Kronos/Fire.58,311.29/time keeping license softwareKronos Incorporated
Carmel Fire Department - 2014
Appropriation #102-632.02; P.O. #24598
Contract Not To Exceed $58,311.29
AGREEMENT FOR PURCHASE OF GOODS AND SERVICES
THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES with Exhibit A, the
Sales, Software License and Services Addendum (collectively, the "Agreement ") is hereby
entered into by and between the City of Carmel, Indiana, acting by and through its Board of
Public Works and Safety ( "City "), and Kronos Incorporated, an entity duly authorized to do
business in the State of Indiana ( "Vendor ").
TERMS AND CONDITIONS
ACKNOWLEDGMENT, ACCEPTANCE:
Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of
same constitutes its acceptance of all of the Agreement's terms and conditions,
PERFORMANCE:
City agrees to purchase the goods andfor services (the "Goods and Services ") from Vendor using City
budget appropriation number 102 - 632.02 funds. Vendor agrees to provide the Goods and Services and to
otherwise perform the requirements of this Agreement by applying at all times the technical and industry
standards prevailing in the HR software industry.
3. PRICE AND PAYMENT TERMS:
3.1 Vendor estimates that the total price for the Goods and Services to be provided to City on the
original order shall be no more than Fifty Eight Thousand, Three Hundred Eleven Dollars and
Twenty Eight Cents($58,311.28) (the "Estimate "). Vendor shall submit an invoice to City no more
than once every thirty (30) days detailing the Goods and Services provided to City within such time
period. City shall pay Vendor for such Goods and Services within the terms indicated on the
applicable order form. Vendor will provide an invoice detailing same, so long as and to the extent
such Goods and Services are not disputed, are in conformance with the specifications set forth in
Exhibit A are submitted on an invoice that contains the information contained on attached Exhibit B
and Vendor has otherwise performed and satisfied all the terms and conditions of this Agreement.
3.2 Vendor agrees not to provide any Goods and Services to City that would cause the total cost of the
Goods and Services provided by Vendor to City hereunder to exceed the Estimate, unless City has
previously agreed, in writing, to pay an amount in excess thereof; however, it is possible that the
Deliverable described in the Services Scope Statement will not be completed within the hours of the
Estimate. A change order would be executed by mutual written agreement if additional funds for
additional hours are needed to complete the deliverables of the Statement of Work.
4. WARRANTY:
Provided that City maintains the Software and Equipment under support services with Vendor, Vendor expressly
warrants that the Goods covered by this Agreement will conform to the Kronos published electronic documentation,
( "Specifications ") , all of which documents are incorporated herein by reference. This Software and Equipment
warranty is subject to the exclusions of Section 11 of the SSLSA. Vendor further warrants, that the Services will be
delivered in a timely, good and workmanlike manner. In the event that Vendor breaches this Services warranty, and
the City so notifies Vendor within 30 days of receipt of invoice for the applicable services, the City's remedy shall be
Kronos Incorporated
Carmel Fire Department - 2014
Appropriation #IO2- 632.02; P.O. #24598
Contract Not To Exceed $58,31 1.29
that Vendor will re- perform the services which were deficient in a manner so as to conform to the foregoing warranty,
at no additional cost to the City.
5. TIME AND PERFORMANCE:
This Agreement shall become effective as of the last date on which a party hereto executes same ( "Effective
Date "), and both parties shall thereafter perform their obligations hereunder in a timely manner.
6. DISCLOSURE AND WARNINGS:
If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of
all chemicals, materials, substances and items used in or during the provision of the Goods and Services
provided hereunder, including the quantity, quality and concentration thereof and any other information
relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to
furnish to City sufficient written warning and notice (including appropriate labels on containers and packing)
of any hazardous material utilized in or that is a part of the Goods and Services.
7. LIENS:
Vendor shall not cause or permit the filing of any lien on any of City's property. In the event any such lien is
filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding,
City shall have the right to pay such lien or obtain such bond, all at Vendor's sole cost and expense.
