HomeMy Public PortalAbout086-2012 - Activenetwork - WebsiteGENERAL TERMS
GENERALTERMS
GENERAL TERMS: TERMS APPLICABLE TO ALL
PRODUCTS AND SERVICES
1. INTERPRETATION
1.1 Definitions. For the purposes of interpreting this
Agreement, the following terms will have the following
meanings:
(a) "Agreement" means this Products and Services
Agreement, inclusive of all Schedules.
(b) "Concurrent Use" means use at the same moment in
time to access a given server computer (of any kind) owned or
controlled by Customer,
(c) "Customer" means the legal entity other than TAN
entering this Agreement.
(d) "Database Server" means the single server computer
upon which the Enterprise Database is resident.
(e) "Effective Date" means the last date set forth on page
one of this Agreement.
(f) "Enterprise Database" means the MSDE, MS SQL
Server, or Oracle database files containing customer data and
that are accessed by the Licensed Software.
(g) "Hosted 'Software" means computer code and
programs, in executable code form only, including related data
files, rules, parameters and documentation, which have been
created or licensed by TAN and are identified in the Pricing
Form as licensed (or sublicensed) to Customer by TAN in
connection with this Agreement, and which reside on TAN's
servers and are accessible by Customer's staff or Users via the
Internet.
(h) "Internet Client" means a remote device capable of
using the Internet to access selected. Licensed Software on the
Internet Server or the Enterprise Database on the Database
Server via the Internet Server.
(i) "Internet Server" means a single server computer used
by Customer which enables access to the Licensed Software
by individuals using an Intranet or the Internet, having a
minimum configuration as set out in hardware specifications
previously described to Customer as applicable to the
Licensed Software to be installed and used upon it.
(j) "IVR Server" means a single server computer used by
Customer for voice -recognition and telephone -based, rather
than computer -based, access to the Enterprise .Database by
Customer's clients, having a minimum configuration as set out
in hardware specifications previously described to Customer
as applicable to the Licensed Software to be installed and used
upon it.
(k) "Licensed Software" means computer code and
programs, in executable code form only, including related. data
tiles, rules, parameters and documentation, which have been
created or licensed by TAN and are identified in the Pricing
Form as licensed (or sublicensed) to Customer by TAN in
connection with this Agreement, and/or which are in the future
provided to Customer by TAN under any circumstances unless
provided under a separate licensing agreement.
(1) "Maintenance" means the provision of error
investigation and repair services as set out in sections 22
through 25, Maintenance Exhibit 3, and the provision of new
Versions and Releases in respect of the Licensed Software all
as more particularly set out in the Support and Maintenance
Handbook.
(m) "Module" means a single module element of Licensed
Software listed in the Pricing Form.
(n) "Online Services" means services, such as Internet
registration, that are enabled by Hosted Software and available
to the public via the Internet.
(o) "Other Services" means Services other than Pre -Agreed
Services acquired by Customer under this Agreement or any
further Professional Services as provided. in an agreed
Statement of Work, purchase order, or pricing form.
(p) "Payment Server" means a single server computer used
by Customer to process electronic payments from its clients,
having a minimum configuration as set out in hardware
specifications previously described to Customer as applicable
to the Licensed Software to be installed and used upon it.
(q) "Pre -Agreed Services" means Services which are
expressly listed in the Pricing Form as being acquired
hereunder by Customer.
(r) "Pricing Form" means the itemized pricing form
attached as Exhibit I to the Agreement listing the products and
services provided by TAN to the Customer under this
Agreement
(s) "Products" means all Licensed Software, Hosted
Software, Third Party products, and other products (including
documentation) provided to Customer by or on behalf of
TAN.
(t) "Professional Services" means any and all types of
services which TAN provides, to Customer and/or to other
customers of TAN, in the course of TAN's business, including
but not limited to services relating to the installation,
implementation, optimization, administration, training and
troubleshooting of computers, computer software including
the Licensed Software, computer networks, databases,
internet-related equipment and applications, but expressly
excludes Support and Maintenance. Professional Services
that are not included. as part of the Pre -Agreed Services, as
defined above, shall be as set forth in any applicable and
mutually agreed statement(s) of work (each a "Statement of
Work"). Each such Statement of Work shall, upon mutual
agreement by the parties, become part of and incorporated by
reference into this Agreement.
(u) "Related Third Party Documentation" means any end
specifications, manuals, instructions, and other materials, and
any copies of any of the foregoing, in any medium, related to
GENERAL TERMS
the Third Party Products and supplied by TAN to Customer
with the Third Party Products.
(v) "Release" means any release, update, patch, set of
revisions, or bug/permanent fix or temporary bypass solution
released by TAN to its customers generally during the term of
this Agreement, which provides enhancements and/or error
corrections to the then -current Version or Release, and where
a new Version has been released and no new Release has been
released since the release of that Version, that Version will
also constitute a Release for the purpose of determining
whether Support or Maintenance is available with respect to
that Version. New Releases will be denoted by an increase to
the version number to the right of the decimal point such as
from Release 1.1 to Release 1.2.
(w) "Services" means all Professional Services, Support and
Maintenance, Online Services, and other services provided to
Customer by or on behalf of TAN.
(x) "Software" means the Licensed Software and the
Hosted Software as defined elsewhere in this section.
(y) "Support" means the ongoing telephone, email, web -
based and dial -in support and problem resolution to assist
Customer in the use of the Licensed Software, the Hosted
Software, and other services and products of TAN as set out in
the Support and Maintenance Handbook.
(z) "Support and Maintenance Handbook" means the
documents published by TAN setting out the applicable
service levels, processes, restrictions, and other particulars of
Support and Maintenance provided in respect of the Software
and Other Services and Products of TAN, as amended from
time to time upon notice to Customer.
(aa) "Support and Maintenance Start Date" means, for
implementations performed by TAN, the first day of
implementation of the Licensed Software or 90 days following
the delivery of the Licensed Software, whichever occurs first,
and upon delivery of the Licensed Software for
implementations being performed by the customer or a 3"d
party vendor.
(bb) "System Utilities" includes the following: Accounting
Processes, Central Login, Log File, Copy Database, Maintain
Database, MSDE Tool, Oracle Setup Utility, Query Tool,
System Maintenance, Upgrade Database and View
Components.
(cc) "TAN" ineans The Active Network as referenced on the
first page of this Agreement.
(dd) "Third Party Products" means those 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.
(ee) "Third Party Products Support" means assistance to
isolate the source of problems and/or to troubleshoot
difficulties resulting from sources other than TAN products or
services, such as general network support (for example
network access, printing, backup & restoration); PC hardware
trouble shooting; PC setup, configuration and optimization;
network operating system configuration and functionality;
basic Microsoft Corporation "Windows" functionality (for
example, using File Manager or Explorer), modem
configuration & setup; data corruption due to lack of disk
space; and loss of supervisor or other password, all as further
set out in the Support and Maintenance Handbook.
(ff) "User" means a person who accesses and uses any of the
Products in any manner whatsoever.
(gg) "Version" means a version of the Licensed Software
providing a particular functionality, while a new Version of
the Licensed Software will provide new/additional
functionality and/or improvements to a previous Version. New
Versions will be denoted by a change to the version number to
the left of the decimal point such as from Version 1.0 to
Version 2.0.
(hh) "Workstation" means a computer attached to a local or
wide -area network (including an Intranet), which accesses the
Licensed Software or Enterprise Database.
1.2 Headings. The headings contained in this Agreement are
inserted for convenience and do not form a partof this
Agreement and are not intended to interpret, define or limit the
scope, extent or intent of this Agreement or any provision
hereof.
2. CHARGES AND PAYMENTS
2.1 Taxes and Other Charges. Customer will pay all
shipping & handling costs and, unless exempted by law and
unless a valid tax exemption certificate has been provided to
TAN prior to invoicing, all applicable sales, use, withholding
and excise taxes, and any other assessments against Customer
in the nature of taxes, duties or charges however designated on
the Services and Products or their license or use, on or
resulting from this Agreement, exclusive of taxes based on the
net income of TAN. Sales and any other applicable taxes,
duties, or any other charges in the nature of taxes and duties
are not included unless specifically identified as line items in
the Pricing Form.
