Kronos Incorporated
900 Chelmsford Street
Lowell, MA 01851 Page: 1 / 5
Phone: (978)250-9800
UKG SALES, SOFTWARE LICENSE AND SERVICES AGREEMENT Rev KR-11092021
City of Murrieta (“Customer”) and Kronos Incorporated, a UKG company (“UKG”) agree that the terms and conditions set forth in this Agreement shall apply to all UKG Equipment, Software, Professional and Educational Services, Support, and such other UKG offerings, as specified on an order form (an “Order Form”) signed by the parties which expressly references this Agreement (or is signed contemporaneously hereto).
UKG and Customer hereby agree that the terms and conditions of this Agreement apply to any Order Form executed by UKG and Customer which expressly references this Agreement (including any Order Form signed contemporaneously with this Agreement regardless of the appearance of any express referen ce to this Agreement). Either party may discontinue use of this Agreement for future orders upon thirty (30) days prior written notice to the other party, provided however that any Order Form signed by the parties prior to the effective date of such notice shall remain in effect unless otherwise specifically terminated in accordance with the terms of this Agreement. UKG may require additional terms and conditions for the sale or license of products or services not contemplated by this Agreement (including without limitation those that may be related to international services) provided that no such additional terms and conditions shal l be binding upon Customer without Customer’s prior written consent.
Notwithstanding, UKG will not be obligated to accept or approve an order for any products or services for which such additional terms and conditio ns are required. All orders are subject to the approval of UKG’s corporate office in Lowell, Massachusetts. This Agreement and the Order Form shall supersede the pre- printed terms of any Customer purchase order or other Customer ordering document, and no such Customer pre-printed terms shall apply to the items ordered.
1. PAYMENT AND DELIVERY
Unless otherwise set forth in this Agreement, payment terms are indicated on the Order Form or other contemporaneous ordering document containing product-specific payment terms signed by the parties. Delivery terms are as stated on the Order Form (“Delivery”). UKG will invoice Customer for products upon Delivery. Unless otherwise set forth on the Order Form, Professional and Educational Services are provided on a time and materials basis, invoiced month ly as rendered. Customer agrees to pay all applicable taxes levied or based on the products, services or other charges hereunder, including state and local sales and excise taxes, and any taxes or amount in lieu thereof paid or payable by UKG, exclusive of taxes based on net income. Customer agrees to pay a late charge of one percent (1%) per month, (but not in excess of the rate allowed by law), on any overdue amounts not the subject of a good faith dispute. If full payment is not made within 90 days of final payment due date, Customer is responsible for all expenses, including legal fees, incurred by UKG for collection.
2. GENERAL LICENSE TERMS
UKG owns or has the right to license the Software. The Software and Software documentation are confidential and may not be disclosed to a third party without UKG’s written consent. The Software contains proprietary trade secret technology. Unauthorized use and copying of such Software is prohibited by law, including United States and foreign copyright law. The price Customer pays for a copy of the Software constitutes a license fee that entitles Customer to use the Software as set forth below. UKG grants to Customer a non-exclusive, nontransferable, perpetual (except as provided herein) license to use the Software. This license may be terminated by UKG by written notice to Customer upon any material breach of this Agreement by Customer which remains uncured for a period of thirty (30) days after such written notice from UKG. Upon such termination of this license by UKG, Customer will have no further right to use the Software and will return the Software media to UKG and destroy all copies of the Software (and related documentation) in Customer’s possession or control. This license is subject to all of the terms of this Agreement.
3. FEE BASED LIMITATIONS
Customer recognizes and agrees that the license to use the Software is limited, based upon the amount of the license fee paid by Customer. Limitations, which are set forth on the Order Form, may incl ude the number of employees, simultaneous or active users, Software product modules, Software features, computer model and serial number and partition, and/or the number of telephone lines or terminals to which the Software is permitted to be connected. Customer agrees to: i) use the Software only for the number of employees, simultaneous or active users, computer model, partition and serial number, and/or terminals permitted by the ap plicable license fee; ii) use only the product modules and/or features permitted by the applicable license fees; and iii) use the Software only in support of Customer’s own business. Customer agrees not to increase the number of employees, simultaneous or active users, partitions, terminals, products modules, features, or to upgrade the model, as applicable, unless and until Customer pays the applicable fee for such increase/upgrade. Customer may not relicense or sublicense the Software to, or otherwise permit u se of the Software (including timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Software without the express prior written consent of UKG.
