Form D.2
APPLICATION SERVICES PROVIDER (ASP) SERVICES
AGREEMENT
BETWEEN
______
______
(“LICENSEE”)
AND
______
______
[NAME OF ASP]
(“PROVIDER”)
1
TABLE OF CONTENTS
1.Definitions...... 1
2.Access Rights and Licenses...... 1
3.Implementation and Other Professional Services...... 2
4.Testing and Acceptance...... 3
5.Operation, Maintenance, and Support Services...... 5
6.Source Code Escrow...... 6
7.Payments...... 7
8.Ownership of Intellectual Property...... 8
9.Confidentiality and Non-Disclosure...... 9
10.Warranties...... 10
11.Term and Termination...... 12
12.Indemnification...... 13
13.Limitation of Liability...... 14
14.Insurance...... 14
15.Provider Personnel...... 15
16.Dispute Resolution...... 16
17.Miscellaneous Compliance and Regulatory Provisions...... 16
18.Other Miscellaneous Provisions...... 17
Appendix 1 – Definitions
Appendix 2 – Form of License/Service Schedule
Exhibit ASpecifications for ______ASP Sites and Licensed Applications
Exhibit BHardware, Software, and Network Requirements
Exhibit CStatement of Work (SOW) for Services
Exhibit DProject Implementation Plan
Exhibit EService Levels
Exhibit FProvider Rate Schedule
Exhibit GSoftware Escrow Agreement
Appendix 3 – Standard Service Level Agreement
Appendix 4 – HIPAA Business Associate Agreement
1
THIS APPLICATION SERVICES PROVIDER SERVICES AGREEMENT (“ASP Agreement”), is made and entered into as of this _____ day of ______, 20___ (“Effective Date”), by and between ______, a ______[state or country, entity type], with an office at ______(“Provider”), and ______, a ______, with an office at ______(“Licensee”).
Recitals
Provider hosts software applications for remote use by customers through secure online sites. Licensee wishes to obtain, and Provider wishes to provide, rights to access and use certain Licensed Applications remotely through specified Licensee ASP Sites that will function in accordance with Licensee requirements and agreed service levels.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound, the parties hereto agree as follows:
1.Definitions:Capitalized terms used in this ASP Agreement have the meanings set forth in Appendix 1 (Definitions).
2.Access Rights and Licenses:
2.1.Master Agreement and License/Service Schedules.
2.1.1This ASP Agreement is a master agreement. Terms and conditions specific to particular Licensed Applications and Licensee ASP Sites will be addressed in separate License/Service Schedules to be executed by Licensee and Provider. Neither party is obligated to enter into any License/Service Schedules hereunder. A recommended form of License/Service Schedule is attached as Appendix 2, but the parties may agree to License/Service Schedules in different formats. Whether or not in the recommended format, each License/Service Schedule will be deemed to incorporate and be subject to all of the terms and conditions of this ASP Agreement, except to the extent the License/Service Schedule expressly modifies such terms.
2.1.2Provider shall identify each Licensed Application under a License/Service Schedule as either a “Licensed Provider Application” or a “Licensed Third Party Application.”
2.2.Scope of Access Rights and Licenses. Unless the applicable License/Service Schedule expressly specifies otherwise, Provider shall convey the following rights to Licensee during each applicable Subscription Term:
2.2.1.Licensee’s access rights and licenses shall be enterprise-wide for Licensee and its Affiliates. Licensee may designate an unlimited number of Authorized Users deemed appropriate in its discretion to use the Licensed Applications for Licensee’s and its Affiliates’ business purposes.
2.2.2.Licensee and its Authorized Users shall have the worldwide right and license to access and use the Licensed Applications remotely through the Licensee ASP Sites, from any device and any location, and over any private or public network, including the Internet. This right of remote access and use shall be non-exclusive as to the Licensed Applications, but exclusive to Licensee as to any Licensee ASP Sites. This right of remote access and use does not include the right to install Licensed Applications (other than Client-Side Software, if any) at Licensee facilities or data centers, which must be separately granted.
2.2.3.Licensee and its Authorized Users shall have a non-exclusive worldwide right and license to install, access, and use any Client-Side Software required for use of the Licensed Applications through the Licensee ASP Sites.