2.2 Currency. Unless otherwise indicated in the Pricing
Form, all prices are in the currency of the country in which the
Customer is located.
2.3 Delivery. Delivery for the Products supplied by TAN
under this Agreement will be deemed to have occurred F.O.B.
origin, which in the case of Licensed Software and/or Hosted
Software will typically be in the form of an email from TAN
providing a FTP (i.e, rile transfer protocol) downloadable link.
2.4 Invoices/Payment. TAN will provide invoices to
Customer for all amounts owing by Customer hereunder.
Such invoices are to be provided as indicated in the attached
GENERAL TERMS
Schedules or Pricing Form, and subsequently due within 30
days from the date of invoice.
3. CUSTOMER INFORMATION;
CONFIDENTIALITY
3.1 Customer Information. In order to assist TAN in the
successful provision or services and products to Customer,
Customer shall provide to TAN all information relating to
Customer's organization, technology platforms, systems
configurations, and business processes and otherwise relating
to Customer as is reasonably requested by TAN horn time to
time.
3.2 Confidential Information.
(a) In the performance of or otherwise in connection with
this Agreement, one party ("Disclosing Party") may disclose
to the other parry ("Receiving Party") certain Confidential.
Information of the Disclosing Party. "Confidential
Information" means any information of either party, which is
not generally known to the public, whether of a technical,
business or other nature (including, but not necessarily limited
to: trade secrets, know how, computer program source codes,
and information relating to the customers, business plans,
promotional and marketing activities, finances and other
business affairs of such party); provided that the same is
conspicuously marked or otherwise identified as confidential
or proprietary information prior to, upon or promptly after
receipt by the other party; and provided further that the any
software or software application server source code provided
by TAN or its licensors shall be deemed to constitute
Confidential Information without further designation by TAN.
The Receiving Party will treat such Confidential Information
as confidential and proprietary of the Disclosing Party and will
use such Confidential Information solely for the purposes for
which it is provided by the Disclosing Party and will not
disclose such Confidential Information to any third party
(other than a third party under contract whereby that third
party has agreed in writing to keep the Confidential
Information confidential).
(b) Exclusions. The obligations under this paragraph will
not apply to any: (i) use or disclosure of any information
pursuant to the exercise of the Receiving Party's rights under
this Agreement; (ii) information that is now or later becomes
publicly available through no fault of the Receiving Party; (iii)
information that is obtained by the Receiving Patty from a
third party authorized to make such disclosure (other than hi
connection with this Agreement) without any obligation of
secrecy or confidentiality; (iv) information that is
independently developed by the Receiving Party (e.g., without
reference to any Confidential Information); (v) any disclosure
required by applicable law (e.g., pursuant to applicable
securities laws or legal process), provided that the Receiving
Party will use reasonable efforts to give advance notice to and
cooperate with the Disclosing Party in connection with any
such disclosure; and (vi) any disclosure with the consent of the
Disclosing Party.
4. WARRANTY
Limited Warranty of Software. TAN warrants that when
utilized by Customer in a manner authorized hereunder, the
Software will conform to the functional specifications set out
in the user documentation accompanying the Software for
ninety (90) days from delivery of the Software ("Warranty
Period"). Delivery shall be deemed to have occurred upon
TAN's email transmission of an FTP link to Customer
permitting download of the Software from TAN's designated
online site, or where delivered in the form of physical media,
F.O.B. origin. TAN's sole obligation and liability hereunder
with respect to any failure to so perform will be to use
reasonable efforts to remedy any non -conformity which is
reported to TAN in writing by Customer within that Warranty
Period. In the event TAN is unable to remedy such non-
conformity within a reasonable time using reasonable efforts,
a) in. respect to the Licensed Software TAN may refund to
Customer the license fee pertaining to the Licensed Software,
subject to Customer's return of the Licensed Software, and
this Agreement will be automatically terminated, or b) in
respect to Hosted Software TAN may refund to Customer the
fees paid by the Customer to TAN for Services provided to
implement the :Hosted Software, and this Agreement will be
automatically terminated . All warranty service will be
performed at service locations designated by TAN. This
Limited Warranty is void if failure of the Software has
resulted from accident, abuse or misapplication. Any
replacement Software will be warranted for the remainder of
the original warranty period or 30 days, whichever is longer.
s. EXCLUSION OF WARRANTIES AND
LIMITATION OF LIABILITY
5.1 SPECIFIC EXCLUSION OF OTHER
WARRANTIES. THE EXPRESS WARRANTIES SET OUT
IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES, AND THERE ARE NO OTHER
WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
GUARANTEES OF ANY KIND WHATSOEVER
APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW
(IN CONTRACT OR TORT OR OTHERWISE) OR
CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE
REGARDING MERCHANTABILITY, FITNESS FOR
PURPOSE, DURABILITY, CORRESPONDENCE TO
SAMPLE, TITLE, DESIGN, CONDITION, OR QUALITY.
WITHOUT LIMI'TING THE ABOVE, TAN DOES NOT
WARRANT THAT ANY PRODUCTS OR SERVICES
PROVIDED HEREUNDER WILL MEET T14E
REQUIREMENTS OF CUSTOMER OR THAT THE
OPERATION OF PRODUCTS PROVIDED HEREUNDER
WILL BE FREE FROM INTERRUPTION OR ERRORS.
5.2 RESTRICTIONS ON WARRANTY. TAN HAS NO
OBLIGATION TO REPAIR. OR REPLACE PRODUCTS
DAMAGED BY EXTERNAL CAUSE OR THROUGH THE
FAULT OR NEGLIGENCE OF ANY PARTY OTHER
THAN TAN'.
GENERAL. TIERMS
5.3 NO INDIRECT DAMAGES. WITHOUT LIMITING
THE GENERALITY OF SECTIONS 5.1 AND 5.4, IN NO
EVENT WILL TAN BE LIABLE TO CUSTOMER OR TO
ANY OTHER PARTY FOR INDIRECT DAMAGES OR
LOSSES (IN CONTRACT OR TORT OR OTHERWISE),
INCLUDING BUT NOT LIMITED TO DAMAGES FOR
LOST PROFITS, LOST SAVINGS, LOST DATA, LOSS OF
USE OF INFORMATION OR SERVICES, OR
INCIDENTAL, CONSEQUENTIAL, OR SPECIAL
DAMAGES.
5.4 LIMITS ON LIABILITY. IF, FOR ANY REASON,
TAN BECOMES LIABLE TO CUSTOMER OR ANY
OTHER PARTY FOR DIRECT OR ANY OTHER
DAMAGES FOR ANY CAUSE WHATSOEVER, AND
REGARDLESS OF THE FORM OF ACTION (IN
CONTRACT OR TORT OR OTHERWISE), THEN:
(a) THE AGGREGATE LIABILITY OF TAN TO
CUSTOMER AND ALL OTHER PARTIES IN
CONNECTION WITH THE PRODUCTS AND THE
SERVICES WILL BE LIMITED TO AN AMOUNT OF
ONE AND HALF (1.5) TIMES OF FEES ACTUALLY PAID
BY CUSTOMER TO TAN AS CONSIDERATION FOR
THE PRODUCTS AND SERVICES GIVING RISE TO
SUCH CLAIM DURING THE TWELVE (12) MONTH
PERIOD PRECEDING THE DATE ON WHICH THE
CAUSE OF ACTION AROSE; AND
(b) 1N ANY CASE CUSTOMER MAY NOT BRING OR
INITIATE ANY ACTION OR PROCEEDING AGAINST
TAN ARISING OUT OF THIS AGREEMENT OR
RELATING TO ANY PRODUCTS OR SERVICES
PROVIDED 14EREUNDER MORE THAN TWO YEARS
AFTER THE RELEVANT CAUSE OF ACTION HAS
ARISEN.
5.5 SEPARATE ENFORCEABILITY. SECTIONS 5.1
THROUGH 5.4 ARE TO BE CONSTRUED AS SEPARATE
PROVISIONS AND WILL EACH BE INDIVIDUALLY
ENFORCEABLE.
5.6 For the purposes of this Section 5, reference to TAN
shall also include its suppliers and licensors.