4. OBJECT CODE ONLY
Customer may use the computer programs included in the Software (the “Programs”) in object code form only, and shall not reverse compile, disassemble or otherwise convert the Programs into uncompiled or unassembled code. The Programs include components owned by third parties. Such third party components are deemed to be Software subject to this Agreement. Customer shall not use any of the Programs (or the data models therein) except solely as part of and in connection with the Software and as described in the published documentation for such Software. Customer shall in demnify and hold harmless UKG for all damages or liability caused by Customer’s failure to comply with the foregoing restriction.
5. PERMITTED COPIES
Customer may copy the Programs as reasonably necessary to load and execute the Programs and for backup and disaster recovery and testing purposes only, except for additional copies of the Teletime Software and the UKG iSeries (which must be licensed separately). All copies of the Programs or any part thereof, whether in printed or machine readable form and whether on storage media or otherwise, are subject to all the terms of this license, and all copies of the Programs or any part of the Programs shall include the copyright and proprietary rights notices contained in the Programs as delivered to the Customer.
6. UPDATES
In the event that UKG supplies Service Packs, Point Releases and Major Releases (including legislative updates if available) of the Software (collectively referred to as “Updates”), such Updates shall be part of the Software and the provisions of this license shall apply to such Updates and to the Software as modified thereby.
7. EXPORT
Customer acknowledges that the Equipment and Software may be restricted by the United States Government or by the country in which the Equipment or Softwar e is installed from export to certain countries and certain organizations and individuals, and agrees to comply with such laws. C ustomer agrees to comply with all applicable laws of all of the countries in which the Equipment and Software may be used by Customer and shall indemnify UKG for any noncompliance which results in damages or liability for UKG. Customer’s obligations hereunder shall survive the termination or expiration of this Agreement. Customer must obtain UKG ’s prior written consent before exporting the Software.
8. FIRMWARE
Customer may not download firmware updates for the UKG Equipment unless Customer is maintaining such Equipment under a support plan with UKG. If Customer is not maintaining the Equipment under a support plan with UKG, UKG shall have the right to verify Customer’s UKG Equipment to determine if Customer has downloaded any firmware to which Customer is not entitled. If Customer has downloaded firmware for the UKG Equipment to which Customer is not entitled, Customer shall be responsible to pay UKG for such updated firmware in accordance with UKG’s then-current support policies.
Kronos Incorporated
900 Chelmsford Street
Lowell, MA 01851 Page: 2 / 5
Phone: (978)250-9800
9. TRAINING POINTS
Training Points which are purchased by Customer may be redeemed for an equivalent value of instructor-led training sessions offered by UKG. Available instructor-led sessions are listed at http://customer.Kronos.com
and each session has the Training Points value indicated. Training Points may be redeemed at any time within 12 months of the date of the applicable Order Form, at which time they shall expire. Training Points may not be exchanged for other UKG products and/or services. UKG will invoice Customer for the Training Points identified in the Order Form upon execution of such Order Form with payment due upon the payment terms indicated in such Order Form.
10. ACCEPTANCE
For Customer’s initial purchase of each Equipment and Software product UKG shall provide an acceptance test period (the “Test Period”) that commences upon Installation.
Installation shall be defined as: a.) the Equipment, if any, is mounted; b.) the Software i s installed on Customer’s server(s); and c.) implementation team training, if any, is complete. During the Test Period, Customer shall determine whether the Equipment and Software meet the UKG published electronic documentation, ("Specifications").
