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HomeMy WebLinkAbout16-128 - Vitalyst - 2016-2019 IT Support Services16-128(a) Council Approval N/A VFALYST FIRST AMENDMENT TO SUPPORT SERVICES AGREEMENT This First Amendment (the "Amendment") to the Support Services Agreement is entered into between City of 'fbkwila ("Client") and Vitalyst, 11„C ("Vitalyst") and is made effective as of the 26th day of September (the "Amendment Date"). Client and Vitalyst, intending to he legally bound, hereby agree as follows: The Support Services Agreement, Client and Vitalyst: en tered into a Support Services Agreement on October 26, 2016 ("The Agreement") as thereafter amended by the parties on September 26, 2018 ("The First Amendment to Support Services Agreement"). Defined 1 erms, Unless specifically defined herein, all terms defined in the Agreement shall have the same meaning when used in this Amendment. AmendmeaLs, The Agreement is hereby amended as follows and is outlined in Exhibit A attached hereto: The parties agree that the Agreement is hereby renewed for a Renewal Term commencing immediately upon the expiration of this Amendment. Client hereby purchases 5,932 units ("Replenishment Units"), at a cost of $17,499, as its Support Plan for this Renewal Tenn. The "Term of Units" for this Support Plan shall run through October 31, 2019, The Replenishment Units purchased under this Amendment shall be available for use during this new Renewal Term in accordance with the terms of the Agreement, The Agreement shall renew for subsequent Renewal Terms of 365 clays in accordance with the applicable terms thereof, Inteeration Clause. The terrns of this Amendment shall supersede any contrary terms of the Agreement. This Amendment, along with the Agreement and an previously executed Amendment, sets forth the entire understanding between and among the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings with respect to such subject matter between the parties, whether oral or written. Digital Partner of Record. Vitalyst provides services to Client which are measured by Microsoft for Microsoft partner competency requirements. One attic ways that competencies are measured is through Customer evidence via the Microsoft Office 365 Admit) Portal, Client agrees to make Vendor a Digital Partner of Record for a minimum of 12 months for Microsoft Office 365, EMS and other Microsoft services within thirty (30) days of the Commencement Date of this Agreement. By the signatures of their duly authorized representatives below, Vitalyst and Client agree to the terms of this Amendment, Client: CA-1 04 ilxick..h)., Vitalyst, 11,C /0/1/20 By (Print Name): Al Livi Elf!, By (Print Name): "Fitle: tAi or lilte Signature: 1°/4(76'17 Sigritiare. Address: 6 Z. CO Sui4i efri Suite 434 1 Bala Plaza -1-74-44,..);1,k tAM 9819e, Bala Cynwyd, PA 19004 Date : / 0 — / (P -I 6 Date : i '1.: ' / IS o o r Wei EXHIBIT A SUPPORT SERVICES AND SERVICE ENHANCEMENTS Support Services a Quantity Rate Per Unit Fees Notes Support Services 5,932 $2.95 $17,499 Support Services purchase of 5,932 units at $2.95 Support Services Plan Total $17,499 Infrastructure Services Pricing Metric Fees Notes Two (2) Dedicated Toll -Free Access Quarterly Fee $1,728 Billed at $216 per quarter Infrastructure Services Total $1,728 Implementation Fee Pricing Metric Fees Notes Account Management Fee Quarterly Fee $8,773 Billed Quarterly at $2,193,25 Standard Reporting Fee Quarterly Fee $2,000 Billed Quarterly at $500 Implementation Fee Total $10,773 Training Services Pricing Metric Fees Notes Help Me Know HUB Licenses for up to 1,000 users. $10,000 Annual Flat Fee Training Services Totaf $10,000 Total Fees Notes Live Support $17,499 nfrastructure Service Fees $1,728 Implementation Fee $10,773 Tr ling vices $ 1 0✓ 000 16-128 Council Approval 10/17/16 VITALYST One Bala Plaza. Suite 434 Baia Cynwyd. PA.19004. 80O-HELP412 w: www.vitalyst.com Support Services Agreement This Support Services Agreement (the "Agreement") is entered into between Vitalyst, LLC, with offices at One Bala Plaza, Suite 434, Bala Cynwyd, PA 19004 ("Vitalyst") and the entity identified below (the "Client"). The Effective Date of this Agreement is the latest date shown on the signature lines below. Client Name: City of Tukwila Address: 6200 Southcenter Blvd. Tukwila, WA 98188 Contact: Mr. Joseph Todd Email Address: Joseph.Todd(TukwilaWA.clov Phone: (206) 850-9656 Fees and Payment Terms Vitalyst will provide Client with the Support Services described in Attachment A in exchange for Client's payment of the fees identified in Attachment A and further described in Attachment B. Transition Management and Awareness Programs To ensure that appropriate knowledge transfer and call handling processes are documented and shared by Client with Vitalyst, Client agrees. to participate in a Transition Management Program, as described in Attachment C. In the event that Vitalyst is required to travel to any of Client's facilities to conduct any Transition Management activity, Client will reimburse Vitalyst for its reasonable travel and living expenses. Incorporation of Terms This Agreement is subject to the Vitalyst General Terms and Conditions, which are attached hereto as Attachment D and incorporated herein by reference. These General Terms and Conditions address, among other items, the invoicingprocedures, payment and purchase terms, renewal provisions and other financial and legal issues applicable to this transaction. Ariy capitalized terms used in this Support Services Agreement shall have the meaning set forth herein or in the Vitalyst General Terms and Conditions. By signing below, Client represents that this Agreement, including all Attachments, has received all necessary approvals and that it is authorized to enter into this Agreement. Client Contact for Invoices Vitalyst's primary Client contact for the submission of invoices is: Disputes regarding paymentmay be escalated by Vitalyst in its discretion. This Agreement is entered into on the last date of signature below. Vitalyst, LLC By (Print Nam ;,, 2.