6. RESTRICTIONS
6.1 U.S. GOVERNMENT RESTRICTED RIGHTS. The
Products are provided with restricted rights. Use, duplication,
or disclosure by the U.S. Government is subject to restrictions
as set forth in subparagraph (c) (1)(ii) of The Rights in
Technical Data and Computer Software clause at DFARS
252.227-7013, or subparagraphs (c) (1) and (2) of the
Commercial ComputerSoftware- Restricted Rights at 48 CFR
52.227-19, as applicable. The Manufacturer is The Active
Network, Inc., 10182 Telesis Court, San Diego, California,
United States, 92121.
6.2 Export Restrictions. The Products may include
encryption software or other encryption technologies that may
be controlled for import, export, or purposes under the laws
and regulations of the countries and/or territories in which the
Products are used ("Applicable Law"). Customer may not
export, re-export, or assist or facilitate in any manner the
export or re-export of, any portion of the Products, as
determined by Applicable Law under which the Customer
operates: (i) to any country on Canada's Area Control List;
(ii) to any country subject to UN Security Council embargo or
action; (iii) contrary to Canada's Export Control List Item
5505; (iv) to countries subject to U.S. economic sanctions and
embargoes, and (v) to persons or entities prohibited ffom
receiving US, exports or U.S.-origin items. Customer hereby
represents and covenants that: (i) to the best of Customer's
knowledge Customer is eligible to receive the Products under
Applicable Law; (ii) Customer will import, export, or re-
export the Products to, or use the Products in, any country or
territory only in accordance with Applicable Law; and (iii)
Customer will ensure that Customer's Users use the Products
in accordance with the foregoing restrictions.
6.3 Third Party Software and Open Source Components.
The Software may contain open source components or other
third party software of which the use, modification, and
distribution is governed by license terms (including limitations
of liability) set out in the applicable documentation (paper or
electronic) or read me files.
7. TERMINATION
7A Termination. This Agreement will terminate:
(a) at the option of either party if the other party materially
defaults in the performance or observance of any of its
obligations hereunder and fails to remedy the default within 30
days after receiving written notice thereof; and
(b) without limiting (a), at the option of TAN if Customer
breaches section 2 of this Agreement, provided that the right
of termination will be in addition to all other rights and
remedies available to the parties for breach or default by the
other; or
(c) as set forth in Schedule A, Section 18 (Term for Hosted
Software),
7.2 Suspension of Obligations. If either party should
materially default in the performance or observance of any of
its obligations hereunder, then, in addition to all other rights
and remedies available to the non -defaulting party, the non -
defaulting party may suspend performance and observance of
any or all its obligations under this Agreement, without
liability, until the other party's default is remedied, provided
however that this section will not permit Customer to suspend
its obligation to make any payments due for Products or
Services that are unrelated to any default alleged against TAN.
7.3 Return of Materials. In the event of termination of this
Agreement for any reason whatsoever, Customer will
immediately (i) return to TAN all physical. copies of Products
delivered by TAN to Customer or otherwise in Customer's
possession or control, or (ii) if expressly permitted by TAN,
destroy all physical copies of the Products not returned to
4
GENERAL TERMS
TAN and delete all electronic copies of the Products from its
systems and certify in writing to TAN that such actions have
all been completed.
s. AUDIT AND MON.ITOR.ING RIGHTS
TAN may, upon a minimum of 24 hours written notice to
Customer, attend upon Customer's premises and verify that
the Products are being used only as permitted hereby. Such
inspections shall be llmited to a maximum of twice per
calendar year, and will be performed only during Customer's
regular business hours and conducted in a manner as to
minimize, to the extent reasonable, interference with
Customer's business. Further, TAN may, using automatic
means which do not interfere with the use of the Products by
Customer or Users other than as described in this provision,
monitor at any time usage of the Products by Customer and or
its Users including through monitoring of the number of
copies of any particular Module(s) in Concurrent Use.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Warranty of Title. TAN warrants that it has all rights
necessary to make the grant of license herein by having all
right, title, and interest in and to the Products (other than Third
Party Products) or as licensee of all such rights from the owner
thereof.
9.2 Intellectual Property. TAN and its licensors shall retain
all right, title, and interest in and to the Products and the
results of the Services and to all software, trademarks, service
marks, logos, and trade names and other worldwide
proprietary rights related thereto ("Intellectual Property").
Customer shall use the Intellectual Property only as provided
by TAN, and shall not alter the Intellectual Property in any
way, or act or permit action in any way that would impair
TAN's or its licensors' rights in its Intellectual Property.
Customer acknowledges that its use of the Intellectual
Property shall not create in Customer or any other person any
right, title, or interest in or to such Intellectual Property. Any
goodwill accruing from the use of the Intellectual Property
shall inure solely to the benefit of TAN or its licensors, as
applicable.
9.3 Restrictions. Customer will not any time whether before
or after the termination of this Agreement.
(a) reverse engineer, disassemble, or decompile any
Products or prepare derivative works thereof;
(b) copy, transfer, display, or use the Products except as
expressly authorized in this Agreement or in the applicable
documentation;
(c) disclose, furnish, or make accessible to anyone any
confidential information received from TAN or make any use
thereof other than as expressly permitted under this
Agreement, which confidential information is deemed to
include the source and executable code of the Software and all
related documentation;
(d) contest or do or aid others in contesting or doing
anything which impairs the validity of any proprietary or
intellectual property rights, title, or interest of TAN in and to
any Products; or
(e) obliterate, alter, or remove any proprietary or intellectual
property notices from the Products in physical or electronic
forms.
10. INDEMNIFICATION
(a) Each party (the "Indemnifying Party") shall defend,
settle, and pay damages (including reasonable attorneys' fees)
("Damages") relating to any third party claim, demand, cause
of action or proceedings (whether threatened, asserted, or
filed) ("Claims") against the other party hereto (the
"Indemnified Party") to the extent that such Claim is based
upon the Indemnifying Party's violation of any applicable law,
rule, or regulation.
(b) TAN agrees to defend, settle, and pay Damages to the
extent that the Software infringes the intellectual property
rights of any third party provided that such Software is used in
accordance with this Agreement. If any Claim that TAN is
obligated to defend, settle, and pay damages to Customer
under this Section 10(b) has occurred or, in TAN's opinion, is
likely to occur, TAN may, at its option and expense either (1)
obtain for Customer the right to continue to use the applicable
Software, (2) replace or modify the Software so it becomes
non -infringing, without materially adversely affecting the
Software's specified functionality, or (3) if (1) or (2) are not
readily available after using reasonable commercial efforts or,
if neither of the foregoing options is commercially reasonable,
refund a pro-rata portion of the fees paid by Customer based
on its lost use and terminate this Agreement. TAN shall not
be obligated to defend, settle, or pay damages for any Claims
solely based on: (x) any Customer or third party intellectual
property or software incorporated. in or combined with the
Software where in the absence of such incorporated or
combined item, there would not have been infringement, but
excluding any third party software or intellectual property
incorporated into the Software at TAN's discretion; (y)
Software that has been altered or modified by Customer, by
any third party or by TAN at the request of Customer (where
TAN had no discretion as to the implementation of
modifications to the Software or documentation directed by
Customer), where in the absence of such alteration or
modi-fication the Software would not be infringing; or (z) use
of any version of the Software with respect to which TAN has
made available a non-i.n.frin.ging updated, revised or repaired
subsequent version or other applicable update, patch or fix.
(c) Customer agrees to defend, settle, and pay Damages
relating to Claims to the extent based on (i) injury or death to a
person or damage to property resulting from the participation
in an event or activity operated by you in connection with the
Products and/or Services; (ii) provision, by Customer, of
materials, products, information, or services as part of
Customer's obligations hereunder that infringe the intellectual
property rights of any third party provided that such materials,
GENERALTERMS
products, information, or services are used by TAN in
accordance with this Agreement; and/or (iii) brought by a
Third Party Beneficiary that relate to or arise from your
negligence, wrongdoing, or lack of authority to act on behalf
of such third party.