The Test Period shall be for 30 days. If Customer has not given UKG a written deficiency statement specifying how the Equipment or Software fails to meet the Specifications (“Deficiency Statement”) within the Test Period, the Equipment and Software shall be deemed accepted. If Customer provides a Deficiency Statement within the Test Period, UKG shall have 30 days to correct the deficiency, and Customer shall have an additional 30 days to evaluate the Equipment and Sof tware. If the Equipment or Software does not meet the Specifications at the end of the second 30 day period, either Customer or UKG may terminate this Agreement. Upon any such termination, Customer shall return all Equipment and Software (and related documentation) to UKG , and UKG shall refund any monies paid by Customer to UKG for the returned Equipment and Software. Neither party shall then have any further liability to the other for the products that were the subject of the Acceptance Test.
11. LIMITED WARRANTY
UKG warrants that all UKG Equipment and Software media shall be free from defects in materials and workmanship, for a period of ninety (90) days from Delivery. In the event of a breach of this warranty, Customer’s exclusive remedy shall be UKG’s repair or replacement of the deficient Equipme nt and/or Software media, at UKG ’s option, provided that Customer’s use, installation and maintenance thereof have conformed to the Specifications. This warranty is extended to Customer only and shall not apply to any Equipment (or parts thereof) or Software media in the event of:
(a) damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, (including modification or replacement of any UKG components on any boards supplied with the Equipment), unusual physical or electrical stress or causes other than normal and intended use;
(b) failure of Customer to provide and maintain a suitable installation environment, as specified in the Specifications; or
(c) malfunctions resulting from the use of badges or supplies not approved by UKG.
When using and applying the information generated by UKG products, Customer is responsible for ensuring that Customer complies with the applicable requirements of federal and state law. If Customer is licensing Workforce Payroll Software or Workforce Absence Management Software: (i) Customer is solely responsible for the content and accuracy of all reports and documents prepared in whole or in part by using such Software, (ii) using such Software does not release Customer of any professional obligation concerning the preparation and review of such reports and documents, (iii) Customer does not rely upon UKG , Best Software, Inc. or such Software for any advice or guidance regarding compliance with federal and state laws or the appropriate tax treatment of items reflected on such reports or documents, and (iv) Customer will review any calculations made by using such Software and satisfy itself that those calculations are correct.
12. INDEMNIFICATION
UKG agrees to indemnify Customer and to hold it harmless from and against any and all claims, costs, fees and expenses (including reasonable legal fees) relating to actual or alleged infringement of United States or Canadian patents or copyrights asserted against Customer by virtue of Customer's use of the Software as delivered and maintained by UKG, provided that: i) UKG is given prompt written notice of any such claim and has sole control over the investigation, preparation, defense and settlement of such claim; and, ii) Customer reasonably cooperates with UKG in connection with the foregoing and provides UKG with all information in Customer's possession related to such claim and any further assistance as reasonably requested by UKG . UKG will have no obligation to indemnify Customer to the extent any such claim is based on the use of the Software with software or equipment not supplied by UKG. Should any or all of the Software as delivered and maintained by UKG become, or in UKG's reasonable opinion be likely to become, the subject of any such claim, UKG may at its option: i) procure for Customer the right to continue to use the affected Software as contemplated hereunder; ii) replace or modify the affected Software to make its use non -infringing; or iii) shoul d such options not be available at reasonable expense, terminate this Agreement with respect to the affected Software upon thirty (30) days prior written notice to Customer. In such event of term ination, Customer shall be entitled to a pro - rata refund of all fees paid to UKG for the affected Software, which refund shall be calculated using a five year straight-line depreciation commencing with the date of the relevant Order. Additionally, UKG agrees to be liable for tangible property damage or personal injury caused solely by the negligence or willful misconduct of its employees.
13. PROFFESSIONAL AND EDUCATIONAL SERVICES
(a) TRAVEL EXPENSES
Customer agrees to reimburse UKG for all reasonable and necessary travel incurred by UKG in the performance of any professional and/or educational services, provided that such travel complies with the then current UKG Travel and Expense Policies. Customer further agrees to pay any travel expenses such as airfare, lodging, meals and local transportation, plus an administrative fee of ten percent (10%) of the amount of such travel expenses, incurred by UKG to deliver purchased professional services and/or educational services in accordance with the UKG Travel and Expense Policies. Customer will be billed by UKG for such travel expenses and payment thereof shall be due net 30.
