CONTRACT 5209 Professional Services Agreement CLOSED Agreement No. 5209
PIIE "�+'1DRK PRODUCTS AND SERVICES AGREEMENT
CUnDWRIMRMATION
ORG NAND N FULL City of El Segundo ADDRESS
401 Sheldon Street
El Segundo,CA 90245
CONTACPNAmE: Stephen Robinson TELEPHONE: 310-524-2375
EtNAI[.• srabinson
@clsegundo.org FAX:
OVERVIEW OF AGREEMENT
This document the A reement consist of this cover page,the General Terms,and
� `� 8 ") p g the following Schedules and
Exhibits(check all applicable Schedules
X Schedule A: Hosted Software
X Schedule B: Licensed Software;Support and Maintenance
X Schedule C: I Third Party Products
X Exhibit 1: Pricing Form
Exhibit 2: Services Exhibit
X Exhibit 3: Maintenance Exhibit
NO"lti",E: If customer its tax exemvt.certificate must be vrovided alon with siened contract.
In consideration of the mutual promises and covenants contained in this Agreement,Customer and TAN hereby
agree to be bound by this Agreement.By signing below,Customer acknowledges and confirms that it has read the
General Terms and all attached Schedules and understands that each forms an integral part of this Agreement.
C�TOtvtt tt THE ACTIVE NETWORK, INC.('TAN")
Signature: Signature:
Name:
t� g
Si
Name: RALPH E LANPHERE Name:
Title: CITY TREASURER Title:
Date: 7/25/11 Date:
The Active Network,Inc., 10182 Telesis Court,San Diego,California 92121
Telephone:(858)964-3801,Fax:(858)964-3978
Agreement No. 5209
GENERAL TERMS
GENERAL TERMS: TERMS APPLICABLE TO ALL Customer by TAN under any circumstances unless provided
PRODUCTS AND SERVICES under a separate licensing agreement.
1. INTERPRETATION (1) "Maintenance"means the provision of error investigation
1.1 Definitions. For the purposes of interpreting this and repair services as set out in sections 22 through 25,
Agreement, the following terms will have the following Maintenance Exhibit 3,and the provision of new Versions and
Releases in respect of the Licensed Software all as more
meanings: particularly set out in the Support and Maintenance Handbook.
(a) "Agreement" means this Products and Services (m) "Module" means a single module element of Licensed
Agreement,inclusive of all Schedules. Software listed in the Pricing Form.
(b) "Concurrent Use"means use at the same moment in time (n) "Online Services" means services, such as Internet
to access a given server computer (of any kind) owned or registration,that are enabled by Hosted Software and available to
controlled by Customer. the public via the Internet.
(c) "Customer" means the legal entity other than TAN
entering this Agreement. (o) "Other Services"means Services other than Pre-Agreed
Services acquired by Customer under this Agreement or any
(d) "Database Server"means the single server computer upon further Professional Services as provided in an agreed Statement
which the Enterprise Database is resident. of Work,purchase order,or pricing form.
(e) "Effective Date"means the last date set forth on page one (p) "Payment Server"means a single server computer used by
of this Agreement. Customer to process electronic payments from its clients,having
M "Enterprise Database" means the MSDE, MS SQL a minimum configuration as set out in hardware specifications
Server, or oracle database files containing customer data and previously described to Customer as applicable to the Licensed
that are accessed by the Licensed Software.
Software to be installed and used upon it.
(q) "Pre-Agreed Services" means Services which are
(g) "Hosted Software'means computer-code and programs, pressl�isted in the Deicing FoYm as being acquired hereunder
in executable code form only,including related data files,rules, exexCustomer.
parameters and documentation, which have been created or by
licensed by TAN and are identified in the Pricing Form as (r) "Pricing Form"means the itemized pricing form attached
licensed (or sublicensed) to Customer by TAN in connection as&JiLbit I to the Agreement listing the products and services
with this Agreement,and which reside on TAN's servers and are provided by TAN to the Customer under this Agreement
accessible by Customer's staff or Users via the Internet. (s) "Products"means all Licensed Software,Hosted Software,
(h) "Internet Client"means a remote device capable of using Third Party products, and other products (including
the Internet to access selected Licensed Software on the Internet documentation)provided to Customer by or on behalf of TAN.
Server or the Enterprise Database on the Database Server via the (t) "Professional Services" means any and all types of
Internet Server, services which TAN provides, to Customer and/or to other
(i) "Internet Server"means asingle server computer used by customers of TAN,in the course of TAN's business,including
Customer which enables access to the Licensed Software by but not limited to services relating to the installation,
individuals using an Intranet or the Internet,having a minimum implementation, optimization, administration, training and
configuration as set out in hardware specifications previously troubleshooting of computers,computer software including the
described to Customer as applicable to the Licensed Software to Licensed Software, computer networks, databases, internet-
be installed and used upon it. related equipment and applications, but expressly excludes
(f) "IVR Server" means a single server computer used by Support and Maintenance. Professional Services that are not
Customer for voice-recognition and telephone-based,rather than included as part of the Pre-Agreed Services,as defined above,
computer-based, access to the Enterprise Database by shall be as set forth in any applicable and mutually agreed
Customer's clients,having a minimum configuration as set out in statement(s)of work(each a"Statement of Work"). Each such
hardware specifications previously described to Customer as Statement of Work shall,upon mutual agreement by the parties,
applicable to the Licensed Software to be installed and used become part of and incorporated by reference into this
upon it. Agreement.
(k) "Licensed Software"means computer code and programs, (u) "Related Third Party Documentation" means any end
in executable code form only,including related data files,rules, specifications, manuals, instructions, and other materials, and
parameters and documentation, which have been created or any copies of any of the foregoing,in any medium,related to the
Third Party Products and supplied by TAN to Customer with the
licensed by TAN and are identified in the Pricing Form as
licensed (or sublieensed) to Customer by TAN in connection Third Pavy Products.
with this Agreement,and/or which are in the future provided to
1
Agreement No. 5209
GENERAL TERMS
(v) "Release" means any release, update, patch, set of system configuration and functionality; basic Microsoft
revisions, or bug/permanent fix or temporary bypass solution Corporation"Windows"functionality(for example,using File
released by TAN to its customers generally during the term of Manager or Explorer), modem configuration & setup; data
this Agreement, which provides enhancements and/or error corruption due to lack of disk space;and loss of supervisor or
corrections to the then-current Version or Release,and where a other password, all as further set out in the Support and
new Version has been released and no new Release has been Maintenance Handbook.
released since the release of that Version,that Version will also (� "User"means a iron who accesses and uses an of the
constitute a Release for the purpose of determining whether products"User"
any manner whatsoever. y
Support or Maintenance is available with respect to that Version.
New Releases will be denoted by an increase to the version (gg) "Version" means a version of the Licensed Software
number to the right of the decimal point such as from providing a particular functionality,while a new Version of the
Release LI to Release 1.2. Licensed Software will provide new/additional functionality
(w) "Services"means all Professional Services, Support and and/or improvements to a previous Version.New Versions will
Maintenance, Online Services,and other services provided to be denoted by a change to the version number to the left of the
Customer by or on behalf of TAN. decimal point such as from Version 1.0 to Version 2.0.
(x) "Software"means the Licensed Software and the Hosted (hh) "Workstation"means a computer attached to a local or
Software as defined elsewhere in this section. wide-area network(including an Intranet),which accesses the
Licensed Software or Enterprise Database.
(y) "Support' means the ongoing telephone, email, web- 1,2 Headings.The headings contained in this Agreement are
based and dial-in support and problem resolution to assist inserted for convenience and do not farm a part of this
Customer in the use of the Licensed Software, the Hosted Agreement and are not intended to interpret,define or limit the
Software,and other services and products of TAN as set out in
the Support and Maintenance Handbook. scope,extent or intent of this Agreement or any provision hereof.
(z) "Support and Maintenance Handbook" means the 2, CHARGES AND PAYMENTS
documents published by"FAN setting out the applicable service 2.1 Taxes and Other Charges.Customer will pay all shipping
levels,processes,restrictions,and other particulars of Support &handling costs and,unless exempted by law and unless a valid
and Maintenance provided in respect of the Software and Other tax exemption certificate has been provided to TAN prior to
Services and Products of TAN, as amended from time to time invoicing,all applicable sales,use,withholding and excise taxes,
upon notice to Customer. and any other assessments against Customer in the nature of
(aa) "Support and Maintenance Start Date" means, for taxes,duties or charges however designated on the Services and
implementations performed by TAN, the first day of Products or their license or use, on or resulting from this
implementation of the Licensed Software or 90 days following Agreement,exclusive of taxes based on the net income of TAN.
the delivery of the Licensed Software, whichever occurs first, Sales and any other applicable taxes,duties,or any othercharges
and upon delivery of the Licensed Software for implementations in the nature of taxes and duties are not included runless
being performed by the customer or a'3'1,party vendor. specifically identified as line items in the Pricing Form.
