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STAFFREPORT CITY CLERK
DUBLIN CITY COUNCIL File #^~~O ~-^3 0
DATE: July 20, 2010
TO: Honorable Mayor and City Councilmembers
FROM: Joni Pattillo, City Manager
SUBJE T: Agreement for Payment Processing Services for Parks and Community Services
Prepared By: Paul Rankin, Administrative Services Director, Paul McCreary, Assistant
Director of Parks and Community Services; Rhonda Franklin, Administrative Technician
EXECUTIVE SUMMARY:
Payment Card Industry (PCI) Compliance sets forth comprehensive requirements for enhancing
credit card account security for businesses that accept this form of payment. The Parks and
Community Services Department uses an integrated software package from Active Nefinrork for:
activity registration; facility booking; and credit card processing. Currently the City hosts the
payment processing hardware and transmits data to a third party bank for payment. In order to
meet compliance standards the City must modify the method of processing credit card
transactions. An agreement is proposed with Active Nefinrork, to consolidate the processing
through an agreement with Active Network to provide a hosted payment processing service.
FINANCIAL IMPACT:
The total estimated cost of the Agreement for Fiscal Year 2010-2011 is $46,320 and sufficient
funding is available in the FY 2010-2011 budget. The estimated cost includes transaction fees
based on projected revenue plus $2,650 of one-time set-up fees. The City will eliminate
approximately $2,400 of annual costs associated with annual software maintenance and
hardware replacement. This arrangement will also replace the current third party bank fees.
The actual costs will depend on the volume of transactions processed.
RECOMMENDATION:
Staff recommends that the City Council adopt the Resolution authorizing waiver of bidding
requirements and approving an agreement for recreation credit card payment processing with
Active Network.
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Submitted by:
Parks and Community
Services Director
Reviewed by:
Administrative Services
Director
Reviewed by:
Assistant City Manager
....
Page 1 of 3 ITEM NO. •~~
DESCRIPTION:
In 2003, the City of Dublin began accepting VISA and MasterCard payments for programs and
services. Credit card payments for the Parks and Community Services Department are
integrated with the program registration and facility scheduling software provided by Active
Network (formerly CLASS software). The transactions are recorded through a payment server
at the Civic Center and transmitted to a third party bank for settlement and transfer of the funds.
The CLASS software system is a database program for activity registration, facitity booking,
membership management and e-commerce (online registration). Integration of the credit card
transactions within the same database is essential to efficiently track the status of customer
accounts. All other City Departments use the new Tyler- Eden system for entering credit card
payments. These transactions are processed off-site by a third party vendor that is a business
partner with Tyler-Eden and the companies have integrated the recording of the transactions.
The Recreation Programs and Facility Rentals are the largest use of credit card services.
In July 2010 new requirements for Payment Card Industry (PCI) standards went into effect.
Processing credit card data onsite increases the requirements the City must meet in order to be
PCI compliant. The City's Tyler-Eden financial and permit systems meet these standards,
because the credit card data is processed and stored offsite by a vendor with a facility that is
certified as compliant. In order to bring the Active Network system into compliance Staff
recommends entering into a processing agreement with Active Nefinrork, which is the CLASS
software vendor, to provide hosted payment processing services.
TERMS OF AGREEMENT
The contract proposal for the Hosted Payment Server (HPS) includes the transaction fees that
Active Nefinrork will charge for authorizing credit card payments and collecting the payments
from the cardholder's financial institution. The initial term of the proposed agreement is three
years.
The new arrangement will expand credit cards accepted for Recreation services to include
Discover and American Express. The proposed agreement with Active Nefinrork is structured as
a charge to the City based on transactions. The fee is established at a single rate regardless of
the credit card type used and it includes the use of Active Network hosted data center and the
related banking charges. The fee is three percent (3%) per transaction, with a minimum of
$1.00 per transaction. The $1.00 minimum transaction cost is basically applicable only on
transactions less than $33.45 and the vast majority of transactions exceed this amount. For
refund transactions, the fee charged to the City is $.10 per refund regardless of the refund
amount.
The costs described are paid by the City and the customer would not see an individual fee. The
credit card processing costs have been part of the Parks and Community Services operating
expenses which are compared to total revenue generated by Department programs and facility
rentals.
The proposed Hosted Payment Server contract agreement requires that the aggregate
transaction fee totals a minimum of $30,000 per year. The minimum threshold will be pro-rated
for calendar year 2010 based on the number of months the system is in use. Based on an
analysis of historical transaction volumes, Staff does not anticipate any difficulties in meeting
the $30,000 minimum aggregate transaction fee requirement.
Page 2 of 3
For example, in Fiscal Year 2009-2010, the Parks and Community Services Department's credit
card transactions totaled approximately $1,415,345. If the hosted service with Active Network
had been in place at 3% total fees paid by the City would equal approximate~y $42,460.
Funding for transaction processing under the Active Network proposal is included in the
adopted 2010/2011 Budget. One time costs of $2,650 for implementation are also included.
REQUEST FOR WAIVER OF COMPETITIVE BID PROCESS
There are other hosted payment processing services available, however they cannot integrate
with the City's Active Network (CLASS Recreation System) software. Staff found that it would
not be cost effective to purchase new registration and facility booking software or make the
upgrades to bring the current payment server to PCI Compliance standards. Outsourcing this
activity in a manner that it can integrate seamlessly with the current recreation software is
recommended as the best option.
In most cases the City's Purchasing Ordinance requires that major purchases be subject to the
competitive bid process. However, the Dublin Municipal Code states that the City Councit can
waive the bid process when the City's requirements can only be met solely by a single patented
article or process. Because the hosted payment server developed by Active Nefinrork is the only
product that will fully integrate with the City's current software, Staff recommends that the
Council waive the competitive bid process as authorized in the Dublin Municipal Code.
Staff prepared a Resolution (Attachment 1) which will approve the purchase of these services
and authorize the City Manager to enter into an Agreement with Active Network. The estimated
value of this agreement in the first year is $46,320 and will be dependent on the actuat level of
credit card transactions.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Resolution Authorizing A Waiver of Bidding Requirements And Approving an Agreement For
Recreation Credit Card Payment Processing With Active Nefinrork
Page3of3
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RESOLUTION NO. xx - 10
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN
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AUTHORIZING A WAIVER OF BIDDING REQUIREMENTS AND APPROVING AN AGREEMENT
FOR RECREATION CREDIT CARD PAYMENT PROCESSING WITH ACTIVE NETWORK
WHEREAS, the City offers customers of City sponsored recreation programs the
convenience of making payments using credit cards; and
WHEREAS, the tracking of Recreation Program registrations and payments is managed
using specialized software prepared by ACTIVE NETWORK (previously CLASS SOFTWARE); and
WHEREAS, the payment card industry has modified requirements for businesses that
process Credit Card transactions in order to securely manage cardholder data; and
WHEREAS, Staff evaluated the options available to continue processing credit card
transactions and maintaining the required integration with the ACTIVE NETWORK software; and
WHEREAS, the recommended solution uses third party transaction processing through
ACTIVE NETWORK, in-lieu of the current City maintenance of hardware and software transmitted
to a third party bank for credit card transactions; and
WHEREAS, the recommended solution is hosted by ACTIVE NETWORK at their data center
which is a turn-key arrangement with the cost incorporating all bank fees and charges; and
WHEREAS, Section 2.36.050(A)(2) of the Dublin Municipal Code allows for exceptions to
the typical public bidding process where the City's requirements can be met solely by a single
patented article or process which the integration of the payment processing and recreation software
futfills; and
WHEREAS, if the purchase being made under an exception under section 2.36.050(A)
exceeds $20,000 the City Council must authorize the purchase (section 2.36.050 (B)).
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby
authorizes the City Manager as Purchasing Agent to execute the Agreement with ACTIVE
NETWORK substantially in the form attached as Exhibit A and as described in the Staff Report
presented to the City Council on July 20, 2010.
PASSED, APPROVED AND ADOPTED this 20th day of July, 2010, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
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ATTACHMENT 1
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' ~~~~~~~'~~~' PRODUCTS AND SERVICES AGREEMENT
' CUSTOMER INFORMATION
ORGANIZATION FULL
LEGAL NAME: City of Dublin ADDRESS: 100 Civic Plaza
Dublin, CA 94568
CONTACT NAME: Rhonda Franklin TELEPxo1vE: 925-556-4575
EMAIL: Rhonda.Franklin@ci.dublin.ca.us F~c:
OVERVIEW OF AGREEMENT
This document (the "AgreemenY') consists of this cover page, the General Terms, and the following Schedules and
E~ibits (check ali applicable Schedules)
X Schedule A: Hosted Software
Schedule B: Licensed Software; Support and Maintenance
Schedule C: Third Party Products
X Exhibit 1: Pricing Form
E~ibit 2: Services E~ibit
Eachibit 3: Maintenance E~chibit
NOTE: If customer is tax exempt, certificate must be arovided alon~ with signed contract.
