HomeMy Public PortalAboutAgreement_2013-07-19_Active NetSoftware as a Service Agreement
This Software as a Service Agreement ("Agreement') Is made effective as of July 12, 2013
Agreement at that time by providing written notice within thirty (30) days following the date the
(the "Effective Date") and entered Into between The Active Network, Inc., 10182 Telesis Court,
change is implemented.
San Diego, CA 02121 ("TAN" or 'we' or "us") and City of Temple City ('You" or "your" or
d) As the seller of record, you wit] be solely responsible (ar, and will pay, any and all use,
"Client'). The parties agree as follows:
excise, sales or privilege taxes, duties, value added taxes, fees, assessments, or similar
1. Services. TAN will provide you access to Its software as a solution product ('Software') as
liabilities, chargeable by a governmental authority as a result of any Software or Service
well as services and support ("Services") related to your events, camps, licenses, classes,
provided under this Agreement. Taxes on TAN's net income are excluded.
tickets, facllftylequlpment use, transactions, sales, memberships, reservations, donations,
a) In the event you are entering into this Agreement and seeking the Services for The benefit of
and/or activities (together, "Events"). The features, services, options, and fees are described
s third -party event or organization ("third Party Beneficiary"), you agree that we may send
more fully In schadule(s) to this Agreement (each, a "Schedule"). The initial Schedule Is
registration fees collected by us direcgy to the Third Party Beneficiary.
attached hereto as Exhibit A. Each additional Schedule must be signed by both partles and will
5. Disclaimer of Warran yAlmitatlon of _IabIIiN. TAN EXPRESSLY DISCLAIMS ANY
be governed by this Agreement. You agree to provide us with certain information relating to
WARRANTY THAT THE USE OF ITS SOFTWARE OR SERVICES WILL BE
your organizallon as necessary for us to provide the Software and Services. Software provided
UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE OR SERVICES WILL
under this Agreement is deemed delivered when made available to you.
MEET YOUR REQUIREMENTS. SOFTWARE AND SERVICES ARE PROVIDED TO YOU
2. License to Intellectual PronerN7Promolion. a) TAN retains all right, Mlle, and Interest in and
ON AN "AS48" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR
to Its Software and Services and any underlying software subject to Ilia limited license
IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR
provided by this Agreement.
FITNESS FOR A PARTICULAR PURPOSE. TAN SHALL NOT BE LIABLE FOR INDIRECT,
b) TAN hereby grants to you a limited, nonexclusive, non -transferable license (1) to use the
INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR LOST PROFIT DAMAGES. TAN's TOTAL
Software and Services solely In accordance with the Schedule and this Agreement. and (if) to
AGGREGATE LIABILITY FOR ANY MATTER ARISING FROM OR RELATED TO THIS
display, reproduce, distribute, and transmit in digital form TAN's name and logo solely for 00
AGREEMENT IS LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY YOU AS
purposes set forth In this Section 2. You hereby grant to TAN a limited license to use
CONSIDERATION FOR THE SOFTWARE AND SERVICES GIVING RISE TO SUCH CLAIM
Information provided by you relating to your organization, which may Include your
DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE
organization's name, trademarks, service marks, and logo, in connection with the promotion of
CAUSE OF ACTION AROSE.
your organization or Events.
6, indemnification, a) Each party ((he "Indemnifying Party") shall defend, settle, and pay
c) You will make reasonable efforts to promote and encourage the use and availability of the
damages (including reasonable attornoys' fees) ("Damages") relating to any third party claim,
Software In connection with the promotion of your Events for which you are using the Software
demand, cause of action or proceedings (whether threatened, asserted, or filed) ("Claims")
and Services. You will Include TAN's name and logo in newsletters, printed registration forms
against the other party hereto (the "Indemnified Party') to the extent that such Claim Is based
or mailings provided by you to prospective participants (e.g., by Inserting the following
upon: (1) the Indemnilying Partys violation of any applicable law, rule, or regulation; andlor (ii)
statement in any online or print media related to your Event: 'Online Registration Powered by
provision, by the Indemnllying Party, of materials, products, or services as part of such parly's
Active,conni TAN will be the sole and exclusive provider of registration services similar to the
obligations hereunder that Infringe the Intellectual properly rights of any third parry provided
Software and Services provided to Client hereunder for each Event for which you are using
that such materials, products, or services are used In accordance with this Agreement
TAN's Software and Services during the term of this Agreement.