DEFAULT:
In the event Vendor: (a) materially repudiates, breaches or defaults under any of the terms or conditions of
this Agreement, including Vendor's warranties and fails to cure within 10 business days of receiving notice;
(b) fails to provide the Goods and Services as specified herein; (c) becomes insolvent, is placed into
receivership, makes a general assignment for the benefit of creditors or dissolves, each such event
constituting an event of default hereunder, City shall have the right to (1) terminate all or any parts of this
Agreement, without liability to Vendor; and (2) exercise all other rights and remedies available to City at law
and /or in equity.
INSURANCE AND INDEMNIFICATION:
Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer
licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and
Vendor from all claims for damages under any workers' compensation, occupational disease and /or
unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness,
disease or death of or to any of Vendor's agents, officers, employees, contractors and subcontractors; and,
for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom.
The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall
cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide
City with a copy of the current ACORD certificate. Vendor shall indemnify and hold harmless City from and
against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney
fees) for injury, death and /or damages to any person or property (excluding loss of data) arising from or in
connection with Vendor's provision of Goods and Services pursuant to or under this Agreement or Vendor's
use of City property.
Kronos Incorporated
Carmel Fire Department - 2014
Appropriation #102 - 632.02; P.O. #24598
Contract Not To Exceed $58,311.29
These indemnification obligations shall survive the termination of this Agreement.
10. GOVERNMENT COMPLIANCE:
Vendor agrees to comply with all applicable federal, state and local laws, executive orders, rules, regulations
and codes which may be applicable to Vendor's performance of its obligations under this Agreement, and all
relevant provisions thereof are incorporated herein by this reference.
11. NONDISCRIMINATION:
Vendor represents and warrants that it and all of its officers, employees, agents, contractors and
subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting
discrimination against any employee, applicant for employment or other person in the provision of any Goods
and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of
employment and any other matter related to their employment or subcontracting, because of race, religion,
color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran
status.
12. E- VERIFY
Pursuant to I.C. § 22 -5 -1.7 et seq., as the same may be amended from time to time, and as is incorporated
herein by this reference (the "Indiana E- Verify Law'), Vendor is required to enroll in and verify the work
eligibility status of its newly -hired employees using the E- Verify program, and to execute the Affidavit
attached herein as Exhibit D, affirming that it is enrolled and participating in the E- verify program and does
not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City with
documentation indicating that it has enrolled and is participating in the E- Verify program. Should
Vendor subcontract for the performance of any work under and pursuant to this Agreement, it shall fully
comply with the Indiana E- Verify Law as regards each such subcontractor. Should the Vendor or any
subcontractor violate the Indiana E- Verify law, the City may require a cure of such violation and thereafter, if
no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or
those set forth in the Indiana E- Verify Law. The requirements of this paragraph shall not apply should the E-
Verify program cease to exist.
13. NO IMPLIED WAIVER:
The failure of either party to require performance by the other of any provision of this Agreement shall not
affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any
party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the
same or any other provision hereof.
14. NON- ASSIGNMENT:
Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not
delegate its obligations under this Agreement without City's prior written consent.
15. RELATIONSHIP OF PARTIES:
The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any
of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price
set forth herein shall be the full and maximum compensation and monies required of City to be paid to
Vendor under or pursuant to this Agreement.
3
Kronos incorporated
Carmel Fire Department - 2014
Appropriation #102- 632.02; P.O. #24598
Contract Not To Exceed $58,311.29
16. GOVERNING LAW; LAWSUITS:
This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana,
except for its conflict of laws provisions. The parties agree. that, in the event a lawsuit is filed hereunder, they
waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County,
Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same.
17, SEVERABILITY:
If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive
order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to
comply with same, and the remaining provisions of this Agreement shall remain in full force and effect.