In consideration of the mutual promises and covenants contained in this Agreement, Customer and TAN hereby
agree to be bound by this Agreement. By signing below, Customer acknowledges and confirms that it has read the
General Terms and all attached Schedules and understands that each forms an integral part of this Agreement.
CUSTO1viER THE ACTIVE NETWORK, I1vG {"TAN") '''
Signature: Signature:
Name: Joni Pattillo Name:
Title: City Manager Title:
Date: July 20, 2010 Date:
The Active Network, Inc., 10182 Telesis Court, San Diego, California 92121
Telephone: (858) 964-3801, Fax: (858) 964-3978
EXHIBITA
GENERALTERMS
GENERAL TERMS: TERMS APPLICABLE TO ALL
PRODUCTS AND SERVICES
1. INTERPRETATION
1. i Definitions. For the purposes of interpreting this
Agreement, the following terms will have the following
meanings:
(a) "AgreemenY' means this Products and Services
Agreement, inclusive of all Schedules.
(b) "Concurrent Use" means use at the same moment in time
to access a given server computer (of any kind) owned or
controlled by Customer.
(c) "Customer" means the legal entity other than TAN
entering this Agreement.
(d) "Database Server" means the single server computer upon
which the Enterprise Database is resident.
(e) "Effective Date" means the last date set forth on page one
of this Agreement.
(f) "Enterprise Database" means the MSDE, MS SQL
Server, or Oracle database files containing customer data and
that are accessed by the Licensed Software.
(g) "Hosted Software" means computer code and programs,
in executable code form only, including related data files, rules,
parameters and documentation, which have been created or
licensed by TAN and are identified in the Pricing Form as
licensed (or sublicensed) to Customer by TAN in connection
with this Agreement, and which reside on TAN's servers and are
accessible by Customer's staff or Users via the Internet.
(h) "Internet ClienY' means a remote device capable ofusing
the Internet to access selected Licensed Software on the Internet
Server ar the Enterprise Database on the Database Server via the
Internet Server.
(i) "Internet Server" means a single server computer used by
Customer which enables access to the Licensed Software by
individuals using an Intranet or the Internet, having a minimum
configuration as set out in hardware specifications previously
described to Customer as applicable to the Licensed Software to
be installed and used upon it.
(j) "IVR Server" means a single server computer used by
Customer for voice-recognition and telephone-based, rather than
computer-based, access to the Enterprise Database by
Customer's clients, having a minimum configuration as set out in
hardware specifications previously described to Customer as
applicable to the Licensed Software to be installed and used
upon it.
(k) "Licensed Software" means computer code and programs,
in executable code form only, including related data files, rules,
parameters and documentation, which have been created or
licensed by TAN and are identified in the Pricing Form as
licensed (or sublicensed) to Customer by TAN in connection
with this Agreement, and/or which are in the future provided to
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Customer by TAN under any circumstances unless provided
under a separate licensing agreement.
(I) "Maintenance" means the provision of error investigation
and repair services as set out in sections 22 through 25,
Maintenance Eachibit 3, and the provision of new Versions and
Releases in respect of the Licensed Software all as more
particularly set out in the Support and Maintenance Handbook.
(m) "Module" means a single module element of Licensed
Software listed in the Pricing Form.
(n) "Online Services" means services, such as Internet
registration, that are enabled by Hosted Software and available to
the public via the Internet.
(o) "Other Services" means Services other than Pre-Agreed
Services acquired by Customer under this Agreement ar any
further Professional Services as provided in an agreed Statement
of Work, purchase order, or pricing form.
(p) "Payment Server" means a single server computer used by
Customer to process electronic payments from its clients, having
a minimum configuration as set out in hardware specifications
previously described to Customer as applicable to the Licensed
Software to be installed and used upon it.
(q) "Pre-Agreed Services" means Services which are
expressly listed in the Pricing Form as being acquired hereunder
by Customer.
(r) "Pricing Form" means the itemized pricing form attached
as Exhibit 1 to the Agreement listing the products and services
provided by TAN to the Customer under this Agreement
(s) "Products" means all Licensed Software, Hosted Software,
Third Party products, and other products (including
documentation) provided to Customer by or on behalf of TAN.
(t) "Professional Services" means any and all types of
services which TAN provides, to Customer and/or to other
customers of TAN, in the course of TAN's business, including
but not limited to services relating to the installation,
implementation, optimization, administration, training and
troubleshooting of computers, computer software including the
Licensed Software, computer netwarks, databases, internet-
related equipment and applications, but expressly excludes
Support and Maintenance. Professional Services that are not
included as part of the Pre-Agreed Services, as defined above,
shall be as set forth in any applicable and mutually agreed
statement(s) of work (each a"Statement of Work"). Each such
Statement of Work shall, upon mutual ageement by the parties,
become part of and incorporated by reference into this
Agreement.
(u) "Related Third Party Documentation" means any end
specifications, manuals, instructions, and other materials, and
any copies of any ofthe foregoing, in any medium, related to the
Third Party Products and supplied by TAN to Customer with the
Third Party Products.
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(v) "Release" means any release, update, patch, set of
revisions, or bug/permanent fix or temporary bypass solution
released by TAN to its customers generally during the term of
this Agreement, which provides enhancements and/or error
corrections to the then-cunent Version or Release, and where a
new Version has been released and no new Release has been
released since the release of that Version, that Version will also
constitute a Release for the purpose of determining whether
Support or Maintenance is available with respect to that Version.
New Releases will be denoted by an increase to the version
number to the right of the decimal point such as from
Release 1.1 to Release 1.2.
(w) "Services" means all Professional Services, Support and
Maintenance, Online Services, and other services provided to
Customer by or on behalf of TAN.
(x) "Software" means the Licensed Software and the Hosted
Software as defined elsewhere in this section.
(y) "Support" means the ongoing telephone, email, web-
based and dial-in support and problem resolution to assist
Customer in the use of the Licensed Software, the Hosted
Software, and other services and products of TAN as set out in
the Support and Maintenance Handbook.
Corporation "Windows" functionality (for example, using File
Manager or Explorer), modem configuration & setup; data
corruption due to lack of disk space; and loss of supervisor or
other password, all as further set out in the Support and
Maintenance Handbook.
(ff) "User" means a person who accesses and uses any of the
Products in any manner whatsoever.
(gg) "Version" means a version of the Licensed Software
providing a particular functionality, while a new Version of the
Licensed Software will provide new/additional functionality
and/or improvements to a previous Version. New Versions will
be denoted by a change to the version number to the left of the
decimal point such as from Version 1.0 to Version 2.0.
(hh) "Workstation" means a computer attached to a local or
wide-area network (including an Intranet), which accesses the
Licensed Software or Enterprise Database.
1.2 Headings. The headings contained in this Agreement are
inserted for convenience and do not form a part of this
Agreement and are not intended to interpret, define or limit the
scope, extent or intent of this Agreement or any provision hereof.
2. CHARGES AND PAYMENTS
(z) "Support and Maintenance Handbook" means the
documents published by TAN setting out the applicable service
levels, processes, restrictions, and other particulars of Support
and Maintenance provided in respect of the Software and Other
Services and Products of TAN, as amended from time to time
upon notice to Customer.
(aa) "Support and Maintenance Start Date" means, for
implementations performed by TAN, the first day of
implementation of the Licensed Software or 90 days following
the delivery of the Licensed Software, whichever occurs first,
and upon delivery of the Licensed Software for implementations
being performed by the customer ar a 3`d party vendar.
(bb) "System Utilities" includes the following: Accounting
Processes, Central Login, Log File, Copy Database, Maintain
Database, MSDE Tool, Oracle Setup Utility, Query Tool,
System Maintenance, Upgrade Database and View Components.
(cc) "TAN" means The Active Network as referenced on the
first page of this Agreement.
(dd) "Third Party Products" means those hardware, firmware
and/or software products, provided to TAN by third parties,
listed in the Pricing Form, together with all user manuals and
other documents accompanying the delivery of the Third Party
Products, provided that the Third Party Products shall not
include software developed by TAN.
