HomeMy WebLinkAboutTHE ACTIVE NETWORK
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activellETWORK
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Software License Agreement (Schedule A)
This document (the "Agreement"), consisting of:
a. this cover page ("Cover Page"),
b. the attached table of licensed Software ("Software Table"); and
c. the attached Terms and Conditions of the Software License Agreement ("Terms and Conditions") constitutes
the entire agreement between the undersigned customer ("Customer") and The Active Network, Inc. ("TAN")
whereby, and TAN and the Customer hereby agree that, TAN grants to the Customer the rights and licenses
herein described regarding the installation and use of certain computer software for the prices described in tHe
Software Table, as modified from time to time according to this Agreement. Any apparent contradiction among
this Cover Page, the Software Table and/or the Terms and Conditions is to be resolved by giving priority to the
Terms and Conditions, followed by the Cover Page, and finally the Software Table.
Payment Terms for Software Licenses
A. All prices are in the currency of the country of installation.
B. Sales and any other applicable tax(es), duties or any other charges in the nature of taxes and duties are not
included unless specifically identified as ,line items.
C. Prices shown include freight F.D.B. the shipping point.
D. No services (Le. site preparation such as cabling and provision of electricity) are included in costs described
herein.
E. The following installment payment schedule is applicable; figures are percentages of total fees and other charges
re: all Software licensed under this Agreement:
Phase Start Date
Phase End Date
50% of the fees a
50% of the fees a
F. A Project Schedule will be established (see attached Active Project Schedule) through discussions between the
Customer and TAN once this agreement has been signed. The Project Schedule will consist of standalone and
separate phases. The Customer can, at any time, choose not to proceed with a subsequent phase. The Project
Schedule will indicate the acceptance criteria for each phase. Unless indicated otherwise by the Customer, each
phase is deemed to be complete unless TAN is notified by the customer within 30 calendar days after the Phase
End Date, as specified in the Project Schedule. When deemed complete, the customer acknowledges that all
project expectations have been met for the completed phase and there is no further recourse or liability for TAN.
G. The CustQmer agrees, subject to any conditions, limitations, or deductions as defined in the Project Schedule, to
pay to TAN for the performance of the work required under the Project Schedule to the satisfaction of the
Customer in accordance with the fee structure as defined in the Software License Agreement and work
estimates set forth in the Project Schedule.
H. TAN will invoice the Customer for the amounts contemplated in paragraph E. All invoices are payable within 30
days of1receipt thereof, and such receipt is deemed to occur as though such invoices were notices sent pursuant
to section 9.2 of the Terms and Conditions.
I. Software is expected to operate per the Software and System Requirements found in Augusta RFP 06-147, for
which the Vendor submitted a proposal dated August 21, 2006, except where software features were indicated
by TAN to be unavailable and have not been addressed or corrected elsewhere in this or other contractual
agreement(s) between TAN and the Customer.
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www.activecommunitles.com
18006611196
~actlveNETWORK
The parties hereto each acknowledge that they have rea . understand and agree to be bound by this Agreement.
Augusta, GA
Full Legal Customer Name
530 Greene St
Address
Augusta. GA 30911
106-821-2530
Facsimile
The Active Network, Inc.
..2g kA..>7 07
Date '
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www actjvecommunitie~ com
1 BOO 661 1196
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Software Table: Licensed Active Software Modules
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Module (included modules in parentheses)
1.
2.
3.
4
5.
6.
7.
8.
9.
10.
11.
12.
13.
14. '
15.
$1 750
$1,750
$1,750
$2;500
$1,750
$2,500
$4,500
$5,500
$5,000
$9,000
$3,500
$500
Enterprise Level 1 - includes (Home Page, General Content (1 & 2), Login, Survey,
Site Map, Calendar & Calendar Event, Link, Category, Search, Attachment, Quick
links, Quick Poll)
Enterprise Level 2 - includes (Home Page, General Content (1 & 2), Login, Survey,
Site Map, Calendar & Calendar Event, Link, Category, Search, Attachment, Quick
links, Quick Poll + 15K of add on modules
Enterprise Level 3 - includes (Home Page, General Content (1 & 2), Login, Survey,
Site Map, Calendar & Calendar Event, Link, Category, Search, Attachment, Quick
links, Quick Poll + 35K of add on modules)
$15,000
$9,000
16.
17.
18.
19.
20.
21.
22.
23.
$30,000
$50,000
Scanning Station - (Membership, Childcare, Equipment)
Wireless station
Calendar Online
Kiosk
Tele Lines - Re & pas Plus - 4 lines minimum
Golf - Payment over IP credit car processing
Golf - Driver's License Capture
Active Customer Response user
$500
$100
$500
$1,750
$1,750
$1,500
$1,500
$1,000
24;
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
$5,000
$5,000
$5,000
$5,000
$5,000
$5,000
$5,000
$5,000
$2,500
$2,500
$5,000
$5,000
$2,500
The Active Network, Inc.
$2,500
Page 3 of 10
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37. Databroker $5,000
38. Invoicing and Receivables $5,000 "
39. Department Connector $10,000
40. Activate POS $10,000 .
41 Golf - Tele-Reg - 4 lines $6,000
42. Golf - Membership Database - (Golfer Database w/Photo Imaging) $2,500
43. Golf - Loyalty Rewards $2,500
44. Golf - Online Member billing $2,500
45. Golf - Remote Palm Starter Interface $2,500
46. Golf - Event Management $'2,500
47. Golf - Accounting Interface $2,500 .
48. Golf - Food & Beverage Interface $2,500
49. Golf - Property Management Interface $2,500
50. Golf - Range Servant Interface $2,500
51. Golf - Multi Property Management Interface $1,500
52. Active Customer Response (Server + 5 concurrent seats) $15,000
53. Slog $2,500
54. Digital Asset Gallery $2,500
55. Email Updates $2,500
56. FAQ $2,500
57. Google Site Map Integration $2,500
58. Photo Gallery $2,500
59. RSS $2,500
60. Application Form $5,000
61. Conference Management $5,000
62. Email Broadcast $5,000
63. Google Map $5,000
64. Google Mini Page type (not including the server) $5,000
65. Help Desk , $5,000
66. Multi Site Map $5,000
67. People Finder $5,000
68. Project Team Dashboard $5,000
69. Req~est for proposal $5,000
70. Import Engine $20,000
71. ReQistration Online $5,000
72. Reservation Online - (includes Availability) $5,000
73. Membership Renewal Online $5,000
74. League Scheduling Online $5,000
75. Multilinqual Online $5,000
76. GIS -link $2,500
77. POS Plus Online $10,000
78. Online Client Access - (per 25 Concurrent Client Access Pack) $12,500
79. Online ticketing $5,000
80. Golf - Tee Time Online Direct $10,000
81. Golf- Online Member Billing engine $2,000
82. Active Customer Response Citizen Online $5,000
The Active Network, Inc.
Page 4 of 10
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The Active Network, Inc.
$250
$250
Total Software
Less Discount
Total Cost
$71,000.00
- $13,312.50
$57,687.50
Page 5 of 10
1. Interpretation
1.1. Definitions - For the purposes of interpreting this
Agreement, the following terms will have the following meanings:
a) "Agreement" means this Software License Agreement.
b) "Client Workstation or Workstation" means a computer
attached to a local or wide-area network (including an
Intranet), which accesses the Software or Enterprise
Database.
c) "Concurrent Use" means use at the same moment in time
tei access a given server computer (of any kind) owned or
controlled by the Customer.
d) "Customer" means the legal entity other than TAN entering
this Agreement.
e) "TAN" means The Active Network Inc.
D "Database Serve( means the single server computer upon
which the Enterprise Database is resident.
g) "Enterprise Database" means the MSDE, MS SQL Server
or Oracle database files containing customer data (which is
owned by Customer) and which is accessed by the
Software.
h) "Initial Installation" means initial installation of any Module
on any server computer owned or controlled by the
Customer. .
i) "Internet Client" means a remote device capable of using
the Internet and either Intemet Explorer 4.0 or higher to
access selected Software on the Intemet Server or the
Enterprise Database on the Database Server via the
Internet Server.
j) "Internet Server" means a single server computer used by
the Customer which enables access to the Software by
individuals using an Intranet or the Intemet, having a
minimum configuration as set out in hardware specifications
previously described to the Customer as applicable to the
Software to be installed and used upon it.
k) "IVR Server" means a single server computer used by the
Customer for voice-recognition and telephone-based, rather
than computer-based, access to the Enterprise Database
by the Customer's clients, having a minimum configuration
as set out in hatdware specifications previously described
to the Customer as applicable to the Software to be
installed and used upon it.
I) "Module" means a single type of Software referred to in any
particular line item, such that each such line item refers to
one, and only one, Module, with respect to which one or
more licenses mayor may not be granted hereby.
m) "Core Module" means any item of Software listed, but not
in parentheses, in line items 1 through 12, which represent
the most commonly licensed modules.
n) "Payment Server" means a single server computer used by
the Customer to process electronic payments from its
clients, having a .minimum cOnfiguration as set out in
hardware specifications previously . described to the
Customers as applicable to the Software to be installed and
used upon it.
0) "Phase" means the software, services, third party products,
maintenance, deliverables, and acceptance criteria to be
implemented between the Phase Start Date and the Phase
End Date including the associated costs.
The Active Network, Inc.
Terms and Conditions
of Software License Agreement
p) "Phase Start Date" means the date for the start of each
Phase as indicated on the Project Schedule
q) "Phase End Date" means the date for the end of each
Phase as indicated on the Project Schedule
r) "Project Schedule" means the document detailing the
standalone and separate implementation phases
established through discussions between the Customer and
TAN once this agreement has been signed.
s) "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 .ahd are identified in the,
Software Table as licensed (or sublicensed) to the
Customer by TAN in connection with this Agreement, and/or
which are in the future provided to the Customer by TAN
under any circumstances unless provided under a separate
licensing agreement.
t) "Software Table" means the table of TAN Software
Modules licensed hereunder, shown on the page of this
Agreement immediately following the Cover Page.
u) "System Utilities" includes the following: Accountin~
Processes, Central Login, Log File, Copy Database, Edit
Database, Maintain Database, MSDE Tool, Oracle Setup
Utility, Query Tool, System Maintenance, Upgrade
Database and View Components.
v) "User" means a person who accesses and uses any of the
Software to access, use or affect the Enterprise Database
in any manner whatsoever.
1.2. "Line Items" - Any reference herein to a "line item" or"line
items" is a reference to the appropriate line item(s) of the
Software Table.
1.3. 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.
1.4. Active's software, products are a collection of independent
software modules and each module is independently functional
on its own. There are no dependencies within the modules of
each product family that inhibit independent operation and
acceptance.
2. GRANT OF LICENSES AND LIMITATIONS THEREON
2.1. TAN hereby grants to the Customer a non-exclusive and
non-transferable right and license, subject to this Agreement, to
install and/or use the Software as follows:
a) Workstation-Based, Core and Add-on Modules - For
every Workstation-based Core and Add-on Module,licensed
the Customer may install and use the module to access the
Enterprise Database on the Database Server provided that
the number of copies of any particular Workstation-based
Core and Add-on Module in use does not exceed the
number licensed, as outlined in the Software Table.
b) Server-based Core and Add On Modules - Subject to c),
the Customer may install one copy of each Server-based
Core or Add On Module licensed on each of as many
Workstations as the Customer wishes, and may use and
permit use of such Modules by its clients, without limit as to
the number Users or transactions which simultaneously use
any such Module.