� `" By (Print Name): Allan L K be Title: --CV Title: i'A Signature-- Signature: Address: (9200 50Q4-hCei,-k, 61vel iIA (API-- bc2) Suite 434 1 Bala Plaza Bala Cynwyd, PA 19004 Date: 2 Client: City 4 Date: C6 /Zfo//(o ATTACHMENT A SUPPORT SERVICES AND SERVICE ENHANCEMENTS Invoice Date. Quantity Fees • Notes • • October 1, 2016 5,932 units $17,500 Any units used beyond these 5,932 units between the Commencement Date and January 1, 2017 will be invoiced at a rate of $2.95 per unit on January 2, 2017 January 2, 2017 • 5,932 units $17,500 . , , Any units used beyond these 5,932 units between January 2, 2017 and March 31, 2017 will be invoiced at a rate of $2,95 per.unit on April 1, 2017. • April 1, 2017 5,932 units $17,500 Any units used beyond these 5,932 ' units between April 1, 2017 and June 30, 2017 will be invoiced at a rate of $2.95 per unit on July 1, 2017. July 1, 2017 5,932 units $17,500 Any units used beyond these 5,932 units between July 1, 2017 and September 30, 2017 will be invoiced at a rate of $2.95 per•unit on October 1, 2017. October 1, 2017 • 5,932 units $17,500 Any units used beyond these 5,932 units between the Commencement Date and January 1, 2018will be invoiced at • a rate of $2.95 per unit on January 2, 2018 January 2, 2018 5,932 units $17,500 • Any units used beyond these 5,932 units between January 2, 2018 and March 31, 2018 will be invoiced at a rate of $2.95 per unit on April 1, 2018. April 1, 2018 5,932 units $17,500 • Any units used beyond these 5,932 units between April 1, 2018 and June 30, 2018 will be invoiced at a rate of $2.95 per unit on July'1, 2018.• July 1, 2018 5,932 units $17,500 Any units used beyond these 5,932 units between July 1, 2018 and September 30, 2018 will be invoiced at a rate of $2.95 per unit on October 1, 2018. Infrastructure Services Pricing Metric Fees Notes Dedicated Toll -Free Access Quarterly Fee $1,728 Billed at $216 per quarter Account Setup Fee 1-time Fee $5,000 • After Hours Monitoring Fee' Quarterly Fee $4,664 Billed at $583 per quarter Implementation Fees Pricing Metric Fees Notes Transition Management Fee 1-time Fee $2,000 Account Management Fee Quarterly Fee $24,000 Billed at $3,000 per quarter Custom Reporting Fee Quarterly Fee $8,000 Billed at $1,000 per quarter Service Enhancements . Pricing Metric' Fees . Notes Service Enhancement Bundle' Up to 2,500 Devices • $12,000 • Billed at $1,500 per quarter Service Enhancement Bundle features are described in Section 2.C. of Attachment D - Genera! Terms and Conditions. Training Services Pricing Metric Fees Notes Help Me kNow Hub"' Licenses for u to 1,000 Users $24,000 Annual Flat Fee (for two years, at $12,000 per year); includes, Custom Video Tutorial Three Onsite Training Days Three Onsite Training Days of eight hours in length each (at a per Trainer per Day cost of $3,200) $9,600. Does not include Travel and Expenses 3 Four Lock -out Style Webinars . Four Webinars with a duration of 60 minutes each (at $650 per Webinar) $2,600 Attendance limited exclusively to City of. Tukwila employees 'Out of pocket expenses will be billed as incurred and reimbursed by Client. 4 ATTACHMENT A (continued) • Initial Invoice Item • - Quantity Fees • Notes . Account Management Fee 1 $3,000 Quarterly Fee Service Enhancement Bundle 1 $1,500 Quarterly Fee Custom Reporting Fee 1 $1,000 Quarterly Fee After Hours Monitoring Feet 1 $583 Quarterly Fee Dedicated Toll -Free Access 1 $216 Quarterly Fee Total Initial Invoice Quarterly Fees $6,299 For first quarter Account Setup Fee 1 $5,000 One-time Fee; not on -going Transition Management Fee 1 $2,000 . • One-time Fee; not on -going . Help Me kNow HubTM Platform 1 $12,000 Up to 1,000 Users; first year Onsite Training Days 3 $9,600 Does not"include Travel and Expenses' . Four Lock -out Style Webinars 4 $2,600 60 Minutes each Total Initial Invoice Training Services and One-time Fees $31,200 • Includes value add eReference Guides (2 titles), a Custom Video Tutorial, Single -Sign -on service and basic customization for Help Me kNow Hub?"' • • Platform Total Initial Invoice $37.499 • Fee Summary for Original Term Quantity ' Original Term Fees Support Units . 47,456 units or quantity of Support Units utilized during the Original Term $140,000 or Fees due for Support Units utilized during the Original Term, whichever is greater Infrastructure Fees 8 $11,392 Implementation Fees 8 $34,000 Service Enhancement Bundle 8 $12,000 Training Services Various, see above $36,200 Total Original Term Fees $p3,592 + Fees due for Support Units utilized duri0g the Original Term or $140,000, whichever is greater ATTACHMENT B FEES AND CHARGES FOR LIVE SUPPORT Live Support — Live Support is provided during standard Support hours of 8:30 a.m. to 8:30 p.m. Eastern Standard Time,' Monday through Friday (excluding Vitalyst ,holidays), .will be provided at a rate of one unit per minute. After Hours Support - Unit charges for Live Support provided by Vitalyst outside of its standard support hours -- 8:30 a.m. to 8:30 p.m. Eastern Standard Time, Monday through Friday -- will be calculated at a 25% premium to the methodology as detailed in paragraph 1 above. 6 Phase Phase 1 - Discovery Phase 2 — Knowledge and Operational Transfer ATTACHMENT C TRANSITION MANAGEMENT PROGRAM Scope Component Implementation/ Project Kickoff Call Steps & Activities Discuss the implementation and end -user adoption of Vitalyst's services); Client's expectations, visions, and goals of service. • Launch timeline and schedule of events • Vitalyst's best practices for successful transition • Review activities & deliverables necessary for completion, prior to go - live date Timeline 6 Weeks Before Launch Deliverable/ Action Item Establish Launch Date Determine which documents, systems access, and other materials need to be provided by Client to Vitalyst Vitalyst to send general baseline documents for account set-up Owner(s) Vitalyst/ • Client Technical Information Exchange Pre Service Launch Testing End -User Education and Awareness Account set-up documentation reviewed • Key topics include: • Escalation & misdirect procedures • Customer verification information • Data needed for reporting • Customized greeting Vitalyst Operational Leads will test access to Client Systems and call process documentation to ensure technical and operational