(ee) "Third Party Products SupporY' means assistance to
isolate the source of problems and/or to troubleshoot difficulties
resulting from sources other than TAN products or services, such
as general network support (for example network access,
printing, backup & restoration); PC hardware trouble shooting;
PC setup, configuration and optimization; network operating
system configuration and functionality; basic Microsoft
2.1 Taxes and Other Charges. Customer will pay all shipping
& handling costs and, unless exempted by law and unless a valid
tax exemption certificate has been provided to TAN prior to
invoicing, all applicable sales, use, withholding and excise taxes,
and any other assessments against Customer in the nature of
taxes, duties or charges however designated on the Services and
Products or their license or use, on or resulting from this
Agreement, exclusive of taxes based on the net income of TAN.
Sales and any other applicable taxes, duties, or any other charges
in the nature of taxes and duties are not included unless
specifically identified as line items in the Pricing Form.
2.2 Currency. Unless otherwise indicated in the Pricing Form,
all prices are in the currency of the country in which the
Customer is located.
2.3 Delivery. Delivery for the Products supplied by TAN under
this Agreement will be deemed to have occurred F.O.B. origin,
which in the case of Licensed Software and/or Hosted Software
will typically be in the form of an email from TAN providing a
FTP (i.e. file transfer protocol) downloadable link.
2.4 Invoices/Payment. TAN will provide invoices to Customer
for all amounts owing by Customer hereunder. Such invoices
are to be provided as indicated in the attached Schedules or
Pricing Form, and subsequently due within 30 days from the date
of invoice.
3. CUSTOMER INFORMATION; CONFIDENTIALITY
3.1 Customer Information. In order to assist TAN in the
successful provision or services and products to Customer,
Customer shall provide to TAN all information relating to
Customer's organization, technology platforms, systems
configurations, and business processes and otherwise relating to
Customer as is reasonably requested by TAN from time to time.
S IC~
3.2 ConfidentialInformation.
(a) In the performance of or otherwise in connection with this
Agreement, one party ("Disclosing Party") may disclose to the
other party ("Receiving Party") certain Confidential Information
of the Disclosing Party. "Confidential Information" means any
information of either party, which is not generally known to the
public, whether of a technical, business or other nature
(including, but not necessarily limited to: trade secrets, know
how, computer program source codes, and information relating
to the customers, business plans, promotionai and marketing
activities, finances and other business affairs of such party);
provided that the same is conspicuously marked or otherwise
identified as confidential or proprietary information prior to,
upon or promptly after receipt by the other party; and provided
further that the any software or software application server
source code provided by TAN or its licensors shall be deemed to
constitute Confidential Information without further designation
by TAN. The Receiving Party will treat such Confidential
Information as confidential and proprietary of the Disclosing
Party and will use such Confidential Information solely for the
purposes for which it is provided by the Disclosing Party and
will not disclose such Confidential Information to any third party
(other than a third party under contract whereby that third party
has agreed in writing to keep the Confidential Information
confidential).
(b) Exclusions. The obligations under this paragraph will not
apply to any: (i) use or disclosure of any information pursuant to
the exercise of the Receiving Party's rights under this
Agreement; (ii) information that is now or later becomes
publicly available through no fault of the Receiving Party; (iii)
information that is obtained by the Receiving Pariy from a third
party authorized to make such disclosure (other than in
connection with this Agreement) without any obligation of
secrecy or confidentiality; (iv) information that is independently
developed by the Receiving Party (e.g., without reference to any
Confidential Information); (v) any disclosure required by
applicable law (e.g., pursuant to applicable securities laws or
legal process), provided that the Receiving Party will use
reasonable efforts to give advance notice to and cooperate with
the Disclosing Party in connection with any such disclosure; and
(vi) any disclosure with the consent of the Disclosing Party.
4. WARRANTY
Limited Warranty of Software. TAN warrants that when
utilized by Customer in a manner authorized hereunder, the
Software will conform to the functional specifications set out in
the user documentation accompanying the Software for ninety
(90) days from delivery of the Software ("Warranty Period").
Delivery shall be deemed to have occurred upon TAN's email
transmission of an FTP link to Customer permitting download of
the Software from TAN's designated online site, or where
delivered in the form of physical media, F.O.B. origin. TAN's
sole obligation and liability hereunder with respect to any failure
to so perform will be to use reasonable efforts to remedy any
non-conformity which is reported to TAN in writing by
Customer within that Warranty Period. In the event TAN is
unable to remedy such non-conformity within a reasonable time
using reasonable efforts, a) in respect to the Licensed Software
TAN may refund to Customer the license fee pertaining to the
Licensed Software, subject to Customer's return of the Licensed
Software, and this Agreement will be automatically terminated,
ar b) in respect to Hosted Software TAN may refund to
Customer the fees paid by the Customer to TAN for Services
provided to implement the Hosted Software, and this Agreement
will be automatically terminated . All warranty service will be
performed at service locations designated by TAN. This Limited
Warranty is void if failure of the Software has resulted from
accident, abuse or misapplication. Any replacement Software
will be warranted for the remainder of the original warranty
period or 30 days, whichever is longer.
EXCLUSION OF WARRANTIES AND
LIMITATION OF LIABILITY
5.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES.
THE EXPRESS WARRANTIES SET OUT IN T`HIS
AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES, AND THERE ARE NO OTHER
WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
GUARANTEES OF ANY KIND WHATSOEVER
APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW
(IN CONTRACT OR TORT OR OTHERWISE) OR CUSTOM,
INCLUDING, BUT NOT LIMITED TO THOSE REGARDING
MERCHANTABILITY, FITNESS FOR PURPOSE,
DURABILITY, CORRESPONDENCE TO SAMPLE, TITLE,
DESIGN, CONDITION, OR QUALITY. WITHOUT
LIMITING THE ABOVE, TAN DOES NOT WARRANT
THAT ANY PRODUCTS OR SERVICES PROVIDED
HEREUNDER WILL MEET THE REQUIREMENTS OF
CUSTOMER OR THAT THE OPERATION OF PRODUCTS
PROVIDED HEREUNDER WILL BE FREE FROM
INTERRUPTION OR ERRORS.
5.2 RESTRICTIONS ON WARRANTY. TAN HAS NO
OBLIGATION TO REPAIR OR REPLACE PRODUCTS
DAMAGED BY ACCIDENT OR OTHER EXTERNAL
CAUSE OR THROUGH THE FAULT OR NEGLIGENCE OF
ANY PARTY OTHER THAN TAN.
5.3 NO INDIRECT DAMAGES. WITHOUT LIMITING
THE GENERALITY OF SECTIONS 5.1 AND 5.4, IN NO
EVENT WILL TAN BE LIABLE TO CUSTOMER OR TO
ANY OTHER PARTY FOR INDIRECT DAMAGES OR
LOSSES (IN CONTRACT OR TORT OR OTHERWISE),
INCLUDING BUT NOT LIMITED TO DAMAGES FOR
LOST PROFITS, LOST SAVINGS, LOST DATA, LOSS OF
USE OF INFORMATION OR SERVICES, OR INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES.
5.4 LIMITS ON LIABILITY. IF, FOR ANY REASON, TAN
BECOMES LIABLE TO CUSTOMER OR ANY OTHER
PARTY FOR DIRECT OR ANY OTHER DAMAGES FOR
ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE
FORM OF ACTION (IN CONTRACT OR TORT OR
OTHERWISE), THEN:
(a) THE AGGREGATE LIABILITY OF TAN TO
CUSTOMER AND ALL OTHER PARTIES IN CONNECTION
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WITH THE PRODUCTS AND THE SERVICES WILL BE
LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT
PAID TO TAN HEREUNDER, DURING THE TWO YEARS
PRECEDING THE LAST INCIDENT GNING RISE TO THE
LIABILITY; AND
(b) IN ANY CASE CUSTOMER MAY NOT BRING OR
IMTIATE ANY ACTION OR PROCEEDING AGAINST TAN
ARISING OUT OF THIS AGREEMENT OR RELATING TO
ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER
MORE THAN TWO YEARS AFTER THE RELEVANT
CAUSE OF ACTION HAS ARISEN.
5.5 SEPARATE ENFORCEABILITY. SECTIONS 5.1
THROUGH 5.4 ARE TO BE CONSTRUED AS SEPARATE
PROVISIONS AND WILL EACH BE INDIVIDUALLY
ENFORCEABLE.
6. RESTRICTIONS
6.1 U.S. GOVERNMENT RESTRICTED RIGHTS. The
Products are provided with restricted rights. Use, duplication, or
disclosure by the U.S. Government is subject to restrictions as
set forth in subparagraph (c) (1)(ii) of The Rights in Technical
Data and Computer Software clause at DFARS 252.227-7013, or
subparagraphs (c) (1) and (2) of the Commercial Computer
Software - Restricted Rights at 48 CFR 52.227-19, as applicable.
