10-129 Active Network products and services agreement a0tiMeNETWORK PRODUCTS AND SERVICES AGREEMENT
CUSTOMER INFORMATION
ORGANIZATION FULL City of Cupertino ADDRESS: 10300 Torre Avenue
LEGAL NAME: Cupertino, CA 95014
CONTACT NAME: Mariyah Epich Serratos TELEPHONE: 408-777-3189
EMAIL: MariyahS@cupertino.org FAX:
OVERVIEW OF AGREEMENT
This document(the"Agreement')consists of this cover page,the General Terms, and the following Schedules and
Exhibits(check all applicable Schedules)
X Schedule A: Hosted Software
Schedule B: Licensed Software; Support and Maintenance
Schedule C: Third Party Products
X Exhibit 1: Pricing Form
Exhibit 2: Services Exhibit
Exhibit 3: Maintenance Exhibit
NOTE: If customer is tax exempt, certificate must be provided alonjZ with sinned contract
In consideration of the mutual promises and covenants contained in this Agreement,Customer and TAN hereby
agree to be bound by this Agreement.By signing below,Customer acknowledges and confirms that it has read the .
General Terms and all attached Schedules and understands that each forms an integral part of this Agreement.
CUSTOMER THE ACTIVE NETWORK, INC.("TAN")
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Signature Signature:
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Name: (�, Name: .
Title: �j I A�J A,6hl Title:
Date: / 0 Date:
The Active Network,-Inc., 10182 Telesis Court, San Diego, California 92121
Telephone: (858)964-3801,Fax:{4J,84 9698
C?�'-�-� x-32 •�17��
GENERAL.TERMS
GENERAL TERMS: TERMS APPLICABLE TO ALL Customer by TAN under any circumstances unless provided
PRODUCTS AND SERVICES under a separate licensing agreement.
1. INTERPRETATION (1) "Maintenance"means the provision of error investigation
and repair services as set out in sections 22 through 25,
1.1 Definitions. For the purposes of interpreting this Maintenance Exhibit 3, and the provision of new Versions and
Agreement, the following terms will have the following Releases in respect of the Licensed Software all as more
meanings: particularly set out in the Support and Maintenance Handbook.
(a) "Agreement" means this Products and Services
Agreement, inclusive of all Schedules. (m) "Module" means a single module element of Licensed
Software listed in the Pricing Form.
(b) "Concurrent Use"means use at the same moment in time
to access a given server computer (of any kind) owned or (n) "Online Services" means services, such as Internet
controlled by Customer. registration,that are enabled by Hosted Software and available to
the public via the Internet.
(c) "Customer" means the legal entity other than TAN (o) "Other Services" means Services other than Pre-Agreed
entering this Agreement. Services acquired by Customer under this Agreement or any
(d) "Database Server"means the single server computer upon further Professional Services as provided in an agreed Statement
which the Enterprise Database is resident. of Work,purchase order, or pricing form.
(e) "Effective Date"means the last date set forth on page one (p) "Payment Server"means a single server computer used by
of this Agreement. Customer to process electronic payments from its clients,having
(f) "Enterprise Database" means the MSDE, MS SQL a minimum configuration as set out in hardware specifications
previously described to Customer as applicable to the Licensed
Server, or Oracle database files containing customer data and Software to be installed and used upon it.
that are accessed by the Licensed Software.
(g) "Hosted Software"means computer code and programs, (q) "Pre-Agreed Services" means Services which are
in executable code form only,including related data files,rules, expressly listed in the Pricing Form as being acquired hereunder
parameters and documentation,.which have been created or by Customer.
licensed by TAN and are identified in the Pricing Form as (r) "Pricing Form"means the itemized pricing form attached
licensed (or sublicensed) to Customer by TAN in connection as Exhibit 1 to the Agreement listing the products and services
with this Agreement,and which reside on TAN's servers and are provided by TAN to the Customer under this Agreement
accessible by Customer's staff or Users via the Internet.
(s) "Products"means all Licensed Software,Hosted Software,
(h) "Internet Client"means a remote device capable of using Third Party products, and other products (including
the Internet to access selected Licensed Software on the Internet documentation)provided to Customer by or on behalf of TAN.
Server or the Enterprise Database on the Database Server via the (t) "Professional Services" means any and all types of
Internet Server. services which TAN provides, to Customer and/or to other
(i) "Internet Server"means a single server computer used by customers of TAN, in the course of TAN's business, including
'Customer which enables access to the Licensed Software by but not limited to services relating to the installation,
individuals using an Intranet or the Internet,having a minimum implementation, optimization, administration, training and
configuration as set out in hardware specifications previously troubleshooting of computers,computer software including the
described to Customer as applicable to the Licensed Software to Licensed Software, computer networks, databases, internet-
be installed and used upon it. related equipment and applications, but expressly excludes
Support and Maintenance. Professional Services that are not
(j) "IVR Server" means a single server computer used by included as part of the Pre-Agreed Services, as defined above,
Customer for voice-recognition and telephone-based,rather than shall be as set forth in any applicable and mutually agreed
computer-based, access to the Enterprise Database by statement(s)of work(each a"Statement of Work"). Each such
Customer's clients,having a minimum configuration as out in Statement of Work shall,upon mutual agreement by the parties,
hardware specifications previously described to Customer as • become part of and incorporated by reference into this
applicable to the Licensed Software to be installed and used Agreement.
upon it.
(k) "Licensed Software"means computer code and programs, (u) "Related Third Party Documentation" means any end
in executable code form only,including related data files,rules, specifications, manuals, instructions, and other materials, and
parameters and documentation, which have been created or any copies of any of the foregoing,in any medium,related to the
licensed by TAN and are identified in the Pricing Form as Third Party Products and supplied by TAN to Customer with the
licensed (or sublicensed) to Customer by TAN in connection Third Party Products.
with this Agreement,and/or which are in the future provided to
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GENERALTERMS
(v) "Release" means any release, update, patch, set of system configuration and functionality; basic Microsoft
revisions, or bug/permanent fix or temporary bypass solution Corporation"Windows"functionality(for example,using File
released by TAN to its customers generally during the term of Manager or Explorer), modem configuration & setup; data
this Agreement, which provides enhancements and/or error corruption due to lack of disk space; and loss of supervisor or
corrections to the then-current Version or Release,and where a other password, all as further set out in the Support and
new Version has been released and no new Release has been Maintenance Handbook.
released since the release of that Version,that Version will also (ff) "User"means a person who accesses and uses any of the
constitute a Release for the purpose of determining whether Products in any manner whatsoever.
Support or Maintenance is available with respect to that Version.
New Releases will be denoted by an increase to the version (gg) "Version" means a version of the Licensed Software
number to the right of the decimal point such as from providing a particular functionality,while a new Version of the
Release 1.1 to Release 1.2. Licensed Software will provide new/additional functionality
(w) "Services" means all Professional Services, Support and and/or improvements to a previous Version.New Versions will
Maintenance, Online Services, and other services provided to be denoted by a change to the version number to the left of the
Customer by or on behalf of TAN. decimal point such as from Version 1.0 to Version 2.0.
(hh) "Workstation" means a computer attached to a local or
(x) "Software"means the Licensed Software and the Hosted wide-area network (including an Intranet), which accesses the
Software as defined elsewhere in this section. Licensed Software or Enterprise Database.
