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Home My WebLink AboutHR14-027 - Original - Halogen Software - eAppraisal 3 Year Subscription - 01/31/2014 i ENT ocument- was nincron " E? i t r 1 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: Halogen eAppraisal Vendor Number: ID Edwards Number Contract Number: 4 _' This is assigned by City Clerk's Office Project Name: Halogen eAppraisal - Cloud-based tool for employee evaluations Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ® Contract ❑ Other: Contract Effective Date: 1/1/14 Termination Date: 1/31/16 Contract Renewal Notice (Days): 30-days Number of days required notice for termination or renewal or amendment Contract Manager: Lorraine Patterson Department: Human Resources Detail: (i.e. address, location, parcel number, tax id, etc.): S:Publlc\RecordsManagement\Forms\ContractCover\adcc7832 1 11/08 SOFTWARE StratcgicTalent Management SUBSCRIPTION SOFTWARE LICENSE AND SERVICES AGREEMENT Contract No.01-2014-038 THIS SUBSCRIPTION SOFTWARE LICENSE AND SERVICES AGREEMENT is entered into between: Halogen Software Inc., ("Halogen") having a principal place of business at 495 March Road,Suite 100, Kanata, Ontario,CANADA K2K 3G1 and City of Kent(the"Customer'), having a principal place of business at 400 West Gowe, Kent,WA 98032, USA and is effective as of the date this Agreement has been signed by both parties("Effective Date"). WHEREAS Halogen is a company that, among otherthings,has developed and is the owner of certain computer software programs; AND WHEREAS Customerwishes to license the Software described in AppendkA and to procure the Services as described herein; NOW THEREFORE in consideration of the mutual promises, covenants and agreements contained in this Agreement, and for other good and valuable consideration,the receipt and sufficiency ofwhich is acknowledged by the parties,Customer and Halogen agree as follows: 1. SOFTWARE AND SERVICES Customer hereby licenses andfor purchases the following Software, Documentation and/or Services at the stated quantities and prices from Halogen,subject to the General Terms and Conditions attached hereto as Schedule A. ANNUAL SOFTWARE LICENSE SUBSCRIPTION&PROFESSIONAL SERVICES FEE Description License Term No.of Annual Subscription Fee Licenses Halogen eAppraisalTM Public Sector and Three(3)year 600 US$20,357.04 Halogen M HRIS ConnectT', (Inclusive of subscription M&S Fees and on-demand Hosting Services Fees) Annual Professional Services Fee — As above N/A US$1,245.00 Continuous Advancement — Level I — Halogen eAppraisalw, TOTAL ANNUAL SOFTWARE LICENSE SUBSCRIPTION&PROFESSIONAL US$21,602.04 SERVICES FEE(EXCLUSIVE OF TAXES) ONE-TIME PROFESSIONAL SERVICES FEE One-Time Professional Service Description One-Time Professional Services Fee Initial Launch—Level I—Halogen eAppraisaln' US$3,191-45 TOTAL ONE-TIME PROFESSIONAL SERVICES FEE(EXCLUSIVE OF TAXES) US$3,191.45 The above pricing shall apply provided that this Agreement is executed and returned by Customer prior to 5:00 p.m.(ET)on January 31,2014. 2. PAYMENTTERMS Customer agrees to the following payment terms with respect to Software and Services(as defined herein): (a) Annual Software License Subscription Fee. The Annual Software License Subscription Fee is comprised of the License, M&S, and Hosting Services Fees (if purchased). The first Annual Software License Subscription Fee for the initial licenses granted under this Agreement is due and payable within thirty(30)days of the Effective Date;subsequent years'Annual Software License Subscription Fees are due and payable on the anniversary of the Effective Date. Additional Annual Software License Subscription Fees applicable to any additional licenses purchased by Customer during the Term,as defined in Section 1(a)of Schedule A to this Agreement,will be calculated in accordance with Halogen's then-current price list(prorated to the end of the remaining annual subscription period), and are due and payable within thirty(30)days of Customers receipt of Halogen's invoice. City of Kent-SLEA-01-2014-038-aa.jpg Created on 7/05/2012 Page 1 of 20 Confidential (b) Annual Professional Services Fee. The first Annual Professional Services Fee for the initial licenses granted under this Agreement is due and payable within thirty(30) days of the Effective Date; subsequent years'Annual Professional Services Fees are due and payable on the anniversary of the Effective Date. Additional Annual Professional Services Fees applicable to any additional licenses purchased by Customer during the Term, as defined in Section 1(a)of Schedule A to this Agreement, will be calculated in accordance with Halogen's then-current price list(prorated to the end of the remaining annual subscription period), and are due and payable within thirty(30)days of Customer's receipt of Halogen's invoice. (c) One-Time Professional Services Fee. The One-Time Professional Services Fee as specified in Section 1 of this Agreement, and as further described in Appendix D, is due and payable within thirty(30)days of the Effective Date. Fees for additional Professional Services are payable in accordance with the schedule set out in the applicable Services Agreement. (d) Expenses. Unless otherwise specified herein or in a Services Agreement, Customer shall reimburse Halogen for all reasonable travel and out-of-pocket expenses incurred by Halogen's representatives when traveling to perform any Services for Customer, in accordance with Halogen's then current Travel & Expense Guidelines, available on-line at http://www.halogensoftware.com/filesfPDF/secureltravel_policy.php (password: halogen_travel). For clarity, Halogen acknowledges and agrees that no travel or out-of-packet expenses shall be incurred other than in accordance with this Agreement and/or an executed Services Agreement. 3. PURCHASE ORDER AND INVOICING DETAILS Customer hereby agrees either that: (I) It has generated a purchase order(`PO")to cover the total of the Fees and expenses specified in the Agreement, and the PO number is: The PO document should be faxed to 775-640-9544 or emailed to ar@halogensoftware.com to ensure proper reference on invoices forthe products and services purchased from Halogen. OR (II) A PO is not required to authorize payment in full to Halogen of the Fees and expenses specified herein. Unless otherwise agreed by the parties in writing, Halogen shall send Customer's invoice to the following email address: 4. SCHEDULES/APPENDICES The following schedules and appendices are attached to and form part of this Agreement: Schedule A General Terms and Conditions Appendix A Description of the Software Appendix B M&S Services Appendix C On-demand Hosting Services Appendix D Professional Services 5. ENTIRE AGREEMENT This Agreement,including its Schedules and Appendices,constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior statements, representations,discussions, negotiations and agreements,both oral and written.No modification,amendment or variation hereof shall be of effect or binding upon the parties hereto unless agreed to in writing by their authorized officers. For clarity, any pre- printed terms and conditions on Customer's purchase order or other similar document shall be of no force or effect. 6. COUNTERPARTS This Agreement may be executed in more than one counterpart, each of which is deemed an original and all of which together constitute one instrument. Delivery of an executed counterpart of this Agreement by fax or e-mail transmission is deemed to be properly binding upon the delivering party. City of Kent-SLSA-01-2014-038-aa.jpg Created on 7105/2012 Page 2 of 20 Confidential 7. AUTHORITY TO BIND The undersigned individuals represent and warrant that they are expressly and duly authorized by their respective entities or agencies to execute this Agreement and to legally bind their respective entities or agencies as set forth in this Agreement. IN WITNESS WHEREOF the parties hereto have executed this Agreement. Halogen Software Inc. City of Kent, -z Signature: Signature: '��"` "` Name: Name: Title: Title: Date: Date: ,t% �/ f d7�' r �p City of Kent-SLSA-01-2014-038-aaJIog Created on 7/05/2012 Page 3 of 20 Confidential SCHEDULE A GENERAL TERMS AND CONDITIONS 1. DEFINITIONS. "Software"means the version of the Halogen software program identified in Section 1 of the Agreement and described in (a) In these General Terms and Conditions, including the Appendix A in object code format, and any releases, Appendices hereto, unless the context requires otherwise, the derivatives, improvements, translations, adaptations, following words and phrases have the respective meanings set alterations, revisions, extensions, changes, enhancements or out below: modifications. "Affiliate' means, with respect to either party, any entity that "Specifications" means the technical specifications for the directly or indirectly controls, is controlled by or is under the Software identified and set out in the Documentation. common control of a party for so long as such control lasts, where "control" of an entity means the ownership of at least "Term" means the initial subscription term and any annual fifty percent (50%) of the voting securities of the controlled renewal term,as described in Section 7(a)of this Schedule A. entity. "Agreement" means this Subscription Software License and "Update"means a fix, patch or such other minor improvement, Services Agreement, including these General Terms and enhancement, modification or expansion of the Software Conditions, and the Appendices set out in Section 4 of the (typically denoted by an increment to the Software's number Agreement, as well as any extension, renewal or amendment immediately to the right of the decimal point, i.e. 12.1,and 12.2) signed by the parties hereto. as well as major revisions to and new versions of the Software (typically denoted by an increment to the Software's number to the left of the decimal point, i.e. 12.0 and 13.0), which are "Business Day' means Monday through Friday, excluding the generally commercially distributed by Halogen as part of the following holidays recognized in the Province of Ontario, M&S Services and for which Halogen does not impose a Canada: New Year's Day; Family Day; Goad Friday; Victoria separate charge or license separately. Day; Canada Day; Civic Holiday; Labor Day; Thanksgiving; Christmas Day;Boxing Day. 2. GRANT OF LICENSE "Documentation" means the standard, English-language (a) General Grant. During the Term, except as otherwise specified printed and electronic versions of all documentation intended in, Customer is hereby granted a non-transferable, non- for use with the Software, including but not limited to the assignable, non-exclusive, internal license, without right to Specifications, user manuals, system administrator manuals sublicense, to use the number of licenses to the Software and and other guides,but excluding training materials. Documentation specified in Section 1 of the Agreement solely for the purposes contemplated by and described in Appendix A, "Effective Date" means the date when both parties have provided however that in respect of Halogen eRecruitmen0l, if signed this Agreement. applicable, such license use shall be limited to Customer Size (in respect of Halogen eRecruitmentT'")and Customer Size/Job "Error" means any material and reproducible failure of the Description Total (in respect of Halogen Job Description Software to operate and/or perform in accordance with the BuilderTM when it is not licensed with any other module) Documentation. ("License"). Notwithstanding the foregoing, Customer is hereby permitted to sublicense its right to use the Software and Documentation to its Affiliates, provided that: (i) Customer "Fees"means the fees payable for the License,M&S Services, provides Halogen with a minimum of ten (10) days prior written Hosting Services, and Professional Services, specified in notice of such sublicense; (ii) Customer remains solely Section 1 of the Agreement. responsible for the actions and/or inactions of such Affiliates; and (iii) the combined total of all Licenses does not exceed the "Hosting Services" means, if applicable, the hosted, on- maximum number of Licenses, or in the case of Halogen demand services provided by Halogen for Customers benefit eRecruitmentT"' or Halogen Job Description BuilderT l (if not pursuant to Section 5 and Appendix C. licensed with any other module), if applicable, Customer Size (in respect of Halogen eRecruitmentTM)and Customer Size/Job "M&S Services" means those maintenance and support Description Total (in respect of Halogen Job Description services provided by Halogen pursuant to Section 3 and BuilderTM if not licensed with any other module), specified in Appendix B. Section 1 of the Agreement. (b) Restrictions. Customer shall use the Software and "Professional Services" means the services provided by Documentation solely for its internal business operations. Halogen pursuant to Section 4 and Appendix D, namely the Except as expressly authorized by this Agreement, Customer One-Time Professional Services and the Annual Professional shall not, without Halogen's prior written consent: (i) use, copy, Services, as well as any services that Halogen may agree to modify, adapt, improve, maintain, license, sublicense, lease, provide pursuant to a Services Agreement. sell, rent,export,or grant other rights in and to the Software;(ii) transfer this Agreement or any license to use the Software in "Review"means, if applicable, an evaluation document created whole or in part; (iii) except as permitted by law, translate, for an employee or contractor of Customer using the Software. reverse engineer, modify, adapt, create derivative works, decompile, merge, separate, disassemble or convert into "Services" means those services provided by Halogen as human readable form or into another