The Manufacturer is The Active Network, Inc., 10182 Telesis
Court, San Diego, California, United States, 92121.
6.2 Export Restrictions. The Products may include encryption
software or other encryption technologies that may be controlled
for import, export, or purposes under the laws and regulations of
the countries and/or territories in which the Products are used
("Applicable Law"). Customer may not export, re-export, or
assist or facilitate in any manner the export or re-export of, any
portion ofthe Products, as determined by Applicable Law under
which the Customer operates: (i) to any country on Canada's
Area Control List; (ii) to any country subject to LIN Security
Council embargo or action; (iii) contrary to Canada's Export
Control List Item 5505; (iv) to countries subject to U.S.
economic sanctions and embargoes; and (v) to persons or entities
prohibited from receiving U.S. exports or U.S.-origin items.
Customer hereby represents and covenants that: (i) to the best of
Customer's knowledge Customer is eligible to receive the
Products under Applicable Law; (ii) Customer will import,
export, or re-export the Products to, ar use the Products in, any
country or territory only in accordance with Applicable Law; and
(iii) Customer will ensure that Customer's Users use the
Products in accordance with the foregoing restrictions.
6.3 Third Party Software and Open Source Components.
The Software may contain open source components or other
third party software of which the use, modification, and
distribution is governed by license terms (including limitations
of liability) set out in the applicable documentation (paper or
electronic) or read me files.
7. TERMINATION
7.1 Termination. This Agreement will terminate:
(a) at the option of either party if the other party materially
defaults in the performance or observance of any of its
obligations hereunder and fails to remedy the default within 30
days after receiving written notice thereof; and
(b) without limiting (a), at the option of TAN if Customer
breaches section 2 of this Agreement, provided that the right of
termination will be in addition to all other rights and remedies
available to the parties for breach or default by the other.
7.2 Suspension of Obligations. If either party should
materially default in the performance or observance of any of its
obligations hereunder, then, in addition to all other rights and
remedies available to the non-defaulting party, the non-
defaulting party may suspend performance and observance of
any or all its obligations under this Agreement, without liability,
until the other party's default is remedied, provided however that
this section will not permit Customer to suspend its obligation to
make any payments due for Products or Services that are
unrelated to any default alleged against TAN.
7.3 Return of Materiats. In the event of termination of this
Agreement for any reason whatsoever, Customer will
immediately (i) return to TAN all physical copies of Products
delivered by TAN to Customer or otherwise in Customer's
possession or control, or (ii) if expressly permitted by TAN,
destroy all physical copies of the Products not returned to TAN
and delete all electronic copies ofthe Products from its systems
and certify in writing to TAN that such actions have all been
completed.
8. AUDIT AND MONITORING RIGHTS
TAN may, upon a minimum of 24 hours written notice to
Customer, attend upon Customer's premises and verify that the
Products are being used only as permitted hereby. Such
inspections shall be limited to a maximum of twice per calendar
year, and will be performed only during Customer's regular
business hours and conducted in a manner as to minimize, to the
extent reasonable, interference with Customer's business.
Further, TAN may, using automatic means which do not
interfere with the use of the Products by Customer or Users other
than as described in this provision, monitor at any time usage of
the Products by Customer and or its Users including through
monitoring of the number of copies of any particular Module(s)
in Concurrent Use.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Warranty of Title. TAN warrants that it has all rights
necessary to make the grant of license herein by having all right,
title, and interest in and to the Products (other than Third Party
Products) or as licensee of all such rights from the owner thereof.
9.2 Intellectual Property. TAN and its licensors shall retain
all right, title, and interest in and to the Products and the results
of the Services and to all software, trademarks, service marks,
logos, and trade names and other worldwide proprietary rights
related thereto ("Intellectual Property"). Customer shall use the
Intellectual Property only as provided by TAN, and shall not
alter the Intellectual Property in any way, or act or permit action
in any way that would impair TAN's or its licensors' rights in its
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Intellectual Property. Customer acknowledges that its use of the
Intellectual Property shall not create in Customer or any other
person any right, title, or interest in or to such Intellectual
Property. Any goodwill accruing from the use ofthe Intellectual
Property shall inure solely to the benefit of TAN or its licensors,
as applicable.
9.3 Restrictions. Customer will not any time whether before or
after the termination of this Agreement:
(a) reverse engineer, disassemble, or decompile any Products
or prepare derivative works thereof;
(b) copy, transfer, display, or use the Products except as
expressly authorized in this Agreement or in the applicable
documentation;
(c) disclose, furnish, or make accessible to anyone any
confidential information received from TAN or make any use
thereof other than as expressly permitted under this Agreement,
which confidential information is deemed to include the source
and executable code of the Software and all related
documentation;
(d) contest or do or aid others in contesting or doing anything
which impairs the validity of any proprietary or intellectual
property rights, title, ar interest of TAN in and to any Products;
or
(e) obliterate, alter, or remove any proprietary or intellectual
property notices from the Products in physical or electronic
forms.
10. INDEMNIFICATION
(a) TAN Indemnity. TAN agrees to indemnify, defend and
hold harmless Customer, its officers, directars, employees and
agents from and against all damages and costs (including
reasonable attorneys' fees) finally awarded against Customer (or
finally settled upon) and arising from or relating to: (i) any
violation of law or claim of personal injury or tangible personal
property damage arising, in whole or in part, out of or in
connection with the gross negligent or wilful misconduct of
TAN; and (ii) any claim brought against Customer by a third
party alleging that the Licensed Software directly infringes any
patent, copyright, trademark or other intellectual property right
or misappropriates any trade secret. If any claim that TAN is
obligated to defend has occurred or, in TAN's opinion, is likely
to occur, TAN may, at its option and expense either (1) obtain
for Customer the right to continue to use the applicable
Software, (Z) replace or modify the Software so it becomes non-
infringing, without materially adversely affecting the Software's
specified functionality, or (3) if (1) or (2) are not readily
available after using reasonable commercial efforts or, if neither
of the foregoing options is commercially reasonable, refund a
pro-rata portion of the fees paid by Customer based on its lost
use and terminate this Agreement. Notwithstanding the
foregoing, TAN shall not indemnify, defend or hold harmless
Customer for any claims solely based on: (x) any Customer ar
third party intellectual properiy or software incorporated in or
combined with the Licensed Software where in the absence of
such incorporated or combined item, there would not have been
infringement, but excluding any third pariy software or
intellectual property incorporated into the Software at TAN's
discretion; (y) Software which has been altered ar modified by
Customer, by any third party ar by TAN at the request of
Customer (where TAN had no discretion as to the
implementation of modifications to the Software or
documentation directed by Customer), where in the absence of
such alteration or modification the Software would not be
infringing; or (z) use of any version of the Software with respect
to which TAN has made available a non-infringing updated,
revised or repaired subsequent version or other applicable
update, patch or fix;
(b) Customer Indemnity. Except where precluded by
applicable law (e.g. sovereign immunity of a governmental
entity), the Customer agrees to indemnify, defend and hold
harmless TAN, its officers, directors, employees, affiliate
entities, subcontractors, vendors and agents from and against all
damages and costs (including reasonable attorneys' fees) finally
awarded against TAN (or finally settled upon) and arising from:
(i) any violation of law or claim of personal injury or tangible
personal properiy damage arising, in whole or in part, out of or
in connection with the gross negligent or wilful misconduct of
Customer, its employees, subcontractors or agents; (ii) any claim
brought against TAN by a third party alleging that any Customer
provided materials provided to TAN under this Agreement
directly infringe any U.S. copyright ar trademark or
misappropriate any trade secret in existence as of the Effective
Date; or (iii) any claim brought against TAN by a third pariy
arising from or relating to any modification of the Licensed
Software by Customer or any use of the Software other than as
permitted under this Agreement. Customer shall not indemnify,
defend or hold harmless TAN for any claims arising from: (A)
any TAN intellectual property or software incorparated in or
combined with the Customer provided materials where in the
absence of such incorporated or combined item, there would not
have been infringement; (B) Customer provided materials which
have been altered or modified by TAN as part ofthis Agreement,
where in the absence of such alteration or modification the
Customer materials would not be infringing; (C) use of an any
version of the Customer provided materials for which Customer
has made available an updated, revised or repaired subsequent
version; or (D) the gross negligence or wilful misconduct of
TAN or any of its agents, subcontractors or employees. Upon
notice of any claim of infringement or upon reasonable belief of
the likelihood of such a claim, Customer shall have the right, at
its option, to: (x) obtain the rights to continued use of the
Customer materials by TAN; (y) substitute other suitable,
functionally-equivalent, non-infringing materials; ar(z) replace
or modify the Customer provided materials or their design so
that they are no longer infringing.