18. NOTICE:
Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage
prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified
herein:
If to City: City of Carmel
One Civic Square
Carmel, Indiana 46032
Attn: Chief Hoffman
If to Vendor:
Kronos Incorporated
297 Billerica Road
Chelmsford, MA 01824
Telephone:
ATTENTION: General Counsel
AND
Douglas C. Haney, City Attorney
Department of Law
One Civic Square
Carmel, Indiana 46032
Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given
orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from
the date of such oral notice.
19. TERMINATION:
19.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to
Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by
Vendor and /or if sufficient funds are not appropriated or encumbered to pay for the Goods and
Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to
receive only payment for the undisputed invoice amount representing conforming Goods and
Services delivered as of the date of termination, except that such payment amount shall not exceed
the Estimate amount in effect at the time of termination, unless the parties have previously agreed in
writing to a greater amount. By executing an order form, the customer acknowledges they have
appropriate the funds to compensate Kronos for all Goods and Services indicated in the Order Form.
19.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. In the
event of such termination, Vendor shall be entitled to receive only payment for the undisputed
invoice amount of conforming Goods and Services delivered as of the date of termination, except
that such payment amount shall not exceed the Estimate amount in effect at the time of termination,
unless the parties have previously agreed in writing to a greater amount.
4
Kronos Incorporated
Cannel Fire Department - 2014
Appropriation #102-632.02; P.O. #24598
Contract Not To Exceed $58,311.29
19.3 The City may terminate this Agreement pursuant to Paragraph 11 hereof, as appropriate.
20. REPRESENTATIONS AND WARRANTIES
The parties represent and warrant that they are authorized to enter into this Agreement and that the persons
executing this Agreement have the authority to bind the party which they represent.
21. ADDITIONAL GOODS AND SERVICES
Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods
and services to City. When City desires additional goods and services from Vendor, the City shall notify
Vendor of such additional goods and services desired, as well as the time frame in which same are to be
provided. Only after City has approved Vendor's time and cost estimate for the provision of such additional
goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in
writing, to provide such additional goods and services, shall such goods and services be provided by Vendor
to City. A copy of the City's authorization documents for the purchase of additional goods and services shall
be numbered and attached hereto in the order in which they are approved by City. All orders are subject to
the approval of Kronos' corporate office in Chelmsford, Massachusetts,
22. TERM
Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19
hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2014 and shall,
on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless
otherwise agreed by the parties hereto.
23. HEADINGS
All heading and sections of this Agreement are inserted for convenience only and do not form a part of this
Agreement nor limit, expand or otherwise alter the meaning of any provision hereof.
24, BINDING EFFECT
The parties, and their respective officers, officials, agents, partners, successors, assigns and legal
representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations
set forth in Agreement.
25. NO THIRD PARTY BENEFICIARIES
This Agreement gives no rights or benefits to anyone other than City and Vendor.
26. IRAN CERTIFICATION: Pursuant to I.C. § 5 -22 -16.5, the Vendor shall certify that, in signing this document,
it does not engage in investment activities within the Country of Iran.
27. ADVICE OF COUNSEL:
The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain
legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same
freely, voluntarily, and without any duress, undue influence or coercion.
28. ENTIRE AGREEMENT:
This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire
agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral
or written representations and agreements regarding same. Notwithstanding any other term or condition set
5
Kronos Incorporated
Carmel Fire Department - 2014
Appropriation 4102-632.02; P.O. #24598
Contract Not To Exceed $58,311.29
forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit
attached to this Agreement or in any document referenced herein conflicts with any term or condition
contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail.
