HomeMy WebLinkAboutACTIVE NETWORK 1 - 2005AGREEMENT TERMINATION
Please complete this form when the attached agreement is no longer'in -6ffecct`
Return form to the Sr. Deputy Clerk ofthe Council (M -30)_ Call 647 =5238 ifyou hate'Ety
questions.
The agreement with AL'V-?- A), e-t ao X. No.A-aDD'-0 -511
was completed on la-I o `I , and final payment has been made.
Department:'? A-
Signature: l "GJ -V Ct1O
Bate: 14 � �L�
City of Santa Ana
Revised 8 -7 -03 Clerk of the Council
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aCtiVIONETWORK
INSURANCE ON FELL
WORK MAY PROCEED
UNTIL INSURANCE EXPIRES
CLERK OF COUNCIL_
DATE: S ,17 —0j
Software License Agreement
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 ")
d. the General Software Services Exhibit A
e. the Software Support and Maintenance Exhibit B
A- 2005 -054
constitutes the entire agreement between the City of Santa Ana, a charter city and municipal corporation duly
organized and existing under the Constitution and laws of the State of California ( "Customer") and The Active
Network N.A. Inc. ('TAN ") made and entered into this lr sr day of t4Oa ch., 2005 whereby, 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.
In the event of any conflict or inconsistency among documents related to this Agreement, said conflict or
inconsistency shall be resolved by giving precedence to this Software License Agreement. All Exhibits referenced
herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement.
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.O.B. the Customers offices.
D. No services (i.e. site preparation such as cabling and provision of electricity) are included in costs described
herein.
E. The following installment payment schedule is applicable (services payments are applicable as outlined in Exhibit
A and B); figures are percentages of total software table fees re: all Software licensed under this Agreement:
30 days after delivery/installation of the
Software
25%
30 days after completion of training for all
55%
Modules or Jul 1 st, 2005 — whichever is earlier
30 days after acceptance, per the City
20%
acceptance procedure or Sept 301", 2005—
whichever is earlier.
F. TAN will invoice the Customer for the amounts contemplated in paragraph E. 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.
G. The parties hereto each acknowledge that they have read, understand and agree to be bound by this
Agreement.
1 800 661 1196
ame0weNETWORK
Software Table: Licensed Software Modules
Module
Module Unit
Price
No. of Copies
of Module
Licensed
Total Module
Cost
Ppqqftg Modules (Asapolsted MtllHedmld9
i. Program Registration (Program Maintenance) $1,750
-
10
7�
17,500
ii. FlexReg (licensed only with Services and iv)
$500
1
500
iii. Memberships (Membership Maintenance)
$1,750
1
1,750
iv, Facility Booking (Facility Maintenance)
$1,750
7
12,250
V. QuickRez (licensed only with Services and iv)
vi. Point of Sale (POS Maintenance)
$1,750
vii. Sport Scheduling
$1,750
viii. Calendar
$500
1
500
X. Telephone Client Lo ins (min. 4 lines) (IVR Maintenance)
$1,750
biil4li�:` Licensing
X. Randomization
$5,000
A. Affinity
+
xii. CustomerSync
$5,000
xiii. PortalSync
$5,000
xiv. AssetSync
$5,000
xv. FinanceSync
$1,750
1
1,750
xvi. BrochureSync
$1,750
1
1,750
xvii. Multilingual (times total of items 1 and iv licenses)
$500
1 1
500
xviii. Telephone Program Registration & Voice Server
$5,000
xix. Payment Sewer (Credit and, Debit and Electronic Funds Transfer)
$5,000
XX Integrated Workstation Debit Card
$250
xxi. POS Touch Screen
$500
xxii. Kiosk
$1,750
Internet
xxiii. Internet Program Registration
$5,000
xxiv. Internet Facility Booking
$5,000
XXV. Maps
$2,500
xxvi. Internet Sports Scheduling
$5,000
xxvii. Internet Facility Availability
$5,000
xxviiL Internet Client Login (25 Concurrent Users errnitted per license
$5,000
77 7MM �77
system
xxix. System Utilities as defined in section 1.1.r) of the Te"s and Conditions
Otlw
xxx. Reports
$500
1 1
1 500
xxxi. Membership Scanning Station
$500
1
Sub-Total
Discount
Total Cost
The Active Network Ltd.. Page 2 of 9
aCtiWONETWORK Terms and Conditions of Software License Agreement
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" 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 to 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 N.A. Inc.
f) "Database Server" means the single server computer upon which the Enterprise Database is resident.
g) "Enterprise Database" means the MS SQL Server database files containing customer data (which is owned by Customer)
and which is accessed by the Software.
h) "Initial Installation" means initial installation of all Modules on any server computer owned or controlled by the Customer.
i) "Internet Client' means a remote device capable of using the Internet and either Internet Explorer 4.0 or higher or Netscape
Navigator 4.7 or higher to access selected Software on the Internet 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 Internet, 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
hardware specifications previously described to the Customer as applicable to the Software to be installed and used upon it.
1) "Maintenance Module" means any item of Software shown in the Software Table in parentheses adjacent to a type of
Operating Software.
m) "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 may or may not be granted hereby, except in line item xxx
to which r) applies.
n) "Operating Module" means any item of Software listed but not in parentheses in line items i through ix.
o) "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.
p) "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 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.
q) "Software Table" means the table of TAN Software Modules licensed hereunder, shown on the 3rtl page of this Agreement
immediately following the Cover Page.
r) "System Utilities" includes the following: Accounting 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.
s) "User" means a person who accesses and uses any of the Software to access, use or affect the Enterprise Database in any
manner whatsoever.
t) "Acceptance Procedure" means the process whereby the City verifies in writing that the software has been installed and
implemented, all user training has been completed, and the software is being used in live operation to process facility
reservations and activity registration on a daily basis. City will have deemed to have accepted the product if it has riot notified
TAN of said verification within ninety (90) days of initial installation.
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.
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) Operating Modules - For every Operating Module licensed pursuant to the Software Table the Customer may
i) Install the Operating Module upon as many Client Workstations as the Customer wishes, and
ii) Permit Users to use such Operating Modules to access the Enterprise Database on the Database Server provided that
only the number of copies of any particular Operating Module licensed pursuant to the appropriate line items may be in
Concurrent Use.
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aCtiWeNETWO K Terms and Conditions of Software License Agreement
iii) Purchase additional licenses at the rates set forth in the Software Table prior to Dec 318r, 2006.
b) Maintenance Modules - For every Operating Module licensed pursuant to the Software Table for which the Software Table
shows a corresponding Maintenance Module, the Customer may install and use such corresponding Maintenance Module
upon as many Client Workstations as the Customer wishes, with no limits with respect to the number of units of such
Maintenance Modules which may be in Concurrent Use.
c) System Features (Server Based Licensing) — Subject to d), the Customer may install one copy of each Module licensed
pursuant to line items x through xix on each of as many Client 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.
d) Exceptions Regarding Unlimited System Feature (Server Based Licensing)— Any Module licensed pursuant to:
i) line item xviii ( "Telephone Program Registration & Voice Server") 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 most, the number of lines of the
"Telephone Program Registration and Voice Server" Module licensed pursuant to line item ix;
ii) line item xix ( "Payment Server') may be in Concurrent Use by, at most, the number of lines of the Integrated Workstation
Debit Card Module, as applicable, licensed pursuant to line item xx.
e) System Features (User Based Licensing) — Payment Processing Modules —For each Module licensed pursuant to line
item xx the Customer may:
i) install such Module upon as many Client Workstations as the Customer wishes, and
ii) permit Users to use such Modules to pay for products and /or services available from the Customer through the use of
other Modules provided that only the number of copies of these Payment Processing Modules shown as being licensed
in line item xx may be in Concurrent Use.
f) Internet Licenses - For every Module licensed pursuant to line items xxi and xxii the Customer may:
i) install one copy of each such Module per license of such Module on one Internet Server, and
ii) subject to g), 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 "Internet Client Login" Module licensed pursuant to line item xxviii multiplied by
twenty -five (25).
g) The Customer hereby acknowledges that the mechanism utilized by the Software to control the number of Users or Internet
Clients which can simultaneously access and use Modules licensed per line items xxi and xxii is based upon the number of
Users who have at any time logged in to the Customers 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 xxviii to simultaneously access the Modules licensed per line items xxiii and
xxvii, 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.
h) Other Licenses (Reports) — For each Module licensed pursuant to line item xxx, 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 pursuant to line item xxx may be in Concurrent Use, and further only one copy may be in
Concurrent Use on any given licensed Client Workstation.
i) Other Licenses (Membership Scanning Station) — If the Customer has licensed the "Membership Scanning Station" Module
pursuant to line item xxxi, the Customer may install one copy of such Module on each of as many pass scanning stations as
the Customer has licensed copies of that Module as shown in line item xxxi.
2.2. Additional Copies - Customer will not make any copies of the Software, except as necessary for the installation permitted
hereby and except for:
a) copies of each Module licensed hereunder for training and testing purposes, and
b) one copy of each Module licensed hereunder 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 copy is made 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.
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21Ct/ViLr,'I'NETWORX Terms and Conditions of Software License Agreement
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 of TAN.
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 Customers 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 . 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
property rights, title or interest of TAN in and to any Software; or
a) obliterate, alter, or remove any proprietary or intellectual property notices from the Software in its physical or electronic forms.
4.1 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 or line item xxx ( "Information Management ") 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 that Software, 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.
5. WARRANTY
ti l- imited 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, 15 days after acceptance (in accordance with the City's Acceptance Procedure). TAN's sole
obligation and liability hereunder with respect to any failure to so perform will be remedy any non - conformity, which is reported to
TAN in writing by Customer within that warranty period. In the event TAN is unable to remedy such non - conformity within a
reasonable time, TAN will refund to Customer the license fee pertaining to the Software and this Agreement will be automatically
terminated,.
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
The Active Network Ltd. Page 5 of 9
aNCOVO NETWORK Terms and Conditions of Software License Agreement
LIMITING THE ABOVE, TAN DOES NOT WARRANT THAT ANY SOFTWARE PROVIDED HEREUNDER WILL MEET THE
REQUIREMENTS OF CUSTOMER OR 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
ACCIDENT 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, EXCEPTING LOSS OR DAMAGE FOR PERSONAL INJURY OR DAMAGE TO
TANGIBLE PROPERTY RESULTING FROM THE SOLE NEGLIGENCE OF TAN, IN CONNECTION WITH SOFTWARE
PROVIDED HEREUNDER OR IN ANY OTHER RESPECT RELATING TO THIS AGREEMENT.
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), EXCEPTING LIABILITY FOR PERSONAL INJURY OR DAMAGE TO TANGIBLE
PROPERTY, INCURRED IN CONNECTION WITH THIS AGREEMENT, 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
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
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
the Software.
7.3. Return of Software - In the event of termination of this Agreement for any reason whatsoever, Customer will immediately
return to TAN all physical copies of Software delivered by TAN to the Customer or otherwise in the Customers 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.
8. AUDIT AND MONITORING RIGHTS
8.1. TAN may, upon a minimum of 24 hours written notice to the Customer, attend upon the Customer's premises and verity that
the Software licensed pursuant to this Agreement is installed and being used only as permitted hereby. Such inspections may
occur a maximum of twice per calendar year, and will be performed only during the Customer's regular business hours and
conducted in a manner so as minimize to the extent reasonable any interference with the Customers 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.
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.
The Active Network Ltd. Page 6 of 9
Z WWONETWORK Terms and Conditions of Software License Agreement
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 and receipt of any such notice will be deemed to be effective
as of the third business day following such deposit.
9.4. Governing Law - This Agreement and performance hereunder will be governed by the laws of the jurisdiction where the
Database Server is situated excepting in the case of Louisiana when the laws of California will apply, or in the case of Quebec
when the laws of Ontario will apply.
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. Government Restricted Rights - The Software and documentation are provided with restricted rights. Use, duplication, or
disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c) (1)(ii) of The Rights in Technical Data
and Computer Software clause at DFARS 252.227 -7013, or subparagraphs (c) (1) and (2) of the Commercial Computer Software
- Restricted Rights at 48 CFR 52.227 -19, as applicable. The Contractor/ Manufacturer is The Active Network N.A. Inc., Suite 300,
6400 Roberts Street, Burnaby, British Columbia, Canada, V5G 4C9.
10.— INDEMNITY AND INSURANCE
Section 10.01 Indemnification, Defense, Hold Harmless
Each party shall protect, defend, indemnify and save and hold harmless the other party, its officers, officials, employees, and
agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation
of any nature) arising out of or in connection with the indemnifying party's negligence or willful misconduct or the indemnifying
party's breach of its obligations contained in this agreement except such loss or damage which was caused by the negligence or
willful misconduct of the indemnified party. In the event the indemnified party is named as codefendant, the indemnifying party
shall notify the indemnified party of such fact and shall represent the indemnified party in such legal action unless the indemnified
party undertakes to represent itself as codefendant in such legal action, in which event the indemnified party shall bear its own
litigation costs, expenses and attorney's fees. The indemnified party may make all reasonable decisions with respect to its
representation in any legal proceeding.
Section 10.02 Insurance
In addition to the TAN's covenant to indemnify and hold harmless Customer, TAN shall obtain and furnish to Customer, a policy of
commercial general liability insurance including motor vehicle coverage covering the License Area and Tan's Facilities. The policy
shall indemnify Tan and Customer, their officers, agents and employees, while acting within the scope of their duties, against any
and all claims arising out of or in connection with the License Area and TAN's Facilities, and shall provide coverage in not less
than the following amount: combined single limit bodily injury, personal injury and property damage, liability, of $1,000,000 per
occurrence. The Customer also requires an Additional Insured Endorsement, as attached and incorporated herein as Exhibit C.
The policy shall name Customer, its agents, officers, employees and volunteers as Additional Insureds, and shall specifically
provide that any insurance coverage which may be applicable to the License Area and TAN's Facilities shall be deemed excess
coverage and that TAN insurance shall be primary. Under no circumstances shall the above - mentioned insurance contain a self -
insured retention, or a "deductible" or any other similar form of limitation on the required coverage. Tan is required to give the
Customer no less than thirty (30) days notice of cancellation or reduction in coverage. No cancellation provision in any insurance
policy shall be construed in derogation of the continuous duty of TAN to furnish insurance during the term of this Agreement.
11. Confidentiality
If either party receives from the other party information which due to the nature of such information is reasonably understood to be
confidential and /or proprietary, such party agrees that it shall not use or disclose such information except in the performance of
this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance,
but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential
information includes not only written information, but also information transferred orally, visually, electronically, or by other means.
Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement.
The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly
available sources; (b) is, through no fault of the receiving party disclosed in a publicly available source; (c) is in rightful
possession of the receiving party without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e)
is independently developed by the receiving party without reference to information disclosed by the Customer.
The Active Network Ltd. Page 7 of 9
aC iWI NETWORK Terms and Conditions of Software License Agreement
12. Conflict Of Interest Clause
TAN covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any
manner with performance of services specified under this Agreement.
13. Discrimination
TAN shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin,
ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion,
termination or other employment related activities. TAN affirms that it is an equal opportunity employer and shall comply with all
applicable federal, state and local laws and regulations.
14. Professional Licenses
TAN shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions
necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of
California, the City of Santa Ana and all other governmental agencies. TAN shall notify the City immediately and in writing of her
inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for
termination of this Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
ATTEST:
PATRICIA E. HEALY
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
Customer Attorney
By:
Michael Vigliotta
Deputy Customer Attorney
Gerardo Mouet
Executive Director of
Parks Recreation and Community
Services Agency
CUST ER OF S NTA ANA
t71 �/1
DAVID N. REAM
Customer Manager
TAN
NAME
TITLE
Employer ID # or Individual SS #
The Active Network Ltd. Page 8 of 8
aCtiWONETwoRK
Exhibit A
General Software Services Agreement
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 Ltd.
( "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.
,wit /]Y"f-ckVI'&G je, '•gyp Designated Customer contact
r� Authorized Signatory person/TAN System Administrator
F 11 Le al Customer Name an alts; If mo a than one provide all
A ess �^ Date
,,
G7 1A e71_ u-, it
The Active Network, Ltd. yC�, r , t l• f r u %
Authorized, atory I, Date
{The remainder of this page is intentionally BLANK}
Services Table
Pre - Agreed Services
Rate per Hour
Number of Hours
Total Services
Cost
A. Pre- Project Documentation
$150
8
1,200
B. Onsite Database ik Software Installation
$150
C. Remote/Web-based Database & Software Installation
$100
8
800
D. On-Site less than 3 days PLUS AIRFARE
D.J. Standard Consultants
$185
D.ii. Senior Consultant / Project Planner
$220
D.iii. Technical Specialist
$250
E. On Site 3 days or More PLUS AIRFARE
E.J. Standard Consultants
$150
32
4,800
EA. Senior Consultant /Project Planner
$190
E.iii. Technical Specialist
$220
F. e•ConsulOn REQUIRES INTERNET ACCESS ON EACH PC
F.I. Standard Consultants
$100
52
5,200
F.A. Senior Consultant / Project Planner
$185
F.iii. Technical Specialist
$195
G. Weekend Surcharge `
G.J. Standard Consultants
$75
GA. Senior Consultant/ Project Planner
$75
Gin. Technical Specialist
$75
NOTE THAT RATES SHOWN INCLUDE ALL TRAVEL EXPENSES OTHER THAN Totals
AIRFARE
$12,000
The Active Network Ltd. Page 2 of 5
aCtiVIONETWORK
Terms and Conditions of General Software Services Agreement
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)
C)
d)
e)
a
"Other Services" means Services other than Pre - Agreed Services
acquired by the Customer under this Agreement.
"Pre- Agreed Services" means Services which are expressly listed in
the Services Table as being acquired hereunder by the Customer.
"Release" means any release, update, patch, set of revisions, or
bugipermanent 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.
"Services" means any and all types of services which TAN provides,
to the Customer and/or to other customers 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.
"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.
"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.
2.1
a)
b)
C)
SERVICES TO BE PROVIDED
TAN will provide to the Customer:
all Pre - Agreed Services which the Customer hereby agrees, pursuant
to the Services Table, to acquire; and
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 Services and will pay for such Services under
the terms of this Agreement; and
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.
d) Weekend surcharges apply to services provided 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 Agreement, and thereafter relevant
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 an additional cost of $100 per hour per participant.
3.4. Travel Expenses - Costs and rates as described in this Agreement
include all TAN personnel travel expenses other than airfare. The Customer
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 any 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 stated otherwise, all prices
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 after provision of the Services to which they relate,
and subsequently due within 30 days after receipt by the Customer.
Overdue invoices shall bear interest at 1 % per month, 12.68% per annum.
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 space,
networked PCs (minimum one (1) PC for every two (2) training
participants), networked printing capability, computer display /projection
facilities, and flip chad or whiteboard, plus markers and other ancillary
supplies;
d) subject to the security requirements of the Customer, 24 hour access
to the Customer's system via either an always - available telephone
circuit or an always available internal 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, remote dial
uphntemet access methods approved by TAN to allow TAN to remotely
diagnose and correct errors in the Software and provide other
Services.
The Active Network Ltd. Page 3 of 5
caCtiWONETWORX
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;
b) ensure that at all times at least one current staff person 0 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 toy 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.
62. 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, EXCEPTING LOSS OR DAMAGE
FOR PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY
RESULTING FROM THE SOLE NEGLIGENCE OF TAN.
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), EXCEPTING
LIABILITY FOR PERSON INJURY OR DAMAGE TO TANGIBLE
PROPERTY, INCURRED IN CONNECTION WITH THIS AGREEMENT,
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 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 tens of this Agreement will commence on the date of its
execution and, subject to termination as provided herein, will continue
indefinitely.
8. TERMINATION
81. 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 the non - 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
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 that 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
after the sixty day period (Customer shall indemnify and reimburse
TAN for any attorneys 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 tees 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 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 beyond its reasonable control.
The Active Network Ltd. Page 4 of 5
a Ct7 WO NETWORK
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
taxed 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 and receipt of any such notice will be deemed to be
effective as of the third business day following such deposit.
9.4. Governing Law - This Agreement and performance hereunder will be
governed by the laws applicable in the jurisdiction where the Software is
installed, excepting in the case of Louisiana when the laws of California will
apply, or in the case of Quebec when the laws of Ontario, Canada will apply.
9.5. 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 obligations under this Agreement to TAN's system
integrators or resellers or upon a merger or substantial sale of TAN's assets.
9.6. Survival - Sections 6 and 9 will survive termination and expiration of
this Agreement.
The Active Network Ltd. Page 5 of 5
300 -6400 Roberts Street I Burnaby BC I V5G 4C9
Exhibit B
Software Support and Maintenance Agreement
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 N.A. Inc.
( "TAN ") whereby, and TAN and the Customer hereby agree that, the Customer will acquire, and TAN will provide, the
software support 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 Description in that order.
Product or Service Description Cost
1. Support and Maintenance — Basic $8,812.50
2. Support and Maintenance — Premium
RE: 1 or 2: Preferred Renewal Date (Optional) - (mm, dd, yyyy)
Total Cost $8,812.50
Payment Terms for Support and Maintenance
1. The cost for the Support and Maintenance services is payable annually in advance and is due in its entirety on
the Support Start Date, 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 amounts, 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. Overdue invoices shall bear interest at 1 % per month, 12.68% per annum.
2. Subject to the availability of an "Accreditation Discount" as described in the Terms and Conditions, 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 ten (10) percent of the Support and Maintenance fees payable for the year just ending upon that Support
Renewal Date.
3. 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 Agreement, exclusive of taxes based on the net income of TAN.
4. All prices are in the currency of the country in which the Software is installed.
{The remainder of this page is intentionally BLANK}
www.the aa'venetwork com I + 1 800 661 1196
aettwe 4 vI cat,
The parties hereto each hereby acknowledge that they have read, understand and agree to be bound by this
Agreement.
Facsimile
The Active Network, Inc.
rltUfli f" f,v�-,crl Designated Customer contact
Authorized Signatory pereon/TAN System Administrator
and site; If more than one, provide all
Me h 14) S ?I -#.,I VW
Date
(The remainder of this page is intentionally BLANK)
The Active Network N.A. Inc. Support and Maintenance 11 -11 -04 (Cover Page 2 of 2) Page 2 of 8
Software Table: Licensed Active Software Modules
Module
No. of Copies of
Module Supported/
Maintained
Initial Software
Licensing Cost
Total Module
Support/
Maintenance Cost
MOduba Aasoeleted MalMenenee: .let � -
_::
.
i. Program Registration (Program Maintenance
10
$1,750
4,375
ii. FlexRe (automatically licensed if i is licensed
1
500
125
iii. Memberships (Membership Maintenance
$1,750
iv. Facility Booking (Facility Maintenance
7
$1,750
3,05250
V. OuickRez licensed only with Services and iv
Vi. Point of Sale (POS Maintenance
$1,750
Vii. Sport Schedulin
$1,750
viii. Calendar
1
$500
125
X. Telephone Client Lo ins min. 4lines IVR Maintenance
$1,750
Syssaw Features
SerwrRisaeetkeraling
X. Randomization
$5,000
A Affinity
♦
A. Customers nc
$5,000
xiii. PortaiSync
$5,000
xiv. AssetSync
$5,000
xv. FinanceSync
1
$1,750
437.50
xvi. BrochureSync
1
$1,750
43750
xvii. Multilingual times total of items 1 and iv licenses
1
$500
125
xviii. Telephone Pro ram Registration & Voice Server
1 $5,000
xix. Payment Processing Server Credit and, Debit and Electronic Funds Transfer
$5,000
UsehBaaed I*
xx. Integrated Workstation Debit Card
$250
xxi. POS Touch Screen
$500
xxil. Kiosk
$1,750
MlenMf
xviii. Internet Pr ram Registration
$5,000
xxiv. Internet Facility Booking
$5,000
xxv. Maps
$2,500
Mt. Internet Sports Scheduling
$5.000
xxvii. Internet FaciI4 Availability
$5000
xxviii. Internet Client Login 25 Concurrent Users permitted per license
$5000
System Modules —Coats Included in oats of Other licensed
xxix. System Utilities as defined in the Terms and Conditions
- _
_ _
xxx. Reports
$500
125
xxxi. Membership Scanning Station
$500
total cost
$8,812.50
Total cost indicated is potentially subject to reduction per Accreditation Discount.
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.
The Active Network N.A. Inc. Support and Maintenance 11 -11 -04 (Software Table) Page 3 of 8
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, b and c below for qualification) for "system down" issues
(only) between 5 AM - 6 AM and 5:30 PM — 11:00 PM (PT) weekdays and 5:00 a.m. — 11:00 p.m. (PT)
Saturday and Sunday ( "Extended Support Hours ")
• Limited report customization & query support (i.e. 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 (i.e.
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
The TAN Support Desk will be open with reduced staff on the following Canadian statutory holidays: Good
Friday; Victoria Day (3rd Monday in May); Canada Day (July 1"); BC Day (1S1 Monday in August);
Thanksgiving (2nd Monday in Oct); Remembrance Day (November 11); Boxing Day (December 26). On the
following holidays, the TAN Support Desk will be closed: New Year's Day, Christmas Day, Labor Day (1s`
Monday in September).
The Active Network N.A. Inc. Support and Maintenance 11 -11 -04 (Levels Description) Page 4 of 8
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
xxix to which h) applies.
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 andlor 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) "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.
"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
fi) Assistance to isolate the source of problems and /or to
troubleshoot difficulties resulting from sources other than
TAN products or services, such as:
• General network support - for example network access, printing,
backup & restoration',
• PC hardware trouble shooting;
• PC setup, configuration and optimization;
• Network operating system configuration and functionality;
• Basic Microsoft Corporation "Windows" functionality (e.g. using
File Manager or Explorer);
• Modem configuration & setup;
• Data corruption due to lack of disk space; and
• Loss of supervisor or other password
but expressly excludes any services or assistance relating t0
database issues, unless acquired under an addendum to this
Agreement.
g) "Support Start Date" means the day ninety (90) days after
Initial Installation.
h) "System Utilities' includes the following Modules: Accounting
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.
i) "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- released, 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.
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
Completion Tar et
A —Down
Fatal issues that result in the
Within 12 hours.
Customer's inability to fulfill
critical business functions i.e.
The Active Network N.A. Inc. Support and Maintenance 11 -11 -04 (Levels Description) Page 5 of 8
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 -600 -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 1.1.0ii), regardless of
the source of such hardware.
6. FEES AND PAYMENT
6.1. In consideration of the Support and Maintenance provided
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 the Customer has indicated to TAN that the Customer intends
to qualify for an "Accreditation Discount', then the total cost of
Support and Maintenance hereunder will be discounted by fifteen (15)
per cent, and the Cover Page modified accordingly by TAN, provided
that on or before the Support Start Date, a TAN representative has
verified to TAN's reasonable satisfaction that all of the following
criteria are met
a) Approved dial -in access — The Customer provides means
approved by TAN, and appropriate internet connections, for dial-
in access by TAN personnel at any time except for reasonable
system downtime for system maintenance and in particular
without exception relating to the Customer's security
requirements;
b) TAN System Administrator(s) - The Customer has one or more
employees in the department or agency using the Software
(each a 'TAN System Administrator") trained on all of the
Software, who are available to work with other users of the
Software and able to handle most of the basic questions from
the Customer's users of the Software. The TAN System
Administrators must also be familiar with the version of the
Microsoft Corporation "Windows:" based operating system in use
by the Customer, be familiar with the setup and installation of the
Software on workstations used to access the Software, and
know the administrative login and password. All
communications between the Customer and TAN are to occur
through a TAN System Administrator, who must be authorized to
make policy decisions for the Customer relating to the Software;
c) Electronic Communication —The TAN System Administrator(s) is
(are) capable of communicating with TAN via the internet and
electronic mail for support and file transfer purposes;
d) Database Administrator - The Customer has one or more
employees in the department or agency using the Software with
expertise relating to the database platform used by the Software,
evidenced either by certification or course work reasonably
satisfactory to TAN, or by equivalent experience including the
ability to install, maintain, backup and restore, troubleshoot, and
optimize the database environment, and the Customer assumes
full responsibility for maintaining the Customer's database
environment such that TAN has no obligations to provide any
support whatsoever relating to the Customer's database(s); and
e) Network Administrator — the Customer has one or more
employees in the department or agency using the Software with
expertise relating to the network operating system by which
client workstations are connected to or use the Software,
evidenced either by certification or course work reasonably
satisfactory to TAN, or by equivalent experience including the
ability to install, maintain, troubleshoot, and optimize the
network, and the Customer assumes full responsibility for
maintaining the Customer's network environment such that TAN
has no obligations to provide any support whatsoever relating to
the network;
and if at any time during the term of this Agreement any of these
criteria are not met, the Accreditation Discount will no longer be valid
and the amount discounted from the total fees for Support and
Maintenance as a result of such Accreditation Discount, pro -rated
from the date such criteria were first not met until the next- following
The Active Network N.A. Inc. Support and Maintenance 11 -11 -04 (Levels Description) Page 6 of 8
those pertaining to core
functionality such as processing
registrations, memberships,
rentals) and that have no
reasonable work - around.
—J-- Urgent
Serious issues significantly
Within 24 hours.
Impacting use of system but do
not prevent core functions (such
as processing registrations,
memberships, rentals) from
beina fulfilled.
C — Normal
All other issues, except those
Within 36 hours.
classified as D ow.
—
D Low
Issues that are not time - sensitive
None
or may be undertaken as
customer service initiatives
outside the scope 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 -600 -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 1.1.0ii), regardless of
the source of such hardware.
6. FEES AND PAYMENT
6.1. In consideration of the Support and Maintenance provided
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 the Customer has indicated to TAN that the Customer intends
to qualify for an "Accreditation Discount', then the total cost of
Support and Maintenance hereunder will be discounted by fifteen (15)
per cent, and the Cover Page modified accordingly by TAN, provided
that on or before the Support Start Date, a TAN representative has
verified to TAN's reasonable satisfaction that all of the following
criteria are met
a) Approved dial -in access — The Customer provides means
approved by TAN, and appropriate internet connections, for dial-
in access by TAN personnel at any time except for reasonable
system downtime for system maintenance and in particular
without exception relating to the Customer's security
requirements;
b) TAN System Administrator(s) - The Customer has one or more
employees in the department or agency using the Software
(each a 'TAN System Administrator") trained on all of the
Software, who are available to work with other users of the
Software and able to handle most of the basic questions from
the Customer's users of the Software. The TAN System
Administrators must also be familiar with the version of the
Microsoft Corporation "Windows:" based operating system in use
by the Customer, be familiar with the setup and installation of the
Software on workstations used to access the Software, and
know the administrative login and password. All
communications between the Customer and TAN are to occur
through a TAN System Administrator, who must be authorized to
make policy decisions for the Customer relating to the Software;
c) Electronic Communication —The TAN System Administrator(s) is
(are) capable of communicating with TAN via the internet and
electronic mail for support and file transfer purposes;
d) Database Administrator - The Customer has one or more
employees in the department or agency using the Software with
expertise relating to the database platform used by the Software,
evidenced either by certification or course work reasonably
satisfactory to TAN, or by equivalent experience including the
ability to install, maintain, backup and restore, troubleshoot, and
optimize the database environment, and the Customer assumes
full responsibility for maintaining the Customer's database
environment such that TAN has no obligations to provide any
support whatsoever relating to the Customer's database(s); and
e) Network Administrator — the Customer has one or more
employees in the department or agency using the Software with
expertise relating to the network operating system by which
client workstations are connected to or use the Software,
evidenced either by certification or course work reasonably
satisfactory to TAN, or by equivalent experience including the
ability to install, maintain, troubleshoot, and optimize the
network, and the Customer assumes full responsibility for
maintaining the Customer's network environment such that TAN
has no obligations to provide any support whatsoever relating to
the network;
and if at any time during the term of this Agreement any of these
criteria are not met, the Accreditation Discount will no longer be valid
and the amount discounted from the total fees for Support and
Maintenance as a result of such Accreditation Discount, pro -rated
from the date such criteria were first not met until the next- following
The Active Network N.A. Inc. Support and Maintenance 11 -11 -04 (Levels Description) Page 6 of 8
Support Renewal Date, will immediately be payable by the Customer
to TAN, such amount to be invoiced by TAN to the Customer. The
Customer will immediately notify TAN upon any of these criteria
no longer being met.
6.4. 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, 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 hereunder had this
Agreement been in force during the time during which Support
and Maintenance rights had so lapsed, and
b) an additional fee of forty (40) per cent of the license fees which
would be payable if the Software to be subject to such Support
and Maintenance were licensed anew at TAN's then- standard
license fees on the date of re- instatement of Support and
Maintenance rights.
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 and training 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, 24 hour
access to the Customer's system via either an always - available
telephone circuit or an always available internet connection to
enable TAN or its designated representative to perform any of
the obligations placed upon TAN by this Agreement.; and
e) subject to the security requirements of the Customer, remote dial
up /internet 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.
6. 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 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.
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 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, EXCEPTING LOSS OR DAMAGE FOR PERSONAL
INJURY OR DAMAGE TO TANGIBLE PROPERTY RESULTING
FROM THE SOLE NEGLIGENCE OF TAN.
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),
EXCEPTING LIABILITY FOR PERSON INJURY OR DAMAGE TO
TANGIBLE PROPERTY, INCURRED IN CONNECTION WITH THIS
AGREEMENT, 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
The Active Network N.A. Inc. Support and Maintenance 11 -11 -04 (Levels Description) Page 7 of 8
..,.= 140 � 't, 711 1i r
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 the non - 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 commencement 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 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 — 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, 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 excepting the payment of any fees
or charges due hereunder will be postponed automatically to the
extent that any party is prevented from meeting them by causes
beyond its reasonable control.
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 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 and receipt of any such notice will be
deemed to be effective as of the third business day following such
deposit.
12.4. Governing Law - This Agreement and performance hereunder
will be governed by the laws applicable in the jurisdiction where the
Software is situated, excepting in the case of Louisiana when the laws
of California will apply, or in the rase of Quebec when the laws of
Ontario, Canada will apply.
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.
12.6. Survival - Sections 6.4, 9 and 12 will survive termination and
expiration of this Agreement.
The Active Network N.A. Inc. Support and Maintenance 11 -11 -04 (Levels Description) Page 8 of 8
Exhibit C
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
M
relating to the following:
1. The City of Santa Ana, and the City of Santa Ana, located at 20 Civic
Center Plaza, Santa Ana, California 92701; and their respective officers, employees,
agents, volunteers and representatives are named as additional insureds ( "additional
insureds ") with regard to liability and defense of suits arising from the operations and
uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by
or on behalf of the named insured, such insurance as is afforded by this policy is primary
and is not additional to or contributing with any other insurance carried by or for the
benefit of the additional insureds.
3. This insurance applies separately to each insured against whom claim is
made or suit is brought except with respect to the company's limits of liability. The
inclusion of any person or organization as an insured shall not affect any right which such
person or organization would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be
cancelled, or materially reduced in coverage or limits except after thirty (30) days written
notice has been given to the Community Redevelopment Agency of the City of Santa
Ana, 20 Civic Center Plaza (M -25), Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this
endorsement effective.)
Effective
Policy #
Issued to
this endorsement form as a part of
Named Insured
Countersigned by
Auth ize epresentative
.. ..� ..........
ACO RD.',,! os /o9lzoos
PRODUCER
Aon Risk services Inc. of central California THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY
8880 Cal Center Drive, Suite 450 AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
Sacramento CA 95826 USA CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE
COVERAGE AFFORDED BY THE POLICIES BELOW.
PRONE - 916 369 -4800 FAx. 916 369 -4801 INSURERS AFFORDING COVERAGE NAICN
INSURED I
INSURER A: Hartford casualty insurance Co 2
29424
Active Network, Inc. I
INSURERS: Illinois union Insurance company 2
27960
San Diego CA 92121 USA I
INSURER C:
INSURER D:
t
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY
PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.
AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
DYER A
ABU
TYPE OF INSURANCE P
POLICY NUMBER P
POLICY EFFECTIVE P
POLCY ExlD TION
LBATFS
A 9
9LPFER&L N
NIL TY 5
57uUNUL1708 0
04/16/05 0
04/16/06 E
EACH OCCURRENCE 5
51,000,000
COMMBRCLU. GENERAL LIABILITY D
DAMAGE TO RENTED $
$300,000
N
CLAIMS MADE ® OCCUR
PREMISES (Ea .)
v ma nerwn
PERSONALSADVINnmY $
$1,000,000 u
u
El P
AGGREGATE LIMIT APPLES PER
v
GENERAL AGGREGATE $
$2,000,000 v
/9 - /_ /Jl, "S - U 5y-
ACORD,. ICFRT`MCA_TE OF IABTL' :
DATE(MM /Db /YYYY)
PRODUCER
Aon Risk services Inc. of Central California T
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY
8880 Cal Center Drive, suite 450 A
AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
Sacramento CA 95826 USA C
CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE
COVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE N
NAIL #
PHONE-(916) 369 -4800 FAX 916 369 -4801 I
INSURED I
INSURER Federal Insurance Company 2
20281
Active Network, Inc. I
INSURER Illinois Union Insurance Company 2
27960
10182 Telesis Ct., #300
San Diego CA 92121 USA /
INSURERC.
I
/ I
INSURER D
INSURER E:
y
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY
PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.
AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
R A
AD
TYPE OF INSURANCE P
POLICY NUMBER D
POLICY EFFECTIVE P
POLICY EXPIRATION
LIMITS
DATE(MM\DMVY) D
DATE(MM\DDNYY) L
A E
ERAL LIABILITY 3
358777916 0
04116107 0
04116108 E
EACH OCCURRENCE 5
51,000,000
X COMMERCIAL GENERAL LIABILITY D
DAMAGE TO RENTED $
$1,000,000
CLAIMS MADE ® OCCUR A
PREMISES (Ea occurence)
Anv one Person) S
S10,000
PERSONAL & ADV INJURY $
$1,000,000
GENERAL AGGREGATE $
$2,000,000
G
GEN'L AGGREGATE LIMIT APPLIES PER:
PRODUCTS - COMP /OP AGG $
$2,000,000
POLICY E] PRO- LOC P
—I P
A A
AUTOMOBILE LIABILITY 7
73546685 0
04/16/07 0
04/16/08 C
X ANY AUTO (
COMBINED SINGLE LIMIT
$1,0U0,000
ALL OWNED AUTOS
BODILY INJURY
SCHEDULED AUTOS (
( Per Person)
X HIRED AUTOS
BODILY INJURY
X NON OWNED AUTOS (
(Per accident)
/ P
^. l (
PROPERTY DAMAGE
(Peracciden0
GARAGE LIABILITY A
AUTO ONLY - EA ACCIDENT
ANY AUTO
8 A
OTHER THAN EA ACC
AUTO ONLY
AGG
A E
EXCESS /UMBRELLA LIABILITY 7
79865288 0
04/16/07 4
4 1 E
EACH OCCURRENCE $
$10,000,0ou
ElOCCUR ❑ CLAIMS MADE A
AGGREGATE $
$10,000,000
®DEDUCTIBLE
RETENTION $10,000
A
WORKERS COMPENSATION AND X
X W
WC STATU- O
OTH-
EMPLOYERS' LIABILITY L
L E
ER
E.L. EACH ACCIDENI S
=
ANY PROPRIETOR /PARTNER /EXECUTIVE E
E.L. DISEASE -EA EMPLOYEE S
S1,000,000 ,
aLa
OFFICER/MEMBER EXCLUDED? E
If yes, describe under SPECIAL PROVISIONS E
E.L. DISEASE- POLICY LIMIT $
$1,000,000
B O
OTHER B
Bm120042191 0
04/16/07 4
4 L
Limit $2,000,000 `
Prof Liability $
Technology E $ 0 S
Self Insured Retention
DESCRIPTION OF OPERATIONS /LOCAT(ONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS
"Exhibit C" - the City of Santa Ana, their resppective officers, employees, agents volunteers & representatives are S
Additional Insureds, as respects General Liability, as required by contract, the insurance is primary and
non - contributory, per company specific form.
Yt ` .
A ff
ER
O
1\
O
O
ry
O
O
n
the Active Network, Inc. Additional Insured Endorsement
Federal Insurance Company Primary & Non - Contributory Limits Apply
Policy # 358777916 Waiver of Subrogation
April 16, 2007 - 2008
General Liability
Contract
Please read the entire policy carefully. The terms and conditions of this insurance include the
various sections of this contract: Coverages; Investigation, Defense And Settlements;
Supplementary Payments; Coverage Territory; Who Is An Insured; Limits Of Insurance;
Exclusions; Conditions; and Definitions, as well as the Declarations, Common Policy Conditions
and any Endorsements and Schedules made a part of this insurance.
Throughout this contract the words "you" and "your" refer to the Named Insured shown in the
Declarations and other persons or organizations qualifying as a Named Insured under this contract.
The words "we," "us" and "our" refer to the Company providing this insurance.
In addition to the Named Insured, other persons or organizations may qualify as insureds. Those
persons or organizations and the conditions under which they qualify are identified is the Who Is
An Insured section of this contract.
Words and phrases that appear in bold printhave special meanings and are defined in the
Definitions section of this contract
Coverages
Bodilylnjury And Property Subject to all of the terms and conditions of this insurance, we will pay damages that the insured
DamageLiabi* becomes legally obligated to pay by reason of liability:
Coverage imposed by law; or
assumed in an insured contract;
for bodily injury or property damage caused by an occurrence to which this coverage applies
This coverage applies only to such bodily Injury or property damage that occurs during the
policy period.
Damages for bodily in j ury include damages claimed by a person or organization for taro or loss of
services resulting at any time from the bodily In jury.
Other than as provided under the Investigation, Defense And Settlements and Supplementary
Payments sections of this contract, we have no other obligation or liability to pay SUMS or perform
acts or services under this coverage.
AdverHsinginjuryAnd Subject to all of the beans and conditions of this insurance, we will pay damages that the lissured
Personallnjury Liability becomes legally obligated to pay by reason of liability:
Coverage imposed by law; or
assumed in an insured contract;
for advertising inj ury or personal Injury to which this coverage applies.
This coverage applies only to such advertising injury or personal Injury caused by an offense
that is first committed during the policy period.
Other than as providedunder the Investigation, Defense And Settlements and Supplementary
Payments sections of this contract, we have no other obligation or liability to pay sutras or perform
ads or services under this coverage.
Liability Inswamcs
Form 80 -02- 200C(Rev. 4 -01) Contract Pogo 3x/32
Coverages
(continued)
Medical Expenses Subject to all of the terms and conditions of this insurance, we will pay medical expenses for
Coverage bodily injury caused by an accident to which this coverage applies:
that takes place on premises rented to or owned by you; or
in connection with your operations;
provided that such:
accident occurs during the policy period;
expenses are incurred and reported to us within three (3) years of the date of the accident
and
person who sustained such bodily injury submits to examination, at our expense, by
physicians of our choice as often as we reasonably require.
We will make these payments regardless of fault.
We have no other obligation or liability under this coverage.
InvesSgatfon, Defense Subject to alt of the terms and conditions of this insurance, we will have the right and duty to
And Settlements defend the insured against a nk even if such suit is false, fraudulent or groundless.
If such a suit is brought, we will pay reasonable attorney fees and nmessary litigation expenses to
defend:
the insured; and
if applicable, the indemnittee of the insured, provided the obligation to defend, or the cost of
the defense of, such indemniace has been assumed by such insured in an insured contract
Such attorney fees and litigation expenses will be paid as described in the Supplementary Payments
section of this contract
We have no duty to defend any person or organization against any suit seeking damages to wbich
this insurance does not apply.
We may, at our discretion, investigate any occurrence or offense and settle any claim or suit
Our duty to defend any person or organization ends when we have used up the applicable Limit Of
Insurance.
Supplementary Subject to all of the terms and conditions of this insurance, we will pay, with respect to a claim we
Payments investigate or settle, ors. suit against an insured we defend:
A. the expenses we incur.
B. the cost of:
bail bonds; or
bonds required to:
a. appeal judgments; or
L1abfl#y Insurance
Form W- 02- 200Q'Rev. 4 -01) Contract
Papa 4 0/32
General Liability
Supplementary b. release attachments;
Payments but only for bond amounts within the available Limit Of Insurance. We do not have to
(continued) furnish these bonds.
C. reasonable expenses incurred by the insured at our request to assist us in the investigation or
defense of such claim or suit, including actual loss of earnings up to S 1000 a day because of
time off from work.
D. costs taxed against the insured in the suit, except any:
1. attorney fees or litigation expenses; or
2. other loss, cost or expense;
in connection with any injunction or other equitable relief.
E. prejudgment interest awarded against the insured on that part of a judgment we pay. If we
make an offerto pay the applicable Limit Of Insi rance,we will not pay any prejudgment
interestbased on that period of time after the offer.
F. interest on the full amount of a judgment that accrues after entry of the judgment and before
we have paid, offered to pay or deposited in court the part of the judgment that is within the
applicable Limit Of Insurance.
SupplementaryPayments does not include any fine or other penalty.
These payments will not reduce the Limits Of Insurance.
Our obligation to make these payments ends when we have used up the applicable Limit Of
Insurance.
Coverage Territory This insurance applies anywhere, provided the insured'sresponsibilityto pay damages, to.which
this insurance applies, is determined in a suit on the merits brought in the United States of America
(including its possessionsand territories), Canada or Puerto Rico, or in a settlement to which we
agree.
Who Is An Insured
Sole Proprietorships Ifyou are an individual, you and your spouse are insured; but you and your spouse are insureds
only with respect to the conduct of a business of which you are the sole owner.
ifyou (lie:
persons or organizations having proper temporary custody of your property are insured; but
they are insureds only with respect to the maintenance or use of such property and only for
acts until your legal representative has been appointed, and
your legal representativesare Insureds; but they are insureds only with respect to their
duties as your legal representatives. Such legal representatives will assume your rights and
duties under this insurance.
Usb!!!ty insurance
Form 80- 02- 2004IWv. 4-01) conbact Page 5 or 32
Who Is An Insured
(continued)
PaitnershipsOr Joint If you area partnership (including a limited liability partnership)or a joint venture, you are an
Ventures insured Your members, yourpartners and their spouses are insureds; but they are insureds only
with respect to the conduct of your business.
LimitedLiabiliiy If you are a limited liability company, you are an insured Your members and their spouses are
Companies Insured; but they are insureds only with respect to the conduct of your business. Your managers
are Insureds; but they are insureds only with respect to their duties as your managers.
Other Organizations If you are an organization (includinga professionalcorporation) other than a partnership, joint
venture or limited liability company, you are an insured Your directors and officers are lnsured;
but they are insureds only with respect to their duties as your directors or olikem Your
stockholders and their spouses are insured; but they are insureds only with respect to their
liability as your stockholders.
Employees Your employees are insured; but they are insureds only for acts within the scope of their
employment by you or while performing duties related to the conduct of your business.
However; no employee is an insured for:
A. bedr' lyiujury, advertisinginJuryor personal injury:
1. to you, to any of your directors, managers, members; oMcers or partners (whether or
not an employee) or to any co-employee while such injured person is either in the
course of his or her employment or while performing duties related to the conduct of
Your business;
2. to the brother, child, parent, sister or spouse of such injured person as a consequence
of any injury described in subparagraphA.1. above; or
3. for which there is any obligation to share damages with or repay someone else who
must pay damages because of any injury described in subparagraphsA. 1. or A.2.
above.
With respect to bodily Injury only, this limitation does not apply to:
you or to your directors, managers, members, officers, partners or supervisors as
insured; or
your employees, as insureds, with respect to such damages caused by cardio-
pulmonary resuscitation or first aid services administered by such an employee; or
B. property damage to any property owned, occupied or used by you or by any of your
directors, managers, members, officers or partners (whether or not an employee) or by any
of your employee:
This limitation does not apply to property damage to premiseswhile rented to you or
temporarily occupied by you with permission ofthe owner.
UsbDity Insurance
Form 80- 02- 200gRev. 4 -01) Ccnftd
Page 6 o/32
General Liability
Who Is An Insured
(continued)
Volunteers Persons who are volunteer workers for you are insureds but they are insureds only for acts within
the scope of their activities for you and at your direction.
Real Estate Managers Persons (other than your employees) or organizations acting as your real estate managers are
insureds but they are insureds only with respect to their duties as your real estate managers.
Permissive Users Of With respect to mobile equipment registered in your name under a motor vehicle registration law:
MoblleEqulpment A. persons driving such equipment on a public road with your permissionam insureds and
B. persons or organizations responsible for the conduct of such persons described in
subparagraph A. above are insureds; but they are insureds only with respect to the operation
of the equipment and only if no other insurance of any kind is available to them
However, no person or organization is an insured with respect to:
bodily in jury to any co-employee of the person driving the equipment; or
property damage to any property owned or occupied by or loaned or rented to you, or in
your charge or the charge of the employer of any person who is an Insured under this
provision.
Vendors Persons or organizationswho are vendors of your products are insured; but they are insureds
only with respect to their liability for damages for bodily injury or property damageresulting
from the distributionor sale of your products in the regular course of their business and only if this
Insurance applies to the products— completedrperations hazard
However, no such person or organization is an insured with respect to any:
assumption of liability by them in a contract or agreement. This limitation does not apply to
the liability for damages for bodily injury or property damage that such vendor would
have in the absence of such contract or agreement;
representationor warranty unautbotizedby you;
physical or chemical change in your products made intentionallyby the vendor,
repackaging, unless unpacked solely for the purpose of inspection, demonstrationor testing,
or the substitution of parts under instruction front the matnrfacturerand then repacked in the
original container,
failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to
snake or normally undertakes to make in the usual course of business in connectionwith the
distribution or sale of your products;
demonstration, installation, servicing or repair operations, except such operations performed
at the vendor'spronises in connection with the sale of your products or
of your products which, after distribution or sale by you, have been labeled or relabeled or
used as a container, ingredient or part of any other thing or substance by or for the vendor.
Uabluty Insurance
Form 80- 02- 200q'Rov. 4-01) contract Paps 7 of 32
Who Is An Insured
Vendors Further, no person or organization from whom you have acquired your products, or any container,
(continued) ingredient or part entering into, accompanying or containing your products, is an Insured under
this provision.
Lessors Of Equipment Persons or organizations from whom you lease equipment are insureds, but they are insureds only
with respect to the maintenance or use by you of such equipment and only if you are contractually
obligated to provide them with such insurance as is afforded by this contract.
However, no such person or organization is an insured with respect to any:
damages arising out of their sole negligence; or
occurrence that occurs, or offense that is committed, after the equipment lease ends.
Lessors Of Premises persons or organizations from whomyou lase premises ace insureds; but they are insureds only
with respect to the ownership, maintenance or use of that particularpart of such premises leased to
you and only if you are contractually obligated to provide them with such insurance as is afforded
by this contract.
However, no such person or organization is an insured with respect to any:
damages arising out of their sole negligence;
occurrence that occurs, or offense that is committed, afterym cease to be a tenant in the
premises; or
structuralalteration, new construction or demolition operations performedby or on behalf of
them
SubsidiaryOr Newly If there is no other insurance available, the following organizations will qualify as named fsisure&
Acquired Or Formed a subsidiary organization of the first named insured shown in the Declarations of which, at
Organizations the beginning of the policy period and at the time of loss, such first named insured controls,
either directly or indirectly, more than fifty (50) percent of the interests entitled to vote
generally in the election of the governing body of such organization; or
a subsidiary organization of the first named insured shown in the Declarations that such fast
named insured acquires or forms during the policy period, if at the time of loss such first
named insured oontrols, either directly or indirectly, more than fifty (50) percent of the
interests entitled to vote generally in the election of the governing body of such organization.
UmitationsOn Who is An A. Except to the extent provided under the Subsidiary Or Newly Acquired Or Formed
Insured Organizations provision above, no person or organization is an insured with respect to the
conduct of any person or organization that is not shown w a reamed insured in the
Declarations.
B. No person or organizationis an insured with respect to the:
L ownership, maintenance or use of arty assets;or
conduct of any person or organizationwhose assets, business or organization;
LWjW Insurance
Form 80- 02- 200Q'Rev. 4-01) Contract Page 8 of 32
General Liability
Who Is An Insured
LimitatlonsOn Who Is An you acquire, either directly or indirectly, for any:
Insured bodily Injury or property damage that occurred; or
(continued)
advertising injury or personal injury arising out of an offense first committed;
in whole or in part, before you, directly or indirectly, squired such assets, business or
organization.
Umits Of Insurance The Limits Of Insurance shown in the Declarations and the rules below fix the most we will pay,
regardless of the number of:
Insureds;
claims made or suits brought; or
persons or organizations making claims or bringing suit&
The Limits Of Insurance apply separately to each consecutive annual period and to any remaining
period of less than twelve (12) months, starting with the beginning of the policy period shown in
the Declarations, unless the policy period is extended after issuance for an additional period of less
than twelve (12) months. In that case, the additional period will be deemed part of the last
preceding period for purposes of determining the Limits Of Insurance.
General AggnegateUmit Subject to the Each Occurrence Limit, the General Aggregate Limit is the most we will pay for the
sum of
damages for bodily injury and property damage, except damages included in the
products- �completefterationshazard; and
medleale:pensea
Products- Completed Subject to the Each Occurrence Limit, the Products- Complete0perationa Aggregate Limit is the
OperatlonsAggregate most we will pay for the sum of damages for bodily injury and property damage included in the
Limit products- completetbperadons hazard
AdvertisinglnjuryAnd The Advertisinglnjury And Personal Injury Aggregate Limit is the most we will pay for the sum of
PersonalinjuryAggregate damages for advertisinginjury and personal Injury.
Limit
Each OeeurrenceUmit The Each Occurrence Limit is the most we will pay for the sum of•
damages for bodily injury and property damage; and
• medicalespense;
arising out of any one occurreact
Any amount paid for damages or medical expenses will reduce the amount of the applicable
aggregate limit available for any other payment.
L1aaBlty Inanw ee
Form &"2- 2000'Rov. 4-01) conaact Paps 9 of32
Limits Of Insurance
Each OccurreneeLimit If the applicable aggregate limithas been reduced to an amount that is less than the Each
(continued) Occurrence Limit, the remaining amount of such aggregate limit is the most that will be available
for any other payment.
Damage To Premises Subject to the Each Occurrence Limit, the Damage To Premises Rented To You Limit is the most
Rented To You Limit we will pay for the sum of damages for property damage to any one premises while rented to you
or temporarily occupied by you with permission of the owner.
Medical ExpensesLimit Subject to the Each Occurrence Limit, the Medical Expenses Limit is the most we will pay for the
sum of medical expenses, under Medical Expenses coverage, for bodily injury sustained by any
one person.
Bodily InJU y)Property None of the following exclusions, except "Contracts ", "Expected Or Intended Injury" and "Loss In
Damage Exclusions Progress ", apply to property damage to premises wbile rented to you or temporarily occupied by
you with permissionof the owner.
Aircraft, Autos Or This insurance does not apply to bodily injury or property damage arising out of the ownership,
Watercraft maintenance, use (use includes operation and loading or unloading) or entrustment to others of
any:
aircraft;
auto; or
watercraft:
owned or operated by or loaned or rented to any insured
This exclusion does not apply to:
A. a wat ercraftwhile ashore on premises owned by or rented to you;
B. a watexcraftyou do not own, provided that it:
1. is less than fifty-- five(SS) feet long; and
2. does not transportpetsons or cargo for a charge;
C. the parking of an auto on premises owned by or rented to you, provided the auto is not
owned by or loaned or rented to you or the insured;
D. the liability for damages assumed in an insured contract resulting from the ownership,
maintenance or use, by others, of an aircraft or watercraft;
E. the operation of the equipment described in subparagraphs F.2. or F.3. of the definition of
mobile equipment; or
F. an aiteraft you do not own, provided that:
the pilot in command holds a currently effective certificate, issued by the duly
constituted authority of the United States of America or Canada, designatingtbat
person as a commercial or airline transportpilot;
Llebgo kuwrence
form 00-02- 200gRev. 4-01) Consact Papa 10 0132
Conditions
(continued)
TransferOr Waiver-Of We will waive the right of recovery we would otherwise have had against another person or
Rights Of Recovery organization, for loss to which this insurance applies, provided the Insured has waived their rights
AgainstOthers of recovery against such person or organization in a contract or agreement that is executed before
such loss.
To the extent that the insuretrsrights to recover all or part of any payment made under this
insurance have not been waived, those rights are transferred to us. The insured must do nothing
after loss to impair them. At our request, the insured will bring suit or transfer those rights to us
and help us enforce them.
This condition does not apply to medical expenses
k :$. LVA M M. . ;:7. I am Q==7i¢.1:.;ii, ': a."%.'["^�$tl t SSii
WNW Insurance
Fam80- 02- 20tXIRev.4 -01) t:0nascf Pape 24 0/32