performance under this Agreement, but the County may
13 verify that the Contractor is performing according to the terms of this Agreement.
14 7.3 Benefits. Because of its status as an independent contractor, the Contractor has no
15 right to employment rights or benefits available to County employees. The Contractor is solely
16 responsible for providing to its own employees all employee benefits required by law. The
17 Contractor shall save the County harmless from all matters relating to the payment of the
18 Contractor's employees, including compliance with Social Security withholding and all related
19 regulations.
20 7.4 Services to Others. The parties acknowledge that, during the term of this
21 Agreement, the Contractor may provide services to others unrelated to the County.
22 Article 8
23 Indemnity and Defense
24 8.1 Indemnity. The Contractor agrees to indemnify and at the County's request defend
25 the County, its officers, agents, and employees from any and all costs and expenses (including
26 attorney's fees and costs), direct damages, liabilities, and actual losses involving Cyber Risks,
27 occurring or resulting to the County in to the extent and proportion directly arising from the
28
9
1 negligent performance, or failure to perform, by the Contractor, its officers, agents, or
2 employees under this Agreement..
3 8.2 The County agrees to indemnify, save, hold harmless, and at the Contractor's
4 request, defend the Contractor, its officers, agents, and employees from any and all costs and
5 expenses (including attorney's fees and costs), damages, liabilities, claims, and losses
6 occurring or resulting to the Contractor in connection with the performance, or failure to perform,
7 by the County, its officers, agents, or employees under this Agreement, and from any and all
8 costs and expenses (including attorney's fees and costs), damages, liabilities, claims, and
9 losses occurring or resulting to any person, firm, or corporation who may be injured or damaged
10 by the performance, or failure to perform, of the County, its officers, agents, or employees under
11 this Agreement.
12 8.3 In the event of a third party claim of alleged infringement of patent rights, copyright,
13 trade secret rights, or intellectual property rights directly related to the services, software or
14 Equipment and services provided by the Contractor, to the fullest extent permitted by law, the
15 Contractor agrees to and shall indemnify and defend, at its own expense, any action brought
16 against the County, to the extent that it is based on a claim that the Software supplied by the
17 Contractor infringes a United States patent or copyright, and the Contractor will pay those costs
18 and damages finally awarded against the County in any such action that are attributable to any
19 such claim; provided, such defense and payments are conditioned on the following: (1) that the
20 Contractor shall be promptly notified in writing by the County following its receipt of any such
21 claim; (2) that the Contractor shall have sole control of the defense of any action on such claim
22 and all negotiations for its settlement or compromise; (3) should the Software become, or in the
23 Contractor's opinion is likely to become, the subject of a claim of infringement of a United States
24 patent or copyright, then County shall permit the Contractor, at the Contractor's option and
25 expense, either to (A) procure for the County a non-infringing license to use the Software; (B)
26 modify the Software so that it becomes non-infringing; (C) procure for the County a depreciated
27 credit for the Software and accept its return. Depreciation shall be an equal amount per year
28 over the lifetime of the Software, which the parties agree shall be five (5) years. The Contractor
10
1 shall have no liability to the County under any provision of this clause with respect to any claim
2 of patent or copyright infringement that is based on the County's unauthorized use or
3 combination of the Software with software or data not supplied by the Contractor as part of the
4 Software.
5 8.4 Survival. This Article 8 survives the termination of this Agreement.
6 8.5 Limitation of Liability. Except for personal injury, death, and those liabilities which
7 may not be limited under applicable law, as well as intellectual property infringement under
8 section 8.3, Contractor's liability under this Agreement shall not exceed fees paid to the
9 Contractor in the twelve (12) months preceding the date on which the claim arose. In all other
10 cases, in no event shall the Contractor's LIABILITY exceed One Million Dollars ($1,000,000).
11 8.6 In no event shall the Contractor be liable to the County for any punitive, exemplary,
12 indirect, incidental or consequential damages (including, but not limited to, lost profits, lost
13 business opportunities, loss of use or equipment down time, and loss of or corruption to data)
14 arising out of or relating to this Agreement, regardless of the legal theory under which such
15 damages are sought, and even if the parties have been advised of the possibility of such
16 damages or loss and notwithstanding any failure of essential purpose of any limited remedy.
17 Article 9
18 Insurance
19 9.1 The Contractor shall comply with all the insurance requirements in Exhibit D to this
20 Agreement.
21 Article 10
22 Inspections, Audits, and Public Records
23 10.1 Inspection of Documents. The Contractor shall make available to the County, and
24 the County may examine at any time during business hours and upon commercially reasonable
25 prior notice and in no case more than once annually, those of the Contractor's records and data
26 with respect to the matters covered by this Agreement, excluding attorney-client privileged
27 communications, proprietary, or confidential trade secret materials. The Contractor shall, upon
28 written request by the County, permit the County to audit and inspect all of such records and
11
1 data to ensure the Contractor's compliance with the terms of this Agreement. Any such
2 examinations or audits shall be at the County's expense.
3 10.2 State Audit Requirements. If the compensation to be paid by the County under this
4 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
5 California State Auditor, as provided in Government Code section 8546.7, for a period of three
6 years after final payment under this Agreement. This section survives the termination of this
7 Agreement.
8 10.3 Public Records. The County is not limited in any manner with respect to its public
9 disclosure of this Agreement or any record or data that the Contractor may provide to the
10 County as required by applicable law; provided, however, that the County shall comply with the
11 confidentiality obligations of this Agreement and shall provide the Contractor with reasonable
12 notice prior to disclosure of any matter hereunder to the extent permitted by applicable law . The
13 County's public disclosure of this Agreement or any record or data that the Contractor may
14 provide to the County may include but is not limited to the following:
15 (A) This Agreement, and any record or data that the Contractor may provide to the
16 County, is subject to public disclosure under the Ralph M. Brown Act (California
17 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
18 (B) This Agreement, and any record or data that the Contractor may provide to the
19 County, is subject to public disclosure as a public record under the California Public
20 Records Act (California Government Code, Title 1, Division 10, Chapter 3, beginning
21 with section 7920.200) ("CPRA").
22 (C)This Agreement, and any record or data that the Contractor may provide to the
23 County, is subject to public disclosure as information concerning the conduct of the
24 people's business of the State of California under California Constitution, Article 1,
25 section 3, subdivision (b).
26 (D) The Contractor acknowledges that the County is a governmental entity that must
27 comply with the laws governing the disclosures of public records, including the California
28 Public Records Act (Government Code section 6250 et. seq.) and the Brown Act
12
1 (Government Code 54950 et. seq). Contractor authorizes Client to release any "Confidential
2 Information" necessary to comply with laws regarding disclosures of public records.
3 10.4 Public Records Act Requests. If the County receives a written or oral request
4 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
5 and which the County has a right, under any provision of this Agreement or applicable law, to
6 possess or control, then the County may demand, in writing, that the Contractor deliver to the
7 County, for purposes of public disclosure, the requested records that may be in the possession
8 or control of the Contractor. Within a commercially reasonable time period after the County's
9 demand, the Contractor shall (a) deliver to the County all of the requested records that are in
10 the Contractor's possession or control, together with a written statement that the Contractor,
11 after conducting a diligent search, has produced all requested records that are in the
12 Contractor's possession or control, or (b) provide to the County a written statement that the
13 Contractor, after conducting a diligent search, does not possess or control any of the requested
14 records. The Contractor shall cooperate with the County with respect to any County demand for
15 such records. If the Contractor wishes to assert that any specific record or data is exempt from
16 disclosure under the CPRA or other applicable law, it must deliver the record or data to the
17 County and assert the exemption by citation to specific legal authority within the written
18 statement that it provides to the County under this section. The Contractor's assertion of any
19 exemption from disclosure is not binding on the County, but the County will give at least 10
20 days' advance written notice to the Contractor before disclosing any record subject to the
21 Contractor's assertion of exemption from disclosure. The Contractor shall indemnify the County
22 for any court-ordered award of costs or attorney's fees under the CPRA that results from the
23 Contractor's delay, claim of exemption, failure to produce any such records, or failure to
24 cooperate with the County with respect to any County demand for any such records.
25 Article 11
26 Disclosure of Self-Dealing Transactions
27 11.1 Applicability. This Article 11 applies if the Contractor is operating as a corporation,
28 or changes its status to operate as a corporation.
13
1 11.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
2 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
3 "Self-Dealing Transaction Disclosure Form" (Exhibit C to this Agreement) and submitting it to
4 the County before commencing the transaction or immediately after.
5 11.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
6 a party and in which one or more of its directors, as an individual, has a material financial
7 interest.
8 Article 12
9 General Terms
10 12.1 Modification. Except as provided in Article 6, "Termination and Suspension," this
11 Agreement may not be modified, and no waiver is effective, except by written agreement signed
12 by both parties. The Contractor acknowledges that County employees have no authority to
13 modify this Agreement except as expressly provided in this Agreement.
14 12.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
15 under this Agreement without the prior written consent of the other party.
16 12.3 Governing Law. The laws of the State of California govern all matters arising from
17 or related to this Agreement.
18 12.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
19 County, California. The Contractor consents to California jurisdiction for actions arising from or
20 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
21 brought and maintained in Fresno County.
22 12.5 Construction. The final form of this Agreement is the result of the parties' combined
23 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be
24 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
25 against either party.
26 12.6 Days. Unless otherwise specified, "days" means calendar days.
27 12.7 Headings. The headings and section titles in this Agreement are for convenience
28 only and are not part of this Agreement.
14
1 12.8 Severability. If anything in this Agreement is found by a court of competent
2 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
3 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
4 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
5 intent.
6 12.9 Nondiscrimination. During the performance of this Agreement, the Contractor shall
7 not unlawfully discriminate against any employee or applicant for employment, or recipient of
8 services, because of race, religious creed, color, national origin, ancestry, physical disability,
9 mental disability, medical condition, genetic information, marital status, sex, gender, gender
10 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
11 all applicable State of California and federal statutes and regulation.
12 12.10 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
13 of the Contractor under this Agreement on any one or more occasions is not a waiver of
14 performance of any continuing or other obligation of the Contractor and does not prohibit
15 enforcement by the County of any obligation on any other occasion.