2.2.4.Licensee shall not reverse engineer, decompile, disassemble, or otherwise attempt to discover the Source Code of any Licensed Applications.
2.3. Third Party Applications. If Provider is supplying Licensed Third Party Applications to Licensee, or if Licensee needs to obtain an additional license from a third party licensor in order to access, install, or use the Licensed Applications, Licensor shall expressly identify all such third-party items in the applicable License/Service Schedule. In such event, Licensor shall obtain the right and license for Licensee to access and use such third-party items, and to authorize access and use by Authorized Users.
2.4. Hardware. If Provider is supplying any equipment or other hardware to Licensee, or if Licensee needs to purchase equipment or other hardware in order to access, install, or use the Licensed Applications, Provider shall expressly identify all such hardware in the applicable License/Service Schedule. Hardware warranties and other terms with respect to hardware supplied by Provider shall be specified in an Exhibit to the License/Service Schedule.
2.5 Data Accessibility. Provider shall provide current data dictionaries, maps, and tools to Licensee both in connection with the initial implementation of the Licensed Applications and with each Update, so that all Licensee Data managed through the Licensed Applications can be readily located, accessed, searched, extracted, and exported in whole or in part by Licensee personnel as Licensee deems appropriate using either Provider’s proprietary tools or standard database management tools.
2.6.Bankruptcy Rights. All licenses and access rights, Licensed Applications, and Source Code delivered pursuant to this ASP Agreement constitute "intellectual property" under Section 101(35A) of the Bankruptcy Code (11 U.S.C. §101(35A)). Provider agrees that if Provider as a debtor-in-possession, or a trustee or receiver for Provider, rejects this ASP Agreement or a License/Service Schedule, Licensee may elect to retain its license rights thereunder as provided in Section 365(n) of the Bankruptcy Code (11 U.S.C. §365(n)). Licensee, and any intellectual property rights, licenses or assignments from Provider of which Licensee may have the benefit, shall receive the full protection granted to Licensee by applicable bankruptcy law.
2.7.Conversion to Conventional Installation. Licensee shall have the option to convert or extend the license(s) granted under this ASP Agreement and any applicable License/Service Schedule to a perpetual license for installation and use of the Licensed Applications through Licensee’s own designated servers and websites. NOTE: TERMS, CONDITIONS, AND PRICING OF ANY IN-HOUSE LICENSING OPTION WILL NEED TO BE NEGOTIATED INDIVIDUALLY.
3.Implementation and Other Professional Services:
If Provider is to provide installation, implementation, consulting, training, or other professional services to Licensee with respect to the Licensee ASP Sites or the Licensed Applications:
3.1.General. The general scope and pricing of services to be provided shall be set forth in the applicable License/Service Schedule. If the License/Service Schedule does not include a detailed Statement of Work (“SOW”) or implementation plan, the parties will mutually develop one as soon as reasonably practicable after execution of the License/Service Schedule. Provider shall be responsible for preparing the necessary SOWs and implementation plans, subject to Licensee’s review and approval.
3.2. Project Manager/Contacts. Provider shall designate a project manager acceptable to Licensee for each project, to act as liaison between Licensee and Provider. Licensee may at its option designate one or more Licensee project managers or other contacts for each project.
3.3. Progress Meetings and Reports. If Licensee so requests, Provider shall participate in progress meetings or calls with Licensee to review the status of Provider activities, and shall submit periodic progress reports. If Provider believes that any Licensee acts or failures to act are causing or threatening delay in Provider’s performance of professional services, it shall notify the Licensee contacts in writing promptly after arriving at that belief. Failure to identify and report such circumstances promptly to Licensee shall waive Provider’s rights to assert such a delay at a later date.
3.4. Time of the Essence. Time is of the essence with respect to Provider’s performance of all of its obligations under License/Service Schedules, SOWs, and implementation plans. Provider shall not be entitled to any increase in fees or any other adjustment caused by delay attributable in whole or in part to Provider, or any delay as to which Licensee did not receive timely notice. Provider agrees to make no claim for damages for delay occasioned by an act or a failure to act by Licensee or any of its representatives. Provider’s sole remedy for such delay shall be an extension of its deadlines for performance, provided such extension is otherwise agreed to in advance in writing by the parties.