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c) Exceptions Regarding Unlimited System Feature
(Server Based Licensing):
i) Any TeleReg Server-based Add On Module licensed
may be installed as to one copy, on one IVR Server,
per license acquired, and all such Modules together
may be in Concurrent Use by, at mo~t, the number of
lines ofthe "TeleReg Lines" Module licensed;
ii) Any Payment Server-based Add On Module licensed
may be in Concurrent Use by, at most, the number of
lines of the Point of Sale Module, as applicable,
licensed.
d) On-line (Internet), Server-based Licenses - For every
On-line (Internet), Server-based Module licensed the
Customer may:
i) install one copy of each such Module per license of
such Module on one Internet Server, and
ii) , subject to e), permit Users to access and use such
Modules to access the Database Server via Internet
Clients connecting via a licensed Internet Server,
provided that at any time, any or all such Modules may
be in Concurrent Use by, at most, the number of
licenses of the Online Client Access Module licensed
multiplied by twenty-five (25).
e) Cumulative Workstation-based Licenses - For each
Cumulative Workstation-based Module licensed the
Customer may:
i) install one copy of such Module upon a single Client
Workstation per license of such Module, and
ii) permit Users using such licensed Client Workstation(s)
to use such Module(s), provided that only the number
of copies of such Module licensed may be in
Concurrent Use, and further only one copy may be in
Concurrent Use on any given licensed Client
Workstation(s).
fj The Customer hereby acknowledges that the mechanism
utilized by the. Software to control the number of Users or
Online Client Access which can simultaneously access and
use Online (Internet) Server-based Modules licensed is
based upon the number of Users who have at any time
logged in to the Customer's computer network using their
passwords, such that any User so logged into that network
in a manner that would enable the User to access and use
the Modules listed in those line items will in fact reduCe by
one the number of Users able to simultaneously access
those Modules, even if such User is not in fact accessing or
using any such Module. The Customer hereby waives
any claim, and releases TAN from any such claim and
from any losses or damages the Customer suffers in
relation thereto, in connection with the inability of the
number of Users indicated in line item 78 to
simultaneously ac~ess the Online (Internet) Server-based
Modules licensed where such inability is the result of
Users not actually using the Modules licensed per
those line items absorbing available login access in the
manner described in this provision.
2.2. Additional Copies - Customer will not make any copies of
the Software, except as necessary for the installation permitted
hereby and except for:
The Active Network, Inc.
Terms and Conditions
of Software License Agreement
a) copies of each Module licensed hereunder for training and
testing purposes, and
b) one copy of each Module licensed hereunde; 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 the Customer affixes
a label to each disk, reel or other housing for the medium on
which each physical copy is recorded setting out the same
proprietary and intellectual property notices as appear on the unit
of Software from which the cop.y is ma~e. in the same manner as
those notices appear on that original copy.
2.3. Incidental Installation of System Feature Software - TAN
will not require any payment by the Customer for, and hereby
releases the Customer with respect to any damages or claims to
or by TAN relating to, unlicensed Modules listed in the Software
Table under "System Features" the Software for which is
automatically installed on any hardware of the Customer in the
process of installation of any other Module(s), provided that the
Customer shall not use, and shall not permit any other person to
use, any such Modules.
3. CHARGES AND PAYMENTS
3.1. Software License Fees - The charges and payments
applicable to the installation and use of the Software by the
Customer are set out on the Cover Page.
3.2. Taxes and Other Charges - The Customer will pay all
shipping & handling costs and all applicable sales, use,
withholding and excise taxes, and any other assessments
against the Customer in the nature of taxes, duties or charges
however designated on the Software or its license or use, on or
resulting from this Agreement, exclusive of taxes based on the
net income ofTAN.
4. OWNERSHIP OF SOFTWARE
4.1. 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 Software or as licensee of all such
rights from the owner thereof.
4.2. Retention of Rights by TAN and Customer's Obligations -
All proprietary and intellectual property rights, title and interest
including copyright in and to the original and all copies of the
Software and the documentation or any changes or modifications
made to the Software or related documentation will be and
remain that of TAN, or its licensor as the case may be. Without
limiting the foregoing, the Customer will not any time whether
before or after the termination of this Agreement:
a) reverse engineer, disassemble or decompile any Software
or prepare derivative works thereof;
b) copy, transfer, display, or use the Software except as
expressly authorized in this Agreement;
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 and intellectual
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Page 7 of 10
V8NE7W011K
property rights, title or interest of TAN in and to any
Software; or
e) obliterate, alter, or remove any proprietary or intellectual
property notices from the Software in its physical or
electronic forms.
4.3. Intellectual Property Indemnity by TAN - TAN will defend or
settle any claim made or any suit or proceeding brought against
the Customer insofar as such claim, suit or proceeding is based
on an allegation that any of the Software supplied to the
Customer pursuant to this Agreement infringes the proprietary
and intellectual property rights of any third party in or to any
invention, patent, copyright or any other rights, provided that the
Customer will notify TAN in writing promptly after the claim, suit
or proceeding is known to the Customer and will give TAN
information and such assistance as is reasonable in the
circumstances. TAN will have sole authority to defend or settle
any such claim at TAN's expense. TAN will indemnify and hold
the Customer 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. This indemnity does
not extend to any claim, suit or proceeding based upon any
infringement or alleged infringement of copyright by the
combination of the Software with other elements not under TAN's
sole control nor does it extend to any Software altered by the
Customer either by enhancement or by combination with
product(s) of the Customer's design or formula. The foregoing
states the entire liability of TAN for proprietary and intellectual
proprietary rights infringement related to the Software. If the
Software in any claim, suit or proceeding is held to infringe any
proprietary or intellectual property rights of any third party and
the use thereof is enjoined or, in the case of settlement as
referred to above, prohibited, TAN will have the option, at its own
expense, to either (i) obtain for the Customer the right to
continue using the infringing item, or (ii) replace the infringing
item or modify it so that it becomes non-infringing, provided that
no such replacement or modification will diminish the
performance of the Software.
4.4. Intellectual Property Indemnity by the Customer - The
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 (i) an allegation that any Software
licensed to Customer pursuant to this Agreement has been
installed, used or otherwise treated in a manner contrary to the
terms of this Agreement or the intellectual property rights of the
provider of that80ftware, provided that TAN will notify the
Customer in writing promptly after the claim, suit or proceeding is
known to TAN and will give the Customer information and such
assistance as is reasonable in the circumstances. The Customer
will have sole authority to defend or settle any such claim at the
Customer's expense. The 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.
4.5. Georgia Open Records Act - TAN acknowledges that this
Agreement and certain documentation may be subject to the
Georgia Open Records Act (O.C.GA 9 50-18-70, et seq.).
Vendor shall cooperate fully in responding to such requests and
shall make all records, not exempt, available for inspection and
copying as required by law. TAN shall clearly mark any
information provided to Customer which TAN contends is
The Active Network, Inc.
Terms and Conditions
of Software License Agreement
Proprietary Information. TAN shall notify Customer immediately
of any Open Records request arising out of this contract and
shall provide to Customer a copy of any response to the same.
5. WARRANTY
..
5.1. Limited Warranty of Software - TAN warrants that when
utilized by the 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 Initial Installation. 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 Cu;tomer within that warrantY.
period. In the event TAN is unable to remedy such non-
conformity within a reasonable time using reasonable efforts,
TAN may refund to Customer the license fee pertaining to the
Software and this Agreement will be automatically terminated. All
warranty service will be performed at service locations
designated by TAN.
6. EXCLUSION OF WARRANTIES AND LIMITATION OF
LIABILITY
6.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE
WARRANTIES SET OUT IN SECTIONS 4.1 AND 5.1 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 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 THE OPERATION OF SOFTWARE PROVIDED
HEREUNDER WILL BE FREE FROM INTERRUPTION OR
ERRORS.
6.2. RESTRICTIONS ON WARRANTY - TAN HAS NO
OBLIGATION TO REPAIR OR REPLACE SOFTWARE
DAMAGED BY AC.CIDENT OR OTHER EXTERNAL CAUSE,
OR THROUGH THE FAULT OR NEGLIGENCE OF ANY PARTY
OTHER THAN TAN.
6.3. NO INDIRECT DAMAGES - WITHOUT LIMITING THE
GENERALITY OF SECTIONS 6.1 AND 6.4, IN NO EVENT WILL
TAN BE LIABLE TO THE CUSTOMER OR TO ANY OTHER
PARTY FOR INDIRECT DAMAGES OR LOSSES (IN
CONTRACT OR TORT), INCLUDING BUT NOT LIMITED. TO
DAMAGES FOR LOST PROFITS, LOST SAVINGS, OR
INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES..
6.4. LIMITS ON LIABILITY - IF, FOR ANY REASON, TAN
BECOMES LIABLE TO THE 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), THEN:
A) THE AGGREGATE LIABILITY OF TAN FOR ALL
DAMAGES AND LIABILITY INCURRED BY CUSTOMER
AND ALL OTHER PARTIES IN CONNECTION WITH THE
SOFTWARE IN QUESTION WILL BE LIMITED TO AN
AMOUNT EQUAL TO THE AMOUNT PAID TO TAN FOR
THE LICENSE OF THE MODULE OR MODULES WHICH
GAVE RISE TO THE CLAIM FOR DAMAGES; AND
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B) IN ANY CASE THE CUSTOMER MAY NOT BRING OR
INITIATE ANY ACTION OR PROCEEDING AGAINST TAN
ARISING OUT OF THIS AGREEMENT OR RELATING TO
ANY SOFTWARE PROVIDED HEREUNDER MORE THAN
TWO YEARS AFTER THE RELEVANT CAUSE OF
ACTION HAS ARISEN,
6.5. SEPARATE ENFORCEABILITY - SECTIONS 6.1
THROUGH 6.4 ARE TO BE CONSTRUED AS SEPARATE
PROVISIONS AND WILL EACH BE INDIVIDUALLY
ENFORCEABLE.
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 the Customer
breaches section 3 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 default in
the performance or observance of any of its obligations
nereunder, 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, but this section will not permit the
Customer to suspend its obligation to make payments owing in
respect of the Software.
7.3. Retum of Software - In the event of termination of this
Agreement for any reason whatsoever, Customer will
immediately retum to TAN all physical copies of Software
delivered by TAN to the Customer or otherwise in the Customer's
possession or control, except as expressly permitted by TAN to
destroy, destroy all physical copies of the Software not returned
to TAN, delete all electronic copies of the Software from its
systems, and certify in writing to TAN that such actions have all
been completed. Likewise, TAN shall destroy all records"
electronic, hard-copy, or otherwise, belonging to Customer and
shall certify in writing to Customer that such actions have been
completed.
8. AUDIT AND MONITORING RIGHTS
8.1. TAN may, upon a minimum of 48 hours written notice to the
Customer, attend upon the Customer's premises and verify that
the Software licensed pursuant to this Agreement is installed and
being used only as permitted hereby. Such inspections may
occur a maximum of once per calendar year, and will be
performed only during the Customer's regular business hours
and conducted in a I1),flnner so as minimize to the extent
reasonable any interference with the Customer's business.
Further, TAN may, using automatic means which do not interfere
with the use of the Software by the Customer or Users other than
as described in this provision, monitor at any time usage of the
Software by the Customer and or its Users, through monitoring of
the number of copies of any particular Module(s) in Concurrent
Use.
The Active Network, Inc.
Terms and Conditions
of Software License Agreement
9. GENERAL
9.1. Complete Agreement; Modification- This Agreement
constitutes the complete and exclusive statement of the
agreement between TAN and the Customer relating to the
licensing of the Software, and supersedes all oral or written
proposals, prior agreements and other prior communications
between the parties, concerning the subject matter of this
Agreement. This Agreement may not be modified or altered
except by written instrument duly executed by both parties,
except that TAN may fill future purchase or other orders for
further goods or services available under this Agreement, and if
TAN does so the provisions of this Agreement will contain the
only commercial terms applicable to such transaction despite'
such purchase or other order stating otherwise.
9.2. 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 (other than inability to pay) beyond
its reasonable control.
9.3. 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 Canadian mails (or if the Customer is resident
outside Canada and is rendering the notice, in the mails of that
country), postage pre-paid, certified or registered, return receipt
requested, and addressed to the parties as indicated on the face
of this Agreement for TAN and below for the Customer, and
receipt of any such notice will be deemed to be effective as of
the third business day following such deposit.
All notices required hereunder to the Customer shall be given in
writing to the following addresses or such other addresses as the
parties may designate by written notice:
f
Tameka Allen, IT Director
530 Greene Street, A-101
Augusta, GA 30911
T: 706.821.2522
F: 706.821.2530
Copies to:
Fred Russell, City Administrator
530 Greene Street, Room 801
Augusta, GA 30911
T: 706.821.2400
9.4. Governing Law - This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
All claims, disputes and other matters in question between the
City and the Vendor arising out of, or relating to, this Agreement,
or the breach thereof, shall be decided in the Superior Court of
Richmond County, Georgia. Vendor, by executing this
Agreement, specifically consents to venue and jurisdiction in
Richmond County; Georgia and waives any right to contest
jurisdiction and venue in said Court..
Page 9 of 10
9.5. Non-Assignability - This Agreement is not assignable by the
Customer. Any assignment, purported assignment or attempt to
assign by the Customer will be' a material breach of this
Agreement and will be void.
9.6. Survival - Sections 4, 6, 7.3 and 9 of this Agreement will
survive termination and expiration of this Agreement.
9.7. U.S. Govemment Restricted Rights - The Software and
documentation are provided with restricted rights. Use,
duplication, or disclosure by the U.S. Govemment is subject to
restrictions as set forth in subparagraph (c) (1){ii) of The Rights
1i
The Active Network, Inc.