computer language, all or described in this Agreement and/or in a Services Agreement, any part of the Software; (iv) remove any copyright, patent, inclusive of M&S Services, Hosting Services and Professional trademark, design right, trade secret, or any other proprietary Services,as applicable. rights legends from the Software; or(v)disclose the results of any benchmark test of the Software to any third party.Customer "Services Agreement" means a mutually agreed upon is responsible for all activities conducted under its user logins executed document which describes the Professional Services. and for its users' compliance with this Agreement. While using the Software and Documentation, Customer shall not: (i) send or store infringing or unlawful material; (ii) send or store malicious code; (iii) attempt to gain unauthorized access to, or City of Kent-SLSA-01-2014-038-aa.jpg Created on T0512012 Page 4 of 20 Confidential disrupt the integrity or performance of,the Software or the data applicable invoice,failing which such invoice must be paid in full contained therein; (iv) permit access to the Software by a direct in accordance with the terms of this Agreement. Nothing in this competitor of Halogen; or (v) use the Software to provide any clause allows Customer to delay payment of any part of the service to a third party. applicable invoice that is not in dispute. (c) Copies.If Customer's deployment is on-premise,Customer may (d) Taxes. Customer shall provide Halogen with a tax exempt make a reasonable number of copies of the Software for back- certificate, failing which, Customer shall pay all applicable up or archival purposes. Notwithstanding the foregoing, absent duties,taxes or amounts due in lieu thereof owed by Customer, Halogen's prior written permission, Customer is not authorized related in any way to this Agreement, exclusive only of taxes to install more than one instance of the Software. Customer based on Halogen's net income. may also make copies of the Documentation for use at Customers premises as necessary to assist Customer in using (a) Shipment. Unless otherwise agreed by the parties in writing, the Software. Customer shall reproduce all confidentiality and Halogen shall deliver the Software and Documentation proprietary notices upon such copies of the Software and electronically. If a physical shipment is required,it shall be FOB Documentation. shipping paint. Responsibility and title in the Software (to the extent that any title is transferred under this Agreement) shall (it) Reserved Rights. Any rights not expressly granted herein shall pass to Customer as follows: (i) if physically shipped, once the be reserved for Halogen. Rights in and to the source code as Software is delivered to Halogen's commercial carrier; (if) if well as rights in and to other information pertaining to the logic, electronically shipped absent any Hosting Services from design or structure of the Software are specifically excluded Halogen, once Halogen delivers to Customer the applicable from the License. downloadable license file, or (iii) if electronically shipped to Customer for use in Halogen's hosted on-demand hosting 3. MAINTENANCE&SUPPORT SERVICES environment,once the Software is made available to Customer. The Software shall be deemed accepted upon delivery. Halogen shall provide the M&S Services as described in Appendix B. 4. PROFESSIONAL SERVICES (f) Currency. Unless otherwise indicated, all prices quoted in this Agreement are in United States of America Dollars("i and Customer acknowledges and agrees that it must purchase One-Time payments to Halogen pursuant to this Agreement are to be Professional Services and Annual Professional Services in made in USD. conjunction with the License. Upon request, Halogen may provide additional Professional Services,including,but not limited to training, (g) Money Back Guarantee. All Software licensed by Halogen consulting, database or data migration services. In support thereof under the terms of this Agreement (other than additional and in accordance with the provisions of Appendix D, Halogen shall licenses for a previously licensed module) and the Annual provide the Professional Services specified in Section 1 of the Professional Services component of the Customer's Agreement and such further Professional Services as may be Professional Services entitlement shall be subject to a money specffied from time to time in a Services Agreement. back guarantee, commencing upon the Effective Date of this Agreement (or the applicable Addendum) and continuing for a 5. HOSTING SERVICES period of one hundred and eighty (180) days (the "MBG Period"). At any time during the MBG Period, subject to the If purchased by Customer under the Agreement, Halogen shall below listed conditions but otherwise at Customer's sole provide Hosting Services during the Term: (i) in support of the discretion, Customer may elect to terminate this Agreement number of Licenses,and/or Customer Size,if applicable,specified in (either in whole or in part, in respect of only select module(s)) Section 1 of the Agreement; and,(ii)in accordance with Appendix C. and obtain a pro-rate refund of the first year's Annual Software Unless otherwise agreed by the parties, the Hosting Services shall License Subscription Fee and the first years Annual be provided in respect of one(1)hosted site only. Professional Services Fee for the module(s) being returned, calculated from the date Halogen receives Customer's notice to 6. PAYMENTS the end of the first year's subscription term. In such event, notwithstanding anything in this Agreement or the applicable (a) Fees and Expenses. Customer shall pay to Halogen the Fees Addendum to the contrary, Customer shall not be required to and other expenses, as applicable, set out in Section 1 of the pay Halogen the subsequent years' Annual Software License Agreement. Following the initial subscription term (as identified Subscription Fee (if any) and/or the subsequent years' Annual in Section 1 of this Agreement), Halogen reserves the right to Professional Services Fee(if any)in respect of such module(s). increase the Annual Software License Subscription Fee and The money back guarantee described above is subject to the Annual Professional Services Fee as set out in Section 1 of the following conditions: Agreement upon renewal upon not less than thirty (30) days notice. (i) Customer must have booked and fully received one of Halogen's assisted implementation services (b) No License Rights/Suspension. Customer acknowledges that programs for the module(s) being returned. For Customer has no rights under this Agreement in respect of any clarity, Customers refund entitlement does not undisputed unpaid Licenses and Professional Services. include the One-Time Professional Services Fee Halogen reserves the right to suspend the performance of any paid or payable in respect of such services program; or all of its obligations hereunder upon not less than thirty (30) and, days prior written notice if undisputed amounts are unpaid when (ii) Customer's notice must be sent to due and remain unpaid at the end of such notice period. contracts(gDhaloaensoftware.com with a hard copy by Specifically, if Customer's deployment is on-demand, if regular mail to the address noted above, Attention: Customer does not pay its annual Hosting Services Fee in a Finance Department. timely manner (which Fee is part of Customer's Annual Software License Subscription Fee), Halogen may terminate 7. TERM AND TERMINATION Customers hosted access in accordance with Section 6 of Appendix C(Termination of Hosting Services). (a) Term. This Agreement shall be effective on the Effective Date (c) Disputes. If Customer disputes the correctness of any part of and shall, unless earlier terminated as provided herein, Halogen's invoiced Fees or expenses, Customer shall advise continue for the initial subscription term(as identified in Section Halogen within thirty (30) days from Customer's receipt of the 1 on Page 1 of this Agreement). Following the initial subscription term, the provisions of this Agreement shall City of Kent-SLSA-01-2014-038-aa.jpg Created on 7/05/2012 Page 5 of 20 Confidential automatically renew at Halogen's then-current rates for licensors, whether or not specifically recognized or perfected subsequent one year terms, unless either party provides written under the laws of the country where the Software and/or notice of its intention not to renew this Agreement at least thirty Documentation is located. (30)days prior to the end of the then-current subscription term. (b) Feedback. Halogen shall have a royalty-free, fully paid-up, (b) Termination.This Agreement shall terminate on the earlier of:(i) nonexclusive, perpetual, irrevocable, worldwide, transferable termination of the Term, where notice of non-renewal is timely (only to a successor in interest by way of merger,reorganization provided by one party to the other in accordance with Section or sale of all or substantially all assets or equity),sublicensable 7(a) above; (ii) on a day that is thirty (30) days after one party license to use, copy, modify, or distribute, including by gives the other written notice of breach by the other of any incorporating into the Software, any suggestions, material term or condition of this Agreement, unless the breach recommendations or other feedback provided by Customer or is remedied before that day to the satisfaction of the notifying its users relating to the operation of the Software. party; (ill) upon written notice of termination by one party, effective immediately, if the other party is or becomes insolvent (c) No Additional Rights. Nothing in this Agreement shall be or bankrupt or ceases paying its debts as they mature, or construed as increasing the number of copies licensed to makes or files an assignment in bankruptcy or otherwise Customer or the number of permitted users or licenses, or acknowledges its insolvency, or a trustee, receiver,liquidator or providing Customer with additional Halogen products or similar official is appointed for the other party or any substantial services. portion of its property and assets, or bankruptcy, insolvency, arrangement or similar proceedings are instituted by or against 9. CONFIDENTIALITY the other party; (iv) upon written notice of termination by either party, effective immediately, if the circumstances of Force (a) Definition. The parties acknowledge that one party("Receiving Majeure described in Section 18(d) are continuing and have Party") may receive confidential and/or proprietary information continued for a period of at least sixty(60)consecutive days; or relating to the other party ("Disclosing Party") or its licensors (v) upon written notice of termination by Halogen if Customer or customers ('Confidential Information"). The parties shall fails to pay any or all undisputed Fees or other amounts due only use such Confidential Information in the performance of hereunder within fifteen (15)days of receipt of such notice. this Agreement and shall not disclose any such Confidential Information to any other party unless authorized by the (c) Effect of Termination. Upon any termination of this Agreement, Disclosing Party in writing. Halogen Confidential Information and unless otherwise provided herein:(i)if termination is due to shall be deemed to include, regardless of marking, the Customer's unremedied material breach or its bankruptcy or Software, the Documentation, any unannounced product(s) or insolvency (as each are described in Section 7(b)) or due to service(s) of Halogen, and the terms, conditions and subject Force Majeure (as defined in Section 18(d)), all payments that matter of this Agreement and any related contractual would otherwise have been payable for Software received or documents.If Customer's deployment is on-demand, Customer Services performed hereunder during the Term (to the extent Confidential Information shall be deemed to include, regardless not already paid by Customer) shall become due immediately; of marking. all Customer data, files and records stored on any (u) if termination is due to Halogen's unremedied material equipment used by Halogen to provide the Hosting Services. breach or its bankruptcy or insolvency (as each is described in As soon as practicable, Receiving Party shall notify Disclosing Section 7(b)), any prepayment made by Customer to Halogen Party of any breach of this Section 9 of the Agreement. for Software received or Services that would otherwise have been performed after the termination date shall be refunded to (b) Restrictions. Receiving Party shall not transmit, maintain, Customer; (ill) subject to paragraph (e), Customer shall mmanufacture or duplicate all or any part of, the Confidential immediately cease using the Software and, shall return to Information except in accordance with the terms and conditions Halogen or destroy all copies of the Software and of this Agreement. Receiving Party shall be directly liable for the Documentation, and certify to Halogen in writing that Customer acts or omissions of its employees or contractors with respect to has complied with its termination obligations hereunder;and(iv) such confidentiality obligations. Receiving Party agrees to each party shall return to the other, or destroy ail Confidential protect the Confidential Information with at least the same Information of the other party in its possession or under its degree of care it uses to protect its own trade secrets and control, and provide certification of destruction of same upon proprietary information but no less than reasonable care. request. Notwithstanding the foregoing, Customer may retain one or more copies of this Agreement for its files. (c) Exclusions. The foregoing confidentiality obligations shall not apply to Confidential Information which: (1) at the time of (d) Services Termination.Should either party terminate any Hosting disclosure is within the public domain, other than through a Services or Annual Professional Services (as expressly breach of this Agreement by the Receiving Party; (ii) after provided herein), the provisions of this Agreement which are disclosure becomes readily and lawfully available to the industry applicable to the services or obligations so terminated shall be or the public, other than through a breach of this Agreement by deemed terminated and the provisions of Section 7(c) shall the Receiving Party; (ill) Receiving Party can establish, by apply, as applicable. Termination of such Services shall not documented and competent evidence, was in its possession result in the termination of any valid licenses to the Software, prior to the date of disclosure by Disclosing Party; (iv)Receiving which shall otherwise remain in full force or effect as provided Party can establish, by documented and competent evidence, herein. was independently developed by the Receiving Party without use or reliance upon the Confidential Information; or (v) is (a) Survival. Sections 2, 6(c), 7(c), 8 to 10 and 12 to 18 shall approved for disclosure, in advance, in writing by Disclosing survive the termination or expiration of this Agreement. Party. 