b) You shall further defend, settle, and pay Damages relating to Claims to the extent based on
d) You agree to receive nolificatlons regarding free product, promotional Items, and giveaways
(1) injury or death to a person or damage to property resulting from the participation In an Event
at your Events) or Iaciltty(]es), but you may opt not to receive the Items from TAN. Registrants
operated by you In connection with the Software and/or Services; and/or (11) brought by a Third
of your Events may otoHn to receive Information, items, or promolionsfdeals from TAN; we will
Party Beneficiary that relate to or arise from your negligence, wrongdoing, or lack of authority
be responsible for providing customer service for any such offers.
to act on behalf of such third parry. For the purposes of Sections 5 and 6, reference to TAN
a) Each party agrees to comply with all applicable laws, rules, and regulations relating to such
shall also Include Its suppliers and licensors.
party's obligations hereunder.
7. Term and Termination. The term of this Agreement shall be for three (3) years from the
3. Information Collection. TAN collects certain information from Individuals as pad of file
Effective Date with automatic renewals for throe (3) year terms thereafter, unless either party
registration process for your Events. You may login to our data management system to access
gives will notice to the other party to terminate this Agreement no less than twelve (12)
this information. You are responsible for the security of your login information and for the use
months prior to the expiration of the Ihen-currom term. Either party may terminate (his
or misuse of such Information by users authorized by you to use the Software and Services.
Agreement: (a) upon a material breach by the other party, if such breach is not cured within
You will Immediately notify TAN In writing if any such users are no longer authorized. Both
thirty (30) days following written notice to the breaching parry; or (b) where the other party Is
padres agree to use the collected information In compliance with (1) all applicable laws, rules
subject to a tiled bankruptcy petition or formal insolvency proceeding that Is not dismissed
and regulations, including, without limitation, those governing online privacy and use of credit
within thirty (30) days.
card data (le, using credit card information only for purposes authorized by the cardholder); (it)
8. Miscollaneous. a) Any notices required to be given under this Agreement shag be In writing
applicable Payment Card Industry Data Security Standards; and (iit) TAN's privacy policy as
sent to the address set forth below for Client or, in the case of TAN, to the address set forth
published on Its weli
above to the attention of General Counsel. Notices will be deemed received the next day if
4. EM. a) Cilent will pay the fees as more fully described in the applicable Schedule. For
gent via overnight mail or courier with confirmation of receipt, or three (3) days after deposited
registration Software, unless otherwise set forth on the applicable Schedule, TAN will collect
In the mail sent certified or registered.
registration fees charged by you from individuals who register for your Events online, for the
b) This Agreement Is non -assignable without the written consent of the other party, except that
purposes of card association rules, as a merchant of record but not a seller of record. TAN will
TAN may assign without consent: (1) Its righls to receive payments; or (fp Ilio Agreement to an
remit those sums to you, net of chargobacks and any other offsets, bi-weakly unless otherwise
affiliate or in connection with any sale of or any other transaction Involving the transfer of more
set forth in the applicable Schedule, less TAN's service fees as set forth in the applicable
than fifty percent of its voting securities or assets. Any assignment In violation of this
Schedule. TAN may suspend its performance hereunder, Including remiHing payments, in the
Agreement will be void.