This Agreement may only be modified by written amendment executed by both parties hereto, or their
successors in interest,
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA
by and through its Board of Public
Works and Safety
By:
James Brainard, Presiding Officer
ate,
Lori S. We , Memb
Date: `%1t'771`/
ATTEST:
crivowaitt
Diana Cordrgy, (AMC, c
Ole kCreasurer
Date: lLI
6
Kronos Incorporated
curt • iz: i Signature
John 0
Printed Name
Sr. Vice President, Global Sales
Title
FID /TIN: 04- 2640942
Last Four of SSN if Sole Proprietor:
Date: September 8, 2014
Kronos Incorporated
297 Billerica Road
Chelmsford, MA 01824
Phone: (978)250 -9800
Exhibit A
KRONOS SALES, SOFTWARE LICENSE AND SERVICES ADDENDUM Rev KR- 022811.1
Page: 1 / 5
City of Carmel ( "Customer') and Kronos agree that the terms and conditions set forth in this Agreement shall apply to all Kronos Equipment, Software, Prof asional and
Educational Services, Support, and such other Kronos offerings, as specified en an order form (an "Order Form) signal by the parties which expressly references this
Agreement (or is signed contemporaneously hereto).
Kronos and Customer hereby agree that the terns and conditions of this Agreement apply to any Order Form executed by Kronos and Customer which expressly
references this Agreement (including any Order Form signed contemporaneously with this Agreement regardless of the appearance of any express reference to this
Agreement). Either party may discontinue use of this Agreement for future orders upon thirty (30) days prior written notice to the other party, provided however that any
Order Form signed by the parties prior to the effective date of such notice shall remain in effect unless otherwise specifically terminated in accordance with the terns of
this Agreement. Kronos may require additional terns and conditions for the sale or license of products or services not contemplates' by this Agreement (including without
limitation those that may be related to international services) provided that no such additional terns and conditions shall be binding upon Customer without Customer's
prior written consent. Notwithstanding, Kronos will not be obligated to accept or approve an order for any products or services for which such additional terms and
conditions are required. All orders are subject to the approval of Kronos' corporate office in Chelmsford, Massachusetts. This Agreement and the Order Form shall
supersede the pre - printed terms of any Customer purchase order or other Customer ordering document, and no such Customer pre - printed temps shall apply to the items
ordered.
1. PAYMENT AND DELIVERY
Unless otherwise set forth in this Agreement, payment terns are indicated on ire Order Form or other contemporaneous entering document containing product - specific
payment terms signal by the parties. Delivery semis are as stated on the Order Form ( "Delivery'll. Kronos will invoice Customer for products upon Delivery. Unless
otherwise set forth on the Order Form, Professional and Educational Services are provided on a time and materials basis, invoiced monthly as rendered. Customer agrees
to pay all applicable taxes levied or based on the products, services or other charges hereunder, including state and local sales and excise taxes, and any taxes or amount in
lieu thereof paid or payable by Kronos, exclusive of taxes based on net income. Customer agrees to pay a late charge of one percent (1 %) per month, (but not in excess of
the rate allowed by law), on any overdue amounts not the subject of a good faith dispute. If full payment is not made within 90 days of final payment due date, Customer is
responsible forall expenses, including legal fees, inured by Kronos for collection.
2. GENERAL LICENSE TERMS
Kronos owns or has the right to license the Software. The Software and Software documentation are confidential and may not he disclosed to a third party without Kronos'
written consent. The Software contains proprietary trade secret technology. Unauthorized use and copying of such Software is prohibited by law, including United States
and foreign copyright law. The price Customer pays for a copy of the Software constitutes a license Ira that entitles Customer to use the Software as set forth below. Kronos
grans to Customer a non - exclusive, nontransferable, perpetual (except as provided herein) license to use the Software. This license may be terminated by Kronos by
written notice to Customer upon any material breach of this Agreement by Customer which amain uncured for a period of thirty (30) days alter such written notice from
Kronos. Upon such termination of this license by Kronos, Customer will have no further right to use the Software and will return the Software media to Kronos and destroy all
copies of the Software (and related documentation) in Customer's possession or control. This license is subject to all of the temps of this Agreement.