16 12.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
17 between the Contractor and the County with respect to the subject matter of this Agreement,
18 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
19 publications, and understandings of any nature unless those things are expressly included in
20 this Agreement. If there is any inconsistency between the terms of this Agreement without its
21 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
22 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
23 exhibits.
24 12.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
25 create any rights or obligations for any person or entity except for the parties.
26 12.13 Authorized Signature. The Contractor represents and warrants to the County that:
27 (A) The Contractor is duly authorized and empowered to sign and perform its
28 obligations under this Agreement.
15
1 (B) The individual signing this Agreement on behalf of the Contractor is duly
2 authorized to do so and his or her signature on this Agreement legally binds the
3 Contractor to the terms of this Agreement.
4 12.14 Electronic Signatures. The parties agree that this Agreement may be executed by
5 electronic signature as provided in this section.
6 (A) An "electronic signature" means any symbol or process intended by an individual
7 signing this Agreement to represent their signature, including but not limited to (1) a
8 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
9 electronically scanned and transmitted (for example by PDF document) version of an
10 original handwritten signature.
11 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
12 equivalent to a valid original handwritten signature of the person signing this Agreement
13 for all purposes, including but not limited to evidentiary proof in any administrative or
14 judicial proceeding, and (2) has the same force and effect as the valid original
15 handwritten signature of that person.
16 (C)The provisions of this section satisfy the requirements of Civil Code section
17 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
18 Part 2, Title 2.5, beginning with section 1633.1).
19 (D) Each party using a digital signature represents that it has undertaken and
20 satisfied the requirements of Government Code section 16.5, subdivision (a),
21 paragraphs (1) through (5), and agrees that each other party may rely upon that
22 representation.
23 (E) This Agreement is not conditioned upon the parties conducting the transactions
24 under it by electronic means and either party may sign this Agreement with an original
25 handwritten signature.
26 12.15 Counterparts. This Agreement may be signed in counterparts, each of which is an
27 original, and all of which together constitute this Agreement.
28 [SIGNATURE PAGE FOLLOWS]
16
1 The parties are signing this Agreement on the date stated in the introductory clause.
2
AssetWorks Inc. County OF FRESNO
3
4 OM'L�
5 Steven Occhiolini, Vice President of Finance Sa Q 'n ro, hairman of the Board of
6 998 Old Eagle School Road, Suite 1215 Su0e4isoTTVf the County of Fresno
Wayne, PA 19087 Attest:
7 Bernice E. Seidel
Clerk of the Board of Supervisors
8 County of Fresno, State of California
By: _
10 Deputy
11 For accounting use only:
12 Org No.:8910
Account No.:7309
13 Fund No.:1000
Subclass No.:10000
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
Exhibit A
Scope of Services
Definitions
The following terms are used throughout the Agreement and defined as follows:
Acceptance Criteria:
The performance and operating specifications that the System must meet at a minimum,
as set out or referred to in this Agreement.
Acceptance Test:
The process of testing a specific function or functions to determine if the operation or
operations are as stated in this Agreement.
Change Control Process:
Process used by the Information Services Division of COUNTY's Internal Services
Department (ISD) to inform staff of new or updated production use systems.
County System Hardware:
The central processing units owned or leased by COUNTY, as described in this
Agreement, on which COUNTY is licensed to use the System Software, any back-up
equipment for such central processing units, and any peripheral hardware, such as
terminals, printers, and personal computers, as described in this Agreement.
COUNTY System Software:
The operating system and database software installed on the COUNTY System
Hardware. Final System Acceptance: When it is determined by COUNTY that all
necessary deliverables have been delivered, the data has been converted, the base
FleetFocus software has been successfully installed and tested, and FleetFocus and
performs all functions in accordance with its specifications.
First Production Use:
Date of first use of the system in a production environment.
License:
A-1
Exhibit A
The meaning assigned to the term 'License," as defined in Section 2(A) of this
Agreement, and the rights and obligations that it creates under the laws of the United
States of America and the State of California, including without limitation, copyright and
intellectual property law.
Monies:
The terms "Monies", "Charges", "Price", and "Fees" will be considered to be equivalent.
Public Records:
Public Records includes any writing containing information relating to the conduct of the
public's business that is prepared, owned, used, or retained by any state or local agency,
regardless of physical form or characteristics.
Supplier:
The terms "Supplier", "Vendor", and "AssetWorks" all refer to CONTRACTOR, and
are considered to be equivalent throughout this Agreement.
System:
The System Software and System Documentation, collectively. Reference to the
"System" shall include any component thereof. All modifications and enhancements to
the System shall be deemed to be part of the System, as defined herein, and shall be
subject to all terms and conditions set forth herein. The System consists of FleetFocus,
which supports the Fresno County Department of Internal Services, all interfaces, and
third-party software required for the System to function.
System Documentation:
The documentation relating to the System Software, and all manuals, reports, brochures,
sample runs, specifications, and other materials comprising such documentation
provided by CONTRACTOR in connection with the System Software pursuant to this
Agreement.
System Operation:
A-2
Exhibit A
The general operation of COUNTY's hardware and all software including, but not limited
to, system restarts, configuration and operation of system peripherals (such as printers,
modems, and terminals), installation of new software releases, and other related
activities.
System Installation:
All software has been delivered, has been physically loaded on a computer, and
COUNTY has successfully executed program sessions.
System Software:
FleetFocus that certain computer software described in this Agreement and provided by
CONTRACTOR, and all interfaces, coding, tapes, disks, modules, and similar materials
comprising such software or on which it is stored. System Software shall not
include operating system software, or any other Third-Party Software
User:
The terms "User", "Customer", and "Licensee" all refer to the County, including its
various departments and personnel, as applicable.
Software License
I. Grant of License (Restated)
The Contractor grants the County, and the County accepts, a non-exclusive, non-
transferable, perpetual License to use FleetFocus, which are subject to the terms and conditions
set forth in this Agreement. The License granted herein shall consist solely of the non-exclusive,
non-transferable rights of the County to operate the System Software in support of various
County departments, including County's Internal Services Department.
II. Ownership
The Parties acknowledge and agree that, as between Contractor and the County, title
and full ownership of all rights in and to the System Software, System Documentation, and all
other materials provided to the County by Contractor under the terms of this Agreement, shall
remain with Contractor. The County will take reasonable steps to protect trade secrets of the
A-3
Exhibit A
System Software and System Documentation. Contractor retains ownership of all copies. The
County may not disclose or make available to third parties the System Software or System
Documentation or any portion thereof. Contractor shall own all rights, title, and interested in and
to all corrections modification, enhancements, programs, and work product conceived, created,
or developed, alone or with the County or others, as a result of or related to the performance of
this Agreement, including all proprietary rights therein and based thereon. Except and to the
extent expressly provided herein, Contractor does not grant the County any rights or license,
express or implied, in or to the System Software and System Documentation or any of the
foregoing. The Parties acknowledge and agree that, as between Contract and the County, full
ownership of all rights in and to all County data, whether in magnetic or paper form, including
without limitation printed output from the System are the exclusive property of the County.
III. Possession, Use, and Update of Software
The County agrees that the County will use the System Software for its own internal
purposes. Contractor may, at reasonable times, inspect the County's premises and equipment
to verify that all of the terms and conditions of this license are being observed. Contractor may
create, from time to time, updated versions of the System Software and System Documentation
and Contractor shall make such System Updates available to the County. All System Updates
shall be licensed under the terms of this Agreement. The County agrees to follow the prescribed
instructions for updating System Software and System Documentation provided to the County
by Contractor. The County must authorize all System Updates in writing.
IV. Transfer of Software
County shall not rent, lease, license, distribute, sell, transfer, or assign this license, the
System Software, or the System Documentation, or any of the information contained therein
other than County data, to any other person or entity, whether on a permanent or temporary
basis, and any attempt to do so will constitute a breach of this Agreement. No right or license is
granted under this Agreement for the use or other utilization of the licensed programs, directly or
indirectly, for the benefit of any other person or entity, except as provided in this Agreement.
V. Possession and Use of Source Code
A-4
Exhibit A
Source code and other material that results from custom programming by Contractor
released to the County under this license shall be deemed Contractor software subject to all of
the terms and conditions of the software license set forth in this Agreement. The scope of the
County's permitted use of the custom source code under this license shall be limited to
maintenance and support of the System Software. For purposes of this Section, the term
"maintenance and support" means correction of System Software errors and preparation of
System Software modifications and enhancements.
VI. Restrictions on Use
The County shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or
otherwise commercially exploit or make available to any third party the System Software or the
System Documentation in any way; (ii) modify or make derivative works based upon the System
Software or the System Documentation; (iii) create Internet "links" to the System Software or
"frame" or"mirror" any System Documentation on any other server or wireless or Internet-based
device; (iv) send spam or otherwise duplicative or unsolicited messages in violation of
applicable law; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful
or tortious material, including material harmful to children or violative of third party privacy rights;
(iv) send or store material containing software viruses, worms, Trojan horses or other harmful
computer code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or
performance of the System Software or the data contained therein, including but not limited to
County Data; (viii) attempt to gain unauthorized access to the System Software or its related
systems or networks; (ix) reverse engineer or access the System Software in order to (a) build a
competitive product or service, (b) build a product using similar ideas, features, functions or
graphics of the System Software, or (c) copy any ideas, features, functions or graphics of the
System Software.
VII. Intellectual Property, Trademark, and Copyright
Contractor retains ownership of the System Software, any portions or copies thereof,
and all rights therein. Contractor reserves all rights not expressly granted to the County. This
License does not grant the County any rights in connection with any trademarks or service
A-5
Exhibit A
marks of Contractor, its suppliers or licensors. All right, title, interest and copyrights in and to the
System Software and the accompanying System Software Documentation and any copies of the
System Software are owned by Contractor, its suppliers or licensors. All title and intellectual
property rights in and to the content which may be accessed through use of the System
Software are the property of the respective content owner and may be protected by applicable
copyright or other intellectual property laws and treaties. This License grants County no rights to
use such content.
Services to be Provided by Contractor to County
I. Documentation
Contractor shall provide to County FleetFocus System Documentation, which shall
consist of electronic media files. The electronic media files must be printable using PC software
normally available at the County. Contractor shall provide new System Documentation
corresponding to all new Software Upgrades. The County may print additional copies of all
documentation. All System Documentation is to be used by the County only for the purposes
identified within this Agreement.