(b) ENGAGEMENTS
Unless otherwise indicated on the Order Form, Professional and Educational Services (“Professional Services”) shall be provided on a time and material basis at the rates set forth in the Order Form. If a dollar limit is stated in the Order Form or any associated statement of work (“SOW”), the limit shall be deemed an estimate for Customer's budgeting and UKG's resource scheduling purposes. After the dollar limit is expended, UKG will continue to provide Professional Services on a time and materials basis, if a Change Order or Schedule of Services for continuation of the Professional Services is signed by the parties.
(c) WARRANTY
UKG warrants that all professional and educational services performed under this Agreement shall be performed in a professional and competent manner. In the event that UKG breaches this warranty, and Customer so notifies UKG within 30 days of receipt of invoice for the applicable services, the Customer’s sole remedy and UKG’s exclusive liability shall be to re-perform the services which were deficient in a manner so as to conform to the foregoing warranty, at no additional cost to Customer.
(d) UKG PROFESSIONAL/EDUCATIONAL SERVICES POLICIES
Kronos Incorporated
900 Chelmsford Street
Lowell, MA 01851 Page: 3 / 5
Phone: (978)250-9800
UKG’s then-current Professional/Educational Services Policies shall apply to all Professional and/or Educational Services purchased under the applicable SOW and may be accessed at:
https://www.ukg.com/central-dimensions/agreement/ProfessionalandEducationalServicesPolicy (“Professional Services Policies”). In the event of a conflict between the Professional Services Policies and this Agreement, the terms of this Agreement shall prevail.
14. SOFTWARE SUPPORT SERVICES
(a) SUPPORT OPTIONS
Customer may select from the following Software support purchase options: Gold (or Gold Plus) and Platinum (or Platinum Plus) support (“Service Type”), each providing different service coverage periods and/or service offerings, as specified herein (“Service Offerings”) and in the UKG Support Service Policies (defined below). Customer must purchase the same Service Type for all of the Software specified on the Order Form, (however, if Customer is purchasing support services for Visionware Software, Customer may only purchase Gold Service Type for the Visionware Software). All Updates shall be provided via remote access. Customer may purchase support services for Equipment in accordance with the terms and conditions of UKG’s standard Equipment Support Services Agreement a copy of which is available upon request and is located at:
http://www.ukg.com/Legal/EquipmentSupportAgr .
(b) TERM OF SOFTWARE SUPPORT
Unless otherwise indicated on the Order Form, support service shall commence on the Software Delivery date and shall continue for an initial term of one (1) year. Support service may renew for additional one year terms on the anniversary date of its commencement date upon the written agreement of both parties. After the one year initial term of this Agreement, the Service Offerings provided and the Service Coverage period are subject to change by UKG with sixty (60) days advance written notice to Customer.
For the initial two (2) renewal years the annual support fee, for the same products and service type, will not increase by more than 4% over the prior year’s annual support fee.
(c) GOLD SERVICE OFFERINGS
Customer shall be entitled to receive:
(i) Updates for the Software (not including any Software for which UKG charges a separate license fee), provided that Customer’s operating system and equipment meet minimum system configuration requirements, as reasonably determined by UKG. If Customer requests UKG to install such Updates or to provide retraining, Customer agrees to pay UKG for such installation or retraining at UKG’s then-current time and materials rate.
(ii) Telephone and/or electronic access to the UKG Global Support Center for the logging of requests for service during the Service Coverage Period. The Service Coverage Period for the Gold Service Offering is 8:00 a.m. to 8:00 p.m., local time, Monday through Friday, excluding UKG holidays.
(iii) Web-based support including access to Software documentation, FAQ’s, access to UKG knowledge base, Customer forums, and e-case management .
(iv) Web-based remote diagnostic technical assistance which may be utilized by UKG to resolve Software functional problems and user problems during the Service Coverage Period.
(v) Access to specialized content as and when made available by UKG such as technical advisories, learning quick tips, brown bag seminars, technical insider tips, SHRM e-Learning, HR Payroll Answerforce and service case studies.