(y) "Support" means the ongoing telephone, email, web- 1.2 Headings. The headings contained in this Agreement are
based and dial-in support and problem resolution to assist inserted for convenience and do not form a part of this
Customer in the use of the Licensed Software, the Hosted Agreement and are not intended to interpret,define or limit the
Software,and other services and products of TAN as set out in scope,extent or intent of this Agreement or any provision hereof.
the Support and Maintenance Handbook.
(z) "Support and Maintenance Handbook" means the 2. CHARGES AND PAYMENTS
documents published by TAN setting out the applicable service 2.1 Taxes and Other Charges.Customer will pay all shipping
levels, processes, restrictions, and other particulars of Support &handling costs and,unless exempted by law and unless a valid
and Maintenance provided in respect of the Software and Other tax exemption certificate has been provided to TAN prior to
Services and Products of TAN, as amended from time to time invoicing,all applicable sales,use,withholding and excise taxes,
upon notice to Customer. and any other assessments against Customer in the nature of
(aa) "Support and Maintenance Start Date" means, for taxes,duties or charges however designated on the Services and
implementations performed by TAN, the first day of Products or their license or use, on or resulting from this
implementation of the Licensed Software or 90 days following Agreement,exclusive of taxes based on the net income of TAN.
Sales and any other applicable taxes,duties,or any other charges
the delivery of the Licensed Software, whichever occurs first,
in the nature of taxes and duties are not included unless
and upon delivery of the Licensed Software for implementations
specifically
being performed by the customer ora 3`d party vendor. identified as line items in the Pricing Form.
2.2 Currency.Unless otherwise indicated in the Pricing Form,
(bb) "System Utilities" includes the following: Accounting
all prices are in the currency of the country in which the
Processes, Central Login, Log File, Copy Database, Maintain
Database, MSDE Tool, Oracle Setup Utility, Query Tool, Customer is located.
System Maintenance,Upgrade Database and View Components. 2.3 Delivery.Delivery for the Products supplied by TAN under
this Agreement will be deemed to have occurred F.O.B. origin,
(cc) "TAN" means The Active Network as referenced on the which in the case of Licensed Software and/or Hosted Software
first page of this Agreement. will typically be in the form of an email from TAN providing a
(dd) "Third Party Products"means those hardware,firmware FTP(i.e. file transfer protocol)downloadable link.
and/or software products, provided to TAN by third parties, 2.4 Invoices/Payment.TAN will provide invoices to Customer
listed in the Pricing Form, together with all user manuals and for all amounts owing by Customer hereunder. Such invoices
other documents accompanying the delivery of the Third Party are to be provided as indicated in the attached Schedules or
Products, provided that the Third Party Products shall not Pricing Form,and subsequently due within 30 days from the date
include software developed by TAN. of invoice.
(ee) "Third Party Products Support" means assistance to 3. CUSTOMER INFORMATION;CONFIDENTIALITY
isolate the source of problems and/or to troubleshoot difficulties
resulting from sources other than TAN products or services,such 3.1 Customer Information. In order to assist TAN in the
as general network support (for example network access, successful provision or services and products to Customer,
printing,backup&restoration);PC hardware trouble shooting; Customer shall provide to TAN all information relating to
PC setup, configuration and optimization; network operating Customer's organization, technology platforms, systems
2
GENERALTERMS
configurations,and business processes and otherwise relating to non-conformity which is reported to TAN in writing by
Customer as is reasonably requested by TAN from time to time. Customer within that Warranty Period. In the event TAN is
3.2 Confidential Information. unable to remedy such non-conformity within a reasonable,time
using reasonable efforts,a) in respect to the Licensed Software
(a) In the performance of or otherwise in connection with this TAN may refund to Customer the license fee pertaining to the
Agreement, one party ("Disclosing Party") may disclose to the Licensed Software,subject to Customer's return of the Licensed
other party("Receiving Party")certain Confidential Information Software,and this Agreement will be automatically terminated,
of the Disclosing Party. "Confidential Information" means any or b) in respect to Hosted Software TAN may refund to
information of either party,which is not generally known to the Customer the fees paid by the Customer to TAN for Services
public, whether of a technical, business or other nature . provided to implement the Hosted Software,and this Agreement
(including, but not necessarily limited to: trade secrets, know will be automatically terminated . All warranty service will be
how,computer program source codes,and information relating performed at service locations designated by TAN. This Limited
to the customers, business plans, promotional and marketing Warranty is void if failure of the Software has resulted from
activities, finances and other business affairs of such party); accident, abuse or misapplication. Any replacement Software
provided that the same is conspicuously marked or otherwise will be warranted for the remainder of the original warranty
identified as confidential or proprietary information prior to, period or 30 days,whichever is longer.
upon or promptly after receipt by the other party; and provided S. EXCLUSION OF WARRANTIES AND
further that the any software or software application server LIMITATION OF LIABILITY
source code provided by TAN or its licensors shall be deemed to
constitute Confidential Information without further designation 5.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES.
by TAN. The Receiving Party will treat such Confidential THE EXPRESS WARRANTIES SET OUT IN THIS
Information as confidential andproprietary of the Disclosing AGREEMENT ARE IN LIEU OF ALL OTHER
Party and will use such Confidential Information solely for the WARRANTIES, AND THERE ARE NO OTHER
purposes for which it is provided by the Disclosing Party and WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
will not disclose such Confidential Information to any third party GUARANTEES OF ANY KIND WHATSOEVER
(other than a third party under contract whereby that third party APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW
has agreed in writing to keep the Confidential Information (IN CONTRACT OR TORT OR OTHERWISE)OR CUSTOM,
confidential). INCLUDING,BUT NOT LIMITED TO THOSE REGARDING
(b) Exclusions. The obligations under this paragraph will not MERCHANTABILITY, FITNESS FOR PURPOSE,
apply to an i use or disclosure of an information pursuant to DURABILITY, CORRESPONDENCE TO SAMPLE, TITLE,
pp y y:() y DESIGN, CONDITION OR QUALITY. WITHOUT
the exercise of the Receiving Party's rights under this LIMITING THE ABOVE, TAN DOES NOT WARRANT
Agreement; (ii) information that is now or later becomes THAT ANY PRODUCTS OR SERVICES PROVIDED
publicly available through no fault of the Receiving Party; (iii) HEREUNDER WILL MEET THE REQUIREMENTS OF
information that is obtained by the Receiving Party from a third CUSTOMER OR THAT THE OPERATION OF PRODUCTS
party authorized to make, such disclosure (other than in PROVIDED HEREUNDER WILL BE FREE FROM
connection with this Agreement) without any obligation of INTERRUPTION OR ERRORS.
secrecy or confidentiality;(iv)information that is independently
developed by the Receiving Party(e.g.,without reference to any 5.2 . RESTRICTIONS ON WARRANTY. TAN HAS NO
Confidential Information); (v) any disclosure required by OBLIGATION TO REPAIR OR REPLACE PRODUCTS
applicable law (e.g., pursuant to applicable securities laws or DAMAGED BY ACCIDENT OR OTHER EXTERNAL
legal process), provided that the Receiving Party will use CAUSE OR THROUGH THE FAULT OR NEGLIGENCE OF
reasonable efforts to give advance notice to and cooperate with ANY PARTY OTHER THAN TAN.