System Maintenance and Support by Contractor
System maintenance and support includes System Updates as they are released by
Contractor, including updates as required as a result of Federal Regulatory Changes. The first
day of production use will be when Acceptance Testing is completed. Contractor will support
day-to-day operation of the System as follows:
I. Support Hours/Scope:
Provide unlimited technical assistance by phone during normal coverage
hours (5:00 a.m. to 5:30 p.m. Pacific Standard Time (PST), Monday through
Friday, except Contractor and County holidays), toll-free telephone assistance to
keep the System in, or restored to, normal operating condition. The object of this
support will be to answer specific questions related to the System Software and
the application thereof. Support provided under this Agreement does not include
A-6
Exhibit A
training of new personnel (after initial staff is trained), operation of hardware, or
solving other hardware/software problems unrelated to the System Software.
II. Support Response:
During the term of this Agreement, Contractor will (a) correct any error or
malfunctions in the System as supplied by Contractor which prevents it from
operating in conformance with the specifications set forth in this Agreement or (b)
provide a commercially reasonable alternative that will conform to the
specifications set forth in this Agreement.
In the event that the County encounters an error and/or malfunction ("Deviation")
in the Software, it shall communicate the circumstances and any supporting
information to Contractor. Upon receipt, Contractor will respond as follows:
In the event that, in the mutual and reasonable opinion of Contractor and
the County, there exists a Deviation that does not constitute a serious
impediment to the normal intended use of the Software, Contractor will correct
the Deviation and distribute the correction to the County in accordance with
Contractor's normal Software revision schedule.
In the event that, in the mutual and reasonable opinion of Contractor and
the County there exists a Deviation that does constitute a serious impediment to
the normal, intended use of the Software, Contractor will take such steps as are
reasonably required to correct the Deviation, so that it conforms to the
description contained in the System Documentation.
III. Remote Virtual Private (VPN) Diagnostics
Remote VPN Diagnostics Support includes:
a. Diagnostic or corrective actions necessary to restore proper FleetFocus
operation;
b. Diagnostic actions which attempt to identify the cause of system problem;
c. Correction of data file problem; and d. Product modifications
A-7
Exhibit A
Contractor product specialists will provide diagnostics via VPN on
FleetFocus. The County will provide any required hardware and equipment
necessary at County for Contractor VPN support.
IV. Technical Information
Contractor will provide technical information to the County from time to time. Such
information may cover areas such as FleetFocus usage, third party software, and other matters
considered relevant to the County by Contractor. Technical information will be provided at the
discretion of Contractor, but will not be unreasonably withheld.
Additional System Maintenance Services by Contractor
Contractor may provide additional maintenance services ("Additional Maintenance and
Support Services" or"Additional Maintenance Services") at an additional charge. Charges will
be as identified in Section 6 of this Agreement; or, if not included in this Agreement, charges will
be at current prices in effect at the time goods or services are provided. Any Additional
Maintenance and Support Services requested by the County and determined by Contractor to
be billable by Contractor must be identified as a chargeable service prior to the service being
performed and must be approved in writing in advance by the County's Contract Administrator.
Additional Maintenance Services include, but are not limited to, the following:
V. Additional Training
A specific amount of training is specified in this agreement. Additional training at
a County facility is available upon request by the County at an additional charge
under the terms of this Agreement. Requests for additional training will be
reviewed by Contractor and must be requested in writing in advance by County's
Contract Administrator. Charges will be at rates identified in this Agreement.
VI. Data and System Corrections
Data and System Corrections include any corrective actions accomplished by
Contractor on-site or via VPN which are necessary due to County errors or
unauthorized source code or data access by County. Unauthorized access to the
data is defined as any County editing of data through other than normal system
A-8
Exhibit A
usage as defined in System Documentation. Unauthorized access to source
code is defined as any County access whatsoever to system source code.
Services provided by Contractor are not billable when they result from errors
caused by FleetFocus or instruction provided by Contractor.
VII. Customer Site Visits
Site visits to County sites, as may be requested in writing by County and that are
within the scope of the project services, are available for reasons such as, but
not limited to, (1) additional system training on hardware or software usage; (2)
resolution of system difficulties not resulting from actions by, or otherwise the
responsibility of Contractor (as determined by mutual agreement between
Contractor and County); (3) installation of Software Releases; and (4) assistance
in equipment maintenance, movement or diagnosis. Site visits outside of the
scope of project services will be reviewed by the Contractor and must be
requested in writing in advance by County's Contract Administrator. Charges will
be at rates identified in this Agreement.
Vill. Custom Programming
Requests for supplemental programming or customization of system features not
covered under this Agreement are available to County. Such requests will be
reviewed by Contractor and must be requested in writing in advance by the
County's Contract Administrator. Charges will be at rates identified in this
Agreement and in accordance with the Compensation chart attached as Exhibit
B.
Contractor Protect Coordinator
Upon execution of this Agreement, Contractor shall appoint a Project Coordinator who
will act as the primary contact person to interface with County for implementation, maintenance
and support of FleetFocus.
System Updates and New Products
A-9
Exhibit A
The Software may be revised by Contractor 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 (2) kinds:
i. Revisions that the County is obliged to implement ("Mandatory Revisions");
ii. Revisions that may be implemented by the County at its option ("Optional Revisions").
No charge shall be made to the County for either Mandatory Revisions or Optional Revisions
while under a current Maintenance Agreement.
New products ("New Products") may be added to the Software by Contractor 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. Contractor, 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.
All Revisions and New Products will be made available for download by the County via
access to the Contractor website or other suitable media, at the option of Contractor. The
County shall be solely responsible for executing the appropriate instructions in order to transfer
the Revisions or New Products onto to its system.
Anti-Virus Management
County will actively run anti-virus management, where appropriate, on all application
servers and PCs. The application is expected to perform adequately while anti-virus
management is active.
Adhere to Change Control Process
Contractor must adhere to County's Change Control Process, which shall be provided to
Contractor in writing. County employs a procedure to implement updates, upgrades, and version
releases to a system that is in production use. This forum allows ISD to inform staff (Help Desk,
Network, Server, Database, Security, and Analysts) of upcoming changes to a production
A-10
Exhibit A
system. Contractor must inform ISD a minimum of 1 week prior to any planned, non-emergency
changes so that the Change Control Process may be followed.
Other
Unless otherwise specified, for third-party software, Contractor shall provide standard
documentation in electronic form (via the Internet or File Transfer Protocol (FTP)).
The system being provided runs in a Local Area Network and Web environment. As
such, the performance of the system is directly related to, among other things: available network
bandwidth, and the performance of other applications. For this reason, Contractor makes no
guarantees as to system response time.
AssetWorks Hosting Terms
Application:
Application refers to the Customer's licensed AssetWorks Software, and third-party Software
hosted by AssetWorks.
Support Software:
Support Software includes the operating system, utilities, database Software, and all necessary
licenses required to operate the Application.
Hardware:
Server infrastructure using redundant web servers and Oracle RAC database servers is deployed
within the primary Data Center.
If required by Customer, Customer shall provide the telecommunications equipment (including
the routers to be installed at the Data Center), communication line, and Services for connection
from Customer's site to the Data Center.
Database Instances:
AssetWorks will maintain a single Production Database instance. This Production Database will
provide the daily, real-time transaction data to the Application users.
In addition to the Production Database, AssetWorks will maintain one additional, non-production
Database (Test). Upon request by Customer, AssetWorks will populate these additional
A-11
Exhibit A
Databases with Customer's Production data up to 4 times in any 12-month period at no additional
cost.
Custom Reports:
Custom Reports may be ordered pursuant to a Statement of Work for an additional charge.
Backups:
Database and file system backups are performed daily. Backup data is stored and retained at a
secure offsite facility for 14 days.
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, 7 days a week except for periods of Scheduled
Maintenance and previously approved outages. AssetWorks will not be held responsible for
inaccessibility arising from communications problems occurring anywhere beyond the
AssetWorks external network interface, nor will these hours of unavailability be counted as
unavailable.
Maintenance:
AssetWorks will complete routine maintenance on the Application according to the published
schedule. AssetWorks will publish schedules for subsequent years on its Customer Support web
site. AssetWorks will endeavor to provide at least 30 days notice to any changes in the schedule,
except in the event of emergency maintenance.
If AssetWorks 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
AssetWorks will mutually agree on the downtime. All routine, additional, and emergency
maintenance will be considered a period of Scheduled Maintenance.
Data Classification:
The AssetWorks Data Center maintains SSAE16 SOC2 certification/ISO27001 compliance as a
facility housing CUI (Controlled Unclassified Information) data at our facility based on the DOJ
A-12
Exhibit A
assessment using NIST 800-53 guidelines for FISMA (Federal Information Standards
Management Agency) standards.
County Responsibilities:
I. Ensuring the Services are used in accordance with this Agreement, e.g. License,
Software Restrictions, Proper Use, etc.
11. Promptly notifying AssetWorks upon discovery of misuse or suspected misuse of the
Services and/or data files, including, but not limited to, inserting, updating, deleting, or
otherwise modifying data through means other than the Services. AssetWorks is not
obligated but may attempt to correct the situation at Customer's expense.
Ill. Diagnostic assistance provided by AssetWorks, which, in the reasonable opinion of both
AssetWorks and Customer, relates to problems not caused by a Deviation in the
Services, at the Customer's expense.
IV. Assigning primary and alternate Customer-designated key personnel to coordinate all
communications and activities related to AssetWorks Services, including all requisite
personnel for any SOW.
V. Customer Credentials /Application-level Security. Customer shall be solely
responsible for providing user identification data, determining the appropriate security
profile for each user, and keeping all user identifications and passwords secure
("Customer Credentials"). Customer will control security at the Application level.
VI. Customer's Site. Installation, operation, and maintenance of all workstation Software
(and Customer's LAN, existing data communications configuration, Hardware, or
Software required at Customer's site except as otherwise stipulated in the Scope of
Services). AssetWorks network and network responsibility extends from the AssetWorks
routers at AssetWorks' sites to all connected equipment at AssetWorks' sites.
