activeNETWORK PRODUCTS AND SERVICES AGREEMENT
"CUSTOMER INFORMATION
ORGANIZATION FULL City of Santa Monica ADDRESS: 1717 4" Street, Suite 250 LEGAL NAME:
Santa Monica, CA 90401
CONTACT NAME: David Yeskel TELEPHONE: (310) 458-8741
EMAIL: David. [email protected] FAX: (31-) 393-1144
12C0S0AN9S OVERVIEW OF AGREEMENT US AGO!
20.28:203
This document (the "Agreement") consists of this cover page, the General Terms, and the following Schedules and Exhibits (check all applicable Schedules)
Schedule A: Hosted Software
Schedule B: Licensed Software; Support and Maintenance
x Schedule C: Third Party Products
Exhibit 1: Pricing Form
Exhibit 2: Services Exhibit
x Exhibit 3: Maintenance Exhibit
Exhibit 4 Product Exhibit
NOTE: If customer is tax exempt, certificate must be provided along with signed contract. - contract
Last Revised December 15, 2010
GENERAL TERMS
In consideration of the mutual promises and covenants contained in this Agreement, Customer and TAN hes re agree here er my and al teamed yeles and u, Customer act each germand confirmis phat ot this Agreement.
CUSTOMER THE ACTIVE NETWORK, INC (TAN")
Date:
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written.
CITY OF SANTA MONICA
A municipal corporation Name: DAVID A. ALBARIA.
Rod Gould
City Manager Tille: CEO
Date: 7/26/11
ATTEST:
Maria Stewart
City Clerk
The Active Network, Inc., 10182 Telesis Court, San Diego, California 92121 Telephone: (858) 964-3801, Fax: (858) 964-3978
2 GENERAL TERMS
Form as licensed (or sublicensed) to Customer by TAN in GENERAL TERMS: TERMS APPLICABLE TO ALL connection with this Agreement, and/or which are in the future PRODUCTS AND SERVICES provided to Customer by TAN under any circumstances unless
1. INTERPRETATION provided under a separate licensing agreement.
1.1 Delinitions. For the purposes of interpreting this (1) "Maintenance" means the provision of •Agreement, the following terns will have the following investigation and repair services as set out in sections 22 meanings: through 25, Maintenance Exhibit 3, and the provision of new Versions and Releases in respect of the Licensed Software all (a) "Agreement" means this Products and Services as more particularly set out in the Support and Maintenance Agreement, inclusive of all Schedules. Handbook.
(b) "Concurrent Use" means use at the same moment in (m) "Module" means a single module element of Licensed time to access a given server computer (of any kind) owned or Software listed in the Pricing Form. controlled by Customer.
(n) "Online Services" means services, such as Internet
"Customer" means the legal entity other than TAN registration, that are enabled by Hosted Software and available entering this Agreement. to the public via the Internet. (d) "Database Server" ineans the single server computer (o) "Other Services" means Services other than Pre-Agreed upon which the Enterprise Database is resident. Services acquired by Customer under this Agreement or any (e) "Effective Date" means the last date set forth on page further Professional Services as provided in an agreed one of this Agreement. Statement of Work, purchase order, or pricing form. (f) "Enterprise Database" means the MSDE, MS SQL "Payment Server" means a single server computer used Server, or Oracle database files containing customer data and by Customer to process electronic payments from its clients, that are accessed by the Licensed Software. having a minimum configuration as set out in hardware specifications previously described to Customer as applicable (g) "Hosted Software" means computer code and to the Licensed Software to be installed and used upon it. programs, in executable code form only, including related data (9) "Pre-Agreed Services" means Services which files, rules, parameters and documentation, which have been expressly listed in the Pricing Forin as being acquired created or licensed by TAN and are identified in the Pricing • Form as licensed (or sublicensed) to Customer by TAN in hereunder by Custoner. connection with this Agreement, and which reside on TAN's "Pricing Form" means the itemized pricing form servers and are accessible by Customer's staff or Users via the attached as Exhibit 1 to the Agreement listing the products and Internet. services provided by TAN to the Customer under this (h) "Internet Client" means a remote device capable of Agreement using the Internet to access selected Licensed Software on the (s) "Products" means all Licensed Software, Hosted Internet Server or the Enterprise Database on the Database Software, Third Party products, and other products (including Server via the Internet Server. documentation) provided to Customer by or on behalf of (1) "Internet Server" means a single server computer used TAN. by Customer which enables access to the Licensed Software "Professional Services" means any and all types of by individuals using an Intranet or the Internet, having a services which TAN provides, to Customer and/or to other minimum configuration as set out in hardware specifications customers of TAN, in the course of TAN's business, including previously described to Customer as applicable to the but not limited to services relating to the installation, Licensed Software to be installed and used upon it. implementation, optimization, administration, training and () "IVR Server" means a single server computer used by troubleshooting of computers, computer software including Customer for voice-recognition and telephone-based, rather the Licensed Software, computer networks, databases, than computer-based, access to the Enterprise Database by internet-related equipment and applications, but expressly Customer's clients, having a minimum configuration as set out excludes Support and Maintenance. Professional Services that are not included as part of the Pre-Agreed Services, as as applicable to the Licensed Software to be installed and used defined above, shall be as set forth in any applicable and upon it. mutually agreed statements) of work (each a "Statement of Work"). Each suoh Statement of Work shall, upon mutual
(k) "Licensed Software" means computer code and agreement by the parties, become part of and incorporated by programs, in executable code forın only, including related data reference into this Agreement. files, rules, parameters and documentation, which have been created or licensed by TAN and are identified in the Pricing "Related Third Party Documentation" means any end specifications, manuals, instructions, and other materials, and
GENERAL TERMS
any copies of any of the foregoing, in any medium, related to (ee) "Third Party Products Support" means assistance to the Third Party Products and supplied by TAN to Customer isolate the source of problems and/or to troubleshoot with the Third Party Products. difficulties resulting from sources other than TAN products or (v) "Release" means any release, update, patch, set of services, such as general network support (for example revisions, or bug/permanent fix or temporary bypass solution network access, printing, backup & restoration); PC hardware released by TAN to its customers generally during the term of trouble shooting; PC setup, configuration and optimization; this Agreement, which provides enhancements and/or error network operating system configuration and functionality; corrections to the then-current Version or Release, and where basic Microsoft Corporation "Windows" functionality (for a new Version has been released and no new Release has been example, using File Manager or Explorer, released since the release of that Version, that Version will configuration & setup; data corruption due to lack of disk also constitute a Release for the purpose of deternining • space; and loss of supervisor or other password, all as further whether Support or Maintenance is available with respect to set out in the Support and Maintenance Handbook. that Version. New Releases will be denoted by an increase to , "User" means a person who accesses and uses any of the the version number to the right of the decimal point such as Products in any manner whatsoever. from Release 1.1 to Release 1.2.
(9g) "Version" means a version of the Licensed Software (w) "Services" means all Professional Services, Support and providing a particular functionality, while a new Version of Maintenance, Online Services, and other services provided to the Licensed Software. will provide new/additional Customer by or on behalf of TAN. functionality and/or improvements to a previous Version. New "Software" means the Licensed Software and the Versions will be denoted by a change to the version number to Hosted Software as defined elsewhere in this section. the left of the decimal point such as from Version 1.0 to Version 2.0.
(y) "Support" means the ongoing telephone, email, web-
based and dial-in support and problem resolution to assist (hh) "Workstation" means a computer attached to a local or Customer in the use of the Licensed Software, the Hosted wide-area network (including an Intranet), which accesses the Software, and other services and products of TAN as set out in Licensed Software or Enterprise Database. the Support and Maintenance Handbook. 1.2 Headings. The headings contained in this Agreement are (z) "Support and Maintenance Handbook" means the inserted for convenience and do not forin a part of this documents published by TAN setting out the applicable Agreement and are not intended to interpret, define or limit the service levels, processes, restrictions, and other particulars of scope, extent or intent of this Agreement or any provision Support and Maintenance provided in respect of the Software and Other Services and Products of TAN, as amended from 2. CHARGES AND PAYMENTS time to time upon notice to Customer.