(c) Indemnification Claims Procedure. Each Party's
indemnification obligations hereunder are conditioned upon (A)
prompt written notice of the existence of a claim, suit, action or
proceeding (each a"Claim") for which a Party seeks
indemnification from the other Party, provided that a failure of
prompt notification shall not relieve the indemnifying Pariy of
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liabiliry hereunder except to the extent that defenses to such
Claim are materially impaired by such failure of prompt
notification; (B) sole control over the defense or settlement of
such Claim by the Indemnifying Pariy; and (C) the provision of
assistance by the indemnified Party at the indemnifying Party's
request to the extent reasonably necessary for the defense of such
Claim.
California will apply, and (ii) in the case of Qu~bec, the laws of
Ontario will apply.
11.5 Attorney Fees. In any action or suit to enforce any right or
remedy under this Agreement or to interpret any provision of this
Agreement, the prevailing party shall be entitled to recover its
costs, including reasonable attorneys' fees.
11. GENERAL
11.1 Entire Agreement. This Agreement, including all
attachments and referenced schedules, constitutes the complete
and exclusive statement of the agreement between TAN and
Customer with respect to the subject matter hereof. It supersedes
and replaces all oral or written RFPs, proposals, prior
agreements, and other prior communications between the parties
concerning the subject matter of this Agreement. This
Agreement may not be modified ar altered except by written
instrument duly executed by both parties, except that TAN may
fill future purchase ar other orders for further goods or services
available under this Agreement and, if TAN does so, the
provisions of this Agreement will contain the only commercial
terms applicable to such transaction despite such purchase or
other order stating otherwise. Any Addendum attached hereto
shall form an integral part of this Agreement and, in the event of
any inconsistency between these General Terms and any
Addendum, the provisions of the Addendum shall prevail. Any
`click-wrap' agreement, terms of use, electronic acceptance or
other terms and conditions which attempt to govern the subject
matter of this Agreement that Customer might be required to
acknowledge or accept before using a TAN product are of no
force and effect as between Customer and TAN and are
superseded by this Agreement.
11.2 Force Majeure. Dates or times by which either party is
required to perform under this Agreement, excepting the
payment of any fees or charges due hereunder, will be postponed
automatically to the extent that any party is prevented from
meeting them by causes beyond its reasonable control, provided
such party promptly notifies the other thereof and makes
reasonable efforts to perform.
11.3 Notices. All notices and requests in connection with this
Agreement will be given to the respective parties in writing and
will be deemed given as of the first business day of the notified
party following the day the notice is faxed or sent via overnight
courier, providing a hard copy acknowledgment of such
successful faxed notice transmission or evidence of such
couriering, as applicable, is retained. Notice may also be
deposited in the mails, postage pre-paid, certified or registered,
return receipt requested, and addressed to the parties as indicated
on the face of this Agreement or such other address of which the
pariy gives notice in accordance herewith, and receipt of any
such notice will be deemed to be effective as of the third
business day following such deposit.
11.4 Governing Law. This Agreement and performance
hereunder will be governed by the laws of the jurisdiction in
which the Customer is located as indicated on the face of this
Agreement, except that (i) in the case of Louisiana, the laws of
11.6 Non-Assignability. Neither party may assign its rights or
obligations arising out of this Agreement without the other
party's prior written consent, except that TAN may assign this
Agreement in connection with any sale or security interest
involving all or substantially all of its assets or any other
transaction in which more than fifty percent of its voting
securities are transferred.
11.7 Term and Survival. The term of this Agreement shall
commence on the Effective Date set out on the cover page hereof
and shall continue as set forth in Sections 18.1 or 25.1, as
applicable, or until terminated in accordance with Section 7.
Sections l.l, 5, 73, 9.2, 93, 10, 11, 29.1, and 29.2 of this
Agreement, along with all unpaid payment obligations, will
survive termination and expiration of this Agreement.
11.8 No Authority to Bind. Neither party shall incur any
obligations for or in the name of the other party, or have the
authority to bind or obligate the other party. Neither party shall
make, issue or authorize any statements (whether oral or written)
in contravention of the foregoing.
11.9 Counterparts. This Agreement may be executed in
separate counterparts and delivered by facsimile or such other
electronic means as are available to the Parties. Such
counterparts taken together shall constitute one and the same
original document.
11.10 Severability. If any provision of this Agreement is
held by a court of competent jurisdiction to be invalid,
unenforceable, or void, the remainder of this Agreement and
such provisions shall remain in full force and effect.
11.11 Cooperative Procurement. Upon consent by TAN,
this Agreement may be used far permitted cooperative
procurement by any public or municipal body, entity, agency or
institution. If so authorized, and in order to forego a related
entity RFP or similar competitive bidding process, the
Agreement may be extended to such other entities indicated
above for the procurement of similar products and/or services
provided to Customer herein and at fees in accordance with the
Agreement unless separately negotiated between such other
entities and TAN. Further related entities participating in a
cooperative procurement process shall place their own orders
directly with TAN and will fully and independently administer
their use of the Agreement to include such contractual as those
entities and TAN deem appropriate without direct administration
from the original Customer.
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SCHEDULE A: TERMS APPLICABLE ONLY TO
HOSTED SOFTWARE
12. HOSTED SOFTWARE
12.1 TAN will provide Customer with access to hosted versions
of the products identified in the Pricing Form and associated
Online Services, and TAN hereby grants to Customer a limited,
non-exclusive, non-transferable license to use the Hosted
Software in accordance with the applicable documentation.
12.2 Customer elects to receive notifications of free product,
promotional items and giveaways through the TAN program
known as ActiveRewards. TAN will offer the Customer (and for
the purposes of clarification not to your users directly)
opportunities for free product, promotional items and giveaways
at your event(s) or facility(ies) as applicable, the exact manner
and type of which will be mutually agreed upon by you and TAN
upon your acceptance of a particular program.
12.3 Customer understands that some TAN products may
contain TAN or third party promotions or offers to users and
such offers will be made to individuals on an opt-in basis. TAN
(and any such third party) shall be responsible for administration
and customer service issues on any such offer or promotion.
13. SUPPORT FOR HOSTED SOFTWARE
TAN will, during all periods in respect of which Customer has
subscribed for Hosted Software, provide Support to Customer
(and, where applicable, directly to users of Customer's own
services and products who access the Hosted Software) in
accordance with applicable sections of the Support and
Maintenance Handbook.
14. LICENSE AND BRANDING
TAN hereby grants to Customer a limited, non-exclusive, non-
transferable license to display, reproduce, distribute, and transmit
in digital form TAN's name and logo in connection with
promotion of the Online Services only in the manner approved of
by TAN during the term of this Agreement. Customer hereby
grants to TAN a limited non-transferable license to use, display,
reproduce, distribute, adapt and transmit in digital or printed
form information provided by Customer relating to its
organization, including its name, trademarks, service marks and
logo, in connection with the implementation and promotion of
the Online Services; provided, however, that such use shall be as
necessary to TAN's performance under this Agreement.
Customer will make reasonable efforts to encourage adoption of
the Online Services, including displaying TAN's name and logo
or "Powered by TAN" logo, in the form supplied by TAN from
time to time and in a manner approved by TAN, acting
reasonably, in any medium used by Customer to promote its
programs or services to prospective participants.
15. INFORMATION SECURITY AND PRIVACY FOR
HOSTED SOFTWARE
TAN will collect information, including names, addresses,
gender, phone numbers, email addresses, birth dates, financial
information (for payment purposes) and other such information
from individuals using the Online Services as is reasonably
required to provide the Services. TAN will store such
information on a secure remote server using reasonable
safeguards in accordance with TAN's published online privacy
policies and in compliance with all applicable laws, codes of
practice, and other legal obligations associated with the
collection, use, and disclosure of personal information.
Customer may access this information by downloading it from
TAN's servers using a Customer assigned private password and
"login" identifier. Upon request TAN will make such
information available to Customer via e-mail, fax or airmail.