(d) Indemnification Claims Procedure. Each Party's
obligations under this Section are conditioned upon (1) prompt
written notice of the existence of a Claim, provided that a
failure of prompt notification shall not relieve the
Indemnifying Party of liability hereunder except to the extent
that defenses to such Claim are materially impaired by such
failure of prompt notification; (2) sole control over the defense
or settlement of such Claim by the Indemnifying Party; and
(3) the providing of assistance by the Indemnified Party at the
Indemnifying Party's request to the extent reasonably
necessary for the defense of such Claim.
(e) For the purposes of this Section 10, reference to TAN
shall also include its suppliers and licensors.
(f) Notwithstanding the foregoing, Customer shall not be
bound by the terms of this Section 10 to the extent precluded
by applicable law (e.g., sovereign immunity of a governmental
entity).
1.1. GENERAL
11.1 Entire Agreement. This Agreement, including all
attachments and referenced schedules, constitutes the
complete and exclusive statement of the agreement between
TAN and Customer with respect to the subject matter hereof,
It supersedes and replaces all oral or written RFPs, proposals,
prior agreements, and other prior communications between the
parties concerning the subject matter of this Agreement. This
Agreement may not be modified or altered except by written
instrument duly executed by both parties, except that TAN
may fill future purchase or other orders for further goods or
services available under this Agreement and, if TAN does so,
the provisions of this Agreement will contain the only
commercial terms applicable to such transaction despite such
purchase or other order stating otherwise. Any Addendum
attached hereto shall form an integral part of this Agreement
and, in the event of any inconsistency between these General
Terms and any Addendum, the provisions of the Addendum
shall prevail. Any `click -wrap' agreement, terms of use,
electronic acceptance or other terms and conditions which
attempt to govern the subject matter of this Agreement that
Customer might be required to acknowledge or accept before
using a TAN product are of no force and effect as between
Customer and TAN and are superseded by this Agreement.
11.2 Force Majeure. Dates or times by which either party is
required to perform under this Agreement, excepting the
payment of any tees or charges due hereunder, will be
postponed automatically to the extent that any party is
prevented from meeting them by Force Majeure causes
beyond its reasonable control, provided such party promptly
notifies the other thereof and makes reasonable efforts to
perform.
11.3 Notices. All notices and requests in connection with this
Agreement will be given to the respective parties in writing
and will be deemed given as of the first business day of the
notified party following the day the notice is faxed or sent via
overnight courier, providing a hard copy acknowledgment of
such successful faxed notice transmission or evidence of such
couriering, as applicable, is retained. Notice may also be
deposited in the mails, postage pre -paid, certified or
registered, return receipt requested, and addressed to the
parties as indicated on the face of this Agreement or such
other address of which the party gives notice in accordance
herewith, and receipt of any such notice will be deemed to be
effective as of the third business day following such deposit.
11.4 Governing Law. This Agreement shall be governed by
the laws of the State of Indiana, without giving effect to the
conflict of laws provisions thereof. Neither the United. Nations
Convention of Contracts for the International Sale of Goods
nor the Uniform Computer Information. Transactions Act shall
apply to this Agreement. Any legal action or proceeding
relating to this Agreement shall be instituted only in any state
or federal court in Hamilton County, Indiana. In any action or
suit to enforce any right or remedy under this Agreement or to
interpret any provision of this Agreement, the prevailing party
shall be entitled to recover its costs, including reasonable
attorneys' fees.
11.5 Attorney Fees. In any action or suit to enforce any right
or remedy under this Agreement or to interpret any provision
of this Agreement, the prevailing party shall be entitled to
recover its costs, including reasonable attorneys' fees.
11.5 Non -Assignability. Neither party may assign its rights or
obligations arising out of this Agreement without the other
party's prior written consent, except that TAN may assign this
Agreement to one if its affiliates or in connection with any
sale or security interest involving all or substantially all of its
assets or any other transaction in which more than fifty
percent of its voting securities are transferred.
11.7 'Perm and Survival. The term of this Agreement shall
commence on the Effective Date set out on the cover page
hereof and shall continue as set forth in Sections 18.1 or 25.1,
as applicable, or until terminated in accordance with Section 7.
Sections 1.1, 5, 7.3, 9.2, 9.3, 10, 11, 29.1, and 29.2 of this
Agreement, along with all unpaid. payment obligations, will
survive termination and expiration of this Agreement.
11.8 No Authority to Bind. Neither party shall incur any
obligations for or in the name of the other party, or have the
authority to bind or obligate the other party. Neither party
shall make, issue or authorize any statements (whether oral or
written) in contravention of the foregoing.
11.9 Counterparts, This Agreement may be executed in
separate counterparts and delivered by facsimile or such other
electronic means as are available to the Parties. Such.
counterparts taken together shall constitute one and the same
original document.
C.
GENERAL TERMS
11,10 Severability. If any provision of this Agreement is
held by a court of competent jurisdiction to be invalid,
unenforceable, or void, the remainder of this Agreement and
such provisions shall remain in frill force and effect,
11.11 Cooperative Procurement. Upon consent by TAN,
this Agreement may be used for permitted cooperative
procurement by any public or municipal. body, entity, agency
or institution. If so authorized, and in order to forego a related
entity RFP or similar competitive bidding process, the
Agreement may be extended to such other entities indicated
above for the procurement of similar products and/or services
provided to Customer herein and at fees in accordance with
the Agreement unless separately negotiated between such
other entities and TAN. Further related entities. participating
in a cooperative procurement process shall place their own
orders directly with TAN and will fully and independently
administer their use of the Agreement to include such
contractual as those entities and TAN deem appropriate
without direct administration from the original Customer.
11.12 E-Verify. Pursuant to Indiana Code 22-5-1.7, TAN
is required to enroll in and verify the work eligibility status of
all newly hired employees of TAN through the Indiana B-
Verify program. TAN is not required to verify the work
eligibility status of all newly hired employees of TAN through
the Indiana E-Verify program if the Indiana &Verify prograrn
no longer exists. Prior to the performance of this Agreement,
TAN shall provide to the Customer its signed Affidavit
affirming that TAN does not knowingly employ an
unauthorized. alien in accordance with IC 22-5-1.7-11 (a) (2).
In the event TAN violates IC 22-5-1.7 TAN shall be required
to remedy the violation not later than thirty (30) days after the
Customer notifies TAN of the violation. If TAN fails to
remedy the violation within the thirty (30) day period provided
above, the Customer shall consider TAN to be in breach of
this Agreement and this Agreement will be terminated. If the
Customer determines that terminating this Agreement would
be detrimental to the public interest or public property, the
Customer may allow this Agreement to remain in effect until
the Customer procures a new contractor. If this Agreement is
terminated under this section, then pursuant to IC 22-5-1.7-13
(c) TAN will reinain liable to the City for actual damages.
SCHEDULE A: TERMS APPLICABLE ONLY TO
IiOSTED SOFTWARE
12. HOSTED SOFTWARE
12.1 TAN will provide Customer with access to hosted.
versions of the products identified in the Pricing Form and
associated Online Services, and TAN hereby grants to
Customer a limited, non-exclusive, non -transferable license to
use the Hosted 'Software in accordance with the applicable
documentation.
12.2 Customer elects to receive notifications of free product,
promotional items and giveaways through the TAN program
]mown as Activelkewards. TAN will offer the Customer (and
for the purposes of clarification not to your users directly)
opportunities for free product, promotional items and
giveaways at your event(s) or facility(ies) as applicable, the
exact manner and type of which will be mutually agreed upon
by you and TAN upon your acceptance of a particular
program.
12.3 Customer understands that some TAN products may
contain TAN or third party prornotions or offers to users and
such offers will be made to individuals on an opt -in basis.
TAN (and any such third party) shall be responsible for
administration and customer service issues on any such offer
or promotion.
13. SUPPORT FOR HOSTED SOFTWARE
TAN will, during all periods in respect of which Customer has
subscribed for Hosted Software, provide Support to Customer
(and, where applicable, directly to users of Customer's own
services and products who access the Hosted Software) in
accordance with applicable sections of the Support and
Maintenance Handbook.
14. LICENSE AND BRANDING
TAN hereby grants to Customer a limited, non-exclusive, non-
transferable license to display, reproduce, distribute, and
transmit in digital form TAN's name and logo in connection
with promotion of the Online Services only in the manner
approved of by TAN during the term of this Agreement.