11. Testing updates and fixes. With the exception of emergency fixes, Customer will test
updates and fixes applied by AssetWorks to the Application prior to their introduction to
the production environment within a mutually agreed upon timeframe.
A-13
Exhibit A
III. Testing upgrades. Upgrades will be moved to production by AssetWorks at the end of
the Customer testing period unless specific problems are documented in writing to
AssetWorks.
IX. Diligent Troubleshooting. Customer must perform analysis of suspected problems to
determine their specific nature and possible causes before calling AssetWorks for
assistance. Notwithstanding this diligence requirement, Customer is responsible for
informing AssetWorks of any problems encountered in a timely manner.
SERVICE LEVEL OBJECTIVES. The below service level objectives apply to the Hosted Services
and SaaS.
AVAILABILITY. AssetWorks will use commercially reasonable efforts to provide Services with
an average of 99% Availability (as such term is hereinafter defined)for each quarter during the
Term. For purposes of the Agreement, "Availability" during any quarter refers to an Authorized
User's ability to log into the Application during such quarter, and will be calculated in
accordance with the following formula:
X = (Y -Z) /Y* 100
• "X" is the Availability of the Application during the quarter;
• "Y" is the total number of hours in such quarter minus the number of hours during
such quarter that the Customer is unable to log into the Application because of: (a)
regularly scheduled maintenance windows for the Application and for times in which
Customer has been notified in writing (including e-mail) by AssetWorks in advance
thereof; (b) a Force Majeure Event; (c) non-performance of Hardware, Software, ISP
connections, and other equipment that is not provided by AssetWorks or certified by
AssetWorks for use in conjunction with the Services (except as such non-performance
is directly or indirectly caused by AssetWorks); and
A-14
Exhibit A
• "Z" is the number of hours in such month during which the Customer is unable to
log into the Application (other than for reasons set forth in the definition of"y" above);
provided that AssetWorks has been notified or is otherwise aware (or reasonably
should be aware) of Customer's inability to utilize the Application.
FEE ADJUSTMENT. In the event the average Availability for the Application is less than ninety-
nine percent(99%)during any two (2) consecutive quarters, Customer will receive a service credit
(i.e. fee adjustment) to its account with AssetWorks of five percent (5%) of the amount of a
quarter's aggregate Services fees paid or payable by Customer to AssetWorks.
AssetWorks' obligation to provide the service credit set forth above is conditioned on Customer
providing detailed written notice of its contention that AssetWorks was unable to meet the
applicable Availability levels within fifteen (15) days of the relevant quarter's end as provided in
the notice section of this Agreement. Upon receipt of such notice, AssetWorks shall have thirty
(30) days to investigate the contention and, if it is determined that AssetWorks did in fact fail to
meet the applicable Availability levels, Customer will receive the appropriate credit to its account
during the next invoice cycle.
The service credit set forth above shall be Customer's sole remedy and AssetWorks' entire liability
in the event of a breach of these service level objectives, including the failure of any Availability
measurements to meet the thresholds set forth above.
Obligations of the County
County's responsibilities include those set forth above under 'AssetWorks Hosting
Terms'.
County Contract Administrator
County appoints its Chief Information Officer (CIO) or his or her designee, as County's
Contract Administrator with full authority to deal with Contractor in all matters concerning this
Agreement.
A-15
Exhibit A
Safeguarding System Software
Contractor will ensure there is a system in place to maintain adequate data backup to
protect against the loss of data.
I. Contractor, at all times, during and after the performance of the installation of the
System Software, is responsible for maintaining adequate data backups to protect
against loss of data.
Acceptance Testing
County shall approve Final System Acceptance when FleetFocus has been successfully
tested and satisfactorily performs all functions necessary pursuant to this Agreement, and all
deliverables identified in this Agreement as required for acceptance have been received by
County.
I. Acceptance Testing Process
Following delivery and installation, Contractor shall test FleetFocus along with County
personnel.
II. System Hardware and System Software
County will at its own expense provide and properly maintain and update on an on-going
basis all necessary County System Software and County System Hardware required to operate
FleetFocus. Said County System Software and County System Hardware shall meet or exceed
Contractor's recommendations.
As part of the County's responsibility for computer infrastructure, the County is
responsible for ensuring that data is secure and protected at all times. Contractor is not
responsible for and cannot be held liable for inadvertent data disclosure or theft from County
facilities. AssetWorks does not guarantee the privacy, security, authenticity or non-corruption of
any information transmitted through the internet or any mobile or wireless network, or any
information stored in any system connected to the internet or to any mobile or wireless network.
AssetWorks shall not be responsible for any claims, damages, costs or losses whatsoever
A-16
Exhibit A
arising out of or in any way related to Customer's connection to or use of the internet or of any
mobile or wireless network.
AssetWorks will not be liable to Customer or any third party for any claims, expenses,
damages, costs or losses whatsoever arising out of or in any way related to Customer's use of
the Software insofar as such Software may be used to store, transmit, display, disclose or
otherwise use data or information which is considered private, confidential, proprietary or
otherwise exempt from public disclosure under applicable law.
County Project Manager
Upon execution of this Agreement, County's Contract Administrator shall designate one
individual from ISD who will function as Project Manager with responsibility for day-to-day
management of the project for implementation of FleetFocus. The Project Manager and County
personnel shall have the necessary and appropriate training and experience to implement the
terms of this Agreement. County acknowledges Contractor's reliance on same.
Other County Obligations
Technical assistance from County's ISD staff will be provided during the performance of
the installation of the System Software. In particular, County will provide:
I. Network connectivity and troubleshooting assistance.
II. Ability to monitor network traffic and isolate bottlenecks.
III. Technical assistance concerning the integration with existing County systems (if
applicable).
IV. Expertise to handle issues with PCs, printers, and cabling before, during, and after
rollout.
PROFESSIONAL SERVICES AGREEMENT
A. WHEREAS, County requires professional services; and
B. WHEREAS, Contractor is willing to provide such services.
A-17
Exhibit A
NOW, THEREFORE, in consideration of the mutual terms, conditions and covenants set forth
herein, the parties agree as follows:
1. Services / Statement of Work
Contractor will perform the professional services ("Services") described in any Statement of
Work under this Agreement ("Statement of Work") . The terms of this Agreement shall control
any Additional Scopes of Work that may be executed by the parties during the Term of this
Agreement. No Statement of Work shall be of any force and effect unless and until executed by
both Contractor and County. A Statement of Work may only be amended by a Change Order
("Change Order"), which shall detail the changes to the Statement of Work as well as any
changes to the pricing and shall only be effective when signed by both Parties.
2. Price and Payment Terms
a. Each Statement of Work will either be on a time and material basis or a fixed
price basis, specified in the Statement of Work. The Statement of Work may or
may not include a definitive list of"Deliverables" that must be completed by
Contractor.
b. In the event that Services result in greater Contractor duties than contemplated
by the Statement of Work, County will work closely and in good faith with
Contractor to modify the Statement of Work to ensure that the County's
requirements are addressed and Contractor' fees shall be adjusted to reflect
increased County requirements.
c. Unless specifically addressed in the Statement of Work, all travel and expenses
incurred will be extra and billed when incurred.
d. Invoiced amounts are due and payable forty-five (45) days from the date of the
invoice. The preferred means of payment is by electronic funds transfer (EFT).
EFT payments can be accomplished as either a Funds Transfer (Fed Wire) or
Direct Deposit (ACH).
A-18
Exhibit A
e. Bill to Address. The invoice will be mailed to the County address specified in
Section 6.D. "Invoicing" of this Agreement unless otherwise indicated in the
Statement of Work.
3. Resources to be Provided by County
a. County shall provide, maintain and make available to Contractor, at County's
expense and in a timely manner, the resources described in this Section 3, the
Statement of Work, and such other additional resources as Contractor may from
time to time reasonably request in connection with Contractor performance of the
Services. Delays in the provision of these resources may result in delays in the
performance of the Services, or an increase in the Price.
b. County will designate qualified County personnel or representatives to consult
with Contractor on a regular basis in connection with the Services. County will
furnish such documentation and other information as is reasonably necessary to
perform the Services.
c. County shall furnish access to County's premises, and appropriate workspace for
any Contractor personnel working at County's premises, as necessary for
performance of those portions of the Services to be performed at County's
premises.
d. County shall meet all assumptions noted on the Statement of Work.
3. Relationship of the Parties
The parties are independent contractors and under no circumstances will either be deemed to
be an agent, partner, legal representative, employee or joint venture partner of the other party.
4. Subcontractors
Contractor may engage subcontractors to assist in performing Services with the prior written
consent of County; provided, Contractor shall supervise such sub-contractors and the Services
performed by them to the same extent as if Contractor performed the work.
A-19
Exhibit A
5. Confidentiality
a. Subject to Article 10, Because either party may have access to information of the
other party that the other party considers to be confidential or proprietary
("Confidential Information"), each party will maintain all Confidential Information
clearly marked as "confidential information" in confidence and will use it solely in
the discharge of its obligations under this Agreement and any applicable
Statement of Work. Nothing herein will be deemed to restrict a party from
disclosing Confidential Information to its employees and subcontractors in the
discharge of such obligations.
b. Subject to Article 10, Confidential Information will not include information that (i)
is, or becomes, generally known or available through no fault of the, recipient; (ii)
is known to the recipient at the time of its receipt from the disclosing party; (iii)
the disclosing party provides to a third party without restrictions on disclosure; (iv)
is subsequently and rightfully provided to the recipient by a third party without
restriction on disclosure; (v) is independently developed by the recipient, without
reference to the disclosing party's Confidential Information; or (vi) is required to
be disclosed pursuant to a governmental agency or court subpoena, provided the
recipient promptly notifies the disclosing party of such subpoena to allow it
reasonable time to seek a protective order or other appropriate relief.
c. Subject to Article 10, Because of the unique nature of the Confidential
Information, each party agrees that the disclosing party may suffer irreparable
harm in the event the recipient fails to comply with its obligations under this
Section 6, and that monetary damages may be inadequate to compensate the
disclosing party for such breach. Accordingly, the recipient agrees that the
disclosing party may, in addition to any other remedies available to it, be entitled
to injunctive relief.