event It reasonably believes [hal the Software or Services are being used for fraudulent or
c) This Agreement shall be governed by the laws of the State of California, without giving effect
other suspect purposes. If you have agreed to a minimum volume commitment in a Schedule,
to the conflict of laws provisions thereof. Neither the United Nations Convention of Contracts
TAN also has the right to charge fees owed to it by you it your organization does not meet the
for the International Sala of Goods nor the Uniform Computer Information Transactions Act
agreed volume commitments and may collect those fees by Issuing an invoice or by offsouing
shall apply to this Agreement. Any legal action or proceeding relating to this Agreement shall
the deficiency from any account balance you maintain with TAN. Any minimum volume
be Instituted only In any state or federal court In San DIegD County, California In any action or
commitment calculations will begin on the date that the Software is live for your Evenl(s). TAN
suit to enforce any right or remedy under this Agreement or to Interpret any provision of this
may also reimburse Itself for any chargobacks, returned Items or overdue foes owed by you
Agreement, the prevailing party shall be enli led to recover its costs, Including reasonable
out of the registralion fees it collects on your behalf by offsetting your account. If the Schedule
attorneys' leas.
indicates that you are paying on a subscription basis, you will be Invoiced for the first year of
d) This Agreement contains bre entire understanding of the parties regarding the subject
subscription fees upon the first live operational use of the Software ("Go -Live Date"), with
maller hereof and can only be modified or amended by a subsequent written agreement
subsequent annual subscription fees being Invoiced upon each anniversary of Go -Live Date.
executed by both parties.
Payment of subscription fees are due within thirty (30) days of your receipt of an invoice. All
a) Sections 2, 3, 5, 7, and 8 of this Agreement and any fees owed by you shall survive any
fees and prices are In United States Dollars unless otherwise speclfled.
termination or expiration of this Agreement.
b) All fees that are not directly collected by TAN as pan of registration fees will be due from
1) If any provision of this Agreement is held unenforceable by a court of competent juristliolion,
you within thirty (30) days from the end of the remittance cycle during which the fees accrued,
that provision shall be enforced to the maximum extent permissible so as to effect the Intent of
These fees are displayed on your account statement. Past due foes shall accrue interest at the
the parties, and Ilia remainder of this Agreement shall continue In full force and effect.
annual rate of len percent (10%) per annum. In the event of delay in paying a fee, you agree to
g) No waiver of any provision of this Agreement or any attachment shall be effective unloss it is
roimburse TAN for any fees Incurred In its collection efforts. TAN may suspend or deactivate
In wdfing and signed by the party against which it is sought to be enforced.
your account if your account is more than thirty (30) days past due.
h) Neither party will be deemed to be in default hereunder, or will be liable to the other, for
c) TAN reserves the right to modify the fees once per calendar year, provided that any
failure to perform any of Its obligations under this Agreement to the extent that such failure
Increase will not exceed twelve and a hall percent (12.5%). TAN shall notify Client at least
results from any event or circumstance beyond that party's reasonable control,
thirty (30) days In advance of any such change. It we modify the fees, you can ionrdnam this
Vcrerow ran 1112
Software as Service Agreement
SIGNATUMPAGE
each parry represents and warrants that. it has the necessary and full right, power, authority, and capablIfly to enter into Us Agreement and to perform Its obligations.