(bb) "System Utilities" includes the following: Accounting
2.2 Currency,Unless otherwise indicated in the Pricing Form,Processes,Central Login,Log File, Copy Database,Maintain all prices are in the currency of the country in which theCustomer is located.
Database, MSDE Tool, Oracle Setup Utility, Query Tool,
System Maintenance,Upgrade Database and View Components. 2.3 Delivery.Delivery for the Products supplied by TAN under
(cc) "TAN"means The Active Network as referenced on the this Agreement will be deemed to have occurred R ,B,origin,
first page of this Agreement. which in the case of Licensed Software and/or Hosted Software
will typically be in the form of an email from TAN providing a
(dd) "Third,Party.Products"'means those hardware.,firmware FTP(i.e.rile transfer protocol)downloadable link.
and/or software products, provided to TAN by third parties, 2.4 Invoices/Payment.TRN will provide invoices to Customer
listed in the Pricing Dorm, together with all rarer manuals and for all amounts owing by Customer hereunder. Such invoices
outer documents accompanying the delivery of'tlte Third Party are to be provided as indicated in the attached Schedules or
Products, provided that the Third Party Products shall not
include software developed by TAN. Pricing Form,and subsequently due within 30 days from the date
of invoice.
(ee) "Third Party Products Support" means assistance to a, CUSTOMER INFORMATION;CONFIDENTIALITY
isolate the source of problems and/or to troubleshoot difficulties
resulting from sources other than TAN products or services,such 3.1 Customer Information. In order to assist TAN in the
as general network support (for example network access, successful provision or services and products to Customer,
printing,backup&restoration);PC hardware trouble shooting; Customer shall provide to TAN all information relating to
PC setup, configuration and optimization; network operating Customer's organization, technology platforms, systems
2
Agreement No. 5209
GENERAL TERMS
configurations,and business processes and otherwise relating to non-conformity which is reported to TAN in writing by
Customer as is reasonably requested by TAN from time to time. Customer within that Warranty Period. In the event TAN is
3.2 Confidential Information. unable to remedy such non-conformity within a reasonable time
using reasonable efforts,a)in respect to the Licensed Software
(a) In the performance of or otherwise in connection with this TAN may refund to Customer the license fee pertaining to the
Agreement,one party("Disclosing Party")may disclose to the Licensed Software,subject to Customer's return of the Licensed
other party("Receiving Party")certain Confidential Information Software,and this Agreement will be automatically terminated,
of the Disclosing'Party."Confidential Information means any or b) in respect to Hosted Software TAN may refund to
information of either party,which is not generally known to the Customer the fees paid by the Customer to TAN for Services
public, whether of a technical, business or other nature provided to implement the Hosted Software,and this Agreement
(including, but not necessarily limited to: trade secrets, know will be automatically terminated.All warranty service will be
how,computer program source codes,and information relating performed at service locations designated by TAN.This Limited
to the customers, business plans, promotional and marketing Warranty is void if failure of the Software has resulted from
activities, finances and other business affairs of such party); accident,abuse or misapplication. Any replacement Software
provided that the same is conspicuously marked or otherwise will be warranted for the remainder of the original warranty
identified as confidential or proprietary information prior to, period or 30 days,whichever is longer.
upon or promptly after receipt by the other party;and provided S. EXCLUSION OF WARRANTIES AND
further that the .any software or software application server LIMITATION OF LIABILITY
source code provided by TAN or its licensors shall be deemed to
constitute Confidential Information without further designation 5.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES.
by TAN. The Receiving Party will treat such Confidential THE EXPRESS WARRANTIES SET OUT IN THIS
Information as confidential and proprietary of the Disclosing AGREEMENT ARE IN LIEU OF ALL OTHER
Party and will use such Confidential Information solely for the WARRANTIES, AND THERE ARE NO OTHER
purposes for which it is provided by the'Disclosing Party and WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
will notdisclose such Confidential Information to any third party GUARANTEES OF ANY KIND WHATSOEVER
(other than a third party-under-contract whereby-that third party- APPLICABLE,EITHER EXPRESS OR IMPLIEDBYLAW
has agreed in writing to keep the Confidential Information (IN CONTRACT OR TORT OR OTHERWISE)OR CUSTOM,
confidential). INCLUDING,B UT NOT LIMITED TO THOSE REGARDING
(b) Exclusions. The obligations under this paragraph will not MERCHANTABILITY, FITNESS FOR PURPOSE,
apply to any:(i)use or disclosure of any information pursuant to DURABILITY,CORRESPONDENCE TO SAMPLE,TITLE,
the exercise of the Receiving Party'"s rights under this DESIGN, CONDITION, OR QUALITY. WITHOUT
Agreement; (ii) information that is now or later becomes LIMITING THE ABOVE, TAN DOES NOT WARRANT
publicly available through no fault of the Receiving Party;(iii) THAT ANY PRODUCTS OR SERVICES PROVIDED
information that is obtained by the Receiving Party from a third HEREUNDER WILL MEET THE REQUIREMENTS OF
CUSTOMER OR THAT THE OPERATION OF PRODUCTS
party authorized to make such disclosure (other than in PROVIDED HEREUNDER WILL BE FREE FROM
connection with this Agreement) without any obligation of INTERRUPTION OR ERRORS.
secrecy or confidentiality;(iv)information that is independently
developed by the Receiving Party(e.g.,without reference to any 5.2 RESTRICTIONS ON WARRANTY. TAN HAS NO
Confidential Information); (v) any disclosure required by OBLIGATION TO REPAIR OR REPLACE PRODUCTS
applicable law(e.g., pursuant to applicable securities laws or DAMAGED BY ACCIDENT OR OTHER EXTERNAL
legal process), provided that the Receiving Party will use CAUSE OR THROUGH THE FAULT OR NEGLIGENCE OF
reasonable efforts to give advance notice to and cooperate with ANY PARTY OTHER THAN TAN.
the Disclosing Party in connection with any such disclosure;and 5.3 NO INDIRECT DAMAGES. WITHOUT LIMITING
(vi)any disclosure with the consent of the Disclosing Party. THE GENERALITY OF SECTIONS 5.1 AND 5.4, IN NO
4. WARRANTY EVENT WILL TAN BE LIABLE TO CUSTOMER OR TO
Limited Warranty of Software. TAN warrants that when ANY OTHER PARTY FOR INDIRECT DAMAGES OR
utilized by Customer in a manner authorized hereunder, the LOSSES (IN CONTRACT OR TORT OR OTHERWISE),
Software will conform to the functional specifications set out in INCLUDING BUT NOT LIMITED TO DAMAGES FOR
the user documentation accompanying the Software for ninety LOST PROFITS,LOST SAVINGS,LOST DATA,LOSS OF
(90)days from delivery of the Software(`Warranty Period„ USE OF INFORMATION OR SERVICES,OR INCIDENTAL,). CONSEQUENTIAL,OR SPECIAL DAMAGES.
Delivery shall be deemed to have occurred upon TAN's email
transmission of an FTP link to Customer permitting download of 5.4 LIMITS ON LIABILITY.IF,FOR ANY REASON,TAN
the Software from TAN's designated online site, or where BECOMES LIABLE TO CUSTOMER OR ANY OTHER
delivered in the form of physical media,F.O.B.origin.TAN's PARTY FOR DIRECT OR ANY OTHER DAMAGES FOR
sole obligation and liability hereunder with respect to any failure ANY CAUSE WHATSOEVER,AND REGARDLESS OFTHE
to so perform will be to use reasonable efforts to remedy any
3
Agreement No. 5209
GENERALTERMS
FORM OF ACTION (IN CONTRACT OR TORT OR of liability) set out in the applicable documentation (paper or
OTHERWISE),THEN: electronic)or read me files.
(a) THE AGGREGATE LIABILITY OF TAN TO 7. TERMINATION
CUSTOMER AND ALL OTHER PARTIES IN CONNECTION 7,1 Termination.This Agreement will terminate:
WITH THE PRODUCTS AND THE SERVICES WILL BE
LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT (a) at the option of either party if the other party materially
PAID TO TAN HEREUNDER,DURING THE TWO YEARS defaults in the performance or observance of any of its
PRECEDING THE LAST INCIDENT GIVING RISE TO THE obligations hereunder and fails to remedy the default within 30
LIABILITY;AND days after receiving written notice thereof;and
(b) IN ANY CASE CUSTOMER MAY NOT BRING OR (b) without limiting (a), at the option of TAN if Customer
INITIATE ANY ACTION OR PROCEEDING AGAINSTTAN breaches section 2 of this Agreement,provided that the right of
ARISING OUT OF THIS AGREEMENT OR RELATING TO termination will be in addition to all other rights and remedies
ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER available to the parties for breach or default by the other.