the Disclosing Party in connection with any such disclosure;and 5.3 NO INDIRECT DAMAGES. WITHOUT LIMITING
(vi)any disclosure with the consent of the Disclosing Party. THE GENERALITY OF SECTIONS 5.1 AND 5.4, IN NO
4. WARRANTY EVENT WILL TAN BE LIABLE TO CUSTOMER OR TO
Limited Warranty of Software. TAN warrants that when ANY OTHER PARTY FOR INDIRECT DAMAGES OR
utilized by Customer in a manner authorized hereunder, the LOSSES (IN CONTRACT OR TORT OR OTHERWISE),
Sofrivare will conform to the functional specifications set out in INCLUDING BUT NOT LIMITED TO DAMAGES FOR
the user documentation accompanying the Software for ninety LOST PROFITS, LOST SAVINGS, LOST DATA, LOSS OF
(90) days from delivery of the Software ("Warranty Period"). USE OF INFORMATION OR SERVICES,OR INCIDENTAL,
Delivery shall be deemed to have occurred upon TAN's email CONSEQUENTIAL, OR SPECIAL DAMAGES.
transmission of an FTP link to Customer permitting download of 5.4 LIMITS ON LIABILITY.IF,FOR ANY REASON,TAN
the Sofrivare from TAN's designated online site, or where BECOMES LIABLE TO CUSTOMER OR ANY OTHER
delivered in the form of physical media, F.O.B. origin. TAN's PARTY FOR DIRECT OR ANY OTHER DAMAGES FOR
sole obligation and liability hereunder with respect to any failure ANY CAUSE WHATSOEVER,AND REGARDLESS OF THE
to so perform will be to use reasonable efforts to remedy any
3
GENERALTERMS
FORM OF ACTION (IN CONTRACT OR TORT OR of liability) set out in the applicable documentation (paper or
OTHERWISE),THEN: electronic)or read me files.
(a) THE AGGREGATE LIABILITY OF TAN TO 7. TERMINATION
CUSTOMER AND ALL OTHER PARTIES IN CONNECTION 7.1 Termination.This Agreement will terminate:
WITH THE PRODUCTS AND THE SERVICES WILL BE
LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT (a) at the option of either party if the other party materially
PAID TO TAN HEREUNDER,DURING THE TWO YEARS defaults in the performance or observance of any of its
PRECEDING THE LAST INCIDENT GIVING RISE TO THE obligations hereunder and fails to remedy the default within 30
LIABILITY;AND days after receiving written notice thereof,and
(b) IN ANY CASE CUSTOMER MAY NOT BRING OR (b) without limiting (a), at the option of TAN if Customer
INITIATE ANY ACTION OR PROCEEDING AGAINST TAN breaches section 2 of this Agreement,provided that the right of
ARISING OUT OF THIS AGREEMENT OR RELATING TO termination will be in addition to all other rights and remedies
ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER available to the parties for breach or default by the other.
MORE THAN TWO YEARS AFTER THE RELEVANT 7.2 Suspension of Obligations. If either party should
CAUSE OF ACTION HAS ARISEN. materially default in the performance or observance of any of its
5.5 SEPARATE ENFORCEABILITY. SECTIONS 5.1 obligations hereunder, then, in addition to all other rights and
THROUGH 5.4 ARE TO BE CONSTRUED AS SEPARATE remedies available to the non-defaulting party, the non-
PROVISIONS AND WILL EACH BE INDIVIDUALLY defaulting party may suspend performance and observance of
ENFORCEABLE. any or all its obligations under this Agreement,without liability,
6. RESTRICTIONS until the other party's default is remedied,provided however that
this section will not permit Customer to suspend its obligation to
6.1 U.S. GOVERNMENT RESTRICTED RIGHTS. The make any payments due for Products or Services that are
Products are provided with restricted rights.Use,duplication,or unrelated to any default alleged against TAN.
disclosure by the U.S. Government is subject to restrictions as 7.3 Return of Materials. In the event of termination of this
set forth in subparagraph(c)(1)(ii)of The Rights in Technical Agreement for any reason whatsoever, Customer will
Data and Computer Software clause at DFARS 252.227-7013,or immediately (i) return to TAN all physical copies of Products
subparagraphs (c) (1) and (2) of the Commercial Computer
Software-Restricted Rights at 48 CFR 52.227-19,as applicable. delivered by TAN to Customer or otherwise in Customer's
The Manufacturer is The Active Network, Inc., 10182 Telesis possession or control, or (ii) if expressly permitted by TAN,
Court, San Diego,California,United States,92121. destroy all physical copies of the Products not returned to TAN
and delete all electronic copies of the Products from its systems
6.2 Export Restrictions.The Products may include encryption and certify in writing to TAN that such actions have all been
software or other encryption technologies that may be controlled completed.
for import,export,or purposes under the laws and regulations of S. AUDIT AND MONITORING RIGHTS
the countries and/or territories in which the Products are used
("Applicable Law"). Customer may not export, re-export, or TAN may, upon a minimum of 24 hours written notice to
assist or facilitate in any manner the export or re-export of,any Customer,attend upon Customer's premises and verify that the
portion of the Products,as determined by Applicable Law under Products are being used only as permitted hereby. Such
which the Customer operates: (i) to any country on Canada's inspections shall be limited to a maximum of twice per calendar
Area Control List; (ii)to any country subject to UN Security year, and will be performed only during Customer's regular
Council embargo or action; (iii) contrary to Canada's Export business hours and conducted in a manner as to minimize,to the
Control List Item 5505; (iv) to countries subject to U.S. extent reasonable, interference with Customer's business.
economic sanctions and embargoes;and(v)to persons or entities Further, TAN may, using automatic means which do not
prohibited from receiving U.S. exports or U.S.-origin items. interfere with the use of the Products by Customer or Users other
Customer hereby represents and covenants that:(i)to the best of than as described in this provision,monitor at any time usage of
Customer's knowledge Customer is eligible to receive the the Products by Customer and or its Users including through
Products under Applicable Law; (ii)Customer will import, monitoring of the number of copies of any particular Module(s)
export,or re-export the Products to,or use the Products in,any in Concurrent Use.