6. Intellectual Property
A-20
Exhibit A
a. County and Contractor shall each retain ownership of, and all right, title and
interest in and to, their respective pre-existing Intellectual Property, and no
license therein, whether express or implied, is granted by this Agreement or as a
result of the Services performed hereunder. To the extent the parties wish to
grant to the other rights or interests in pre-existing Intellectual Property, separate
license agreements on mutually acceptable terms will be executed.
b. The Services performed, code developed, and any Intellectual Property produced
by Contractor pursuant to this Agreement are not "works for hire."
c. As used herein, "Intellectual Property" shall mean inventions (whether or not
patentable), works of authorship, trade secrets, copyright, techniques, know-how,
ideas, concepts, algorithms, and other intellectual property incorporated into any
Statement of Work or Deliverable whether or not first created or developed by
Contractor in providing the Services.
7. Non-Solicitation
During the term of this Agreement, and for one (1) year thereafter, neither party will solicit the
employment of, or contract for the services of, any person who is/was an employee, agent, or
subcontractor of the other party during the term of this Agreement. Nothing in this section shall
prohibit either party from placing a bone fide public advertisement for employment which is not
specifically targeted at a Party's employees, and neither Party shall be restricted from hiring any
such person who responds to any such general solicitation or public advertisement, so long as
no solicitation of such person has occurred.
8. Taxes
a. In no event whatsoever shall Contractor be liable for sales, use, business, gross
receipts or any other tax that may be levied by any State or Federal Government
entity other than taxes upon income earned by Contractor for the goods and/or
services provided pursuant this Agreement. This exclusion of tax liability is also
applicable to any goods and/or services that may be provided by Contractor
A-21
Exhibit A
under any later Statement of Work, Change Order or other amendment hereto
regardless of changes in legislation or policy.
b. In the event a taxing authority conducts an audit of this Agreement and
determines that an additional tax should have been imposed on the Services or
Deliverables provided by Contractor to County (other than those taxes levied on
Contractor income), County shall reimburse Contractor for any such additional
tax, including interest and penalties thereon. Similarly, if a taxing authority
determines that a refund of tax is due as it relates to the Services or Deliverables
provided by Contractor to County (except those taxes relating to Contractor
income), Contractor shall reimburse County such refund, including any interest
paid thereon by the taxing authority.
9. Termination for Default
Either party may terminate this Agreement or any Statement of Work if(i) the other party fails to
perform a material obligation of the Agreement and such failure remains uncured for a period of
thirty (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 ninety
(90) days or makes an assignment for the benefit of creditors. In addition, Contractor may
terminate this Agreement or any Statement of Work effective immediately upon written notice to
County if County fails to make any payment in full as and when due hereunder. Termination of a
Statement of Work shall not terminate this Agreement.
Upon termination for whatever reason and regardless of the nature of the default (if any),
County agrees to pay Contractor the full value for all goods and/or services provided to County
up to and including the date of termination.
10. Termination for Convenience
Notwithstanding any other provision in this Agreement, either party may terminate this
Agreement or a Statement of Work by providing ninety (90) days' notice of intent to terminate.
A-22
Exhibit A
Termination of a Statement of Work shall not affect any other Statement of Work. Termination of
this Agreement shall terminate all active Statements of Work. Termination by County shall not
relieve County of the obligation to pay for any Services provided up to and including the date of
termination.
11. Non-Allocation of Funds
The terms of this Agreement, and the services to be provided hereunder, are contingent on the
approval of funds by the appropriating government agency. Should sufficient funds not be
allocated, the services provided may be modified, or this Agreement terminated, at any time
without penalty by giving the Contractor thirty (30) days advance written notice of non-allocation
of funds.
12. Effect of Termination
The Terms of this Agreement shall survive for any Statement of Work which is still pending at the
time of termination until the conclusion of the Statement of Work.
13. Limited Warranty
a. Contractor warrants that the Services provided under this Agreement shall be
performed with that degree of skill and judgment normally exercised by
recognized professional firms performing the same or substantially similar
services. In the event of any breach of the foregoing warranty, provided County
has delivered to Contractor timely notice of such breach as hereinafter required,
Contractor shall, at its own expense, in its discretion either (1) re-perform the
non-conforming Services and correct the non-conforming Deliverables to
conform to this standard; or (2) refund to County that portion of the Price
received by Contractor attributable to the non-conforming Services and/or
Deliverables. No warranty claim shall be effective unless County has delivered to
Contractor written notice specifying in detail the non-conformities within 90 days
after performance of the non-conforming Services or tender of the non-
conforming Deliverables. The remedy set forth in this section 14(a) is the sole
and exclusive remedy for breach of the foregoing warranty.
b. CONTRACTOR SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR
IMPLIED WARRANTIES, STANDARDS, OR GUARANTEES, INCLUDING,
A-23
Exhibit A
WITHOUT LIMITATION ANY 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 COUNTY'S HARDWARE, SOFTWARE, FIRMWARE, OR COMPUTER
SYSTEMS.
c. County represents and warrants to Contractor that, to the best of County's
knowledge, County has the right to use and furnish to Contractor for Contractor
use in connection with this Agreement any information, specifications, data or
Intellectual Property that County has provided or will provide to Contractor in
order for Contractor to perform the Services identified in any Order Form or
Statement of Work.
14. 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.
15. 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.
16. 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.
17. 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, epidemics,
pandemics, sabotage, terrorism, accidents, insurrections, blockades, embargoes, storms,
A-24
Exhibit A
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 Providers, or
other communication devices, acts of cyber criminals, terrorists or other criminals, acts of any
governmental body (whether civil or military, 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.
18. 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.
A-25
Exhibit B
Compensation
The Contractor will be compensated for performance of its services under this
Agreement as provided in this Exhibit B. The Contractor is not entitled to any compensation
except as expressly provided in this Exhibit B.
MAINTENANCE AND SUPPORT
YEAR TERM COST
Year 1 01/01/2024-12/31/2024 $47,975.61
Year 2 01/01/2026-12/31/2026 $55,330.74
Year 3 01/01/2026-12/31/2026 $59,203.89
Year 4 01/01/2026-12/31/2026 $63,940.20
Year 5 01/01/2026-12/31/2026 $69,694.82
HOSTING
YEAR TERM COST
Year 1 09/01/2023-08/31/2024 $34,800.00
Year 2 09/01/2024-08/31/2025 $36,888.00
Year 3 09/01/2025-08/31/2026 $39,470.16
Year 4 09/01/2026-08/31/2027 $42,627.00
Year 5 09/01/2027-08/31/2028 $46,464.27
Initial Hosting Migration Fees $11,440.00
OPTIONAL LICENSE, HARDWARE, MAINTENANCE, AND SERVICE BUNDLES
OPTIONAL ITEM COST
AssetWorks Academy Users Conference Admission $1,250.00 (per person)
Management Review $24,000.00
On Site System Training (3-day minimum, excluding $2,346.67 (per day)
travel)
Billable Services $220.00 (per hour)
B-1
Exhibit B
Additional FleetFocus Twenty-Five (25)Active $1,347.00
Equipment Units, including Modules as listed in above
Additional FleetFocus Annual Maintenance and Support $336.00
Fees for Tweny-five (25) New Active Equipment Units
Hosting Services—Twenty-five (25)Additional $37.50 (per month)
FleetFocus Active Equipment Units Monthly Fee
Hosting Services— KeyValet Monthly Fee (Per Keybox) $50.00 (per month)
B-2
Exhibit B
AssetWORKS
QUOTATION
AssetWorks Inc. Quote#: Q-08794-6
998 Oid Eagle School Road.Suite 1215 Date: 1 011 1/2023
Wayne.PA 19087 Expires On: 1213112023
Account Manager:Tyler Beaty
Email tyler.beaty@assetworks.com
Phone: (916)230-4458
Ship To Bill To
Ken Christiansen County of Fresno
County of Fresno 4551 E-Hamilton
4551 E.Hamilton Fresno,California 93702
Fresno,California 93702 United States
United Stales
559-600-7511
kchrisuansen@fresnowuntyca.gov
Hosting Services(Recurring)
Description
Feel
Hosting Services-FleetFocus Monthly Fee 1 1,&001 USD 1,501 USD 2,400.00 LSD 28,800.00
Hosting Services-Reporting Database Monthly Fee 1 1 USD 500,001 USD 500.00 USD 6.000.00
Hosting Total: USD 34,800.00
Hosting Environment Setup(one-time)
Hosting Environment-One Time Setup Fee USD 5,280.00
Hosting Reporting Environment-One Time Setup Fee USD 2,640.00
Service Total: USD 7,920.00
Professional Services(one-time)
System Migration Support Services 77USD
3.520.00
Professional Services Total: 520.00
Grand Total: USD 46.240.00
FleetFocus Hosting Setup and Migration Scope and Assumptions
As part of going SaaS/hosted,AssetWorks will create a non-production and production FleetFocus environment as well as
a third reporting environment.AssetWorks Customer Care will work to schedule the installations and provide updates
accordingly through a support ticket.Once installed,the login information to the production and non-production system will
be provided to the customer.The reporting instance connection information will be provided as well,if elected on order
form.
Customers are required to upgrade to a supported generally available(GA)release available in the FA/EAM hosting
environment.If the customer is on a supported version on premise.an upgrade is offered as part of the environment setup
fees.If the customer is not a supported version on premise,a separate upgrade fee will apply to move the customer to a
version that can be maintained by AssetWorks.
Page 1 of 2
B-3
Exhibit B
MobileFocus handheld devices.Capital Asset Management(CAM),KeyValet key boxes and FuelFocus ICUs are
excluded from upgrade unless otherwise noted on the quote.In addition,FuelFocus ICU and KeyValet key boxes require
additional testing and re-direction services and are excluded unless otherwise noted on the quote.
The AssetWorks environments run on an Oracle database and as such.all custom interfaces,custom reports.and custom
reporting views must be either built in Oracle or converted to Oracle prior to moving to AssetWorks servers.If the custom
work(AssetWorks or Customer built)is not built in Oracle,a quote will be provided for the conversion.
AssetWorks will assist in the migration and re-connecting of all custom deliverables and out of the box integrations(i.e.,
NAPA,Telematics Cloud.FSS,etc.)for a customer transitioning to the AssetWorks hosted environment for both
production and non-production.This service does not include full scale testing to the original specification but does
include ensuring core connections are functioning.These services are covered under System Migration Support Services,
which also includes general project administration and AW resource coordination.System Migration Support Services are
presented on a fixed fee basis and will be invoiced in full after the migration to a production and non-production
environment on AssetWorks servers are complete.