2.1 Taxes and Other Charges. Customer will pay all
(aa) "Support and Maintenance Start Date" means, for shipping & handling costs and, unless exempted by law and implementations performed by TAN, the first day of unless a valid tax exemption certificate has been provided to implementation of the Licensed Software or 90 days following TAN prior to invoicing, all applicable sales, use, withholding the delivery of the Licensed Software, whichever occurs first, and excise taxes, and any other assessments against Custoner and upon delivery of the Licensed Software for in the nature of taxes, duties or charges however designated on implementations being performed by the customer or a 3rd the Services and Products or their license or use, on or party vendor. resulting from this Agreement, exclusive of taxes based on the (bb) "System Utilities" includes the following: Accounting Processes, Central Login, Log File, Copy Database, Maintain Database, MSDE Tool, Oracle Setup Utility, Query Tool,
System Maintenance, Upgrade Database and View
Components. 2.2 Currency. Unless otherwise indicated in the Pricing (cc) "TAN" means The Active Network as referenced on the rorm, all prices are in the currency of the country in which the first page of this Agreement. Customer is located
2.3 Delivery. Delivery for the Products supplied by TAN under this Agreement will be deemed to have occurred F.O.B. origin, which in the case of Licensed Software and/or Hosted manuals and other documents accompanying the delivery of Software will typically be in the form of an email from TAN the Third Party Products, provided that the Third Party providing a FTP (i.e. file transfer protocol downloadable link.
Products shall not include software developed by TAN. 2.4 Invoices/Payment. TAN will provide invoices to Customer for all amounts owing by Customer hereunder.
2 GENERAL TERMS
Such invoices are to be provided as indicated in the attached secrecy or confidentiality; (iv) information that is Schedules or Pricing Form, and subsequently due within 30 independently developed by the Receiving Party (e.g., without days from the date of invoice. reference to any Confidential Information); (v) any disclosure
3. CUSTOMER INFORMATION; required by applicable law (eg., pursuant to applicable CONFIDENTIALITY securities laws or legal process), provided that the Receiving Party will use reasonable efforts to give advance notice to and
3.1 Customer Information. In order to assist TAN in the cooperate with the Disclosing Party in connection with any successful provision or services and products to Customer, such disclosure; and (vi) any disclosure with the consent of the Customer shall provide to TAN all reasonably necessary Disclosing Party. information relating to Customer's organization, technology platforms, systems configurations, and business processes 4. WARRANTY which are required for Customer to provide and implement the Limited Warranty of Software, TAN warrants that when services pursuant to this Agreement as requested by TAN utilized by Customer in a manner authorized hereunder, the from tune to time. Software will conform to the functional specifications set out
3.2 Confidential Information. In the performance of or in the user documentation accompanying the Software for otherwise in connection with this Agreement, one party ninety (90) days from delivery of the Software ("Warranty ("Disclosing Party") may disclose to the other party Period"). Delivery shall be deemed to have occurred upon ("Receiving Party") certain Confidential Information of the TAN's email transmission of an FTP link to Customer Disclosing Party. "Confidential Information" means any permitting download of the Software from TAN's designated information of either party, which is not generally known to online site, or where delivered in the form of physical media, the public, whether of a technical, business or other nature F.O.B. origin. TAN's sole obligation and liability hereunder (including, but not necessarily limited to: trade secrets, know with respect to any failure to so perform will be to use how, computer program source codes, and information reasonable efforts to remedy any non-conformity which is relating to the customers, business plans, promotional and reported to TAN in writing by Customer within that Warranty marketing activities, finances and other business affairs of Period. In the event TAN is unable to remedy such non- such party); provided that the same is conspicuously marked conformity within a reasonable time using reasonable efforts, or otherwise identified as confidential or proprietary a) in respect to the Licensed Software TAN may refund to information prior to, upon or promptly after receipt by the Customer the license fee pertaining to the Licensed Software, other party; and provided further that the any software or subject to Customer's return of the Licensed Software, and software application server source code provided by TAN or this Agreement will be automatically terminated, or b) in its licensors shall be deemed to constitute Confidential respect to Hosted Software TAN may refund to Customer the Information without further designation by TAN. fees paid by the Customer to TAN for Services provided to Receiving Party will treat such Confidential Information as implement the Hosted Software, and this Agreement will be confidential and proprietary of the Disclosing Party and will automatically terminated . All warranty service will be use such Confidential Information solely for the purposes for performed at service locations designated by TAN. which it is provided by the Disclosing Party and will not Limited Warranty is void if failure of the Software has disclose such Confidential Information to any third party resulted from accident, abuse or misapplication. (other than a third party under contract whereby that third replacement Software will be warranted for the remainder of party has agreed in writing to keep the Confidential the original warranty period or 30 days, whichever is longer.
Information confidential). In addition, TAN agrees to 5. EXCLUSION OF WARRANTIES AND maintain all customer information, including customer name, LIMITATION OF LIABILITY address, email address, credit card information as Confidential Information and will not distribute, disseminate or otherwise 5.1 SPECIFIC EXCLUSION OTHER provide such information to any third party, without the prior WARRANTIES, THE EXPRESS WARRANTIES SET OUT written authorization of the City, except that TAN may use, IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER distribute, or disseminate any such information in accordance WARRANTIES, AND THERE ARE NO OTHER with its posted privacy policy and in accordance with WARRANTIES, REPRESENTATIONS, CONDITIONS, OR applicable law. GUARANTEES OF. ANY KIND WHATSOEVER
APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW
(a) Exclusions. The obligations under this paragraph will (IN CONTRACT OR TORT OR OTHERWISE) OR not apply to any: (i) use or disclosure of any information CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE pursuant to the exercise of the Receiving Party's rights under REGARDING MERCHANTABILITY, FITNESS FOR this Agreement; (i) information that is now or later becomes PURPOSE, DURABILITY, CORRESPONDENCE TO publicly available through no fault of the Receiving Party; (iii) SAMPLE, TITLE, DESIGN, CONDITION, OR QUALITY. information that is obtained by the Receiving Party from a •WITHOUT LIMITING THE ABOVE, TAN DOES NOT third party authorized to make such disclosure (other than in WARRANT THAT ANY PRODUCTS OR SERVICES connection with this Agreement) without any obligation of PROVIDED HEREUNDER WILL MEET THE 3 GENERAL TERMS
REQUIREMENTS OF CUSTOMER OR THAT THE 6.2 Export Restrictions. The Products may • include OPERATION OF PRODUCTS PROVIDED HEREUNDER encryption software or other encryption technologies that may WILL BE FREE FROM INTERRUPTION OR ERRORS.
5.2 RESTRICTIONS ON WARRANTY. TAN HAS NO
OBLIGATION TO REPAIR OR REPLACE PRODUCTS
DAMAGED BY ACCIDENT OR OTHER EXTERNAL export, re-export, or assist or facilitate in any manner the CAUSE OR THROUGH THE FAULT OR NEGLIGENCE export or re-export of, any portion of the Prodacts, as OF ANY PARTY OTHER THAN TAN. determined by Applicable Law under which the Customer operates: (i) to any country on Canada's Area Control List;
5.3 NO INDIRECT DAMAGES. WITHOUT LIMITING (il) to any country subject to UN Security Council embargo or THE GENERALITY OF SECTIONS 5.1 AND 5.4, IN NO action; (iii) contrary to Canada's Export Control List Item EVENT WILL TAN BE LIABLE TO CUSTOMER OR TO 5505; (iv) to countries subject to U.S. economic sanctions and ANY OTHER PARTY FOR INDIRECT DAMAGES OR embargoes; and (V) to persons or entities prohibited from LOSSES (IN CONTRACT OR TORT OR OTHERWISE), receiving U.S. exports or U.S.-origin items. Customer hereby INCLUDING BUT NOT LIMITED TO DAMAGES FOR represents and covenants that: (i) to the best of Customer's LOST PROFITS, LOST SAVINGS, LOST DATA, LOSS OF knowledge Customer is eligible to receive the Products under USE OF INFORMATION OR SERVICES, OR Applicable Law; (il) Customer will import, export, or re- INCIDENTAL CONSEQUENTIAL, OR SPECIAL export the Products to, or use the Products in, any country or DAMAGES. territory only in accordance with Applicable Law; and (i)
5.4 LIMITS ON LIABILITY. IF, FOR ANY REASON, Customer will ensure that Customer's Users use the Products TAN BECOMES LIABLE TO CUSTOMER OR ANY in accordance with the foregoing restrictions.