components are functioning properly Communication delivery plan is scheduled. Key awareness messages: • Announcement/Explanati on of service • Availability of services and service level expectations. • Direct access via new phone menu option 4-5 Weeks Before Launch 3-4 Weeks Before Launch 2-3 Weeks Before Launch Vitalyst to deliver toll -free, n u m ber Vitalyst •Completion of Baselines & Data Extract • Establish Phone Menu Option •Vitalyst given access accounts into applicable Client Systems • Testing of phone • lines Client Creation of Email announcement series Client Client/ • Vitalyst Vitalyst 7 Scope Component Steps & Activities Timeline Deliverable/ Action Item Owner(s) Phase 3 — Transition Start -Up • Launch Day Client implements all launch day activities .Client Data Extranet provides Client With remote access to view basic call activity: . Customer name, time of the call, problem summary, and status. . • Launch Day "Now Available" communication delivery Client ' Access to Client Data Extranet • Vitalyst Phase 4 — Operational Stewardship Ongoing Partnership Management and Process Management Vitalyst provides reports: • • Weekly/Monthly • Quality Assurance ! . Key User . Call Abatement Post Launch , • Vitalyst delivery of call reports • Vitalyst • Vitalyst and Client to review call reports and Executive Summary • Duration Analysis • Call Process Analysis Implement Process Management changes for applicable service delivery . -improvements Vitalyst/ Client 8 ATTACHMENT D GENERAL TERMS AND CONDITIONS These General Terms and Conditions ("General Terms") apply to and are included as a part of the Support Services Agreement between Vitalyst, LLC ("Vitalyst") and an entity which has entered into such Support Services Agreement with Vitalyst (a "Client"). Capitalized terms used in these General Terms by not otherwise defined shall have the meaning prescribed in the Support Services Agreement. The Support Services Agreement (which may also be referred to as the "Agreement") includes: (i) any exhibits or attachments to the Agreement; and (ii) any amendment or addendum to the Agreement which is subsequently entered into by the parties. The term "Support Services Agreement" or "Agreement" shall in all cases include these General Terms and Conditions unless the context dictates a reference to a provision or term contained in, oran.attachment to, the Support Services Agreement. 1. . Services. Client is engaging Vitalyst to provide Client and its Affiliates.(defined below) with support services ("Support" or "Support Services") for software and technology products which are then -supported by Vitalyst (the "Applications"). An "Affiliate" shall be any entity which is controlled by, controls, or is under common control with Client and which is bound by the terms and conditions of this Agreement (including the terms of Section 8 below). The Support Services provided by Vitalyst include: (i) providing managed help desk services which include password reset and account unlocks, workstation support, remote access support, triage/incident management services, and custom application FAQ support; (ii) evaluating and working to diagnose or trouble -shoot problems encountered by Client in the use of any Application; (iii) addressing other questions or issues posed by Client regarding any Application to the extent within the general knowledge and experience of Vitalyst; and (iv) providing various service -related enhancements and such other services as described herein or in the Support Services Agreement.. Certain specific Support Services made available to Client, and a representative (but not exhaustive) list of the Applications then - supported by Vitalyst, are specified in an attachment to the Support Services Agreement. Client is responsible for the procurement, operation and maintenance of the Applications and for ensuring that they are appropriately licensed to facilitate the provision of Support Services contemplated hereunder. 2. Charges. Various Support Services provided by Vitalyst are described below. Client shall be charged for Support Services in accordance with the methodology described below and at the fees set forth in the Support Services Agreement. In the event that Vitalyst agrees to provide any Support•Services other than those described below,they will be provided at the fees set forth in the Support Services Agreement.. Many of the Support Services offered by Vitalyst are priced based on the number of "units" associated with the provision of such service. Units are charged to a Client either (i) for a Support Service made available by Vitalyst over a specified time period, such as quarterly, or (ii) for the amount of time expended by Vitalyst in the provision of the Support Service at issue. Client pays for all unit -based charges through the purchase of a committed "Support Plan" which provides Client with a specified number of units which may be "consumed" during a specified time period (hereafter referred to as the "Term of Units"). As used herein, the terms "fees" or "charges" may be calculated on either a unit -based or dollar -based basis, and may be one-time, periodic or recurring, as so specified in the Support Services Agreement. A. Core Service. Live Support is a "Core Service" provided by Vitalyst and is charged at the fees set forth in the Support Services Agreement. I. Live Support - Vitalyst will provide "Live Support" to Client by means of telephone assistance, Application -related research, and diagnostic analysis. Additional charges will apply for Live Support provided by Vitalyst outside of its then -current standard support hours and will be calculated at a premium to the rate charged for Support provided during standard support hours. The applicable charges, then -current standard Support hours and after-hours, rate will be as specified in the Support Services Agreement. 9 B. Infrastructure Services. The following Support Services shall also be provided to Client at the fees set forth in the Support Services Agreement. I. Dedicated Toll -Free Access — Each client accesses the Support Services via unique toll -free number, provided to Client by Vitalyst. I1. Account Setup — Vitalyst will provide account activation, screen and PBX programming, testing and other start-up services. III. After -Hours Monitoring. For Clients who may request Support after standard Support hours, Vitalyst will set up, monitor and maintain after-hours Support. C. Implementation Services. 