MORE THAN TWO YEARS AFTER THE RELEVANT 7.2 Suspension of Obligations. If either party should
CAUSE OF ACTION HAS ARISEN.
materially default in the performance or observance of any of its
5.5 SEPARATE ENFORCEABILITY. SECTIONS 5.1 obligations hereunder, then,in addition to all other rights and
THROUGH 5.4 ARE TO BE CONSTRUED AS SEPARATE remedies available to the non-defaulting party, the non-
PROVISIONS AND WILL EACH BE INDIVIDUALLY defaulting party may suspend performance and observance of
ENFORCEABLE. any or all its obligations under this Agreement,without liability,
6. RESTRICTIONS until the other party's default is remedied,provided however that
this section will not permit Customer to suspend its obligation to
6.1 U.S. GOVERNMENT RESTRICTED RIGHTS. The make any payments due for Products or Services that are
Products are provided with restricted rights.Use,duplication,or unrelated to any default alleged against TAN.
disclosure by the U.S.Government is subject to restrictions as 7,3 Return of Materials.In the event of termination of this
set forth in subparagraph(c)(1)(ii)of The Rights in Technical Agreement for any reason whatsoever, Customer will
Data and Computer Software clause at DFARS 252.227-7013,or immediately(i)return to TAN all physical copies of Products
subparagraphs (c) (1) and (2) of the Commercial Computer delivered by TAN to Customer or otherwise in Customer's
Software-Restricted Rights at 48 CFR 52.227-19,as applicable.
1
»
The Manu'factu'rer is The Active Network,.Inc, 0IS2"I"elesis Possession or control, or (ii) if expressly permitted by TAN,
Court,San Diego,California,United States,nc11.0 destroy all physical copies of the Products not returned to TAN
and delete all electronic copies of the Products from its systems
6.2 Export Restrictions.The Products may include encryption and certify in writing to TAN that such actions have all been
software or other encryption technologies that may becontrolled completed.
for import,export,or purposes under the laws and regulations of S. AUDIT AND MONITORING RIGHTS
the countries and/or territories in which the Products are used
("Applicable Law"). Customer may not export, re-export, or TAN may, upon a minimum of 24 hours written notice to
assist or facilitate in any manner the export or re-export of.,any Customer,attend upon Customer's premises and verify that the
portion of the Products,as determined by Applicable Law under Products are being used only as permitted hereby. Such
which the Customer operates: (i) to any country on Canada's inspections shall be limited to a maximum of twice per calendar
Area Control .List.; (ii)to any country subject to UN Security year, and will be performed only during Customer's regular
Council embargo or action; (iii) contrary to Canada's Export business hours and conducted in a manner as to minimize,to the
Control List Item 5505; (iv) to countries subject to U.S. extent reasonable, interference with Customer's business.
economic sanctions and embargoes;and(v)to persons orentities Further, TAN may, using automatic means which do not
prohibited from receiving U.S. exports or U.S.-origin items. interfere with the use of the Products by Customer or Users other
Customer hereby represents and covenants that:(i)to the best of than as described in this provision,monitor at any time usage of
Customer's knowledge Customer is eligible to receive the the Products by Customer and or its Users including through
Products under Applicable Law; (ii)Customer will import, monitoring of the number of copies of any particular Module(s)
export,or re-export the Products to,or use the Products in,any in Concurrent Use.
country or territory only in accordance with Applicable Law;and 9. INTELLECTUAL PROPERTY RIGHTS
(iii) Customer will ensure that Customer's Users use the
Products in accordance with the foregoing restrictions. 9.1 Warranty of Title. TAN warrants that it has all rights
6.3 Third Party Software and Open Source Components. necessary to make the grant of license herein by having all right,
The Software may contain open source components or other title,and interest in and to the Products(other than Third Party
third party software of which the use, modification, and Products)or as licensee of all such rights from the owner thereof.
distribution is governed by license terms(including limitations
4
Agreement No. 5209
GENERAL TERMS
9.2 Intellectual Property.TAN and its licensors shall retain available after using reasonable commercial efforts or,if neither
all right,title,and interest in and to the Products and the results of the foregoing options is commercially reasonable,refund a
of the Services and to all software,trademarks,service marks, pro-rata portion of the fees paid by Customer based on its lost
logos,and trade names and other worldwide proprietary rights use and terminate this Agreement. Notwithstanding the
related thereto('"Intellectual Property").Customer slialI use the foregoing,TAN shall not indemnify,defend or hold harmless
Intellectual Property only as provided by TAN, and shall not Customer for any claims solely based on:(x)any Customer or
alter the Intellectual Property in any way,or act or permit action third party intellectual property or software incorporated in or
in any way that would impairTAN's or its licensors'rights in its combined with the Licensed Software where in the absence of
Intellectual Property.Customer acknowledges that its use of the such incorporated or combined item,there would not have been
Intellectual Property shall not create in Customer or any other infringement, but excluding any third party software or
person any right, title, or interest in or to such Intellectual intellectual property incorporated into the Software at TAN's
Property.Any goodwill accruing from the use of the Intellectual discretion;(y)Software which has been altered or modified by
Property shall inure solely to the benefit of TAN or its licensors, Customer, by any third party or by TAN at the request of
as applicable. Customer (where TAN had no discretion as to the
9.3 Restrictions.Customer will not any time whether before or implementation of modifications to the Software or
after the termination of this Agreement: documentation directed by Customer),where in the absence of
such alteration or modification the Software would not be
(a) reverse engineer,disassemble,or decompile any Products infringing;or(z)use of any version of the Software with respect
or prepare derivative works thereof; to which TAN has made available a non-infringing updated,
(b) copy, transfer, display, or use the Products except as revised or repaired subsequent version or other applicable
expressly authorized in this Agreement or in the applicable update,patch or fix;
documentation; (b) Customer Indemnity. Except where precluded by
(c) disclose, furnish, or make accessible to anyone any applicable law (e.g. sovereign immunity of a governmental
confidential information received from TAN or make any use entity), the Customer agrees to indemnify, defend and hold
(hereof other than as expressly permitted under this Agreement, harmless TAN, its officers, directors,--employees, affiliate
which confidential information is deemed to include the source entities,subcontractors,vendors and agents from and against all
and executable code of the Software and all related damages and costs(including reasonable attorney's'fees)finally
documentation; awarded against TAN(or finally settled upon)and arising from:
(d) contest or do or aid others in contesting or doing anything (i)any violation of law or claim of personal injury or tangible
which impairs the validity of any proprietary or intellectual personal property damage arising,in whole or in part,out of or
in connection with the gross negligent or wilful misconduct of
property rights,title,or interest of TAN in and to any Products; Customer,its employees,subcontractors oragents;(ii)any claim
or brought against TAN by a third party alleging that any Customer
(e) obliterate,alter,or remove any proprietary or intellectual provided materials provided to TAN under this Agreement
property notices from the Products in physical or electronic directly infringe any U.S. copyright or trademark or
forms. misappropriate any trade secret in existence as of the Effective
10. INDEMNIFICATION Date;or(iii)any claim brought against TAN by a third party
arising from or relating to any modification of the Licensed
(a) TAN Indemnity. TAN agrees to indemnify,defend and Software by Customer or any use of the Software other than as
hold harmless Customer,its officers,directors,employees and permitted under this Agreement. Customer shall not indemnify,
agents from and against all damages and costs (including defend or hold harmless TAN for any claims arising from:(A)
reasonable attorneys"fees)finally awarded against Customer(or any TAN intellectual property or software incorporated in or
finally settled upon).and arising from or relating to: ('i) any combined with the Customer provided materials where in the
violation of lava or claim of personal injury or tangible personal absence of such incorporated or combined item,there would not
property damage arising, in whole or in part, out of or in have been infringement;(B)Customer provided materials which
connection with the gross negligent or wilful misconduct of have been altered or modified by TAN as part of this Agreement,
TAN;and (ii)any claim brought against Customer by a third where in the absence of such alteration or modification the
party alleging that the Licensed Software directly infringes any Customer materials would not be infringing;(C)use of an any
patent,copyright,trademark or other intellectual property right version of the Customer provided materials for which Customer
or misappropriates any trade secret. If any claim that TAN is has made available an updated,revised or repaired subsequent
obligated to defend has occurred or,in TAN's opinion,is likely version; or (D) the gross negligence or wilful misconduct of
to occur,TAN may,at its option and expense either(I)obtain TAN or any of its agents,subcontractors or employees. Upon
for Customer the right to:continue to use the applicable notice of any claim of infringement or upon reasonable belief of
Software,(2)replace or modify the Software so it becomes non- the likelihood of such a claim.Customer shall have the right,at
infringing,without materially adversely affecting the Softwares its option, to: (x)-obtain the rights to continued use of the
specified functionality, or (3) if (1) or (2) are not readily Customer materials by TAN; (y) substitute other suitable,
5
Agreement No. 5209
GENERAL TERMS
functionally-equivalent,non-infringing materials;or(z)replace deposited in the mails,postage pre-paid,certified or registered,
6r modify the Customer provided materials or their design so return receipt requested,and addressed to the parties as indicated
that they are no longer'infringing. on the face of this Agreement or such other address of which the
party gives notice in accordance herewith, and receipt of any
(c) Indemnification Claims Procedure. Tach Darty".s such notice will be deemed to be effective as of the third
indemnification obligations hereunder are conditioned upon(A) business day following such deposit.