Customer hereby grants to TAN a limited non -transferable
license to use, display, reproduce, distribute, adapt and
transmit in digital or printed form information provided by
Customer relating to its organization, including its name,
trademarks, service marks and logo, in connection with the
implementation and promotion of the Online Services;
provided, however, that such use shall be as necessary to
TAN's performance under this Agreement. Customer will
make reasonable efforts to encourage adoption of the Online
Services, including displaying TAN's name and logo or
"Powered by TAN" logo, in the form supplied by TAN from
time to time and in a manner approved by TAN, acting
reasonably, in any medium used by Customer to promote its
programs or services to prospective participants.
S. INFORMATION COLLECTION
In order to provide the Products and/or Services, TAN collects
certain information from individuals. TAN uses this data to,
among other things, provide Customer with tools to manage
Customer's operations. Customer may login to the
management system TAN provides to access this information.
Customer is responsible for the security of its login
information and for the use or misuse of such information by
users authorized by Customer to use the Products and
Services. Customer will immediately notify TAN in writing if
any such users are no longer authorized. Both parties agree to
GENERALTERMS
comply with (i) all applicable laws, rules and regulations,
including, without limitation, those governing online privacy
and use of credit card data (i.e. using credit card information
only for purposes authorized by the cardholder); (ii) applicable
Payment Card Industry Data Security Standards; and (iii)
TAN's privacy policy as published on its website.
16, FEES FOR HOSTED SOFTWARE
16.1 Transaction fees.
(a) Customer shall pay to TAN the Hosted Software service
fees ("Service Charge(s)") as set out in the Pricing Form
(b) In cases where TAN's banking or financial partners or
similar service providers impose changes in processing costs
payable by TAN, TAN reserves the right to modify Service
Charges. TAN shall notify Customer at least ninety (90) days
in advance of any such changes. Customer agrees to such
changes unless Customer provides TAN with written objection
to such charges within thirty (30) days from the date such
change is implemented. In the event Customer notifies TAN
of its objection to the changes as noted above, Customer's sole
remedy shall be to immediately terminate the Agreement as
applied to the Hosted Software, subject to payment of any fees
due prior to such notice of termination.
(c) TAN will be responsible for collecting all payments
processed through the Online Services and all Service Charges
assessed by TAN. All payments are Customer's exclusive
property and will. be sent to Customer twice a month (or as
otherwise indicated in the Pricing Form) while Service
Charges shall be retained by TAN.
(d) If Customer enters transactions at fee amounts less than
those actually charged to Customer's Users, thus reducing or
avoiding applicable Service Charges, such action shall
constitute a material breach of this Agreement.
(e) TAN shall not be responsible for processing or making
any refunds. In the event Customer initiates a refund, a fee
may be charged by TAN to Customer as set out in the Pricing
Form. TAN may set off against user fees collected by TAN to
the amount of any credit card charge backs and associated fees
applicable to user transactions and to reimburse itself for any
overdue fees owed to TAN by Customer. To the extent that
such funds are not available for set off, Customer shall
promptly reimburse TAN for any deficiency.
16.2 Subscription fees.
Customer shall pay to TAN the Hosted Software subscription
fees ("Subscription Fees") if set out in the Pricing Form and
for the term of this Agreement established in Section 18
below. Customer will be invoiced for their first year
Subscription Fees upon the first hive operational use of the
Hosted Software ("Go -Live Date"), with subsequent annual
Subscription Pees being invoiced upon each anniversary of
Go -Live Date. Payment will be made Net 30 days from
invoice date.
17. EXCLUSIVITY FOR HOSTED SOFTWARE
TAN will, during all periods for which Customer has
subscribed for Hosted Software, be the sole and exclusive
provider to Customer of the Hosted Software and Online
Services, or any products or services substantially similar
thereto, for the part of Customer's organization utilizing the
Hosted Software and Online Services,
18. TERM FOR HOSTED SOFTWARE
Unless otherwise provided in the Pricing Form, TAN shall
provide to Customer, and -Customer shall license from TAN,
the Hosted Software commencing on the Effective Date of this
Agreement, and remaining in full force for a period of three
(3) years from the Go -Live Date of the Hosted Software (the
"Initial Term"), with automatic renewals for one (1) year
terms (each a "Renewal Term") thereafter until either party
gives written notice to terminate the Hosted Software no less
than two (2) months prior to the end of the Initial Term or
Renewal Term, as applicable.
------------------------
SCHEDULE B: TERMS APPLICABLE ONLY TO
LICENSED SOFTWARE AND ASSOCIATED SUPPORT
AND MAINTENANCE SERVICES
19. ACCESS TO SYSTEM AND OTHER CUSTOMER
OBLIGATIONS
19.1 Access. Customer will provide, at no cost to TAN:
(a) subject to the security requirements of Customer, 24 ]tour
access to Customer's system via either an always -available
telephone circuit or an always available internet connection to
enable TAN or its designated representative to perform any of
the obligations placed upon TAN by this Agreement; and
(b) subject to the security requirements of Customer, remote
dial up/internet access methods approved by TAN to allow
TAN to remotely diagnose and correct errors in the Licensed
Software and provide other Services.
19.2 Customer Obligations. Without limiting any of
Customer's other obligations under this Agreement, Customer
will.
(a) use its best efforts to upgrade to any new Release or
Version of the Licensed Software as soon as possible after
becoming aware of its availability;
(b) ensure that at all times at least one current staff person of
Customer has been fully trained on the Licensed Software; and
(c) designate by written notice a single site and single person
as the point of contact for telephone or other contact, which
site and/or person Customer may change upon 14 days prior
notice to TAN.
GENERAL TERMS
20. GRANT OF LICENSES AND LIMITATIONS
THEREON
20.1 TAN hereby grants to Customer a non-exclusive and
non -transferable right and license, subject to this Agreement,
to install and/or use the Licensed Software, in the manner and
for the term stated in the Pricing Form (Exhibit 1) and TAN
provided and related written user documentation as follows:
(a) Workstation -Based Modules. In respect of each
Workstation -based core Module and each Workstation -based
add -on Module, Customer may install and. use each Module on
Workstations to access the Enterprise Database on the
Database Server, provided that the number of copies of any
particular .Module in use does not exceed the number of
licenses granted to Customer therefore as set out in the Pricing
Form.
(b) Server -based Add -on Modules. Customer may install
and use each server -based Module on as many Workstations
as is desired by Customer, and Customer may use and permit
use of such Modules by its clients, all without limit to the
number of Users or transactions which simultaneously use any
such Module, provided however that:
(i) in respect of each TeleReg & Voice Server Module,
Customer may install one copy of each Module on
one lVR Server, provided that the number of copies
of any particular Module in use does not exceed the
number of licenses granted to Customer therefore as
set out in the Pricing Form, and all such Modules
together may be in Concurrent Use not to exceed the
number of licenses granted to Customer for TeleReg
Lines Modules as set out in the Pricing Form; and
(ii) in respect of each Payment Server Module, such
Modules may be in Concurrent Use not to exceed the
number of licenses granted to Customer for Point of
Sale Modules as set out in the Pricing Form.
(c) Server -based On-line (Internet) Modules. In respect of
each Server -based On-line (Internet) Module, Customer may:
(1) install one copy of each Module on one Internet
server, provided that the number of copies of the
Module in use does not exceed the number of
licenses granted to Customer therefore as set out in
the Pricing Form; and
(H) subject to 20(d), permit Users to access and use such
Modules to access the Database Server via Internet
Clients connecting via a licensed Internet Server, and
all such Modules together may be in Concurrent Use
not to exceed the number of licenses granted to
Customer for Online Client Access Modules as set
out in the Pricing Form multiplied by twenty-five
(25).
(d) Cumulative Workstation -based Modules. In respect of
each Cumulative Workstation -based Module, Customer may:
install one copy of each Module on a single
Workstation for each license granted to Customer
therefore as set out in the Pricing Form; and
(ii) permit Users using such licensed Workstation(s) to
use such Module(s) provided, for greater certainty,
that the Modules may be in Concurrent Use not to
exceed the number of licenses granted to Customer
therefore as set out in the Pricing Form.