Customer will be responsible for protecting the privacy and
security of any information that Customer retrieves from TAN's
servers and shall prevent any unauthorized or illegal use or
dissemination of such information and shall be solely responsible
for ensuring compliance with any applicable data and privacy
protection laws, codes of practice, and other legal obligations
associated with the collection, use, and disclosure of personal
information by Customer, including such disciosure to TAN as
is necessary for TAN to provide the Services and Products to
Customer. Customer and/or its clients shall exclusively own the
personal data collected by TAN in connection with the Hosted
Software; provided, however, TAN is granted a royalty-free,
perpetual, non-exclusive right and license to use, reproduce,
distribute and adapt the collected data as is necessary for TAN to
perform its obligations under this Agreement, including for
purposes of communicating with Customer ar Customer's clients
as necessary, fulfilling requests for products and services
requested from Customer or Customer's clients, providing
customized content and advertising provided in connection with
the Hosted Software, conducting internal TAN research intended
to improve the products and services provided by TAN and its
affiliates, and to provide anonymous and aggregated reporting of
non-individual data for internal and external clients of Customer
or TAN. Any use of such data will conform with applicable
laws related to personal privacy and best practices around
permissive marketing, such as use of "opt-in" and/or "opt-out"
notifications and rights.
16. FEES FOR HOSTED SOFTWARE
16.1 Transaction fees.
(a) Customer shall pay to TAN the Hosted Software service
fees ("Service Charge(s)") as set out in the Pricing Form
(b) In cases where TAN's banking or fmancial partners or
similar service providers impose changes in processing costs
payable by TAN, TAN reserves the right to modify Service
Charges. TAN shall notify Customer at least ninety (90) days in
advance of any such changes. Customer agees to such changes
unless Customer provides TAN with written objection to such
charges within thirty (30) days from the date such change is
implemented. In the event Customer notifies TAN of its
objection to the changes as noted above, Customer's sole remedy
shall be to immediately terminate the Agreement as applied to
the Hosted Software, subject to payment of any fees due prior to
such notice of termination.
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(c) TAN will be responsible for collecting all payments
processed through the Online Services and all Service Charges
assessed by TAN. All payments are Customer's exclusive
properiy and will be sent to Customer twice a month (or as
otherwise indicated in the Pricing Form) while Service Charges
shall be retained by TAN.
(d) If Customer enters transactions at fee amounts less than
those actually charged to Customer's Users, thus reducing or
avoiding applicable Service Charges, such action shall constitute
a material breach of this Agreement.
(e) TAN shall not be responsible for processing or making any
refunds. All refunds for payments processed will be assessed a
$.10 fee charged by TAN to Customer. TAN may set off against
user fees collected by TAN to the amount of any credit card
charge backs and associated fees applicable to user transactions
and to reimburse itself for any overdue fees owed to TAN by
Customer. To the extent that such funds are not available for set
off, Customer shall promptly reimburse TAN for any deficiency.
(a) subject to the security requirements of Customer, 24 hour
access to Customer's system via either an always-available
telephone circuit or an always available internet connection to
enable TAN or its designated representative to perform any of
the obligations placed upon TAN by this Agreement; and
(b) subject to the security requirements of Customer, remote
dial up/internet access methods approved by TAN to allow TAN
to remotely diagnose and correct errors in the Licensed Software
and provide other Services.
19.2 Customer Obligations. Without limiting any of
Customer's other obligations under this Agreement, Customer
will:
(a) use its best efforts to upgrade to any new Release or
Version of the Licensed Software as soon as possible after
becoming aware of its availability;
(b) ensure that at all times at least one current staff person of
Customer has been fully trained on the Licensed Software; and
16.2 Subscription fees.
Customer shall pay to TAN the Hosted Software subscription
fees ("Subscription Fees") set out in the Pricing Form and for
the term of this Agreement established in Section 18 below.
Customer will be invoiced for their first year Subscription Fees
upon the first live operational use of the Hosted Software ("Go-
Live Date"), with subsequent annual Subscription Fees being
invoiced upon each anniversary of Go-Live Date. Payment will
be made Net 30 days from invoice date.
17. EXCLUSIVITY FOR HOSTED SOFTWARE
TAN will, during all periods for which Customer has subscribed
for Hosted Software, be the sole and exclusive provider to
Customer of the Hosted Software and Online Services, or any
products or services substantially similar thereto, for the part of
Customer's organization utilizing the Hosted Software and
Online Services.
18. TERM FOR HOSTED SOFTWARE
Unless otherwise provided in the Pricing Form, TAN shall
provide to Customer, and Customer shall purchase from TAN,
the Hosted Software commencing on the Effective Date of this
Agreement, and remaining in full farce for a period of three (3)
years from the Go-Live Date of the Hosted Software (the "Initial
Term"), with automatic renewals for three (3) year terms (each
a"Renewal Term") thereafter until either party gives written
notice to terminate the Hosted Software no less than twelve (12)
months prior to the end of the Initial Term or Renewal Term, as
applicable.
SCHEDULE B: TERMS APPLICABLE ONLY TO
LICENSED SOFTWARE AND ASSOCIATED SUPPORT
AND MAINTENANCE SERVICES
19. ACCESS TO SYSTEM AND OTHER CUSTOMER
OBLIGATIONS
19.1 Access. Customer will provide, at no cost to TAN:
(c) designate by written notice a single site and single person
as the point of contact for telephone or other contact, which site
and/or person Customer may change upon 14 days prior notice to
TAN.
20. GRANT OF LICENSES AND LIMITATIONS
THEREON
20.1 TAN hereby grants to Customer a non-exclusive and
non-transferable right and license, subject to this Agreement, to
install and/or use the Licensed Software, in the manner and for
the term stated in the Pricing Form (Exhibit 1) and TAN
provided and related written user documentation as follows:
(a) Workstation-Based Modules. In respect of each
Workstation-based core Module and each Workstation-based
add-on Module, Customer may install and use each Module on
Workstations to access the Enterprise Database on the Database
Server, provided that the number of copies of any particular
Module in use does not exceed the number of licenses granted to
Customer therefore as set out in the Pricing Form.
(b) Server-based Add-on Modules. Customermay install and
use each server-based Module on as many Workstations as is
desired by Customer, and Customer may use and permit use of
such Modules by its clients, all without limit to the number of
Users or transactions which simultaneously use any such
Module, provided however that:
(i) in respect of each TeleReg & Voice Server Module,
Customer may install one copy of each Module on one
IVR Server, provided that the number of copies of any
particular Module in use does not exceed the number of
licenses granted to Customer therefore as set out in the
Pricing Form, and all such Modules together may be in
Concurrent Use not to exceed the number of licenses
granted to Customer for TeleReg Lines Modules as set
out in the Pricing Form; and
(ii) in respect of each Payment Server Module, such
Modules may be in Concurrent Use not to exceed the
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number of licenses granted to Customer for Point of
Sale Modules as set out in the Pricing Form.
(c) Server-based On-line (Internet) Modules. In respect of
each Server-based On-line (Internet) Module, Customer may:
housing far the medium on which each physical copy is recorded
setting out the same proprietary and intellectual property notices
as appear on the unit of Licensed Software from which the copy
is made in the same manner as those notices appear on that
original copy.
(i) install one copy of each Module on one Internet server,
provided that the number of copies of the Module in
use does not exceed the number of licenses granted to
Customer therefore as set out in the Pricing Form; and
(ii) subject to 20(d), permit Users to access and use such
Modules to access the Database Server via lnternet
Clients connecting via a licensed Internet Server, and
all such Modules together may be in Concurrent Use
not to exceed the number of licenses granted to
Customer for Online Client Access Modules as set out
in the Pricing Form multiplied by twenty-five (25).
(d) Cumulative Workstation-based Modules. In respect of
each Cumulative Warkstation-based Module, Customer may:
(i) install one copy of each Module on a single
Workstation for each license granted to Customer
therefore as set out in the Pricing Form; and
(ii) permit Users using such licensed Workstation(s) to use
such Module(s) provided, for greater certainty, that the
Modules may be in Concurrent Use not to exceed the
number of licenses granted to Customer therefore as set
out in the Pricing Form.
(e) Customer hereby acknowledges that the mechanism
utilized by the Licensed Software to control the number of Users
or Online Client Access which can simultaneously access and
use Server-based On-line (Internet) Modules is based upon the
number of Users who have at any time logged into Customer's
computer network using their passwords, such that any User so
logged into such network in a manner that would automatically
enable the User to access and use such Modules will reduce by
one the number of Users able to simultaneously access those
Modules, regardless of whether or not such User is in fact
accessing or using any such Module. Customer hereby waives
any claim, and releases TAN from any such claim and from any
losses or damages Customer suffers in relation thereto, in
connection with the inability of Users to simultaneously access
such Modules where such inability is the result of inactive
logged-in Users absorbing available login access.