3. FEE BASED LIMITATIONS
Customer recognizes and agrees that the license to use the Software is limited, basal upon the amount of the license fee paid by Customer. Limitations, which are set forth
on the Older Form, may include the number of employees, simultaneous or active users, Software product modules, Software features, computer model and serial number
and partition, and/or the number of telephone lines or terminals to which the Software is permitted to be comaxted. Customer agrees to: i) use the Software only for the
number of employees, simultaneous or active users, computer model, partition and serial number, and /er terminals permitted by the applicable license fee; ii) use only the
product modules and/or features permitted by the applicable license fees; and iii) use the Software only in support of Customer's own business. Customer agrees not to
increase the number of employees, simultaneous or active users, partitions, terminals, products modules, features, or to upgrade the model, as applicable, unless and until
Customer pays the applicable fee for such increase/upgrade. Customer may not relicense or sublicense the Software to, or otherwise permit use of the Software (including
timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Software without the
express prior written consent of Kronos.
4. OBJECT CODE ONLY
Customer may use the computer programs included in the Software (the "Programs") in object code forth only, and shall not reverse compile, disassemble or otherwise convert
the Programs into uncompiled or unassembled code. The Programs include components owned by third parties. Such third pony components are deemed to be Software
subject to this Agreement. Customer shall not use any of the Programs (or the data models therein) except solely as part of and in connection with the Software and as
described in the published documentation for such Software. Customer shall indemnify and hold harmless Kronos for all damages or liability caused by Customer's
failure to comply with the foregoing restriction.
5. PERMITTED COPIES
Customer may copy the Pmgmms as reasonably necessary to load and execute the Programs and for backup and disaster recovery and testing purposes only, except for
additional copies of the Teletime Software and the Kronos iSeries (which must be licensed sepannely). All copies of the Programs or any part thereof, whether in printed or
machine readable form and whether on storage media or otherwise, are subject to all the terns of this license, and all copies of the Programs or any part of the Programs shall
incbudethe copyright and proprietary rights notices contained in the Programs as delivered to the Customer.
6. UPDATES
In the event that Kronos supplies Service Packs, Point Releases and Major Releases (including legislative updates if available) of the Software (collectively referred to as
"Updated'), such Updates shall be pan of the Software and the provisions of this license shall apply to such Updates and to the Software as modified thereby.
7. EXPORT
Customer acknowledges that the Equipment and Software may be restricted by the United States Government or by the country in which the Equipment or Software is
installed from export to certain countries and certain organizations and individuals, and agrees to comply with such laws. Customer agrees to comply with all applicable
laws of all of the countries in which the Equipment and Software may be used by Customer and shall indenuufy Kronos for any noncompliance which results in damages
or liability for Kronos. Customer's obligations hereunder shall survive the termination or expiration of this Agreement. Customer must obtain Kronos' prior written
consent before exporting the Software.
SRT 11S 081414,Un.14c.15. 17.19
EXuer?!T
/of 5-
Kronos Incorporated
297 Billerica Road
Chelmsford, MA 01824
Phone: (978)250 -9800
Page: 2 / 5
8. FIRMWARE
Customer may not download firmware updates for the Kronos Equipment unless Customer is maintaining such Equipment under a support plan with Kronos. If Customer is
not maintaining the Equipment under a support plan with Kronos, Kronos shall have the right to verify Customer's Kronos Equipment to determine if Customer has
downloaded any firmware to which Customer is not entitled. If Customer has downloaded firmware for the Kronos Equipment to which Customer is not entitled,
Customer shall be responsible to pay Kronos for such updated firmware in accordance with Kronos' then-current support policies.
9. TRAINING POINTS
Training Points which am pumlasnl by Customer may be redeemed for an equivalent value of instructor -lad training sessions offered by Kronos. Available instructor -led
sessions are listed at : / /customer.Kronos.corn and each session has the Training Points value indicated. Training Points may he redeemed at any time within 12 months of
the date of the applicable Order Form, at which time they shall expire. Training Points may not be exchanged for other Kronos products and/or services. Kronos will
invoice Customer for the Training Points identified in the Order Form upon execution of such Order Form with payment due upon the payment teats indicated in such
Order Form.