INC,
Date: `7 , V f Zd r ?j
CLIENT
Oily of Temple City _
(Full Legal Name)
By:
(Signalu)
Jose Pulido City Manaaer
Print Name and Title
City of Tamils City
Checks payable to
Data; li ftj
WWw 06/11112
churroughs+GIempIBCI VA
E -Mail
Phone: (6261285-2171
9701 Las Tunas
Address
Temple CIN, CA 91780
Cly, State and Zip
Event URL (Web site)
Software as a Service Agreement
7'
�z
Coalpony.Addres5
'W182 Tdo,.,le Ct., Suite 100
Created Dole
7I32013
Sail Diego, CA 92121
Quote Number
00010466
us
Expiration Date
9t"aO2013
Prepared By
Megan Fard
Contact Name
Peter KiCult
Phone
11868)653-722396035
Marra
1 (626) 2ar,-2171
E-maN
wagrin.feiri zDactivenetwork.com
Email
Fax
1 (626) 266.8192
Nit To Name
CITY OF TEMPLE CRY
Ship To Contact
Cathy BurroutmD
Bill To Contact
CamybunnUgha
Ship To Addreoq
9701 LAS TUNAS DRIVE
Bill To Addreas
9701 LASTUNAS DRIVE
TEMPLE MY, CA 51780 United States
TEMPLE ClnCA 91780 United Stihmn
vuvion: OWI I/ 12
Software as a Service Agreement
ActiveNet- (£04149 anlln:e credit card tran�actlon - % fee)
Seas
1.00
°%
USD O.OD
4.50
USD OAO
AdiveNet - (SO -3149 online credit card a-ansaction -fiat feel,
Saes
1.00
Ea
USD 1.00
1.00
USD 0.00
ActiveNet- (credit card refunds - fiat fee)
Sees
1.00
Ea
USD 0.10
0.10
USD 0.00
ActiveNei- (o€fffnc cashlchecK transscitorra - 4%fee)
Seas
1.OD
%
USD 0.00
1.50
USD 0.00
ActiveNel - (ofifliR r credit card p eceosing - lc fee)
Seas
'I.Ca
5'%
USD 0.00
8.75
USD 0.00
ActiveNet- Artivtty Registration
saes
1.00
Ea
USO 0,00
USD 0.00
AcMveNet - DYNANIAG 3 -TRK USB BLACK WR MAGNESAFE 2.0
Hardware
6.00
Ea
USD 80.00
USD 480.00
HID
ActiveNet - Daily Onsite Fee (trim 3 days)
Service
6.OD
Day
USD 500.00
USD 2,500.00 ..
ActiveNet - Facility Reran+ation
Sass
1.00
Ea
USD 0.00
USD 0.00
USD
USD
AcgveNel - Professional Service,' Conversion to ActiveNet Credit
Service
1.00
Ea
-3,300,00
-3,30040
ActiveNet - Public Access
Saes
LCC
Ea
USD 0.00
USD 0.00
ActiveNet - Pu!kl[c Access Optimization
Service
4.00
Ea
USD 0.00
USD 0.00
ActiveNet - Standard [PAD vv'PCI PED cert USB HID wWn.gensa.net
Hardware
1.00
Ea
USD 265.00
USD 266.00
Key
AcfivaNel - Standard Professional Services
Service
8.00
-fr
USD 150,00
USD 1,200.00
ActiveNet- Standard Professional Servicr.-s
Service
24.01)
Hr
USD 150.OD
USD 3,600.00
ActiveNet- Ste ndrd Professional Services
Service
8.00
Hr
USD 100.00
USD 600.00
ActiveNet - Standard Prefesacnal Service,✓-
Service
8,00
Hr
USD 150.00
USD 1,20D.00
ActiveNet- Standard Professional Services
Service
16.00
Hr
USD 550.00
USD 2,400.00
Ac.VeNel • Standard Professional Services
Service
8.W
Hr
U80 150.00
USD 1,20000
Ac'iiveNet- Standard Professional Services
Service
040
Hr
USD 160.00
USD 1,200.00
AuliveNet - Standard Profeasionml Serviocs
Service
24.00
Hr
USD 150.00
USD 3,600.00
Hardware Total UrD 745.00
Total
Price
USD 75,145.00
Wninm: 06111n2
ao ltivvire Total
Service Total
Maintenance Total
SaaS Teta]
OtherTotal
Software as a Service Agreement
USD000
USD 94,400,W
USD 0,00,
USD O.(*
USD 0.00
*Oates Tar, not included in total pdco. Solus tam„ where aplefscoble, will boadded to your mvoiee.
Quote,Atceptance InformTmst en
Stanature
painted Na Jose Pulido
Title: City Manager
Date:_.. �l�(��-4013___.
Pt's (n appllcible):
General
• Customer shall pay TAN all fees for licensed software purchased hereunder upon delivery of the software.
Delivery of licensed software shall be deemed to have occurred upon TAN's email transmission to customer's designee of an FTP link permitting
download of the software from TANs designated online site, orwhere delivered in theform of physical media, FOB Origin.
The start date for support and maintenancefor implementations performed by TAN will be the first day of implementation of the licensed
software or 90 days following the delivery of the licensed software, whichever occurs first, and upondelivery of the licensed software for
implementations performed by Customer or a third parry vendor.