prompt written notice of the existence of a claim,suit,action or 11.4 Governing Law. This Agreement and performance
proceeding (each a "Claim") for which a Party seeks hereunder will be governed by the laws of the jurisdiction in
indemnification from the other Party,provided that a failure of which the Customer is located as indicated on the face of this
prompt notification shall not relieve the indemnifying Party of Agreement,except that(i)in the case of Louisiana,the laws of
liability hereunder except to the extent fleet defenses !o such
Claim are materially impaired by such failure of prompt apply,California will a l and(ii)in the case of Quebec,the laws of
notification;(B)sole control over the defense or settlement of Ontario will apply.
such Claim by the Indemnifying Party;and(C)the provision of 11.5 Attorney Fees.In any action or suit to enforce any right or
assistance by the indemnified Party at the indemnifying'Party"s remedy under this Agreement or to interpretany provision of this
request to the extent reasonably necessary forthe defense of such Agreement,the prevailing party shall be entitled to recover its
Claim. costs,including reasonable attorneys'fees.
11. GENERAL 11.6 Non-Assignability.Neither party may assign its rights or
obligations arising out of this Agreement without the other
11.1 'Entire Ag,reemient. This Agreement, including all party's prior written consent,except that TAN may assign this
attachments and referenced schedules,constitutes the complete Agreement in connection with any sale or security interest
and exclusive statement of the agreement between TAN and involving all or substantially all of its assets or any other
Customer with respect to the subject matter hereof.It supersedes transaction in which more than fifty percent of its voting
and replaces all oral or written RFPs, proposals, prior securities are transferred.
agreements,and other prior communications between the parties 11.7 Term and Survival. The term of this Agreement shall
concerning the subject matter of this Agreement. This
Agreement may not be modified or altered except by written commence on the Effective Date set out on Ihecover page hereof
and shall continue as set forth in Sections 18.1 or 25.1, as
instrument duly executed by both parties,except that TAN rna'y
fill fixture purchase or other orders for further goods or services applicable, or until terminated in accordance with Section 7.
available under this Agreement and, if TAN does so, the Sections 1.1, 5, 7.3, 9.2, 9.3, 10, 11, 29.1, and 29.2 of this
provisions of this Agreement, along with all unpaid payment obligations, will
p Agreement will contain the only commercial survive termination and expiration of this Agreement.
terms applicable to such transaction despite such purchase or
other order stating otherwise.Any Addendum attached hereto 11.8 No Authority to Bind. Neither party shall incur any
shall form an integral part of this Agreement and,in the event of obligations for or in the name of the other party, or have the
any inconsistency between these General Terms and any authority to bind or obligate the other party. Neither party shall
Addendum,the provisions of'the Addendum shall prevail. Any make,issue or authorize any statements(whether oral or written)
'click-wrap"agreement, terms of use,electronic acceptance or in contravention of the foregoing.
other terms and conditions which attempt to govern the subject 11.9 Counterparts. This Agreement may be executed in
matter of this Agreement that Customer might be required to
acknowledge or accept before using a TAN product are of no separate counterparts and delivered by facsimile or such other
force and effect as between Customer and TAN and are electronic means as are available to the Parties. Such
superseded by this Agreement. counterparts taken together shall constitute one and the same
11.2 Force Majeure.eure.Dates or times by which either party is original document.
required to perform under this Agreement, excepting the ii.lo _Severability._ If any_provision of_this Agreement is
payment of any fees or charges due hereunder,will be postponed held by a court of competent jurisdiction to be invalid,
automatically to the extent that any party is prevented from unenforceable, or void, the remainder of this Agreement and
meeting them by causes beyond its reasonable control,provided such provisions shall remain in full force and effect.
such party promptly notifies the other thereof and makes 11.11 Cooperative Procurement. Upon consent by TAN,
reasonable efforts to perform. 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 or
Agreement will be given to the respective parties in writing and institution. If so authorized, and in order to forego a related
will be deemed given as of the first business day of the notified entity RFP or similar competitive bidding process, the
party following the day the notice is faxed or sent via overnight Agreement may be extended to such other entities indicated
courier, providing a hard copy acknowledgment of such above for the procurement of similar products and/or services
successful faxed notice transmission or evidence of such provided to Customer herein and at fees in accordance with the
couriering, as applicable, is retained. Notice may also be Agreement unless separately negotiated between such other
6
Agreement No. 5209
GENERAL TERNS
entities and TAN. Further related entities participating in a reasonably, in any medium used by Customer to promote its
cooperative procurement process shall place their own orders programs or services to prospective participants.
directly with TAN and will fully and independently administer is. INFORMATION SECURITY AND PRIVACY FOR
their use of the Agreement to include such contractual as those HOSTED SOFTWARE
entities and TAN deem appropriate withoutdirect administration
from the original Customer. TAN will collect information, including names, addresses,
gender,phone numbers,email addresses,birth dates, financial
SCHEDULE A: TERMS APPLICABLE ONLY TO information(for payment purposes)and other such information
HOSTED SOFTWARE from individuals using the Online Services as is reasonably
required to provide the Services. TAN will store such
12. HOSTED SOFTWARE information on a secure remote server using reasonable
12.1 TAN will provide Customer with access to hosted versions safeguards in accordance with TAN's published online privacy
of the products identified in the Pricing Form and associated policies and in compliance with all applicable laws, codes of
Online Services,and TAN hereby grants to Customer limited, practice, and other legal obligations associated with the
non-exclusive, non-transferable license to use the Hosted collection, use, and disclosure of personal information.
Software in accordance with the applicable documentation. Customer may access this information by downloading it from
TAN's servers using a Customer assigned private password and
12.2 Customer elects to receive notifications of free product, "login" identifier. Upon request TAN will make such
promotional items and giveaways through the TAN program information available to Customer via e-mail, fax or airmail.
known as ActiveRewards.TAN will offer the Customer(and for Customer will be responsible for protecting the privacy and
the purposes of clarification not to your users directly) security of any information that Customer retrieves fromTAN's
opportunities for free product,promotional items and giveaways servers and shall prevent any unauthorized or illegal use or
at your event(s)or facility(ies)as applicable,the exact manner dissemination of such information andshall be solely responsible
and type of which will be mutually agreed upon by you and TAN for ensuring compliance with any applicable data and privacy
upon your acceptance of a particular program. protection laws, codes of practice, and other legal obligations
12.3 Customer understands that some TAN products may associated with the collection, use,and disclosure of personas
contain TAN or third party promotions or offers to users and information by Customer,including such disclosure to TAN as
such offers will be made to individuals on an opt-in basis. TAN is necessary for TAN to provide the Services and Products to
(and any such third party)shall be responsible for administration Customer. Customer and/or its clients shall exclusively own the
personal data collected by TAN in connection with the Hosted
and customer service issues on any such offer or promotion. Software; provided, however, TAN is granted a royalty-free,
13. SUPPORT FOR HOSTED SOFTWARE perpetual, non-exclusive right and license to use, reproduce,
TAN will,during all periods in respect of which Customer has distribute and adapt the collected data as is necessary forTAN to
perform its obligations under this Agreement, including for
subscribed for Hosted Software, provide Support to Customer putpasesofcvmmunicalingwithCustomerorCustomer'sc[ients
(and, where applicable, directly Io users of Customer's own asnecessary, fulfilling requests for products and services
services and products who access the Hosted Software) in
accordance with applicable sections of the Support and requested from Customer or Customer's clients, providing
customized content and advertising provided in connection with
Maintenance Handbook. the Hosted Software,conducting internal TAN research intended
14. LICENSE AND BRANDING to improve the products and services provided by TAN and its
affiliates,and to provide anonymous and aggregated reporting of
TAN hereby grants to Customer a limited,non-exclusive,non-
transferable license to display,reproduce,distribute,and transmit non-individual data for internal and external clients of Customer
or TAN. Any use of such data will conform with applicable
in digital form TAN's name and logo in connection with laws related to personal privacy and best practices around
promotion of the Online Services only in the manner approved of permissive marketing,such as use of"opt-in"and/or"opt-out"
by TAN during the term of this Agreement.Customer hereby notifications and rights,
grants to TAN a limited non-transferable license to use,display,
reproduce, distribute, adapt and transmit in digital or printed 16. FEES FOR HOSTED SOFTWARE
form information provided by Customer relating to its 16.1 Transaction fees.