1. Transition Management - Prior to commencing Managed Help Desk Services with Client, Vitalyst will dedicate a transition management team, consisting of an Account Manager and Service Operation Manager, which will work with internal IT leadership to establish a mutual, measurable definition for success in the partnership. The transition management team will also work directly with Client toward a knowledge transfer process which will provide the necessary information to the Vitalyst management and training team which will be responsible for the success of the partnership. II. Account Management Services — Vitalyst will provide a named Account Manager to be assigned to Client's account and responsible for managing the partnership, assuring all goals are met, and maintaining open lines of communications. III. Reporting — Vitalyst will provide standard call reports on a monthly basis that will include all of Client's call volume data from the previous month, including customer name, problem - statement, resolution summary, and other details as required by Client. D. Service Enhancements. The services described below (each a "Service Enhancement") are provided by Vitalyst as enhancements to the Core Service for additional fees. Unless otherwise set forth in the Support Services Agreement, the Service Enhancements will be provided during the Original Term and for each Renewal Term (defined in Section 3 below) of the Support Services Agreement. I. Call Abatement —Following the end of each month, Vitalyst willidentify for Client_ a list of that month's most frequent Client callers, perform analysis to identify usage patterns, and provide web -based multimedia tutorials to Client aimed at abating Client's future need to place repeated support calls on the same issues. II. Client Data Extranet — Client will be granted remote access over the Internet to reports or other displays which allow the Client to view certain call activity on its account. Ili. Customized Greeting — Vitalyst will begin each client -initiated support call by incorporating into its opening greeting the client's chosen name to effectively integrate Vitalyst's service behind the Client's Help Desk: IV. eSupport — Client will be granted remote electronic access to Vitalyst's, network to enable screen sharing with the technician. V. "Key User" Notification — Vitalyst will pre-program into its system the names, titles, and email addresses of end -users within Client's organization that Client selects for priority call handling from Vitalyst. Vitalyst will promptly notify Client's Help Desk after a key user has contacted Vitalyst with a Support question and/or promptly notify the Client's on -duty Help Desk Manager for calls to Vitalyst from key users that require Client's Help Desk intervention. 10 VI. Instructional Video Clips — At the conclusion of each Support call, Vitalyst may (if it believes it to be helpful in that circumstance) provide one or more "Instructional Video Clips" (generally, web -based multi -media tutorials) aimed at reinforcing Client's comfort level surrounding the support call's subject matter. These Instructional Video Clips are designed to reduce the Client's future need to place related Support calls. 3. TRAINING SERVICES. The training services made available to Client by Vitalyst under this Agreement are those services expressly specified in Attachment A, as described in more detail below .(each a "Training Service"). A. Help Me kNow Hub Platform. The Vitalyst Help Me kNow Hub (also referred to herein as the "Hub") is a web -based service provided via subscription. The Hub provides web -based access to over 100,000 videos and tips geared toward helping end -users become more productive and .. proficient with their software applications and devices. The Hub allows for eachindividual to customize their experience through language options, displayed applications, and favorite content. The Hub may be accessed via the Vitalyst-designated website and contains videos in both Flash and MP4 formats. Services, features and/or content that may be accessed in the Hub are comprised of the following: • Includes over 100,000 total videos ranging from 2 minute quick tips to 1 hour training courses • Contains over 50,000 videos translated into various non-English languages including: Spanish, French, German, Italian, and Chinese. • Offers thousands of text -based tips and tricks for commonly faced application and device issues • Ability to enroll in instructor -led webinars • Offers multiple channels for end -users to access live support services • Ability to request a support call regarding a particular question or topic • Ability to call for support via computer • Ability to initiate a real-time chat session • Ability to e-mail a question and schedule a call-back While the Hub may facilitate access to webinars, phone support, chat sessions and other Vitalyst support services described above, such support services will be provided at additional fees as described under separate.agreement. B. Help Me kNow Hub Customizations To the extent specified in Attachment A, the following customizations are available and included in the subscriptions fees for the Help Me kNow Hub: • Client Logo • Restriction of certain .applications not desired by client • Contact Methods for Live Support service, including chat, click to call, and email • Contact information for Live Support Service • Tips & Tricks knowledge articles listed for quick reference C. Single Sign On. To the extent specified in Attachment A, Vitalyst will provide integration of single sign -on capability in connection with Client's use of the Hub. 11 D. Certain Terms and Limitations Regarding Use of the Hub. Client is purchasing a subscription to access the Hub (including any customizations and/or single sign on functionality) for an initial term (the "Original Subscription Term") as