country or territory only in accordance with Applicable Law;and 9, INTELLECTUAL PROPERTY RIGHTS
(iii) Customer will ensure that Customer's Users use the
Products in accordance with the foregoing restrictions. 9.1 Warranty of Title. TAN warrants that it has all rights
6.3 Third Party Software and Open Source Components. necessary to make the grant of license herein by having all right,
The Software may contain open source components or other title,and interest in and to the Products(other than Third Party
third party software of which the use, modification, and Products)or as licensee of all such rights from the owner thereof
distribution is governed by license terms(including limitations
4
GENERALTERMS
9.2 Intellectual Property. TAN and its licensors shall retain available after using reasonable commercial efforts or,if neither
all right,title, and interest in and to the Products and the results of the foregoing options is commercially reasonable, refund a
of the Services and to all software, trademarks, service marks, pro-rata portion of the fees paid by Customer based on its lost
logos, and trade names and other worldwide proprietary rights use and terminate this Agreement. Notwithstanding the
related thereto("Intellectual Property").Customer shall use the . foregoing, TAN shall not indemnify, defend or hold harmless
Intellectual Property only as provided by TAN, and shall not Customer for any claims solely based on: (x)any Customer or
alter the Intellectual Property in any way,or act or permit action third party intellectual property or software incorporated in or
in any way that would impair TAN's or its licensors'rights in its combined with the Licensed Software where in the absence of
Intellectual Property.Customer acknowledges that its use of the such incorporated or combined item,there would not have been
Intellectual Property shall not create in Customer or any other infringement, but excluding any third party software or
person any right, title, or interest in or to such Intellectual intellectual property incorporated into the Software at TAN's
Property.Any goodwill accruing from the use of the Intellectual discretion; (y) Software which has been altered or modified by
Property shall inure solely to the benefit of TAN or its licensors, Customer, by any third party or by TAN at the request of
as applicable. Customer (where TAN had no discretion as to the
9.3 Restrictions.Customer will not anytime whether before or implementation of modifications to the Software or
after the termination of this Agreement: documentation directed by Customer), where in the absence of
such alteration or modification the Software would not be
(a) reverse engineer,disassemble, or decompile any Products infringing;or(z)use of any version of the Software with respect
or prepare derivative works thereof; to which TAN has made available a non-infringing updated,
revised or repaired subsequent version or other applicable
(b) copy, transfer, display, or use the.Products except as update,patch or fix;
expressly authorized in this Agreement or in the applicable
documentation;
(b) Customer Indemnity. Except where precluded by
(c) disclose, furnish, or make accessible to anyone any applicable law (e.g. sovereign immunity of a governmental
confidential information received from TAN or make any use entity), the Customer agrees to indemnify, defend and hold
thereof other than as expressly permitted under this Agreement, harmless TAN, its officers, directors, employees, affiliate
which confidential information is deemed to include the source entities,subcontractors,vendors and agents from and against all
and executable code of the Software and all related damages and costs(includingreasonable attorneys'fees)finally
documentation; awarded against TAN(or finally settled upon)and arising from:
(d) contest or do or aid others in contesting or doing anything (i) any violation of law or claim of personal injury or tangible
personal property damage arising, in whole or in part,out of or
which impairs the validity of any proprietary or intellectual in connection with the gross negligent or wilful misconduct of
property rights,title,or interest of TAN in and to any Products;
or Customer,its employees,subcontractors or ag ( )gents;(ii)any claim
brought against TAN by a third party alleging that any Customer
(e) obliterate, alter, or remove any proprietary or intellectual provided materials provided to TAN under this Agreement
property notices from the Products in physical or electronic directly infringe any U.S. copyright or trademark or
forms. misappropriate any trade secret in existence as of the Effective
Date; or (iii) any claim brought'against TAN by a third party
10. INDEMNIFICATION arising from or relating to any modification of the Licensed
(a) TAN Indemnity. TAN agrees to indemnify, defend and Software by Customer or any use of the Software other than as
hold harmless Customer, its officers, directors, employees and permitted under this Agreement. Customer shall not indemnify,
agents from and against all damages and costs (including defend or hold harmless TAN for any claims arising from: (A)
reasonable attorneys'fees)finally awarded against Customer(or any TAN intellectual property or software incorporated in or
finally settled upon) and arising from or relating to: (i) any combined with the Customer provided materials where in the
violation of law or claim of personal injury or tangible personal absence of such incorporated or combined item,there would not
property damage arising, in whole or in part, out of or in have been infringement;(B)Customer provided materials which
connection with the gross negligent or wilful misconduct of have been altered or modified by TAN as part of this Agreement,
TAN; and (ii) any claim brought against Customer by a third where in the absence of such alteration or modification the
party alleging that the Licensed Software directly infringes any Customer materials would not be infringing, (C) use of an any.
patent, copyright,trademark or other intellectual property right version of the Customer provided materials for which Customer
or misappropriates any trade secret. If any claim that TAN is has made available an updated, revised or repaired subsequent
obligated to defend has occurred or, in TAN's opinion, is likely. version; or (D) the gross negligence or wilful misconduct of
to occur,TAN may, at its option and expense either(1) obtain TAN or any of its agents, subcontractors or employees. Upon
for Customer'the right to continue to use the applicable notice of any claim of infringement or upon reasonable belief of
Software,(2)replace or modify the Software so it becomes non- the likelihood of such a claim,Customer shall have the right,at
infringing,without materially adversely affecting the Software's its option, to: (x) obtain the rights to continued use of the
specified functionality, or (3) if (1) or (2) are not readily Customer materials by TAN; (y) substitute other suitable,
5
GENERALTERMS
functionally-equivalent,non-infringing materials;or(z)replace deposited in the mails,postage pre-paid,certified or registered,
or modify the Customer provided materials or their design so return receipt requested,and addressed to the parties as indicated
that they are no longer infringing. on the face of this Agreement or such other address of which the
party gives notice in accordance herewith, and receipt of any
(c) Indemnification Claims Procedure. Each Party's such notice will be deemed to be effective as of the third
indemnification obligations hereunder are conditioned upon(A) business day following such deposit. .
prompt written notice of the existence of a claim,suit,action or 11.4 Governing Law. This Agreement and performance
proceeding (each a "Claim") for which a Party seeks hereunder will be governed by the laws of the jurisdiction in
indemnification from the other Party,provided that a failure of which the Customer is located as indicated on the face of this
prompt notification shall not relieve the indemnifying Party of Agreement,except that(i)in the case of Louisiana,the laws of
liability hereunder except to the extent that defenses'to such California will apply,and(ii)in the case of Qu6bec,the laws of
Claim are materially impaired by such failure of prompt Ontario will apply.
notification; (B) sole control over the defense or settlement of pp y'
such Claim by the Indemnifying Party;and(C)the provision of 11.5 Attorney Fees.In any action or suit to enforce any right or
assistance by the indemnified Party at the indemnifying Party's remedy under this Agreement or to interpret any provision of this
request to the extent reasonably necessary for the defense of such Agreement,the prevailing party shall be entitled to recover its
Claim. costs, including reasonable attorneys'fees.
ii. GENERAL 11.6 Non-Assignability.Neither party may assign its rights or
obligations arising out of this Agreement without the other
11.1 Entire Agreement. This Agreement, including all party's prior written consent, except that TAN may assign this
attachments and referenced schedules,constitutes the complete Agreement in connection with any sale or security interest
and exclusive statement of the agreement between TAN and involving all or substantially all of its assets or any other
Customer with respect to the subject matter hereof. It supersedes transaction in which more than fifty percent of its voting
and replaces all oral or written RFPs, proposals, prior securities are transferred.
agreements,and other prior communications between the parties 11.7 Term and Survival. The term of this Agreement shall
concerning the subject matter of this Agreement. This
commence on the Effective Date set out on the cover page hereof
Agreement may not be modified or altered except by written
and shall continue as set forth in Sections 18.1 or 25.1, as
instrument duly executed by both parties,except that TAN may
fill future purchase or other orders for further goods or services applicable, or until terminated in accordance with Section 7.
available under this Agreement and, if TAN does so, the Sections 1.1, 5, 7.3, 9.2, 9.3, 10, 11, 29.1, and 29.2 of this
provisions of this Agreement will contain the only commercial Agreement, along with all unpaid payment obligations, will
terms applicable to such transaction despite such purchase or survive termination and expiration of this Agreement.
other order stating otherwise. Any Addendum attached hereto 11.8 No Authority to Bind. Neither party shall incur any
shall form an integral part of this Agreement and,in the event of obligations for or in the name of the other party, or have the
any inconsistency between these General Terms and any authority to bind or obligate the other party. Neither party shall
Addendum,the provisions of the Addendum shall prevail. Any make,issue or authorize any statements(whether oral or written)
`click-wrap' agreement,terms of use,electronic acceptance or in contravention of the foregoing.
other terms and conditions which attempt to govern the subject
matter of this Agreement that Customer might be required to 11.9 Counterparts. This Agreement may be executed in
separate counterparts and delivered by facsimile or such other
acknowledge or accept before using a TAN product are of no
force and effect as between Customer and TAN and are electronic means as are available to the Parties. Such
superseded by this Agreement. counterparts taken together shall constitute one and the same
original document.