organization,including its name,trademarks,service marks and
logo,in connection with the implementation and promotion of (a) Customer shall pay to TAN the Hosted Software service
the Online Services;provided,however,that such use shall be as fees("Service Charge(s)")as set out in the Pricing Form
necessary to TAN's performance under this Agreement. (b) In cases where TAN's banking or financial partners or
Customer will make reasonable efforts to encourage adoption of similar service providers impose changes in processing costs
the Online Services,including displaying TAN's name and logo
or"Powered by TAN"logo,in the form supplied by TAN from payable by TAN, TAN reserves the right to modify Service
time to time and in a manner approved by TAN, acting Charges.TAN shall notify Customer at least ninety(90)days in
advance of any such changes.Customer agrees to such changes
7
Agreement No. 5209
GENERAL TERMS
unless Customer provides TAN with written objection to such zZ_1_____ —
charges within thirty (30) days from the date such change is SCHEDULE R: TERMS APPLICABLE ONLY TO
implemented. In the event Customer notifies TAN of its LICENSED SOFTWARE AND ASSOCIATED SUPPORT
objection to the changes as noted above,Customer's sole remedy AND MAINTENANCE SERVICES
shall be to immediately terminate the Agmement,as applied to
the Hosted Software,subject to payment of any fees due prior to 19. ACCESS TO SYSTEM AND OTHER CUSTOMER
such notice of termination. OBLIGATIONS
W TAN will be responsible for collecting all payments 19.1 Access.Customer will provide,at no cost to TAN:
processed through the Online Services and all Service Charges
assessed by TAN. All payments are Customer's exclusive (a) subject to the security requirements of Customer,24 hour property and will be sent to Customer twice a month (or as access to Customer's system via either an always-available
otherwise indicated in the Pricing Form)while Service Charges telephone circuit or an always available Internet connection to
shall be retained by TAN, enable TAN or its designated representative to perform any of
the obligations placed upon TAN by this Agreement;and
(d) If Customer enters transactions at fee amounts less than
those actually charged to Customer's Users,thus reducing or (b) subject to the security requirements of Customer,remote
avoiding applicable Service Charges,such action shall constitute dial up/intcrnet access methods approved by TAN to allow TAN
a material breach of this Agreement. to remotely diagnose and correct errors in the Licensed Software
and provide other Services,
(e) TAN shall not be responsible for processing or making any
refunds.All refunds for payments processed will be assessed a 19.2 Customer Obligations. Without limiting any of
$.10 fee charged by Tref to Customer.TAN may set off against Customer's other obligations under this Agreement,Customer
user fees collected by TAN to the amount of any credit card will:
charge backs and associated fees applicable to user transactions (a) use its best efforts to upgrade to any new Release or
and to reimburse itself for any overdue fees owed to TAN by Version of the Licensed Software as soon as possible after
Customer.To the extent that such funds are not available for set becoming aware of its availability;
off,Customer shall promptly reimburse TAN for any deficiency.
(b) ensure that at all times at least one current staff person of
16.2 Subscription fees. Customer has been fully trained on the Licensed Software;and
Customer shall pay to TAN the Hosted Software subscription (c) designate by written notice a single site and single person
fees("Subscription Fees")set out in tile Pricing Form and for as the point of contact for telephone or other contact,which site
the term of this Agreement established in Section 18 below. and/or person Customer may change upon 14 days prior notice to
Customer will be invoiced for their first year Subscription Fees TAN.
upon the fast live operational use of the Hosted Software("Go 20.Date"), with subsequent annual Subscription Fees being Zo. GRANT OF LICENSES AND LIMITATIONS
invoiced upon each anniversary of Go-Live Date. Payment will THEREON
be made Net 30 days from invoice date. 20.1 TAN hereby grants to Customer a non-exclusive and
17. EXCLUSIVITY FOR HOSTED SOFTWARE non-transferable right and license,subject to this Agreement,to
install and/or use the Licensed Software,in the manner and for
TAN will,during all periods for which Customer has subscribed the term stated in the Pricing Form (Exhibit 1) and TAN
for Hosted Software, be the sole and exclusive provider to provided and related written user documentation as follows:
Customer of the Hosted Software and Online Services,or any
products or services substantially similar thereto,for the part of (a) Workstation-Based Modules. In respect of each
Customer's organization utilizing the Hosted Software and Workstation-based core Module and each Workstation-based
Online Services. add-on Module,Customer may install and use each Module on
Workstations to access the Enterprise Database on the Database
18. TERM FOR HOSTED SOFTWARE Server, provided that the number of copies of any particular
Unless otherwise provided in the Pricing Form, TAN shall Module in usedoes notexceed the number of licenses granted to
provide to Customer.and Customer shall purchase from TAN, Customer therefore as set out in the Pricing Form.
the Hosted Software commencing on the Effective Date of this (b) Server-based Add-on Modules.Customer may install and
Agreement,and remaining in full force for a period of three(3) use each server-based Module on as many Workstations as is
years from the Go-Live Date of the Hosted Software(the"Utial desired by Customer,and Customer may use and permit use of
Term"),with automatic renewals for three(3)year terms(each such Modules by its clients,all without limit to the number of
a"Renewal Term") thereafter until either party gives written Users or transactions which simultaneously use any such
notice to terminate(lie Hosted Software no less than twelve(12) Module,provided however that:
months prior to the end of the Initial Term or Renewal Tenn,as
applicable. (i) in respect of each TcleReg & Voice Server Module,
Customer may install one copy of each Module on one
Agreement No. 5209
GENERAL TERMS
1VR Server,provided that the number of copies of any 20.2 Additional Copies.Customer will not make any copies of
particular Module in use does not exceed the number of the Licensed Software except as necessary for the installation
licenses granted to Customer therefore as set out in the permitted hereby and except for:
Pricing Form,and all such Modules together may be in
tes copies of each Module licensed hereunder for training and
Concurrent Use not to exceed the number of licenses
granted to Customer for TeleReg Lines Modules as set testing purposes,and
out in the Pricing Form;and (b) for backup purposes, provided that all electronic copies
made include screen displays of TAN's proprietary or intellectual
(il)in respect of each Payment Server Module, such property notices as recorded on the original copy provided by
Modules may be in Concurrent Use not to exceed the TAN and Customer affixes a label to each disk,reel,or other
number of licenses granted to Customer for Point of housing for the medium on which each physical copy is recorded
Sale Modules as set out in the Pricing Form, setting out the same proprietary and intellectual property notices
as appear on the unit of Licensed Software from which the copy
(c) Server-based On-fine(Internet)Modules.In respect of is made in the same manner as those notices appear on that
each Server-based On-line(Internet)Module,Customer may: original copy.
(i) install one copy ofeach Module on one Internet server, 21. LICENSED SOFTWARE FEES
provided that the number of copies of the Module in 21.1 In respect of each Module,Customer shall pay to TAN all
use does not exceed the number of licenses granted to applicable Licensed Software fees listed in the Pricing Form
Customer therefore as set out in the Pricing Form;and upon delivery (as defined in Section 2.3) of the Licensed
(11)subject to 20(d),permit Users to access and use such Software.
Modules to access the Database Server via Internet 22. MAINTENANCE SERVICES
Clients connecting via a licensed Internet Server,and 22,1 TAN will develop new Releases and new Versions of
all such Modules together may be in Concurrent Use Licensed Software in accordance with the procedures and other
not to exceed--the- number-of-licenses-granted-to particulars set out in the Support and Maintenance Handbook
Customer for Online Client Access Modules as set out attached as
in the Pricing Form multiplied by twenty-five(25).
22.2 Provided that Customer continues to subscribe for Support
(d) Cumulative Workstation-based Modules.In respect of and Maintenance in respect of a particular Licensed Software
each Cumulative Workstation-based Module,Customer may: Product,TAN will provide to Customer,either in physical form
(i) install one copy of each Module on a single by mail or courier or in electronic form via the Internet, new
Workstation for each license granted to Customer Releases and Versions(and appropriate documentation)for such
therefore as set out in the Pricing Form;and Licensed Software Products on a when-and-if-available basis.