specified in Attachment A. Vitalyst will make the Hub available to Client on a remote access, subscription basis via the world wide web for use in support solely of the internal business operations of Client and its Affiliates. If not otherwise specified in Attachment A, the Original Subscription Term is for a one (1) year period from the Effective Date. Client's subscription to the Hub will automatically renew for consecutive renewal terms (each a "Renewal Subscription Term") equal in length to the Original Subscription Term unless either party notifies the other party in writing of its intent to terminate this Agreement at least thirty (30) days prior to the expiration of the then -current term. Additional subscription fees will be charged for each Renewal Subscription Term at the fees set forth in Attachment A, as such fees are adjusted by Vitalyst from time to time in accordance with the "Updated Pricing" provision of these General Terms. The annual subscription fees are based on a maximum number of Client end users ("Users") of the Hub, which limit is specified in Attachment A, and Client may not use the Hub beyond this usage limit without the parties first agreeing upon and documenting the purchase of additional User rights from Vitalyst. E. Webinars. To the extent specified in Attachment A, Vitalyst will make available certain web - based training classes("webinars") which are delivered,byVitalyst remotely over the internet via a web -conference utility provided by Client. Client may choose a class from the then - available Vitalyst course library (customization of a course would be priced separately by Vitalyst and require payment of additional fees). Each Class will be approximately 60-90 minutes in duration and will be delivered in business English. Access will be provided to webinars pursuant to Vitalyst's applicable policies and protocols. F. Additional Training Services. Additional Training Services provided by Vitalyst may include (i) instructor led training delivered onsite at Client locations; (ii) instructors onsite at Client locations to provide floor coaching to Client's employees; and/or (iii) other training services then offered by Vitalyst. To the extent additional Training Services are purchased by Client pursuant to Attachment A, Vitalyst will provide those Training Services to Client in accordance with the terms of Attachment A and these General Terms. G. Scheduling. All Training Services (other than the Hub, for which activation information will be provided by Vitalyst to Client) must be scheduled and confirmed by Client at least twenty (20) business days prior to the start date of the requested training. The Client will confirm and provide the training location for all onsite Training Services no later than ten (10) business days for domestic and fifteen (15) business days for international prior to the start date of the training. Client will schedule a minimum of two (2), consecutive training days for any onsite, instructor -led Training Services. Isolated, onsite training days will be charged a thirty percent (30%) premium. H. Cancellation and Rescheduling. Cancelling or rescheduling confirmed Training Services within fifteen (15) business days will result in a charge to Client of fifty percent (50%) of the total fees for the canceled or rescheduled Training Services. Any such fee charged will not be applied to the price of rescheduled Training Services. Cancelling or rescheduling confirmed Training Services within ten (10) business days will result in a charge to Client of the total fees for the canceled or rescheduled Training Services. In all such events, Client will be. responsible to pay for any non-refundable travel expenses associated with a cancellation or rescheduling of Training Services within the windows specified above. Travel and Expenses. Client shall be responsible for all costs related to travel and expenses incurred by Vitalyst in relation to carrying out the Training Services described herein. J. Customized Curriculum. Any customization of the training curriculum must be finalized at least ten (10) business days prior to the start date of training. Customizations that are not finalized at least ten (10) business days prior to the start date are not guaranteed to be implemented during the training. 12 K. Expiration of Certain Training Services. For Training Services other than the Hub (including webinars and onsite Training Services), such Training Services must be used within one (1) year of the date of purchase (for the Training Services purchased in Attachment A, 1 year from the Effective Date) or they shall expire without any right of refund. 4. Purchase of Units and Term. A. Original Term. The Support Services Agreement will become effective and binding upon execution of that Agreement by both parties as specified therein (the "Effective Date"). The "Original Term" for the provision of Support Services shall commence upon the sooner of six weeks from the Effective Date or the date of the first Support call placed by Client to Vitalyst ("Commencement Date") and shall continue for a period of 730 days for a minimum of 47,456 units. B. Renewal Terms. This Support Services Agreement will automatically renew beyond the Original Term for consecutive renewal periods for a time period in each instance equal to the lesser of (i) the Term of Units for the Units; or (ii) 730 days, unless either party notifies the other in writing of its intent to terminate not less than 30 days prior to the expiration of the Original Term or, for any Renewal Term following the Original Term, not less than 30 days prior to the expiration of the then - current Renewal Term. The Original Term and any and all Renewal Terms will constitute the "Term" of this Agreement; provided, that the Term shall be reduced if this Agreement is terminated for cause under Section 12 below. 5. Fees and Payment Terms. A. Fees and Invoicing. Vitalyst will invoice Client far all one-time dollar.