Customer is responsible for testing all business processes following migration of the non-production environment.This is
expected to be completed within 30 days of installation in the hosted environment on AssetWorks'servers.All business
processes should be reconfirmed following the migration of the production environment.This includes:
• Reports.reporting views and interfaces that AssetWorks custom built for the customer.If any issues are
encountered.AssetWorks Customer Care will open a ticket to investigate,troubleshoot and/or resolve.
Custom work built by customer including,but not limited to,reports,reporting views,data loads.batch
processes,notifications,etc.AssetWorks cannot guarantee that any custom work built by the customer will
continue to function after the migration and/or upgrade is completed.AssetWorks Customer Care can assist
with initial investigation or troubleshooting but resolution is outside of the scope of the migration/upgrade
process.
Customer will make appropriate technical resources available to AssetWorks'consultants for tasks such as delivery of the
database,file directories(attachments),etc.AssetWorks assumes customer utilizes an internal system administrator to
maintain all aspects of FleetFocus configuration,user training and system administrator duties as required to support any
necessary testing post migration to AssetWorks servers.
All services are presented on a fixed fee basis and will be invoiced upon completion of the environments or 60 days after
the non-production migration,whichever occurs first.
Milestone-Hosting Environment One Time Setup Fee=$5.280 USD
Milestone-Hosting Reporting Environment-One Time Setup Fee=S2.640 USD
Milestone-System Migration Support Services=$3,520 USD
FleetFocus Hosting Setup and Migration Professional Services Terms
Invoices are due on existing contract terms.
All services will be performed remotely using web teleconferencing,unless otherwise noted.
Customer Care engagements have an 8-week lead time from execution of contract/order.
• Customer will make appropriate technical resources available to AssetWorks'consultants.
Customer will have all the necessary and appropriate personnel at meetings for the purpose of defining the
project requirements.
Customer will appoint a single point of contact for the duration of the project.This person should have project
management responsibilities and decision-making authority.This person will be the focal point of contact for
the AssetWorks'Professional Services and Customer Care team.
If additional scope is added or required.a change order will be requested of the customer.
If this order is abandoned,paused or cancelled by the customer for any reason mid-effort,the customer will
be billed for all AssetWorks time incurred at the current contracted labor rate.
Page 2 of 2
B-4
Exhibit B
A s s e t WOR K S MAINTENANCE RENEWAL STATEMENT
998 Old Eagle School Road I Suite 1215 1 Wayne PA 19087-1805 Number 1575 FA MNT24
Tel (484)588-5515 Fax (610)971-9447 5 Year Term
TO: County of Fresno
FROM: AssetWorks Inc.
DATE: October 5,2023
RE: FleetFocus FA Maintenance and Support Renewal
Prices valid through November 30.2028
Pro-rated Software Maintenance and Support on prior term for period 111/2023-11/30/2023(11 Months)
FleetFocus FA license for up to 1,600 active equipment units $ 46,455.26
Pro-Rated Maintenance $ 46,455.26
CreditAvailable Credit $ 4,223.20
Annual Software Maintenance and Support for period 12/1/2023-11/3012024
FleetFocus FA license for up to 1,600 active equipment units
Including Bar Code,Call Center,Crystal Reports Embedded,Customer Access,Allocation&Assignment,
Enterprise Portal,Equipment Planning,EquipmentFocus for Facilities,KPI/Dashboards,Labor Capture,
Maxqueue,Notifications,Production Planning,Query,Replacement Modeling,Reporting,Service Level
Agreements,Service Requests,Shop Activity,Shop Scheduling,and Warranty modules $ 52.198.81
Includes product updates and enhancements,unlimited email and telephone support for 12 months
Year 1 Maintenance Subtotal $ 52,198.81
Annual Software Maintenance and Support for period 12/1/2024-11/3012025
FleetFocus FA license for up to 1,600 active equipment units
Same configuration as above $ 55,330.74
Year 2 Maintenance Subtotal $ 55,330.74
Annual Software Maintenance and Support for period 12/1/2025-11/30/2026
FleetFocus FA license for up to 1,600 active equipment units
Same configuration as above S 59,203.89
Year 3 Maintenance Subtotal $ 59,203.89
Annual Software Maintenance and Support for period 1211/2026-11/3012027
FleetFocus FA license for up to 1,600 active equipment units
Same configuration as above $ 63,940.20
Year 4 Maintenance Subtotal $ 63,940.20
Annual Software Maintenance and Support for period 12/1/2027-11/3012028
FleetFocus FA license for up to 1,600 active equipment units
Same configuration as above S 69,694.82
Year 5 Maintenance Subtotal S 69,694.82
For Visa.MasterCard.and American Express payments.add 4%:
REMIT TO: Sales Tax: 0.0000% S
CHECKS All software updates are electronically delivered
AssetWorks
PO Box 202525 5 YEAR BUDGETARY TOTAL,$US $ 300,368.46
Dallas TX 75320-2525
EFT,ACH,OR DIRECT DEPOSIT
Wells Fargo,8601 N.Scottsdale Rd.,Scottsdale AZ 85253 US Tax ID#46-0521049
ABA#122105278 Canada GST/HST#834113896 RT0001
Account#5076434348 AssetWorks Inc.is a subsidiary of Trapeze Software Group Inc.
If you require a separate invoice,complete this form and return it by email or fax;AssetWorks will issue an invoice as you instruct below. If
your organization requires us to reference a purchase order number on our invoice,we must receive that PO by email to
Alexis.Scheifley@AssetWorks.com or by fax to(610)971-9447. Do not mail POs to our remittance address.
If you have any questions,please contact Alexis Scheifley at Alexis.Scheifley@AssetWorks.com. Page 1 of 2 F
B-5
Exhibit B
A s s e t WOR K S MAINTENANCE RENEWAL STATEMENT
998 Old Eagle School Road I Suite 1215 1 Wayne PA 19087-1805 Number 1575 FA MNT24
Tel (484)588-5515 Fax (610)971-9447 5 Year Term
TO: County of Fresno
FROM: AssetWorks Inc.
DATE: October 5.2023
RE: FleetFocus FA Maintenance and Support Renewal
_ Prices valid through November 30.2028
Terms
Unless there is a Signed agreement between the parties,this maintenance renewal is Subject to the terms and conditions of the AssetWorks
Master Service Agreement found at htfo://www.assetworks.com/TC-Ffeeti The parties will continue to be bound by those terms during any
renewal period unless otherwise agreed by both parties through a signed amendment. Notification of termination of maintenance is required
90 days prior to annual renewal date.
SOLESOURCE
FleetFocus is proprietary property of AssetWorks Inc.and protected by law. Another party cannot alter,modify,change,manipulate of
provide maintenance for this product without infringing upon AssetWorks'ownership rights. Accordingly,AssetWorks is the sole source for
software,maintenance and services of its products.
I,the undersigned,accept this maintenance renewal as described above.
Name: Title:
Signature: Date:
[ ]PO REQUIRED-# [ ]NO PO REQUIRED
[ ]NO SEPARATE INVOICE
NEEDED
[ ]Please MAIL invoice to:
[ ]Please E-MAIL invoice to:
If you have any questions,please contact Alexis Scheifley at Ale)ds.Scheifley@AssetWorks.com. Page 2 of 2 F
Y:Tmsm Co[FA,NWFJ�CoWao Wairrtergnm Ren Is%Fre C—ty FA Mamt Re-1 Sept 2023_5yr_Revl cmWerhow Imb—bon
B-6
Exhibit C
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
contractor's board of directors ("County Contractor"), must disclose any self-dealing transactions
that they are a party to while providing goods, performing services, or both for the County. A
self-dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in
which one or more of its directors has a material financial interest."
The definition above will be used for purposes of completing this disclosure form.
Instructions
(1) Enter board member's name, job title (if applicable), and date this disclosure is being
made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
C-1
Exhibit C
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a
party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
(5) Authorized Signature
Signature: Date:
C-2
Exhibit D
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, the Contractor, at its sole expense, shall maintain in full force and effect the following
insurance policies throughout the term of this Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not
less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of
Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis.
Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Contractor shall obtain an endorsement to
this policy naming the County of Fresno, its officers, agents, employees, and volunteers,
individually and collectively, as additional insureds, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by the County
is excess only and not contributing with insurance provided under the Contractor's
policy.
(B) Automobile Liability. Automobile liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
(C)Workers Compensation. Workers compensation insurance as required by the laws of
the State of California with statutory limits.
(D) Employer's Liability. Employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
(E) Professional Liability. Professional liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence and an annual aggregate of Three Million
Dollars ($3,000,000). If this is a claims-made policy, then (1)the retroactive date must
be prior to the date on which services began under this Agreement; (2)the Contractor
shall maintain the policy and provide to the County annual evidence of insurance for not
less than five years after completion of services under this Agreement; and (3) if the
policy is canceled or not renewed, and not replaced with another claims-made policy
with a retroactive date prior to the date on which services begin under this Agreement,
then the Contractor shall purchase extended reporting coverage on its claims-made
policy for a minimum of five years after completion of services under this Agreement.
(F) Technology Professional Liability (Errors and Omissions). Technology professional
liability (errors and omissions) insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence and in the aggregate. Coverage must encompass all of the
Contractor's obligations under this Agreement, including but not limited to claims
involving Cyber Risks.
(G)Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence. Coverage must include claims involving Cyber Risks. The
cyber liability policy must be endorsed to cover the full replacement value of damage to,
D-1
Exhibit D
alteration of, loss of, or destruction of intangible property (including but not limited to
information or data) that is in the care, custody, or control of the Contractor.