8. OWNERSHIP (d) Compelled Disclosure. In the event that the Receiving Party is requested pursuant to legal process to disclose any (a) General Proprietary Rights. The Software and Documentation Confidential Information of the Disclosing Party, the Receiving and the media on which they are provided (if any) are licensed, Party shall provide the Disclosing Party with notice to such not sold. All right, title and interest in and to the Software and effect, and at the request of the Disclosing Party shall co- Documentation, including all patents, copyrights, trademarks, operate with the Disclosing Party at no cost to the Receiving mask works, circuit layout rights, design rights, trade secrets Party in seeking relief against the disclosure of such and other proprietary and intellectual property rights in or Confidential Information.In the event that through legal process related to the Software and Documentation, along with all the Receiving Party is obligated to disclose any Confidential enhancements, modifications,translations and derivative works Information, the Receiving Party may do so without breaching of the Software or Documentation, belong to Halogen or its the terms of this Agreement, provided that the Receiving Party City of Kent-SLSA-01-2014-038-aa.jpg Created on 7/05/2012 Page 6 of 20 Confidential furnishes only that portion of the Confidential Information that it responsibility and Customer's sole remedy with respect to is legally required to furnish. deficient or non-conforming Services is to use commercially reasonable efforts to re-perform such services in accordance (e) Equitable Remedies. Receiving Party acknowledges that with the terms and conditions of this Agreement. disclosure or use of the Confidential Information contrary to this Agreement may cause the Disclosing Party irreparable harm for (c) General. Halogen represents and warrants that it has all right, which damages would not be an adequate remedy and further power,and authority to enter into this Agreement and to provide acknowledges that, in addition to any other remedies that may the Software and Services described in the Agreement and that be available at law, the Disclosing Party may apply for all nothing in this Agreement or Halogen's performance consistent available equitable relief including injunctive relief. therewith will violate any agreement or obligation that Halogen has to a third party. 10. PERSONAL INFORMATION (d) Disclaimer. THE WARRANTIES IN THIS SECTION 11 ARE Halogen acknowledges that, in the course of fulfilling its obligations THE ONLY WARRANTIES EXPRESSLY GIVEN BY HALOGEN under this Agreement, it may have or be given access to information WITH RESPECT TO THE SOFTWARE, DOCUMENTATION about an identifiable individual which is personal information, AND THE SERVICES. TO THE EXTENT PERMITTED BY personal data and/or sensitive personal data (as defined in the LAW, HALOGEN EXCLUDES ALL OTHER WARRANTIES applicable privacy or data protection legislation, if any) ("Personal AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING Information"). Halogen shall comply with all applicable laws THOSE CONCERNING MERCHANTABILITY, governing the use, disclosure and access of such Personal SATISFACTORY QUALITY AND FITNESS FOR A Information, including but not limited to, any and all requirements to PARTICULAR PURPOSE. HALOGEN DOES NOT MAKE ANY protect such information from loss or unauthorized access as WARRANTIES THAT THE SOFTWARE AND THE required by the Personal Information Protection and Electronic OPERATION THEREOF WILL BE UNINTERRUPTED, Documents Act (PIPEDA) where applicable. Without limiting the ERROR-FREE OR SECURE. generality of the foregoing, Halogen agrees that Personal Information shall be considered and treated as Confidential (e) No Authorization. No Halogen agent, representative or dealer is Information and shall therefore be subject to the provisions of authorized to modify,extend or add to any warranty on behalf of Section 9. Halogen. 11. WARRANTIES 12. INTELLECTUAL PROPERTY INDEMNIFICATION (a) Software Warranty. Halogen warrants that during the period (a) Defence of Infringement. Halogen shall indemnify, hold beginning on the Effective Date and continuing for ninety (90) Customer harmless against and defend or settle any action days thereafter ("Warranty Period'): (i) the Software shall brought against Customer to the extent that it is based on a conform substantially to the Specifications set out in the claim that the Software provided by Halogen under this Documentation("Software Warranty');and (4)if applicable,the Agreement infringes any patent or copyright of a third party media upon which the Software is provided shall be free from registered, pending and/or issued in Canada or the United defects in materials and workmanship('Media Warranty'). States of America as of the Effective Date ("Third Party Rights") and shall pay the resulting costs, damages and legal Customer's sole remedy and Halogen's sole obligation with fees finally awarded against Customer, provided that: (i) respect to a breach of the foregoing warranties is as follows: (i) Customer notifies Halogen in writing within ten (10) days of in respect of the Media Warranty, provided that the media is receiving notice of any such claim against Customer; (ii) returned to Halogen within the Warranty Period, Halogen shall Halogen or its licensors have sole control of the defence, provide Customer with replacement media;and,(ii)in respect of compromise or settlement of such claim, including any appeals; the Software Warranty, provided that Halogen is notified in (iii) Customer reasonably cooperates with Halogen in the writing of the non-conformance during the Warranty Period, defence or settlement of such claim at no charge to Customer; Halogen shall, at its sole option, use commercially reasonable and(iv) Customer makes no admissions or offers of settlement efforts to correct significant defects in the Software or provide a to the third party. Halogen shall not be liable for any costs or workaround thereto, without charge to Customer,failing which, expenses incurred by Customer with respect to settlement of an Halogen shall refund to Customer an amount equivalent to, but infringement claim without Halogen's piiorwritten authorization. no greater than,the Annual Software License Subscription Fee paid in respect thereof. (b) Exclusions. Halogen shall have no liability hereunder for any claim of infringement based on: (i)use of a superseded release The above warranties shall not apply to:(a)any Software that is of the Software if the infringement would have been avoided by modified without Halogen's written consent; or(b)any Software the use of a current release of the Software that has been made which has been misused, altered, repaired or used with available by Halogen to Customer at no additional cost to equipment or software not expressly approved by Halogen. Customer; (ii) the use of a release of the Software that has Halogen shall have no responsibility for claims arising from: (i) been modified or altered by a party other than Halogen or used modifications of the Software made by Customer if such claim not as directed by Halogen if the infringement would have been would not have arisen but for such modifications, or (it) avoided by the use of an unmodified or unaltered release of the combination or use of the Software with any other products, if Software; or (iii) the combination, operation or use of the such claim would not have arisen but for such combination or Software with software, hardware or other materials not use. Customer further acknowledges that the Software, if it is to furnished or recommended by Halogen if such infringement be installed on-premise at Customers site and not hosted by or would have been avoided without such software, hardware or on behalf of Halogen, typically requires some configuration other materials. upon installation, that certain customary infrastructure such as internet connectivity must be in place at Customers site in order (c) Remedies. In the event the Software, or a component part for certain functionality to-operate in accordance with the thereof is, pursuant to a final decision by a court of competent Documentation, and that the provision of this infrastructure is jurisdiction, held to infringe,or is believed by Halogen to infringe not part of this Agreement. or potentially infringe, Third Party Rights, Halogen shall, in addition to the indemnification and defence provided for in (b) Services Warranty. Halogen warrants that the Services to be Section 12(a), and at Halogen's option, (a) modify, at its provided hereunder shall be performed with reasonable care expense, the Software to be non-infringing, (b) obtain for and skill by an individual trained in and competent with the Customer a license to continue using the Software; or, if the Software and in a professional manner. Halogen's sole foregoing options are not reasonably practicable, (c) terminate this Agreement and refund Customer all prepaid Fees for that City of Kent-SLSA-01-2014-038-aa.jpg Created on 7/05/2012 Page 7 of 20 Confidential portion of the Term then remaining. This Section 12 shall only consultation and negotiation in good faith and a spirit of mutual apply in respect of a final decision rendered by a court of cooperation for up to fifteen(15)days commencing on the date when competent jurisdiction or in respect of a settlement of an one party gives written notice to the other party of any controversy or infringement action with the prior written consent of Halogen. claim. However,if those attempts fail,the dispute shall be submitted to arbitration. The parties agree that any continuing disputes arising (d) ENTIRE LIABILITY.THE FOREGOING STATES THE ENTIRE from or related to this Agreement shall be decided pursuant to the LIABILITY OF HALOGEN AND THE EXCLUSIVE REMEDY OF then-current Rules of the American Arbitration Association at such a CUSTOMER FOR ANY INFRINGEMENT OF THIRD PARTY location to be mutually agreed upon by the parties. If the parties RIGHTS. cannot agree on a location for the arbitration within ten(10)days,the parties agree that the arbitration will take place in New✓York, New 13. LIMITATION OF LIABILITY York. Unless provided otherwise in the Agreement, the arbitrators, at least one of whom shall be knowledgeable about information- (@) LIMITATION. IN NO EVENT, UNDER NO CIRCUMSTANCES technology agreements similar to this Agreement, may not award AND UNDER NO LEGAL THEORY, TORT, CONTRACT OR non-monetary or equitable relief of any sort. They shall have no OTHERWISE, SHALL HALOGEN, ITS LICENSORS, OR ITS power to award damages inconsistent with the Agreement or punitive AFFILIATES, OR THEIR RESPECTIVE OFFICERS, damages or any other damages not measured by the prevailing DIRECTORS, EMPLOYEES OR CONTRACTORS BE LIABLE party's actual damages, and the parties expressly waive their right to TO CUSTOMER FOR: (1) ANY INDIRECT, INCIDENTAL, obtain such damages in arbitration. In no event, even if any other ORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR portion of these provisions is held to be invalid or unenforceable, '.. EXEMPLARY DAMAGES INCLUDING WITHOUT LIMITATION shall the arbitrators have power to make an award or impose a ECONOMIC LOSS, LOST PROFITS, LOSS OF USE,LOSS OF remedy that could not be made or imposed by a court deciding the USE OF PROFITS, REPROCUREMENT COSTS OR LOST OR matter in the same jurisdiction. The arbitration shall be conducted in DAMAGED DATA, EVEN IF HALOGEN OR ITS AFFILIATES the English language. All aspects of the arbitration shall be treated HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH as confidential. Neither the parties nor the arbitrators may disclose DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE,OR the existence, content or results of the arbitration, except as IF SUCH DAMAGES ARISE FROM ANY necessary to comply with legal or regulatory requirements. Before MISREPRESENTATION, BREACH OF ANY IMPLIED OR making any such disclosure, a party shall give written notice to the EXPRESS WARRANTY OR CONDITION, BREACH OF ANY other party and shall afford such party a reasonable opportunity to OTHER TERM (INCLUDING A FUNDAMENTAL BREACH OR protect its interests. The result of the arbitration and the reasons BREACH OF A FUNDAMENTAL TERM) OR BREACH OF therefore shall be given in writing,and will be binding on the parties, STATUTORY DUTY; OR (II) A MAXIMUM AGGREGATE and judgment on the arbitrators' award may be entered in any court LIABILITY IN ANY