-basedfees due under the Support Services Agreement upon execution of .the Agreement. Vitalyst will invoice Client for Support Units based on the invoicing schedule in Attachment A. For all dollar -based fees due quarterly or on any other recurring basis under the Support Services Agreement, Vitalyst will invoice Client on a recurring or periodic basis in advance as specified in the Agreement (if the periodic basis is not otherwise specified, it shall be due quarterly), with the first such invoice issued on a pro rata basis for the period between execution of the Support Services Agreement and the end of the then -current calendar quarter or other applicable period. For any other fees or expenses incurred by Vitalyst in theprovision of Support Services, Vitalyst will invoice Client as otherwise specified in these General. Terms or the Support Services Agreement or, if not specified, on a monthly basis in arrears following delivery, of the Support Services at issue or the incurring of the applicable expense. All payment obligations are non -cancelable and all amounts paid are non- refundable. B. Payment Terms. All invoices are due and payable in full within 30 days of issuance by Vitalyst. Invoices not paid by their due date shall be subject to a 1.5% per month interest fee, or the maximum extent allowed by applicable laws, whichever is less, on all past due balances. This late payment fee may, in Vitalyst sole discretion and at its election, be converted into a corresponding number of units at then -current pricing and Vitalyst may then debit Client's then -unused units by this converted amount. In the event Vitalyst incurs additional fees as a result of any collection activity for unpaid fees, Client shall reimburse Vitalyst for any and all such fees. - 13 C. Method of Payment. All fees shallbe paid, at Client's election; either by means of: (a) a Client check payable to Vitalyst; LLC; (b) an Automatic Clearing House ("ACH") transfer to a Vitalyst bank account (account instructions will be provided by Vitalyst if Client elects to utilize this method of payment). If Client wishes to pay by any other means (such as by credit card), it may notify Vitalyst in writing of its request and may only utilize such other payment method if and to the extent approved in advance in writing by Vitalyst. In this regard, alternative payment methods may require payment of additional fees to Vitalyst (for example, Client may be required to reimburse Vitalyst for applicable transaction fees for certain alternative payment methods). D. Taxes. Fees due to Vitalyst do not include taxes and Client shall promptly pay all taxes, or promptly reimburse Vitalyst for any taxes required to be paid by, Vitalyst, to the extent such taxes are in connection with the Support Services Agreement or any Support Services or deliverables provided thereunder; provided, however, that Vitalyst shall be responsible for taxes imposed on its net income or capital stock. 6. Vitalyst Performance. Vitalyst will provide the Support Services in a professional and workmanlike manner. In the event such Support Services are not performed in accordance with this standard and Client promptly notifies Vitalyst of the non-compliance, Vitalyst will re -perform the non -conforming Support Services, at no additional cost to Client, to correct any deficiencies. In the event Vitalyst remains unable to provide the Support Services in accordance with these standards after repeated effort, then Client's sole remedies shall be: (i) to recover the fees paid to Vitalyst for the un-remedied, non -conforming Support Services, subject to the aggregate liability limits set forth in Section 13 below; and (ii) if the non-conformance is material, to initiate termination of this Agreement pursuant to Section 12 and, to the extent this Agreement is terminated, obtain a refund as of the date of termination for any pre -paid fees for unused Support Services. 7. Confidential Information. Confidential Information is non-public information of a party which is provided to the other party hereunder and which is maintained as confidential by the disclosing party. A party receiving Confidential Information may use it only for the purposes for which -it was provided and may not disclose it to any third party unless such third party has "a need to know" the information and is bound by the confidentiality andlimited use restrictions set forth in this Agreement (including the. licensing restrictions and other requirements in Section 8 which apply to Deliverables). Without limitation, Confidential Information of Vitalyst includes the Company Information (defined in Section 8 below), the Company's other intellectual property, any and all pricing information and metrics related to its services and offerings, information about employees and customers, information about business, product or marketing strategy, and information regarding the company's practices and methodologies utilized in the delivery of Support Services. Confidential Information of Client includes non-public information regarding Client's employees, customers and contractors (including "Client PII" as defined in Section 7 below) and non-public information regarding its financial health and its business, marketing and product strategies. Confidential information does not include information that: (i) is or becomes known to the public without fault or breach of this provision; or (ii) the owning party regularly discloses to third parties without restriction on disclosure; or (iii) the is received from a party other than a party to this Agreement without restriction on disclosure and without breach of a non -disclosure obligation. The obligations of this provision shall survive termination of this Agreement for so long as the owning party treats the item at issue as confidential. Provided, Client and Vitalyst recognize that Client is a public entity, subject to various public disclosure laws. The provisions of this Section shall not apply to any information that the Client determines is subject to release under state or federal law, including the Washington State Public Records Act, or legal discovery. 