Definition of Cyber Risks. "Cyber Risks" include but are not limited to (i) Security
Breach, which may include Disclosure of Personal Information to an Unauthorized Third
Party; (ii) data breach; (iii) breach of any of the Contractor's obligations under Exhibit E
of this Agreement; (iv) system failure; (v) data recovery; (vi) failure to timely disclose
data breach or Security Breach;; (xi) information theft; (xii) damage to or destruction or
alteration of electronic information; (xiii) cyber extortion; (xiv) extortion related to the
Contractor's obligations under this Agreement regarding electronic information, including
Personal Information;; (xviii) network security; (xix) data breach response costs,
including Security Breach response costs; (xx) regulatory fines and penalties related to
the Contractor's obligations under this Agreement regarding electronic information,
including Personal Information; and (xxi) credit monitoring expenses. Not withstanding
anything contained herein to the contrary, Contractor shall not assume liability for any
Cyber Risks attributable to the County. This includes, but is not limited to, Cyber Risks
attributable to the County's failure to minimize the input of Personal Information or which
County is otherwise responsible for under applicable law.
(i) The professional liability insurance certificate, if it is a claims-made policy, must
also state the retroactive date of the policy, which must be prior to the date on
which services began under this Agreement.
(ii) The technology professional liability insurance certificate must also state that
coverage encompasses all of the Contractor's obligations under this Agreement,
including but not limited to claims involving Cyber Risks, as that term is defined in
this Agreement.
(iii) The cyber liability insurance certificate must also state that it is endorsed, and
include an endorsement, to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited
to information or data) that is in the care, custody, or control of the Contractor.
(B) Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
less than A: VI I.
(C) Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Contractor shall provide to the County, or ensure that the policy requires
the insurer to provide to the County, written notice of any cancellation or change in the
policy as required in this paragraph. For cancellation of the policy for nonpayment of
premium, the Contractor shall, or shall cause the insurer to, provide written notice to the
County not less than 10 days in advance of cancellation. For cancellation of the policy
for any other reason, and for any other change to the policy, the Contractor shall, or shall
cause the insurer to, provide written notice to the County not less than 30 days in
advance of cancellation or change. The County in its sole discretion may determine that
the failure of the Contractor or its insurer to timely provide a written notice required by
this paragraph is a breach of this Agreement.
D-2
Exhibit D
(D)Waiver of Subrogation. The Contractor waives any right to recover from the County, its
officers, agents, employees, and volunteers any amounts paid under the policy of
worker's compensation insurance required by this Agreement. The Contractor is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
waiver, but the Contractor's waiver of subrogation under this paragraph is effective
whether or not the Contractor obtains such an endorsement.
(E) County's Remedy for Contractor's Failure to Maintain. If the Contractor fails to keep
in effect at all times any insurance coverage required under this Agreement, the County
may, in addition to any other remedies it may have, suspend or terminate this
Agreement upon the occurrence of that failure, or purchase such insurance coverage,
and charge the cost of that coverage to the Contractor. The County may offset such
charges against any amounts owed by the County to the Contractor under this
Agreement.
(F) Subcontractors. The Contractor shall require and verify that all subcontractors used by
the Contractor to provide services under this Agreement maintain insurance meeting all
insurance requirements provided in this Agreement. This paragraph does not authorize
the Contractor to provide services under this Agreement using subcontractors.
D-3
Exhibit E
"Data Security"
(A) A. Definitions.
Capitalized terms used in this Exhibit E have the meanings set forth in this section A.
"Authorized Employees" means the Contractor's employees who have access to Personal
Information.
"Authorized Persons" means: (i) any and all Authorized Employees; and (ii) any and all of the
Contractor's subcontractors, representatives, agents, outsourcers, and consultants, and providers of
professional services to the Contractor, who have access to Personal Information and are bound by law or
in writing by confidentiality obligations sufficient to protect Personal Information in accordance with the
terms of this Exhibit E.
"Director" means the County's Director of Internal Services/Chief Information Officer or his or her
designee.
"Disclose" or any derivative of that word means to disclose, release, transfer, disseminate, or
otherwise provide access to or communicate all or any part of any Personal Information orally, in writing, or
by electronic or any other means to any person.
"Person" means any natural person, corporation, partnership, limited liability company, firm, or
association.
"Personal Information" means any and all information, including any data provided, or to which
access is provided, to the Contractor by or upon the authorization of the County, including but not limited to
vital records, that: (i) identifies, describes, or relates to, or is associated with, or is capable of being used to
identify, describe, or relate to, or associate with, a person (including, without limitation, names, physical
descriptions, signatures, addresses, telephone numbers, e-mail addresses, education, financial matters,
employment history, and other unique identifiers, as well as statements made by or attributable to the
person); (ii) is used or is capable of being used to authenticate a person (including, without limitation,
employee identification numbers, government-issued identification numbers, passwords or personal
identification numbers (PINs), financial account numbers, credit report information, answers to security
questions, and other personal identifiers); or is personal information within the meaning of California Civil
Code section 1798.3, subdivision (a), or 1798.80, subdivision (e). Personal Information does not include
publicly available information that is lawfully made available to the general public from federal, state, or local
E-1
Exhibit E
"Data Security"
government records. County acknowledges that
"Privacy Practices Complaint" means a complaint received by the County relating to the Contractor's
(or any Authorized Person's) privacy practices, or alleging a Security Breach. Such complaint shall have
sufficient detail to enable the Contractor to promptly investigate and take remedial action under this Exhibit
E.
"Security Safeguards" means physical, technical, administrative or organizational security procedures
and practices put in place by the Contractor(or any Authorized Persons)that relate to the protection of the
security, confidentiality, value, or integrity of Personal Information. Security Safeguards shall satisfy the
minimal requirements set forth in subsection C.(5) of this Exhibit E.
"Security Breach" means (i) any act or omission that compromises either the security, confidentiality,
value, or integrity of any Personal Information or the Security Safeguards, or(ii) any unauthorized Use,
Disclosure, or modification of, or any loss or destruction of, or any corruption of or damage to, any Personal
Information.
"Use" or any derivative thereof means to receive, acquire, collect, apply, manipulate, employ, process,
transmit, disseminate, access, store, disclose, or dispose of Personal Information.
B. Standard of Care.
(1)The Contractor acknowledges that, in the course of its engagement by the County under this
Agreement, the Contractor, or any Authorized Persons, may Use Personal Information only as permitted in
this Agreement. The County acknowledges that Contractor's fleet management software is not intended nor
certified for the handling of Personal Information and, notwithstanding anything contained herein to the
contrary, County controls what Personal Information it enters into the system and Contractor shall not be
responsible for the County's failure to minimize the input of Personal Information to the limited extent
necessary to make ordinary use of the software.
(2)The Contractor acknowledges that Personal Information is deemed to be confidential information of,
or owned by, the County (or persons from whom the County receives or has received Personal Information)
and is not confidential information of, or owned or by, the Contractor, or any Authorized Persons. The
Contractor further acknowledges that all right, title, and interest in or to the Personal Information remains in
the County (or persons from whom the County receives or has received Personal Information) regardless of
E-2
Exhibit E
"Data Security"
the Contractor's, or any Authorized Person's, Use of that Personal Information.
(3)The Contractor agrees and covenants in favor of the County that the Contractor shall: (i) keep and
maintain all Personal Information in strict confidence, using such degree of care under this Subsection B as
is reasonable and appropriate to avoid a Security Breach; (ii) Use Personal Information exclusively for the
purposes for which the Personal Information is made accessible to the Contractor pursuant to the terms of
this Exhibit E; (iii) not Use, Disclose, sell, rent, license, or otherwise make available Personal Information for
the Contractor's own purposes or for the benefit of anyone other than the County, without the County's
express prior written consent, which the County may give or withhold in its sole and absolute discretion;
and (iv) not, directly or indirectly, Disclose Personal Information to any person (an "Unauthorized Third
Party") other than Authorized Persons pursuant to this Agreement, without the Director's express prior
written consent.
Notwithstanding the foregoing paragraph, in any case in which the Contractor believes it, or any
Authorized Person, is required to disclose Personal Information to government regulatory authorities, or
pursuant to a legal proceeding, or otherwise as may be required by applicable law, the Contractor shall (a)
immediately notify the County of the specific demand for, and legal authority for the disclosure, including
providing the County with a copy of any notice, discovery demand, subpoena, or order, as applicable,
received by the Contractor, or any Authorized Person, from any government regulatory authorities, or in
relation to any legal proceeding, and (b) promptly notify the County before such Personal Information is
offered by the Contractor for such disclosure so that the County may have sufficient time to obtain a court
order or take any other action the County may deem necessary to protect the Personal Information from
such disclosure, and the Contractor shall cooperate with the County to minimize the scope of such
disclosure of such Personal Information.
The Contractor shall remain liable to the County for the actions and omissions of any Unauthorized
Third Party concerning its Use of such Personal Information as if they were the Contractor's own actions
and omissions.
C. Information Security.
(1)The Contractor covenants, represents and warrants to the County that the Contractor's Use of
Personal Information under this Agreement does and shall at all times comply with all applicable federal,
E-3
Exhibit E
"Data Security"
state, and local, privacy and data protection laws, as well as all other applicable regulations and directives,
including but not limited to California Civil Code, Division 3, Part 4, Title 1.81 (beginning with section
1798.80), and the Song-Beverly Credit Card Act of 1971 (California Civil Code, Division 3, Part 4, Title 1.3,
beginning with section 1747). If the Contractor Uses credit, debit, or other payment cardholder information,
the Contractor shall at all times remain in compliance with the Payment Card Industry Data Security
Standard ("PCI DSS") requirements, including remaining aware at all times of changes to the PCI DSS and
promptly implementing and maintaining all procedures and practices as may be necessary to remain in
compliance with the PCI DSS, in each case, at the Contractor's sole cost and expense.
(2)The Contractor covenants, represents and warrants to the County that, as of the Effective Date, the
Contractor has not received notice of any violation of any privacy or data protection laws, as well as any
other applicable regulations or directives, and is not the subject of any pending legal action or investigation
by, any government regulatory authority regarding same.