OTHER PARTY FOR DIRECT OR ANY OTHER 6.3 Third Party Software and Open Source Components.
DAMAGES FOR ANY CAUSE WHATSOEVER, AND The Software may contain open source components or other REGARDLESS OF THE FORM OF ACTION (IN third party software of which the use, modification, and CONTRACT OR TORT OR OTHERWISE), THEN: distribution is govered by license terms (including limitations (a) THE AGGREGATE • LIABILITY OF TAN TO of liability) set out in the applicable documentation (paper or CUSTOMER AND ALL OTHER PARTIES IN electronic or read me files.
CONNECTION WITH THE PRODUCTS AND THE 7. TERMINATION
SERVICES WILL BE LIMITED TO AN AMOUNT EQUAL
TO THE AMOUNT PAID TO TAN HEREUNDER, 7.1 Termination. This Agreement will terminate:
DURING THE TWO YEARS PRECEDING THE LAST (a) at the option of either party if the other party materially INCIDENT GIVING RISE TO THE LIABILITY; AND defaults in the performance or observance of any of its (b) IN ANY CASE CUSTOMER MAY NOT BRING OR obligations hereunder and fails to remedy the default within 30 INITIATE ANY ACTION OR PROCEEDING AGAINST days after receiving written notice thereof; and TAN ARISING OUT OF THIS AGREEMENT OR (b) without limiting (a), at the option of TAN if Customer RELATING TO ANY PRODUCTS OR SERVICES breaches section 2 of this Agreement, provided that the right PROVIDED HEREUNDER MORE THAN TWO YEARS of termination will be in addition to all other rights and AFTER THE RELEVANT CAUSE OF ACTION HAS remedies available to the parties for breach or default by the ARISEN. other;
5.5 SEPARATE ENFORCEABILITY. SECTIONS S.I 7.2 Suspension of Obligations. If either party should THROUGH 5.4 ARE TO BE CONSTRUED AS SEPARATE materially default in the performance or observance of any of
PROVISIONS AND WILL EACH BE INDIVIDUALLY
ENFORCEABLE.
aline pay my spend proad and there,
6. RESTRICTIONS
any or all its obligations under this Agreement, without
6.1 U.S. GOVERNMENT RESTRICTED RIGHTS. The liability, until the other party's default is remedied, provided Products are provided with restricted rights. Use, duplication, however that this section will not permit Customer to suspend or disclosure by the U.S. Government is subject to restrictions its obligation to make any payments due for Products or as set forth in subparagraph (c) (1)(il) of The Rights in Services that are unrelated to any default alleged against TAN. technical Data and Computer Software clause at DFARS
7.3 Return of Materials. In the event of termination of this Agreement for any reason whatsoever, Customer will
immediately (i) return to TAN all physical copies of Products Network, Inc., 10182 Telesis Court, San Diego, California, delivered by TAN to Customer or otherwise in Customer's United States, 92121. possession or control, or (it) if expressly pernitted by TAN, 4 GENERAL TERMS
destroy all physical copies of the Products not returned to (d) contest or do or aid others in contesting or doing TAN and delete all electronic copies of the Products from its anything which impairs the validity of any proprietary or systems and certify in writing to TAN that such actions have mtellectual property rights, title, or interest of TAN in and to all been completed. any Products; or
8. AUDIT AND MONITORING RIGHTS (e) obliterate, alter, or remove any proprietary or intellectual TAN may, upon a minimum of 24 hours written notice to property notices froin the Products in physical or electronic Customer, attend upon Customer's premises and verify that forms. the Products are being used only as permitted hereby. Such 10. INDEMNIFICATION inspections shall be limited to a maximum of twice per
calendar year, and will be perforined only during Customer's (a) TAN Indemnity. To the extent that TAN is legally liable, regular business hours and conducted in a manner as to TAN agrees to indemnify, defend and hold harmless minimize, to Customer, its officers, directors, employees and agents from Customer's business, Further, TAN may, using automatic and against all damages and costs including reasonable means which do not interfere with the use of the Products by attorneys fees) finally awarded against Customer (or finally Customer or Users other than as described in this provision, settled upon) and arising from or relating to: (i) any violation monitor at any time usage of the Products by Customer and or of law or claim of personal injury or tangible personal its Users including through monitoring of the number of property damage arising, in whole or in part, out of or in copies of any particular Module(s) in Concurrent Use. connection with the gross negligent or wilful misconduct of TAN; and (it) any claim brought against Customer by a third
9. INTELLECTUAL PROPERTY RIGHTS party alleging that the Licensed Software directly infringes 9,1 Warranty of Title. TAN warrants that it has all rights any patent, copyright, trademark or other intellectual property necessary to make the grant of license herein by having all right or misappropriates any trade secret. If any claim that right, title, and interest in and to the Products (other than Third TAN is obligated to defend has occurred or, in TAN's opinion, Party Products) or as licensee of all such rights from the owner is likely to occur, TAN may, at its option and expense either thereof. (1) obtain for Customer the right to continue to use the applicable Software, (2) replace or modify the Software so it
9.2 Intellectual Property. TAN and its licensors shall retain becomes non-infringing, without materially adversely all right, title, and interest in and to the Products and the affecting the Software's specified functionality, or (3) if (1) or results of the Services and to all software, trademarks, service (2) are not readily available after using reasonable commercial marks, logos, and trade names and other worldwide efforts or, if neither of the foregoing options is commercially proprietary rights related thereto ("Intellectual Property"). reasonable, refund a pro-rata portion of the fees paid by Customer shall use the Intellectual Property only as provided Customer based on its lost use and terminate this Agreement. by TAN, and shall not alter the Intellectual Property in any Notwithstanding the foregoing, TAN shall not indemnify, way, or act or permit action in any way that would impair defend or hold harmless Customer for any claims solely based TAN's or its licensors' rights in its Intellectual Property. on: (x) any Customer or third party intellectual property or Customer acknowledges that its use of the Intellectual software incorporated in or combined with the Licensed Property shall not create in Customer or any other person any Software where in the absence of such incorporated or right, title, or interest in or to such Intellectual Property. Any combined item, there would not have been infringement, but goodwill accruing from the use of the Intellectual Property excluding any third party software or intellectual property shall inure solely to the benefit of TAN or its licensors, as incorporated into the Software at TAN's discretion; (y) applicable. Software which has been altered or modified by Customer, by
9.3 Restrictions. Customer will not any time whether before any third party or by TAN at the request of Customer (where or after the termination of this Agreement: TAN had no discretion as to the implementation of modifications to the Software or documentation directed by (a) reverse engineer, disassemble, or decompile any Customer, where in the absence of such alteration or Products or prepare derivative works thereof; modification the Software would not be infringing; or (z) use (b) copy, transfer, display, or use the Products except as of any version of the Software with respect to which TAN has expressly authorized in this Agreement or in the applicable made available a non-infringing updated, revised or repaired documentation; subsequent version or other applicable update, patch or fix; (c) disclose, furnish, or make accessible to anyone any Indemnification Claims Procedure. Each Party's confidential information received from TAN or make any use indemnification obligations hereunder are conditioned upon thereof other than as expressly permitted under this (A) prompt written notice of the existence of a claim, suit, Agreement, which confidential information is deemed to action or proceeding (each a "Claim") for which a Party seeks include the source and executable code of the Software and all indemnification from the other Party, provided that a failure of related documentation; prompt notification shall not relieve the indemnifying Party of liability hereunder except to the extent that defenses to such 5 GENERAL TERMS
Claim are materially impaired by such failure of prompt California will apply, and (i) in the case of Québec, the laws notitication; (B) sole control over the defense or settlement of of Ontario will apply. such Claim by the Indemnifying Party; and (C) the provision of assistance by the indemnified Party at the indemnifying 11.5 Attorney Fees. In any action or suit to enforce any right Party's request to the extent reasonably necessary for the or remedy under this Agreement or to interpret any provision defense of such Claim. of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorneys' fees.