11.2 Force Majeure. Dates or times by which either party is
required to perform under this Agreement, excepting the 11.10 Severability. If any provision of this Agreement is
payment of any fees or charges due hereunder,will be postponed held by a court of competent jurisdiction to be invalid,
automatically to the extent that any party is prevented from unenforceable, or void, the remainder of this Agreement and
meeting them by causes beyond its reasonable control,provided such provisions shall remain in full force and effect.
such party promptly notifies the other thereof and makes 11.11 Cooperative Procurement. Upon consent by TAN,
reasonable efforts to perform. this Agreement may be used for permitted cooperative
11.3 Notices. All notices and requests in connection with this procurement by any public or municipal body,entity,agency or
Agreement will be given to the respective parties in writing and institution. If so authorized, and in order to forego a related
will be deemed given as of the first business day of the notified entity RFP or similar competitive bidding process, the
party following the day the notice is faxed or sent via overnight Agreement may be extended to such other entities indicated
courier, providing a hard copy acknowledgment of such above for the procurement of similar products and/or services
successful faxed notice transmission or evidence of such provided to Customer herein and at fees in accordance with the
couriering, as applicable, is retained. Notice may also be Agreement unless separately negotiated between such other
6
GENERAL TERMS
entities and TAN. Further related entities participating in a reasonably, in any medium used by Customer to promote its
cooperative procurement process shall place their own orders programs or services to prospective participants.
directly with TAN and will fully and independently administer 15. INFORMATION SECURITY AND PRIVACY FOR
their use of the Agreement to include such contractual as those HOSTED SOFTWARE
entities and TAN deem appropriate without direct administration
from the original Customer. TAN will collect information, including names, addresses,
gender, phone numbers, email addresses, birth dates, financial
SCHEDULE A: TERMS APPLICABLE ONLY TO information(for payment purposes)and other such information
HOSTED SOFTWARE from individuals using the Online Services as is reasonably
required to provide the Services. TAN' will store such
12. HOSTED SOFTWARE information on a secure remote server using reasonable
12.1 TAN will provide Customer with access to hosted versions safeguards in accordance with TAN's published online privacy
of the products identified in the Pricing Form and associated policies and in compliance with all applicable laws, codes of
practiceand other le
Online Services,and TAN hereby grants to Customer a limited, , gal obligations associated with the
non-exclusive, non-transferable license to use the Hosted collection, use, and disclosure of personal information.
Customer may access this information by downloading it from
Sofrivare in accordance with the applicable documentation. _ TAN's servers using a Customer assigned private password and.
12.2 Customer elects to receive notifications of free product, "login" identifier. Upon, request TAN will make such
promotional items and giveaways through the TAN program information available to Customer via e-mail, fax or airmail.
known as ActiveRewards. TAN will offer the Customer(and for Customer will be responsible for protecting the privacy and
the purposes of clarification not to your users directly) security of any information that Customer retrieves from TAN's
opportunities for free product,promotional items and giveaways servers and shall prevent any unauthorized or illegal use or
at your event(s) or facility(ies) as applicable, the exact manner dissemination of such information and shall be solely responsible
and type of which will be mutually agreed upon by you and TAN for ensuring compliance with any applicable data and privacy
upon your acceptance of a particular program. protection laws, codes of practice, and other legal obligations
12.3 Customer understands that some TAN products may associated with the collection, use, and disclosure of personal
information by Customer,including such disclosure to TAN as
contain TAN or third party promotions or offers to users and is necessary for TAN to provide the Services and Products to
such offers will be made to individuals on an opt-in basis. TAN Customer. Customer and/or its clients shall exclusively own the
(and any such third party)shall be responsible for administration personal data collected by TAN in connection with the Hosted
and customer service issues on any such offer or promotion. Software; provided, however, TAN is granted a royalty-free,
13. SUPPORT FOR HOSTED SOFTWARE perpetual, non-exclusive right and license to use, reproduce,
distribute and adapt the collected data as is necessary for TAN to
TAN will, during all periods in respect of which Customer has perform its obligations under this Agreement, including for
subscribed for Hosted Software, provide Support to Customer purposes of communicating with Customer or Customer's clients
(and, where applicable, directly to users of Customer's own as necessary, fulfilling requests for products and services
services and products who access the Hosted Software) in requested from Customer or Customer's clients, providing
accordance with applicable sections of the Support and customized content and advertising provided in connection with
Maintenance Handbook. the Hosted Software,conducting internal TAN research intended
14. LICENSE AND BRANDING to improve the products and services provided by TAN and its
affiliates,and to provide anonymous and aggregated reporting of
TAN hereby grants to Customer a limited,non-exclusive,non- non-individual data for internal and external clients of Customer
transferable license to display,reproduce,distribute,and transmit or TAN. Any use of such data will conform with applicable
in digital form TAN's name and logo in connection with laws related to personal privacy and best practices around
promotion of the Online Services only in the manner approved of permissive marketing, such as use of"opt-in"and/or"opt-out"
by TAN during the term of this Agreement. Customer hereby notifications and rights.
grants to TAN a limited non-transferable license to use,display,
reproduce, distribute, adapt and transmit in digital or printed 16. FEES FOR HOSTED.SOFTWARE
form information provided by Customer relating to its 16.1 Transaction fees.
organization,including its name,trademarks,service marks and
logo, in connection with the implementation and promotion of (a) Customer shall pay to TAN the Hosted Software service
the Online Services;provided,however,that such use shall be as fees("Service Charge(s)")as set out in the Pricing Form
necessary to TAN's performance under this Agreement. (b) In cases where TAN's banking or financial partners or
Customer will make reasonable efforts to encourage adoption of similar service providers impose changes in processing costs
the Online Services,including displaying TAN's name and logo
or"Powered by TAN" logo, in the form supplied by TAN from Payable by TAN, TAN reserves the right to modify Service
Charges.TAN shall notify Customer at least ninety(90)days in
time to time and in a manner approved by TAN, acting advance of any such changes. Customer agrees to such changes
7
GENERALTERMS
unless Customer provides TAN with written objection to such — —_
charges within thirty (30) days from the date such change is SCHEDULE B: TERMS APPLICABLE ONLY TO
implemented. In the event Customer notifies TAN of its LICENSED SOFTWARE AND ASSOCIATED SUPPORT
objection to the changes as noted above,Customer's sole remedy AND MAINTENANCE SERVICES
shall be to immediately terminate the Agreement as applied to
the Hosted Software,subject to payment of any fees due prior to 19. ACCESS TO SYSTEM AND OTHER CUSTOMER
such notice of termination. OBLIGATIONS
(c) TAN will be responsible for collecting all payments 19.1 Access. Customer will provide,at no cost to TAN:
processed through the Online Services and all Service Charges
(a) subject to the security requirements of Customer,24 hour
assessed by TAN. All payments are Customer's exclusive
property and will be sent to Customer twice a month (or as access to Customer's system via either an always-available
otelephone circuit or an always available Internet connection to
otherwise indicated in the Pricing Form)while Service Charges
shall be retained by TAN. enable TAN or its designated representative to perform any of
the obligations placed upon TAN by this Agreement; and
(d) If Customer enters transactions at fee amounts less than
t (b). subject to the security requirements of Customer,remote
hose actually charged to Customer's Users, thus reducing or
dial up/Internet access methods approved by TAN to allow TAN
avoiding applicable Service Charges,such action shall constitute
a material breach le this Agreement. to remotely diagnose and correct errors in the Licensed Software
and provide other Services.