(d) PLATINUM AND PLUS SERVICE OFFERINGS:
Platinum: In addition to the Service Offerings specified for the Gold Service Offering above, the Service Coverage Period for the Platinum Ser vice Offering is 24 hours a day, seven days a week, 365 days a year.
Plus option: In addition to the Service Offerings specified for the Gold Service Offering above, customers purchasing the Plus option shall receive the services of a dedicated, but not exclusive, UKG Technical Account Manager (“TAM”) for one production instance of the Software. Customers purchasing the Gold-Plus option shall designate up to one primary and one secondary backup technical contacts (“Technical Contacts”) to be the sole contacts with the TAM, while customers purchasing the Platinum-Plus option shall designate up to two primary and three secondary backup Technical Contacts. Upon request, Customer may designate additional and/or backup Technical Contacts.
Customer is required to place all primary Technical Contacts through UKG product training for the Software covered under this Agreement at Customer’s expense.
Customers purchasing the Platinum-Plus option shall also receive a one day per year visit to be performed at the Customer location where the Software is installed. During this onsite visit, UKG shall work with Customer to identify ways to help Customer increase functionality or maximize utilization of the Software in Customer’s specific environment. Customer must be utilizing the then-current version of the Software. Travel and expenses are not included and shall be paid by Customer.
(e) PAYMENT
Customer shall pay annual support charges for the initial term in accordance with the payment terms on the Order Form and for any renewal term upon receipt of invoice.
Customer shall pay additional support charges, if any, and time and material charges upon receipt of invoice.
(f) ADDITION OF SOFTWARE
Additional Software purchased by Customer during the initial or any renewal term shall be added to this Agreement at the same support option as the then current Software support coverage in place under these terms. Customer agrees to pay the charges for such addition, and any such addition shall be automatically renewed as provided in these terms.
(g) RESPONSIBILITIES OF CUSTOMER
Customer agrees (i) to provide UKG personnel with full, free and safe access to Software for purposes of support, including use of UKG’s standard remote access technology, if required; (ii) to maintain and operate the Software in an environment and according to procedures which conform to the Specifications; and (iii) not to allow support of the Software by anyone other than UKG without prior written authorization from UKG. Failure to utilize UKG ’s remote access technology may delay UKG’s response and/or resolution to Customer’s reported Software problem. If Customer requires the use of a specific remote access technology not specified by UKG, then Customer must purchase the Plus option to receive support and provide UKG personnel with full, free and safe access to the remote access hardware and/or software. (h) DEFAULT
Customer shall have the right to terminate UKG support services in the event that UKG is in breach of the support services warranty set forth below and such breach is not cured within fifteen (15) days after written notice specifying the nature of the breach. In the event of such termination, UKG shall refund to Customer on a pro -rata basis those pre-paid annual support fees associated with the unused portion of the support term. UKG reserves the right to terminate or suspend support service in the event the Customer is in default under this Agreement with UKG and such default is not corrected within fifteen (15) days after written notice. In addition, the support services will terminate and all charges due hereunder will become immediately due and payable in the event that Customer ceases to do business as a going concern or has its assets assi gned by Kronos Incorporated
900 Chelmsford Street
Lowell, MA 01851 Page: 4 / 5
Phone: (978)250-9800
law.
(i) WARRANTY
UKG warrants that all support services shall be performed in a professional and competent manner.
(j) UKG SUPPORT SERVICE POLICIES
UKG’s then-current Support Services Policies shall apply to all Support Services purchased and may be accesse d at: https://www.ukg.com/support-policies-and-services (“Support Policies”). In the event of a conflict between the Support Policies and this Agreement, the terms of this Agreement shall prevail.