11. GENERAL 11.6 Non-Assignability. Neither party may assign its rights or
11.1 Entire Agreement. This Agreement, including all obligations arising out of this Agreement without the other referenced schedules, constitutes the party's prior written consent, except that TAN may assign this complete and exclusive statement of the agreement between Agreement in connection with any sale or security interest TAN and Customer with respect to the subject matter hereof. involving all or substantially all of its assets or any other It supersedes and replaces all oral or written RFPs, proposals, transaction in which more than fifty percent of its voting securities are transferred.
prior agreements, and other prior communications between the parties concerning the subject matter of this Agreement. This 11.7 Term and Survival. The term of this Agreement shall Agreement may not be modified or altered except by written commence on the Effective Date set out on the cover page instrument duly executed by both parties, except that TAN hereof and shall continue as set forth in Sections 18.1 os 2,5.1, may fill future purchase or other orders for further goods or as applicable, or until terminated in accordance with Section 7. services available under this Agreement and, if TAN does so, Sections 1.1, 5, 7.3, 9.2, 9.3, 10, 1I, 29.1, and 29.2 of this the provisions of this Agreement will contain the only Agreement, along with all unpaid payment obligations, will commercial terms applicable to such transaction despite such survive termination and expiration of this Agreement. purchase or other order stating otherwise: Any Addendum attached hereto shall form an integral part of this Agreement. 11.8 No Authority to Bind. Neither party shall incur any and, in the event of any inconsistency between these General obligations for or in the name of the other party, or have the Terms and any Addendum, the provisions of the Addendum authority to bind or obligate the other party. Neither party shall make, issue or authorize any statements (whether oral or shall prevail. Any 'click-wrap' agreement, terms of use, electronic acceptance or other terms and conditions which written) in contravention of the foregoing. attempt to gover the subject matter of this Agreement that 11.9 Counterparts. This Agreement may be executed in Customer might be required to acknowledge or accept before separate counterparts and delivered by facsimile or such other using a TAN product are of no force and effect as between electronic means as are available to the Parties. Such Customer and TAN and are superseded by this Agreement. counterparts taken together shall constitute one and the same
11.2 Force Majeure. Dates or times by which either party is original document. required to perform under this Agreement, excepting the 11.10 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and prevented from meeting them by causes beyond its reasonable such provisions shall remain in full force and effect. control, provided such party promptly notifies the other thereof and makes reasonable efforts to perform. 11.11 Cooperative Procurement. Upon consent by TAN, this Agreement may be used for permitted cooperative
11.3 Notices, All notices and requests in connection with this • procurement by any public or municipal body, entity, agency Agreement will be given to the respective parties in writing or institution. If so authorized, and in order to forego a related and will be deemed given as of the first business day of the entity RFP or similar competitive bidding process, the notified party following the day the notice is faxed or sent via Agreement may be extended to such other entities indicated overnight courier, providmg a hard copy acknowledgment of above for the procurement of similar products and/or services such successtul faxed notice transmission or evidence of such provided to Customer herein and at fees in accordance with couriering, as applicable, is retained. Notice may also be the Agreement unless separately negotiated between such deposited in the mails, postage pre-paid, certified other entities and TAN. Further related entities participating registered, return receipt requested, and addressed to the in a cooperative procurement process shall place their own parties as indicated on the face of this Agreement or such orders directly with TAN and will fully and independently other address of which the party gives notice in accordance dminister their use of the Agreement to include suc herewith, and receipt of any such notice will be deemed to be ontractual as those entities and TAN deem appropriat effective as of the third business day following such deposit. without direct administration froin the original Customer.
11.4 Governing Law. This Agreement and performance
hereunder will be governed by the laws of the iurisdiction in which the Customer is located as indicated on the face of this Agreement, except that (i) in the case of Louisiana, the laws of 6 GENERAL TERMS
and "login" identifier. Upon request TAN will make such information available to Customer via e-mail, fax or airmail.
SCHEDULE A: TERMS APPLICABLE ONLY TO Customer will be responsible for protecting the privacy and HOSTED SOFTWARE security of any information that Customer retrieves from TAN's servers and shall prevent any unauthorized or illegal
12. HOSTED SOFTWARE use or dissemination of such information and shall be solely TAN will provide Customer with access to hosted versions of responsible for ensuring compliance with any applicable data the products identified in the Pricing Form and associated and privacy protection laws, codes of practice, and other legal Online Services, and TAN hereby grants to Customer a obligations associated with the collection, use, and disclosure Innited, non-exclusive, non-transferable license to use the of personal information by Customer, including Hosted Software in accordance with the applicable disclosure to TAN as is necessary for TAN to provide the documentation. Services and Products to Customer, Customer and/or its clients shall exclusively own the personal data collected by
13. SUPPORT FOR HOSTED SOFTWARE TAN in connection with the Hosted Software; provided, TAN will, during all periods in respect of which Customer has however, TAN is granted a royalty-free, perpetual, non- subscribed for Hosted Software, provide Support to Custoner exclusive right and license to use, reproduce, distribute and (and, where applicable, directly to users of Customer's own adapt the collected data as is necessary for TAN to perform its services and products who access the Hosted Software) in obligations under this Agreement, including for purposes of communicating with Customer or Customer's clients as
accordance with applicable sections of the Support and
Maintenance Handbook (set forth in Exhibit 3) and Quote. necessary, fulfilling requests for products and services requested from Customer or Customer's clients, providing
14. LICENSE AND BRANDING customized content and advertising provided in connection TAN hereby grants to Customer a linited, non-exclusive, non- with the Hosted Software, conducting internal TAN research transferable license to display, reproduce, distribute, and intended to improve the products and services provided by transmit in digital form TAN's name and logo in connection TAN and its affiliates, and to provide anonymous and with promotion of the Online Services only in the manner aggregated reporting of non-individual data for internal and external clients of Customer or TAN. Any use of such data approved of by TAN during the term of this Agreement.
Customer hereby grants to TAN a limited non-transferable will conform with applicable laws related to personal privacy license to use, display, reproduce, distribute, adapt and and best practices around permissive marketing, such as use of "opt-in" and/or "opt-out" notifications and rights.
transmit in digital or printed form information provided by Customer relating to its organization, including its naine, 16. FEES FOR HOSTED SOFTWARE trademarks, service marks and logo, in connection with the
16.1 Transaction fees.
implementation and promotion of the Online Services;
provided, however, that such use shall be as necessary to (a) Customer shall pay to TAN the Hosted Software service TAN's performance under this Agreement. Customer will fees ("Service Charge(s)") as set out in the Pricing Forn make reasonable efforts to encourage adoption of the Online Services, including displaying TAN's name and logo or (b). In cases where TAN's barking or financial partners or "Powered by TAN" logo, in the forn supplied by TAN from similar service providers impose changes in processing costs time to time and in a manner approved by TAN, acting payable by TAN, TAN reserves the right to modify Service reasonably, in any mediurn used by Customer to promote its Charges. TAN shall notify Custoner at least ninety (90) days programs or services to prospective participants. in adyance of any such changes. Customer agrees to such changes unless Customer provides TAN with written obiection
15. INFORMATION SECURITY AND PRIVACY FOR to such charges within thirty (30) days from the date such HOSTED SOFTWARE change is implemented. In the event Customer notifies TAN TAN will collect inforination, including names, addresses, of its objection to the changes as noted above, Customer's sole gender, phone numbers, email addresses, birth dates, financial remedy shall be to immediately terminate the Agreement as information (for payment purposes) and other such applied to the Hosted Software, subject to payment of any fees information from individuals using the Online Services as is due prior to such notice of termination. reasonably required to provide the Services. TAN will store (c) TAN will be responsible for collecting all payments such information on a secure remote server using reasonable processed through the Online Services and all Service Charges safeguards in accordance with TAN's published online assessed by TĂN. All payments are Customer's exclusive privacy policies and in compliance with all applicable laws, property and will be sent to Customer twice a month (or as otherwise indicated in the Pricing Form) while Service
Charges shall be retained by TAN.