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.
• Quoted prices for onsite services do not include the costs of transporting Active Network resources onsite. If onsite services are required,
economy transportation costs Ing. Alders, train fare, or mileage) will be assessed and invoiced separately. Onsite sources are billed In.
minimum,.8 hour daily Increments.
+ The software and manuals are available for download.
• 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 daysconcerning
defective hardware will be null and void and will not be accepted for return or replacement by TAN.
Implementation Flours (as noted in quote)
Activity Registration = 24 hours ($I60/hr)
Facility Reservation = 24 hours ($150/hr)
Public Access = 16 hours ($150/hr)
General Settings = 8 hours ($150/hr)
Project Planning =8 hours ($150/hr)
CLASS to ACTIVEnet Session = 6 hours ($150/hr)
Customer Management/Donations = 8 hours. ($150/hr)
Reports/Communication = 8 hours ($150/hr)
Marking Support = 4 has (no cost)
Total = 98 hours
Ongoing Fees (as noted in quote)
Cash and cheek payments entered by Client through the staff Interface will be assessed a 1..5% Service Charge. Gift Cards, Scholarships, Credit on
Account transactions are exempt from this Service Charge,
An additional ECP (electronic chock payment) Service Charge of 1.5% will be applied to offline ECP payments. Refunds to ECP will be assessed a
$0.10 refund fee.
All other staff Interface payments (credit card) will be assessed an additional Service Charge of 2.25% and any refunds of such payments will be
assessed a $6.10 refund fee. This $.10 refund fee does not apply to refunds made by cash, check, or credit of account transactions.
All offline Service Charges will be paid for by the Client and will be deducted from remittance totals or Invoiced as appropriate.
v"fl.w IHn U 1
Software as a Service Agreement
Each online registrant will pay the event registration fee charged by Client and the Cllent will absorb the Service Charge equal to 4.6%a+ $1 for all
transactions with a minimum Service Charge of $2.00. City of Temple City Is opling out of ACTIVE Advantage and Roeder Reward Programs..
TAN may change the Service Charges at any time and Client agree to such change unless Client provides TAN with written objection to such chane
within 30 flays from the date such change Is first implemented, TAN will be responsible for collecting all registration fees charged by Client and all
Service Charges assessed by TAN. All registration fees, except Service Charges, are Client's exclusive property. Any registration fees collected by
TAN will be sent to Clientbl-weeklyby check and Service Charges shall be retained by TAN. TAN shall not be responsible for processing or making
any refunds. TAN may reimburse Itself for any chargebacks and associated fees out of registration feescollectedby it, In the event such funds are
not available, Client agrees to reimburse TAN for any chargebaoks or refunds.
SUPPORT AND MAINTENANCE IIANDBOOK
SUPPORT AND MAINTPNANCE
The following supplies and services are included in Support and Maintenance:
• Unlimited technical support between 5t00am and 6:00pm Pacific Time, Monday through Friday via
telephone (800,663.499 1), entail or web portal (!i tp : Isu ort.tlieactivenetwo L .co
• Unlimited phone support for System Down issues on a 24 hours x 7 days a week basis, provided that:
o If self -hosted, the site must have remote access and Internet email capability for extended support
hours
o Support calls placed during extended support homy must be placed by an authorized contact
person
o The type of support call is an urgent issue that includes site down, revenue impacting, or customer
facing issues that have no reasonable work -around
• Access to Active's secure customer care web portal, discussion forums, knowledgebase and online training
materials
• Regular documentation and conunttnication
• Support also Includes, if such assistance can be provided in 15 minutes or less:
a Assistance troubleshooting Third Party Products (e.g, Crystal Reports, Citrix client)
o Assistance to isolateand/or troubleshoot difficulties resulting from sources other than Active
Network products and services, such as:
• General netwotidinternet support (e.g., network access, printing, internet access)
• PC hardware troubleshooting
• PC setup, configuration and optimization
• Network oporating system configuration and functionality
• Basic Microsoft Windows functionality (i.e. Windows Explorer or Internet Explorer)
• Loss of supervisor or other password
ANNDAL SUPPORT AND MAINTRNANCU FOR NON -HOSTED CUSTOMRRS
The following supplies and services are included in Support and Maintenance for non -Hosted customers:
• New releases and version of the Software and free assistance in planning upgrades
V,,,,inn: D6111112
Software as a Service Agreement
SUPPORT AND MAIN'TL+NANCC FQR ROM.p CUSTOMURS
The following supplies and services are included in Support and Maintenance:
• Installation of new Software releases
• Monitoring of connectivity and critical functionality at all times (24hr x 365 days/year) by skilled personnel
using an extensive series of automated probes from 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 Active 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 ol'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. Active may undertake urgent maintenance at any time deemed necessary and shall provide
status updates to your organization as soon as possible.
* SUPI'QRT ISSUE PRIORITIES ANDT1W, LINES:
TICKCT RESOLUTION TARGETS
• New support incidents are assigned one or die following levels, each with its respective standard ticket
resolution target:
Call
Description
Standard
PriorityLevel
Completion Target
Priority I —
Fatal issues that result in the customer's inability to fulfill
1 business Day
System Outage
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 use of the system but
2 business day
High Business
do not prevent can functions from being fulfilled (i,e.,
Impact
Customer cannot perform critical business functions;
Customer ex eriences severe sile.de radation)
Priority 3 —
All othei issues, except those classified as low; (e,g., how-to
3 business days
Medium
questions, reporting/reconciliation issues, general questions,
Business
work around options)
Impact
Priority 4 —
Issues that are not lime -sensitive or may be undertaken as
None
Low Business
customer service initiatives outside the scope of this
Ln act
Agreement i.e., feature requests or low Priority questions)
Guaranteed
For clients licensing Hosted Software
99%
U Mime
Vumon: 06111111
sonware as a aervtce Agreement
"SJ1RY10ES NQT INCLUDrD
The following supplies and services are excluded from Support and Maintenance:
• Services required to remedy problems that stem from changes to or defects in system configuration upon
which the Software was originally installed
• Services required to remedy problems which do not stem from any defect in the Software
• Services required to remody problems caused by lack of training of Client's personnel
• Improper treatment or use of the Software
• Onsite or remote Draining services
• Full report customization service
• Database -specific services or assistance
12ES'P1iICTAONS
The following actions will void Active's obligations under this Support and Maintenance Handbook:
• The use of any other application that modifies data in the database, whether created by you or otherwise
• The use or creation of third party applications that work in connection with Active's application or
application database without prior written notification and consent from Active
HOLIDAY HOURS (US AND CANADA).. ,
Holiday
Open with
reduced staff
Closed
New Year's Day (January 1 st)
✓
Martin Luther King Day (3rd Monday in January)
✓
President's Day (3rd Monday in February)
✓
Good Friday (Friday before Luster)
J
Victoria Day (3rd Monday in May)
J
Memorial Day (Last Monday in May)
✓
Canada Day (July 1st)
✓
Independence Day (July 4th)
✓
Civic holiday (I st Monday in August)
✓
Labor Day (I at Monday in September)
✓
Canadian Thanksgiving/Columbus Day (2nd Monday in October)
✓
Remembrance DayNeteran's Day (November 1 I th)
✓
US Thanksgiving (4th Thursday in November) -
✓
W.bn: 06/11/12
Software as a Servioe Aareement
Day after US Thanksgiving (4th Friday in November)
✓
Christmas Day (Dee, 25th)
✓
Boxing Day (December 26th)
✓�
New Year's Eve (December 31st)
✓
ved.n: 06111/12
THIRD PARTY PRODUCTS ADDENDUM
TO SOFTWARE ASA SERVICE AGREEMENT
This Addendum to the Software as a Service Agreement ("Addendum") is entered into by and
between City of Temple City ("Client") and The Active Network, Inc. ("TAN') as of July 12,
2013 (the "Effective Date"), Client and TAN are also singularly referenced herein as a "Party"
and collectively as the "Parties."
A. This Addendum is made part of that. certain Software as a Service Agreement dated as of
July 12, 2013 between Client and TAN (the "Agreement') that provides Software and
Services.
B. Client and TAN now desire to supplement and amend certain terms and conditions of the
Agreement, pursuant to the terms and conditions set forth in this Addendum.
NOW, THEREFORE, in consideration of the mutual covenants, recitals and promises
contained in this Addendum and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged by each Party, the Parties hereto hereby agree as
follows;
1. Changes to the Agreement. The Appendix attached hereto is hereby incorporated by
reference into the Agreement.
2. Agreement Remains in Effect. Except as expressly described herein, the Agreement
remains in full effect according to its terms, The Agreement and this Addendum, as well as any
exhibits attached to each respectively, shall be read in concert to the fullest extent possible and
be considered collectively as a singular agreement. In the event any of the terms and conditions
of the Agreement conflict with the terms and conditions of this Addendum, the terms and
conditions of this Addendum shall prevail only as to the subject matter expressly stated herein.
General.
3.1 Miscellaneous. If any one or more of the provisions of this Addendum is held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Addendum, and this Addendum shall be construed as
if such invalid, illegal or unenforceable provision had never been contained herein. The captions
used in this Addendum are for convenience and reference only and will not be deemed to limit,
characterize or in any way affect any other provision contained herein. All provisions of this
Addendum will be enforced and construed as if no caption had been used. This Addendum will
be assigned automatically and only upon the assignment of the Agreement according to its terms.
3.2 Entire Agreement. The Agreement, this Addendum and any exhibits attached to
each respectively constitute the entire agreement between the Parties with respect to the subject
matter thereof and supersede all previous negotiations, comments and writings by the Parties
with respect to the subject matter referenced in each. The Agreement and this Addendum may
be changed only by a written agreement signed by both Parties. No oral agreement or
conversation with any officer, agent or employee of Client, either before or after the execution of
the Agreement or this Addendum, shall affect, alter or modify the obligations hereunder,
Version 04.03.13
33 Counterparts and Facsimile: This Addendum may be executed by the Parties in
separate counterparts, which counterparts when combined are hereby deemed to constitute as
single document, and the Parties may execute this Addendum by facsimile and such facsimile(s)
will have the same effect as an originally executed document.
The Parties hereto have executed this Addendum effective as of the Effective Date.
TAN:
by its authorized signatory
Per:
Name:t`
Title:
Date:
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CLIENT:
by its authorized signatory
Per:
Name: Jose Pulido
Title: City Manager
Pate:Z�l t17,0d3
APPENDIX: TERMS APPLICABLE ONLY TO THIRD
PARTY PRODUCTS AND SERVICES
1. PURCHASE AND SALE; DELIVERY
1.1 Purchase Commitment and Price. TAN hereby
agrees to sell to Client, and Client hereby agrees to purchase
from TAN, the Third Party Products listed in the applicable
Schedule in the volumes and at the prices described therein.
For purposes of this Addendum, "Third Party Products"
means (hose hardware, firmware and/or software products,
provided to TAN by third parties, listed in the Pricing Form,
together with all user manuals and other documents
accompanying the delivery of the Third Party Products,
provided that the Third Party Products shall not include
software developed by TAN.
1.2 Delivery. TAN will ship all or any part of the Third
Party Products to Client as soon as reasonably practicable
(or, if the below -described purchase order documentation
does not seek immediate shipping, at die time TAN
considers reasonable in order to meet the desired delivery
date described) after receipt by TAN of a purchase order
from Client specifying the particular Third Party Products
sought, the number of such Third Party Products sought, the
price payable therefore, and the desired date and location of
delivery thereof. Any such purchase order must, at a
minimum, reference quantity, description and price.
1.3 Changes by Client to Delivery Schedule. Following
delivery by Client of any purchase order documentation
described in section 1.2, no changes by Client to the
shipment schedule described therein will be permitted
unless TAN is notified thereof in writing at least ninety (90)
days in advance of the delivery date sought in such purchase
order documentation.
1.4 Acceptance of Purchase Orders. Purchase orders
delivered by Client to TAN in respect of Third Party
Products are not binding upon TAN until accepted by TAN
in writing. In any case, despite any indication to the contrary
contained in any such purchase order documentation, no
terms or conditions on purchase order documentation issued
by Client, other than the information required by TAN as set
forth expressly in this Agreement, will be binding upon
TAN, nor will any such terms or conditions modify or
supplement this Agreement in any way, notwithstanding the
fact that TAN may accept or otherwise approve such
purchase orders. TAN reserves the right to refuse any such
purchase order for any reason not contrary to this
Agreement, including without limitation pricing differences
as described in section 2.2.
1.5 Additional Third Party Products. Client may
purchase Third Party Products in addition to those listed in
the Schedule by issuing additional purchase order
documentation as described herein, provided that the supply
(or non -supply) of such additional Third Party Products will
be subject to this Agreement as though such additional
Third Party Products had been included in the Schedule on
the date of execution of Schedule subject to the following:
(a) the price for such additional Third Party Products is
subject to agreement between the pities each in their own
absolute discretion, and
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(b) TAN shall have the right to discontinue delivery of such
additional Third Party Products upon at least ninety (90) days
written notice to Client without any liability to Client
whatsoever for such discontinuance,
2. CHARGES AND PAYMENTS
2.1 Prices, The pricing applicable to Third Party Products
is as set cul in the Schedule in the form finally agreed to by
the Parties.
2.2 Pricing Variability. Client acknowledges that:
(a) the prices described in the Schedule are applicable for
six (6) months after the date of execution hereof, and such
prices are based upon Client taking delivery of the full number
of any particular Third Party Product listed in the Schedule in
a single shipment; and
(b) Client hereby agrees that after the expiry of such initial
six-month period or, in case of Client seeking, in a particular
shipment, delivery of less than all of die Third Party Products
of a particular type listed the Schedule, the actual prices may
be higher. Prior to shipment of any Third Party Products that
would be subject to pricing that differs from that described in
the Schedule, TAN will notify Client of any such different
pricing and Client will accept such different pricing, as
mutually agreed between Client and TAN, in writing.
3. 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
maximum of fifteen (15) minutes per support inquiry.
4, PROPRIETARY RIGHTS
4.1 Third Party Proprietary Rights and Indemnity by
Client. Client acknowledges that any Third Party Products
supplied by TAN hereunder are supplied by TAN as 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, and patent rights, Client will maintain in
confidence and not use or disclose any and all confidential
business or technical information connected with any Third
Party Product except as specifically permitted by a party
having legal control of such rights, and Client will defend or
settle any claim made or any suit or proceeding brought
against TAN insofar as such claim, suit, or proceeding is
based on an allegation that any Third Party Product
provided to Client hereunder has been installed, used, or
otherwise treated by Client or any client or customer of
Client in violation of the proprietary rights of any third party
or on can allegation that Client or any client or customer of
Client has disclosed or used any confidential business or
technical information connected with any Third Party
Product, provided that TAN will notify Client in writing
promptly after the claim, sail, or proceeding is known to
TAN and will give Client such information and assistance
as is reasonable in the circumstances. Client will have sole
authority to defend or settle any such claim at Client's
expense. Client will indemnify and hold TAN harmless
from and against any and all such claims and will pay all
damages and costs finally agreed to be paid in settlement of
such claim, suit or proceeding,
4.2 Third Party Products which are Software. Client
acknowledges that the possession, installation and use of all
Third Party Products which are software shall be governed
by the terms of the software license(s) of the persons other
than TAN who possess the rights to control such possession,
installation and use.
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5.1 Warranty. TAN warrants to Client that TAN has the
right to deliver the Third Party Products subject to any
documentation accompanying such Third Party Products at
the time of delivery and/or any licensing mechanisms,
physical, electronic or otherwise, included in any Third
Party Products that are software.
5.2 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
Client agrees that Client will rely solely on such Third Party
Product warranties and Client shall make no claim against
TAN on account of any warranty, express or implied, which
may apply to any Third Party Product,
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