CLAIM, ACTION, DEMAND OR having jurisdiction.The parties agree that the arbitrator's award may PROCEEDING WHICH EXCEEDS:(A)FOR THE SOFTWARE, only be appealed on a question of law or patent unreasonableness. THE TOTAL AMOUNT OF THE LICENSE FEE COMPONENT OF THE ANNUAL SOFTWARE LICENSE SUBSCRIPTION EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ITS FEE ACTUALLY PAID TO HALOGEN BY CUSTOMER RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION DURING THE YEAR IN WHICH THE CLAIM AROSE; OR (B) BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY FOR ANY SERVICES PROVIDED, THE M&S OR HOSTING DEALINGS BETWEEN THE PARTIES RELATING TO THE SERVICES COMPONENT OF THE ANNUAL SOFTWARE SUBJECT MATTER OF THIS AGREEMENT. EACH OF THE LICENSE SUBSCRIPTION FEE, OR THE ANNUAL PARTIES HERETO ACKNOWLEDGES THAT THIS WAIVER IS A PROFESSIONAL SERVICES FEE, AS THE CASE MAY BE, MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT. PAID BY CUSTOMER TO HALOGEN FOR THE SERVICES IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE '. GIVING RISE TO THE CLAIM DURING THE YEAR IN WHICH FILED AS A WRITTEN CONSENT TO ATRIAL BY THE COURT. CLAIM AROSE. (b) Exceptions. The foregoing limitations on liability shall not apply 15. U.S.GOVERNMENT END USERS to: (i) claims caused by Halogen's gross negligence or wilful '. misconduct to either Customer or a third party;or(d)third party If Customer is a federal government entity or government contractor intellectual property claims for which Halogen is required to in the United States of America, the Software is subject to the '. indemnify Customer pursuant to Section 12. following restricted rights: use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c) Basis of Bargain. The parties acknowledge and agree that the (c)(1)(ii) of The Rights in Technical Data and Computer Software limited warranty,exclusive remedies and limited liability set forth clause at DEARS 252.227-7013, or subparagraphs (c)(1) and (2) of in this Agreement are fundamental elements of the basis of the the Commercial Computer Software - Restricted Rights at 48 CFR bargain between Halogen and Customer, and that Halogen 52.227-19, or clause 18-52.227-86(d) of the NASA Supplement to would not be able to provide the Software or Services on an the FAR, as applicable.Contractor[Manufacturer is Halogen. economic basis without such limitations. '. 16. AUDIT (d) Limitation Period, No action, regardless of form,arising out of or in relation to any services may be brought more than two (2) Customer is responsible for monitoring its License count. If years after the completion of the services to which the action Customer's deployment is on-premise, Customer agrees to: (i) relates. advise Halogen, upon request, of all locations where Software is used or stored and to provide Halogen reasonable access to such 14. DISPUTE RESOLUTION locations and the Software, including any copies; (ii) maintain complete and accurate records (in accordance with generally All matters of difference between the parties in relation to this accepted accounting principles or FIRS, as applicable)relating to its Agreement shall be dealt with in accordance with this Section. activities under this Agreement;and(iii)upon request, not more than Notwithstanding the foregoing,no provision hereof shall limit the right once per twelve (12) month period, certify its current use of the Of any party to obtain equitable relief, including without limitation, Software including without limitation Customer Size and number of injunctive relief,from a court of competent jurisdiction before, after or job descriptions, as applicable. Halogen may, at its expense,appoint concurrent with mediation, arbitration or other proceeding, provided an independent third party to audit, no more than once annually, however that any proceedings which occur in accordance with this Customer's use of the Software. Any such audit shall be conducted Section and are brought by Customer shall be in its individual during regular business hours at Customer's office, upon a minimum capacity, and not as a class member in any purported class or of five(5)Business Days notice and shall not unreasonably interfere representative proceeding. The parties shall attempt to resolve any with Customer's business activities. In lieu of the foregoing, and at dispute arising from or relating to this Agreement through Halogen's option, Halogen may require Customer to run a license City of Kent-SLSA-01-2014-038-aa.jpg Created on 7/05/2012 Page 8 of 20 Confidential utilization script file not more than once per twelve(12)month period or regulations ("Force Majeure"). The existence of such and timely provide Halogen with the results thereof in support of this causes of such delay or failure shall extend the period for Section 16. If Customer's deployment is on-demand, Customer performance to the extent necessary to enable complete acknowledges that Halogen shall have the ability to: (i) audit its use performance in the exercise of reasonable diligence after the of the Software at any time,with no prior notice to Customer; and (n) causes of delay or failure have been removed. require Customer to certify upon request, not more than once per twelve (12) month period, Customer's current use of the Software (a) Assignment and Benefit.Other than as permitted under Section including without limitation Customer Size and Job Description Total, 2 of this Agreement,Customer may not assign all or part of this as applicable. In addition to other remedies available to Halogen, if Agreement without Halogen's prior written consent. any such audit or certification shows that Customer has underpaid Notwithstanding the foregoing, either party may assign this the applicable Fees, Customer shall pay such underpaid Fees within Agreement in its entirety without consent of the other party to its thirty (30) days of invoice. If underpaid Fees for any period are in successor in interest in connection with a sale of all or excess of five percent (5%) of the value of the Fees paid for that substantially all assets or equity not involving a direct period under this Agreement, then Customer shall also pay competitor of the other party. This Agreement shall be binding Halogen's reasonable costs of conducting the audit,if any. upon and inure to the benefit of the successors and permitted assigns of the parties. 17. PUBLICATION (f) Notice. All notices, requests, demands and other Customer consents to publication of its name and logo by Halogen in communications required or permitted under this Agreement a factual listing of Halogen's customers within presentations, on must be in writing and are deemed to have been duly given, if trade show signs and on its website. Halogen shall seek Customer's sent by fax (receipt confirmed), on the day it is received, if prior written authorization for any other use of Customers name or delivered in person or by courier, when delivered, if mailed by logos. Provided that Customer is satisfied with the Software, registered or certified mail, postage paid and return receipt Customer agrees to consider: (i) participating in a success story for requested, from within the United States or Canada, on the the Software to be published on Halogen's website and(ii)acting as fourth Business Day following the date of mailing, or if from a client reference for Halogen on an as-and when-needed basis. outside of the United States or Canada, on the tenth Business Day, to the addresses of the parties given on the first page of 18. GENERAL PROVISIONS the Agreement or to such other address as a party may from time to time specify by notice in writing to the other party. (a) Compliance with Applicable Laws. Each party shall comply with Notices to Halogen shall be made to the attention of the Chief any and all applicable laws, including, but not limited to, export Financial Officer. A notice deemed to have been received after laws. 5 p.m. on a Business Day, or on a day which is not a Business Day at the place of receipt, shall be deemed to have been (b) Governing Law and Jurisdiction.This Agreement is governed by received at 9 a.m. on the first Business Day thereafter at the and is to be construed and interpreted in accordance with the place of receipt. laws of the State of New York,without regard to conflict of laws. The parties expressly disclaim the application of the United (g) Severability.The provisions of this Agreement shall be deemed Nations Convention on the International Sale of Goods to this severable. If any provision of this Agreement shall be held by a Agreement. Subject to Section 14 above, Customer submits to court of competent jurisdiction to be contrary to law, the the non-exclusive jurisdiction of the courts of the State of New remaining provisions of this Agreement shall remain in full force York, and Halogen submits to the exclusive jurisdiction of the and effect. courts of the State of New York. (h) Waiver. The waiver by either party of any default or breach of (c) Independent Principals. The parties are and shall at all times this Agreement shall not constitute a waiver of any other or remain independent principals in all relationships and actions subsequent default or breach. under or contemplated by this Agreement and neither party has the authority to bind the other or to incur any obligations on Its (i) Language. The parties confirm that: (i) it is their wish that this behalf. Neither party shall represent itself to be the agent,joint Agreement, as well as all other documents relating to this venturer, partner or employee of the other nor shall either party Agreement, including notices, be drawn up in English; (ii) any make any statements or take any steps or acts that do or could and all Services provided pursuant to this Agreement, imply or create any agency, joint venture, partnership, Appendices B, C and D to this Agreement and any applicable employment or other business relationship between them,other Services Agreement shall be provided in English; and (iii) the than as expressly hereby contemplated. English language shall be controlling in all respects. (d) Force Majeure. Subject to Section 7(b), neither party shall be Q) Conflict. In the event of a conflict between this Agreement and a responsible for delays or failure of performance under this Services Agreement, this Agreement shall prevail to the extent Agreement,except for Customer's obligation to pay the Fees,to necessary to resolve the conflict. the extent resulting from causes that are beyond the reasonable control of such party and which render the continued (k) Contracts (Rights of Third Parties)Act 1999.This Agreement is performance of this Agreement impossible, impractical or illegal, not intended to confer rights on third parties. including, but not limited to, fire, flood, explosion, tornado, epidemic, earthquake, snowstorm, ice storm or other act of God, embargo, explosion, malfunction, riots, civil disputes, acts of terrorism or war,failure of the internet or government controls City of Kent-SLSA-01-2014-038-aa.jpg Created on 7f05f2012 Page 9 of 20 Confidential APPENDIX A DESCRIPTION OF THE SOFTWARE HRIS Connectivity plion Halogen eAppraisalT` Halogen®HRIS Connect"'is an optional utility that Is suitable for use by Halogen eAppraisalT'd is licensed in units of"Review Licenses". The on-demand customers as well as on-premise customers with a third- number of Review Licenses limits the number of employees or party hosted HRIS system. It eliminates the need for any manual effort contractors of Customer that can be appraised each calendar year. A when importing employee data into the User Center of Halogen's Review License allows an employee or contractor of Customer to be Employee Performance and Talent Management Suge. It runs as appraised with Halogen eAppraisalTM by an unlimited number of Windows Service, installed locally within Customer's network, and can Respondents an unlimited number of times during the calendar year. retrieve updated employee information from two types of sources:a CSV Review Licenses are consumed whenever activity occurs,related to an file or a SQL database. The HRIS utility is configured only once, after individual who Is the subject of an evaluation,during the period in which which it runs unattended according to Customer's schedule.Halogen will the individual is part of an open appraisal process.A single individual(for assist Customer with related installation and configuration requirements example,an employee or contractor)will only consume a single Review end will discuss data layout requirements with Customer. Customer is License during a calendar year period regardless of the number of responsible for ensuring source data is available to the HRIS utility in the appraisal processes that are opened against that single individual. appropriate format. As part of the configuration, Customer will also Generally speaking, activity related to an individual listed in the determine how often, and at what time, the transfer of information will Software's User Center who is not the subject of an evaluation or occur. appraisal during a calendar year period will not consume a Review License; provided however, that notwithstanding the foregoing, use of Halogen eAppraisalT"' to perform the following activities does not fall within the foregoing exemption (i.e. Customers performance of such Features and Functionality of Halogen Software Products activities will consume a Review License per employee): goals The foregoing description of the Software and Software modules is management, journaling, talent profiling andlor development planning provided for information purposes only. Customer acknowledges outside any process. For purposes of clarity,a Review License used by that the description of the Software may bo subject to change,and Customer to appraise an employee who subsequently leaves their that the actual features and functionality of the Software may vary employ cannot be re-used to appraise another employee within the same from the descriptions hereln. calendar year. 