customer may access this information by downloading it from TAN's servers using a Customer assigned private password (d) If Customer enters transactions at fee amounts less than those actually charged to Customer's Users, thus reducing or 7 GENERAL TERMS
avoiding applicable Service Charges, such action shall (b) subject to the security requirements of Customer, remote constitute a material breach of this Agreement. dial up/internet access methods approved by TAN to allow (e) TAN shall not be responsible for processing or making TAN to remotely diagnose and correct errors in the Licensed any refunds. In the event Customer initiates a refimd, a fee Software and provide other Services. may be charged by TAN to Customer as set out in the Pricing 19,2 Customer Obligations. Without limiting any of Form. TAN may set off against user fees collected by TAN to Customer's other obligations under this Agreement, Customer the amount of any credit card charge backs and associated fees will:
applicable to user transactions and to reimburse itself for any overdue fees owed to TAN by Customer. To the extent that (a) use its best efforts to upgrade to any new Release or such funds are not available for set off, Customer shall Version of the Licensed Sofiware as soon as possible after promptly reimburse TAN for any deficiency. becoming aware of its availability;
16.2 Subscription fees. (b) ensure that at all times at least one current staff person of Customer has been fully trained on the Licensed Softivare; and Customer shall pay to TAN the Hosted Software subscription fees ("Subscription Fees") if set out in the Pricing Forn and (c) designate by written notice a single site and single person for the term of this Agreement established in Section 18 as the point of contact for telephone or other contact, which below. Customer will be invoiced for their first year site and/or person Customer may change upon 14 days prior Subscription Fees upon the first live operational use of the notice to TAN.
Hosted Software ("Go-Live Date"), with subsequent annual 20. GRANT OF LICENSES AND LIMITATIONS Subscription Fees being invoiced upon each anniversary of THEREON Go-Live Date. Payment will be made Net 30 days from
invoice date. 20.1 TAN hereby grants to Custoner a non-exclusive and non-transferable right and license, subject to this Agreement,
17. EXCLUSIVITY FOR HOSTED SOFTWARE to install and/or use the Licensed Software, in the manner and TAN will, during all periods for which Customer has for the term stated in the Pricing Form (Exhibit 1) and TAN subscribed for Hosted Software, be the sole and exclusive provided and related written user documentation as follows:
provider to Customer of the Hosted Software and Online (a) Workstation-Based Modules. In respect of each Services, or any products or services substantially similar Workstation-based core Module and cach Workstation-based thereto, for the part of Customer's organization utilizing the add-on Module, Customer may install and use each Module on Hosted Software and Online Services. Workstations to access the Enterprise Database on the
18. TERM FOR HOSTED SOFTWARE Database Server, provided that the number of copies of any particular Module in use does not exceed the number of
Unless otherwise provided in the Pricing Forn, TAN shall licenses granted to Customer therefore as set out in the Pricing provide to Customer, and Customer shall purchase from TAN, Form. the Hosted Software commencing on the Effective Date of this Agreement, and remaining in full force for a period of two (2) (b) Server-based Add-on Modules, Customer may install years from the Go-Live Date of the Hosted Software (the and use each server-based Module on as many Workstations "Initial Terin"), with automatic annual renewals (each, a as is desired by Customer, and Customer may use and permit "Renewal Term") thereafter until either party gives written use of such Modules by its clients, all without limit to the notice to. terminate the Hosted Software no less than ninety number of Users or transactions which simultaneously use any (90) days prior to the end of the Initial Tern or Renewal such Module, provided however that:
Term, as applicable.
SCHEDULE B: TERMS APPLICABLE ONLY TO
LICENSED SOFTWARE AND ASSOCIATED SUPPORT
AND MAINTENANCE SERVICES
19. ACCESS TO SYSTEM AND OTHER CUSTOMER
OBLIGATIONS
19.1 Access. Customer will provide, at no cost to TAN:
(a) subject to the security requirements of Customer, 24 hour access to Customer's system via either an always-available telephone circuit or an always available internet connection to enable TAN or its designated representative to perform any of the obligations placed upon TAN by this Agreement; and
8 GENERAL TERMS
(C) Server-based On-line (Internet) Modules, In respect of provided by TAN and Customer affixes a label to each disk, each Server-based On-line (Internet) Module, Customer may: reel, or other housing for the medium on which each physical (1) install one copy of each Module on one Internet copy is recorded setting out the same proprietary and server, provided that the number of copies of the intellectual property notices as appear on the unit of Licensed Module in use does not exceed the number of Software from which the copy is made in the same manner as licenses granted to Customer therefore as set out in those notices appear on that original copy. the Pricing Form; and 21. LICENSED SOFTWARE FEES
(Il) subject to 20(d), permit Users to access and use such 21.1 In respect of each Module, Customer shall pay to TAN all applicable Licensed Software fees listed in the Pricing Modules to access the Database Seryer via Internet
Form upon delivery (as defined in Section 2.3) of the Licensed lents connecting via a licensed Internet Server, anc Software. all such Modules together may be in Concurrent Use
not to exceed the number of licenses granted to 22. MAINTENANCE SERVICES Customer for Online Client Access Modules as set
out in the Pricing Form multiplied by twenty-five 22.1 TAN will develop new Releases and new Versions of (25). Licensed Software in accordance with the procedures and other particulars set out in the Support and Maintenance (d) Cumulative Workstation-based Modules. In respect of Handbook attached as Exhibit 3. each Cumulative Workstation-based Module, Customer may: 22.2 Provided that Customer continues to subscribe for (1) install one copy of each Module on a single Support and Maintenance in respect of a particular Licensed Workstation for each license granted to Customer Software Product, TAN will provide to Customer, either in therefore as set out in the Pricing Form; and physical forn by mail or courier or in electronic form via the Internet, new Releases and Versions and appropriate
documentation) for such Licensed Software Products on a (i) perınit Users using such licensed Workstation(s) to use such Module(s) provided, for greater certainty, when-and-if-available basis. that the Modules may be in Concurrent Use not to 23. EXCLUDED SUPPLIES AND SERVICES exceed the number of licenses granted to Customer
therefore as set out in the Pricing Form. Without limitation, the following supplies and services are excluded from Support and Maintenance:
(e) Customer hereby acknowledges that the mechanism (a) Services which are required to remedy problems that utilized by the Licensed Software to control the number of stem from changes to or defects in system configuration upon Users or Online Client Access which can simultaneousiy which the Licensed Software was initially installed; access and use. Server-based On-line (Internet) Modules is based upon the number of Users who have at any time logged (b) Services which are required to remedy problems which into Customer's computer network using their passwords, do not stem from any defect in Licensed Software; such that any User so logged into such network in a manner (c) Services which are required to remedy problems caused that would automatically enable the User to access and use by lack of training of Customer's personnel or improper such Modules will reduce by one the number of Users able to treatment or use of the Licensed Software; simultaneously access those Modules, regardless of whether or not such User is in fact accessing or using any such Module. (d) Full report customization service; Customer hereby waives any claim, and releases TAN from (e) Any and all hardware support, maintenance or any such claim and from any losses or damages Customer troubleshooting issues, except as described in section 28 suffers in relation thereto, in connection with the inability of regardless of the source of such hardware.