3.5.Authority to Issue License/Service Schedules and Change Orders. The parties shall follow change control procedures, including the issuance of written Change Orders signed by both parties, to control all changes in scope, schedule, and cost of the services that may result in material acceleration or delay, or the imposition of additional charges. License/Service Schedules and Change Orders may be issued or accepted on behalf of Licensee only by the following persons:______
3.6.Licensee Customizations. Licensee may also engage Provider to provide services to develop Licensee Customizations or other deliverables relating to the Licensed Applications. Any such engagement shall be pursuant to a written SOW executed by both parties. Licensee may also develop, or engage third-party contractors to develop, Licensee Customizations to the extent that such Licensee Customizations do not require access to or modification of Licensed Applications or their Source Code that is not otherwise licensed for use by Licensee.
4.Testing and Acceptance:
4.1.General. All Licensee ASP Sites and the Licensed Applications as made available for use through the Licensee ASP Sites shall be subject to testing and acceptance by Licensee. Testing may occur both before and after any “go-live” date. Unless a License/Service Schedule expressly specifies otherwise, the procedure for testing and acceptance shall be as set forth in this Section 4.
4.2.Test Period. The Test Period for acceptance testing will begin when the parties mutually agree that the Licensee ASP Sites and Licensed Applications have been fully installed and configured and are ready for testing, and will continue for up to ninety (90) days thereafter. If Licensee notifies Provider during the Test Period of any failure of the Licensee ASP Sites or Licensed Applications to meet Test Criteria, or that the Licensee ASP Sites or Licensed Applications are Clinically Unacceptable, the Test Period will be suspended from the date of such notification and will not begin to run again until necessary corrections have been implemented by Provider. If such a suspension of the Test Period occurs, Licensee will have the balance of such Test Period (or up to thirty (30) days after implementation of the corrections, whichever is longer) to complete testing.
4.3.Interim Deliverables. If implementation or acceptance testing are to occur in stages or phases, all interim deliverables accepted by Licensee shall be deemed conditionally, not finally, accepted, until all Licensee ASP Sites, Licensed Applications, and other deliverables to be provided under the License/Service Schedule have been fully configured, tested, and accepted. Conditional acceptance of a deliverable may be designated as a payment milestone in a License Schedule, but shall be subject to Licensee’s rights to refunds or credits if the full set of Licensee ASP Sites, Licensed Applications, and other deliverables fails to achieve Final Acceptance.
4.4.Final Acceptance. Final Acceptance will occur when either (i) Licensee notifies Provider in writing that the Licensee ASP Sites, Licensed Applications (including any required Licensee Customizations), and other deliverables have satisfied the Test Criteria, are not Clinically Unacceptable, and Licensee expressly accepts them, or (ii) Licensee continues to use the Licensed Applications through the Licensee ASP Sites after the Test Period to manage live data in a production environment and has not notified Provider within ten (10) business days after the end of the Test Period of the failure of the Licensee ASP Sites or Licensed Applications to satisfy the Test Criteria or of their Clinical Unacceptability.
4.5.Failure to Achieve Final Acceptance. If any material failure to meet Test Criteria during the Test Period, or any Clinical Unacceptability, remains uncorrected for more than thirty (30) days after Licensee notifies Provider of such failure, or if the Licensee ASP Sites and Licensed Applications (including any required Licensee Customizations) fail to achieve Final Acceptance within ten (10) business days after the originally scheduled end of the Test Period, then Licensee may terminate the applicable License/Service Schedule, reject any or all of the Licensee ASP Sites, Licensed Applications, and other deliverables provided under that License/Service Schedule, and receive a full refund from Provider of all amounts paid for the rejected items and related services.
4.6.Warranty and Support Obligations Not Affected. Any failure by Licensee to notify Provider in connection with the Test Period of any particulars in which Licensee deems any Licensee ASP Sites, Licensed Applications, or any other deliverables nonconforming or defective shall not in any way be deemed a waiver or otherwise excuse Provider from its warranty or other obligations with respect to those items.