(e) TAN shall not be responsible for processing or making any 19.2 Customer Obligations. Without limiting any of
refunds.All refunds for payments processed will be assessed a
S.10 fee charged by TAN to Customer.TAN may set off against Customer's other obligations under this Agreement, Customer
user fees collected by TAN to the amount of any credit card will:
charge backs and associated fees applicable to user transactions (a) use its best efforts to upgrade to any new Release or
and to reimburse itself for any overdue fees owed to TAN by Version of the Licensed Software as soon as possible after
Customer.To the extent that such funds are not available for set becoming aware of its availability;
off,Customer shall promptly reimburse TAN for any deficiency.
(b) ensure that at all times at least one current staff person of
16.2 Subscription fees. Customer has been fully trained on the Licensed Software;and
Customer shall pay to TAN the Hosted Software subscription (c) designate by written notice a single site and single person
fees("Subscription Fees")set out in the Pricing Form and for as the point of contact for telephone or other contact,which site
the term of this Agreement established in Section 18 below. and/or person Customer may change upon 14 days prior notice to
Customer will be invoiced for their first year Subscription Fees TAN.
upon the first live operational use of the Hosted Software("Go- 20. GRANT OF LICENSES AND LIMITATIONS
Live Date"), with subsequent annual Subscription Fees being THEREON
invoiced upon each anniversary of Go-Live Date. Payment will
be made Net 30 days from invoice date. 20.1 TAN hereby grants to Customer a non-exclusive and
17. EXCLUSIVITY FOR HOSTED SOFTWARE non-transferable right and license,subject to this Agreement,to
install and/or use the Licensed Software,in the manner and for
TAN will,during all periods for which Customer has subscribed the term stated in the Pricing FormExhibit 1) and TAN
for Hosted Software, be the sole and exclusive provider to provided and related written user documentation as follows:
Customer of the Hosted Software and Online Services, or any
products or services substantially similar thereto,for the part of (a) Workstation-Based Modules. In respect of each
Customer's organization utilizing the Hosted Software and Workstation-based core Module and each Workstation-based
Online Services. add-on Module,Customer may install and use each Module on
Workstations to access the Enterprise Database on the Database
18. TERM FOR HOSTED SOFTWARE Server, provided that the number of copies of any particular
Unless otherwise provided in the Pricing Form, TAN shall Module in use does not exceed the number of licenses granted to
provide to Customer,and Customer shall purchase from TAN, Customer therefore as set out in the Pricing Form.
the Hosted Software commencing on the Effective Date of this (b) Server-based Add-on Modules.Customer may install and
Agreement,and remaining in full force for a period of three(3) use each server-based Module on as many Workstations as is
years from the Go-Live Date of the Hosted Software(the"Initial desired by Customer,and Customer may use and permit use of
Term"),with automatic renewals for three(3)year terms(each such Modules by its clients, all without limit to the number of
a"Renewal Term")thereafter until either party gives written Users or transactions which simultaneously use any such
notice to terminate the Hosted Software no less than twelve(12) Module,provided however that:
months prior to the end of the Initial Term or Renewal Term,as (i) in respect of each TeleReg & Voice Server Module,
applicable.
Customer may install one copy of each Module on one
8
GENERAL TERMS
IVR Server,provided that the number of copies of any 20.2 Additional Copies.Customer will not make any copies of
particular Module in use does not exceed the number of the Licensed Software except as necessary for the installation
licenses granted to Customer therefore as set out in the permitted hereby and except for:
Pricing Form,and all such Modules together may be in
Concurrent Use not to exceed the number of licenses (a) copies of each Module licensed hereunder for training and
granted to Customer for TeleReg Lines Modules as set testing purposes, and
out in the Pricing Form; and (b) for backup purposes, provided that all electronic copies
made include screen displays of TAN's proprietary or intellectual
(ii) in respect of each Payment Server Module, such property notices as recorded on the original copy provided by
Modules may be in Concurrent Use not to exceed the TAN and Customer affixes a label to each disk, reel, or other
number of licenses granted to Customer for Point of housing for the medium on which each physical copy is recorded
Sale Modules as set out in the Pricing Form. setting out the same proprietary and intellectual property notices
as appear on the unit of Licensed Software from which the copy
(c) Server-based On-line(Internet) Modules. In respect of is made in the same manner as those notices appear on that
each Server-based On-line(Internet)Module, Customer may: original copy.
(i) install one copy of each Module on one Internet server, 21. LICENSED SOFTWARE FEES
provided that the number of copies of the Module in 21.1 In respect of each Module,Customer shall pay to TAN all
use does not exceed the number of licenses granted to applicable Licensed Software fees listed in the Pricing Form
Customer therefore as set out in the Pricing Form; and upon delivery (as defined in Section 2.3) of the Licensed
(ii) subject to 20(d), permit Users to access and use such Software.
Modules to access the Database Server via Internet 22. MAINTENANCE SERVICES
Clients connecting via a licensed Internet Server, and 22.1 TAN will develop new Releases and new Versions of
all such Modules together may be in Concurrent Use Licensed Software in accordance with the procedures and other
not to exceed the number of licenses granted to particulars set out in the Support and Maintenance Handbook
Customer for Online Client Access Modules as set out attached as Exhibit 3.
in the Pricing Form multiplied by twenty-five(25).
22.2 Provided that Customer continues to subscribe for Support
(d) Cumulative Workstation-based Modules. In respect of and Maintenance in respect of a particular Licensed Software
each Cumulative Workstation-based Module, Customer may: Product,TAN will provide to Customer,either in physical form
(i) install one copy of each Module on a single by mail or courier or in electronic form via the Internet, new
Releases and Versions(and appropriate documentation)for such
Workstation for each license granted to Customer Licensed Software Products on a when-and-if-available basis.
therefore as set out in the Pricing Form; and
23. EXCLUDED SUPPLIES AND.SERVICES
(ii) permit Users using such licensed Workstation(s)to use Without limitation, the following supplies and services are
such Module(s)provided,for greater certainty,that the excluded from Support and Maintenance:
Modules may be in Concurrent Use not to exceed the
number of licenses granted to Customer therefore as set (a) Services which are required to remedy problems that stem
out in the Pricing Form. from changes to or defects in system configuration upon which
the Licensed Software was initially installed;
(e) Customer hereby acknowledges that the mechanism (b) Services which are required to remedy problems which do
utilized by the Licensed Software to control the number of Users not stem from any defect in Licensed Software;
or Online Client Access which can simultaneously access and
use Server-based On-line(Internet)Modules is based upon the (c) Services which are required to remedy problems caused by
number of Users who have at any time logged into Customer's lack of training of Customer's personnel or improper treatment
computer network using their passwords, such that any User so or use of the Licensed Software;
logged into such network in a manner that would automatically
enable the User to access and use such Modules will reduce by (d) Full report customization service;
one the number of Users able to simultaneously access those (e) Any and all hardware support, maintenance or
Modules, regardless of whether or not such User is in fact troubleshooting issues, except as described in section 28
accessing or using any such Module. Customer hereby waives regardless of the source of such hardware.
any claim,and releases TAN from any such claim and from any 24. FEES FOR SUPPORT AND MAINTENANCE
losses or damages Customer suffers in relation thereto, in
connection with the inability of Users to simultaneously access 24.1 Support and Maintenance services begin for all Licensed
such Modules where such inability is the result of inactive Software listed in the Pricing Form on the Support and
logged-in Users absorbing available login access. Maintenance Start Date. The cost for Support and Maintenance
9
GENERALTERMS
services is payable annually in advance and is due in its entirety TAN invoice within 30 days of written notice of such failure,in
thirty(30)days from date ofTAN's delivered invoice. Customer the event of any other material breach by Customer which
may elect to specify a preferred alternate Support Renewal Date remains uncured 30 days after notice thereof or if any of the
by so notifying TAN in writing. If an alternate preferred Support Licensed Software ceases to be subject of a valid Software
Renewal Date is specified,the cost of Support and Maintenance License Agreement.
will be prorated from the anniversary of the Support and 24.7 If at any time after Customer has initially licensed any of
Maintenance Start Date to the specified SupportRenewal Date.