(e) Customer hereby acknowledges that the mechanism
utilized by the Licensed Software to control the number of
Users or Online Client Access which can simultaneously
access and use Server -based On-line (Internet) Modules is
based upon the number of Users who have at any time logged
into Customer's computer network using their passwords,
such that any User so logged into such network in a manner
that would automatically enable the User to access and use
such Modules will reduce by one the number of Users able to
simultaneously access those Modules, regardless of whether or
not such User is in fact accessing or using any such Module.
Customer hereby waives any claim, and releases TAN from
any such claim and from any losses or damages Customer
suffers in relation thereto, in connection with the inability of
Users to simultaneously access such Modules where such
inability is the result of inactive logged -in Users absorbing
available login access.
20.2 Additional Copies. Customer will not make any copies
of the Licensed Software except as necessary for the
installation permitted hereby and except for:
(a) copies of each Module licensed hereunder for training
and testing purposes, and
(b) for backup purposes, provided that all electronic copies
made include screen displays of TAN's proprietary or
intellectual property notices as recorded on the original copy
provided by TAN and Customer affixes a label to each disk,
reel, or other housing for the medium on which each physical
copy is recorded setting out the same proprietary and
intellectual property notices as appear on the unit of .Licensed
Software from which the copy is made in the same manner as
those notices appear on that original copy.
21. LICENSED SOFTWARE FEES
21.1 In respect of each. Module, Customer shall. pay to TAN
all applicable Licensed Software fees listed in the Pricing
Form upon delivery (as defined in Section 2.3) of the Licensed
Software,
22. MAINTENANCE SERVICES
22.1 TAN will develop new Releases and new Versions of
Licensed Software in accordance with the procedures and
other particulars set out in the Support and Maintenance
Handbook attached as Exhibit 3.
GENERAL TERMS
22.2 Provided that Customer continues to subscribe for
Support and Maintenance in respect of a particular Licensed
Software Product, TAN will provide to Customer, either in
physical form by mail or courier or in electronic farm via the
Internet, new Releases and Versions (and appropriate
documentation) for such Licensed Software Products on a
when -and -if -available basis.
23. EXCLUDED SUPPLIES AND SERVICES
Without limitation, the following supplies and services are
excluded from Support and Maintenance:
(a) Services which are required to remedy problems that
stein from changes to or defects in system configuration upon
which the Licensed Software was initially installed;
(b) Services which are required to remedy problems which
do not stern from any defect in Licensed Software;
(c) Services which are required to remedy problems caused.
by lack of training of Customer's personnel or improper
treatment or use of the Licensed Software;
(d) Full report customization service;
(e) Any and all hardware support, maintenance or
troubleshooting issues, except as described in section 28
regardless of the source of such hardware.
24. FEES FOR SUPPORT AND MAINTENANCE
24.1 Support and Maintenance services begin for all Licensed
Software listed in the Pricing Form on the Support and
Maintenance Start Date. The cost for Support and
Maintenance services is payable annually in advance and is
due in its entirety thirty (30) days from date of TAN's
delivered invoice. Customer may elect to specify a preferred
alternate Support Renewal Date by so notifying TAN in
writing. If an alternate preferred Support Renewal Date is
specified, the cost of Support and Maintenance will be
prorated from the anniversary of the Support and Maintenance
Start Date to the specified Support Renewal Date. Thereafter,
the Support and Maintenance fee is payable in advance on
every annual anniversary of the Support and Maintenance
Start Date or, if there is a Support Renewal Date, every
anniversary of the Support Renewal Date (the applicable
anniversary being the "Support Renewal Date"). TAN will
provide invoices to Customer for all such amounts, such
invoices due on the later of (a) the Support and Maintenance
Start Date or applicable Support Renewal Date, as applicable,
and (b) 30 days from the date of the invoice.
24.2 For the first year of this Agreement commencing with the
Effective Date, Support and Maintenance pricing shall be
equal to twenty-five percent (25%) of the gross software
license fees. Support and Maintenance pricing for all
successive years shall be equal to twenty-five percent (25%)
of the gross software license pricing charged by TAN for
equivalent software as of the date of each such renewal year,
provided, however, that any increase in TAN's annual Support
and Maintenance pricing for any renewal year shall not exceed
ten percent (10%) of the renewal fees charged in the prior
year. Any additional software licensed to Customer by TAN
will increase the total gross software license fees upon which
Maintenance and Support pricing is based. TAN will provide
invoices to Customer for renewal fees up to 60 days prior to
expiration of each term.
24.3 The Support and Maintenance fees identified in the
Pricing Form are applicable only upon the date of entry into
this Agreement, and are subject to change thereafter in
accordance with this Agreement's terms.
24.4In consideration of the Support and Maintenance
provided hereunder, Customer agrees to pay TAN the fees
described in the Pricing Form, as modified explicitly pursuant
to this Agreement. In the event Customer requires Support and
Maintenance for additional Licensed Software, Customer
agrees to pay TAN the additional Support and Maintenance
fees applicable based upon the fees then in effect, prorated
from the date of agreement to acquire such services to the
Support Renewal Date.
24.5 Unless the Pricing Form indicates otherwise, the fees
charged hereunder are applicable to Support and Maintenance
of Licensed Software used with respect to only a single
database of Customer data. If Customer, after entering this
Agreement, places in service one or more additional databases
to be used in relation to the Licensed Software, then for each
such additional database, an additional 25% of all gross
Licensed Software fees due, exclusive of such extra database
fees, will be payable hereunder for Support and Maintenance.
Customer will notify TAN as soon as reasonably possible of
the installation or use of any such additional database(s).
24.6 TAN may terminate and suspend performance of all
Support and Maintenance if Customer fails to pay any past
due TAN invoice within 30 days of written notice of such
failure, in the event of any other material breach by Customer
which remains uncured 30 days after notice thereof or if any
of the Licensed Software ceases to be subject of .a valid
Software License Agreement.
24.7 If at any time after Customer has initially licensed any of
the Licensed Software from TAN, Customer's right to receive
Support and Maintenance, or comparable services, from TAN
under this Agreement or a comparable agreement has lapsed
for any reason whatsoever, voluntarily or otherwise, and
Customer wishes to receive Support and Maintenance from
TAN, Customer will pay to TAN, prior to re -instatement of
Support and Maintenance services:
(a) a reinstatement fee equal to the greater of 50% of the
current annual support fee or the sum of the unpaid support
fees that would have been payable hereunder had this
Agreement been in force during the time in which Support and
Maintenance rights had so lapsed to the date of reinstatement,
and
(b) at least one additional year of Support and Maintenance
from the date of reinstatement.
Im
GENERALTERMS
25. TERM FOR SUPPORT AND MAINTENANCE
25.1 Term. TAN shall provide to Customer, and Customer
shall purchase from TAN, Support and Maintenance for a
period commencing on the Support and Maintenance Start
Date and, subject to termination as provided herein,
continuing until the following Support Renewal Date or
anniversary of the Support and Maintenance Start Date, with
automatic renewals for one (1) year terms thereafter until
either party gives written notice to terminate Support and the
Maintenance no less than ninety (90) days prior to the end of
the then -current term, provided however that the fees payable
in respect of the Services and the Products may be revised by
TAN in accordance with. this Agreement.
SCHEDULE C: TERMS APPLICABLE ONLY TO
THIRD PARTY PRODUCTS AND SERVICES
26. PURCHASE AND SALE; DELIVERY
26.1 Purchase Commitment and Price. TAN hereby agrees
to sell to Customer, and Customer hereby agrees to purchase
from TAN, the Third Party Products listed in. the Pricing Form
in the volumes and at the prices described therein.
26.2 Delivery. TAN will ship all or any part of the Third
Party Products to Customer as soon as reasonably practicable
(or, if the below -described purchase order documentation does
not seek immediate shipping, at the time TAN considers
reasonable in order to meet the desired delivery date
described) after receipt by TAN of a purchase order from
Customer 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.
26.3 Changes by Customer to Delivery Schedule.
Following delivery by Customer of any purchase order
documentation described in section 26.2, no changes by
Customer 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..