Terms and Conditions
of Software License Agreement
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., Suite 300, 6400 Roberts Sft'eet, Burnaby, BC,
Canada, V5G 4C9.
9.8. 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.
t'
Page 10 of 10
'activeNETWOBK
"
General Software Services Agreement (Schedule B)
This document (the "Agreement"), consisting of:
a. this cover page ("Cover Page"),
b. the attached table of Services ("Services Table");
c. the attached Terms and Conditions of General Software Services Agreement ("Terms and
Conditions"); and
d. the attached form of Certificate of Insurance ("Certificate of Insurance") constitutes the agreement
between the undersigned customer("Customer") and The Active Network, Inc. ("TAN") whereby, TAN
and the Customer hereby agree that, TAN will provide to the Customer the Services described in this
Agreement, for prices and at rates as described in the Services Table as modified pursuant to the
Terms and Conditions. Any apparent contradiction among this Cover Page, the Terms and,Conditions,
the Services Table and/or the Certificate of Insurance is to be resolved by giving priority to the Terms
of Conditions, followed by the Cover Page, followed by the Services Table, and finally the Certificate
of Insurance.
The parties hereto each hereby acknowledge that they have read, understand and agree to be bound by
this Agreement.
Augusta, GA
Full Legal Customer Name
530 Greene St
Address
Augusta, GA 30911
706-821-2530'
Facsimile
',\
The Active Network, Inc.
23' I/>>r07
Date
Payment Terms for General Software Services
1. As soon as pOSSible following the approval of this contract and prior to any payment of any kind to
TAN by the Customer, TAN shall have procured a Performance Bond equal to the amount of software'
licenses and services provided under this contract and other associated contracts related to the
implementation of TAN's products at the Customer site(s). Said bond will be active until the final
acceptance of the software has been granted, at which time the Customer will provide documentation to'
TAN indicated that the contract(s) have been satisfied. Proof of the Performance Bond shall be provided
to the Customer and attached as part of this contract.
t'
.'
8ctiveIlETWOllK
t
Services Table
G.i. Standard Consultants
G.ii. Senior Consultant I Pro' ect Planner
G.iii. Technical Specialist
NOTE THA T RATES SHOWN INCLUDE ALL TRAVEL EXPENSES OTHER THAN
AIRFARE
$75
$75
$75
Totals
224
$31,520.00
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',\
<l
The Active Network. Inc.
Page 2 of 5
activeNETWORK
{'
1. DEFINITIONS
1.1. Definitions - For the purposes of interpreting this Agreement, the
following terms will have the following meanings:
a) "Initial Installation" means the date upon which any of the Software
has first been installed on any server computer owned or controlled by
the Customer.
b) "Other Services" means Services other than Pre-Agreed Services
acquired by the Customer under this Agreement.
c) "Pre-Agreed Services" means Services which are expressly listed in
the Services Table as being acquired hereunder by the Customer.
d) "Release" means any release, update, patch, set of revisions, or
bug/permanent fix or temporary bypass solution released by TAN to its
customers generally during the term of this Agreement, which provides
enhancements and/or error corrections to the then-current Version or
Release, and where a new Version has been released and no new
Release has been released since the release of that Version, that
'Version will also constitute a Release for the purpose of determining
whether Support or Maintenance is available with respect to that
Version. New Releases will be denoted by an increase to the version
number to the right of the decimal point such as from Release 1.1 to
Release 1.2.
e) "Services" means any and all types of services which TAN provides,
to the Customer and/or to othercustomers of TAN, in the course of
TAN' business, including but not limited to services relating to the
installation, implementation, customization, optimization,
administration, training and troubleshooting of computers, computer
software including, the Software, computer networks, databases,
intemet~related equipment and applications, but expressly excludes
Support and Maintenance as described in TAN's standard Software
Support and Maintenance Agreement.
f) "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
subsequently licensed by TAN to the Customer.
g), "Version" means a version of the, Software providing a particular
functionality, while a new Version of the 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.
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. SERVICES TO BE PROVIDED
2.1. TAN will provide tcHhe Customer:
a) all Pre-Agreed Services which the Customer hereby agrees, pursuant
to the Services Table, to acquire; and
b) all Other Services which the Customer from time to time agrees to
acquire, provided that no Services other than Pre-Agreed Services will
be provided by TAN unless TAN has, prior to such Services being
rendered, received confirmation from the Customer that the Customer
wishes to acquire such q.ervices and will pay for such Services under
the terms of this Agreement; and
c) Standard on-site services days are eight (8) hour days, included as
billable time are fifteen (15) minute morning and afternoon breaks as
well as one (1) hour lunch break, the minimum billable on-site period is
8 hours. Standard e-Consulting (remote) services are provided in
minimum four (4) hour increments.
Terms and Conditions of General Software Services Agreement
d) Weekend surcharges apply to services. p~ovided. on a Saturday,
Sunday, and on Friday for hours past the time at which the consultant
would be reasonably able to travel to the next destination on Friday.
3. FEES AND PAYMENT -
3.1. Pre-Agreed Services - The Customer will pay TAN the fees described
in the Services Table for Pre-Agreed Services.
3.2. Other Services - Upon subsequent agreement from time to time
between the Customer and TAN that the Customer will acquire Other
Services, the Customer will pay for such Other Services at the .service rates
in effect at the time of provision of such Other Services, proVided that the
service rates shown in the Services' Table will be effective for the 6-month
Period following effective date of this Agre~men~, and ther~after releva~t
service rates, if different from the rates contained In the Services Table, Will
be provided to the Customer prior to such Other Services being rendered.
3.3. Consulting and training Services include up to five (5) participants per
class. Additional participants, to a maximum of ten (10) per class can be
accommodated at no extra charge.
3.4. Travel Expenses - Costs and rates as described in this Agreement
include all TAN personnel travel expenses other than airfare: The Custo.mer
will pay all airfare relating to travel of TAN personnel relating to Services
provided at the Customer's location, which airfare will unless urgency on the
part of the customer requires otherwise, be at 'coach' rates. ,
3.5. Shipping and Handling - The Customer will pay all shipping & handling
charges, applicable sales, use, withholding and excise taxes, and an.y other
assessments in the nature of taxes, duties or charges however deSignated
on the Services rendered under this Agreement, exclusive of taxes based on
the net income of TAN.
3.6. Applicable Currency - Unless specifically st~ted ~therwise, all pri~s
and amounts are in the currency of the country In which the Software IS
installed. ,
3.7. Invoices (Delivery, Payability and Interest) - TAN will provide invoices
to the Customer for all amounts owing by Customer hereunder, such
invoices to be provided aft~r provision of the Services to which they relate,
and subsequently due within 30 days after receipt by the Customer.
4. ACCESS TO SYSTEM AND OTHER CUSTOMER OBLIGATIONS
4.1. Customer will provide, at no cost to TAN: .
a) sufficient space to allow TAN personnel on the Customer's site to
perform the on-site Services acquired hereunder;
b) office supplies and services such as photocopying, facsimile and
telephone access;
c) without limiting a), education and training facilities adequate to the
training services acquired hereunder, including classroom s~a::e,
networked PCs (minimum one (1) PC for every two (2) training
participants), networked printing capability, computer display/proje~tion
facilities, and flip chart or whiteboard, plus markers and other anCillary
, supplies; ,
d) subject to the- security requirements of the Custo~er and in
accordance with the Customer's Vendor VPN Access Policy, . access
to the Customer's system via an internet connection to enable TAN or
its designated representative to perform any of the obligations placed
upon TAN by this Agreement.; and
e) subject, to the security requirements of the Custo~er and in
accordance with the Customer's Vendor VPN Access PO/ICY, remote
dial upflnternet access methods approved by TAN to allow TAN to
remotely diagnose and correct errors in the Software and provide other
Services.
4.2. Without limiting the Customer's obligations, Customer will: . '
a) 'use its best efforts to upgrade to any new Release or Version of the
Software that is designated for general distribution; as soon as
possible after becoming aware of its availability;
The Active Network, Inc.
Page 3 of 5
activellETWOIIK
b) ensure that at all times at least one current staff person of the
Customer, who is the Customer contact person named on the Cover
Page and per c), has been fully trained on the Software;
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 the
Customer may change upon 14 days prior notice; and
d) provide particulars of the Customer's system configuration in sufficient
detail to allow TAN to effectively provide Services hereunder.
5. REPRESENTATIONS AND WARRANTIES
5.1. Insurance - TAN represents and warrants that it does and will at all
times during the term of this Agreement maintain general liability insurance '
as described in the Certificate of Insurance.
5.2. Limited Warranty of Services - TAN warrants that all services provided
hereunder will be performed in full conformity with the Agreement, with the
skill and care which would be exercised by those who' perform similar
services at the time the services are performed, and in accordance with
accepted industry practice. In the event of a breach of the express
warranties contained herein and/or in the event of non-performance and/or
failure of TAN to perform the services in accordance with the Agreement,
TAN will, at no cost to Customer, re-perform or perform the services so that
the services conform to the warranties.
6. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
6.1. SPECIFIC EXCLUSION . OF OTHER WARRANTIES - THE
WARRANTIES SET OUT IN SECTION 5.1 AND 5.2 ARE IN LIEU OF ALL
OTHER WARRANTIES, AND THERE ARE NO OTHER WARRANTIES,
REPRESENTATIONS, CONDITIONS, OR GUARANTEES OR ANY KIND
WHATSOEVER, EITHER EXPRESS OR IMPLIED BY LAW (IN CONTRACT
OR TORT) OR CUSTOM, INCLUDING, BUT NOT, LIMITED TO THOSE
REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE,
CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, OR
QUALITY, IN EFFECT REGARDING THE SERVICES.
6.2. NO INDIRECT DAMAGES - IN NO EVENT WILL TAN BE LIABLE TO
CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR
LOSSES (IN CONTRACT OR TORT) IN CONNECTION WITH THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST
PROFITS, LOST SAVINGS, OR INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES.
6.3. LIMITS ON LIABILITY - DESPITE ANY OTHER PROVISION OF THIS
AGREEMENT, 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), THEN:
A) THE AGGREGATE LIABILITY OF TAN FOR ALL DAMAGES,
INJURY, AND LIABILITY .INCURRED BY CUStOMER AND ALL
OTHER PARTIES IN CONNECTION WITH THIS AGREEMENT WILL
BE LIMITED TO AN AMOUNT EQUAL TO THE CHARGES PAID TO
TAN FOR THE SE~VICES WHICH GAVE RISE TO THE CLAIM FOR
DAMAGES; AND
B) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR
PROCEEDING AGAINST TAN ARISING OUT OF THIS AGREEMENT
OR RELATING TO SERVICES MORE THAN TWO YEARS AFTER
THE CAUSE OF ACTION HAS ARISEN,
6.4. SEPARATE ENFORCEABILITY - SECTIONS 6.1, 6.2 AND 6.3 ARE
TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE
INDIVIDUALLY ENFORCEABLE.
7. TERM
7 .1. Term - The term of this Agreement will commence on the date of its
execution and, subject to termination as provided herein, will continue
indefinitely.
8. TERMINATION
8.1. Termination - This Agreement will terminate:
The Active Network, Inc.
('
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 afle!r receiving written notice
thereof from the non-de~aulting party;
b) at the option of either party if the other party becomes insolvent or
bankrupt or makes an assignment for the benefit of creditors, or if a
receiver or trustee in bankruptcy is appointed for the other party, or if
any proceeding in bankruptcy, receivership, or liquidation is instituted
against the other party and is not dismissed within 30 days following
commencement thereof;
c) at TAN' option upon the expiry of sixty (60) days following issuance by
TAN of an invoice to the --CUstomer for fees payable under this
Agreement and such invoice remaining unpaid, provided t~at TAN has
prior to terminating under this provision provided the Customer with at
least ten (10) days' prior written notice of such non-payment, which
minimum 10-day period may expire before, simultaneously with, or
afler the sixty day period (Customer shall indemnify and reimburse
TAN for any attomeys, fees incurred by TAN in connection with
collection of moneys from Customer due to it nonpayment); or
d) at either party's option if the other party assigns or attempts to assign
this Agreement other than as expressly permitted by this Agreement;
provided that these rights of termination will' be in addition to all other
rights and remedies available to the parties for any breach or default
hereunder.
8.2. Suspension of Obligations - If either party should 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, but this Section will not permit the
Customer to suspend its obligation to make payments owing in respect of
Support and other Software Services.