Thereafter, the Support and Maintenance fee is payable in the Licensed Software from TAN, Customer's right to receive
Support and Maintenance, or comparable services, from TAN
advance on every annual anniversary of the Support and
Maintenance Start Date or, if there is a Support Renewal Date, under this Agreement or a comparable agreement has lapsed for
every anniversary of the Support Renewal Date(the applicable any reason whatsoever,voluntarily or otherwise,and Customer
anniversary being the "Support Renewal Date"). TAN will wishes to receive Support and Maintenance from TAN,
provide invoices to Customer for all such amounts,such invoices Customer will pay to TAN, prior to re-instatement of Support
and Maintenance services:
due on the later of(a)the Support and Maintenance Start Date or
applicable Support Renewal Date,as applicable,and(b)30 days (a) a reinstatement fee equal to the greater of 50% of the
from the date of the invoice. current annual support fee or the sum of the unpaid support fees
24.2 For the first year of this Agreement commencing with the that would have been payable hereunder had this Agreement
Ebeen in force during the time in which Support and Maintenance
Effective Date,Support and Maintenance pricing shall be equal
to twenty-five percent(25%)of the gross software license fees. rights had so lapsed to the date of reinstatement, and
Support and Maintenance pricing for all successive years shall (b) at least one additional year of Support and Maintenance
be equal to twenty-five percent (25%) of the gross software from the date of reinstatement.
license pricing charged by TAN for equivalent software as of the 25. TERM FOR SUPPORT AND MAINTENANCE
date of each such renewal year, provided, however, that any
increase in TAN's annual Support and Maintenance pricing for 25.1 Term.TAN shall provide to Customer,and Customer shall
any renewal year shall not exceed ten percent (10%) of the purchase from TAN, Support and Maintenance for a period
renewal fees charged in the prior year. Any additional software commencing on the Support and Maintenance Start Date and,
licensed to Customer by TAN will increase the total gross subject to termination as provided herein, continuing until the
software license fees upon which Maintenance and Support following Support Renewal Date or anniversary of the Support
pricing is based. TAN will provide invoices to Customer for and Maintenance Start Date,with automatic renewals for one(1)
renewal fees up to 60 days prior to expiration of each term. year terms thereafter until either party gives written notice to
24.3 The Support and Maintenance fees identified in the Pricing terminate Support and the Maintenance no less than ninety(90)
days prior to the end of the then-current term,provided however
Form are applicable only upon the date of entry into this
Agreement, and are subject to change thereafter in accordance that the fees payable in respect of the Services and the Products
may be revised by TAN in accordance with this Agreement.
with this Agreement's terms.
24.4 In consideration of the Support and Maintenance provided
hereunder,Customer agrees to pay TAN the fees described in the SCHEDULE C:TERMS APPLICABLE ONLY TO THIRD
Pricing Form,as modified explicitly pursuant to this Agreement. PARTY PRODUCTS AND SERVICES
In the event Customer requires Support and Maintenance for 26. PURCHASE AND SALE; DELIVERY
additional Licensed Software,Customer agrees to pay TAN the
additional Support and Maintenance fees applicable based upon 26.1 Purchase Commitment and Price.TAN hereby agrees to
the fees then in effect, prorated from the date of agreement to sell to Customer,and Customer hereby agrees to purchase from
acquire such services to the Support Renewal Date. TAN,the Third Party Products listed in the Pricing Form in the
24.5 Unless the Pricing For in in dicates otherwise, the fees volumes and at the prices described therein.
charged hereunder are applicable to Support and Maintenance of 26.2 Delivery.TAN will ship all or any part of the Third Party
Licensed Software used with respect to only a single database of Products to Customer as soon as reasonably practicable (or, if
Customer data. If Customer, after entering this Agreement, the below-described purchase order documentation does not seek
places in service one or more additional databases to be used in immediate shipping, at the time TAN considers reasonable in
relation-to the Licensed Software,then for each such additional order to meet the desired delivery date described)after receipt by
database,an additional 25%of all gross Licensed Software fees TAN of a purchase order from Customer specifying the
due, exclusive of such extra database fees, will be payable particular Third Party Products sought,the number of such Third
hereunder for Support and Maintenance. Customer will notify Party Products sought, the price payable therefore, and the
TAN as soon as reasonably possible of the installation or use of desired date and location of delivery thereof. Any such purchase
any such additional database(s). order must, at a minimum, reference quantity, description and
24.6 TAN may terminate and suspend performance of all price.
Support and Maintenance if Customer fails to pay any past due
10
GENERAL TERMS
26.3 Changes by Customer to Delivery Schedule.Following Pricing Form, TAN will notify Customer of any such different
delivery by Customer of any purchase order documentation pricing and Customer will accept such different pricing, as
described in section 26.2, no changes by Customer to the mutually agreed between Customer and TAN, in writing.
shipment schedule described therein will be permitted unless 28. SUPPORT FOR THIRD PARTY PRODUCTS
TAN is notified thereof in writing at least ninety (90) days in
advance of the delivery date sought in such purchase order For the purpose of isolating support issues and responsibility in
documentation. respect of Third Party Products and their interaction with any
26.4 Acceptance of Purchase Orders. Purchase orders Products, TAN will provide initial first-tier support, .to a
maximum of
delivered by Customer to TAN in respect of Third Party fifteen(15)minutes per support inquiry,for Third
Products are not binding upon TAN until accepted by TAN in Party Products, as further specified in the Support and
Maintenance Handbook.
