HomeMy WebLinkAboutPK13-006 - Original - The Active Network, Inc. - Riverbend Golf Complex Software & Maintenance - 01/01/2013 , Records M.anagemen'Joi.
KENTDocument
WASHINGTON
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CONTRACT COVER
SHEET
This is to be completed by the Contract Manager prior to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name: Active Network
Vendor Number:
ID Edwards Number
Contract Number: JOK 13-dC)6
This is assigned by City Clerk's Office
Project Name: Active Network - Riverbend Golf Complex
Description: ❑ Interlocal Agreement ❑ Change Order ® Amendment ® Contract
❑ Other:
Contract Effective Date: 1/1/2013 Termination Date: 11/1/2014
Contract Renewal Notice (Days): 90
Number of days required notice for termination or renewal or amendment
Contract Manager: Pete Petersent (tp) Department: Riverbend
Detail: (i.e. address, location, parcel number, tax id, etc.):
Software program
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5 Public\PecordsManagement\Forms\ContractCover\adcc7832 1 11/08
rl �/ 1� �Rl PRODUCTS AND SERVICES AGREEMENT
CUSTOMER INFORMATION
ORGANIZATION FULL ADDRESS: z�L 4vCp S q
LEGAL NAME: G t� p {Ct�" K-C^+ W-4q ` 8O
CONTACT NANIE: PC TELEPHONE:
EMAIL: r e +%j4 FAX:
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OVERVIEW OF AGREEMENT
This document(the"Agreement")consists of this cover page,the General Terms,and the following Schedules and
Exhibits(cheek-all applicable Schedules) II
Schedule A• Hosted Software t
X Schedule B• Licensed Software; Support and Maintenance
X Schedule C: Thud Party Products {
X Exhibit 1: Pricing Form
X Exhibit 2: Services Exhibit
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X I Exhibit 3: Maintenance Exhibit
NOTE: If customer is tax exempt,certificate must be provided along with signed contract.
In consideration of the mutual promises and covenants contained in this Agreement,Customer and TAN hereby 1
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'°)
Signature: 5 `(+�- Signature: I
Name: u { Cpd Name:
Title: Title:r
ICI� Y f
Date: �GL (� Zp� Date: !
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The Active Network,Inc., 10182 Telesis Court,San Diego,California 92121
Telephone: (858)964-3801,Fax- (858)964-3978 I
EXHIBIT 1
The Active Network Quote#. 28247-1
10182 Telesis Pricing Form Date'07/17/2012
Court,Suite 100 Expires 10/16/2012
San Diego,CA,92121,
United States
Customer. Address: Bill To, Ship To,
CITY OF KENT CITY OF KENT
CITY OF KENT 2204TH AVENUE 220 4TH AVENUE SOUTH
KENT SOUTH KENT
KENT WA 98032
WA 98032 United States
United States i
Sales Representative- Clay,Kenneth Neil(Ken) Payment Terms-30 NET
Line Product Units City Unit Price Total Price
Selling Selling
(USD) (USD)
1.0 70906 Yr 1 0.00 0.00
GEN-Ball Dispenser Interface,Range Servant Subscription-per site/per year
2.0 70911 Yr 1 0.00 0.00
GEN-Event Management(add-on)Subscription-per server/per year
3.0 70912 Yr 1 0.00 0.00
GEN-GL Export requires Product approval(add-on)Subscription-per server/per year
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4.0 70913 Yr 1 0.00 0.00
GEN-Loyalty Program(add-on)Subscription-per server/per year
6.0 70926 Hr 60 0.00 0.00
GEN-Standard Professional Services
6.0 70966 Yr 1 0.00 0.00
GEN-Integrated Payment Server Standard-single-site&non-mum FTP Subscription-per server/per
year
7.0 70919 Yr 1 0.00 0.00
GEN-Tee Sheet&Point of Sale with Inventory(core!)Subscription-per site/per year
2
Line Product Units Qty Unit Price Total Price
Selling Selling
(USD) (USD)
8.0 72049 Hr 1 0.00 0.00
OpenBook-Distribution Engine-Basic Setup-Trade
Category Subtotal
GEN SaaS Software-Hosted Subtotal(Selling Price) 0.00
GEN Service Consulting Subtotal (Selling Price) 000
GEN Software.Software—FTP Subtotal(Selling Price) 0.00
Operi Service.Consulting-Hosted Subtotal(Selling Price) 000
Charges 0.00
Tax
CITY(Rate 3%) 0.00
a
COUNTY(Rate 0%) 000
STATE(Rate 6.6%) 0.00
Total(USD) 0.00
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 sof ware 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
Quoted prices for onsite services do not include airfare If onsite services are required,economy alrfare will be assessed and Invoiced separately
Onsite services are billed in minimum,8 hour daily increments
The software and manuals are available for download
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All hardware sales are final Hardware Is covered by standard manufacturer's warranty Equipment that is defective upon arrival will be replaced I
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
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hleuiod of Payment
InvoIce me Purchss=_0rdarNumber•
C
Credit Card
f— VMS J— kiastarCard r Arrearican Express
Number Expiration Dais
I hareby Aar=_e to pay fie above quoin%sdh the stated method
CITY OF KENT . ry`
Signature
Name S moo _
Title RA y"
Effective Date
End of Quote
EXHIBIT 2
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SOFTWARE FOR TRADE PRICING/SERVICES FORM
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0 Check Box To Sclect Trade Times Option
Check Box To Participate
in Online Tee Time Reservation&Marketing Program(www.ActiveGolf com)
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Technology Platform Trade Fee
GEN Tee Sheet&POS Software,
OpenBook Distribution Engine,60
[] hrs remote traininglinstallation, 2 Trade Time j
included hardware, annual support
&annual maintenance
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Please specify trade tee times below(Tlmes Must be between 7 a.m. &12 p.m.Each Day):
Mon Tue Wed Thu Fri Sat Sun
Trade Time 1 11 00— 11 00— 11 00— 11 00— 11 00— 11.00— 11 DO—
12 OOpm 12.00pm 12.00pm 12:O0pm 12.00pm 12.00pm 12.00pm
Trade Time 2 1—.00— 11 00— 11 00— 11.00— 11.00— 11 00— 11.00— r
12 OOpm 12.00pm 12 OOpm 12 OOpm 12.00pm 12 OOpm 12 OOpm
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Trade Times Option Terms & Conditions ("Trade Times Option")
• A"Trade Gioup"is defined as a gi oup of up to four(4)golfers booked by TAN whet such golfers are
entitled to play eighteen(18)holes of golf with power cart,but where no funds are collected by the
Customer.
• TAN will provide the Services and Products to the Customer as defined in this Agreement for an Initial
Term of five(5)years(notwithstanding section 18 of the Agreement). In return,the Customer agrees to
compensate TAN for the Products and Seivices with the Trade Times listed above. At the conclusion of
the Initial Term the Customer can pay for the Services by either piovidmg the Trade Groups listed above
for a 2 year teim or paying TAN the fees associated with the products and services for a term of 2 years.
• Customer shall be requned to participate in a Business Process Review call within 2 weeks of signing their
Active Softwate Agreement in order to diagnose specific business needs,as well as identify any potential
gaps in technology or functionality prior to installation and training.
• TAN has rate control on all Trade Times identified above
• TAN will use all distribution resources to sell all tiade groups including ActiveGolf com and other TAN
distribution partners and channels similar to ActiveGolfcom
• Tan Mll be allowed to sell all trade groups through the course's online golf booking engine.
• A Trade Time may be sold by the Customer should the time not be sold by TAN one(1)hour prior to the
time slot.
• In the event that TAN does not have the ability to sell its trade group due to an outing,event or some other
agreed upon reason,TAN will have the ability to sell a similar trade group in like kind at some other point
over the next 24 hours.
• Should the Customer default on this Agreement within the Initial Term,the Customer will be responsible
for paying all applicable licensing fees for the Services and all yearly support fees dated back to the }
Effective Date of this Agreement.
Online Tee Time Reservation &Marketing Program ("Program")
TAN Provided Services:
• Promotion and sale of Customer tee-times through ActiveGolf com and partner websites viewed regularly by
TAN's growing database of members
• Offer an avenue for the Customer to increase revenue and exposure with no out-of-pocket fees or marketing
expenses. I
• Comprehensive Customer web page established and publicly viewable on ActiveGolfcom. I
• Enhanced course listings available via recognized search engines(e.g.Google,Yahoo)
• Support provided and available seven(7)days per week
Commissions and Fees•
• 10%commission collected from User at time of reservation by TAN. The remaining 90%is to be collected
from the User at time of check-in by Customer.
• User will be given printout receipt,detailing amount paid,amount due at course,and tee time information
• Customer will be notified of reservation through tee sheet interface and/or fax/email,depending upon
technology available at Customer.
Terms:
• Customer may cancel the Program upon thirty(30)days notice at any time for six(6)months after the
Effective Date of this Agreement for any reason or no reason at all Thereafter,the term in place under the
remainder of the Agreement will apply.
• Customer agrees to provide TAN with tee time rates equivalent to their lowest published third party
wholesale rate
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Example:
Greens fee=$50 by• 0%Balance due commission
Customer=$4.000((collected byTC s omerwhen User books
checks in)reservation)
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EXHIBIT 3
SERVICES FORM
1. SERVICES CANCELLATION POLICY. We require six(6)weeks' notice for cancellation of
scheduled consulting services in order to allow sufficient time for the same consulting resources
to be utilized by another customer. Cancellation within this time period will be subject to a
cancellation fee equal to the daily billable rate for each day cancelled and any expenses that
occurred due to cancellation.
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GENERALTERMS
GENERAL TERMS: TERMS APPLICABLE TO ALL Customer by TAN under any circumstances unless provided
PRODUCTS AND SERVICES under a separate licensing agreement,
1. INTERPRETATION (1) "Maintenance"means the provision of error investigation
1.1 Definitions. For the purposes of interpreting this and repair services as set out in sections 22 through 25,
Agreement, the following terms will have the following Maintenance Exhibit 3,and the provision of new Versions and
Releases in respect of the Licensed Software all as more
meanings: particularly set out in the Support and Maintenance Handbook.
(a) "Agreement" means this Products and Services (m) "Module" means a single module element of Licensed
Agreement,inclusive of all Schedules. Software listed in the Pricing Form.
(b) "Concurrent Use"means use at the same moment in time (n) "Online Services" means services, such as Internet
to access a given settler computer (of any kind) owned or registration,that are enabled by Hosted Software and available to
controlled by Customer, the public via the Internet,
(c) "Customer" means the legal entity other than TAN (o) "Other Services"means Services other than Pie-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 man 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
(� "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, of Oracle database fries containing customer data and Software to be installed and used upon it.
that are accessed by the Licensed Software.
(q) "Pre-Agreed Services" means Services which are
(g) "Hosted Software"means computer code and programs, expressly listed in the Pricing Form as being acquired hereunder
in executable code form only,including related data files,rules, by Customer.
parameters and documentation, which have been created or
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
(1) "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 Innanet or the Internet,having a minimum implementation, optimization, administration, training and j
configuration as set out in hardware specifications previously troubleshooting of computers,computer software including the
described to Customer as applicable to the Licensed Softwate 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
q) "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,ratherthan 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 set 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
(u) "Related Third Party Documentation" means any end
(k) "Licensed Software"means computer code and programs, specifications, manuals, instructions, and other materials, and
in executable code form only,including related data files,rules, any copies of any of the foregoing,in any medium,related to the
parameters and documentation, which have been created or Third Party Products and supplied by TAN to Customer with the
licensed by TAN and are identified in the Pricing Form as Third Party Products.
licensed (or sublicensed) to Customer by TAN in connection
with this Agreement,and/or which are in the future provided to
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(v) "Release" means any release, update, patch, set of corruption due to lack of disk space; and loss of supervisor or
revisions, or bug/permanent fix or tempoiary bypass solution other password, all as further set out in the Support and
released by TAN to its customers generally during the term of Maintenance Handbook.
this Agreement, which provides enhancements and/or error (ff) "User"means a person who accesses and uses any of the
corrections to the then-current Version or Release,and where a Products in any manner whatsoever.
new Version has been released and no new Release has been
released since the release of that Version,that Vei sion will also (gg) "Version" means a version of the Licensed Software
constitute a Release for the purpose of determining whether providing a particular functionality,while a new Version of the
Support orMamtenancers available with respectto that Version Licensed Software will provide new/additional functionality
New Releases will be denoted by an increase to the version andlor improvements to a previous Version.New Versions will
number to the right of the decimal point such as from be denoted by a change to the version number to the left of the
Release 1.1 to Release 1.2. decimal point such as from Version 10 to Version 2.0.
(w) "Services"means all Professional Services, Support and (hh) "Workstation" means a computer attached to a local or
Maintenance, Online Services, and other services provided to wide-area network(including an Intranet),which accesses the
Customer by or on behalf of TAN. Licensed Software or Enterprise Database.
(x) "Software"means the Licensed Software and the Hosted 1.2 Headings.The headings contained in this Agreement are
Software as defined elsewhere in this section, inserted for convenience and do not foam a part of this j
(y) "Support" means the ongoing telephone, email, web- Agreement and are not intended to interpret,define or limit the
based and dial-in support and problem resolution to assist scope,extent or intent ofthis Agreement or any provision hereof.
Customer in the use of the Licensed Software, the Hosted 2. CHARGES AND PAYMENTS
Software,and other services and products of TAN as set out in 2.1 Taxes and Other Charges.Customer willpay all shipping
the Support and Maintenance Iandbook. &handling costs and,unless exempted by law and unless a valid
(z) "Support and Maintenance Handbook" means the tax exemption certificate has been provided to TAN prior to
documents published by TAN setting out the applicable service invoicing,all applicable sales,use,withholding and excise taxes,
levels,processes,restrictions, and other particulars of Support and any other assessments against Customer in the nature of
and Maintenance provided in respect of the Software and Other taxes,duties or charges however designated on the Services and
Scivices and Products of TAN, as amended from time to time Products or their license or use, on or resulting from this
upon notice to Customer. Agreement,exclusive of taxes based on the net income of TAN.
(aa) "Support and Maintenance Start Date" means, for Sales and any other applicable taxes,duties,or any other charges
implementations performed by TAN, the first day of to the nature of taxes and duties are not included unless
implementation of the Licensed Software or 90 days following specifically identified as line items in the Pricing Form.
the delivery of the Licensed Software, whichever occurs first, 2.2 Currency.Unless otherwise indicated in the Pricing Form,
and upon delivery of the Licensed Software for implementations all prices are in the currency of the country in which the
being performed by the customer or a 3`d party vendor. Customer is located.
(bb) "System Utilities" includes the following. Accounting 2.3 Delivery.Delivery for the Products supplied by TAN under i
Processes, Central Login, Log File, Copy Database, Maintain this Agreement will be deemed to have occurred F.O.B.origin,
Database, MSDE Tool, Oracle Setup Utility, Query Tool, which in the case of Licensed Software and/or Hosted Softwaie
System Maintenance,Upgrade Database and View Components. will typically be in the form of an email fi om TAN providing a i
(cc) "TAN"means The Active Network as referenced on the FTP(i.e.file transfer protocol)downloadable link.
first page of this Agreement 2.4 Invoices/Payment.TAN will provide invoices to Customer
(dd) "Third Party Products"means those hardware,firmware for all amounts owing by Customer hereunder. Such invoices
and/or software products, provided to TAN by third parties, are to be provided as indicated in the attached Schedules or
listed in the Pricing Form, together with all user manuals and Pricing Form,and subsequently due within 30 days from the date
other documents accompanying the delivery of the Third Party of invoice.
Products, provided that the Third Party Products shall not 3. CUSTOMER INFORMATION;CONFIDENTIALITY
include software developed by TAN. 3.1 Customer Information. In order to assist TAN in the
(ee) "Third Party Products Support" means assistance to successful provision or services and products to Customer,
isolate the source of problems and/or to troubleshoot difficulties Customer shall provide to TAN all information relating to
i esulting from sources other than TAN products or services,such Customer's organization, technology platforms, systems
as general network support (for example network access, configurations,and business processes and otherwise relating to
printing,backup&restoration);PC hardware trouble shooting; Customer as is reasonably requested by TAN from time to tune.
PC setup, configuration and optimization, network operating
system configuration and functionality, basic Microsoft 3.2 Confidential Information.
Corporation"Windows" functionality(for example,using File
Manager or Explorer), modem configuration & setup; data
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(a) In the performance of or otherwise in connection with this Software,and this Agreement will be automatically terminated,
Agreement,one party("Disclosing Party")may disclose to the or b) in respect to Hosted Software TAN may refund to
other party("Receiving Party")certain Confidential Information Customer the fees paid by the Customer to TAN for Services
of the Disclosing Party. "Confidential Information" means any provided to implement the Hosted Software,and this Agreement
information of either party,which is not generally known to the will be automatically terminated All warranty service will be
public, whether of a technical, business or other nature performed at service locations designated by TAN This Limited
(including, but not necessarily limited to. trade secrets, know Watranty is void if failure of the Softwaic has resulted from
how, computer program source codes,and information relating accident, abuse or misapplication Any replacement Software
to the customers, business plans, promotional and marketing will be warranted for the remainder of the original warranty
activities, finances and other business affairs of such party); period or 30 days,whichever is longer.
provided that the same is conspicuously marked or otherwise S. EXCLUSION OF WARRANTIES AND
identified as confidential or proprietary information prior to, LIMITATION OF LIABILITY
upon or promptly after receipt by the other party,and provided
further that the any software or softwate application server 5.1 SPECIFIC E XCLUSION OF OTHER WARRANTIES.
source code provided by TAN or its licensors shall be deemed to THE EXPRESS WARRANTIES SET OUT IN THIS
constitute Confidential Information without further designation AGREEMENT ARE IN LIEU OF ALL OTHER
by TAN The Receiving Party will treat such Confidential WARRANTIES, AND THERE ARE NO OTHER
Information as confidential and proprietary of the Disclosing WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
Party and will use such Confidential Information solely foi the GUARANTEES OF ANY KIND WHATSOEVER
purposes for which it is provided by the Disclosing Party and APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW
will not disclose such Confidential Information to any third party (IN CONTRACT OR TORT OR OTHERWISE)OR CUSTOM,
(other than a thh d party corder contract whereby that third party INCLUDING,BUT NOT LIMITED TO THOSE REGARDING
has agieed in writing to keep the Confidential Information MERCHANTABILITY, FITNESS FOR PURPOSE,
confidential) DURABILITY,CORRESPONDENCE TO SAMPLE,TITLE,
(b) Exclusions. The obligations under this paragraph will not DESIGN, CONDITION, OR QUALITY. WITHOUT
apply to any:(i)use or disclosut e of any information pursuant to LIMITING THE ABOVE, TAN DOES NOT WARRANT
the exercise of the Receiving Party's rights under this THAT ANY PRODUCTS OR SERVICES PROVIDED
Agreement, (ii) information that now or later becomes HEREUNDER WILL MEET THE REQUIREMENTS OF
Agrem is gree available through no fault s the Receiving Party;( ) CUSTOMER OR THAT THE OPERATION OF PRODUCTS
PROVIDED HEREUNDER WILL BE FREE FROM
information that is obtained by the Receiving Party from a third INTERRUPTION OR ERRORS.
party authorized to make such disclosure (other than in
connection with this Agreement) without any obligation of 5.2 RESTRICTIONS ON WARRANTY. TAN HAS NO
secrecy or confidentiality;(iv)information that is independently OBLIGATION TO REPAIR OR REPLACE PRODUCTS
developed by the Receiving Party(e.g.,without reference to any DAMAGED BY ACCIDENT OR OTHER EXTERNAL
Confidential Information), (v) any disclosure required by CAUSE OR THROUGH THE FAULT ORNEGLIGENCE OF
applicable law (e.g., pursuant to applicable securities laws or ANY PARTY OTHER THAN TAN
legal piocess), provided that the Receiving Party will use 5.3 NO INDIRECT DAMAGES. WITHOUT LIMITING
reasonable efforts to give advance notice to and cooperate with THE GENERALITY OF SECTIONS 5 1 AND 5.4, IN NO
the Disclosing Party in connection with any such disclosure,and EVENT WILL TAN BE LIABLE TO CUSTOMER OR TO
(vi)any disclosure with the consent of the Disclosing Party. ANY OTHER PARTY FOR INDIRECT DAMAGES OR
4. WARRANTY LOSSES (IN CONTRACT OR TORT OR OTHERWISE),
INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST SAVINGS,LOST DATA, LOSS OF
Limited Warranty of Software. TAN warrants that when
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utilized by Customer a manner authorized hereunder, the
USE OF INFORMATION OR SERVICES,ORINCIDENTAL,
Software will conform to the functional specifications set out in CONSEQUENTIAL,OR SPECIAL DAMAGES.
the user documentation accompanying the Software for ninety
(90) days from delivery of the Software ("Warranty Period") 54 LIMITS ON LIABILITY.IF,FOR ANYREASON,TAN
Delivery shall be deemed to have occurred upon TAN's email BECOMES LIABLE TO CUSTOMER OR ANY OTHER
transmission of an FTP link to Customer permitting download of PARTY FOR DIRECT OR ANY OTHER DAMAGES FOR
the Software from TAN's designated online site, or where ANY CAUSE WHATSOEVER,AND REGARDLESS OF THE
delivered in the form of physical media,F O.B. origin TAN's FORM OF ACTION (IN CONTRACT OR TORT OR
sole obligation and liability hereunder with respect to any failure OTHERWISE),THEN
to so perform will be to use reasonable efforts to remedy any (a) THE AGGREGATE LIABILITY OF TAN TO
non-conformity which is reported to TAN in writing by CUSTOMER AND ALL OTHERPARTIES IN CONNECTION
Customer within that Warranty Period. In the event TAN is WITH THE PRODUCTS AND THE SERVICES WILL BE
unable to remedy such non-conformity within a reasonable time LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT
using reasonable efforts,a)in respect to the Licensed Software PAID TO TAN HEREUNDER,DURING THE TWO YEARS
TAN may refund to Customer the license fee pertaining to the
Licensed Software,subj ect to Customer's return of the Licensed
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PRECEDING THE LAST INCIDENT GIVING RISE TO THE (b) without limiting (a), at the option of TAN if Customer
LIABILITY; AND breaches section 2 of this Agreement,provided that the right of
(b) IN ANY CASE CUSTOMER MAY NOT BRING OR termination will be in addition to all other rights and remedies
INITIATE ANY ACTION ORPROCEEDING AGAINST TAN available to the parties for breach or default by the other.
ARISING OUT OF THIS AGREEMENT OR RELATING TO 7.2 Suspension of Obligations. If either party should
ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER materially default in the performance or observance of any of its
MORE THAN TWO YEARS AFTER THE RELEVANT obligations heieundei, then, in addition to all other rights and
CAUSE OF ACTION HAS ARISEN remedies available to the non-defaulting parry, the non-
5 5 SEPARATE ENFORCEABILITY. SECTIONS 5.1 defaulting party may suspend performance and observance of
THROUGH 5 4 ARE TO BE CONSTRUED AS SEPARATE any or all its obligations under this Agreement,without liabever that
PROVISIONS AND WILL EACH BE INDIVIDUALLY thissctl the onwillrotpermaultrsomert suspend
dhoweationtt
ENFORCEABLE. this section will not permit Customer to suspend its obligation to
make any payments due for Products or Services that are
6. RESTRICTIONS unrelated to any default alleged against TAN
6.1 U.S. GOVERNMENT RESTRICTED RIGHTS. The 7.3 Return of Materials In the event of termination of this
Products are provided with restricted rights.Use,duplication,or Agreement for any reason whatsoever, Customer will
disclosure by the U.S. Government is subject to restrictions as immediately(i)return to TAN all physical copies of Products
set forth in subparagiaph(c) (1)(h)of The Rights in Technical delivered by TAN to Customer or otherwise in Customer's
Data and Computer Software clause at DFARS 252 227-7013,or possession or control, or (it) if expressly permitted by TAN,
subparagraphs (c) (1) and (2) of the Commercial Computer destroy all physical copies of the Products not returned to TAN
Software-Restricted Rights at 48 CFR 52.227-19,as applicable. and delete all electronic copies of the Products from its systems
The Manufacturer is The Active Network, Inc, 10182 Telesis and certify in writing to TAN that such actions have all been i
Court,San Diego,California,United States,92121 completed.
6.2 Export Restrictions,The Products may include encryption S. AUDIT AND MONITORING RIGHTS
software or other encryption technologies that may be controlled TAN may, upon a minimum of 24 hours written notice to
for import,export,or purposes under the laws and regulations of Customer,attend upon Customer's pi emises and verify that the
the countries and/or territories in which the Products are used Products are being used only as permitted hereby. Such j
("Applicable Law"). Customer may not export, re-export, or inspections shall be limited to a maximum of twice per calendar
assist or facilitate in any manner the export or re-export of,any year, and will be performed only during Customer's regular
portion of the Products,as determined by Applicable Law under business hours and conducted in a manner as to minimize,to the
which the Customer operates: (i) to any country on Canada's extent reasonable, interference with Customer's business.
At ea Control List; (ii)to any country subject to UN Security Further, TAN may, using automatic means which do not
Council embargo or action; v) contrary es Canada's Export interfere with the use of the Products by Customer or Users other
Control List Item 550e (iv) e countries subject to U esS. than as described m this provision,monitor at any time usage of
economic sanctions and embargoes;and o to persons or entities the Products by Customer and or its Users including through
prohibited from receiving U S exports or U.S-origin items. monitoring of the number of copies of any particular Module(s)
Customer hereby represents and covenants that.(i)to the best of in Concurrent Use.
Customer's knowledge Customer is eligible to receive the
Products under Applicable Law; (ii)Customer will import, 9. INTELLECTUAL PROPERTY RIGHTS
export,or re-export the Products to,or use the Products in,any 9.1 Warranty of Title. TAN warrants that it has all rights
country or territory only in accordance with Applicable Law;and necessary to make the grant of license herein by having all right,
(in) Customer will ensure that ,Customer's Users use the title,and interest in and to the Products(other than Third Party
Products in accordance with the foregoing restrictions. Products)or as licensee of all such rights from the owner thereof.
6.3 Third Party Software and Open Source Components 9.2 Intellectual Property. TAN and its licensors shall retain
The Software may contain open source components or other all right,title,and interest in and to the Products and the results
third party software of which the use, modification, and of the Services and to all software, trademarks, service marks,
distribution is governed by license terms(including limitations logos,and trade names and other worldwide proprietary rights
of liability) set out in the applicable documentation(paper or related thereto("Intellectual Property").Customer shall use the i
electronic)or read me files. Intellectual Property only as provided by TAN, and shall not i
7. TERMINATION alter the Intellectual Property in any way,or act or permit action
7.1 Termination. This Agreement will terminate: in anyway that would impair TAN's or its licensors'rights in its
Intellectual Property Customer acknowledges that its use of the
(a) at the option of either party if the other party materially Intellectual Property shall not create in Customer or any other
defaults in the performance or observance of any of its person any right, title, or interest in or to such Intellectual
obligations hereunder and fails to remedy the default within 30 Property.Any goodwill accruing from the use of the Intellectual
days after receiving wiitten notice thereof,and Properly shall inure solely to the benefit of TAN or its licensors,
as applicable.
4
i
93 Restrictions.Customer will not anytime whether before or infringing;or(z)use of any version of the Software with respect
after the termination of this Agreement. to which TAN has made available a non-infringing updated,
(a) reverse engineer,disassemble,or decompile any Products revised or repaired subsequent version or other applicable
or prepare derivative works thereof; update,patch or fix,
(b) copy, transfer, display, or use the Products except as (b) Customer Indemnity. Except where precluded by
expressly authorized in this Agreement or in the applicable applicable law (e g, sovereign immunity of a governmental
documentation; entity), the Customer agrees to indemnify, defend and hold
harmless TAN, its officers, directors, employees, affiliate
(c) disclose, furnish, or make accessible to anyone any entities,subcontractors,vendors and agents from and against all
confidential information received from TAN or make any use damages and costs(including reasonable attorneys'fees)finally
thereof other than as expressly permitted under this Agreement, awarded against TAN(or finally settled upon)and arising from:
which confidential information is deemed to include the source (i)any violation of law or claim of personal injury or tangible
and executable code of the Software and all related personal property damage arising,in whole or in part,out of or
documentation; in connection with the gross negligent or wilful misconduct of
(d) contest or do or aid others in contesting or doing anything Customer,its employees,subconti actors or agents,(it)any claim
which impau s the validity of any proprietary or intellectual brought against TAN by a third party alleging that any Customer
property sights,title,or interest of TAN in and to any Products; provided materials provided to TAN under this Agreement
or directly infringe any U.S copyright or trademark or
misappropriate any trade secret in existence as of the Effective
(e) obliterate, alter, or remove any proprietary or intellectual Date; or(in) any claim brought against TAN by a third party
property notices from the Products in physical or electronic arising from or relating to any modification of the Licensed
forms Software by Customer or any use of the Software other than as
10. INDEMNIFICATION permitted under this Agreement, Customei shall not indemnify,
defend or hold harmless TAN for any claims arising from (A)
(a) TAN Indemnity. TAN agrees to indemnify, defend and any TAN intellectual property or software incorporated in of
hold harmless Customer,its officers, directors,employees and combined with the Customer provided materials where in the
agents from and against all damages and costs (including absence of such incorporated or combined item,there would not
reasonable attorneys'fees)finally awarded against Customer(or have been infringement,(B)Customer provided materials which
finally settled upon) and arising from of relating to- (i) any havebeen altered or modified by TAN as part of this Agreement,
violation of law or claim of personal injury or tangible personal where in the absence of such alteration or modification the
property damage arising, in whole or in part, out of or in Customer materials would not be infringing; (C)use of an any
connection with the gross negligent or wilful misconduct of version of the Customer provided materials for which Customer
TAN; and (it) any claim brought against Customer by a third has made available an updated,revised or iepaired subsequent
party alleging that the Licensed Software directly infringes any version; or (D) the gross negligence or wilful misconduct of
patent,copyright,trademark or other intellectual property right TAN or any of its agents, subcontractors or employees Upon
or misappropriates any trade secret If any claim that TAN is notice of any claim of infringement or upon reasonable belief of
obligated to defend has occurred or,in TAN's opinion,is likely the likelihood of such a claim,Customer shall have the right,at
to occur,TAN may,at its option and expense either(1)obtain its option, to (x) obtain the rights to continued use of the
for Customer the right to continue to use the applicable Customer materials by TAN; (y) substitute other suitable,
Software,(2)replace or modify the Software so it becomes non- functionally-equivalent,non-infringing materials;or(z)replace
infringing,without materially adversely affecting the Software's or modify the Customer provided materials or their design so
specified functionality, or (3) if (1) or (2) are not readily that they are no longer infringing.
available after using i easonable commercial efforts or,if neither
of the foregoing options is commercially reasonable, refund a (c) Indemnification Claims Procedure. Each Party's
pro-rata portion of the fees paid by Customer based on its lost indemnification obligations hereunder are conditioned upon(A)
use and terminate this Agreement Notwithstanding the prompt written notice of the existence of a claim,suit,action or
foregoing, TAN shall not indemnify, defend or hold harmless proceeding (each a "Claim") for which a Party seeks
Customer for any claims solely based on (x) any Customer or indemnification fiom the other Party,provided that a failure of
third party intellectual property or software incorporated in or prompt notification shall not relieve the indemnifying Party of
combined with the Licensed Software where in the absence of liability hereunder except to the extent that defenses to such
such incorporated or combined item,there would not have been Claim are materially impaii ed by such failure of prompt
infringement, but excluding any third party software or notification; (B)sole control over the defense or settlement of
intellectual property incorporated into the Software at TAN's such Claim by the Indemnifying Party,and(C)the provision of
discretion;(y)Software which has been altered or modified by assistance by the indemnified Party at the indemnifying Patty's
Customer, by any third patty or by TAN at the request of request to the extent reasonably necessary for the defense ofsuch
Customer (where TAN had no discretion as to the Claim.
implementation of modifications to the Software or
documentation directed by Customer),where in the absence of
such alteration or modification the Software would not be
6
i i. GENERAL party's prior written consent,except that TAN may assign this
11.1 Entire Agreement. This Agreement, including all Agreement in connection with any sale or security interest
attachments and referenced schedules,constitutes the complete involving all or substantially all of its assets or any other
and exclusive statement of the agreement between TAN and transaction in which more than fifty percent of its voting
Customer with respect to the subject matter hereof Itsupersedes securities are transferred.
and replaces all oral or written RFPs, proposals, prior 11.7 Term and Survival. The term of this Agreement shall
agreements,and otherprior communications between the parties commence on the Effective Date set out on the cover page hereof
concerning the subject matter of this Agreement This and shall continue as set forth in Sections 18 1 or 25 1, as
Agreement may not be modified or altered except by written applicable, or until terminated in accordance with Section 7.
instrument duly executed by both parties,except that TAN may Sections 1.1, 5, 7.3, 9.2, 9.3, 10, 11, 29.1, and 29.2 of this
fill future purchase or other orders for further goods or services Agreement, along with all unpaid payment obligations, will
available under this Agreement and, if TAN does so, the survive termination and expiration of this Agreement.
provisions of this Agreement will contain the only commercial 11,8 No Authority to Bind. Neither party shall incur any
terms applicable to such transaction despite such purchase or obligations for or in the name of the other party, or have the
other order stating otherwise.'Any Addendum attached hereto authority to bind or obligate the other party. Neither party shall
shall form an integral part of this Agreement and,in the event of
any inconsistency between these Geneial Terms and any in make,ravetiono or theforegoine any ements(whetheroralorwritten)
Addendum,the provisions of the Addendum shall prevail Any contravention of the foregoing
`click-wrap' agreement,terms of use,electronic acceptance or 11.9 Counterparts, This Agreement may be executed in
other terms and conditions which attempt to govern the subject separate counterparts and delivered by facsimile or such other
matter of this Agreement that Customer might be required to electronic means as are available to the Parties. Such
acknowledge or accept before using a TAN product are of no counterparts taken together shall constitute one and the same
force and effect as between Customer and TAN and are original document
superseded by this Agreement, 11.10 Severability. If any provision of this Agreement is
11.2 Force Majeure.Dates or times by which either party is held by a court of competent jurisdiction to be invalid,
required to perform under this Agreement, excepting the unenforceable, or void, the remainder of this Agreement and
payment of any fees or charges due hereunder,will be postponed such provisions shall remain in full force and effect
automatically to the extent that any party is prevented from 11.11 Cooperative Procurement. Upon consent by TAN,
meeting them by causes beyond its reasonable control,provided this Agreement may be used for permitted cooperative
such party promptly notifies the other thereof and makes procurement b an public ormunici aI body,entity,a agency or
reasonable efforts to perform p y any ptog y
institution If so authorized, and in order to forego a related
11.3 Notices.All notices and requests in connection with this entity RFP or similar competitive bidding process, the
Agreement will be given to the respective parties in writing and Agreement may be extended to such other entities indicated
will be deemed given as of the first business day of the notified above for the procurement of similar products and/or services
party following the day the notice is faxed or sent via overnight provided to Customer her em and at fees in accordance with the
courier, providing a hard copy acknowledgment of such Agreement unless separately negotiated between such other
successful faxed notice transmission or evidence of such entities and TAN. Further related entities participating in a
couriering, as applicable, is retained. Notice may also be cooperative procurement process shall place their own orders
deposited in the mails,postage pre-paid,certified or registered, directly with TAN and will fully and independently administer
return receipt requested,and addressed to the parties as indicated their use of the Agreement to include such contractual as those
on the face of this Agreement or such other address of which the entities and TAN deem appropriate without direct administration
party gives notice in accordance herewith, and receipt of any from the original Customer.
such notice will be deemed to be effective as of the third --
business day following such deposit,
SCHEDULE A: TERMS APPLICABLE ONLY TO I
11.4 Governing Law. This Agreement and performance HOSTED SOFTWARE
hereunder will be governed by the laws of the jurisdiction in
which the Customer is located as indicated on the face of this 12. HOSTED SOFTWARE
Agreement,except that(i)in the case of Louisiana,the laws of 12.1 TAN will provide Customer with access to hosted versions
California will apply,and(h)in the case of QuSbec,the laws of of the products identified in the Pricing Form and associated
Ontario will apply Online Services,and TAN hereby grants to Customer a limited,
11.5 Attorney Fees.In any action or suitto enforce any right or non-exclusive, non-transferable license to use the Hosted ,
remedy under this Agreement or to interpret anypiovision of this Software in accordance with the applicable documentation.
Agreement,the prevailing party shall be entitled to recover its 12.2 Customer elects to receive notifications of free product,
costs,including reasonable attorneys'fees. promotional items and giveaways through the TAN program
11.6 Non-Assignability.Neither party may assign its rights or known as ActiveRewards. TAN will offer the Customer(and for
obligations arising out of this Agreement without the other the purposes of clarification not to your users directly)
opportunities for free product,promotional items and giveaways
6
at your event(s)or facility(ies)as applicable,the exact manner associated with the collection, use, and disclosure of personal
and type of which will be mutually agreed upon by you and TAN information by Customer,including such disclosure to TAN as
upon your acceptance of a particular pi ogram is necessary for TAN to provide the Services and Products to
12.3 Customer understands that some TAN products may Customer. Customer and/or its clients shall exclusively own the
contain TAN or thhd party promotions or offers to users and personal data collected by TAN in connection with the Hosted
such offers will be made to individuals on an opt-in basis TAN Software; provided, however, TAN is granted a royalty-free,
(and any such third party)shall be responsible for administration perpetual, non-exclusive right and license to use, teproduce,
and customer service issues on any such offer or promotion. distribute and adapt the collected data as is necessary for TAN to
perform its obligations under this Agreement, including for
13. SUPPORT FOR HOSTED SOFTWARE purposes of communicating with Customeror Customer's clients
as necessary, fulfilling requests for products and services
TAN will,during all periods in respect of which Customer has
subscribed for Hosted Software,provide Support to Customer requested from Customer or Customer's clients, providing
customized content and advertising provided in connection with
(and, where applicable, directly to users of Customer's own
services and products who access the Hosted Software) in the Hosted Software,conducting internal TAN t e intended
accordance with applicable sections of the Support and a improve the products and services provided byy TAN and its
Maintenance Handbook. affiliates,and to provide anonymous and aggregated reporting of
non-individual data for internal and external clients of Customer
14. LICENSE AND BRANDING or TAN. Any use of such data will conform with applicable
laws related to personal privacy and best practices around
TAN hereby grants to Customer a limited,non-exclusive,non- permissive marketing,such as use of"opt-in"and/or"opt-out"
ttansferable license to display,reproduce,distribute,andtransmit notifications and rights.
in digital form TAN's name and logo in connection with
promotion of the Online Services only in the manner approved of 16. FEES FOR HOSTED SOFTWARE
by TAN during the term of this Agieement Customer hereby 16.1 Transaction fees.
giants to TAN a limited non-transferable license to use,display,
reproduce, distribute, adapt and transmit in digital or printed (a) Customer shall pay to TAN the Hosted Software service
form information provided by Customer relating to its fees("Service Charge(s)")as set out in the Pricing Foun
organization,including its name,trademarks,service marks and (b) In cases where TAN's banking or financial partners or
logo, in connection with the implementation and promotion of similar service providers impose changes in processing costs
the Online Set vices;provided,however,that such use shall be as payable by TAN, TAN reserves the right to modify Service
necessary to TAN's performance under this Agreement. Charges.TAN shall notify Customer at least ninety(90)days in
Customer will make reasonable efforts to encourage adoption of advance of any such changes.Customer agrees to such changes
the Online Services,including displaying TAN's name and logo unless Customer provides TAN with written objection to such
or"Powered by TAN"logo,in the form supplied by TAN from charges within thirty (30) days from the date such change is
time to time and in a manner approved by TAN, acting implemented. In the event Customer notifies TAN of its
reasonably, in any medirun used by Customer to promote its
objection to the changes as noted above,Customer's sole remedy
programs or services to prospective participants, shall be to immediately terminate the Agieement as applied to
15. INFORMATION SECURITY AND PRIVACY FOR the Hosted Software,subject to payment of any fees due prior to i
HOSTED SOFTWARE such notice of termination.
TAN will collect information, including names, addresses, (c) TAN will be responsible for collecting all payments
gender, phone numbers, email addresses, birth dates, financial processed through the Online Services and all Service Charges
information(for payment purposes)and other such information assessed by TANT. All payments are Customer's exclusive
fi-om individuals using the Online Services as is reasonably property and will be sent to Customei twice a month (or as
required to provide the Services TAN will store such otherwise indicated in the Pricing Form)while Service Chatges
information on a secure remote server using reasonable shall be retained by TAN.
safeguards in accordance with TAN's published online privacy (d) If Customer enters transactions at fee amounts lass than
policies and in compliance with all applicable laws, codes of those actually charged to Customer's Users, thus reducing or
practice, and other legal obligations associated with the avoiding applicable Service Charges,such action shall constitute
collection, use, and disclosure of personal information. a material breach of this Agreement.
Customei may access this information by downloading it from
TAN,s servers using a Customer assigned private password and (e) TAN shall not be responsible for processing or making any
"login" identifier. Upon request TAN will make such refunds All refunds for payments processed will be assessed a
information available to Customer via e-mail, fax or airmail. $.tO fee charged by TAN to Customer.TAN may set off against i
Customer will be responsible for protecting the privacy and user fees collected by TAN to the amount of any credit card
security of any information that Customei retrieves from TAN's charge backs and associated fees applicable to user transactions
servers and shall prevent any unauthorized or illegal use or and to teimburse itself for any overdue fees owed to TAN by
dissemination of such information and shall be solely responsible Customer.To the extent that such funds are not available for set
for ensuring compliance with any applicable data and privacy off,Customer shall promptly reimburse TAN for any deficiency.
protection laws, codes of practice, and other legal obligations
7
I
16.2 Subscription fees. (c) designate by written notice a single site and single person
Customer shall pay to TAN the Hosted Software subscription as the point of contact for telephone or other contact,which site
fees("Subscription Fees")set out in the Pricing Form and for and/orperson Customermay changeupon 14 days priornotice to
the term of this Agreement established in Section 18 below. TAN.
Customer will be invoiced for their first year Subscription Fees 20. GRANT OF LICENSES AND LIMITATIONS
upon the first live operational use of the Hosted Software("Go- THEREON
Live Date"), with subsequent annual Subscription Fees being 20.1 TAN hereby grants to Customer a non-exclusive and
invoiced upon each anniversary of Go-Live Date. Payment will non-ti ansferable right and license,subject to this Agi cement,to
be made Net 30 days from invoice date. install and/or use the Licensed Software,in the manner and for
17. EXCLUSIVITY FOR HOSTED SOFTWARE the term stated in the Pricing Form Exhibit 1 and TAN
TAN will,during all periods for which Customer has subscribed provided and related written user documentation as follows:
for Hosted Software, be the sole and exclusive provider to (a) Workstation-Based Modules. In respect of each
Customer of the Hosted Software and Online Services, or any Workstation-based core Module and each Workstation-based
pioducts or services substantially similar thereto,for the part of add-on Module,Customer may install and use each Module on
Customer's organization utilizing the Hosted Software and Workstations to access the Enterprise Database on the Database
Online Services Server, provided that the number of copies of any particular
38. TERM FOR HOSTED SOFTWARE Module in use does not exceed the number of licenses granted to
Customer therefore as set out in the Pricing Form.
Unless otherwise provided in the Pricing Form, TAN shall (b) Server-based Add-on Modules.Customer may install and
provide to Customer,and Customer shall purchase from TAN, use each server-based Module on as many Workstations as is
the Hosted Software commencing on the Effective Date of this desired by Customer,and Customer may use and permit use of
Agr cement,and remaining in full force for a period of three(3) such Modules by its clients all without limit to the number of
years from the Go-Live Date of the Hosted Software(the"Initial Users or transactions which simultaneously use any such
Ter m"),with automatic renewals for three(3)year terms(each Module provided however that:
a"Renewal Term") thereafter until either party gives written
notice to terminate the Hosted Software no less than twelve(12) (1) in respect of each TeleReg & Voice Server Module,
months prior to the end of the Initial Term or Renewal Term,as Customer may install one copy of each Module on one
applicable IVR 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
SCHEDULE B: TERMS APPLICABLE ONLY TO Pricing Form,and all such Modules together may be in
LICENSED SOFTWARE AND ASSOCIATED SUPPORT Concurrent Use not to exceed the number of licenses
AND MAINTENANCE SERVICES granted to Customer for TeleReg Lines Modules as set
19. ACCESS TO SYSTEM AND OTHER CUSTOMER out in the Pricing Form;and
OBLIGATIONS
(U) in respect of each Payment Server Module, such
19.1 Access. Customer will provide,at no cost to TAN: Modules may be in Concurrent Use not to exceed the
(a) subject to the security requirements of Customer,24 hour number of licenses granted to Customer for Point of
access to Customer's system via either an always-available Sale Modules as set out in the Pricing Form.
telephone circuit or an always available internet connection to (c) Server-based On-line(Internet)Modules.In respect of
enable TAN or its designated representative to perform any of each Server-based On-line(Internet)Module,Customer may.
the obligations placed upon TAN by this Agreement;and i
(b) subject to the security requirements of Customer,remote (1) install one copy of each Module on one Internet server,
dial up/mtemet access methods approved by TAN to allow TAN provided that the number of copies of the Module in
to remotely diagnose and correct errors in the Licensed Software use does not exceed the number of licenses granted to
and provide other Services. Customer therefore as set out in the Pricing Form,and
19.2 Customer Obligations. Without limiting any of (11) subject to 20(d),permit Users to access and use such
Customer's other obligations under this Agreement, Customer Modules to access the Database Server via Internet
will: Clients connecting via a licensed Internet Server, and i
(a) use its best efforts to upgrade to any new Release or all such Modules together may be in Concurrent Use ,
Version of the Licensed Software as soon as possible after not to exceed the number of licenses granted to
becoming aware of its availability, Customer for Online Client Access Modules as set out
in the Pricing Form multiplied by twenty-five(25).
(b) ensure that at all times at least one current staff person of
Customer has been fully trained on the Licensed Software;and (d) Cumulative Workstation-based Modules.In respect of
each Cumulative Workstation-based Module,Customer may:
8
f
(I) install one copy of each Module on a single 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
(h) 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 (a) Services which are required to remedy problems that stem
number of licenses granted to Customer therefore as set from changes to or defects in system configuration upon which
out in the Pricing Form. 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 (c) Services which are required to remedy problems caused by
use Server-based On-line(Internet)Modules is based upon the
number of Users who have at any time logged into Customer's lack of training of Customers personnel or improper treatment
computer network using their passwords, such that any User so or use of the Licensed Software;
logged into such network in a manner that would automatically (d) Full report customization service;
enable the User to access and use such Modules will reduce by (e) Any and all hardware support, maintenance or
one the number of Users able to simultaneously access those troubleshooting issues, except as described in section 28
Modules, regardless of whether of not such User is in fact regardless of the source of such hardware.
accessing or using any such Module. Customer hereby waives
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 oft Support and Maintenance services begin for all Licensed
S
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
services is payable annually in advance and is due in its entirety
20.2 Additional Copies.Customer will not make any copies of thirty(30)days from date of TAN's delivered invoice. Customer
the Licensed Software except as necessary for the installation may elect to specify a preferred alternate Support Renewal Date
permitted hereby and except for: by so notifying TAN in writing If an alternate preferred Support
(a) copies of each Module licensed hereunder for training and Renewal Date is specified,the cost of Support and Maintenance
testing purposes,and will be prorated from the anniversary of the Support and
g p Maintenance Start Date to the specified Support Renewal Date.
(b) for backup purposes, provided that all electronic copies Thereafter, the Support and Maintenance fee is payable in
made include screen displays of TAN's proprietary or intellectual advance on every annual anniversary of the Support and
property notices as recorded on the original copy provided by Maintenance Start Date or,if there is a Support Renewal Date,
TAN and Customer affixes a label to each disk,reel, or other every anniveisary of the Support Renewal Date(the applicable
housing forthe medium on which eachphysicalcopyisrecorded anniversary being the "Support Renewal Date"). TAN will I
setting out the same proprietary and intellectual property notices provide invoices to Customer for all such amounts,such invoices f
as appear on the unit of Licensed Software from which the copy due on the later of(a)the Support and Maintenance Start Date or
is made in the same manner as those notices appear on that applicable Support Renewal Date,as applicable,and(b)30 days
original copy. from the date of the invoice.
21. LICENSED SOFTWARE FEES 24.2 For the fast year of this Agreement commencing with the
21.1 In respect of each Module Customer shall pay to TAN all Effective Date,Support and Maintenance pricing shall be equal applicable Licensed Software fees listed in the Pricing to twenty-five percent(25%)of the gross software license fePricing Form Support and Maintenance pricing for all successive years shall
upon delivery (as defined in Section 2 3) of the Licensed be equal to twenty-five percent (25%) of the gross software
Software. license pricing charged by TAN for equivalent software as ofthe 1
22. MAINTENANCE SERVICES date of each such renewal year, provided, however, that any +
increase in TAN's annual Support and Maintenance pricing for
22.1 TAN will develop new Releases and new Versions of any renewal year shall not exceed ten percent (10%) of the
Licensed Software in accordance with the procedures and other renewal fees charged in the prior year, Any additional software
particulars set out in the Support and Maintenance Handbook licensed to Customer by TAN will increase the total gross
attached as Exhibit 3. software license fees upon which Maintenance and Support
22.2 Provided that Customer continues to subscribe for Support pricing is based TAN will provide invoices to Customer for
and Maintenance in respect of a particular Licensed Software renewal fees up to 60 days prior to expiration of each term.
Product,TAN will provide to Customer,either in physical form 24.3 The Support and Maintenance fees identified in the Pricing
by mail or courier or in electronic form via the Internet, new Form are applicable only upon the date of entry into this
9
Agreement,and are subject to change thereafter in accordance =--with this Agreement's terms SCHEDULE C:TERMS APPLICABLE ONLY TO THIRD
24.4 In consideration of the Support and Maintenance provided PARTY PRODUCTS AND SERVICES
hereunder,Customer agrees to pay TAN the fees described in the 26. PURCHASE AND SALE;DELIVERY
Pricing Form,as modified explicitly pursuant to this Agreement.
In the event Customer requires Support and Maintenance for 26.1 Purchase Commitment and Price.TAN hereby agrees to
additional Licensed Software,Customer agrees to pay TAN the sell to Customer,and Customer hereby agrees to purchase from
additional Support and Maintenance fees applicable based upon TAN,the Third Party Products listed in the Pricing Form in the
the fees then in effect, prorated from the date of agreement to volumes and at the prices described therein.
acquire such services to the Support Renewal Date. 26.2 Delivery.TAN will ship all or any part of the Third Party
24.5 Unless the Pricing Form indicates otherwise, the fees Products to Customer as soon as reasonably practicable(or, if
charged hereunder are applicable to Support and Maintenance of the below-described purchase order documentation does not seek
Licensed Software used with respect to only a single database of immediate shipping, at the time TAN considers reasonable in
Customer data If Customer, after entering this Agreement, order to meet the desired delivery date described)after i eceipt by
places in service one or more additional databases to be used in TAN of a purchase order from Customer specifying the
relation to the Licensed Software,then for each such additional particular Third Party Products sought,the number of such Third
database,an additional 25%of all gross Licensed Software fees Party Products sought, the price payable therefore, and the
due, exclusive of such extra database fees, will be payable desired date and location of deliverytheieof. Any suchpurchase
hereunder for Support and Maintenance. Customer will notify order must, at a minimum,reference quantity, description and
TAN as soon as reasonably possible of the installation or use of price.
any such additional database(s). 26,3 Changes by Customer to Delivery Schedule.Following
24 6 TAN may terminate and suspend performance of all delivery by Customer of any piuchase oider documentation
Support and Maintenance if Customei fails to pay any past due described in section 26.2, no changes by Customei to the
TAN invoice within 30 days of written notice of such failui e,in shipment schedule described therein will be permitted unless
the event of any other material breach by Customei which TAN is notified thereof in writing at least ninety(90) days in
remains uncured 30 days after notice thereof or if any of the advance of the delivery date sought in such purchase order
Licensed Software ceases to be subject of a valid Software documentation.
License Agreement
26.4 Acceptance of Purchase Orders. Purchase oiders
24.7 If at any time after Customer has initially licensed any of delivered by Customer to TAN in respect of Third Party
the Licensed Software from TAN, Customer's right to receive Products are not binding upon TAN until accepted by TAN in
Support and Maintenance, or comparable services, from TAN writing. In any case, despite any indication to the contiary
under this Agreement of a comparable agreement has lapsed for contained in any such purchase order documentation,no terms or
any reason whatsoever,voluntarily or otherwise,and Customer conditions on purchase order documentation issued by Customer,
wishes to receive Support and Maintenance from TAN, other than the information required by TAN as set forth
Customer will pay to TAN,prior to r e-histatenient of Support expressly in this Agreement,will be binding upon TAN,nor will
and Maintenance services: any such terms or conditions modify or supplement this
(a) a reinstatement fee equal to the greater of 50% of the Agreement in any way,notwithstanding the fact that TAN may
current annual support fee or the sum of the unpaid support fees acceptor otherwise approve such purchase orders TAN reserves
that would have been payable hereunder had this Agreement the right to refuse any such purchase oidei for any reason not
been in force during the time in which Support and Maintenance contrary to this Agreement,including without limitation pricing
rights had so lapsed to the date of reinstatement,and differences as described in section 27.2.
(b) at least one additional year of Support and Maintenance 26.5 Additional Third Party Products. Customer may
from the date of reinstatement. purchase Third Party Products in addition to those listed in the
Pricing Form by issuing additional purchase order
25. TERM FOR SUPPORT AND MAINTENANCE documentation as described herein,provided that the supply(or
25.1 Term.TAN shall provide to Customer,and Customer shall non-supply) of such additional Third Party Products will be
purchase from TAN, Support and Maintenance for a period subject to this Agreement as though such additional Third Party
commencing on the Support and Maintenance Start Date and, Products had been included in the Pricing Form on the date of
subject to termination as provided herein, continuing until the execution of Pricing Form subject to the following:
following Support Renewal Date or anniversary of the Support (a) the price for such additional Third Party Products is subject
and Maintenance Start Date,with automatic renewals for one(1) to agreement between the parties each in their own absolute
year terms thereafter until either party gives written notice to discretion,and
terminate Support and the Mamtenance no less than ninety(90) (b) TAN shall have the right to discontinue delivery of such
days prior to the end of the then-current term,provided however additional Third Party Products upon at least ninety(90) days
that the fees payable in respect of the Services and the Products
may be revised by TAN in accordance with this Agreement. written notice to Customer without any liability to Customer
whatsoever for such discontinuance.
10 I
27. CHARGES AND PAYMENTS specifically permitted by a party having legal control of such
27.1 Prices.The pricing applicable to Third Party Products is as rights,and Customer will defend or settle any claim made or any
set out in the Pricing Form in the form finally agreed is the suit or proceeding brought against TAN insofar as such claim,
Parties. suit,or proceeding is based on an allegation that any Third Party
Product provided to Customer hereunder has been installed,
27.2 Pricing Variability.Customer acknowledges that: used,or otherwise treated by Customer or any client or customer
of Customer in violation of the proprietary rights of any third
(a) the prices described in Pricing Form are applicable for
six(6)months after the date of execution hereof,and such prices of part
Customer has disclosed or on an allegation that Customer
are based upon Customer taking delivery of the full number of to C a used any confidential business or
c any client or customer
any particular Third Party Product listed in Pricing Form in a technical information connected with any Third Party Product,
single shipment,and provided that TAN will notify Customer in writing promptly
after the claim, suit, or proceeding is known to TAN and will
(b) Customer hereby agrees that after the expiry of such initial give Customer such information and assistance as is reasonable
six-month period or,in case of Customer seeking,in a particular in the circumstances Customer will have sole authority to
shipment,delivery of less than all of the Third Party Products of defend or settle any such claim at Customer's expense.Customer
a particular type listed Pricing Form,the actual prices may be will mdemnify and hold TAN harmless from and against any and
higher.Prior to shipment of any Third Party Products that would all such claims and will pay all damages and costs finally agreed
be subject to pricing that differs from that described in the to be paid in settlement of such claim,suit or proceeding.
Pricing Form,TAN will notify Customer of any such different 29.2 Third Party Products which are Software. Customer
pricing and Customei will accept such different pricing, as acknowledges that the possession, installation and use of all
mutually agreed between Customer and TAN,in writing Thud Party Products which are softwaie shall be governed by
28. SUPPORT FOR THIRD PARTY PRODUCTS the terms of the software license(s) of the peisons other than
TAN who possess the rights to control such possession, i
For the purpose of isolating support issues and responsibility in installation and use.
respect of Thud Party Products and their interaction with any
Products, TAN will provide initial first-tier support, to a 30. WARRANTY
maximum of fifteen(15)minutes per support inquiry,for Thud 30.1 Warranty. TAN warrants to Customer that TAN has the
Party Products, as further specified in the Support and right to deliver the Third Party Products subject to any
Maintenance Handbook. documentation accompanying such Third Party Products at the
29. PROPRIETARY RIGHTS time of delivery and/or any licensing mechanisms, physical,
electronic or otherwise,included in any ThirdParty Products that
29.1 Third Party Proprietary Rights and Indemnity by are softwaie.
Customer. Customer acknowledges that any Third Party
Products supplied by TAN hereunder are supplied by TAN as a 30.2 Warranties Provided by Third Party Suppliers.Third
reseller thereof and that the Thud Party Products are subject to Party Products are warranted by the manufacturers thereof in
the intellectual property rights of the various thud party accordance with the warranty statements accompanying delivery
developers and/or manufacturers thereof,as applicable,including of the Thh d Party Products,and Customer agrees that Customer
without limitation copyright,trade secret,trademark,and patent will rely solely on such Thud Party Product warranties and
rights. Customer will maintain in confidence and not use or Customer shall make no claim against TAN on account of any
disclose any and all confidential business or technical warranty, express or implied, which may apply to any Thud
information connected with any Thud Party Product except as Party Product.
t
II
f
1
11
I
f
This Spa"Reserved For Rocordor's Use'
Filed.+for Retard ai Request of
•✓ 11
CURRAN, KLEWEN9, & JOHNSON, P.S.
AFTER RECOPDING Ill TO,
t Namd' •CITY OF DENT PARKS DEPT.,
,,Address,-+ 220 t2URT1j AVE''4SOUTI1
City,State,Zip .KMI. WA W032 +'
e r
Escrow nufil2gr: �3096'Y �;'+✓ • a>sy„ s''+ss �•„�.
$tatut6ry Wr,l`anty Deed
THE GRANTOR k,zal3ath C. 5aorey', a a nglQ person (� 8
Q� ✓
`� for and in consideration at TEN DOLLARS AND✓OTUilt,OOOD AND-VAV3ABLE CONS,IDERATTDN
C�J n{hand paid,convoys and warrants to Ciey Of Kent,'a fnunicipal eprporation
CD ' J . 1.
the following described real estate,situated In the County of, RING '., p State or Washington:
SEE E%:3IBIT "A" ATTACHED HERETO AN1y-.j37t Tel S'REFERENCE' NAVE R✓'PAgT HEREOF•
k t 1 f• ,', ie Y'r
SUBJECT iO: 9on¢l,tidns, Covenants, Restrictions, ihiieaipntili aqd F 't
,,Restevations of Record. "' +
Dated this 11 dtkj of jar u ery ✓ 1993
tillETTH C�MOR Y. �L " «,.:,....:r„.. $9✓...r.. .............«................•................
By ......«.,.,.. .««..,«,.... «..««.«,...,. . ._.............F By :,,h :««•w.....j............ _................................._............ .
STATE OF WASHING.TON 7
COTWTY OF KING J ,
Ice-tify that I know or have sat Is fact oryeAdence that RT.77ABE3B''C_ 'ROFOY � •t,.� •
is the person—who appeared before me, pnd said parsoll_ack'nowl'edgCd,that
.she signed ibis Instrument and acknowledged it to be her free and vpkbnlgiy aci for the uS$s snit purposes,
mentionedf in lhis iiuptrument. ;i' „a' ✓'•
Dated 1"r�.S'�/3 ., � ,,,••;;
yl+f L
Ie Public�' a�n,d{.�ror t State of WASHINGTON 4
� ��Y• Residing at
d My appointmentexpires:__I�—/I '
tpB•10 ,.IF p*S �+" E1290946 Oi/26/1993 .00
'hhltMMaR• ,
!�T
ORTHWESTERN
• 1 ETLE�� s
�..
A M;nnesoea fine Comparry �
• i S
EXHIBIT "A„
ti
Oomment'ing it the Southwest corner of the East half of the Northeast
,. °quaarter .of the -Sojitheast quarter of Section 27, Township 22 North,
Range 4,,'Ea.�3t,' W.M.'-, and ;• uhn.ing
the)rce ••alpng t�a West „line pf said East half of the Northeast quarter
B•f the' Southeast quir,.te'r, ;•4or�h„0°06 '48" East 1,183. 89 feet to the
true point, of be,giianang o'f, t�'is description;
thence Nor'th •,0°66 '48' Eas','`4''0.0,0)'f
thence North 8904,POV, .Ba'-'t 19a .39 feet;
thence Soufk: 4 'W ? 00" Yast, 40.V3,, e'et ;
thence South"89'°41 ' 00"' West 19,6,`93' feet to the true point of
beginning;
(Being known as Tract 267 ,uK$' FEN' hCK TRACTS' ,, according to the
unrecorded plat thereof)..
1.
e ALSO ...
,,
Q ' ;.•,:
Commencing at, the Southtivest corner of the' East fY''O':f'.;of't tlze;' Northeast
`d quarter of the, Southeast quarter of. ,Sectio% 27,—Township ,12 ,North,
hl
Range 4' East, W;M- , in King County, 1Vas�ington, and running,'
O thence.-along" the West Line of said East half: of.`fh,e N•brthe st quarter
M of thO Southeast quarter North 0°06148" East, 1 ;143. 89 4,,eet' to the true
point, o,f,'beginning' ;
thence Noxt?i 0°06 ' 4.$" East 40 feet;
the.fice North 89°,,4X '0V11', .East 196 .93 feet ;
thence South 4°57100" fast 40 . 13 feet;
+� theriGe South,,' 8,904.1'''40" ,West 247 feet to the true point"of beginning
(Being known ,as ;Tr,�'ct ;'2171 LAKE.: FENWICK TRACTS, according to unrecorded
UJ
plat thereof)".
,
w cc � EXCEPT that por`t'i,on', 6f the abbve described parcels , conveyed to King
IL County for road purposes' .,by deed reco•rclq,d under Recording No. 2614585.
r.
u END' OF!, EXHIBIT.`„A''•,
1
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NT038988/828 Page 4