20.2 Additional Copies. Customer will not make any copies of
the Licensed Software except as necessary for the installation
permitted hereby and except far:
(a) copies of each Module licensed hereunder for training and
testing purposes, and
(b) for backup purposes, provided that all electronic copies
made include screen displays of TAN's proprietary or intellectual
property notices as recorded on the original copy provided by
TAN and Customer affixes a label to each disk, reel, or other
21. LICENSED SOFTWARE FEES
21.1 In respect of each Module, Customer shall pay to TAN all
applicable Licensed Software fees listed in the Pricing Form
upon delivery (as defined in Section 23) of the Licensed
Software.
22. MAINTENANCE SERVICES
22.1 TAN will develop new Releases and new Versions of
Licensed Software in accordance with the procedures and other
particulars set out in the Support and Maintenance Handbook
attached as E~chibit 3.
22.2 Provided that Customer continues to subscribe for Support
and Maintenance in respect of a particular Licensed Software
Product, TAN will provide to Customer, either in physical form
by mail or courier or in electronic form via the Internet, new
Releases and Versions (and appropriate documentation) for such
Licensed Software Products on a when-and-if-available basis.
23. EXCLUDED SUPPLIES AND SERVICES
Without limitation, the following supplies and services are
excluded from Support and Maintenance:
(a) Services which are required to remedy problems that stem
from changes to or defects in system configuration upon which
the Licensed Software was initially installed;
(b) Services which are required to remedy problems which do
not stem from any defect in Licensed Software;
(c) Services which are required to remedy problems caused by
lack of training of Customer's personnel or improper treatment
or use of the Licensed Software;
(d) Full report customization service;
(e) Any and all hardware support, maintenance or
troubleshooting issues, except as described in section 28
regardless of the source of such hardware.
24. FEES FOR SUPPORT AND MAINTENANCE
24.1 Support and Maintenance services begin for all Licensed
Software listed in the Pricing Form on the Support and
Maintenance Start Date. The cost for Support and Maintenance
services is payable annually in advance and is due in its entirety
thirty (30) days from date ofTAN's delivered invoice. Customer
may elect to specify a preferred alternate Support Renewal Date
by so notifying TAN in writing. If an alternate preferred Support
Renewal Date is specified, the cost of Support and Maintenance
will be prorated from the anniversary of the Support and
Maintenance Start Date to the specified Support Renewal Date.
Thereafter, the Support and Maintenance fee is payable in
advance on every annual anniversary of the Support and
Maintenance Start Date or, if there is a Support Renewal Date,
every anniversary of the Support Renewal Date (the applicable
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anniversary being the "Support Renewal Date"). TAN will
provide invoices to Customer far all such amounts, such invoices
due on the later of (a) the Support and Maintenance Start Date or
applicable Support Renewal Date, as applicable, and (b) 30 days
from the date of the invoice.
24.2 For the first year of this Agreement commencing with the
Effective Date, Support and Maintenance pricing shall be equal
to twenty-five percent (25%) of the gross software license fees.
Support and Maintenance pricing for all successive years shall
be equal to twenty-five percent (25%) of the gross software
license pricing charged by TAN for equivalent software as ofthe
date of each such renewal year, provided, however, that any
increase in TAN's annual Support and Maintenance pricing for
any renewal year shall not exceed ten percent (10%) of the
renewal fees charged in the prior year. Any additional software
licensed to Customer by TAN will increase the total gross
software license fees upon which Maintenance and Support
pricing is based. TAN will provide invoices to Customer for
renewal fees up to 60 days prior to expiration of each term.
24.3 The Support and Maintenance fees identified in the Pricing
Form are applicable only upon the date of entry into this
Agreement, and are subject to change thereafter in accordance
with this Agreement's terms.
Customer will pay to TAN, prior to re-instatement of Support
and Maintenance services:
(a) a reinstatement fee equal to the greater of 50% of the
current annual support fee or the sum of the unpaid support fees
that would have been payable hereunder had this Agreement
been in force during the time in which Support and Maintenance
rights had so lapsed to the date of reinstatement, and
(b) at least one additional year of Support and Maintenance
from the date of reinstatement.
25. TERM FOR SUPPORT AND MAINTENANCE
25.1 Term. TAN shall provide to Customer, and Customer shall
purchase from TAN, Support and Maintenance for a period
commencing on the Support and Maintenance Start Date and,
subject to termination as provided herein, continuing until the
following Support Renewal Date or anniversary of the Support
and Maintenance Start Date, with automatic renewals far one (1)
year terms thereafter until either party gives written notice to
terminate Support and the Maintenance no less than ninety (90)
days prior to the end of the then-current term, provided however
that the fees payable in respect of the Services and the Products
may be revised by TAN in accardance with this Agreement.
24.4 In consideration of the Support and Maintenance provided
hereunder, Customer agrees to pay TAN the fees described in the
Pricing Form, as modified explicitly pursuant to this Agreement.
In the event Customer requires Support and Maintenance for
additional Licensed Software, Customer agrees to pay TAN the
additional Support and Maintenance fees applicable based upon
the fees then in effect, prarated from the date of agreement to
acquire such services to the Support Renewal Date.
24.5 Unless the Pricing Form indicates otherwise, the fees
charged hereunder are applicable to Support and Maintenance of
Licensed Software used with respect to only a single database of
Customer data. If Customer, after entering this Agreement,
places in service one or more additional databases to be used in
relation to the Licensed Software, then for each such additional
database, an additional 25% of all gross Licensed Software fees
due, exclusive of such extra database fees, will be payable
hereunder for Support and Maintenance. Customer will notify
TAN as soon as reasonably possible of the installation or use of
any such additional database(s).
24.6 TAN may terminate and suspend performance of all
Support and Maintenance if Customer fails to pay any past due
TAN invoice within 30 days of written notice of such failure, in
the event of any other material breach by Customer which
remains uncured 30 days after notice thereof or if any of the
Licensed Software ceases to be subject of a valid Software
License Agreement.
24.7 If at any time after Customer has initially licensed any of
the Licensed Software from TAN, Customer's right to receive
Support and Maintenance, ar comparable services, from TAN
under this Agreement or a comparable agreement has lapsed for
any reason whatsoever, voluntarily or otherwise, and Customer
wishes to receive Support and Maintenance from TAN,
SCHEDULE C: TERMS APPLICABLE ONLY TO THIRD
PARTY PRODUCTS AND SERVICES
26. PURCHASE AND SALE; DELIVERY
26. i Purchase Commitment and Price. TAN hereby agrees to
sell to Customer, and Customer hereby agrees to purchase from
TAN, the Third Party Products listed in the Pricing Form in the
volumes and at the prices described therein.
26.2 Delivery. TAN will ship all or any part of the Third Party
Products to Customer as soon as reasonably practicable (or, if
the below-described purchase order documentation does not seek
immediate shipping, at the time TAN considers reasonable in
order to meet the desired delivery date described) after receipt by
TAN of a purchase arder from Customer specifying the
particular Third Pariy Products sought, the number of such Third
Party Products sought, the price payable therefare, and the
desired date and location of delivery thereo£ Any such purchase
arder must, at a minimum, reference quantity, description and
price.
26.3 Changes by Customer to Delivery Schedule. Following
delivery by Customer of any purchase arder documentation
described in section 26.2, no changes by Customer to the
shipment schedule described therein will be permitted unless
TAN is notified thereof in writing at least ninety (90) days in
advance of the delivery date sought in such purchase order
documentation.
26.4 Acceptance of Purchase Orders. Purchase orders
delivered by Customer to TAN in respect of Third Party
Products are not binding upon TAN until accepted by TAN in
writing. In any case, despite any indication to the contrary
contained in any such purchase order documentation, no terms or
10
~3 D-F ~~
conditions on purchase arder documentation issued by Customer,
other than the information required by TAN as set forth
expressly in this Agreement, will be binding upon TAN, nor will
any such terms or conditions modify or supplement this
Agreement in any way, notwithstanding the fact that TAN may
accept ar otherwise approve such purchase orders. TAN reserves
the right to refuse any such purchase order for any reason not
contrary to this Agreement, including without limitation pricing
differences as described in section 272.
26.5 Additional Third Party Products. Customer may
purchase Third Party Products in addition to those listed in the
Pricing Form by issuing additional purchase order
documentation as described herein, provided that the supply (or
non-supply) of such additional Third Party Products will be
subject to this Agreement as though such additional Third Party
Products had been included in the Pricing Form on the date of
execution of Pricing Form subject to the following:
(a) the price far such additional Third Party Products is subject
to agreement between the parties each in their own absolute
discretion, and
(b) TAN shall have the right to discontinue delivery of such
additional Third Party Products upon at least ninety (90) days
written notice to Customer without any liability to Customer
whatsoever for such discontinuance.