9. GENERAL
9.1. Complete Agreement;: Amendments - This Agreement, as modified
and affected by TAN's standard Software license fees and the terms of any
agreement between TAN and the Customer relating to licensing of Software
(as opposed to the mere provision of Software, to which this Agreement
relates in respect of Releases and Versions), is the complete and exclusive
statement of the Agreement, between the parties with respect to the' subject
matter contained herein and supersedes and merges' all prior
representations, proposals, unde~tandings and all other agreements, oral
or written, express or implied, between the parties relating to the matters
contained herein. This Agreement may not be modified or altered except by
written instrument duly executed by both parties, except that TAN may fill
future purchase or other orders for further goods or services available under
this Agreement, and if TAN does so the provisions of this Agreement will
contain the only commercial terms applicable to such transaction despite
such purchase or other order stating otherwise. '
9.2. Force Majeure - Dates or times by which either party is required to
perform under this Agreement will be postponed automatically to the extent
that any party is prevented from meeting them by causes beyond its
reasonable control. '
9.3. 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 ovemight 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 Canadian
mails (or if the Customer is resident outside Canada and is rendering the
notice, in the mails of that country), postage pre-paid, certified or registered,
return receipt requested, and addressed to the parties as indicated on the
face of this Agreement for TAN and below for the Customer, and receipt of
Page 4 of 5
activellETWORK
, any such notice will be deemed to be effective as of the third business day
following such deposit.
All notices required hereunder to the Customer shall be given in writing to the
following addresses or such other addresses as the parties may designate by written
notice:
Tameka Allen, IT Director
530 Greene Street, A-101
Augusta, GA 30911
T: 706.821.2522
F: 706.821.2530
Copies to:
Fred Russell, City Administrator
530 Greene Street, Room 801
Augusta, GA 30911
T: 706.821.2400
9.4. Governing Law - This Agreement shall be govemed by and construed in
accordance with the laws of the State of Georgia. All claims, disputes and other
',\
~
The Active Network, Inc.
t'
matters in question between th~ City and the Vendor arising out of, or relating to, this
Agreement or the breach thereof, shall be decided in the Superior Court of Richmond
County, Georgia. Vendor, by executing this Agreement svecifically consents to venue
and jurisdiction in Richmond County, Georgia and waives any right to contest
jurisdiction and venue in said Court.
9.5. Non-Assignability - This Agreement i~ not assignable by the Customer,
and any assignment, purported assignment or attempt to assign by the
Customer will be a material breach of this Agreement and will further be
void. TAN may assign its obligations under this Agreement to TAN's system
integrators or resellers or upon a merger or substantial sale of TAN's assets.
9.6. Survivaj - Sections 6 and 9 will survive termination and expiration of
this Agreement.
9.7. 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.
Page 5 of 5
t'
Software Support and Maintenance Agreement (Schedule C)
This document (the "Agreement"), consisting of:
a. the cover pages (collectively, "Cover Page"),
b. the attached table of supported Software ("Software Table");
c. the attached description of levels of annual support and maintenance ("Levels Description");
d. the attached Terms and Conditions of Active Support and Maintenance ("Terms and Conditions"); and
e. the attached certificate of insurance ("Certificate of Insurance") constitutes the agreement between the
undersigned customer ("Customer") and The Active Network, Inc. ("TAN") whereby, and TAN and the Customer
hereby agree that, the Customer will acquire, and TAN will provide, the software SUPIJ~rt.and maintenance
products and services described in this Agreement for the prices shown in the table below. Any apparent
contradiction among this Cover Page, the Software Table, the Levels Description, and/or the Terms and
Conditions is to be resolved by giving priority to the Terms and Conditions, followed by the Cover Page, Software
Table and Levels Descri tion in that order.
"
1. Su
25% of License Cost
I
I
I
Cost
$17,750.00
2. Su ort and Maintenance - premium (30% of License Cost)
50.00
Payment Terms for Support and Maintenance
1. A Project Schedule will be established (see attached Active Project Schedule) through discussions between the
Customer and TAN once this agreement has been signed. The Project Schedule will consist of standalone and
separate phases. The Customer can, at any time, choose not to proceed with a subsequent phase. The Project
Schedule will indicate the acceptance criteria for each phase. Unless indicated otherwise by the Customer, each
phase is deemed to be complete unless TAN is notified by the customer within 30 calendar days after the Phase
End Date, as specified in the Project Schedule. When deemed complete, the customer acknowledges that all
project expectations have been met for the completed phase and there is no further recourse or liability for TAN.
2. The cost for the Support and Maintenance services is payable annually in advance and is due in its entirety for
the completed Phase ninety (90) days after the "Go Live" date (the date on which the customer begins to actively
use the software for business purposes), unless the Customer has specified a Preferred Renewal Date in the
appropriate space in the table above in which case only the cost of Support and Maintenance prorated from the
Support Start Date to the Preferred Renewal Date is payable on the Support Start Date. Thereafter, the Support
and Maintenance fee is payable in advance on every annual anniversary of the Support Start Date or, if there is a
Preferred Renewal Date, every anniversary of the Preferred Renewal Date (the applicable anniversary being the
"Support Renewal Date"). TAN will provide invoices to the Customer for all such am~unts, such invoices due on
the later of (a) the Support Start Date or applicable Support Renewal Date, as applicable, and (b) 30 days after
receipt of the invoice.
3. The annual cost of Support and Maintenance hereunder is 25% of the license fee which would be applicable if
the Software with respect to which Support and Maintenance are provided hereunder were licensed anew by the
Customer at TAN's standard license rates as they exist on the effective date hereof or the Support Renewal
Date, as applicable, provided that, excluding increases due to Support and Maintenance of additional Software
from one contractual year to the next, any increase in costs hereunder from one contractual year to the next may
not exceed five (5) percent of the Support and Maintenance fees payable for the year just ending upon that
Support Renewal Date.
4. The Customer will pay all shipping & handling charges, applicable sales, use, withholding and excise taxes, and
any other assessments in the nature of taxes, duties or charges however designated on the services rendered
under this Aweement, exclusive of taxes based on the net income of TAN.
5. All prices are in the currency of the country in which the Software is installed.
[The remainder of this page is intentionally BLANK]
www.activecommunities com 18006611196
~actlveNETWORK
The parties hereto each hereby acknowledge that they have read, understand and agree to be bound by this
Agreement.
('
Augusta, GA
Full Legal Customer Name
530 Greene St
Address
Augusta, GA 30911
706-821-2530
Facsimile
The Active Network, Inc.
2~ It#: of-
Date
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The Active Network, Inc.
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Page 2 of 10
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Software Table: Licensed Active Software Modules
Module (included modules in parentheses)
"
Initial
Software
Licensing
Cost
_ No. of Copies
of Module
Supportedl
Maintained
Total Module
Support I
Maintenance
Cost
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xiii.
xiv.
$1,750
$1,750
$"1,750
$2,500
$1,750
$2,500
$4,500
$5,500
$5,000
$9,000
$3,500
$500
$2,250.00
$2,625.00
$2,625.00
$2,625.00
.
$3,750.00
$2,625.00
Enterprise Level 1 - includes (Home Page, General Content (1 & 2), Login, Survey, Site Map,
Calendar & Calendar Event, Link, Category, Search, Attachment, Quick links, Quick Poll)
$15,000
Enterprise Level 2 - includes (Home Page, General Content (1 & 2), Login, Survey, Site Map,
Calendar & Calendar Event, Link, Category, Search, Attachment. Quick links, Quick Poll +
15K of add on modules)
Enterprise Level 3 - includes (Home Page, General Content (1 & 2), Login, Survey, Site Map,
Calendar & Calendar Event, Link, Category, Search, Attachment, Quick links, Quick Poll +
35K of add on modules)
$30,000
$50,000
xvi.
xvii.
xviii.
xix.
xx.
xxi.
xxii.
xxv.
xxvi.
xxvii.
xxviii.
xxix.
xxx.
xxxi.
xxxii.
xxxiii.
xxxiv.
xxxv.
Scanning Station - (Membership, Childcare, Equipment)
Wireless station
$500
$100
$500
$1,750
$1,750
$1,500
$1,500
$1000
Calendar Online
Kiosk
Tele Lines - R & POS Plus - 4 lines minimum
Golf - Payment over IP credit car processing
Golf - Drive~s License Capture
Active Customer Response user
ration, Customer 1m ort tool
$5,000
$5,000
$5,000
$5,000
$5,000
$5,000
$5,000
$5,000
$2,500
$2,500
$5,000
$5,000
$625.00
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aCtIveNETWORK
f
xxxvi. Bank-link $2,500
xxxvii. Databroker $5,000
"
xxxviii. Invoicing and Receivables $5,000
xxxix. Department Connector $10,000
xl. Activate POS $10,000
xli. Golf - T ele-Reg - 4 lines $6,000
xlii. Golf - Membership Database - (Golfer Database wlPhoto Imaging) $2,500
xliii. Golf - Loyalty Rewards $2,500
xliv. Golf - Online Member billing $2,500
xlv. Golf - Remote Palm Starter Interface $2;500
Golf - Event Management $2,500 ,
xlvi.
xlvii. Golf - Accounting Interface $2,500
xlviii. Golf - Food & Beverage Interface $2,500
xlvix. Golf - Property Management Interface $2,500
I. Golf - Range SelVant Interface $2,500
i. Golf - Multi Property Management Interface $1,500
ii. Active Customer Response (SelVer + 5 concurrent seats) $15,000
iii. Blog $2,500
iv. Digital Asset Gallery $2,500
v. Email Updates $2,500 '
vi. FAQ $2,500
vii. Google Site Map Integration $2,500
viii. Photo Gallery $2,500
vix. RSS $2,500
x. Application Form $5,000
xi. Conference Management $5,000
xii. Email Broadcast $5,000
xiii. . Google Map $5,000
xiv. Google Mini Page type (not including the selVer) $5,000
xv. Help Desk $5,000
xvi. Multi Site Map $5,000
xvii. People Finder $5,000
xviii. Project Team Dashboard $5,000
xvix. Request for proposal '$5,000
xx. Import Engine $20,000
xxi. Reaistration Online $5,000
xxii. ReselVation Online - (includes Availabilitv\ $5,000
xxiii. Membership Renewal Online $5,000
xxiv. League Scheduling Online $5,000
xxv. Multilinaual Online $5,000
xxvi. ' GIS -link $2,500
xxvii. POS Plus Online $10,000
xxviii. Online ~lient Access - (per 25 Concurrent Client Access Pack 1 $12,500
xxvix. Online Ticketing $5,000
xxx. Golf - Tee Time Online Direct $10,000
xxxi. Golf- Online Member Billing engine $2,000
xxxii. Active Customer Response Citizen Online $5,000
The Active Network, Inc.
Page 4 of 10
f
$17,750.00
As per the Cover Page, the amounts shown in the "Initial Software Licensing Cost" and "Total Module Support!
Maintenance Cost" columns of the Software Table are applicable only upon the date of entry into this Agreement, and
are subject to change thereafter in accordance with this Agreement's terms. '
',\
(i{
The Active Network, Inc.
Page 5 of 10
t'
Description of Levels of Annual Support and Maintenance.
1. Basic
Basic Annual Support and Maintenance includes the following:
· Unlimited toll free telephone support between 6:00 am and 5:30 pm Pacific Time ("PT") Mon - Fri
("Regular Support Hours") and
· Unlimited dial-in access support (see Notes a, band c below for qualificatiGm) for'''system down" issues
on 24 hour x 7 day per week basis ("Extended Support Hours")
· Limited report customization & query support (Le. calls of 15 minutes duration or less)
. Access to TAN's secure Web site
· Regular documentation and communications provided to the Customer
· New Releases and Versions as described in the Terms and Conditions
Notes:
a) Qualifying sites must have direct dial-in and Internet e-mail capability for Extended Support Hours.
b) Support calls placed during Extended Support Hours must be placed through an authorized contact
person.
c) Under Basic Annual Support and Maintenance, Support during Extended Support Hours is available only
for "system down" problems that result in the Customer's inability to fulfill critical business functions (Le.
those pertaining to core functionality such as processing registrations, memberships, rentals) and that
have no reasonable work-around. All other calls - including all calls related to upgrades - placed by the
Customer within Extended Support Hours will be billed to the Customer under a separate agreement.
2. Premium
Premium Support provides for the same services as Basic Annual Support and Maintenance, and
additionally provides that, subject to Notes a) and b) above, all Support available during Basic Support Hours
is also available during Extended Support Hours.
3. Holiday Hours
Canadian Office Holiday Hours
The Canadian TAN Support Desk will be open with reduced staff on the following statutory holidays: Good
Friday; Victoria Day (3ra Monday in May); Canada Day (July 1st); BC Day (1st Monday in August); Canadian
Thanksgiving (2nd Monday in Oct); Remembrance Day (November 11); Boxing Day (December 26). On the
following holidays, the Canadian TAN Support Desk will be closed: New Year's Day, Christmas Day, Labor
Day (1st MondflY in September).
United States Office Holiday Hours
The U.S'-TAN Support Desk will be closed: New Year's Day, Martin Luther King Day, President's Day,
Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Day after
Thanksgiving, Christmas Day, Day after Christmas, Friday before New Year's Day
,j
The Active Network, Inc.
Page 6 of 10
1. DEFINITIONS
1.1. Definitions - For the purposes of interpreting this Agreement, the
following terms will have the following meanings:
a) "Initial Installation " means the date upon which any of the
Software has first been installed on any server computer owned or
controlled by the Customer.
b) "Maintenance" means the provision of error investigation and
repair services and of new Versions and Releases, as described in
Section 3.1.
c) "Module" means a single type of Software referred to in any
particular line item of the Software Table, such that each such line
item refers to one, and only one, Module, regardless of the number
of copies referred to in such line item, except in line item xxxv to
which h) applies.
d) 'Phase' means the software, services, third party products,
maintenance, deliverables, and acceptance criteria to be
implemented between the Phase Start Date and the Phase End
Date including the associated costs.
e) 'Phase Start Date' means the date for the start of each Phase as
indicated on the Project Schedule
f) 'Phase End Date' means the date for the end of each Phase as
indicated on the Project Schedule
g) 'Project Schedule' means the document detailing the standalone
and separate implementation phases established through
discussions between the Customer and TAN once this agreement
has been signed.
h) "Release" means any release, update, patch, set of revisions, or
bug/permanent fix or temporary bypass solution released by TAN to
its customers generally during the term of this Agreement, which
provides enhancements and/or error corrections to the then-current
Version or Release, and where a new Version has been released
and no new Release has been released since the release of that
Version, that Version will also constitute a Release for the purpose
of determining whether Support or Maintenance is available with
respect to that Version. New Releases will be denoted by an
increase to the version number to the right of the decimal point such
as from Release 1.1 to Release 1.2.
i) "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 Software Table as being subject to Support and
Maintenance in connection with this Agreement, and any Versions
or Releases thereof provided by TAN, in executable form.
j) "Support" means the ongoing telephone and dial-in support and
problem resolution to assist the Customer in the use of the Software.
It may include but is not limited to response to inquiries regarding
the operation, installation, administration and general technical
assistance requested by the Customer. Support also includes,
provided that such assistance can be provided in fifteen (15)
minutes or less:
i) Limited assistance with report customization and the
development of custom queries, and
ii) Assistance to isolate the source of problems and/or to
troubleshoot difficultills 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;
The Active Network, Inc.
t'
. Basic Microsoft Corporation 'Windows' functionality
(e.g. using File Manager or Explorer);
. Modem configuration & setup;
. Data corruption due to Iat;k of disk space; and
. Loss of supervisor or other password
but expressly excludes any services or assistance relating to database
issues, unless acquired under an addendum to this Agreement.
k) "Support Start Date" means the day thirty (30) days after the
Phase End Date.
I) "System Utilities' includes the following Modules: Accounting
Processes, Central Login, ~og File, C.opy Database, Edit Database,
Maintain Database, MSDE Tool, Oracle Setup Utility, Query. Tool,
System Maintenance, Upgrade Database and View Components.
m) "Version" means a version of the Software providing a particular
functionality, while a new Version of the 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.
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. SUPPORT SERVICES
2.1. TAN will provide to the Customer Support for:
a) the Release of the Software that is from time to time the most
recently-reieased, generally available Release, and
b) for the twenty-four (24) months immediately following general
availability of the Release described in a), for the Release which
immediately precedes that Release. Support services will not be
provided for any non-current Version or Release after twenty-four
(24) months from the date of availability of the newer Version or
Release.
3. MAINTENANCE SERVICES
3.1. With respect to any Release of the Software supported at the time,
upon receipt of notification from the Customer's authorized contact
personnel of an apparent error in the Software, TAN will use commercially
reasonable efforts to promptly investigate the issue and determine
whether or not there is in fact an error and to advise the Customer that
either an error does not exist, or confirm that one does exist and what, if
any, work-around exists. Errors will 'be deemed to be any design or
programming error in the Software attributable to TAN which prevents the
Software from substantially complying with the functionality as set out in
the user documentation (on-line or hard-copy) delivered with the Software
and which materially affects the use, function or performance of the
Software. When errors are confirmed, TAN will use commercially
reasonable efforts to correct such errors and provide Customer with a
correction or service pack for the Software as soon as it is practical in
TAN's sole discretion and at TAN's expense.
3.2. TAN will provide to the Customer, either physical form by mail or
courier or in electronic form via the Internet, new Releases and Versions
(and appropriate documentation) as such Releases or Versions (and
documentation) become available, without additional charge.
4. ASSIGNMENT OF PRIORITIES FOR SUPPORT ISSUES
4.1. New support incidents are assigned one of the following four priority
levels, each with its respective standard completion target:
Call Priority Description Standard
Level Com letion Tar et
A - Down Fatal issues that result in the Within 12 hours.
Customer's inabilit to fulfill critical
Page 7 of 10
'lIi#I'MIlETWORK
business functions (i.e. those
pertaining to core functionality
such as processing registrations,
memberships, rentals) and that
have no reasonable work-around.
B - Urgent Serious issues significantly Within 24 hours.
impacting use of system but do not
prevent core functions (such as
processing registrations,
memberships, rentals) from being
fulfilled.
C - Normal All other issues, except those Within 36 hours.
classified as D Low.
D - Low Issues that are not time-sensitive None
or may be undertaken as customer
service initiatives outside the
sco e of this A reement.
Customer will request a ranking of the call priority when initially reporting
the incident. Should there be any disagreement over the priority assigned
to a particular incident, or any other aspect of its handling, by TAN
support staff, Customers are encouraged to first speak directly to the
support representative dealing with the issue in order to arrive at an
acceptable solution. In cases where escalation is desired or necessary,
please contact the Supervisor, Support Services with any concerns you
may have (phone 1-800-663-4991).
5. EXCLUDED SUPPLIES AND SERVICES
5.1. 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
Software was initially installed;
b) Services which are required to remedy problems which do not stem
from any defect in Software;
c) Services which are required to remedy problems caused by lack of
training of Customer's personnel improper treatment or use of the
Software;
d) Full report customization service;
e} Any and all hardware support, maintenance or troubleshooting
issues, except as described in section 1.1.j)ii), regardless of the
source of such hardware.
6. FEES AND PAYMENT
6.1. In consideration of the Support and Maintenance provide9
hereunder, Customer agreeS'to pay TAN the fees described on the Cover
Page, as modified explicitly pursuant to this Agreement. In the event the
Customer requires Support and Maintenance for additional Software, the
Customer agrees to pay TAN the additional Support and Maintenance
fees applicable based upon the fees then in effect, prorated from the date
of agreement to acquire\ such services to the Support Renewal Date.
Payment, other than amounts, which may be adjusted under these Terms
and Conditions, will be in accordance with the payment terms set out on
the Cover Page.
6.2. Unless the Software Table indicates otherwise, the fees charged
hereunder are applicable to Support and Maintenance of Software used
with respect to only a single database of Customer data. If the Customer,
after entering this Agreement, places in service one or more additional
databases to be used in relatiOn to the Software, then for each such
additional database an additional 25% of all Support and Maintenance
fees charged hereunder, exclusive of such extra database fees, will be
payable. The Customer will notify TAN as soon as reasonably possible of
the installation or use of any such additional database(s).
6.3. If at any time after the Customer has initially licensed any of the
Software from TAN, the Customer's right to receive Support and
Maintenance, or comparable services, from TAN under this Agreement or
a comparable agreement has lapsed for any reason whatsoever,
The Active Network, Inc.
voluntarily or otherwise, and the Customer wishes to receive Support and
Maintenance from TAN, the Customer will pay to TAN, prior to re-
instatement of Support and Maintenance services:
a) all fees that would have been payable he~eunder had this
Agreement been in force during the time during which Support and
Maintenance rights had so lapsed, and
7. ACCESS TO SYSTEM AND OTHER CUSTOMER OBLIGATIONS
7.1. Customer will provide, at no cost to TAN:
a) sufficient space to allow TAN personnel on the Customer's site to
perform the on-site Services acquired hereunder;
b) office supplies and services such as photocopying, facsimile and
telephone access;
c) without limiting a), education aml t!ai.ning facilities adequate to the
training services acquired' hereunder, including classroom space,
networked PCs (minimum 1 PC for every two training participants),
networked printing capability, computer display/projection facilities,
and flip chart or whiteboard, plus markers and other ancillary
supplies;
d) subject to the security requirements of the Customer and. in
accordance with the Customer's Vendor VPN Access POliCY,
access to the Customer's system via an internet connection to
enable TAN or its designated representative to perform any of the
obligations placed upon TAN by this Agreement.; and
e) subject to the security requirements of the Customer and in
accordance with the Customer's Vendor VPN Access Policy,
remote dial upflnternet access methods approved by TAN to allow
TAN to remotely diagnose and correct errors in the Software and
provide other Services.
7.2. Without limiting the Customer's obligations, Customer will:
a) use its best efforts to upgrade to any new Release or Version of the
Software as soon as possible after becoming aware of its
availability;
b) ensure that at all times at least one current staff person of the
Customer, who is the Customer contact person named on the Cover
Page and per c), has been fully trained on the Software;
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 the Customer may change upon 14 days prior notice; and
d) provide particulars of the Customer's system configuration in
sufficient detail to allow TAN to effectively provide Services
hereunder.
8. REPRESENTATIONS AND WARRANTIES
8.1. Insurance - TAN represents and warrants that it does and will at all
times during the term of this Agreement maintain general liability
insurance as described in the Certificate of Insurance.
8.2. Limited Warranty of Services - TAN warrants that all services
provided hereunder will be performed in full confor~ity with the
Agreement, with the skill and care which would be exercised by those
who perform similar services at the time the services are performed, and
in accordance with accepted industry practice. In the event of a breach of
the express warranties contained herein and/or in the event of non-
performance and/or failure of TAN to perform the services in accordance
with the Agreement, TAN will, at no cost to Customer, re-perform or
perform the services so that the services conform to the warrarities.
9. EXCLUSION OF OTHER WARRANTIES AND LIMITATION OF
LIABILITY
9.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE
WARRANTIES SET OUT IN SECTION 8.1 AND 8.2 ARE IN LIEU OF
ALL OTHER WARRANTIES, AND THERE' ARE NO OTHER
WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
GUARANTEES OR ANY KIND WHATSOEVER, EITHER EXPRESS OR
IMPLIED BY LAW (in contract or tort) OR CUSTOM, INCLUDING, BUT
NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, FITNESS
t
Page 8 of 10
8CtiveNETWORK
FOR PURPOSE, CORRESPONDENCE TO SAMPLE, TITLE, DESIGN,
CONDITION, OR QUALITY.
9.2. NO INDIRECT DAMAGES -IN NO EVENT WILL TAN BE LIABLE
TO CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT
DAMAGES OR LOSSES (in contract or tort) IN CONNECTION WITH
THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES
FOR LOST PROFITS, LOST SAVINGS, OR INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
9.3. 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), THEN:
a) THE AGGREGATE LIABILITY OF TAN FOR ALL DAMAGES,
INJURY, AND LIABILITY INCURRED BY CUSTOMER AND ALL
OTHER PARTIES IN CONNECTION WITH THIS AGREEMENT
WILL BE LIMITED TO AN AMOUNT EQUAL TO THE CHARGES
PAID TO TAN FOR THE SERVICES WHICH GAVE RISE TO THE
CLAIM FOR DAMAGES; AND
b) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR
PROCEEDING AGAINST TAN ARISING OUT OF THIS
AGREEMENT OR RELATING TO RELEASES OR SERVICES
MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION HAS
ARISEN.
9.4. SEPARATE ENFORCEABILITY - SECTIONS 9.1, 9.2 AND 9.3 ARE
TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH
BE INDIVIDUALLY ENFORCEABLE.
10. TERM
10.1. Term - The term of this Agreement will commence on the Support
Start Date and, subject to termination as provided herein, will continue
until the following Support Renewal Date, after which it will be
automatically renewed for subsequent one year terms on the same terms
and conditions as set out herein (with the exception of the fees payable
which may be revised by TAN in accordance with this Agreement) upon
TAN rendering an invoice therefor unless terminated by the Customer at
least ninety (90) days prior to the Support Renewal Date upcoming from
time to time.
11. TERMINATION
11.1. 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 from thenon-defaulting party;
b) at the option of either party if the other party becomes insolvent or
bankrupt or makes an assignment for the benefit of creditors, or if a
receiver or trustee in bankruptcy is appointed for the other party, or if
any proceeding in bankruptcy, receivership, or liquidation is
instituted against the other party and is not dismissed within 30 days
following commenc€ment thereof;
c) at TAN's option upon the expiry of sixty days following issuance by
TAN of an invoice to the Customer for fees payable under this
Agreement and such invoice remaining unpaid, provided that TAN
has prior to terminating under this provision provided the Customer
with at least ten days' written notice of such non-payment, which
minimum 10-day period may expire before, simultaneously with, or
after the 60 day period; or~
d) at either party's option if the other party assigns or attempts to assign this
Agreement other than as expressly permitted by this Agreement; provided
that these rights of termination will be in addition to all other rights and
remedies available to the parties' for any breach or default
hereunder.
11.2. Suspension of Obligations - If either party should 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
The Active Network, Inc.
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, but this Section will not
permit the Customer to suspend its obligation to make payments owing in
respect of Support and other Software Services. ·
12. GENERAL
12.1. Complete Agreement; Modification, - ThTs Agreement, as modified
and affected by TAN's standard Software license fees and the terms of
any agreement between TAN and the Customer relating to licensing of
Software (as opposed to the mere provision of Software, to which this
Agreement relates in respect of Releases and Versions), is the complete
and exclusive statement of the Agreement between the parties with
respect to the subject matter contained herein and supersedes and
merges all prior representations, proposals, understandings and all other
agreements, oral or written, express or implied, between the parties
relating to the matters contained herein. This Agreement may not be
modified or altered except by written instrument duly executed by both
parties except that TAN may fill future purchase or other orders for further
goods or services available under this Agreement, and if TAN does so the
provisions of this Agreement will contain the only commercial terms
applicable to such transaction despite such order stating otherwise.
12.2. Force Majeure - Dates or times by which either party is required to
perform under this Agreement will be postponed automatically to the
extent that any party is prevented from meeting them by causes beyond
its reasonable control. '
12.3. 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 ovemight 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 Canadian mails (or if the Customer is resident outside
Canada and is rendering the notice, in the mails of that country), postage
pre-paid, certified or registered, retum receipt requested, and addressed
to the parties as indicated on the face'of this Agreement for TAN and
below for the Customer, and receipt of any such notice will be deemed to
be effective as of the third busin'ess day following such deposit.
All notices required hereunder to the Customer shall be given in writing to the
following addresses' or such other addresses as the parties may designate by
written notice:
t.
Tameka Allen, IT Director
530 Greene Street A-101
Augusta, GA 30911
T: 706.821.2522 r
F: 706.821.2530
Copies to:
Fred Russell, City Administrator
530 Greene Street, Room 801
Augusta, GA 30911
T: 706.821.2400
12.4. Governing Law - This Agreement shall be govemed by and construed in
accordance with the laws of the State of Georgia. All claims, disputes and other
matters in question between the City and the Vendor arising out of, or relating to,
this Agreement or the breach thereof, shall be decided in the Superior Court of
Richmond County, Georgia. Vendor, by executing this Agreement, specifically
consents to venue and jurisdiction in Richmond County, Georgia and waives any
rig ht to contest jurisdiction and venue in said Court.
12.5. Non-Assignability - This Agreement is not assignable by the
Customer, and any assignment, purported assignment or attempt to
assign by the Customer will be a material breach of this Agreement and
will further be void. TAN may assign its Support or Maintenance
obligations under this Agreement to TAN's system integrators or resellers
or pursuant to a merger or sale of substantially all of TAN's assets.
Page 9 of 10
'.eJI_NETWO/lK
12.6. Survival - Sections 6.3, 9 and 12 will survive termination and
expiration of this Agreement.
12.7. Attomey 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.
t'
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The Active Network, Inc.
Page 10 of 10
Tentative Project Schedule (including acceptance criteria)
Subject to change based on project approval by the Augusta Commission and customer/user availability. t'
This document (the "Project Schedule") consists of the:
a. Project Phases,
b. Deliverables, and
c. Acceptance Criteria
and relates to the Software License and Software Services Agreement executed between the undersigned
customer ("Customer") and The Active Network, Ltd. ("TAN").
"
Project Phases and Acceptance Criteria
PHASE 1 - Database Installation, Reservations (onsite) .
ImplementatIon Dates
Phase Start Date 26-Mar-07 TBA
Phase End Date 2-Apr-07 TBA
Description Software Services Maintenance Third Party Totals
(Schedule A) (Schedule B) (Schedule C) (Schedule D)
Database Installation $ - $ - $ - $ - $ -
Reservations $ 10,500.00 $ 4,800.00 $ 2,625.00 $ - $ 17,925.00
Begin Registration set up $ 10,500.00 $ 1,200.00 $ 2,625.00 $ - $ 14,325.00
Remote Documentation $ - $ 500.00 $ - $ - $ 500.00
Totals $ 21,000.00 $ 6,500.00 $ 5,250.00 $ - $ 32,750.00
Deliverables See Deliverables Worksheet (attached)
Acceptance Criteria See Acceptance Criteria Worksheet (attached)
PHASE 2 - Registration, Memberships (Onsite)
Implementation Dates
Phase Start Date 9-Apr-07 TBA
Phase End Date 16-Apr-07 TBA
, Description Software Services Maintenance Third Party Totals
,. (Schedule A) (Schedule B) (Schedule C) (Schedule D) ;
Completion of Registration $ - $ 3,600.00 $ - $ - $ 3,600.00
Memberships $ 10,500.00 $ 2,400.00 $ 2,625.00 $ 1,523.00 $ 17,048.00
Remote Documentation $ - $ 500.00 $ - $ - $ 500.00
Totals ',\ $ 10,500.00 $ 6,500.00 $ 2,625.00 $ 1,523.00 $ 21,148.00
Deliverables See Deliverables Worksheet (attached)
Acceptance Criteria See Acceptance Criteria Worksheet (attached)
PHASE 3 - Point of Sale (Remote)
Phase Start Date
Phase End Date
23-Apr-07
27-Apr-07
Implementation Dates
TBA
TBA
Description Software Services Maintenance Third Party Totals
(Schedule A) (Schedule B) (Schedule C) (Schedule D)
Point of Sale $ 15,000.00 $ 1,600.00 $ 3,750.00 $ 1,353.00 $ 21,703.00
Documentation $ $ 250.00 $ $ $ 250.00
Totals
Deliverables
$ 15,000.00 $ 1,850.00 $
See Deliverables Worksheet (attached)
3,750.00 $
1,353.00 $ 21,953.00
Acceptance Criteria
See Acceptance Criteria Worksheet (attached)
PHASE 4 - League Scheduling (Remote)
Implementation Dates
Phase Start Date 23-Apr-07 TBA
Phase End Date 27-Apr-07 TBA
-
Description Software Services Maintenance Third Party Totals .
(Schedule A) (Schedule B) (Schedule C) (Schedule D)
League Scheduling $ 10,500.00 $ 1,600.00 $ 2,625.00 $ - $ 14,725.00 ,
Documentation $ - $ 250.00 $ - $ - $ 250.00
Totals $ 10,500.00 $ 1,850.00 $ 2,625.00 $ - $ 14,975.00
Deliverables See Deliverables Worksheet (attached)
Acceptance Criteria See Acceptance Criteria Worksheet (attached)
PHASE 5 - Reports (remote)
Implementation Dates
Phase Start Date 23-Apr-07 TBA
Phase End Date 27-Apr-07 TBA
Description Software Services Maintenance Third Party Totals
(Schedule A) (Schedule B) (Schedule C) (Schedule D)
Reports $ 2,500.00 $ 800.00 $ 625.00 $ - $ 3,925.00
Totals $ 2,500.00 $ 800.00 $ 625.00 $ - $ 3,925.00
Deliverables See Deliverables Worksheet (attached)
Acceptance Criteria See Acceptance Criteria Worksheet (attached)
,
PHASE 6 - Hosted Internet Registration (Remote)
Implementation Dates
Phase Start Date ',\ 14-May-07 TBA
Phase End Date 18-May-07 TBA
Description Software Services Maintenance Third Party Totals
(Schedule A) , (Schedule B) (Schedule C) (Schedule D)
Hosted Internet Registration. $ - $ 3,960.00 $ - $ 430.00 $ 4,390.00
Documentation $ - $ 800.00 $ - $ -
Totals $ 52,500.00 $ 9,120.00 $ 13,125.00 $ 430.00 $ 75,175.00
Deliverables See Deliverables Worksheet (attached)
Acceptance Criteria See Acceptance Criteria Worksheet (attached)
PHASE 7 - Hosted Payment Server (Remote)
Implementation Dates
Phase Start Date 14-May-07 TBA
Phase End Date 18-May-07 . TBA
.
Description Software Services Maintenance Third Party Totals
(Schedule A) (Schedule B) (Schedule C) (Schedule D) .
Hosted Payment Server $ - $ 660.00 $ - $ - $ 660.00
Totals $ - $ 660.00 $ - $ - $ 660.00
Deliverables See Deliverables Worksheet (attached)
Acceptance Criteria See Acceptance Criteria Worksheet (attached)
PHASE 8 - Finance-link (Remote) .
Implementation Dates
Phase Start Date 21-May-07 TBA
Phase End Date 25-May-07 TBA
Description Software Services Maintenance Third Party Totals
(Schedule A) (Schedule B) (Schedule C) (Schedule D)
Finance-link $ 2,500.00 $ 2,640.00 $ 625.00 $ - $ 5,765.00
Totals $ 2,500.00 $ 2,640.00 $ 625.00 $ - $ 5,765.00
Deliverables See Deliverables Worksheet (attached)
Acceptance Criteria See Acceptance Criteria Worksheet (attached)
,
Change Order Process
Changes to the Project Schedule will require an amendment to the Project Schedule Agreement.
The parties hereto each acknowledge that they have read, understand and agree to be bound by this Agreement.
Project Manager
Date
Customer Name
Address
Facsimile \
The Active Network, Ltd.
Project Sponsor
Date
@
activeNETWDRK
Third Party Product Purchase Agreement (Schedule D)
This document (the "Agreement"), consisting of:
a. the cover pages (referred to collectively as the "Cover Page" if and only if executed as the cover page to the
complete Agreement, and otherwise subject to the Terms and Conditions),
b. the attached Terms and Conditions of TAN Third Party Product Purchase Agreement ("Terms and Conditions"),
and '
c. any additional purchase order documentation delivered to TAN by the Customer. conmitutes the entire agreement
between the undersigned customer ("Customer") and The Active Network, Inc. ("TAN") whereby, and TAN and
the Customer hereby agree that, TAN will provide to the Customer the Third Party Products described in this
Agreement, for prices as described in the Third Party Products Table below as modified pursuant to the Terms
and Conditions. Any apparent contradiction among this Cover Page, the Terms and Conditions and any
additional purchase order documentation delivered to TAN by the Customer is to be resolved by giving priority to
the Terms and Conditions, followed by the additional purchase order documentation, and then the Cover Page.
Third Party Products Table: Third Party Products Description, Volumes and Prices
19
2
1
o
4
4
2
4
1
4
4
19
2
5
19
2
$390.00
$366.00
$80.00
$430.00
$1,301.00
$120.00
$37.00
$3.00
$4.00
$101.00
$121.00
$172.00
$144.00
$720.00
$71.00
$57.00
Total Cost:
$7410.00
$732.00
$80.00
$0.00
$5,204.00
$480.00
$74.00
$12.00
$4.00
$404.00
$484.00
$3,268.00
$288.00
$3,600.00
$1,349.00
$114.00
$23,503.00
Shipping Details
If this page is being provided by the Customer as part of purchase order documentation as described in section 2.2 of
the Terms ari\d Conditions, the desired date of receipt of the shipment of Third Party Products referred to herein is:
{The remainder of this page is intentionally BLANK}
..
www.activecommunities.com
18006611196
{'
activellETWORK
t'
. -
The parties hereto each acknowledge that they have read, understand and agree to be bound by this Agreement, or if
this page is delivered by the Customer as purchase order documentation pursuant to section 2.2 of the Terms and
Conditions, by the terms of this page as modified by the Agreement. -
Augusta, GA
Zg" ~O7-
Full Legal Customer Name
530 Greene St
Address
Augusta, GA 30911
706-821-2530
Facsimile
The Active Network, Inc.
Date
{The remainder of this page is intentionally BLANK}
.~
~
The Active Network, Inc.
, Page 2 of 5
activeNETwORK
Terms and Conditions of Third Party Proctuct Purchase Agreement
t
1, INTERPRETATION
1.1. Definitions - For the purposes of interpreting this Agreement, the
following terms will have the following meanings:
a) "Agreement" means this The Active Network Inc. Third Party
Product Purchase Agreement.
b) "TAN" means The Active Network Inc.
c) "Customer" means the legal entity other than TAN entering this
Agreement.
d) "Related Documentation" means any end user specifications,
manuals, instructions, and other materials, and any copies of
any of the foregoing, in any medium, related to the Third Party
Products and supplied by TAN to the Customer with the Third
Party Products.
e) "Third Party Products" means those hardware, firmware and/or
software products, provided to TAN by third parties, listed on the
Cover Page, 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.
~ "Third Party Products Table" means the table on the Cover
Page.
g) 'Warranty Period" means, in relation to any particular Third
Party Products, the 90 days immediately following delivery of
that Third Party Product to the Customer.
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. PURCHASE AND SALE: SECURITY; DELIVERY
2.1. Purchase Commitment and Price - TAN hereby agrees to sell to
Customer, and Customer hereby agrees to purchase from TAN, the
Third Party Products listed in the Third Party Products Table in the
volumes and at the prices described therein, subject to these Terms
and Conditions.
2.2. Delivery - TAN will ship all or any part of the Third Party
Products to the Customer as soon as reasonably possible (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, and
acceptance of the terms thereof by TAN, of a purchase order from the
Customer specifying the particular Third Party Products sought, the
number of such Third Party Products sought, the price payable
therefore, and the desired date and location of delivery. Any such
purchase order must, at a minimum, include a page, in the form of the
Cover Page, modified to indicate the information described above
relating to the particular shipment, executed by the Customer. In any
case, all shipments are F.O.B. Shipping Point.
2.3. Changes by Customer4o Delivery Schedule - Following delivery
by the Customer of any purchase order documentation described in
section 2.2, no changes by the Customer to the shipment schedule
described therein will be permitted unless TAN is notified thereof in
:-vriting at least ninety (90) days in advance of the delivery date sought
In such purchase order documentation.
2.4. Acceptance of Purchase Orders - Purchase orders delivered by
the Customer to TAN pursuant to are not binding upon TAN until
The Active Network, Inc.
accepted by TAN in writing. In any case, despite any indication to the
contrary contained in any such purchase order documentation, no
terms or conditions on purchase order ,gocumentation issued by the
Customer, other than the information required pursuant to section 2.2,
will be binding upon TAN, nor will any such terms or conditions
modify or supplement this Agreement in any way, notwithstanding the
fact that TAN may accept or otherwise approve such purchase
orders. TAN reserves the right to refuse any such purchase order for
any reason not contrary to this Agreement, including without limitation
pricing differences as described iA section 3.2.
2.5. Additional Third Party Products - The Customer may' purchase
Third Party Products in addition to those listed in the Third Party
Products Table 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
Third Party Products Table on the date of execution of the Cover
Page subject to:
2.6. the price for such additional Third Party Products being subject
to agreement between the parties each in their own absolute
discretion, and '
a) TAN having a right to discontinue delivery of such additional
Third Party Products upon at least ninety (90) days written notice
to the Customer without any liability to the Customer whatsoever
for such discontinuance.
2.7. Charge On/Security Interest in Third Party Products - TAN shall
have a charge against! security interest in all Third Party Products,
and all proceeds arising therefrom, until Customerhas paid TAN in
full for, all amounts owing from Customer to TAN in connection with
the particular shipmentof which any Third Party Products form a part.
Customer shall execute or cause to be executed all instruments and
do or cause to be done all acts that TAN, acting reasonably, requires
to effect, perfect, register or record such charges/security interests. In
the event of default in payment or other breach by Customer, TAN
shall, in addition to all other rights afforded by law, have all of the
rights and remedies of a secured creditor' under the Personal
Property Security Act of the jurisdiction in which the Third Party
Products is situate or Article Nine of the Uniform Commercial Code,
as applicable.
3. CHARGES AND PAYMENTS
3.1. Prices - The pricing applicable to Third Party Products is as set
out on the Cover Page, as modified under this Agreement.
3.2. Pricing Variability - The Customer acknowledges that:
a) the pr!ces described in the Third Party Products Table are
applicable for six (6) months after the date of execution hereof,
and
b) such prices are based upon the Customer taking delivery of the
full number of any particular' Third Party Product listed in the
Third Party Products Table in a single shipment and the
Customer hereby agrees that after the expiry of such initial six-
month period, or in case of the Customer seeking, in a particular
shipment, delivery of less than all of the Third Party Products of
a particular type listed on the Third Party Products Table, the'
actual prices may be higher. Prior to shipment of any Third
Party Products which would be subject to pricing which differs
Page 3 of 5
, ae6veNETwORK
Terms and Conditions of Third Party Product Purchase Agreement
c
shall make all records, not exempt, available for inspection and copying
as required by law. TAN shall clearly mark any infonmation provided to
Customer which TAN contends is Proprietary Inlormation. TAN shall
notify Customer immediately of any Open Records request arising out of
this contract and shall provide to Customer a copy of any response to the
same.
from that described on in the Third Party Products Table, TAN
will notify the Customer of any such different pricing and the
Customer will accept such different pricing, as mutually agreed
between the Customer and TAN, in writing.
3.3. Taxes and Other Charges - The Customer will pay all shipping &
handling costs and all applicable sales, use, withholding and excise
taxes, and any other assessments against the Customer in the nature
of taxes, duties or charges however designated on the Third Party
Products, on or resulting from this Agreement, exclusive of taxes
based on the net income of TAN.
3.4. Currency - All prices shown or otherwise referred to in or in
connection with this Agreement are in the currency of the country in
which the Customer is located as described on the Cover Page.
3.5. Invoices - TAN will invoice the Customer for applicable amounts
upon shipment of any Third Party Products. All invoices are payable
within 30 days of receipt thereof, and such receipt is deemed to occur
as though such invoices were notices sent pursuant to section 9.3 of
the Terms and Conditions unless such invoices physically accompany
the shipped Third Party Products in which case receipt is deemed to
occur upon the date of actual delivery of such shipment to the
Customer.
4. PROPRIETARY RIGHTS
4.1. Third Party Proprietary Rights and Indemnity by Customer - The
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. The 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 which has legal control of
those rights, and the 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 the Customer hereunder has been installed, used
or otherwise treated by the Customer or any client or customer of the
Customer in violation of the proprietary rights of any third party, or on
an allegation that the Customer or any client or customer of the
Customer has disclosed or used any confidential business or
technical information connected with any Third Party Product,
provided that TAN will notify the Customer in writing promptly after
the claim, suit or prdceeding is known to TAN and will give the
Customer information and such assistance as is reasonable in the
circumstances. The Customer will have sole authority to defend or
settle any such claim at the Customer's expense. The 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.
4.2. Third Party Products" which are Software - The 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 Iicense(s) of the persons other than TAN who possess
the rights to control such possession, installation and use.
4.3. TAN acknowledges that this Agreement and certain documentation
may be subject to the Georgia Open Records Act (O.C.G.A. 9 50-18-70,
et seq.). TAN shall cooperate fully in responding to such requests and
The Active Network, Inc.
5. SERVICES
5.1. Despite any other provision of this Agreement, TAN is not
required to provide any services whatsoever under this Agreement.
The Third Party Products are eligible for services to be provided by
TAN under separate agreement with TAN, should the Customer wish
to acquire such services.
6. WARRANTY
6.1. Warranty - TAN warrants to the 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.
6.2. Warranties Provided by Third Party Suppliers - Third Party
Products are warranted by the manufacturers thereof in accordance
. with the warranty statements accompanying delivery of the Third
Party Products, and the Customer agrees that the Customer will rely
solely on such Third Party Product warranties and the Customer shall
make no claim against TAN on account of any warranty, express or
implied, which may apply to any Third Party Product.
7. EXCLUSION OF WARRANTIES AND LIMITATION OF
LIABILITY
7.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE
WARRANTY SET OUT IN SECTION 6.1, AND THE
MANUFACTURERS' WARRANTIES, DOCUMENTATION FOR
WHICH ACCOMPANIES THE THIRD PARTY PRODUCTS AS
DESCRIBED IN 6.2 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 CON~RACT OR TORT) 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 THE OPERATION THEREOF WILL BE FREE
FROM INTERRUPTION OR ERRORS.
7.2. NO INDIRECT DAMAGES - WITHOUT LIMITING THE .
GENERALITY OF SECTIONS 7.1, 7.3 OR 7.4, IN NO EVENT WILL
TAN BE LIABLE TO THE CUSTOMER OR TO ANY OTHER PARTY
FOR INDIRECT DAMAGES OR LOSSES (IN CONTRACT OR
TORT) (EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF
SUCH DAMAGES) INCLUDING BUT NOT LIMITED TO DAMAGES
FOR LOST PROFITS, LOST SAVINGS, OR INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES.
7.3. LIMITS ON LIABILITY -DESPITE ANY OTHER PROVISION OF
THIS AGREEMENT, IF, FOR ANY REASON, TAN BECOMES
LIABLE TO THE CUSTOMER OR ANY OTHER PARTY FOR
DIRECT OR ANY OTHER DAMAGES FOR ANY CAUSE
WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION
Page4 of 5
11IIII"'"
, ,
"
. activeNETWORK
Terms and Conditions of Third Party Product Purchase Agreement
r
(IN CONTRACT OR TORT), THEN TAN'S ENTIRE LIABILITY AND prior communications between the parties, concerning that subject
THE CUSTOMER'S EXCLUSIVE REMEDY WILL BE, AT TAN'S matter. .
OPTION, TO REPAIR, PROVIDE AN EQUIVALENT REPLACEMENT 9.2. Force Majeure - Dates or times by which either party is required
FOR OR REFUND THE PURCHASE PRICE OF ANY THIRD PARTY to perform under this Agreement will b~ postponed automatically to
PRODUCT WHICH HAS CAUSED THE DAMAGES RESULTING IN the extent that any party is prevented from meeting them by causes
SUCH LIABILITY OF TAN WHICH THIRD PARTY PRODUCT IS (other than inability to pay) beyond its reasonable control.
RETURNED, SHIPPING COSTS PREPAID, PROPERLY. 9.3. Notices - All notices and requests in connection with this
PACKAGED WITH THE DULY AUTHORIZED TAN RETURN Agreement will be given to the respective parties in writing and will be
PERMIT, TO TAN'S DESIGNATED OFFICE DURING THE THIRD deemed given as of the first business day of the notified party
PARTY WARRANTY PERIOD. following the day the notice is faxed or sent via overnight courier,
7.4. THIRD PARTY PRODUCTS MODIFICATION - ANY THIRD providing a hard copy acknowledgment of such successful faxed
PARTY WARRANTY OBLIGATIONS OR ANY TAN WARRANTY notice transmission or evidence of such couriering, as applicable, is
OBLIGATIONS HEREUNDER WILL BE VOID IN THE EVENT retained. Notice may also be deposited in the US or Canadian mails
CUSTOMER MODIFIES THE THIRD, PARTY PRODUCT IN (or if the Customer is resident outside US or Canada and is rendering
QUESTION OR USES ANY ATTACHMENT, FEATURE, OR DEVICE the notice, in the mails of that country), postage pre-paid, certified or
WHICH IS NOT SPECIFIED AS AN APPROVED ATTACHMENT IN registered, return receipt requested, and addressed to the parties as
THE RELATED DOCUMENTATION FOR THE THIRD PARTY indicated on the face of this Agreement for TAN and below for the
PRODUCT WITHOUT FIRST OBTAINING TAN'S WRITTEN Customer, and receipt of any such notice will be deemed to be
APPROVAL. effective as of the third business day following such deposit.
75 SEPARATE ENFORCEABILITY - SECTIONS 7.1 THROUGH . ,
7'4' ARE TO BE CONSTRUED AS SEPARATE PROVISIONS AND All notices required hereunder to the Customer shall be given In
WILL EACH BE INDIVIDUALLY ENFORCEABLE. writi~g to the f~lIowing ad~resses .or such other addresses as the
parties may deSignate by written notice:
8. TERMINATION Tameka Allen, IT Director
8.1. Termination - This Agreement will terminate: 530 Greene Street, A-101
a) at the option of either party if the other party materially defaults Augusta, GA 30911
in the performance or observance of any of its obligations T: 706.821.2522
hereunder and fails to remedy the default within 30 days after F: 706.821.2530
receiving written notice thereof; and
b) without limiting a), at the option of TAN if the Customer breaches
section 3 of this Agreement, including without limitation by failure
to pay any invoice within 30 days of receipt thereof 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.
8.2. Suspension of Obligations - If either party should 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 nori~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, but this
section will not permit the Customer to suspend its obligation to make
payments owing in re~pect of Third Party Products already brought
into stock by TAN on account of the Customer having provided TAN
with purchase order documentation in relation thereto. In the event
this Agreement is terminated by TAN due to a default by Customer,
then any license granted to Customer with respect to any Third Party
Product shall terminate if full payment for such license is not delivered
to TAN within 30 days from the date of termination.
9. GENERAL <t
9.1. Complete Agreement - This Agreement including all additional
purchase order documentation provided by the Customer to TAN and
accepted by TAN according to this Agreement constitutes the
complete and exclusive statement of the agreement between TAN
and the Customer relating to the subject matter hereof, and
supersedes all oral or written proposals, prior agreements and other
The Active Network, Inc.
Copies to:
Fred Russell, City Administrator
530 Greene Street, Room 801
Augusta, GA 30911
T: 706.821.2400
9.4. Governing Law - This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia. All
claims, disputes and other matters in question between the City and
the Vendor arising out of, or relating to, this Agreement, or the breach
thereof, shall be decided in the Superior Court of Richmond County,
Georgia. Vendor, by executing this Agreement, specifically consents
to venue and jurisdiction in Richmond County, Georgia and waives
any right to contest jurisdiction and venue in said Court.
9.5. Non-Assignability - This Agreement is not assignable by the
Customer. Any assignment, purported assignment or attempt to
assign by the Customer will be a material breach of this Agreement
and will be void.
9.6. Survival - Sections 4, 7 and 9 of this Agreement will survive
termination and expiration of this Agreement.
9.7 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.
Page 5 of 5
activeNETWORK
Hosted Global Services Aareement
t'
This Hosted Global Services Agreement ("Agreement") is made effective as of ,2007 and entered into betweer;)The Active
Network, Inc., a Delaware corporation, ("Active" or ''we" or "us") and Auousta.GA, a political subdivision of the State of Georgia, with its
place of business at 530 Greene Street, Augusta, GA U.S.A., 30911 ("you" or "your" or "Agency"). Active agrees to provide you the
Services (as defined below) subject to the following terms and conditions:
1. Services.
We will provide you with access to a fully-hosted version of Active's hosted product, "the Product", through our website. To assist us in
the successful implementation and promotion of the Services, you agree to provide us with certain information requested by us relating
to your organization. The Services and the functionalities and features of the Product and related consulting fees are more speCifically
described in Exhibit 1 attached hereto and made a part hereof.
2. License to Intellectual Prooertv/Promotion.
a) Active shall retain all right, tiUe and interest in and to the Product and its software, tra,demarks, service marks, logo and trade
names worldwide ("Intellectual Property") subject to a limited liCense necessary to perform this Agreement. You shall use the
Intellectual Property only as provided,and shall not alter the Intellectual Property in any way, or act or permit action in any way
that would impair Active's rights in its Intellectual Property. You acknowledge that your use of the Intellectual Property shall not
create in you or any other person any right, title or interest in or to such Intellectual Property. Any goodwill accruing from the use
of the Intellectual Property shall inure solely to the benefit of Active.
b) Active hereby grants to you a limited, non-exclusive, non-transferable license (i) to use the Product in accordance with Active's
specifications, and (ii) to display, reproduce, distribute and transmit in digital form Active's name and logo in connection with
promotion of the Services. You hereby grant to Active a limited non-transferable license to use, display, reproduce, distribute,
modify and transmit in digital or printed form information provided by you relating to your organization, including your
organization's name, trademarks, service marks and logo, in connection with the implementation and promotion of the Services
and the promotion of your organization. You will make reasonable efforts to promote and encourage adoption of the Services,
including displaying Active's name and logo in any newsletters, printed registration forms or mailings provided by you to
prospective participants.' ,
3. Information Security.
~ We will collect information, including names, addresses, credit card information and other information required by you, from individuals
registering for your Activities through the Website. Such information shall be stored on a secure remote server. You may access this
information at any time by downloading it from our servers using your private password and "login" identifier. If you are unable to
access your registrants' information' through the event director portion of the Website, upon request we will send such information to
you via e-mail, fax or airmail. You will be responsible for protecting the privacy and security of any information that you retrieve from our
servers and shall prevent any unauthorized or illegal use or dissemination of such information. All information collected by Active shall
be owned by you.
4. Privacv.
Each party shall comply with all applicable laws, regulations and guidelines (including each party's privacy policy) governing online
privacy in fulfilling its obligations hereunder and in collecting and using personal information about users of the Website.
5. Fees. ,
Transactions entered directly by participants through the Website will be assessed the customary s~rvice fee charged by Active to
online participants ("Service Charge"), as described below. Each online participant will pay the event fee charged by Agency plus a
Service Charge equal to 6.5% of the event fee plus $.50, with a minimum Service Charge of $2.00. If the event fee is between $150-
$500, the Service Charge will be 3.5% plus $5.00, and for fees above $500, the Service Charge will be 2.5% plus $10.00. Credit card
transactions entered by a member of the Agency on behalf of a participant and processed via Hosted Payment Server will be assessed
a Service Charge,\equal to 3.00%, with a minimum Service Charge of $1.00. We may change the Service Charge at any time and you
agree to such change unless you provide us with written objection to such change within 30 days from the date such change is first
implemented. We will be responsible for collecting all event fees charged by you and all Service Charges assessed by us. All event
fees, except Service Charges, are your exclusive property. Any event fees collected by us will be sent to you twice a month and
Service Charges shall be retained by us. You shall guarantee and pay to Active a minimum aggregate Service Charge of $1000 per
calendar quarter (the "Minimum Quarterly Service Charge"). You shall pay to Active the difference between such Minimum Quarterly
Service Charge and the actual Service Charges collected by us during such quarter, which will be billed at the end of each quarter
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.
6. Consultino Fees.
Consulting Fees are more specifically described in Exhibit 1. All fees set forth in this Agreement and in Exhibit 1 will be due within 30
days of invoice date. Each Fee is due on or prior to the 15th day of the first month of the billing period. In the event of delay in paying a
Fee, you shall reimburse Active for any legal fees incurred by Active in its collection efforts.
Page 1 of 4
:'
C'
7. Disclaimer of Warranty/Limitation of Liability.
Active expressly disclaims any warranty thatthe use of its Intellectual Property or the Services will be uninterrupted or "error free or that
the specifications will meet your requirements. The Intellectual Property and Services are provided to you on an "AS-IS" basis without
warranties of any kind, either express or implied, including without limitation warranties of merchantability or fitness for a particular
purpose. Active shall not be liable for indirect, incidental, consequential" or lost profit damages. Active'!!, total liability under this
Agreement is limited to the amount of registration fees retained and not distributed to you and Service Charges collected and retained
hereunder. '
8. Tenn and Tennination.
The tenn of this Agreement shall be for two (2) years from the date set forth below, with automatic renewals for one (1) year tenns
thereafter until either party gives written notice to tenninate this Agreement no less than ninety (90) days prior to the end of a tenn.
Either party may tenninate this Agreement upon a material breach by the other party if such breach iSJl9t .cured within thirty (30) days
following written notice to the breaching party. .
9. Reoresentations and Warranties.
Each party represents and warrants that it has the necessary and full right, power, authority and capability to enter into this agreement
and to perfonn its obligations hereunder; that it owns or controls the rights granted or licensed to the other party herein; that the
execution and performance of its obligations under this Agreement will not violate any known rights of any third party, any contractual
commitments or any applicable federal, state and local law or regulation; and that to its knowledge the marks, logos and intellectual
property licensed to the other party herein do not violate the proprietary rights of a third party.
10. Exclusivity
Active will be the sole and exclusive provider of the listed Services for your agency for the tenn of this Agreement, limited to your
Recreation and Parks Department and the specific purposes for which software licenses have been purchased by you.
11. Indemnification.
Each party shall indemnify and hold harmless the other party and its directors, officers, employees, affiliates and agents, against any
claim, demand, cause of action, debt or proceedings (whether threatened, asserted, or filed) and all related damages, losses, liabilities,
cost and expenses (including reasonable attorneys' fees), to the extent that: (i) it is based upon the indemnitor's breach of a
representation, warranty or obligation hereunder; (Ii) it arises out of the indemnitor's gross negligence or willful misconduct; or (Hi) it is
based upon the indemnitor's violation of any applicable federal, state or local law or regulation. You shall indemnify and hold hannless
Active against any claim or cause of action to the extent that it is based on injury to a participant in any of your Activities.
12. Mediation.
Should any dispute arise out of the tennination or abandonment of this Agreement, any party may request that it be submitted to
mediation. The parties shall meet in mediation within thirty (30) days of a request. The mediator shall be agreed to by the mediating
parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by the American Arbitration
Association, Judicial Arbitration and Mediation Service (JAMS) or other agreed-upon service. The mediator shall be selected by a
"blindfolded" process. The mediation shall take place in Augusta, Georgia.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be
pennitted to file a legal action arising out of the tennination or abandonment of this agreement without first meeting in mediation and
making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the
mediator, shall last until agreement is reached by the parties but not more than thirty (30) days, unless the parties extend the maximum
time by mutual agreement.
',\
13. Miscellaneous.
13.1. Complete Agreement - This Agreement constitutes the complete and exclusive statement of the agreement between TAN and the
Customer relating to the licensing of the Software, and supersedes all oral or written proposals, prior agreements and other prior
communications between the parties, concerning the subject matter of this Agreement.
13,2. Force Majeure - Dates or times by which either party is required to perfonn 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
(other than inability to pay) beyond its reasonable control.
~
13.3. 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 hardcopy acknowledgment of such successful faxed notice transmission or evidence of such couriering, as applicable, is
retained. Notice may also be deposited in the Canadian mails (or if the Customer is resident outside Canada and is rendering the
notice, in the mails of that country), postage pre-paid, certified or registered, return receipt requested, and addressed to the parties as
indicated on the face of this Agreement for TAN and below for the Customer, and receipt of any such notice will be deemed to be
effective as of the third business day following such deposit.
Page 2 of 4
,C activeNETWORK
All notices required hereunder to the Customer shall' be given in writing to the following addresses or such other addresses as the t'
parties may designate by written notice:
Tameka Allen, IT Director
530 Greene Street, A-101
Augusta, GA 30911
T: 706.821.2522
F: 706.821.2530
Copies to:
Fred Russell, City Administrator
530 Greene Street, Room 801
Augusta, GA 30911
T: 706.821.2400
13.4. Governing Law - This Agreement shall be governed by and construed in accordance with. the lews,of the State of Georgia. All
claims, disputes and other matters in question between the City and the Vendor arising out of, or relating to, this Agreement, or the
breach thereof, shall be decided in the Superior Court of Richmond County, Georgia. Vendor, by executing this Agreement, speCifically
consents to venue and jurisdiction in Richmond County, Georgia and waives any right to contest jurisdiction and venue in said Court..
13.5. Non-Assignability - Neither party may assign its rights or obligations arising out of this Agreement without the other party's prior
written consent, except that Active may assign this Agreement in connection with any sale of all or substantially all of its assets or any
other transaction in which more than fifty percent of its voting securities are transferred. Any assignment, purported assignment or
attempt to assign by the Customer will be a material breach of this Agreement and will be void.
13.6. Survival - Sections 2, 7, 10, 11 and 13 of this Agreement shall survive any termination or expiration of this Agreement.
13.7. 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.
The individuals signing below represent and warrant that they have the power and authority to bind the respective entities that they
represent.
706-821-2530
Facsimile
~ J If; (01
Date
Augusta, GA
Full Legal Customer Name
530 Greene St
Address
Augusta, GA 30911
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The Active Network, Inc.
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Date
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Page 3 of 4
activeNETWORK
Exhibit 1
(,
Hosted Product: Class Hosted Internet and Hosted Payment Server
"
E.i. Standard Consultants
E.ii. Senior Consultant I Pro'ect Planner
E.iii. Technical S ecialist
$75
$75
$75
Totals
Included on '
Schedule B
NOTE THA T RATES SHOWN INCLUDE ALL TRAVEL EXPENSES OTHER
THAN AIRFARE
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Page 4 of 4