26.4 Acceptance of Purchase Orders. Purchase orders
delivered by Customer 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 purchasc order documentation, no terms
or conditions on purchase order documentation issued by
Customer, 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 27.2.
26.5 Additional Third Party Products. Customer may
purchase Third Party Products in addition to those listed in the
Pricing Form 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 Pricing Form on the
date of execution of Pricing Form subject to the following:
(a) the price for such additional Third Party Products is
subject to agreement between the parties each in their own
absolute discretion, and
(b) TAN shall have the right to discontinue delivery of such
additional Third Party Products upon at least ninety (90) days
written notice to Customer without any liability to Customer
whatsoever for such discontinuance.
27. CHARGES AND PAYMENTS
27.1 Prices. The pricing applicable to Third Party Products is
as set out in the Pricing Form in the form finally agreed to by
the Parties.
27.2 Pricing Variability. Customer acknowledges that
(a) the prices described in Pricing Form are applicable for
six (6) months after the date of execution hereof, and such
prices are based upon Customer taking delivery of the full
number of any particular Third Party Product listed in Pricing
Form in a single shipment; and
(b) -Customer hereby agrees that after the expiry of such.
initial six-month period or, in case of Customer seeking, in a
particular shipment, delivery of less than all of the Third Party
Products of a particular type listed Pricing Form, 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 Pricing Form, TAN will notify Customer of
any such different pricing and Customer will accept such
different pricing, as mutually agreed between Customer and
TAN, in writing.
28. SUPPORT FOR THIRD PARTY PRODUCTS
For the purpose of isolating support issues and responsibility
in respect of Third Party Products and their interaction with
any Products, TAN will provide initial first -tier support, to a
maximum of fifteen (15) minutes per support inquiry, for
Third Party Products, as further specified in the Support and
Maintenance T-I:andbook.
29. PROPRIETARY RIGHTS
79.1 Third Party Proprietary Rights and Indemnity by
Customer. Customer 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,
11
GENERALTERMS
including without limitation copyright, trade secret, trademark,
and patent rights. Customer will maintain in confidence and
not use or disclose any and all confidential business or
technical information comi.ected with any Third Party Product
except as specifically permitted by a party having legal control
of such rights, and Customer 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 Customer hereunder has
been installed, used, or otherwise treated by Customer or any
client or customer of Customer in violation of the proprietary
rights of any third party or on an allegation that Customer or
any client or customer of Customer has disclosed or used any
confidential business or technical information connected. with
any Third Party Product, provided that TAN will notify
Customer in writing promptly after the claim, suit, or
proceeding is known to TAN and will give Customer such
information and assistance as is reasonable in the
circumstances. Customer will have sole authority to defend or
settle any such claim at Customer's expense. Customer will
indernnify 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.
29.2 Third Party Products which are Software. Customer
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.
30. WARRANTY
30.1 Warranty. TAN warrants to Customer 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.
30.2 Warranties Provided by Third Party Suppliers. Third
Party Products are warranted by the manufacturers thereof in
accordance with the warranty statements accompanying
delivery of the Third Party Products, and Customer agrees that
Customer will rely solely on such Third Party Product
warranties and Customer shall make no claim against TAN on
account of any warranty, express or implied, which may apply
to any Third Party Product. TAN shall not modify or alter any
standard warranty from the manufacturer of the Third Party
Products.
12
GENERALTERMS
EXHIBIT I
PRICING FORMS
Quote
225s3 -1
The Active Network
10182 Telesis Court, 1st floor
San Diego, CA, 92121, United States
Date: 01/1712012
Expires: 0410212012
Customer:
Doug Goss
City of Richmond, IN
Richmond,lndiana
Bill To:
Ship To:
City of Richmond, IN
City of Richmond, IN
50 North 5th Street
50 North 5th Street
Richmond,lndiana
Richmond, Indiana
US
IN 47374 United States
Sales Representative: Sara Wise -Martinez Payment Terms: 30 NET
1.0 Hosted Enterprise License Ea 1
1.0.1 Annual Subscription Yr 1
... ..................
2.0 Technical Professional Services Hr 184
3.0 Daily Onsite Fee (min 3 days) Day 4
Category Subtotal
ACM - Client. Maintenance. Initial
ACM - Client.Service:Consulting
ACM - Client. Service. Reimbursed Travel
ACM - Client. Software. Software - FTP
Tax
Subtotal (Selling Price)
Subtotal (Selling Price)
Subtotal (Selling Price)
Subtotal.(Selling Price)
-1 5824
-800
$0.00 $0.00
$4,.200.00 $4,200.00
$114.00 $20,976.00
$300.00 $1,200.00
$4,200.00
$20,976.00
$1,200.00
$0.00
STATE (Rate 7%) $0.00
T
GENERAL TERMS
Genera(
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.
Onsite Services
Quoted prices for onsite services do not include airfare. If onsite services are required, economy airfare will be
assessed and invoiced separately. Onsite services are billed in minimum, 8 hour daily increments.
2
GENERALTERMS
The Active Network
Quote
22896 - 1
10182 Telesis Court, 1st floor
Date: 01/17/2012
San Diego, CA, 92121, United States
Expires: 04/02/2012
Customer:
Doug Goss
City of Richmond, IN
Richmond, Indiana
Bill To:
Ship To:
City of Richmond, IN
City of Richmond, IN
50 North 5th Street
50 North 5th Street
Richmond, Indiana
Richmond, Indiana
US
IN 47374 United States
Sales Representative: Ben Cruise
1.0
GEN - PCCharge - Additional User License
Ea
1
2.0
GEN - Private Label Website Reservations
Ea
1
„ (website license)
3.0
GEN - Tee Sheet & Point of Sale with Inventory
Yr
1
(core!) Su,bscriptian per sitelper year
4.0
GEN - Integrated PCCharge: Standard - 1 user & 1
Ea
1
merchant
5.0
GEN Pro Services - Tee Sheet/POS
Hr
32
6.0
GEN Pro Services - Business Process Review
Hr
4
7.0
GEN Pro Services - PLW Setup
Hr
4
8.0
GEN Pro Services - PC Charge
Hr
4
Payment Terms: 30 NET
-96
$0.00
$0.00
-1500
$0.00
$0.00
$1 800.00
$1,800.00
-1900
$0.00
$0.00
-320
$90.00
$2,880.00
-40
$90.00
$360.00
-40
$90.00
$360.00
-40
$90.00
$360.00
GENERALTERMS
Category Subtotal
GEN.Hardware.HW Other Subtotal (Selling Price) $0.00
GEN.SaaS.Software - Hosted Subtotal (Selling Price) $1,800.00
GEN.Servico.Consulting Subtotal (Selling Price) $3,960.00
Tax
STATE (Rate 7%) $0.00
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Ongoing Fees
Payments entered by Customer staff through the offline interface will be assessed a: 0% Service Charge.
Non -monetary transactions will be exempt from this Service Charge.
An additional Processing Surcharge of 2.5% + $0.25 for non -monetary transactions will be applied to offline
processing payments. Refunds will be assessed a ten cent ( 0.10 Refund Fee.
All offline Service Charges will be paid for by the Customer and will be absorbed in offline transaction totals.
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.
Onsite Services
Quoted prices for onsite services do not include airfare. If onsite services are required, economy airfare will be
assessed and invoiced separately. Onsite services are billed in minimum, 8 hour daily increments.
Hardware
All hardware sales are final. Hardware is coveted by standard manufacturer's warranty. Equipment that is
defective upon arrival will be replaced. RMA process will apply for items after support has indicated there are
no alternatives. Customer must notify TAN in writing of any defective hardware within 7 days of its receipt. Any
notices received after 7 days concerning defective hardware will be null and void and will not be accepted for
return or replacement by TAN. Thereafter, the standard manufacturer's warranty will apply.
M
GENERALTERIVIS
m I ON
_91001FONETWORI
The Active Network
Quote
22597-1
10182 Telesis Court, 1st floor
Date: 01117/2012
San Diego, CA, 92121, United States
Expires: 04/02/2012
Customer:
Doug Goss
City of Richmond, IN
Richmond, Indiana
Bill To:
Ship To:
City of Richmond, IN
City of Richmond, IN
50 North 5th Street
50 North 5th Street
Richmond, Indiana
Richmond, Indiana
US
IN 47374 United States
Sales Representative: Sara Wise -Martinez
Payment Terms: 30 NET
1.0
ActiveNet - Activity Registration
Ea
1
................