writing. In any case, despite any indication to the contrary
contained in any such purchase order documentation,no terms or 29. PROPRIETARY RIGHTS
conditions on purchase order documentation issued by Customer,
other than the information required by TAN as set forth 29.1 Third Party Proprietary Rights and Indemnity by
expressly in this Agreement,will be binding upon TAN,nor will Customer. Customer acknowledges that any Third Party
any such terms or conditions modify or supplement this Products supplied by TAN hereunder are supplied by TAN as a
Agreement in any way,notwithstanding the fact that TAN may reseller thereof and that the Third Party Products are subject to
accept or otherwise approve such purchase orders.TAN reserves the intellectual property rights of the various third party
the right to refuse any such purchase order for any reason not developers and/or manufacturers thereof,as applicable,including
contrary to this Agreement,including without limitation pricing without limitation copyright,trade secret,trademark,and patent
differences as described in section 27.2.. rights. Customer will maintain in confidence and not use or
disclose any and all confidential business or technical
26.5 Additional Third Party Products. Customer may information connected with any Third Party Product except as
purchase Third Party Products in addition to those listed in the . specifically permitted by a party having legal control of such
Pricing Form by issuing additional purchase order rights,and Customer will defend or settle any claim made or any
documentation as described herein,provided that the supply(or suit or proceeding brought against TAN insofar as such claim,
non-supply) of such additional Third Party Products will be _ suit,or proceeding is based on an allegation that any Third Party
subject to this Agreement as though such additional Third Party Product provided to Customer hereunder has been installed,
Products had been included in the Pricing Form on the date of used,or otherwise treated by Customer or any client or customer
execution of Pricing Form subject to the following: of Customer in violation of the proprietary rights of any third
(a) the price for such additional Third Party Products is subject Party or on an allegation that Customer or any client or customer
to agreement between the parties each in their own absolute of Customer has disclosed or used any confidential business or
discretion, and technical information connected with any Third Party Product,
provided that TAN will notify Customer in writing promptly
(b) TAN shall have the right to discontinue delivery of such after the claim, suit, or proceeding is known to TAN and will
additional Third Party Products upon at.least ninety (90) days give Customer such information and assistance as is reasonable
written notice to Customer without any liability to Customer in the circumstances. Customer will have sole authority to
whatsoever for such discontinuance. defend or settle any such claim at Customer's expense:Customer
27. CHARGES AND PAYMENTS will indemnify and hold TAN harmless from and against any and
all such claims and will pay all damages and costs finally agreed
27.1 Prices.The pricing applicable to Third Party Products is as to be paid in settlement of such claim,suit or proceeding.
set out in the Pricing Form in the form finally agreed to by the 29.2 Third Party Products which are Software. Customer
Parties. acknowledges that the possession, installation and use of all
27.2 Pricing Variability. Customer acknowledges that: Third Party Products which are software shall be governed by
(a) the prices described in Pricing Form are applicable for the terms of the sofrivare license(s) of the persons other than
six(6)months after the date of execution hereof,and such prices TAN who possess the rights to control such possession,
installation and use.
are based upon Customer taking delivery of the full number of
any particular Third Party Product listed in Pricing Form in a 30. WARRANTY
single shipment;and 30.1 Warranty. TAN warrants to Customer that TAN has the
(b) Customer hereby agrees that after the expiry of such initial right to deliver the Third Party Products subject to. any
six-month period or,in case of Customer seeking,in a particular documentation accompanying such Third Party Products at the
shipment,delivery of less than all of the Third Party Products of time of delivery and/or any licensing mechanisms, physical,
a particular type listed Pricing Form, the actual prices may be electronic or otherwise,included in any Third Party Products that
higher.Prior to shipment of any Third Party Products that would are software.
be subject to pricing that differs from that described in the
11
GENERALTERMS
30.2 Warranties Provided by Third Party Suppliers.Third will rely solely on such Third Party Product warranties and
Party Products are warranted by the manufacturers thereof in Customer shall make no claim against TAN on account of any
accordance with the warranty statements accompanying delivery warranty, express or implied, which may apply to any Third
of the Third Party Products,and Customer agrees that Customer Party Product.
12
GENERALTERMS
EXHIBIT 1
PRICING FORM
The Active Network Quote#:5776-1
10182 Telesis Pricing, Form Date: 05/06/2010
Court, Istfloor Expires:08/04/2010
San Diego,CA,92121,
United States
Customer: Address: Bill To: Ship To:
Mariyah Serratos Attn:Mariyah Serratos Attn:Mariyah Serratos
City of Cupertino Parks & City of Cupertino Parks& City of Cupertino Parks&
Recreation Department Recreation Department Recreation Department
Cupertino,Santa Clara 10300 Torre Avenue 10300 Torre Avenue
Cupertino,Santa Clara Cupertino, Santa Clara
CA 95014 CA 95014
US United States
Sales Representative: Steve Arsenault Payment Terms: 30 Net
Line Product Units Qty Unit Price Total Price
Selling Selling
(USD) (USD)
1.0 70653 Hr 1 200.00 200.00
Class- Standard Professional Services—Project Planning Fee
2.0 70652 Hr 16 175.00 2,800.00
Class-Senior Professional Services—eConnect to Hosted Internet Registration Conversion
3.0 70652 Hr 6 175.00 1,050.00
Class-Senior Professional Services—Payment Server to Hosted Payment Server Conversion
4.0 70537 Ea 1 351.00 351.00
Class-Cisco Firewall
5.0 70732 Yr 1 75,000.00 75,000.00
Class Hybrid-Annual Minimum `
6.0 70736 Ea 1 0.00 0.00
Class Hybrid- Hosted Internet Registration
7.0 70738 Ea 1 0.00 0.00
Class Hybrid- Hosted Payment Server
8.0 71964 Ea 1 1,500.00 1,500.00
Class Hybrid-ACH Remittance-Every 1 week
2 .
GENERALTERMS
Category Subtotal
Class Hybrid.SaaS.Online Transactions Subtotal (Selling Price) 75,000.00
Class Hybrid.Service.Consulting -Hosted Subtotal (Selling Price) 1,500.00
Class.Hardware.HW Other Subtotal (Selling Price) 351.00
Class.Service.Consulting Subtotal (Selling Price) 4,050.00
Charges 0.00
Tax
COUNTY(Rate 0%) 0.00
COUNTY(Rate 2%) 7.02
STATE (Rate 0%) 0.00
STATE (Rate 7.25%) 25.45
Total(USD) 5,933.47
Additional Information
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,or where delivered in the form of physical media,FOB Origin.
The start date for support and maintenance for 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 upon delivery of the licensed software for implementations
performed by customer or a third party 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.
On-site services are exclusive of airfare.
The software and manuals are available for download.
Onsite services billed in minimum S hour daily increments.
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.
3
GENERAL TERMS
Ongoing Fees
Ongoing Fees Transactions entered directly by participants through the Website will be assessed the customary service fee charged by Active to
online participants("Service Charge")as described below.Each online participant will pay the event fee charged by Agency and Agency will pay a
service charge of$2.50 plus 3%.Credit card transactions entered by a member of the Agency on behalf of a participant and processed via Hosted
Payment Server will be assessed a Service Charge equal to 3.00%with a minimum Service Charge of$1.00.We may change the Service Charge
at any time and you agree to such change unless you provide us with written objection to such change within 30 days from the date such change is
first implemented.We will be responsible for collecting all event fees charged by you and all Service Charges assessed by us.All event fees except
Service Charges are your exclusive property.Any event fees collected by us will be sent to you once a week via ACH and Service Charges shall be s
retained by us.You shall guarantee and pay to Active a minimum aggregate Service Charge of$75,000 per calendar year(the"Minimum Yearly
Service Charge").You shall pay to Active the difference between such Minimum Yearly Service Charge and the actual Service Charges collected
by us during such year which will be billed at the end of each year beginning from the date set forth below.Active shall not be responsible for
processing or making any refunds.All credit card refunds processed will be assessed a$.10 fee charged by Active to you.Active may reimburse
itself for any credit card charge backs and associated fees out of event fees collected by it.In the event such funds are not available you agree to
reimburse Active for any charge backs or refunds.
Method of'Payment
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Nu r?'ib2F: EXolrstion D,3iB:
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End of Quote
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GENERALTERMS
EXHIBIT 2
SERVICES EXHIBIT
INTENTIONALLY LEFT BLANK
EXHIBIT 3
MAINTENANCE EXHIBIT
INTENTIONALLY LEFT BLANK
5