'Respondents" means the employees or contractors of Customer who are authorized by Customer to access the Software for purposes of conducting a Review. City of Kent-SLSA-01-2014-038-aa.jpg Created on 710 512 0 1 2 Page 10 of 20 Confidential APPENDIX B MAINTENANCE&SUPPORT SERVICES C DEFINITIONS Severity Level Response Times: "Severity Level" means the level of severity assigned to an Error in the Halogen Software by Halogen and Customer using the following criteria: Severity Response Time '.. Level Severity Description Level 1 Acknowledge within 4(four)hours;response within one 1)day, 1 An Error that has a critical Impact on the 2 Acknowledge within 4(four)hours;response '.. development,deployment,or operational use of the within two 2 days. Software,resulting in the inability to continue to deploy or use the Software as required or intended. 3 Acknowledge within 1 (one)day;response A Severity 1 Error does not have a reasonable within seven r days. workaround,cannot reasonably be corrected by 4 Acknowledge within 2(two)days;response at adding to or changing the Documentation. the discretion of Halogen. 2 An Error that causes a severe restriction on the 3. SUPPORTED RELEASES development,deployment,or operational use of the Software,resulting in the restricted ability to continue If Customers deployment is on-demand, M&S Services are only provided for to deploy or use the Software. A Severity 2 Error the Update of the Software installed by Halogen for Customer. does not have a reasonable workaround,cannot reasonably be corrected by adding to or changing the If Customer's deployment is on-premise, M&S Services are only provided for Documentation. the two most recent Updates made available by Halogen to Customer. For An Error that causes limitations which are not critical clarity, in addition to the foregoing, M&S Services shall also be provided for 3 any and all fixes, patches and other minor improvements denoted by an or severe to the development,deployment,or increment to the Software's number two places to the right of the decimal paint operational use of the Software. A Severity 3 Error to which the two most recent Updates relate that are generally commercially has a reasonable workaround. distributed by Halogen as part of the M&S Services and for which Halogen 4 An Error thatcauses a slight inconvenience to the does not impose a separate charge or license separately(i.e.if 11.2 and 11.3 development,deployment,or operational use of the are the two most recent Updates made available,M&S Services shall also be Software. A Severity 4 Error has a reasonable provided for 11.2.1,11.2.2.11.2.3 and 11.3.1). workaround. Halogen has no obligation to provide M&5 Services to Customer in relation to 2. MAINTENANCE&SUPPORTSERVICES Updates other than as described above. MAINTENANCE 4, CUSTOMER RESPONSIBILITIES Halogen will provide to Customer,at no additional charge,any Updates to the The M&S Services are only provided to Customer. Unless otherwise agreed Software that Halogen makes available to its clients generally. Unless by the parties, Customer is solely responsible for first level support of its Customer is on-premise, Halogen is responsible for the Installation of all Affiliates and employees. Updates. Customer acknowledges and agrees that certain Updates may be Customer will make commercially reasonable efforts to cooperate with provided without notification, including, without limitation, high priority and Halogen in all problem resolutions. This includes but is not limited to providing necessary fixes and features,security patches and performance patches. timely access to all required experts to resolve issues within Customers environment. SUPPORT Standard second level support is included in Halogen's M&S Services offering. If Customers deployment is on-premise, Customer will protect its data from Halogen will also provide to Customer telephone or email assistance by a loss by implementing appropriate back-up procedures. Customer Is solely qualified representative on a 7 x 24 basis to attempt to correct or bypass Errors responsible far data restoration from back-ups. that have been brought to the attention of Halogen by Customer.Halogen may S. EXCLUSIONS provide such telephone assistance through a designee of its choice to up to three(3)designated contacts of Customer who are trained and knowledgeable If Customers deployment is on-premise, Halogen shall have no obligation to in the use of the Software. Halogen provides emergency Support only,on the provide M&S Services If an Error is caused by: (a) relocation, movement, following holidays:New Years Day;Labor Day;Christmas Day. improper operation, neglect or misuse of the Software, (b) Customer's failure to maintain proper site or environmental conditions,or(c)failure or interruption Halogen will make commercially reasonable efforts to solve reported Errors in of any electrical power,telephone or communication line or like cause, accordance with the Severity Level classifications and the response times listed below, through system changes or suggested workarounds. If the If Customers deployment is either on-premise or on-demand, Halogen shall Halogen Services are unavailable to end users, Customer will use have no obligation to provide M&S Services if an Error is caused by: (a) any commercially reasonable efforts to cooperate with Halogen In resolving any fault of Customer's agents or employees, (b) any attempts at repairs, problems. maintenance, or modifications to the Software performed by other than authorized service personnel of Halogen,(c)unauthorized acts of third parties, Halogen shall provide a tiered support process to Customer, providing a (d) service for the Software for which all required Updates have not been controlled escalation environment which delivers multiple levels of support as implemented by Customer in accordance with Section 3 above, (a)problems deemed appropriate for Customers' individual issues. Response time vanes caused by third party software included with or embedded in the Software depending on the severity of the Error. Each Error is assigned a Halogen (unless Customer Is using aversion of the Software for which support for such support ticket which is either fulfilled bythe Support Technician,orescalated to third party software is available to Halogen or Halogen has agreed to the the Support Manager as required. inclusion of such third party software), (1) any other cause external to the If the support ticket requires further escalation,the assistance of other Halogen Software except ordinary use, (g) configuration of or failure of third party technicians is enlisted by the Support Manager. hardware or software products, (h) improper sizing of hardware or software platforms for the volume of data and users, or (i) any other service not When reporting a suspected Error, Customer will assign the appropriate expressly set out in this Appendix B or which is expressly excluded in this Severity Level category,which,in Customers reasonable judgment,accurately Appendix B. describes the Impact on Customer's operating environment. Halogen reserves the right to reclassify the Error if it determines,in Its reasonable judgment,that The M&S Services do not include services or deliverables provided under a such reclassification is appropriate. Where the parties disagree on the Services Agreement or other services outside the scope of this Appendix 6 classification, Halogen will review the Error with Customer to attempt to agree such as support for unsupported releases of the Software. Maintenance and on a mutually acceptable classification. Services of such items may be obtained by Customer under a Professional Services engagement 6. HARDWARE COMPONENT FAILURE Halogen is not responsible for Customers hardware nor any components that enable Customer to access Halogen's on-demand data center. City of Kent-S LSA-01-2014-038-aa.jpg Created on 710512012 Page 11 of 20 Confidential 7. TERM AND TERMINATION OF MAINTENANCE AND SUPPORT deliver the M&S Services described herein, such party shall so advise the SERVICES other party and representatives of each party's senior management shall attempt to resolve such conduct issues, failing which, the party's Upon payment of the applicable Fees, Halogen will provide M&S SeMces to representative being complained of shall be replaced. Customer during the Term. In the event of abusive or unprofessional conduct by one party which the other party determines materially affects its ability to M&S Services are mandatory for the entire duration of the Term. City of Kent-SLSA-01-2014-038-aa.jpg Created on 7/05/2012 Page 12 of 20 Confidential APPENDIX C ON-DEMAND HOSTING SERVICES 1. HOSTING OF SOFTWARE 4. MAINTENANCE AND UPDATES If applicable, Halogen will provide on-demand Hosting Services for the Software on its server for the bereft of Customer for the Term of the Halogen technicians and automated monitoring systems contimially assess the Agreement, unless such Hosting Services are terminated in accordance with health of the Hosting Services. Halogen's Hosting Services are designed for Section 6 of this Appendix C.Halogen shall provide the Software to Customer full availability; however, Halogen reserves the ability to schedule downtime in a secure environment, including protecting the infrastructure from the during the following maintenance windows: Saturday between 01:00 pm and external environment via firewall systems and protecting data transmission 07:00p.m ET; and/or each evening between 00:00am and 2:00am ET. over secure network connections using SSL technology. Rootfadministrator Halogen will make commercially reasonable efforts to notify Customer of access will be controlled and limited to those that require access to support the scheduled maintenance(other than maintenance scheduled during the above platform.The Software will be operated in an electronically restricted facility on maintenance windows)at least twenty-four(24) hours in advance. Halogen is a raised floor with redundant HVAO, UPS and diesel generator power back-up, solely responsible for updating the Software for Customers who have and 24x7x365 surveillance of all hosted infrastructure and environmental purchased Hosting Services. subsystems. All elements of the selected platform are clustered for redundancy. As a standard service, Halogen currently conducts daily 5. OWNERSHIP,CONFIDENTIALITY AND USE OF CUSTOMER DATA encrypted incremental back-ups,and weekly and monthly encrypted full back- ups. All back-ups are stored at an off-site location. Weekly back-ups are Customer shall retain all right, title and interest in and to, and have the rotated every 4 weeks; monthly back-ups are stored for 1 year. Charges may exclusive use of, the results of Customer's data and Halogen shall have no apply should immediate restore of off-site back-ups be required through no right,title or interest therein,except as expressly provided herein. Customer fault of Halogen. Unless otherwise agreed by the parties,the Hosting Services may access the electronic records and reports containing such data that are shall be provided in respect of one(1)hosted site only, generated by the licensed Software. Subject to Section 6(b) of Schedule A, during the Term, in no event shall Halogen deny Customer access to Customers data for purposes of backup or retrieval. Use of such data and 2. CUSTOMER RESPONSIBILITIES other information by Customer is at Customer's own risk. Customer's responsibilities include:O complying with all terms and conditions Halogen may use Customer's data for(a)the purpose of generally improving '.. imposed by Halogen in association with Customers enjoyment of the Hosting the look and feel of the Software, (b) compiling statistical and performance Services(as provided to Customer by Halogen from time to time);(i)enabling information related to its provision of the Software and/or Services, and (c) its own reliable high speed internet connectivity to and from the hosted server developing and distributing benchmarks and similar reports and databases (n respect of all locations that need access to the hosted Software); (lit) its therefrom. Halogen may make this information publicly available so long as own customer premises equipment ("CPE"), including but not limited to Halogen,with respect to(b)and (c),above, (1)first removes all references to administrator and end user workstations; (iv) all other customer relations, Customer and any personal intonation included in the data;(it)presents such fulfillment and obligations; (v) if applicable,all design and development of the data in the form of aggregate benchmarks; and (III)generates and publishes Reviews; and (vi) all configuration, use and operation of the Software benchmarks only when such benchmarks include data from at least seven(7) application to suit Customers environment (collectively, 'Designated other organizations. For back-up or testing purposes, Halogen may make Customer Obligations'). Customer acknowledges and agrees that: (A) the copies of Customers data and any electronic records and reports containing '. Designated Customer Obligations may change from time to time in conjunction such data and maintain such copies for its records during the Term. Halogen with Updates to the Software;and(B)a failure of Customer to comply with this may, after the Term, maintain back-up copies of Confidential Information provision may,to the extent applicable,negate any support obligations on the received from Customer in a secure site, provided such back-up copies are part of Halogen. Customer shall be responsible for all users who access destroyed in accordance