15. KNOWLEDGEPASS EDUCATION SUBSCRIPTION:
The parties hereby agree that the following terms shall apply to Customer’s purchase of the UKG KnowledgePass Education Subscription only, if specified on the Order Form:
(a) Scope: The KnowledgePass Education Subscription is available to customers who are licensing UKG’s Workforce Central and iSeries Timekeeper Software products and who are maintaining such products under a support plan with UKG. The KnowledgePass Education Subscription provides access via the internet to certain educational offerings provided by UKG (the “KnowledgePass Content”), including:
• Product and upgrade information for project teams and end users • Hands-on interactive instruction on common tasks
• Self-paced tutorials covering a range of topics
• Job aids
• Knowledge assessment and reporting tools to measure progress • Webinars
(b) Term of Subscription: The KnowledgePass Education Subscription shall run co-terminously with Customer’s Software Support, and shall renew for additional one (1) year terms provided Customer renews its KnowledgePass Education Subscription as provided below.
(c) Payment: Customer shall pay the annual subscription charge for the initial term of the KnowledgePass Education Subscription in accordance with the payment terms on the Order Form. UKG will send Customer a renewal invoice for renewal of the KnowledgePass Education Subscription at least forty five (45) days prior to expiration of the then current term. KnowledgePass Education Subscription shall renew for an additional one (1) year term if Customer pays such invoice before the end of the initial term or any renewal term.
(d) Limitations: Customer recognizes and agrees that the KnowledgePass Content is copyrighted by UKG. Customer is permitted to make copies of the KnowledgePass Content provided in *pdf form solely for Customer’s internal use and may not disclose such KnowledgePass Content to any third party other than Customer’s employees.
Customer may not edit, modify, revise, amend, change, alter, customize or vary the KnowledgePass Content without the written consent of UKG, provided that Customer may download and modify contents of Training Kits solely for Customer’s internal use.
(e) Train-the-Trainer Program (TTT): Certification under the Train-the-Trainer Program is valid only for the point release of the Software for which the TTT Program is taken, and covers only the Customer employee who completes the TTT Program.
16. CONFIDENTIAL INFORMATION
“Confidential Information" is defined as information that is: i) disclosed between the parties after the date of this Agreement that is considered confidential or proprietary to the disclosing party; and ii) identified as “confidential” at the time of disclosure, or would be reasonably obvious to the receiving party to constitute confidential information because of legends or other markings, by the circumstances of disclosure or the nature of the information itself. Additionally, the terms, conditions and pricing containe d in this Agreement and the Order Form, the Software (and Software documentation), and the Specifications shall be deemed to be UKG’s Confidential Information. Each party shall protect the Confidential Information of the other party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither party shall disclose to third parties (except the parent company or the wholly owned subsidiaries of the receiving party who have a need to know) the other party’s Confidential Information, or use it for any purpose not explicitly set forth herein, without the prior written consent of the other party . The obligation of confidentiality shall survive for three (3) years after the disclosure of such Confidential Information.
This Agreement imposes no obligation upon either party with respect to the other party’s Confidential Information which the receiving party can establish by legally sufficient evidence: (a) was rightfully possessed by the receiving party without an obligation to maintain its confidentiality prior to receipt from the disclosing party, (b) is generally known to the public without violation of this Agreement; (c) is obtained by the receiving party in good faith from a third party having the right to disclose it without an obligation with respect to confidentiality; (d) is independently developed by the receiving party without use of the disclosing party’s confidential information, which can be shown by tangible evidence; or (e) was required to be disclosed by applicable law; provided that the receiving party notifies the disclosing party of such requirement prior to disclosure, and provided further that the receiving party makes diligent efforts to limit disclosure.
17. MARKETING ACTIVITIES
Customer agrees that UKG may use Customer’s name as part of UKG ’s published customer lists. Upon UKG’s request, Customer will participate in mutually beneficial marketing and public relations activities with UKG. All content shall be subject to the prior review and approval of Customer, such approval not to be unreasonably withheld.
18. LIMITATION OF LIABILITY
CUSTOMER'S EXCLUSIVE REMEDIES AND UKG'S SOLE LIABILITY FOR ANY UKG BREACH OF THIS AGREEMENT ARE EXPRESSLY STATED HEREIN.
EXCEPT AS PROVIDED IN THIS AGREEMENT, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED.