Users to simultaneously access such Modules where such 24. FEES FOR SUPPORT AND MAINTENANCE inability is the result of inactive logged-in Users absorbing available login access. 24.1 Support and Maintenance services begin for all Licensed
20.2 Additional Copies. Customer will not make any copies Software listed in the Pricing Form on the Support and of the Licensed Software except as necessary for the Maintenance Start Date. The cost for Support and installation permitted hereby and except for: Maintenance services is payable annually in advance and is due in its entirety thirty (30) days from date of TAN's (a) copies of each Module licensed hereunder for training delivered invoice. Customer may elect to specify a preferred and testing purposes, and alternate Support Renewal Date by so notifying TAN in (b) for backup purposes, provided that all electronic copies writing. If an alternate preferred Support Renewal Date is made include screen displays of TAN's proprietary or specified, the cost of Support and Maintenance will be intellectual property notices as recorded on the original copy prorated from the anniversary of the Support and Maintenance Start Date to the specified Support Renewal Date. Thereafter, 9 GENERAL TERMS
the Support and Maintenance fee is payable in advance on 24.7 If at any time after Customer has initially licensed any of every annual anniversary of the Support and Maintenance the Licensed Software from TAN, Customer's right to receive Start Date or, if there is a Support Renewal Date, every Support and Maintenance, or comparable services, from TAN anniversary of the Support Renewal Date (the applicable under this Agreement or a comparable agreement has lapsed anniversary being the "Support Renewal Date"). TAN will for any reason whatsoever, voluntarily or otherwise, and provide invoices to Customer for all such amounts, such Customer wishes to receive Support and Maintenance from invoices due on the later of (a) the Support and Maintenance TAN, Customer will pay to TAN, prior to re-instatement of Start Date or applicable Support Renewal Date, as applicable, Support and Maintenance services:
and (b) 30 days from the date of the invoice.
(a) a reinstatement fee equal to the greater of 50% of the
24.2 For the first year of this Agreement commencing with the current annual support fee or the sum of the unpaid support Effective Date, Support and Maintenance pricing shall be fees that would have been payable hereunder had this equal to tventy-five percent (25%) of the gross software Agreement been in force during the time in which Support and license fees. Support and Maintenance pricing for all Maintenance rights had so lapsed to the date of reinstatement, successive years shall be equal to twenty-five percent (25%) of the gross software license pricing charged by TAN for equivalent software as of the date of each such renewal year, (b) at least one additional year of Support and Maintenance provided, however, that any increase in TAN's annual Support from the date of reinstatement. and Maintenance pricing for any renewal year shall not exceed 25. TERM FOR SUPPORT AND MAINTENANCE ten percent (10% of the renewal fees charged in the prior year. Any additional software licensed to Customer by TAN 25.1 Term. TAN shall provide to Customer, and Customer will increase the total gross software license fees upon which shail purchase from TAN, Support and Maintenance for a Maintenance and Support pricing is based. TAN will provide period commencing on the Support and Maintenance Start invoices to Customer for renewal fees up to 60 days prior to Date and, subject to termination as provided herein, expiration of each termn. continuing until the following Support Renewal Date or anniversary of the Support and Maintenance Start Date, with
24.3 The Support and Maintenance fees identified in the automatic renewals for one (1) year terms thereafter until Pricing Form are applicable only upon the date of entry into either party gives written notice to terminate Support and the this Agreement, and are subject to change thereafter in Maintenance no less than ninety (90) days prior to the end of accordance with this Agreement's terins. the then-current term, provided however that the fees payable
24.4 In consideration of the Support and Maintenance in respect of the Services and the Products may be revised by provided hereunder, Customer agrees to pay TAN the fees TAN in accordance with this Agreement. described in the Pricing Form, as modified explicitly pursuant to this Agreement. In the event Customer requires Support and Maintenance for additional Licensed Software, Customer
agrees to pay TAN the additional Support and Maintenance SCHEDULE C: TERMS APPLICABLE ONLY TO fees applicable based upon the fees then in effect, prorated THIRD PARTY PRODUCTS AND SERVICES from the date of agreement to acquire such services to the 26. PURCHASE AND SALE; DELIVERY Support Renewal Date.
26.1 Purchase Commitment and Price. TAN hereby agrees
24.5 Unless the Pricing Forn indicates otherwise, the fees to sell to Customer, and Customer hereby agrees to purchase charged hereunder are applicable to Support and Maintenance from TAN, the Third Party Products listed in the Pricing Form of Licensed Software used with respect to only a single in the volumes and at the prices described therein. database of Customer data. If Customer, after entering this Agreement, places in service one or more additional databases 26.2 Delivery. TAN will ship all or any part of the Third to be used in relation to the Licensed Software, then for each Party Products to Customer as soon as reasonably practicable such additional database, an additional 25% of all gross (or, if the below-described purchase order documentation does Licensed Software fees due, exclusive of such extra database not seek immediate shipping, at the time TAN considers fees, will be payable hereunder for Support and Maintenance. reasonable in order to meet the desired delivery date Customer will notify TAN as soon as reasonably possible of described) after receipt by TAN of a purchase order from the installation or use of any such additional database(s). Customer specifying the particular Third Party Products sought, the number of such Third Party Products sought, the
24.6 TAN may terminate and suspend performance of all price payable therefore, and the desired date and location of Support and Maintenance if Customer fails to pay any past delivery thereof. Any such purchase order must, at a due TAN invoice within 30 days of written notice of such failure, in the event of any other material breach by Customer minimum, reference quantity, description and price. which remains uncured 30 days after notice thereof or if any 26.3 Changes by Customer to Delivery Schedule. of the Licensed Software ceases to be subject of a valid Following delivery by Customer of any purchase order Software License Agreement. documentation described in section 26.2, no changes by 10 GENERAL TERMS
Customer to the shipment schedule described therein will be different pricing, as mutually agreed between Customer and permitted unless TAN is notified thereof in writing at least TAN, in writing. ninety (90) days in advance of the delivery date sought in such purchase order documentation. 28. SUPPORT FOR THIRD PARTY PRODUCTS For the purpose of isolating support issues and responsibility in respect of Third Party Products and their interaction with any Products, TAN will provide initial first-tier support, to a writing. In any case, despite any indication to the contrary maximum of fifteen (15) minutes per support inquiry, for contaited in any such purchase order documentation, no terms Third Party Products, as further specified in the Support and Maintenance Handbook.