$0.00
-- ----
$0.00
2.0
ActiveNet - Facility Reservation
Ea
1
$0.00
$0.00
3.0
ActiveNet - League Scheduling
Ea
1
$0.00
$0.00
4.0
ActiveNet - Membership
Ea
1
$0.00
$0.00
5.0
ActiveNet - Point of Sale
Ea
1
$0.00
$0.00
6,0
ActiveNet - Public Access
Ea
1
$0.00
$0.00
7.0
Business Process Review
.. .. . . .. . .. .. .. .. . ... ... .. . .. .. .. ... .. .. ... .. .. . ......
Hr
8
-140
$157.50
$1,260.00
8.0
Business PrOGess'Review Documentation
Hr
4
-50
$112.50
$450.00
9.0
Project Planning .. ..... ..... .. .. . .... .. ..
Hr
12
-120
�$90.00
$1,080,00
10.0
General Settings
Hr
8
-80
$90,00
. . . . .. . .. .. .. .. ... .. ... ... ... ... ... .. ...
$720.00
.. ... . ...........
11.0
Activity Registration Implementation & Training
Hr
16
-160
$90.00
$1,440,00
12.0
Enhanced Customer Relationship Management
Hr
4
-40
$90,00
$361100
Implementation & Training
GENERALTERMS
13D Facility Reservations Implementation & Training Hr iU
14.0 Advanced Facility Reservations (Resource Scheduler)
|m � en�8on&T�n�n��� ������ �
15.0 ~ Advanced Foc|UyReservations (Online Interactive
16.0 League Scheduling Implementation & Training
170 Membership /Pass Management Implementation &
Training
Hr 4
__ __ _
_160$90.00 $1,44000
'40 *SO-D0
Hr 4 40 $90I0 $30000
Hr 8 -80 $90l0 $720D0
Hr 16
18.0 Point ofSale Implementation &Training Hr 8
'100 $90.00 $1,440.00
-80 $90,00 $720.00
190 Public Access Implementation &Training Hr 10 '160 *90-00 $1�40.00
20.0 AutiveNet'Daily Onsite days) Day 5
21.0 Public Access Optimization
Category Subtotal
ActiveNet.SaaS.Onlin-- Transactions
8ctiveNet.QorviooCon suiting Hosted
ActivoNn{.8nrviuo.RemhumodTnave
Hr 3
Subtotal .(Selling Price)
Subtotal (Selling Price)
Subtotal (Selling Price)
'250 $450-00 $2.250.00
-310 $0.00 $0.00
$11,790,00
Tax
Ol7\TE (Rate 7%) $0.00
IN" OWN
Ongoing Fees
Customer is opting -out ofboth the Reader Rewards (online magazine) and Active Advantage offers and as
such the transaction pricing is as follows'.
Offline Service Charge
Payments entered by Customer staff through the ofOine interface will be assessed a: 2% Service Charge. Non -
monetary transactions will be exenlptfrom this Service Charge.
An additional Processing Surcharge of will be applied to nff|ine
processing payments. Refunds will baassessed mten nent(a010\Refund Fee.
All off line Service Charges will bmpaid for bythe Customer and will beabsorbed iODff|inetransaction totals.
Online Service ChaMe
Payments entered directly by participants through the online interfaoe will be assessed a8e[Vice Charge of
equal to for payments less than one hundred and fifty do||@[S
($150.00). for payments less than five hundred
doHoro ($500.00) but equal to ormore than $150, and 2.5% of the payments, plus ten dollars and fifty cents
for payments greater than $500.
6
GENERAL TERMS
A minimum Service Charge of two dollars ( 2.00) will be assessed on all online payments.
All online Service Charges will be paid for by the Customer in addition to transaction totals.
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.
Onsite Services
Quoted prices for onsite services do not include airfare. If onsite services are required, economy airfare will be
assessed and invoiced separately. Onsite services are billed in minimum, 8 hour daily increments.
Hardware
All hardware sales are final. Hardware is covered by standard manufacturer's warranty. Equipment that is
defective upon arrival will be replaced. RMA process will apply for items after support has indicated there are
no alternatives. Customer must notify TAN in writing of any defective hardware within 7 days of its receipt. Any
notices received after 7 days concerning defective hardware will be null and void and will not be accepted for
return or replacement by TAN. Thereafter, the standard manufacturer's warranty will apply.
GENERALTERMS
EXHIBIT 2
SERVICES EXHIBIT
INTENTIONALLY LEFT BLANK
CENERALTERMS
EXHIBIT 3
MAINTENANCE ]EX.HIBIT
SUPPORT AND MAiNTENANGE HANDBOOK
The following supplies and services are included in Support and Maintenance:
• Unlimited toll free telephone support between 6:00am and 6:00pm Pacific Time, Monday through Friday via telephone
(800-663-4991), email or web portal(http:llcustornerportal..activenetwork.com)
• 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
o Support calls placed during extended support hours must be placed by an authorized contact person
o 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, discussion forums, knowledgebase and online training
materials.
• Regular documentation and communication
• Support also includes, if such assistance can be provided in 15 minutes or less:
o Assistance troubleshooting Third Party products i.e. Crystal Reports, Citrix client
o Assistance to isolate and/or troubleshoot difficulties resulting from sources other than Active Network products and
services, such as:
■ general network 1 internet support i.e. network access, printing, internet access
■ PC hardware troubleshooting
■ PC setup, configuration and optimization
■ Network operating system configuration and functionality
■ Basic Microsoft Windows functionality (i.e. Windows Explorer or Internet Explorer)
■ Loss of supervisor or other password
■ Network operating system configuration and functionality
The following supplies and services are included in Support and Maintenance for non -hosted customers:
■ New releases and versions of the software and free assistance in planning upgrades.
E
GENERALTERMS
The following supplies and services are included in Support and Maintenance:
IF Installation of new software releases
• Monitoring of connectivity and critical functionality at all times (24hr x 365 dayslyear) by highly skilled personnel using
an extensive series of automated probes from multiple locations
• Response to site -down l critical issues within one hour, with reasonable efforts to advise your organization of current
status and expected resolution time
• Service agreements between The Active Network and critical vendors essential to the continuing successful operation
of the hosted environment
• Scheduled maintenance to increase performance, fix defects or update applications, with reasonable efforts to notify
your organization of scheduled maintenance times and potential impacts to service.
• Urgent maintenance (done to correct network, hardware or software issues that are likely to cause significant service
disruption and that require immediate action), which may temporarily degrade service or cause outages. The Active
Network may undertake urgent maintenance at any time deemed necessary and shall provide status updates to your
organization as soon as possible.
TICKET RESOLUTION TARGETS
• New support incidents are assigned one of the following levels, each with its respective standard ticketaesolution
target:
Call
description
Standard
Priority Level
Completion Target
Priority 1
Fatal issues that result in the customer's inability to fulfill critical
1 business day
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 system but do not
2 business days
prevent core functions from being fulfilled
Priority 3
All other issues, except those classified as D (Low); i.e. how to
3 business days
questions, reportinglreconcTation issues
Priority 4
Issues that are not time -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
10
GENERALTERMS
• 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
• Database -specific services or assistance
The following actions wiil 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
:.
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CLOSED
New Year's Da January 1st)
✓
Martin Luther King Day.3rd Monday in January)
✓
President's Da 3rd Monday in February
✓
Good Friday Friday before Easter
✓
Victoria Day (3rd Monday in May)
✓
Memorial Da (Last Monday in May)
✓
Canada Day (July 1st)
✓
Independence Da Jul 4th)
✓
Civic holiday .(1st Monday in August
✓
Labor Da 1st Monday in September)
✓
Canadian Thanksgiving/Columbus Da (2nd Monday in October)
✓
Remembrance Da Veteran's Day (November 11th)✓
US Thanksgiving (4th Thursday in November)✓
Day after US Thanks ivin 4th Friday in November
✓
Christmas Day (Dec. 25th)
✓
Boxing Day December 26th
✓