4.7.Subsequent Deliverables. Acceptance procedures for Licensee Customizations or other deliverables that are ordered separately rather than as part of the agreed implementation of the Licensee ASP Sites and Licensed Applications shall be specified in a separate SOW. If the SOW does not expressly specify the acceptance procedures, then implementation, testing, and acceptance shall generally conform to the methodology set forth in this Section 4 (Testing and Acceptance), reasonably adapted as appropriate to the items being provided.
5.Operation, Maintenance, and Support Services:
Unless the applicable License/Service Schedule specifies otherwise, Provider shall provide Licensee during each applicable Subscription Term with operation, maintenance, and support Services for the Licensee ASP Sites and Licensed Applications as follows, at no additional charge beyond the applicable Subscription Fees:
5.1.Operation. Provider shall manage and operate all hardware and software necessary to operate and maintain the Licensee ASP Site to the applicable Service Levels and in compliance with all warranties in this ASP Agreement. Provider shall carry out such internal training, documentation, testing, maintenance, and upgrading as may be necessary for the Licensee ASP Site to function and perform in accordance with the Specifications and the Service Levels. Unless otherwise agreed in the License/Service Schedule, all servers used to store Licensee Data will be dedicated exclusively to Licensee use hereunder. Provider shall not host any other customer’s ASP site or applications, or store any other customer’s software, content, or data on any such servers, without Licensee’s express written consent, and such consent may be conditioned on physical as well as logical separation of Licensee Data from other customers’ software, content, or data.
5.2.Security. Provider shall establish and implement login and authentication procedures and physical, network, and data security measures acceptable to Licensee to protect against unauthorized access to, or alteration, loss, or destruction of, Licensee Data in Provider’s possession or under Provider’s control, and against unauthorized access to Licensee’s systems, networks, and computers through Provider’s servers or other facilities. Provider shall cooperate with Licensee’s reasonable requests for changes in security procedures. Provider shall provide Licensee with thirty (30) days’ notice of any changes and shall at all times provide Licensee with a current copy of the plan. Licensee shall have a right upon reasonable advance notice to audit Provider’s security procedures.
5.3.Backups. Provider shall establish and implement archiving and regular backup procedures acceptable to Licensee to ensure that a backup file set that is not more than 24 hours old is always available, and that Licensee Data is not inadvertently or deliberately discarded without Licensee’s express consent. Procedures will include offsite storage rotation. Provider shall not archive or destroy data and information relating to Licensee or the Licensee ASP Sites except in accordance with those archiving and backup procedures. Provider shall provide Licensee with thirty (30) days’ notice of any changes and shall at all times provide Licensee with a current copy of the procedures. Licensee shall have a right upon reasonable advance notice to audit Provider’s backup procedures.
5.4.Copies of Data. Provider shall provide Licensee a full or incremental backup copy of all Licensee Data in its possession, at such intervals, and on such media, as Licensee may specify in its discretion from time to time. Except as otherwise specified in a License/Service Schedule, or as otherwise agreed in writing between Licensee and Provider, Provider shall supply such backup Licensee Data in a standard data format, as Licensee may specify from time to time, in addition to any data format proprietary to the Licensed Applications.
5.5.Disaster Recovery. Provider shall establish and implement disaster recovery procedures acceptable to Licensee. Provider shall update and test the operability of the Disaster Recovery Plan at least annually, and implement the Disaster Recovery Plan immediately upon the occurrence of a disaster. All such testing shall be performed in such a manner as to minimize the disruption to Licensee’s operations. Provider shall provide Licensee with thirty (30) days’ notice of any changes and shall at all times provide Licensee with a current copy of the plan.
5.6.Problem Resolution. Provider will be responsible for diagnosing and resolving all problems with the Licensee ASP Sites and Licensed Applications referred by Licensee, and in the case of a confirmed problem related to either the Licensee ASP Sites or the Licensed Applications, will be responsible for taking the steps necessary to cause the appropriate response to be made to such problem. Provider agrees to fully cooperate with other vendors as necessary to resolve any such problems.