EXCEPT FOR UKG 'S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL UKG 'S OR ITS PARENTS',
SUBSIDIARIES', AFFILIATES', OR THIRD PARTY LICENSOR'S LIABILITY TO A CUSTOMER, HOWSOEVER CAUSED, EXCEED THE VALUE OF THE
ORDER WHICH GIVES RISE TO THE CLAIM, AND IN NO EVENT WILL UKG OR ITS PARENTS, SUBSIDIARIES AFFILIATES OR THIRD PARTY LICENSORS
BE LIABLE FOR LOST PROFITS, LOST DATA OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR THE EXISTENCE, FURNISHING, FUNCTIONING OR CUSTOMER’S SPECIFIC USE OF, OR INABILITY TO SO USE, ANY EQUIPMENT, SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT.
Kronos Incorporated
900 Chelmsford Street
Lowell, MA 01851 Page: 5 / 5
Phone: (978)250-9800
19. FINGER SCAN AND FACIAL RECOGNITION EQUIPMENT
(a) For Customer’s use of Equipment containing finger scan sensor and/or facial recognition technology (“FS/FR Equipment”), Customer warrants that it is compliant and will maintain compliance with all applicable biometric privacy laws with respect to its u se of FS/FR Equipment. If required by law, Customer further warrants that prior to using FS/FR Equipment it shall: (i) obtain signed releases from employees consenting to the use of the applicable FS/FR Equipment for employee timekeeping purposes; (ii) issue policies to their employees and the public regarding its retention and destruction of the finger scan or facial recogni tion data, and (iii) ensure that any releases, consents, or policies required by applicable law shall expressly apply to UKG and its authorized subcontractors. (b) Customer agrees to defend, hold harmless and indemnify UKG, its employees, directors, parent, subsidiaries and authorized partners and subcontractors (collectively, “UKG Indemnitees”) for any claims, damages, penalties or fines asserted or awarded against a UKG Indemnitee arising out of or relating to Customer’s breach of any of the warranties in section 19(a) above with respect to FS/FR Equipment. Upon receipt of notice of such a claim, Customer shall assume sole control o f the defense and settlement of such claim; provided that: (i) UKG shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim, on a monitoring and a non-controlling basis; (ii) Customer shall not settle any claim on any terms or in any manner that adversely affects the rights of UKG without its prior written consent; and (iii) UKG shall provide reasonable cooperation and assistance at Customer’s sole cost and expense.
20. GENERAL
(a) This Agreement shall be governed by State of California law. The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of this Agreement. (b) The invalidity or illegality of any provision of this Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect.
(c) Customer shall not assign this Agreement or the license to the Software without the prior written consent of UKG and any purported assignment, without such consent, shall be void.
(d) Neither party shall be liable for failures or delays in performance due to causes beyond its reasonable control, including war, strikes, lockouts, fire, flood, storm or other acts of God. Both parties agree to use their best efforts to minimize the effects of such failures or delays. (e) All notices given under this Agreement shall be in writing and sent postage pre-paid, if to UKG, to the UKG address on the Order Form, or if to Customer, to the billing address on the Order Form.
(f) No action, regardless of form, may be brought by either party more than two (2) years after the cause of action has arisen. (g) The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. (h) The parties agree that if this Agreement is delivered via fax or electronically delivered via email it shall constitute a valid and enforceable agreement. (i) This Agreement and any information expressly incorporated herein (including information contained in any referenced URL), together with the applicable Order Form, constitute the entire agreement between the parties for the products and services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the s ubject matter of this Agreement. This Agreement may be amended only in writing signed by authorized representatives of both parties. Customer understands and acknowledges that while UKG may disclose to customers certain confidential information regarding general product development direction, potential future products and/or product enhancements under consideration, Customer is not entitled to any products or product enhancements other than those contained on the Order Form. Customer has not relied on the availability of any future version of the Software or Equipment identified on an Order Form, nor any other future product in executing this Agreement.
(j) Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraph (c)(1)(2) of the Commercial Computer Software Restricted Rights clause at FAR 52.227-19, as applicable. Manufacturer/distributor is Kronos Incorporated, 900 Chelmsford Street, Lowell, MA.
City of Murrieta Kronos Incorporated
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