(3)Without limiting the Contractor's obligations under subsection C.(1) of this Exhibit E, the Contractor's
(or Authorized Person's) Security Safeguards shall be no less rigorous than accepted industry practices
and, at a minimum, include the following: (i) limiting Use of Personal Information strictly to the Contractor's
and Authorized Persons' technical and administrative personnel who are necessary for the Contractor's, or
Authorized Persons', Use of the Personal Information pursuant to this Agreement; (ii) ensuring that all of the
Contractor's connectivity to the County computing systems will only be through the County's security
gateways and firewalls, and only through security procedures approved upon the express prior written
consent of the Director; (iii)to the extent that they contain or provide access to Personal Information, (a)
securing the Contractor's business facilities, data centers, paper files, servers, back-up systems and
computing equipment, operating systems, and software applications, including, but not limited to, all mobile
devices and other equipment, operating systems, and software applications with information storage
capability; (b) employing adequate controls and data security measures with respect to the Contractor
Facilities and Equipment), both internally and externally, to protect (1) the Personal Information from
potential loss or misappropriation, or unauthorized Use, and (2)the County's operations from disruption and
abuse; (c) having and maintaining network, device application, database and platform security; (d)
maintaining authentication and access controls within media, computing equipment, operating systems,
E-4
Exhibit E
"Data Security"
and software applications; and (e) installing and maintaining in all mobile, wireless, or handheld devices a
secure internet connection, having continuously updated anti-virus software protection and a remote wipe
feature always enabled, all of which is subject to express prior written consent of the Director; (iv)
encrypting all Personal Information at advance encryption standards of Advanced Encryption Standards
(AES) of 128 bit or higher(a) stored on any mobile devices, including but not limited to hard disks, portable
storage devices, or remote installation , or(b) transmitted over public or wireless networks (the encrypted
Personal Information must be subject to password or pass phrase, and be stored on a secure server and
transferred by means of a Virtual Private Network (VPN) connection, or another type of secure connection,
all of which is subject to express prior written consent of the Director); (v) strictly segregating Personal
Information from all other information of the Contractor, including any Authorized Person, or anyone with
whom the Contractor or any Authorized Person deals so that Personal Information is not commingled with
any other types of information; (vi) having a patch management process including installation of all
operating system/software vendor security patches; (vii) maintaining appropriate personnel security and
integrity procedures and practices, including, but not limited to, conducting background checks of
Authorized Employees consistent with applicable law; and (viii) providing appropriate privacy and
information security training to Authorized Employees.
(4) During the term of each Authorized Employee's employment by the Contractor, the Contractor shall
cause such Authorized Employees to abide strictly by the Contractor's obligations under this Exhibit E. The
Contractor further agrees that it shall maintain a disciplinary process to address any unauthorized Use of
Personal Information by any Authorized Employees.
(5)The Contractor shall, in a secure manner, backup daily, or more frequently if it is the Contractor's
practice to do so more frequently, Personal Information received from the County, and the County shall
have immediate, real time access, at all times, to such backups via a secure, remote access connection
provided by the Contractor, through the Internet.
(6)The Contractor shall provide the County with the name and contact information for each Authorized
Employee (including such Authorized Employee's work shift, and at least one alternate Authorized
Employee for each Authorized Employee during such work shift) who shall serve as the County's primary
security contact with the Contractor and shall be available to assist the County 24 hours per day, seven
E-5
Exhibit E
"Data Security"
days per week as a contact in resolving the Contractor's and any Authorized Persons' obligations
associated with a Security Breach or a Privacy Practices Complaint.
D. Security Breach Procedures.
(1) Promptly, and without undue delay, upon the Contractor's confirmation of a Security Breach, the
Contractor shall (a) notify the Director of the Security Breach, such notice to be given first by telephone at
the following telephone number, followed promptly by email at the following email address: (559) 600-5900
/ incidents(a)fresnocountyca.gov(which telephone number and email address the County may update by
providing notice to the Contractor), and (b) preserve all relevant evidence (and cause any affected
Authorized Person to preserve all relevant evidence) relating to the Security Breach. The notification shall
include, to the extent reasonably possible, the identification of each type and the extent of Personal
Information that has been, or is reasonably believed to have been, breached, including but not limited to,
compromised, or subjected to unauthorized Use, Disclosure, or modification, or any loss or destruction,
corruption, or damage.
(2) Immediately following the Contractor's notification to the County of a Security Breach, as provided
pursuant to subsection D.(1) of this Exhibit E, the Parties shall coordinate with each other to investigate the
Security Breach. The Contractor agrees to fully cooperate with the County, including, without limitation: (i)
assisting the County in conducting any investigation; (ii) providing the County with physical access to the
facilities and operations affected; (iii)facilitating interviews with Authorized Persons and any of the
Contractor's other employees knowledgeable of the matter; and (iv) making available all relevant records,
logs, files, data reporting and other materials required to comply with applicable law, regulation, industry
standards, or as otherwise reasonably required by the County..
(3) The County shall promptly notify the Contractor of the Director's knowledge, or reasonable belief, of
any Privacy Practices Complaint, and upon the Contractor's receipt of notification thereof, the Contractor
shall promptly address such Privacy Practices Complaint, including taking any corrective action under this
Exhibit E, all at the Contractor's sole expense, in accordance with applicable privacy rights, laws,
regulations and standards. In the event the Contractor discovers a Security Breach, the Contractor shall
treat the Privacy Practices Complaint as a Security Breach. Within 24 hours of the Contractor's receipt of
notification of such Privacy Practices Complaint, the Contractor shall notify the County whether the matter is
E-6
Exhibit E
"Data Security"
a Security Breach, or otherwise has been corrected and the manner of correction, or determined not to
require corrective action and the reason therefor.
(4)The Contractor shall take prompt corrective action to respond to and remedy any Security Breach
and take reasonable mitigating actions, including but not limiting to, preventing any reoccurrence of the
Security Breach and correcting any deficiency in Security Safeguards as a result of such incident, all at the
Contractor's sole expense, to the extent required by applicable privacy rights, laws, regulations and
standards and subject to the negotiated limitation of liability set forth above. The Contractor shall be
reimbursed by the County for all reasonable costs incurred in responding to, and mitigating damages
caused by, any Security Breach which occurs despite Contractor's compliance with this Exhibit E, including
all costs of the County incurred in relation to any litigation or other action described in subsection D.(5) of
this Exhibit E to the extent applicable: (1)the cost of providing affected individuals with credit monitoring
services for a specific period not to exceed 12 months, to the extent the incident could lead to a
compromise of the data subject's credit or credit standing; (2)call center support for such affected
individuals for a specific period not to exceed 30 days; and (3) the cost of any measures required under
applicable laws.
E. Oversight of Security Compliance.
(1)The Contractor shall have and maintain a written information security policy that specifies Security
Safeguards appropriate to the size and complexity of the Contractor's operations and the nature and scope
of its activities.
(2) Upon the County's written request, to confirm the Contractor's compliance with this Exhibit E, as well
as any applicable laws, regulations and industry standards, the Contractor grants the County or, upon the
County's election, a third party on the County's behalf, permission to perform an assessment, audit,
examination or review of all controls in the Contractor's physical and technical environment in relation to all
Personal Information that is Used by the Contractor pursuant to this Agreement. The Contractor shall fully
cooperate with such assessment, audit or examination, as applicable, by providing the County or the third
party on the County's behalf, access to all Authorized Employees and other knowledgeable personnel,
physical premises, documentation, infrastructure and application software that is Used by the Contractor for
Personal Information pursuant to this Agreement. In addition, the Contractor shall provide the County with
E-7
Exhibit E
"Data Security"
the results of any audit by or on behalf of the Contractor that assesses the effectiveness of the Contractor's
information security program as relevant to the security and confidentiality of Personal Information Used by
the Contractor or Authorized Persons during the course of this Agreement under this Exhibit E.
(3)The Contractor shall ensure that all Authorized Persons who Use Personal Information agree to the
same restrictions and conditions in this Exhibit E. that apply to the Contractor with respect to such Personal
Information by incorporating the relevant provisions of these provisions or obligations no less stringent into
a valid and binding written agreement between the Contractor and such Authorized Persons, or amending
any written agreements to provide same.
F. Return or Destruction of Personal Information.
Upon the termination of this Agreement, the Contractor shall, and shall instruct all Authorized Persons
to, promptly return to the County all Personal Information, whether in written, electronic or other form or
media, in its possession or the possession of such Authorized Persons, in a machine readable form used
by the County at the time of such return, or upon the express prior written consent of the Director, securely
destroy all such Personal Information, and certify in writing to the County that such Personal Information
have been returned to the County or disposed of securely, as applicable. If the Contractor is authorized to
dispose of any such Personal Information, as provided in this Exhibit E, such certification shall state the
date, time, and manner (including standard) of disposal and by whom, specifying the title of the individual.
The Contractor shall comply with all reasonable directions provided by the Director with respect to the
return or disposal of Personal Information and copies thereof. If return or disposal of such Personal
Information or copies of Personal Information is not feasible, the Contractor shall notify the County
accordingly, specifying the reason, and continue to extend the protections of this Exhibit E to all such
Personal Information and copies of Personal Information. The Contractor shall not retain any copy of any
Personal Information after returning or disposing of Personal Information as required by this section F. The
Contractor's obligations under this section F survive the termination of this Agreement and apply to all
Personal Information that the Contractor retains if return or disposal is not feasible and to all Personal
Information that the Contractor may later discover.
G. Equitable Relief.
The Contractor acknowledges that any breach of its covenants or obligations set forth in this Exhibit E
E-8
Exhibit E
"Data Security"
may cause the County irreparable harm for which monetary damages would not be adequate
compensation and agrees that, in the event of such breach or threatened breach, the County is entitled to
seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief
that may be available from any court, in addition to any other remedy to which the County may be entitled
at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other
remedies available to the County at law or in equity or under this Agreement.
H. Indemnification.
I. Survival.
The respective rights and obligations of the Contractor and the County as stated in this Exhibit E shall
survive the termination of this Agreement.
J. No Third Party Beneficiary.
Nothing express or implied in the provisions of in this Exhibit E is intended to confer, nor shall anything
herein confer, upon any person other than the County or the Contractor and their respective successors or
assignees, any rights, remedies, obligations or liabilities whatsoever.
L. No County Warranty.
The County does not make any warranty or representation whether any Personal Information in the
Contractor's (or any Authorized Person's) possession or control, or is or will be secure from unauthorized
Use, or a Security Breach or Privacy Practices Complaint. The County warrants that all Personal
Information has been lawfully collected and warrants that all processing instructions provided to Contractor
shall be lawful and shall indemnify Contractor to the extent of any liabilities in regards to such Personal
Information so long as Contractor has complied with its obligations under applicable law as set forth in this
Agreement.
E-9