14 8. Personally Identifiable Information. In the course of the provision of Support Services, Client may from time to time provide Vitalyst with certain personal identifiable information of Client's employees, contractors and/or customers that is regulated by various state and/or federal laws and regulations ("Client PII"). Vitalyst represents that it maintains appropriate data security measures, including a written information security policy, to protect Client PII in a manner consistent with the requirements of all state and federal laws and regulations which apply to Vitalyst's handling of Client PII in the course of providing Support Services hereunder ("Applicable Laws"). Further, consistent with the requirements of Applicable Laws, Vitalyst shall, for so long as it retains Client PII: (i) maintain the confidentiality of Client PII as set forth in Section 6 (Confidential Information) of this Agreement; (ii) limit access to Client PII to Vitalyst's employees, agents and subcontractors who need access to Client PII to fulfill Vitalyst's obligations hereunder and who agree to abide by the same restrictions that apply to Vitalyst with regard to such Client PII; and (iii) implement appropriate administrative, technical and physical safeguards designed to ensure the security or integrity of such Client Pit and help protect against unauthorized access to or use of such Client PII. . Client will maintain appropriate data security measures, and implement security policies and practices, as necessary to protect Client PII in a manner consistent with the requirements of all state and federal laws and regulations which apply to Client. Client will implement practices and policies designed to limit the provision of Client P11 to Vitalyst to those instances where such Client PII is necessary for the effective provision of Support Services from Vitalyst and, in such instances, Client shall ensure that the Client PII is transmitted or made available in a form or manner which complies with all applicable laws and regulations. 9. Intellectual Property Rights; License Granted to Client. a. Intellectual Property Rights. Each party shall own all rights in and to: (i) its proprietary intellectual property which it developed or otherwise owned prior to the execution of this Agreement; (ii) any proprietary intellectual property which it develops independently of the Support Services and Deliverables provided hereunder; and (iii) its proprietary data. Client agrees that, except for proprietary information rightfully owned by a third party, Vitalyst shall own all rights in and to any methodologies, deliverables, work product and other intellectual property ("Company Information") created or provided by Vitalyst in the course of, or in connection with, the delivery of Support Services under this Agreement. b. License Granted to Client. Company Information which. provided by Vitalyst as a deliverable for Client's use as part of the Support Services provided hereunder shall be referred to as a "Deliverable". Vitalyst grants Client a non-exclusive, non -transferable license to allow use of each Deliverable by employees, Affiliates and Authorized Agents (defined below) of Client solely in support of Client's (or, where applicable, its Affiliates') internal business operations. This license is perpetual, except that third -party owned Deliverables or portions thereof are licensed for use for the Term hereof. Client, its employees, Affiliates and Authorized Agents are prohibited from: (i) distributing or disclosing any Deliverable to any third party or using any Deliverable to provide services to, or for the benefit of, a third party; or (ii) using or relying upon a Deliverable to develop any service or product similar to those then offered by Vitalyst. All rights not expressly granted herein are reserved by Vitalyst. c. Authorized Agents and Affiliates. An "Authorized Agent" is a third party agent or contractor of Client which supports Client's business operations. An "Affiliate" is defined in Section 1 above. Client shall be responsible and liable: (i) for the conduct of each Authorized Agent and Affiliate; (ii) for ensuring that each Authorized Agent and Affiliate is aware of and complies with the terms and conditions hereof and, in particular, is bound to maintain and limit use of Vitalyst's Confidential Information and Deliverables as required under the terms of Sections 6, 8(a) and 8(b) above (including limiting use of Deliverables to the support of the internal business operations of Client or its Affiliate); and (iii) for ensuring that Vitalyst shall not be liable to any Authorized Agent or any Affiliate for any damages of any kind relating to the Support Services or this Agreement. • • Affiliates and Authorized Agents may not be competitors of Vitalyst. 15 10. Access Security; Employee List. Client shall be responsible for maintaining the security of the unique toll -free phone number provided to Client for use by its employee end -users. This access number shall be considered Confidential Information and, as a result, Client shall ensure that such number is shared only with those then -active employees, Authorized Agents and Affiliates who are authorized to utilize the Vitalyst Support Services. Vitalyst may retain and use, for the purposes of educating and delivering Support Services to Client, any e-mail address or other relevant contact information provided to Vitalyst by any employee, Authorized Agent or Affiliate. The provisions of this Section shall not apply to any information that Client determines is subject to release under state or federal law, including the Washington State Public Records Act, or legal discovery. 11. Non-interference with Employees. Client and Vitalyst agree that neither party (nor any Affiliate) shall directly or indirectly solicit for employment, hire, employ or retain (as an employee, independent contractor, consultant, subcontractor or otherwise) any person employed by the other party during the term of this Agreement or within a period of two (2) years following expiration or termination of this Agreement without the prior written consent of the other party. Notwithstanding the above, it shall not be a violation of this provision for a party to hire a former employee of the other party whose employment terminated more than six (6) months prior to being hired. 