with Halogen's then applicable timeline and policies Halogen's servers and/or the Software. Customer will provide a primary for destruction of all of Halogen's back-up data. contact who can be reached by Halogen in the event of scheduled Customer data and any electronic records and reports containing such data maintenance or a service loss, and will provide Halogen with updates to the that are stored on Halogen's servers are Confidential Information as defined in primary contact's contact information in writing or by email. Section 9 of Schedule A to this Agreement and may, depending on their Customer shall not:(I)copy or attempt to copy the Software;fin)manipulate or nature,include Personal Information as defined in Section 10 of Schedule A to alter any data or other information on Halogen's servers other than Customers this Agreement.Halogen confirms that Hs obligations set out in Sections 9 and data; or (it) utilize any automated system to access or to test the Hosting 10 of Schedule A to this Agreement apply to such data,records and reports. Services or the Software, vdithout the prior express written permission of Halogen.Halogen reserves the right to immediately suspend Hosting Services 6. TERMINATION OF HOSTING SERVICES for any Customer who breaches the provisions of this Section. Halogen may terminate the Hosting Services:()immediately,if Customer fails to pay the applicable Hosting Services Fees as required by this Agreement;or 3.. SECURITY OF HOSTING SERVICES (11) upon 180 days notice in the event Halogen generally ceases to provide Customer understands and agrees that Halogen will take commercially Hosting Services for the Software licensed by Customer, in which event reasonable precautions to ensure the Hosting Services are secure. However, Halogen shall refund the balance of any prepaid but unused Hosting Services Customer acknowledges that the hosting activities will require transmission of Fee. confidential information over the internet, and that the internet consists of Following the initial subscription term (as identified in Section 1 on Page 1 of multiple participating networks that are not subject to the control of Halogen. this Agreement), if, in accordance with Section 7 of Schedule A, Customer Customer therefore understands and agrees that Halogen cannot and does not renews the Agreement for subsequent successive one year terms, Customer guarantee the privacy, security or authenticity of any information transmitted shall either:(i)elect to not renew the Hosting Services at the end of any such over the Internet, due to the nature of the Internet. Halogen has made initial subscription term by providing Halogen with at least thirty(30)days prior provisions to increase the security of all data transfers by ensuring all data written notice of its intention to terminate;or(i)renew the Hosting Services in transfers are done using a minimum 128-bit SSL encryption.As the Halogen accordance with such Section. hosting environment evolves with new technologies, Halogen will use Upon written request from Customer received within ten It 0)Business Days of reasonable commercial efforts to maintain an equivalent or better level of the effective termination date of the Hosting Services, Halogen will: (i) ' security and confidentiality of Customers data. electronically deliver to Customer a copy of the Customer's most recent full As part of our ongoing commitment to security, Halogen regularly engages data back-up; and (it), if requested, provide Customer with a quotation and third party experts to perform independent security audits. These audits Services Agreement for Customer's consideration with respect to conversion of ensure all systems remain efficient in protecting valuable client Information. the data from Halogen's then-current Oracle format to a Halogen-supported Halogen will provide assurance reports upon Customer request at no charge, version of SQL (currently SQL2005 and SQL 2008). If further data once per calendar year; additional requests for assurance reports during a manipulation In respect of such data is required by Customer,Customer shall calendar year will be charged at the rate of US$500.00 per request.To ensure request same and Halogen will provide a Services Agreement for Customers ongoing security of all customer data,all sensitive data will be removed prior to consideration. No data manipulation services will be undertaken by Halogen delivery to Customer.Halogen will notify Customer of any known breach of its until Customer has approved and paid for the associated costs in accordance security related to areas, locations, or computer systems which contain any with the applicable Services Agreement. Confidential Information of Customer in a timely manner following such breach and shall cooperate with Customer to assist in regaining possession of the Confidential Information and prevent its further unauthorized use,and take any necessary remedial actions. City of Kent-SLSA-01-2014-038-aa.jpg Created on 7/05/2012 Page 13 of 20 Confidential APPENDIX ID PROFESSIONAL SERVICES (INSTALLATION,CONSULTING,TRAINING,CONVERSION AND DATABASE SERVICES) Customer acknowledges and agrees that its use of the Software, and . one(1)session(2 hours in total)with Specifically its entitlement to receive M&S Services,requires payment of both a a Halogen Implementation Consultant One-Time Professional Services Fee and an Annual Professional Services Fee. The specific Professional Services included in the Implementation • configure up to two(2)Halogen e360 Services Package selected by Customer are as follows: MultiraterT'"questionnaires to be used in the configured Halogen eAppraisalT"'template(s)noted above 1. CERTAIN TO SUCCEED SERVICES: INITIAL LAUNCH AND CONTINUOUS ADVANCEMENT—LEVEL I If Halogen eCompensationTM Initial Launch is purchased,Level I component includes: Halogen offers the following Certain to Succeed Services: Initial Launch and up to four(4)sessions S hours in Continuous Advancement for Halogen eAppraisalT": total)with a Halogen Implementation (a) Initial Launch — Level I — One-Time Professional Services for Consultant Installation,consulting and training: • configure one(1)Halogen eCompensationTM process 1. A Halogen Implementation Consultant will be assigned to work with Customer remotely to ensure proper • If Halogen eSuccessionT^Initial Launch is implementation of the Halogen produm(s) licensed and to purchased,Level I component includes: assist Customer in the launch of their EPM project,for a total o Phase 1:Assessment of Workforce Potential: of 6 sessions, up to sixteen (16) hours Inclusive of one(1)session(2 hours in total)with a configuration and project planning). Deliverables include: Halogen Implementation Consultant • Use of the formal Halogen EPM implementation integrate assessment questions in one(1) methodology including the Halogen Implementation Halogen eAppraisalT"process and up to Workbook two(2)form templates noted above to • Halogen EPM project tracking gather Halogen eSuccessignTM talent profile Weekly status updates and process reviews data • One(1)soft copy of custom Halogen LPM configure the Halogen eSuccessionTM High Configuration Summary Report Potential Report • Performance of the following configuration tasks by configure the Halogen eSuccessionT"I Halogen's Professional Services team: Retention Risk Report • If Halogen eAppraisalT^^Initial Launch is o Phase 2:Implementation of Talent Pools and purchased,Level I component includes: Talent Assessment Initial Launch is licensed, Level I component includes: • up to eight(8)sessions It hours in up to six(6)sessions(12 hours in total)with total)with a Halogen Implementation Consultant a Halogen Implementation Consultant • configure one(1)Halogen • configure one(1)Halogen eSuccessionTM c n configu_aI process with up to two Talent Assessment process,including the (2)form templates to be used in the creation of up to two(2)Talent Pools configured process,using standard configure the Talent Pool Report EPM functionality and competencies If Halogen eLearning ManagerTM Initial Launch • If Halogen eAppraisalT""Professional Services is purchased,Level I component includes: (includes Halogen e360 MultiraterT^)Initial up to five(5)sessions(10 hours in Launch is purchased,component includes: total)with a Halogen Implementation • up to twelve(12)sessions(26 hours Consultant in total)with a Halogen integrate Halogen eLearning Implementation Consultant ManagerTM content into one(1)pre- configure up to two(2)Halogen existing Halogen eAppraisalT^ eAppraisal processes with up to three process and up to two(2)pre-existing (3)form templates to be used In the Halogen eAppraisalT"form templates configured processes,using standard configure up to ten(10)learning EPM functionality and competencies objects • configure up to three(3)Halogen configure one(1)approval policy e360 MultiraterT"questionnaires to be used in the configured process(es) If Halogen Job Description BuilderTM Initial • If Halogen eA raisalT'^Healthcare Initial Launch is purchased,Level I component 9 pP includes: Launch is purchased,component includes: • u to twelve 26 hours up to seven(7)sessions(14 hours in P 12( )sessions( fatal)with a Halogen Implementation in total)with a Halogen Consultant Implementation Consultant • consultingregarding process,form configure one one job description 9 g t process and one(1)jab description design and reporting to prepare for template Joint Commission,OSHA,ACHA, CCHSA,Magnet and other If Halogen eRecruitmentT'^Initial Launch Is accreditation reviews for up to two(2) purchased,Level I component includes: Halogen eAppraisalT'processes with up to six(6)sessions(12 hours in up to three(3)form templates to be total)with a Halogen Implementation used in the configured processes, Consultant using standard EPM functionality and competencies configure up to one(1)job requisition template • If Halogen e360 MultiraterT""Initial Launch is purchased,Level I component includes: configure up to one(1)application City of Kent-SLSA-01-2014-038-as jpg Created on 7106/2012 Page 14 of 20 Confidential form total each year with a Halogen Implementation Consultant to • integration with client corporate perform the following: website Maul Review and Analysis — up to two (2) • If Halogen®1:1 ExchangeTM Initial Launch is hours of consulting v✓i'h a Halogen purchased,all Levels include: Implementation Consultant to evaluate, review • up to one(1)session(2 hours in total) reports and create an action plan from the with a Halogen Implementation process(es) created as part of Customer's initial implementation Consultant • review/configure feedback types and • Process Optimization - up to two (2) hours of conversation starters consulting with a Halogen Implementation • If Halogen®Myers-Briggs®Initial Launch is Consultant to implement relevant items from purchased,Level I component includes: action plan outlined in the Metrics Review and Analysis service and assist Customer In the re- up to three(3)sessions(6 hours in launch of the subsequent process created as part total)with a MBTI canned Halogen of Customer's initial implementation consultant ® Unlimited access to Halogen eAppraisalT" • configure up to one(1)MBTI administrator training content for up to two (2) assessment process Halogen administrators F. On-demand: Halogen performs Software installation by creating • Unlimited access to Halogen eAppraisalTM- application site for Customer in Halogen's on-demand hosting Essential Training program for Managers and environment and providing access to Customer.OR Employees for up to five hundred (500) On-premise: Halogen assists Customer in Software Installation employees through web-based Technical IT installation and Technical Training If Halogen oAppr,ISaITM Professional Services (included session (including user import if Customer is ready). In order to enable Halogen to perform configuration activities including those Halogen e360 compMultionent includes Continuous Advancement is set out above, Customer must allow authorized Halogen purchased,component includes up to eight(8) hours in total representatives to remotely access Customer's on-premise each year with a Halogen Implementation Consultant to perform the following: environment. Ili. In respect of certain of its Software modules, Halogen provides Metrics Review and Analysis — up to four (4) standard Software training to a maximum of five(5)attendees per hours of consulting with a Halogen class including trainees and observers, on-site at Customer's Implementation Consultant to evaluate, review reports and create an action plan from the premises, at Halogen's Training Center in Ottawa, Canada, or delivered online. process(es)created as part of Customer's initial implementation • If Halogen eAppraisalT^' is licensed, 1.5 days of Administrator training Process Optimization - up to four (4) hours of consulting with a Halogen Implementation • If Halogen eAppraiS@ITM Professional Services Consultant to implement relevant items from (includes Halogen e360 MultiraterT.) is licensed, 2.0 action plan bull In the Metrics Review and days of Administratortmining Analysis service and assist Customer in the re- launch of the subsequent process created as part • If Halogen eAppraisalT"' Healthcare is licensed, 1.5 of Customer's initial implementation days ofAdministralor training • Unlimited access to Halogen eAppraisalT"" and • If Halogen e360 MultlraterTs is licensed, 0.5 day of Halogen e360 MultiraterTs administrator training Administrator training content for up to three(3)Halogen administrators • If Halogen eCompensatlorl " is licensed, 0.5 day of Unlimited access to Halogen eAppraisall and Administrator training Halogen e360 Multirater"' Essential Training program for Managers and Employees for up to • If Halogen eSuccessionn" is licensed, 0.5 day of five