, or conditions on purchase order documentation issued by Customer, other than the information required by TAN as set Performance of third party entry-point hardware products shall forth expressly in this Agreement, will be binding upon TAN, be in accordance with Exhibit 4. Specifically, the Gatekicker nor will any such terms or conditions modity or supplement 2 is a dry contact output that has a default 1.0 second timed this Agreement in any way, notwithstanding the fact that TAN pulse. may accept or otherwise approve such purchase orders. TAN reserves the right to refuse any such purchase order for any 29. PROPRIETARY RIGHTS reason not contrary to this Agreement, including without 29.1 Third Party Proprletary Rights and Indemnity by limitation pricing differences as described in section 27.2. Customer. Customer acknowledges that any Third Party
26.5 Additional Third Party Products. Customer may Products supplied by TAN hereunder are supplied by TAN as purchase Third Party Products in addition to those listed in the a reseller thereof and that the Third Party Products are subject to the intellectual property rights of the various third party developers and/or manufacturers thereof, as applicable, including without limitation copyright, trade secret, trademark, be subject to this Agreement as though such additional Third and patent rights. Customer will maintain in confidence and Party Products had been included in the Pricing Form on the not use or disclose any and all confidential business or date of execution of Pricing Forn subject to the following: technical information connected with any Third Party Product except as specifically permitted by a party having legal control (a) the price for such additional Third Party Products is of such rights, and Customer will defend or settle any claim subject to agreement between the parties each in their own made or any suit or proceeding brought against TAN insofar absolute discretion, and as such claim, suit, or proceeding is based on an allegation that (b) TAN shall have the right to discontinue delivery of such any Third Party Product provided to Customer hereunder has additional Third Party Products upon at least ninety (90) days been installed, used, or otherwise treated by Customer or any written notice to Customer without any liability to Customer client or customer of Customer in violation of the proprietary whatsoever for such discontinuance. rights of any third party or on an allegation that Customer or any client or customer of Customer has disclosed or used any
27. CHARGES AND PAYMENTS confidential business or technical information connected with
27.1 Prices. The pricing applicable to Third Party Products is any Third Party Product, provided that TAN will notify as set out in the Pricing Form in the form finally agreed to by Customer in writing promptly after the claim, suit, or the Parties. proceeding is known to TAN and will give Customer such information and assistance as is reasonable in the
27.2 Pricing Variability. Customer acknowledges that: circumstances. Customer will have sole authority to defend or (a) the prices described in Pricing Form are applicable for settle any such claim at Customer's expense. Customer will six (6) months after the date of execution hereof, and such indemnify and hold TAN harmless from and against any and all such claims and will pay all dainages and costs finally prices are based upon Custorer taking delivery of the full agreed to be paid in settlement of such claim, suit or number of any particular Third Party Product listed in Pricing Form in a single shipment; and
29.2 Third Party Products which are Software, Customer
(b) Customer hereby agrees that after the expiry of such acknowledges that the possession, installation and use of all initial six-month period or, in case of Customer seeking, in a Third Party Products which are software shall be governed by particular shipment, delivery of less than all of the Third Party the terms of the software license(s) of the persons other than Products of a particular type listed Pricing For, the actual TAN who possess the rights to control such possession, prices may be higher. Prior to shipment of any Third Party Products that would be subject to pricing that differs from that installation and use. described in the Pricing Form, TAN will notify Customer of 30. WARRANTY any such different pricing and Customer will accept such
30.1 Warranty, TAN warrants to Customer that TAN has the right to deliver the Third Party Products subject to any 11 GENERAL TERMS
documentation accompanying such Third Party Products at the time of delivery and/or any licensing mechauisms, physical, electronic or otherwise, included in any Third Party Products that are software.
30.2 Warranties Provided by Third Party Suppliers. Third Party products are warranted by the manufacturers thereof in accordance with the warranty statements accompanying
delivery of the Third Party Products, and Customer agrees that Customer will rely solely on such Third Party Product
warranties and Customer shall make no claim against TAN on account of any warranty, express or implied, which may apply to any Third Party Product.
31. COMPLIANCE WITH APPLICABLE LAW. Both
parties agree to comply with all applicable federal, state and local law, regulations and ordinances with respect to the compliance forms are attached hereto and incorporated herein by reference.
12 LactiveNETWORK
EXHIBIT 1
PRICING FORM
The Active Network
• 10182 Telesis Court, 1st floor Date: 04/2712011
San Diego, CA, 92121, United States Expires: 07/30/2011 Customer:
David Yeskel
SANTA MONICA COMMUNITY & CULTURAL SERV 1685 MAIN STREET SANTA MONICA, SANTA MONICA, CA 90401
United States
SANTA MONICA COMMUNITY & CULTURAL SERV SANTA MONICA COMMUNITY & CULTURAL SERV City of Santa Monica- Community Recreation Division City of Santa Monica- Community Recreation Division 2600 Ocean Pk. Blvd. 2600 Ocean Pk. Blvd.
SANTA MONICA. SANTA MONICA, CA 90405 United States
Sales Representative: Jessica Walsh-Krenicki Payment Terms: 30 Net une Product 00 Ünits Qty Unit Price ¡Total Price:
ActiveNet - Membership Selling (USD) Selling (USD) !
Ea $0.00 $0.00
2.0 ActiveNet - Public Access Ea $0.00
$0.00
3.0 ActiveNet - Standard Professional Services - General Setting Training. Hr $100.00 $800.00
4.0 ActiveNet - Standard Professional Services -
Membership Training Hr 16 $100.00 $1,600.00
5.0 ActiveNet - Standard Professional Services - Public Access Training Hr 12 $100.00 $1,200.00
Tees
active NETWORK
6.0 ActiveNet - Standard Professional Services - PreProject $100.00 Planning Hr 14 $1,400.00
7.0 ActiveNet - Technical Professional Services -
Gatekicker Hr 56 $200.00 $11,200.00
8.0 ActiveNet - Daily Onsite Fee (min 3 days) Day 11
$500.00 $5,500.00
9.0 ActiveNet - Annual Transaction Minimums Yr $3,000.00 $3,000.00
10.0 ActiveNet - IDTech Weatherized Barcode/Mag Combo
Reader, Serial Ea $203.00 $1,421.00
11.0 ActiveNet - Gatekicker Ea
$115.00 $805.00
12.0 ActiveNet - Serial to IP Converter Ea
$175.00 $1,225.00
13.0 ActiveNet - Fargo Blank Cards 500 cards/box (with
magstripe) Ea $65.00 $65.00
14.0 ActiveNet - Microsoft LifeCam VX-3000 (only
compatible with WinXP and higher) Ea $50.00 $50.00
15.0 ActiveNet - Fargo DTC 1000 YMCKO CTRDG
W/CLEANING RLR-FULL COLOR 250 IMG Ea $56.00 $56.00
16.0 ActiveNet - Fargo DTC 1000 SS BASE MODEL +ISO
MAG STRIPE ENCODER Ea $1,595.00 $3,190.00
17.0 ActiveNet - APG S4000 Cash Drawer MultiPro Int -
need printer (cable incl Ea $172.00 $172.00
18.0 ActiveNet - Epson Thermal Receipt Paper Ea $85.00
$85.00
19.0 ActiveNet - Epson T-88V (Serial) Thermal Receipt
Printer Ea $322.00 $322.00
LactiveNETWORK
20.0 ActiveNet - Two Flights Not to Exceed $1,500/each Ea $1,500.00 $3,000.00 Category Subtotal
ActiveNet.Service. Consulting - Hosted Subtotal (Selling Price) $16,200.00 ActiveNet.Service. Reimbursed Travel Subtotal (Selling Price) $8,500.00 ActiveNet.SaaS.Online Transactions Subtotal (Selling Price) $3,000.00 ActiveNet.Hardware. Subtotal (Selling Price) $7,391.00
Charges $0.00
Tax
COUNTY (Rate 0% ) $0.00
COUNTY (Rate 2% ) $207.82
STATE (Rate 0%) $0.00
STATE (Rate 7.25% ) $753.35
Total (USD)
GENERAL TERMS
General
Sales taxes, where applicable, are not included and prices are in the currency of the country of installation (subject to change without notice). Hardware, operating system, 3rd party software and site preparation are not included unless Services
On-site services are exclusive of airfare.
Services hourly
On-site services billed in minimum 8 hour daily increments.
Hardware
All hardware sales are final. Hardware is covered by standard manufacturer's warranty. Equipment that is defective upon arrival will be replaced. RMA process will apply for items after support has indicated there are no alternatives. Customer must notify TAN in writing of any defective hardware within 7 days of its receipt. Any notices received after 7 days concerning defective hardware will be null and void and will not be accepted for return or replacement by TAN.
Thereafter, the standard manufacturer's warranty will apply.
Ongoing Fees
Payments entered by Customer staff through the offline interface will be assessed a 1.5% Service Charge. Non-monetary transactions will be exer from this Service Charge.
An additional credit card transaction fee of 2.25% will be applied to offline credit card payments. Refunds to credit cards will be assessed a .10 cre card refund fee.
An additional ECP (electronic check payment) processing surcharge of 1.5% will be applied to offline ECP payments. Refunds to ECP will assessed a .10 refund fee.