12. Termination. This Agreement shall remain in effect unless it expires in accordance with the terms of Section 3 above or is terminated for cause in accordance with this provision. A party has the right to. terminate this Agreement for cause if the other party breaches a material provision of this Agreement and, following written notice of the breach, fails to cure the breach within thirty (30) days thereafter. In addition to its right to terminate the Agreement in its entirety and seek collection of all past -due fees, Vitalyst, in its sole discretion and without further notice to Client, may suspend or reduce its performance of the Support Services in the event that Client fails to cure a payment breach within ten (10) days of written demand for such payment. Following termination hereof, the parties shall cease using all Confidential Information and materials provided by the other party, and shall return all of the other party's Confidential 'Information to such other party. .Without limitation, Client shall pay all fees incurred for Support Services provided up through the effective date of termination. 13. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY WITHOUT LIMITING ITS OBLIGATIONS TO PERFORM SUPPORT SERVICES AS REQUIRED HEREUNDER, VITALYST DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE AGGREGATE AND CUMULATIVE LIABILITY OF VITALYST AND ITS AFFILIATES AND SUPPLIERS FOR ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES THAT CLIENT PAID TO VITALYST HEREUNDER DURING THE ORIGINAL TERM HEREOF. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL VITALYST, OR ITS AFFILIATES OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOSS OF DATA, REGARDLESS OF THE CAUSE OF ACTION OR WHETHER OR NOT VITALYST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 14. Miscellaneous. If any provision of this Agreement is determined to be invalid or otherwise unenforceable, such provision will be deemed deleted from this. Agreement, while the remainder of this Agreement will continue in full force and effect as written. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions. 16 15. No Assignment. Except as set forth below, neither party may assign this Agreement, or any rights or obligations hereunder, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. However, either party may assign this Agreement without the other party's consent: (a) to an Affiliate (i.e., any entity controlling, controlled by or under common control with a . party), or (b) to the surviving entity in the event of a merger, acquisition, divestiture, consolidation or corporate reorganization and to any entity that acquires all or substantially all of its assets or a controlling interest in its stock; provided that the assigning party shall provide written notice to the other party as soon as legally practicable after the assignment. As a condition of any assignment, this Agreement will be binding upon the permitted assigns of the parties and the assigning party shall so ensure that its assignee is bound hereby either by written agreement or by operation of law. Client understands that certain of Vitalyst's fees are conditioned on the use of Support Services for a specified number of users, devices, employees or other metrics. In the event that Client's assignee wishes to use any such Support Services beyond the applicable limitations, it shall pay additional fees based on Vitalyst's then -current prices. 16. Force Majeure. Neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including Acts of God, acts of war, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance. Force Majeure events shall include power outages, delays caused by the unavailability of telephone or other telecommunication systems and failures or defects in third party software, hardware, multi -media work product, equipment or other items. 17. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the Washington. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State Courts of Washington or in the Federal District Court for the Western District of Washington, and that such courts shall have exclusive jurisdiction over the parties and any matters arising hereunder. 18. Updating Pricing. Unless otherwise specified in the Support Services Agreement, Vitalyst may increase its fees and unit -based charges due from Clients once each calendar year and will reflect any adjusted fees in the Client's next invoice; provided, however, that no annual increase may exceed a percentage increase over the. prior year's fees equal: to the Percentage. Change in the Consumer Price Index plus five percent (5%); provided, that in no event shall the percentage increase allowable for any year be less than zero. The "Percentage Change in the Consumer Price Index" shall mean the annual percentage change in the Consumer Price Index for All Urban Consumers, U.S. City Average, All Items (1982-84=100) (the "CPI-U Index") when measured over a twelve (12) month period which ends in the month which is as close as administratively practicable to the first month of the effective date of the increase. Authorized changes to the Support Services provided to Client may result in additional fees. 19. Notices. Except as otherwise expressly provided herein, all notices hereunder shall be in writing and shall be delivered to the party's representative identified in the Support Services Agreement (or if none identified therein, to the party's CFO)at the address set forth therein. All notices shall be delivered in person or sent via United States first classpostage pre -paid, certified or registered mail, or sent via a nationally -recognized traceable shipping services (e.g., FedEx or UPS). -All notices will be deemed effective upon receipt or, alternatively, upon refusal to accept a written notice sent in accordance with the above. 20. Contract in Entirety. This Support Services Agreement (including these General Terms and Conditions) sets forth the entire understanding and Agreement between Vitalyst and Client and supersedes any prior or contemporaneous oral or written communications, understandings, agreements or representations. This Agreement may be modified only by a written amendment duly signed by both parties. 17