27. CHARGES AND PAYMENTS
27.1 Prices. The pricing applicable to Third Party Products is as
set out in the Pricing Form in the form finally agreed to by the
Parties.
27.2 Pricing Variability. Customer acknowledges that:
(a) the prices described in Pricing Form are applicable for
six (6) months after the date of execution hereof, and such prices
are based upon Customer taking delivery of the full number of
any particular Third Party Product listed in Pricing Form in a
single shipment; and
29. PROPRIETARY RIGHTS
29.1 Third Party Proprietary Rights and Indemnity by
Customer. Customer acknowledges that any Third Party
Products supplied by TAN hereunder are supplied by TAN as a
reseller thereof and that the Third Party Products are subject to
the intellectual property rights of the various third party
developers and/or manufacturers thereof, as applicable, including
without limitation copyright, trade secret, trademark, and patent
rights. Customer will maintain in confidence and not use or
disclose any and all confidential business or technical
information connected with any Third Party Product except as
specifically permitted by a party having legal control of such
rights, and Customer will defend or settle any claim made or any
suit or proceeding brought against TAN insofar as such claim,
suit, or proceeding is based on an allegation that any Third Party
Product provided to Customer hereunder has been installed,
used, or otherwise treated by Customer or any client or customer
of Customer in violation of the proprietary rights of any third
party ar on an allegation that Customer or any client ar customer
of Customer has disclosed or used any confidential business or
technical information connected with any Third Pariy Product,
provided that TAN will notify Customer in writing promptly
after the claim, suit, or proceeding is known to TAN and will
give Customer such information and assistance as is reasonable
in the circumstances. Customer will have sole authority to
defend or settle any such claim at Customer's expense. Customer
will indemnify and hold TAN harmless from and against any and
all such claims and will pay all damages and costs finally agreed
to be paid in settlement of such claim, suit or proceeding.
29.2 Third Party Products which are Software. Customer
acknowledges that the possession, installation and use of all
Third Party Products which are software shall be governed by
the terms of the software license(s) of the persons other than
TAN who possess the rights to control such possession,
installation and use.
30. WARRANTY
( b) Customer hereby agrees that after the expiry of such initial
six-month period or, in case of Customer seeking, in a particular
shipment, delivery of less than all of the Third Party Products of
a particular type listed Pricing Form, the actual prices may be
higher. Prior to shipment of any Third Party Products that would
be subject to pricing that differs from that described in the
Pricing Form, TAN will notify Customer of any such different
pricing and Customer will accept such different pricing, as
mutually agreed between Customer and TAN, in writing.
28. SUPPORT FOR THIRD PARTY PRODUCTS
For the purpose of isolating support issues and responsibility in
respect of Third Party Products and their interaction with any
Products, TAN will provide initial first-tier support, to a
maximum of fifteen (15) minutes per support inquiry, for Third
Pariy Products, as further specified in the Support and
Maintenance Handbook.
30.1 Warranty. TAN warrants to Customer that TAN has the
right to deliver the Third Party Products subject to any
documentation accompanying such Third Party Products at the
time of delivery and/or any licensing mechanisms, physical,
electronic or otherwise, included in any Third Party Products that
are software.
30.2 Warranties Provided by Third Party Suppliers. Third
Party Products are warranted by the manufacturers thereof in
accardance with the warranty statements accompanying delivery
of the Third Party Products, and Customer agrees that Customer
will rely solely on such Third Party Product warranties and
Customer shall make no claim against TAN on account of any
wananty, express or implied, which may apply to any Third
Party Product.
11
i~ ~~
EXHIBIT 1
The Active Network • . Quote#: 5942 -1
10182 Telesis P ri c i n g F o rm Date: 05/12/2010
Court, 1st floor Expires: 08/10/2010
San Diego, CA, 92121,
United States
Customer: Address: Bill To: Ship To:
Rhonda Franklin Attn:Rhonda Franklin Attn:Rhonda Franklin
CITY OF DUBLIN CITY OF DUBLIN CITY OF DUBLIN
DUBLIN,ALAMEDA 100 Civic Plaza 100 Civic Plaza
DUBLIN,ALAMEDA DUBLIN, ALAMEDA
CA 94568 CA 94568
US United States
Sales Representative: Steve Arsenault Payment Terms: 30 Net
Line Product Units Qty Unit Price Total Price
Selling Selling
(USD) (USD)
1.0 70653 Hr 1 100.00 100.00
Class - Standard Professional Services
2.0 70652 Hr 6 175.00 1,050.00
Class - Senior Professional Services
3.0 70738 Ea 1 0.00 0.00
Class Hybrid - Hosted Payment Server
4.0 70732 Yr 1 30,000.00 30,000.00
Class Hybrid - Annual Minimum
5.0 71964 Ea 1 1,500.00 1,500.00
Class Hybrid - ACH Remittance - Every 1 week
Category Subtotal
Class Hybrid.SaaS.Online Transactions Subtotal (Selling Price) 30,000.00
Class Hybrid.Service.Consulting - Hosted Subtotal (Selling Price) 1,500.00
Class.Service.Consulting Subtotal (Selling Price) 1,150.00
Charges 0.00
Tax
COUNTY (Rate 0% ) 0.00
COUNTY (Rate 2.5% ) 0.00
STATE (Rate 0% ) 0.00
STATE (Rate 725% ) 0.00
i otai~uau) 2,650.00
2
~J ~ ~~l/
Additional Information
Customer shall pay TAN all fees for licensed software purchased hereunder upon delivery of the
software.
' Delivery of licensed software shall be deemed to have occurred upon TAN's email transmission to
,. customer's designee of an FTP link permitting download of the software from TANs designated online
site, or where delivered in the form of physical media, FOB Origin.
' The start date for support and maintenance for implementations performed by TAN will be the first day
' of implementation of the licensed software or 90 days following the delivery of the licensed software,
whichever occurs first, and upon delivery of the licensed software for implementations performed by
customer or a third party vendor.
' Sales taxes, where applicable, are not included and prices are in the currency of the country of
; installation (subject to change without notice).
', Hardware, operating system, 3rd party software and site preparation are not included unless otherwise
noted.
On-site services are exclusive of airfare.
The software and manuals are available for download.
Onsite services billed in minimum 8 hour daily increments.
All hardware sales are final. Hardware is covered by standard manufacturer's warranty. Equipment
that is defective upon arrival will be replaced. RMA process will apply for items after support has
indicated there are no alternatives.
Customer must notify TAN in writing of any defective hardware within 7 days of its receipt. Any notices
received after 7 days concerning defective hardware will be null and void and will not be accepted for
return or replacement by TAN.
Onqoinq Fees
; Ongoing Fees Credit card transactions entered by a member of the Agency on behalf of a participant
and processed via Hosted Payment Server will be assessed the customary service fee charged by
' Active (°Service Charge") equal to 3.00%, with a minimum Service Charge of $1.00. We may change
,: the Service Charge at any time and you agree to such change unless you provide us with written
objection to such change within 30 days from the date such change is first implemented. We will be
responsible for collecting all event fees charged by you and all Service Charges assessed by us. All
; event fees, except Service Charges, are your exclusive property. Any event fees collected by us will be
; sent to you once a week by ACH and Service Charges shall be retained by us. You shall guarantee
and pay to Active a minimum aggregate Service Charge of $30,000 per calendar year (the "Minimum
~ Annual Service Charge°) which shall be ro-rated for 2010. You shall pay to Active the difference
I between such Minimum Annual Service Charge and the actual Service Charges collected by us during
such year, which will be billed at the end of each year beginning from the date set forth below. Active
shall not be responsible for processing or making any refunds. All credit card refunds processed will be
assessed a$.10 fee charged by Active to you. Active may reimburse itself for any credit card charge
; backs and associated fees out of event fees collected by it. In the event such funds are not available,
you agree to reimburse Active for any charge backs or refunds
~~ ~~ /~
', Me~x~d of Fayanent
~ ~"
,: Inv~ice ~ Pu~hs~ v^rd~r tJ~mSar.
: ~'"
' Gres7~2: sr€1
~ '~`iss ~ h?)s~terr`,_.erd ~ i,ma;-icsn Expr~ss
Nu~»~e~: Eac,~ir~t~n E~ate:
' i here~y r"~r~e t~ psy °!~~ s~ovp qu~~ ~vith th~ ~iai?~ ~rrethr,rl.
End of Quote
EXHIBIT 2
SERVICES EXHIBIT
INTENTIONALLY LEFT BLANK
EXHIBIT 3
MAINTENANCE EXHIBIT
INTENTIONALLY LEFT BLANK
4