hundred(500)employees Administrator training • If Halogen eAppraisalT" Healthcare Continuous • If Halogen eLearring ManagerT`is licensed,0.5 day of Advancement Is purchased,component includes up to eight Administrator training (8) hours in total each year with a Halogen Implementation • If Halogen Job Description Builder Tv is licensed, 0.5 Consultant to perform the following: day of Administrator training Metrics Review and Analysis — up to four (4) hours of consulting with a Halogen • If Halogen oRecruitmentr- is licensed, 0.5 day of Implementation Consultant to evaluate, review Administrator training reports and create an action plan from the If Customer allows more than five(6)attendees per class as limited process(es) created as part of Customer's initial above, Halogen reserves the right to invoice Customer at a rate of implementation US$375.00 per additional attendee. process Optimization - up to four (4) hours of Halogen provides applicable Administrator Reference Manual(s), consulting with a Halogen Implementation End User Guide(s), and tutorials in electronic format for the Consultant to implement relevant Items from Software product(s)licensed and implemented. action plan outlined in the Metrics Review and Analysis service and assist Customer in the re- (b) Continuous Advancement—Level I-Annual Professional Services launch of the subsequent process created as part (consulting and training) for administrators, managers and of Customers initial implementation D employees. A total of 4 hours will be provided during each year of the Term. Unlimited access to Halogen eAppraisalTs administrator training content for up to three (3) Halogen provides training and phased consulting services during Halogen administrators each year of the Term. These services evaluate, analyze and report on processes, assist the Customer to launch the next Unlimited access to Halogen eAppraisalT'^ process(es)and include annual access to 24x7 on demand training Essential Training program for Managers and content for administrators, managers and employees (as defined Employees for up to five hundred (500) below) employees • If Halogen eAppralsal- Continuous Advancement is If Halogen e360 MultiratW-Continuous Advancement is purchased, Level I component includes up to four(4)hours in purchased, Level I component includes one (1) hour In total each year with a Halogen Implementation Consultant to perform the following: City of Kent-SLSA-01-2014-038-aa.jpg Created on 7105f2012 Page 15 of 20 Confidential • Process Review and Optimization-one(1) hour If Halogen el-eaming Manager*"' Continuous of consulting to evaluate process efficiency and Advancement is purchased, Level I component includes up assist Customer in the re-launch of the to two (2) hours in total each year with a Halogen subsequent process(es) created as part of Implementation Consultant to perform the following: Customer's initial implementation Metrics Review and Analysis - one (1) hour of • Unlimited access to Halogen e360 Multhati consulting to evaluate, review reports and create administrator training content for up to two (2) an action plan Halogen administrators Process Optimization-one(1)hour of consulting • Unlimited access to Halogen e360 Multirater— to implement relevant items from action plan Essential Training program for Managers and outlined in the Metrics Review and Analysis Employees for up to five hundred (500) service and assist Customer in updating/adding employees learning objects and approval policies as part of Customer's initial implementation • If Halogen eCompensattonT-Continuous Advancement is purchased,Level 1 component includes up to two(2)hours in Unlimited access to Halogen eLearning total each year with a Halogen Implementation Consultant to ManagerT.administrator training content for up to perform the following: two(2)Halogen administrators • Metrics Review and Analysis— one (1) hour of • Unlimited access to Halogen el-earring consulting to evaluate, review reports and create ManagerT" Essential Training program for an action plan from the process(es) created as Managers and Employees for up to five hundred part of Customer's initial implementation (500)employees • Process Optimization-one(1)hour of consulting a If Halogen Job Description BuilderT Continuous to implement relevant items from action plan Advancement is purchased, Level I component includes up outlined in the Metrics Review and Analysis to four (4) hours in total each year with a Halogen service and assist Customer in the re-launch of Implementation Consultant to perform the following: the subsequent process created as part of Customers initial Implementation • Competency Library Review and Action Planning —up to two (2)hours of consulting to conduct a • Unlimited access to Halogen eCompensatlonT"' focused analysis of the results and create an administrator training content for up to two (2) action plan Halogen administrators Process Optimization - up to two (2) hours of • Unlimited access to Halogen eCorrpensationT"+ consulting to implement relevant items from Essential Training program for Managers for up to action plan outlined in the Competency Library one hundred(100)managers Review and Action Planning service and assist Customer in the re-launch of the subsequent • If Halogen eSuccessionT'" Continuous Advancement is process(es) created as part of Customer's initial purchased,Level I component includes up to XX(X)hours In implementation total each year with a Halogen Implementation Consultant to perform the following: Unlimited access to Halogen Job Description BuilderT administrator training content for up to • Halogen eSuccessionT"'Phase 1:Assessment of two(2)Halogen administrators Workforce Potential includes one(1)hour in total each year with a Halogen Implementation • Unlimited access to Halogen Job Description Consultant to perform the following: DuilderTM- Essential Training program for Managers for up to one hundred(100)managers Metrics Review and Process Optimization — one (1) hour of If Halogen eRecmitmentTm Continuous Advancement is consulting to evaluate,review reports, purchased,Level I component includes up to four(4)hours in create an action plan and assist total each year with a Halogen Implementation Consultant to Customer in the re-launch of the perform the following: subsequent process(es) created as part of Customers initial Metrics Review and Analysis — up to two (2) implementation hours of consulting to evaluate metrics, review stages and activities and create an action plan as • Unlimited access to Halogen per deliverables identified in the initial eSuccessionT" administrator training implementation content for up to two (2) Halogen administrators Process Optimization — up to two (2) hours of consulting to implement relevant items from • Unlimited access to Halogen action plan outlined in the Metrics Review and eSuccessionT" Essential Training Analysis service program for Managers for up to one hundred(100)managers Unlimited access to Halogen eRecruitni- administrator training content for up to two (2) • Halogen eSuccessionT'^ Phase 2: Talent Pools Halogen administrators and Talent Assessments includes up to three(3) hours in total each year with a Halogen Unlimited access to Halogen eRecruitmemn. Implementation Consultant to perform the Essential Training program for Managers for up to following: one hundred(100)managers • Mehlcs Review and Analysis — one • If Halogen®1:1 Exchanger" Continuous Advancement is (1) hour of consulting to evaluate, purchased,all Levels include up to one(1)hour in total each review reports and create an action year with a Halogen Implementation Consultant to perform plan the following: • Process Optimization - up to two (2) Metrics Review and Analysis — consulting to hours of consulting to implement evaluate metres,review stages and activities and relevant items from action plan create an action plan as per deliverables outlined in the Metrics Review and identified in the Initial implementation Analysis service and assist Customer in the re-launch of the subsequent Process Optimization — consulting to implement processes) created as part of relevant items from action plan outlined in the Customer's initial implementation Metrics Review and Analysis service City of Kent-SLSA-01-2014-038-sa.jpg Created on 7105/2012 Page 16 of 20 Confidential • Unlimited access to Halogen(D 1:1 Exchange'"^ Isles), Asia, Africa, Australia and Antarctica. For clarify, travel to Hawaii, on-demand tutorials for up to two (2) Halogen Alaska,Puerto Rico and/or Mexico from North America will require payment of administrators the foregoing fee. If Halogen®Myers-Briggs© Continuous Advancement is In connection with Professional Services performed at Customers site, if any, purchased,Level I component includes up to two(2)hours in Customer is generally responsible for the reimbursement of travel and living total each year with a MBTI certified Halogen Consultant to expenses incurred by Halogen due to Flight cancellations or missed travel perform the following: connections which are not caused by the actions of Halogen or its - employees/agents. • Metrics Review and Analysis—up to one(1)hour of consulting to evaluate metrics, review type Customer shall have the following alternatives with respect to teleconferencing: distribution and create an action plan (i)if Customer is located within Global Crossing's North American IFN toll-free calling area Customer will have the option to use"GOTONIeeting"(Web)and/or Process Optimization — up to one (1) hour of an IFN toll-free number; (ii) if Customer is International and located within consulting to implement relevant items from Global Crossing's current UIFN toll-free calling area Customer will have the action plan outlined in the Metrics Review and option to use"GoTOMeeting"(Web)and/or a UIFN toll-free number;and(iii) if Analysis service Customer is International and located outside of Global Crossing's current UIFN toll-free calling area Customer will be asked to either call Halogen Unlimited access to Halogen®Myers-Briggs®on- directly or provide their toll-free number for Halogen's use. demand tutorials for up to two (2) Halogen administrators 6. SCHEDULING&POSTPONEMENTICANCELLATION 2. TRAINING MATERIALS&COPYRIGHT The stated project timelines referenced above are based upon delivery of the Professional Services in an uninterrupted manner over consecutive weeks per Training materials are available only for the current standard release of the Software module. Customer acknowledges and agrees that requests by Software product(s) licensed by Customer, and are only available where Customer to suspend the delivery of certain Professional Services may incur Customer has paid the applicable Annual Professional Services Fee pursuant additional costs. to Section 6 of Schedule A to the Agreement. Customer acknowledges that any reference materials provided by Halogen to Customer in electronic or hard Specifically,training and consulting services must be booked and taken within copy format in connection with training andter consulting services are the the first twelve (12) months from the Effective Date as defined herein. copyright of Halogen and are to be used by Customer for its internal use only. Scheduling for training/consulting should be done as early as possible to assist Unless otherwise directed by Halogen, these materials are not to be in travel arrangements. If Customer postpones, cancels or fails to attend a reproduced, copied or distributed by Customer In any form other than as scheduled training or consulting engagement without a minimum of ten (10) required to train Customer's employees.Videotaping or other electronic and/or Business Days prior written notice to Halogen,Customer shall pay to Halogen audiovisual recording of a training or consulting session conducted by a a lost utilization fee equal to the lesser of(i)$1,650 (local currency); and, (ii) representative of Halogen is strictly prohibited. the training/consulting engagement contract value. In addition,Customer shall pay to Halogen all unrecoverable fees and expenses associated with such 3. OTHER PROFESSIONAL SERVICES cancellation, including without limitation, non-refundable travel costs. Such fees and expenses shall be invoiced by Halogen in a timely manner following Additional Professional Services may be procured from Halogen upon request Customers cancellation. by Customer and execution of a Services Agreement in accordance with the Agreement and this Appendix D. All web-based training session(s)and related services will be delivered via the use of a combination of web collaboration software(for screen interaction)and Customer may also request additional consulting services from their Halogen telephone (for voice communication). Halogen expressly disclaims all implementation consultant if required. Halogen's current rates for such warranties and representations regarding the quality of such web collaboration consulting services are as follows: US$16501month, which would entitle software and voice communication services, Including without limitation that Customer to work with a Halogen implementation consultant(approximately 2 such services will be uninterrupted, timely, secure or error free. Customer hours per week to a maximum of 8 hours total per month)doing various tasks specifically acknowledges and agrees that all training session(s)will take place to assist Customer. This includes but is not limited to meetings, forms or at the mutually agreed upon time(s). process reviews or other tasks as discussed with Customer during regular weekly meetings.Alternatively, Customer may contract for hourly assistance. 