23. EXCLUDED SUPPLIES AND SERVICES
(il)permit Users using such licensed Workstation(s)to use Without limitation, the following supplies and services are
such Module(s)provided,for greater certainty,that the excluded from Support and Maintenance:
Modules may be in Concurrent Use not to exceed the
number of licenses granted to Customer therefore as set (a) Services which are required to remedy problems that stem
out in the Pricing Form. from changes to or defects in system configuration upon which
the Licensed Software was initially installed;
(e) Customer hereby acknowledges that the mechanism (b) Services which are required to remedy problems which do
utilized by the Licensed Software to control the number of Users not stem from any defect in Licensed Software;
or Online Client Access which can simultaneously access and
use Server-based On-line(Internet)Modules is based upon the (c) Services which are required to remedy problems caused by
number of Users who have at any time logged into Customer's lack of training of Customer's personnel or improper treatment
computer network using their passwords,such that any User so or use of the Licensed Software;
logged into such network in a manner that would automatically (d) Full report customization service;
enable the User to access and use such Modules will reduce by
one the number of Users able to simultaneously access those (e) Any and all hardware support, maintenance or
Modules, regardless of whether or not such User is in fact troubleshooting issues, except as described in section 28
accessing or using any such Module.Customer hereby waives regardless of the source of such hardware.
any claim,and releases TAN from any such claim and from any 24. FEES FOR SUPPORT AND MAINTENANCE
losses or damages Customer suffers in relation thereto, in
connection with the inability of Users to simultaneously access 24.1 Support and Maintenance services begin for all Licensed
such Modules where such inability is the result of inactive Software listed in the Pricing Form on the Support and
logged-in Users absorbing available login access. Maintenance Start Date. The cost for Support and Maintenance
9
Agreement No. 5209
GENERAL'TERMS
services is payable annually in advance and is due in its entirety TAN invoice within 30 days of written notice of such failure,in
thirty(30)days from date of TAN's delivered invoice.Customer the event of any other material breach by Customer which
may elect to specify a preferred alternate Support Renewal Date remains uncured 30 days after notice thereof or if any of the
by so notifying TAN in writing. If an alternate preferred Support Licensed Software ceases to be subject of a valid Software
Renewal Date is specified,the cost of Support and Maintenance License Agreement.
will be prorated from the anniversary of the Support and 24.7 If at any time after Customer has initially licensed any of
Maintenance Start Date to the specified Support Renewal Date. the Licensed Software from TAN,Customer's right to receive
Thereafter, the Support and Maintenance fee is payable in Support and Maintenance,or comparable services,from TAN
advance on every annual anniversary of the Support and under this Agreement or a comparable agreement has lapsed for
Maintenance Start Date or,if there is a Support Renewal Date, any reason whatsoever,voluntarily or otherwise,and Customer
every anniversary of the Support Renewal Date(the applicable
anniversary being the "Support Renewal Date"). TAN will wishes to receive Support and Maintenance from TAN,
Customer will pay
provide invoices to Customer for all such amounts,such invoices TAN,prior to re instatement of Support
due on the later of(a)the Support and Maintenance Start Date or and Maintenance services:
applicable Support Renewal Date,as applicable,and(b)30 days (a) a reinstatement fee equal to the greater of 5001a of the
from the date of the invoice. current annual support fee or the sum of the unpaid support fees
24.2 For the first year of this Agreement commencing'with the that would have been payable hereunder had this Agreement
Effective Date,Support and Maintenance pricing shall be equal been in fierce during the time in which Support and Maintenance
to twenty-five percent(25% of the rights had so lapsed to the date of reinstatement,and
y pe ) gross software license fees.
Support and Maintenance pricing for all successive years shall (b) at least one additional year of Support and Maintenance
be equal to twenty-five percent (2596) of the gross software from the date of reinstatement.
license pricing charged by TAN for equivalent software as ofthe 25. TERM FOR SUPPORT AND MAINTENANCE
date of each such renewal year, provided, however, that any
increase in TAN's annual Support and Maintenance pricing for 25.1 Term.TAN shall provide to Customer,and Customershall
any renewal year shall not exceed ten percent (10%) of the purchase from TAN, Support and Maintenance for a period
renewal fees charged in the prior year. Any additional software commencing on the Support and Maintenance Start Date and,
licensed to Customer by TAN will increase the total gross subject to termination as provided herein,continuing until the
software license fees upon which Maintenance and Support following Support Renewal Date or anniversary of the Support
pricing is based. TAN will provide invoices to Customer for and Maintenance Start Date,with automatic renewals for one(1)
renewal fees up to 60 days prior to expiration of each term. year terms thereafter until either party gives written notice to
24.3 The Support and Maintenance fees identified in the Pricing terminate Support and the Maintenance no less than ninety(90)
Form are applicable only upon the date of entry into this days prior to the end of the then-current term,provided however
Agreement,and are subject to change thereafter in accordance that the fees payable in respect of the Services and the Products
with this Agreement's terms. may be revised by TAN in accordance with this Agreement.
24.4 In consideration of the Support and Maintenance provided
hereunder,Customer agrees to pay TAN the fees described in the SCHEDULE C:TERMS APPLICABLE ONLY TO THIRD
Pricing Form,as modified explicitly pursuant to this Agreement. PARTY PRODUCTS AND SERVICES
In the event Customer requires Support and Maintenance for 26. PURCHASE AND SALE;DELIVERY
additional Licensed Software,Customer agrees to pay TAN the
additional Support and Maintenance fees applicable based upon 26.1 Purchase Commitment and Price.TAN hereby agrees to
the fees then in effect,prorated from the date of agreement to sell to Customer,and Customer hereby agrees to purchase from
acquire such services to the Support Renewal Date. TAN,the Third Party Products listed in the Pricing Form in the
24.5-Unless--the Pricing Form indicates-otherwise, the fees volumes and-at the prices-described therein.
charged hereunder are applicable to Support and Maintenanceof 26.2 Delivery.TAN will ship all or any part of the Third Party
Licensed Software used with respect to only a single database of Products to Customer as soon as reasonably practicable(or,if
Customer data. if Customer, after entering this Agreement, the below-described purchase order documentation does not seek
places in service one or more additional databases to be used in immediate shipping, at the time TAN considers reasonable in
relation to the Licensed Software,then for each such additional order to meet the desired delivery date described)after receipt by
database,an additional 25%of all gross Licensed Software fees TAN of a purchase order from Customer specifying the
due, exclusive of such extra database fees, will be payable particular Third Party Productssought,the numberofsuch Third
hereunder for Support and Maintenance.Customer will notify Party Products sought, the price payable therefore, and the
TAN as soon as reasonably possible of the installation or use of desired date and location of delivery thereof. Any such purchase
any such additional database(s), order must, at a minimum,reference quantity,description and
24.6 TAN may terminate and suspend performance of all price.
Support and Maintenance if Customer fails to pay any past due
10
Agreement No. 5209
GENERAL TERMS
76.3 Changes by Customer to Delivery Schedule.Following Pricing Form,TAN will notify Customer of any such different
delivery by Customcr of any purchase order documentation pricing and Customer will accept such different pricing, as
described in section 26.2, no changes by Customer to the mutually agreed between Customer and TAN,in writing.
shipment schedule described therein will be permitted unless 28. SUPPORT FOR THIRD PARTY PRODUCTS
TAN is notified thereof in writing at least ninety(90)days in
advance of the delivery date sought in such purchase order For the purpose of isolating support issues and responsibility in
documentation. respect of Third Party Products and their interaction with any
26.4 Acceptance of Purchase Orders. Purchase orders Products, TAN will provide initial first-tier support, to a
delivered by Customer to TAN in respect of Third Party maximum of fifteen(15)minutes per support inquiry,for Third
Products are not binding upon TAN until accepted by TAN in Party Products, as further specified in the Support and
writing. In any case, despite any indication to the contrary Maintenance Handbook.
contained in any such purchase order documentation,no terms or 29. PROPRIETARY RIGHTS
conditions on purchase order documentation issued by Customer, 29.1 Third Party Proprietary Rights and Indemnity by
other than the information required by TAN as set forth Customer. Customer acknowledges that any Third Party
expressly in this Agreement,will be binding upon TAN,nor will Products supplied by TAN hereunder are supplied by TAN as a
any such terms or conditions modify or supplement this reseller thereof and that the Third Party Products are subject to
Agreement in any way,notwithstanding the fact that TAN may the intellectual property rights of the various third party
accept orotherwise approve such purchase orders.TAN reserves developers and/or manufacturers thereof,as applicable,including
the right to refuse any such purchase order for any reason not without limitation copyright,trade secret,trademark,and patent
contrary to this Agreement,including without limitation pricing rights. Customer will maintain in confidence and not use or
differences as described in section 27.2.