10. ACCEPTANCE
For Customer's initial purchase of each Equipment and Software product Kronos shall provide an acceptance test period (the "Test Period ") that commences upon
Installation. Installation shall be defined as: a.) the Equipment, if any, is mounted; b.) the Software is installed on Customer's server(s); and c.) implementation team
training, if any, is complete. During the Test Period, Customer shall determine whether the Equipment and Software meet the Kronos published electronic documentation,
( "Specifications').
The Test Period shall be for 30 days. If Customer has not given Kronos a written deficiency statement specifying how the Equipment or Software fails to meet the
Specifications ( "Deficiency Statement ") within the Test Period, the Equipment and Software shall be deemed accepted. If Customer provides a Deficiency Statement within
the Test Period, Kronos shall have 30 days to correct the deficiency, and Customer shall have an additional 30 days to evaluate the Equipment and Software. If the
Equipment or Software does not meet the Specifications at the end of the second 30 day period, either Customer or Kronos may terminate this Agreement. Upon any such
termination, Customer shall return all Equipment and Software (and related documentation) to Kronos, and Kronos shall refund any monies paid by Customer to Kronos
for the retumed Equipment and Software. Neither party shall then have any further liability to the other for the products that were the subject of the Acceptance Test.
11. LIMITED WARRANTY
Kronos warrants that all Kronos Equipment and Software malia shall be free from deftxts in materials and workmanship, for a period of ninety (90) days from Delivery. In the
event of a breach of this warranty, Customer's exclusive remedy shall be Kronos' repair or replacement of the deficient Equipment and/or Software media, at Kronos'
option, provided that Customer's use, installation and maintenance thereof have conformed to the Specifications. This warranty is extended to Customer only and shall not
apply to any Equipment (or pans thereof) or Software media in the event of:
(a) damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, (including modification or replacement of any Kronos components on any
boards supplied with the Equipment), unusual physical or electrical stress or causes other than normal and intended use;
(b) failure of Customer to provide and maintain a suitable installation environment, as specified in the Specifications; or
(c) malfunctions resulting from the use of badges or supplies not approved by Kronos.
When using and applying the information generated by Kronos products, Customer is responsible for ensuring that Customer complies with the applicable requirements of
federal and state law. If Customer is licensing Workforce Payroll Software or Workforce Absence Management Software: (i) Customer is solely responsible for the
content and accuracy of all reports and documents prepared in whole or in part by using such Software, (ii) using such Software does not release Customer of any
professional obligation concerning the preparation and review of such reports and documents, (iii) Customer does not rely upon Kronos, Best Software, Inc. or such
Software for any advice or guidance regarding compliance with federal and state laws or the appropriate tax treatment of items reflected on such reports or documents, and
(iv) Customer will review any calculations made by using such Software and satisfy itself that those calculations are correct.
12. INDEMNIFICATION
Kronos agrees to indemnify Customer and to hold it harmless from and against any and all claims, costs, fees and expenses (including reasonable legal fees) relating to
actual or alleged infringement of United States or Canadian patents or copyrights asserted against Customer by virtue of Customers use of the Software as delivered and
maintained by Kronos, provided than i) Kronos is given prompt written notice of any such claim and has sole control over the investigation, preparation, defense and
settlement of such claim; and, ii) Customer reasonably cooperates with Kronos in connection with the foregoing and provides Kronos with all information in Customer's
possession related to such claim and any further assistance as reasonably requested by Kronos. Kronos will have no obligation to indemnify Customer to the extent any
such claim is based on the use of the Software with software or equipment not supplied by Kronos. Should any or all of the Software as delivered and maintained by
Kronos become, or in Kronos' reasonable opinion be likely to become, the subject of any such claim, Kronos may at its option: i) procure for Customer the right to
continue to use the affected Software as contemplated hereunder; ii) replace or modify the affected Software to make its use non - infringing; or iii) should such options not
be available at reasonable expense, terminate this Agreement with respect to the affected Software upon thirty (30) days prior written notice to Customer. In such event of
termination, Customer shalt be entitled to a pro-rata refund of all fags paid to Kronos for the affected Software, which refund shall be calculated using a five year stmight-
line depreciation commencing with the dale of the relevant Order. Additionally, Kronos agrees to be liable for tangible property damage or personal injury caused solely
by the negligence or willful misconduct of its employees.