7. ASSUMPTIONS,CUSTOMER RESPONSIBILITIES AND Halogen's current rates are US$250/hour(web-based or telephone consulting); ACKNOWLEDGMENTS or US$1650/day (on-site consulting) plus travel & living expenses. Halogen would be pleased to provide any or all of the above services by separate quote Customer will provide a single point of contact with authority to work withpursuant to a Services Agreement. Customer Halogen. • r is responsible For providing the required text for the 4. CHANGE REQUESTS Email Notification Center. Either party may,from time to time,wish to make changes to the Professional Customer is responsible for performing a final quality check. Services or deliverables as set out in a Services Agreement ('Change Customer is responsible for utilizing Halogen's hot-line support as Requests`). Halogen and Customer will negotiate in good faith any changes required for software support related Issues. Customer is to costs, scope or delivery schedules arising from any requested Change responsible for creation and maintenance of all additional content. Request Halogen will provide Customer with a quote for the mutually acceptable changes in the scope or timing of the Professional Services, and • Customer is responsible for all user center data, global settings Customer shall indicate its acceptance of the quote in writing. No oral within the options functionality, and extracting data for report agreement between persons involved in the project will be binding on either generation with external tools. Halogen or Customer.Unless and until a proposed Change Request has been Customer will be required to complete, execute and return to approved by the parties in writing, each party shall continue to perform its Halogen a Configuration Sign-off Form prior to Customers obligations under the Services Agreement as if the change had never been deployment of the Halogen EPM application,failing which,Halogen proposed. disclaims all liability for system configuration issues, if any, which 5. PROFESSIONAL SERVICES EXPENSES may be experienced by Customer. • Customer is responsible for the provision of the employee data in Halogen invoices expenses monthly, in arrears, as incurred. In connection the required import format and for validating the import of data in with Professional Services performed at Customer's site, if any, Customer is the Halogen EPM User Center. responsible for actual travel and living expenses incurred by the Halogen Annual Metrics Review and Action Planning, and Process trainer and/or consultant. These expenses will be invoiced by Halogen upon Optimization services will be performed on configuration of the completion of such on-site services,Including without limitation,expenses deliverables outlined in Section 1(a)of this Appendix D and cannot relating to air and land transportation, hotel accommodation, and meal per be transferred without following Halogen's standard Change diems and incidentals (maximum US$80.00/diem local currency). If Request process. transportation and/or hotel accommodation are arranged by Customer on behalf of Halogen,such arrangements will be subject to Halogen's written pre- Halogen reserves the right to add, delete or modify any training approval. All travel and living expenses billed by Halogen in accordance with content provided pursuant to Section 1 of this Appendix D. its Travel&Expense Guidelines are due upon receipt of invoice. Halogen will provide Professional Services to Customer in English If travel time is outside of the assigned Halogen training consultant's continent only. Customer is responsible for providing an English speaking of residence, Customer shall also pay to Halogen a flat fee of point of contact and for all translation requirements. US$1,500/Halogen representative per onsite visit. Halogen recognizes the Halogen will make all reasonable efforts to accommodate global following continents: North America,South America, Europe(ncluding British time zones. To that effect, Halogen will provide Customer with City of Kent-SLSA-01-2014-038-aa.jpg Created on 7106/2012 Page 17 of 20 Confidential access to staff resources identified in Section 1 of this Appendix D • Implementation of core Halogen eAppraisalTM'functionality within standard working hours where the Halogen team member such as linking to corporate goals,development planning and resides. setting up talent profiles is included in this service package Notwithstanding anything contained in this Appendix D, Customer Customer is responsible for providing the development plan acknowledges that in the event Customer requires or is entitled to data in the required import format and for validating the final 0.5 day or less of training or on-site consulting, Halogen will development plan content. provide such training or consulting via the web, rather than via an Standard functionality will be used.Specifically,standard on-site session. In the event that Customer requests an on-site Halogen competencies will be used in the development planning session for 0.5 days or less of training or consulting, Customer shall be required to purchase an additional 0.5 day of additional and Halogen eLearning ManagerTM configuration.If required, services for a minimum total of 1.0 day of on-site services. Customer will receive sufficient guidance fa implement their specific competencies. e If Halogen eAppraisal'a is licensed: • If Job Description BuilderTM is licensed: Implementation of core Halogen eAppraisal T"'functionality Customer understands that the job descriptions available within such as linking to corporate goals,development planning and the Halogen Job Description Builder'"application may not appear setting up talent profiles is included in this service package as exact duplicates of the Customer's original MS Word or Excel Customer is responsible for providing the development plan forms,and that minor variations In form appearance may be data in the required import format and for validating the final required in order to better leverage the capabilities of the Halogen development plan content. Job Description Builder'"software. Customer is responsible for identifying the subjects of the a If Job Description Builder*"' is licensed without any other appraisal process(es)and for validating the Halogen EPM modules: Participant Center. Customer understands that thejob descriptions available within Customer is responsible for defining and approving the process the Halogen Job Description Builder"application may not appear steps(workflow)required to support the appraisal prooses(es)as as exact duplicates of the Customer's original MS Word or Excel well as for monitoring processes. forms,and that minorvariations in form appearance may be Standard functionality will be used.Specifically,standard required in order to better leverage the capabilities of the Halogen Halogen eAppraisalTM'competencies will be used in the form Job Description BeilderTM'software. design.If required,Customer will receive sufficient guidance to • Implementation of care Halogen eAppraisalT`"functionality implement their specific competencies. such as linking to corporate goals,development planning and Customer will provide all appraisal forms to be created to setting up talent profiles is included in this service package Halogen in MS Word or MS Excel format. • Creating and managing competency libraries is included in this Customer understands that the forms available within the service package. Halogen eAppralsalTv application may not appear as exact a If Halogen eRecruitm,Wt Is licensed: duplicates of the Customer's original MS Word or Excel forms,and Customer is responsible for all data entry required to enter pre- that minor variations in form appearance may be required in order existing job requisitions and candidate information.Customer can to better leverage the capabilities of the Halogen eAppraisal'"^ contract Halogen to perform these services pursuant to a separate software. Services Agreement. Form templates outlined in Section 1(a)of this Appendix D are Additionally,Customer acknowledges and agrees that: to be used within the same process configured by Halogen. For example,if the Customer is deploying an annual appraisal process, o. delays by Customer in providing information and decisions to up to two(2)form templates will be created to support the annual Halogen may negatively Impact the dates, prices and appraisal process (i.e. a manager and an employee form, or an scheduling commitments expressed in this Agreement. exempt and non exempt form). Form(s)to support processes not o the following deliverables are not included in this Agreement configured by Halogen can be purchased under a separate but Halogen would be pleased to provide a separate Services Agreement. For example, if Customer is deploying an quotation for such services: annual appraisal process with one(1)form template and chooses to also deploy a goal setting process then the goal setting form If Halogen eAppreisalT'•1 is licensed,data entry of template would not be included. corporate goals/departmental goals • If Halogen eSuccessionTA°is licensed: • If Halogen eAppraisalT"is licensed,custom comment helper Customer is responsible for supplying succession planning • If Halcgen eLearning ManagerTM'is licensed,import business rules and workfow,talent pools and related of historical course data competencies. • • Deployment of an multi-lingual environment If Halogen eCompensationT"is licensed: Customer is responsible for supplying compensation business Significant changes to the Halogen UI property Tie rules and workflow. 8. TERMINATION OF ANNUAL PROFESSIONAL SERVICES • If Halogen el-earning Manager'"is licensed: Following the initial subscription term (as identified in Section 1 on Page 1 of Customer is responsible for supplying all learning content in the this Agreement), if, in accordance with Section 7 of Schedule A, Customer required import format and for validating the import of data. renews the Agreement for successive one year terms,Customer shall either(1) • If Halogen eLearning ManagerTM is licensed without any other elect not to renew the Annual Professional Services at the end of such initial modules: subscription term,or any renewal term,by providing Halogen with at least thirty (30) days prior written notice of its intention to terminate; or (ii) renew the • Customer is responsible forsupplying all learning content in the Annual Professional Services in accordance with such Section, required import format and for validating the import of data. City of Kent-SLSA-01-2014-038-ea.jpg Created on W0512012 Page 18 of 20 Confidential LABOR RELATIONS, CLASSIFICATION &COMPENSATION DIVISION Teri Smith Manager y 400 West Gowe Kent, WA 98032 KENO° Fax: 253-856-6270 W>s'.y irvcTov OFFICE: 2S3-856-5298 February 4, 2014 TO: Mayor Suzette Cooke FROM: Teri Smith, Labor Relations Manager THRU: Lorraine Patterson, Human Resources Director SUBJECT: Halogen eAppraisal Contract for 2014-2016 SUMMARY: The city desires to provide a collaborative, relevant and easy to use tool for that encourages talent management best practices for meaningful employee appraisals. The attached contract with Halogen provides an intuitive and easy to use cloud-based evaluation system that will meet the city's current needs and grow with us in the future. The amount of this contract is budgeted in the 2014 Human Resources budget. Another benefit of this contract is that it is a 3-year term that locks in the current price through 2016. BUDGET IMPACT: $24,793.49. BACKGROUND: Through feedback from users of our current PAGE system, including participants in the city's supervisor and management training, our current evaluation is not meeting their needs. It is cumbersome, time consuming, and tedious to prepare and track. The new system will provide a secure, cloud-based format to record employee performance feedback year round with an interface to upload data to JDE. The system allows for inclusion of accomplishments, performance gaps, and critical incident reports captured by in-the-moment coaching tips, feedback and recognition from managers, peers, co-workers, or even external customers. This will assist supervisors to provide time-saving, meaningful, and less subjective appraisals that we can customize to meet the city's needs and competencies. In addition, Human Resources spoke to three other vendors and reviewed their products. Those vendors are NEOGOV, Taleo and Cornerstone OnDemand. While they had good products, Halogen's offering was more robust and offered the inclusion of the Lominger competencies. In addition, the City of Renton has just launched Halogen with their management group and spoke very highly of the product. 0 o, v Y {+y" MAYOR SUZETTE COOKE _••^- ^ '_ -sue.^ ,---.acxi F^_n=z;an^_m. ,r. .ax a:,a,.. n.--,,,, cE,m„v: City of Kent Human Resources Department Lorraine Patterson, Director '.. REQUEST FOR MAYOR' I IM TUR 1�µ EiRM T Please Fill in All Applicable Boxes _ Reviewed by Director Originator's Name: Lorraine Patterson Deot/Div. Human Resources Extension: 5276 _- - to Date Sent: January 31, 2014 Date Required: January 31, 2014 Return to Lorraine Patterson C_0NTRACT TERF"INA'XON DATE: 1/31/16 VENDOR: Haolgen eAppraisal _ ®ATE OF COU-NCXL APPROVAL: N/A ATTACH THE COUNCIL MOTION SHEET_ FOR THE MAYOR - if applicable Brief Explanation of Document: Halogen will provide an intuitive and easy to use cloud-based evaluation system that will meet the city's current needs and grow with us in the future to be used for meaningful employee appraisals. The contract is for a 3-year term that locks in the current price through 2016. All Contracts Must Be Routed Through The Law Department (This area to be completed by the Law Department) Received: ` ... t Approval of Law Dept.: Law Dept. Comments: g g '�,..�- q xk« tt �v Date Forwarded to Mayor: E `r( - Shaded Areas To Be Completed By Administration staff Received: ;. RECEIVED Recommendations and Comments: m}e; JAMI, 3 I ?(11 Disposition: CITY OF4CEfV`T 1), � CITY CLERK Date Returned: