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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: Version 04.03, i3 "l. ra, 2y.'13 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 Version 04.03.13 (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. WEIMI:\t� .121_M'1 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, Version 04.03.13