13. PROFESSIONAL AND EDUCATIONAL SERVICES
(a) TRAVEL EXPENS ES
Customer agrees to reimburse Kronos for all reasonable and actual travel incurred by Kronos, that has been pre - approved in writing by the Customer,
(b) ENGAGEMENTS
Unless otherwise indicated on the Order Form, Professional and Educational Services ( "Professional Services ") shall be provided on a time and Inaterial basis at the rates
set forth in the Order Form. If a dollar limit is stated in the Order Form or any associated statement of work ( "SOW "), the limit shall be deemed an estimate for
Customers budgeting and Kronos' resource scheduling purposes. After the dollar limit is expended, Kronos will continue to provide Professional Services on a time and
materials basis, if a Change Order or Schedule of Services for continuation of the Professional Services is signal by the parties.
SRT JJS OP1414_I3a.14c.16.V.19
EXH!R!T 4 2 af 5
Kronos Incorporated
297 Billerica Road
Chelmsford, NIA 01824
Phone: (978)250 -9800
Page: 3 / 5
(c) WARRANTY
Kronos warrants that all professional and educational services performed under this Agreement shall he performed in a professional and competent manner. In the event that
Kronos breaches this warranty, and Customer so notifies Kronos within 30 days of receipt of invoice fur the applicable services, the Customer's sole remedy and Kronos'
exclusive liability shall be to re- perfonn the services which were deficient in a manner so as to confomn to the foregoing warranty, at no additional cost to Customer.
(d) KRONOS PROFESSIONAUEDUCATIONAL SERVICES POLICIES
Kronos' then-current Professional/Educational Services Policies shall apply to all Professional and/or Educational Services purchased under the applicable SOW and may be
accessed at: Jmnjhvww kronor t5mt/SupnmUPartes( Oral }crvvicesEm'anenlgntPoliciesluni ("Professional Services Policies "). In the event of a conflict between the
Professional Services Policies and this Agreement, the terns of this Agreement shall prevail.
14. SOFTWARE SUPPORT SERVICES
(a) SUPPORT OPTIONS
Customer may select from the following Software support purchase options: Gold (or Gold Plus) and Platinum (or Platinum Plus) support ( "Service Type "), each
providing different service coverage periods and/or service offerings, as specified herein ( "Service Offerings ") and in the Kronos Support Service Policies (defined below).
Customer must purchase the same Service Type for all of the Software specified on the Order Form, (however, if Customer is purchasing support services for Visionware
Software, Customer may only purchase Gold Service Type for the Visionware Software). All Updates shall be provided via remote access. Customer may purchase
support services for Equipment in accordance with the teens and conditions of Kronos' standard Equipment Support Services Agreement a copy of which is available
upon request and is located at: Imp : / /www,kruniiccom/I. gal /EuuipnwntS 1 iport tilinx
(b) EXTENDED SUPPORT PROGRAM (DELL SERVERS)
Customers purchasing the Extended Support Program (as indicated on the Order Form) for their Dell servers purchased from Kronos shall receive a specialized, bundled
set of Kronos Support Services. Because of the specialized nature of these services, the terms and conditions located at
http`//www kronos. corer l.egaifShppleinenal1enn9,a,,,pg shall supersede the provisions of this Agreement for the Extended Support Program.