disclose any and all confidential business or technical
26.5 Additional Third Party Products. Customer may information connected with any Third Party Product except as
purchase Third Party Products in addition to those listed in the specifically permitted by a party having legal control of such
Pricing Form by issuing additional purchase order rights,and Customer will defend or settle any claim made or any
documentation as described herein,provided that the supply(or suitor proceeding brought against TAN insofar as such claim,
non-supply) of such additional Third Party Products will be suit,or proceeding is based on an allegation that any Third Party
subject to this Agreement as though such additional Third Party Product provided to Customer hereunder has been installed,
Products had been included in the Pricing Form on the date of used,or otherwise treated by Customer or any client or customer
execution of Pricing Form subject to the following: of Customer in violation of the proprietary rights of any third
.(a) the price for such additional Third Party Products is subject party or on an allegation that Customer or any client or customer
to agreement between the parties each in their own absolute of Customer has disclosed or used any confidential business or
discretion,and technical information connected with any Third Party Product,
provided that TAN will notify Customer in writing promptly
(b) TAN shall have the right to discontinue delivery of such after the claim,suit, or proceeding is known to TAN and will
additional Third Party Products upon at least ninety(90)days give Customer such information and assistance as is reasonable
written notice to Customer without any liability to Customer in the circumstances. Customer will have sole authority to
whatsoever for such discontinuance. defend or settle any such claim at Customer's expense.Customer
27. CHARGES AND PAYMENTS will indemnify and hold TAN harmless from and against any and
all such claims and will pay all damages and costs finally agreed
27.1 Prices.The pricing applicable to Third Party Products is as to be paid in settlement of such claim,suit or proceeding.
set out in the Pricing Form in the form finally agreed to by the 29.2 Third Party Products which are Software. Customer
Parties, acknowledges that the possession, installation and use of all
27.2 Pricing Variability.Customer acknowledges that: Third Party Products which are software shall be governed by
(a) the prices described in Pricing Form are applicable for the terms of the software license(s) of the persons other than
six(6)months after the date of execution hereof,and such prices TAN who possess the rights to control such possession,
are based upon Customer taking delivery of the full number of installation and use.
any particular Third Party Product listed in Pricing Form in a 30. WARRANTY
single shipment;and 30.1 Warranty.TAN warrants to Customer that TAN has the
(b) Customer hereby agrees that after the expiry of such initial right to deliver the Third Party Products subject to any
six-month period or,in case of Customer seeking,in a particular documentation accompanying such Third Party Products at the
shipment,delivery of less than all of the Third Party Products of time of delivery and/or any licensing mechanisms, physical,
a particular type listed Pricing Form, the actual prices may be electronic or otherwise,included in any Third Party Products that
higher.Prior to shipment of any Third Party Products that would are software.
be subject to pricing that differs from that described in the
11
Agreement No. 5209
GENERAL.TERMS
30.2 Warranties Provided by ThirdlParty Suppliers.Third will rely solely on such Third Party Product warranties and
Party Products are wan-anted by the manufacturers thereof in Customer shall make no claim against TAN on account of any
accordance with the warranty statements accompanying delivery warranty, express or implied, which may apply to any Third
of the Third Party Products,and Customer agrees that Customer Party Product.
Agreement No. 5209
GENERAL TERMS
EXHIBIT 1
Quote 16172.1
The Active Network
10182 Telesis Court,1st floor Date: 06/1912011
San Diego,CA,92121,United States Expires: 08/1612011
to er:
Stephen Robinson
EI Segundo Parks&Recreation Department
EI Segundo,Los Angeles
s ro binson D elsegu ndo.org
Bill To: "Sial To:
Attn:Stephen Robinson Attn:Stephen Robinson
El Segundo Parks&Recreation Department EI Segundo Parks&Recreation Department
401 Sheldon Street 401 Sheldon Street
EI Segundo,Los Angeles EI Segundo,Los Angeles
US CA 90245 United States
U ',�iN' Nllll"1111"mho" m,H.,,,w uo g" ii m' III" Ili 'N II.�IV. ii 1kyrawNYVI°nt I� '�IViiii'IIIil: ,!kW iinlN''"t
. '!
Unit PTotal Pri
:e
Lrne. trod �� Units �ty Selling , Selling ,
1.0 in' Illi mim�m uii..6111111,pgT ""m�V�m h Wm, III"�"'piiiB N'if,UIUIII',x"u�itl.,7'rlll"''m."'UV° Ea 1 $0.00 $0.00
Class Hybrid-Senior Professional Services
2.0 -Conversion from Payment Server to Hr 6 $175.00 $1,050.00
Hosted Payment Server
3.0 Project Planning Fee Hr 1 $100.00 $100.00
4.0 Class Hybrid-ACH Remittance-Every 1 Ea 1 $1,500.00 $1,500.00
week
Category Subtotal
Class Hybdd.SaaS.Online Transactions Subtotal(Selling Price) $0.00
Class Hybrid,Service.Consulting-Hosted Subtotal(Selling Price) $2,650.00
Charges $0.00
Tax
COUNTY(Rate 2%) $0.00
)...
STATE(Rate 7.25%) $0.00
Totbl(USD
$2,660:00 .
z
Agreement No. 5209
GENERALTERMS
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 otherwise noted.
Services
On-site services are exclusive of airfare.
Services hourly
On-site services billed in minimum 8 hour daily increments.
pMolnct Fee :
Credit card transactions entered by a member of the Customer on behalf of a participant and processed via Hosted
Payment Server will be assessed the customary service fee charged by Active("Service Charge"}equal to 3.00%,
with a minimum Service Charge of$1.00.We may change the Service Charge at any time and You agree to such
change unless you provide us with written objection to such change within 30 days from the date such change is first
Implemented.In the event that the Customer provides Active written objection to any such Service Charge change,
and said objection Is not resolved within 30 days after said objection is delivered to Active,the Customer may
terminate the Agreement We Will be responsible for collecting all fees charged by Customer and at]Service Charges
assessed by us.All fees,except Service Charges,are your exclusive property. Active shall not be responsible for
processing or making any refunds-All credit card refunds processed Will be assessed a$0.10 fee charged by Active
to you.Active may reimburse Itself for any credit card charge backs and associated fees out of event fees collected
by It.In the event such funds are not available,you agree to reimburse Active for any charge backs or refunds.
Method of Payment:
Javoite Me Purchase Order Number:
Credit Card Visa 0 MasterCard E] American Express
Credit Card'Number: lizL116 0'4DO J3'qC) 9595' Expiration Date:
End of Quote
3
Agreement No. 5209
GENERAL TERNS
Class Maintenance Invoice
pp pFIT
Til l�lil Iuu��i��u�mIIUV II II III Iu IuI ..Ill ereeee11111Ylllllillillillillil,l llluliilllillii lill Ili dull w.�.,
�'" Ildll�lldu�llllllllllii Ilii IlYIIi lNoll, III IIIIIIIIIIIIII��IIII�III tlIJ illilYlililalJil�i�+lll,lir=
? eWON IK
lai a :cowi�n+oa INVOICE
SMD490.CAMI U VINSUM
Phcae:W40 MOp1JM4•fax:IL'S5aiS2.0221I
Ouaeorts7faulusat .. .""•'_." _.,, _..,..
Nt�•satm �.°`lr �,�.,.4cI�Yr .tk�"7�7d�rt��.e;.. �. ,
BIN9To: S 'T®»
Et" Pxks RomwallonD premn[ El PAWLS&RECREATION DEPARTMENT -
Aft P
401=PSWET
Atfi:NehN f SamSM
ElSEOUNDO.CAQON5 VmW Steres B Sepu Wer.CA OM45 Wied Snag
SaWr�Aer:sa+s..,, �.W. ,GanN, �R9remaRM�.- � Y:�, R7urOs3t TraolRmnTypr � Catrr ;
tit Rnx,wel SC41x04k wo-I RID Net 04 OC310 P4N INC COM Sari ISD
...1.00... 1Year Cd1,4dJ' . •.,,,5604p',
.,, .Vi.µ .......�,....�� "Plew•aw�IFap,'A - +"'ewl�+.^'�^w,
1 7xOBOMR ��,OCT"�a1RkSa•,SEP'„aYi � � A�Ys+owrA
2 7_mBRccrtwtentusess IM 1Year 1,44-10 _I 847,03: �
lCx'251:
i1alR 1
3 7000 ° 1x0 1 Ye= 1"44T x1' #,447x3,
R�7r-s�Tx4r0 s
4 70`2lIWt tears.
PV t.00 1 Year 144M 14470
.I ,:.7alONiMR
.,,...... ,MIa1Rh365RF ..,...______.m.....,_..._... 1. 1Yes 500-45'•,... ..d06.eS
wtol satktrr01C3wIDND
P 131^C1C1' ...__..�f,« �
a 707f0AAi �AR4d7C17010 „
A �• �.Paypw4r4 Sir:W 1.00 1 Year 1 MR7, 1,
• 11: 44743;
2_.H.-70T1QIwttR 1 7a II
,-_.—rry4arts14N^4YCT^11'x1 '3RS.9EP'•'.7d11'R, ......,. 1 Year ._.m_w......
7 4.00 _
' � P+NN'#wMAN� 1. 45' a9725A4,
10530MR �R �Q1�P4r�re LL '� .,,t�... "1 Year . 144.7711
_.......
PYrtw s7147C7'-30nIR`S! •�IRt v@
CLmss• ��
+ 44.r i
0401
Please Pay 4141%ArrwAm
Please ROI"Cl+APayment rewrloekbom; Please Remt%WeACNlnwucbmsto.,
LacL6mr9534L BerYeSofary".R9ank.WWudtsFaWX
NA
er Los Anpdes,CA SM944434 1 t�a411cR&no �aT"s Acoount Nure4w:41210=17
1Un#ftI;r•y%Baol;RoWrlpNumber:12110x240
84oe1Ga'r�"zAd�'ess: r01O'N"yC4rtl
San Diepo.CA
PLEASE BE SURE TO INCLUDE ACTIVE'S INVOICE NVMBER ON YOUR REMfTFANCE
iIIIIIIIdwYlllullll6nldldllll11111 dVlunud�nLd�� f. -
4
Agreement No. 5209
GENERAL TERMS
Payroen Ma r ?
-_ ..
� r Ea Ll'! ....M"
lieI „,ilii w il IIla i u,dii M 1 nll J AIIII I lull d., IIiI UYIiW Y u i YYuI "
P � Int
INVOICE
10"20e rAXWL IStUX
SatD'ipa CA4m21Utaa 34"
Pbme:"8604223 Opdm4 Fac p581 2-WO _
0oeseara.t'iKalus*,6ct
851 To: To:
a paft A P*"Mkn oqmun+K �4p111MAO PARKS&RECRPATKIH DEPARTM1ENr
Ates:tL>ttiQ SxnSth
I
SpliftCAt>tr2#tJMl Stun 9S�prido.CAYO.+tbUe�tedSates
..6rs"Fcs'raaxw 5ene,trMraaws lM'.. Liaal Md �'.,..,, T"e... ... 'Daw
NtartResevsst SCIt4p00l7s0 2iittR-tt ltUYaNCtiW50l a „ t1Sd
Dewaitxxi.-..mm...,.p�, .....n_.._ � 1
���'.... ,. .. ^P� S�R�... ,..., pCovetad � �aSAY:. ^wr.�r�wn� _
_ .... _.. _ .. i 0D =
LIICFSEArY4µi0rr� l�bl+atd
9 t SAO i Year 1, 1250
2 r 7ip1VMR b ' 10.00 tXe 506.46 50K
......,,.„...,.., �' mit fewY_FF� `......W.ww....� „1Ytar i2+lOA0 uso.iiyi0 -
{..�7t28iMFt ayrrrardO^�Fs •2011^ � � I -
3 A 7127i5NtR +201
......_ � .. P�0._..m.., .....„1.00.._,_, ,....... �...�.
9lwtarara6,lMor A0,
u.,...,.., P 41ta0CT�2�1901w,,.....�il._...................._. ....... .
t TaKTttai:m, 57.5
� inv+r�eT ':� 7,911.69
Pw�rat>r*mrlRarl rwarkLl -
Pkw*Pay thisAwmmt-J �atanc+Dtie: 7,SS1.61^
a»
Pteaw RwM Check Payor p t to our Lockb x Pl:W 8404 V keFACH inseucl ms 10:
Tl*Aaa lkW=k Ufrselleartsry"aBrstrYYllsr' OanN,sdA
LoMaKe 34 LtsneFlctz:1Aawez3W1PY0ri 8I fx
LnsAWdKCAQ00B44d34 Brr rAalry'sA ercttku evr 042182 7
8e sBat3cRotatinpNumber W=48
Dsn�lc,lary s Hamml TM ASM Hltvo**,W-
6rneM5sstay s Ad*ns': 10'10..'TOM COA SanDHGa.CA
PLEASE BE SURE TO{NCI.UDEACTNES MICE MAWR OHYOUR REMITTANCE
6VdIuIIhuNVnIIIpIIbuluIlwhI116jddlir;illgnlllIdblUlltl..,„d61111,udl IIII IIIIIIIIIIIIIIIIIII IIIIIIIIII III I
Agreement No. 5209
GENERAL TERMS
EXHIBIT 2
SERVICES EXHIBIT
INTENTIONALLY LEFT BLANK
G
Agreement No. 5209
GENERAL TERMS
EX&MIT 3
MAINTENANCE EXHIBIT
NETWORK SUPPORT AND MAINTENANCE HANDBOOK
A'tvMAL SUPPORT AND MAWMANCE
The following supplies and services are included in Support and Maintenance:
+ Unlimited technical support between 6:00am and 6:00pm Pacific Time,Monday through Friday via
telephone(800.663.4991),email or web portaltt :/Isunnort.tlienctivemietwork.c wa
• Unlimited phone support for System Down issues on a 24 hours x 7 days a week basis,provided that:
o Site has remote access and Internet email capability for extended support hours
a Support calls placed during extended support hours must be placed by an authorized contact
person
a Support calls during extended support hours are for`system down'problems that result in a
customer'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 and online training materials
• Regular documentation and communication
• New releases and versions of the software and free assistance in planning upgrades
• Support also includes,if such assistance can be provided in 15 minutes or less:
I o Limited assistance with report customization(Class)or creation of custom queries
o Assistance troubleshooting Third Party products i.e.Crystal Reports,SQL Server,Oracle
o Assistance to isolate and/or troubleshoot difficulties resulting from sources other than Active
Network products and services,such as:
• General network support i.e.network access,printing,backup and restoration
■ 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)
• Data corruption due to lack of disk space
• Loss of supervisor or other password
7
Agreement No. 5209
GENERALTERMS
I"' tW fi
SiliPREORITEAND TIUt�
'PICKET UsowT1oN TARGETS
• New support incidents are assigned one of the following levels, each with its respective standard ticket
resolution target:
Call Standard
Descripttott
Priority Level Completion Target
Priority I Fatal issues that result in the customer's inability to fulfill I business day V
critical business functions i.e.those pertaining to core
functionality such as processing registrations,memberships,
rentals)and that have no reasonable work-around
Priority 2 Serious issues significantly impacting se o
f s
stem but do 2 business days
Priority3 not prevent core functionsfrom being fulfilled 1
All other issues,except those classified as D(Low); ,
i.e.how- ` 3 business days
to ngtreconciliation issues
Priority 4 Issues that e
at arenrottime-sensitive or may be undertaken as None
customer service initiatives outside the scope of this
Agreement
The following supplies and services are excluded from Support and Maintenance:
• Services which are required to remedy problems that stem from changes to or defects in system
configuration upon which the software was originally installed
• 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(Class)
• Database-specific services or assistance
Agreement No. 5209
GENERAL TERMS
I
� t
The following actions will void the support and maintenance portion of the Active contract:
The use of any other application that modifies data in the database,whether created by you or otherwise
• The use or creation of any application that competes with or replaces a module that is offered by the Active
Network to work with either the application or the application's database
1101)DAY HOURS,(US AND CANADA)
Holiday r dt,c
pen with Closed
ed staff
.,
New Year's Day(January 1st) i ✓
Martin Luther King Day(3rd Monday in January) ✓
President's Day(3rd Monday in February) ✓
0
Good Friday(Friday before Easter) ✓
Victoria Day(3rd Monday in May) ✓
Memorial Day(Last Monday in May) ✓
Canada Day(July 1st) ✓
Independence Day(July 4th) ✓
Civic holiday(1st Monday in August) ✓
Labor Day(1 st Monday in September) _ ✓
Canadian Thanksgiving(Columbus Day(2nd Monday in October) ✓
Remembrance DaytVeteran's Day(November 1 lth) J
i
US Thanksgiving(4th Thursday in November) J
Day after US Thanksgiving(4th Friday in November) J i
Christmas bay(Dec.25th) ✓
Boxing Day(December 26th) ✓
9
Agreement No. 5209