All offline Service Charges will be paid for by the Customer and will be absorbed in offline transaction totals.
As a part of a promotional offering each online registrant will pay the event registration fee charged by Customer and Customer will pay a Service Charge equal to 4.5% + $.50 for all transactions $1-$150, $150-$500 = 3.5% +$5.00, and $500+ = 2.5% + $10.00 with a minlmum Service Charge of $2 until Dec 31, 2012. After the promotional offer, starting Jan 1, 2013 each online registrant will pay the event registration fee charged by Customer and Customer will pay a Service Charge equal to 6.5% + $1.00 for all transactions $1-$150, $150-$500 = 3.5% +$5.50, and $500+ = 2.5% + $10.50 with a minimum Service Charge of $2. There will be $0 fees for zero dollar transactions. There are no advertising offers - Active Rewards or Active Readers - on the public access interface.
The Services Charges are fixed for the initial two-year term of this Agreement, thereafter, TAN will provide customer with 30 days notice of service charge changes. Customer agree to such change unless Customer provides TAN with written objection to such change within 30 days from the date such change is first implemented. TAN will be responsible for collecting all registration fees charged by Customer and all Service Charges assessed by TAN. All registration fees, except Service Charges, are Customer's exclusive property. Any registration fees collected by TAN will be sent to Customer twice a month and Service Charges shail be retained by TAN.
AN Shall not be responsible for processing or making any refunds. All credit card refunds processed by Customer will be assessed a $.10 fe harged by TAN to Customer. TAN may reimburse itself for any credit card chargebacks and associated fees out of registration fees collected b it. in the event such funds are not available, Customer agrees to reimburse TAN for any chargebacks or refunds. 1 VDO_DOCS #1577247 v. 1
(activeNETWORK
EXHIBIT 2
SERVICES EXHIBIT
INTENTIONALLY LEFT BLANK
2 GENERAL TERMS
EXHIBIT 3
MAINTENANCE EXHIBIT
ANNUAL SUPPORT AND MAINTENANCE FOR HOSTED CUSTOMERS
The following supplies and services are included in Support and Maintenance:
Unlimited technical support betieen 6:00an and 6:00pm Pacific Time, Monday through Friday via telephone (800.663.4991), email or web portal (http://support.theactivenetwork.com) • Unlimited phone support for Systein Down issues on a 24 hours × 7 days a week basis, provided that:
• Site has Internet enail capability for extended support hours • Support calls placed during extended support hours must be placed by an authorized contact person
• Support calls during extended support hours are for 'systen down' probleins that result iu a custoner's inability to fulfill critical business functions (i.e. those pertaining to core functionality such as processing registrations, memberships, rentals) and that have no reasonable work-around.
All other calls placed during extended support hours will be billed to the customer. • Access to the Active Network's secure customer care web portal aud online training materials • Documentation and comunication
• Installation of new software releases
• Monitoring of connectivity and critical functionality at all times (24hr x 365 days/year) by highly skilled personnel using an extensive series of automated probes fron multiple locations • Response to site-down/critical issues within one hour, with reasonable efforts to advise your organization of the current status and expected resolution time
• Service agreements between The Active Network and critical vendors essential to the continuing successful operation of the hosted environment
Scheduled maintenance to increase performance, fix defects or update applications, with reasonable efforts to notify your organization of scheduled maintenance times and potential impacts to service • Urgent maintenance (done to correct network, hardware or software issues that are likely to cause significant service disruption and that require immediate action), which may temporarily degrade service or cause outages. The Active Network may undertake urgent maintenance at any time deeined necessary and shall provide status updates to your organization as soon as possible. • Support also includes, if such assistance can be provided in 15 minutes or less:
• Limited assistance with report customization (Class) or creation of custon queries • Assistance troubleshooting Third Party products i.e. Crystal Reports, Citrix client • Assistance to isolate and/or troubleshoot difficulties resulting from sources other than Active Network products and services, such as:
• General network/internet support i.e. network access, printing, internet access • PC hardware troubleshooting
• PC setup, configuration and optimization
• Network operating system configuration and functionality • Basic Microsoft Windows functionality (i.e. Windows Explorer or Internet Explorer) • Loss of supervisor or other password
1 VDO_DOCS #1577247 v. 1
(activeNETWORK
SUPPORT ISSUE PRIORITISS AND TIMELINES
TICKET RESOLUTION TARGETS
• Resistion lar incidents are assigned one of the following levels, each with is respective standard ticket Call Standard
Priority Level Description
Completion Target
Priority 1 'atal issues that result in the customer's inability to fulfil Same business day ritical business functions (i.e. those pertaining to cor functionality such as processing registrations, memberships rentals, payments) and that have no reasonable work-aroun Priority 2 Serious issues resulting in inability to perform core busines 1 business day unctions i.e. can't download dat
Priority 3 All other issues, except those classified as D (Low); i.e. how- 2 business days to questions, reporting/reconciliation issues
Priority 4 Issues that are not time-sensitive or may be undertaken as None customer service initiatives outside the scope of this
Agreement
Guaranteed 95%
Uptime
АНТЕНАЯ SERVICES NOT INCLUDED 4
The following supplies and services are excluded from Support and Maintenance:
Services which are required to remedy problems which do not stem from any defect in the software Services which are required to remedy problems caused by lack of training of the customers' personnel • Improper treatment or use of the software
Onsite or remote training services
Full report customization service (where applicable)
Local Internet or network connectivity necessary to access your hosted application 2 LactiveNETWORK
HOLIDAY HOURS (US AND CANADA)
Holiday Open with
Closed
reduced staff
New Year's Day (January Ist)
Martin Luther King Day (3rd Monday in January)
President's Day (3rd Monday in February)
Good Friday (Friday before Easter)
Victoria Day (3rd Monday in May)
Memorial Day (Last Monday in May)
Canada Day (July Ist)
Independence Day (July 4th)
Civic holiday (1st Monday in August)
Labor Day (Ist Monday in September)
Canadian Thanksgiving/Columbus Day (2nd Monday in October) Remembrance Day/Veteran's Day (November 11th)
US Thanksgiving (4th Thursday in November)
Day after US Thanksgiving (4th Friday in November)
Christinas Day (Dec. 25th)
Boxing Day (December 26th)
New Year's Eve (December 31)
3 (active NETWORK
EXHIBIT 4
PRODUCT EXHIBIT
Gate Kicker Assembly Getting it all connected
Basic Assembly
• IP Serial Converter supplies communication with:
• Scanner
• Validates Membership
• Gate Kicker
• Connects to an Electronic Door Lock
• Receives signal through open-relay to unlock door
• RS-232 (Ethernet Cable)
• From the Router to the IP Serial Converter
IP Serial Converter
Com1 (bottom) connects to Scanner
Com 2 (top) connects to the Gate
Kicker
Scanner
ID Tech Weatherized
Barcode/Mag Combo
Reader
IP Serial Converter and Scanner
Scanner is
connected to
Com 1
Gate Kicker
• Connects to IP Serial Converter
VIE Technologies GateKicker
Gate Kicker and IP Serial
Converter
Gate Kicker connects
to Com 2
RS-232 Cable
RS-232 Connects to IP
Serial Converter and
Router
All Components Connected
Gate Kicker Facts
• The Gate Kicker is a device which "listens" via its serial port (connected to the serial/IP converter) for communication back from the entry point server computer indicating a validated card swipe.
• The Gate Kicker emits a pulse to your choice of locking mechanisms. The door area must be wired for network access and have power outlets to support 3 devices (the card scanner, serial/IP converter, and pulse emitter). • Active does not supply electrical expertise. All wiring and mounting will need to be planned and completed by the organization.
The GateKicker is a serial device that opens or closes a circuit capable of 5 Amps of power at 100 Volts. This can be used for applications such as automatic doors, alarm systems, or almost anything else that needs to be turned on or off by computer. The GateKicker is powered by a 9V DC 2.1 mm power adapter. There is a power indicator, signal indicator and open indicator.