(c) TERM OF SOFTWARE SUPPORT
Unless otherwise indicated on the Order Form, support service shall commence on the Software Delivery date and shall continue for an initial tens of one (1) year. This
support may be renewed for additional one (1) year terms on the anniversary date of its commencement date ( "Renewal Date ") by mutual written agreement of the parties.
After the one year initial term of this Agreement, the Service Offerings provided and the Service Coverage period are subject to change by Kronos with sixty (60) days
advance written notice to Customer. For the initial two (2) renewal years the annual support fee, for the same products and service type, will not increase by more than 4%
over the prior year's annual support fee.
(d) GOLD SERVICE OFFERINGS
Customer shall be entitled to receive:
(i) Updates for the Software (not including any Software for which Kronos charges a separate license fee), provided that Customer's operating system and Wuipmeit
meet Ininimum system configuration rrxryiremenls, as reasonably determined by Kronos. If Customer requests Kronos to install such Updates or to provide retraining,
Customer agrees to pay Kronos for such installation or retraining at Kronos' then-current time and materials rate.
(ii) 'Telephone and/or electronic access to the Kronos Global Support Center for the logging of requests for service during the Service Coverage Period. The Service
Coverage Period for the Gold Service Offering is 8:00 a.m. to 8:00 p.in., local time, Monday through Friday, excluding Knmos holidays.
(iii) Web -based support including access to Software documentation, FAQ's, access to Kronos knowledge base, Customer forums, and a -case management. Such
offerings are subject to modification by Kronos. Current offerings can he found at Ili ujjr//t vwiv. kralirs. coreiservieesisuupon- serviees.aspx .
(iv) Web -based remote diagnostic technical assistance which may be utilized by Kronos to resolve Software functional problems and user problems during the Service
Coverage Period.
(v) Access to specialized content as and when made available by Kronos such as technical advisories, learning quick tips, brown hag seminars, technical insider tips,
SHRM e- Learning, HR Payroll Answerforce and service case studies.
(e) PLATINUM AND PLUS SERVICE OFFERINGS:
Platinum: In addition to the Service Offerings specified for the Gold Service Offering above, the Service Coverage Period for the Platinum Service Offering is 24 hours a
day, seven days a week, 365 days a year.
Pius option: In addition to the Service Offerings specified for 01e Gold Service Offering above, eusnoners purchasing the Plus option shall receive the services of a
dedicated, but not exclusive, Kronos Technical Account Manager (TAM ") for one production instance of the Software. Customers purchasing the Gold -Plus option shall
designate up to one primary and one secondary backup technical contacts ('Technical Contacts ") to be the sole contacts with the TAM, white customers purchasing the
Platinum -Plus option shall designate up to two primary and three secondary backup Technical Contacts. Upon request, Custorner may designate additional and/or backup
Technical Contacts. Customer is required to place all primary Technical Contacts through Kronos product training for due Software covered under this Agreement at
Customer's expense.
Customers purchasing the Platinum -Plus option shall also receive a one day per year visit to be performed at the Customer location where the Software is installed. During
this onsite visit, Kronos shall work with Customer to identify ways to help Custorner increase functionality or maximize utilization of the Software in Customer's specific
environment. Customer must be utilizing the then - current version of the Software. Travel and expenses are not included and shall be paid by Customer.
(1) PAYMENT
Custorner shall pay annual support larger for the initial temp it accordance with the payment terms on the Order Form and for any renewal tern upon receipt of invoice.
Customer shall pay additional support charges, if any, and time and material charges upon receipt of invoice.
(g) ADDITION OF SOFTWARE
SRT JJS 0H1414_I3a.14c16. 17.19
EXHIBIT /" 3 £<
Kronos Incorporated
297 Billerica Road
Chelmsford, MA 01824
Phone: (978)250 -9800
Page: 4 / 5
Additional Software purchased by Customer during the initial or any renewal term shall be added to this Agreement at the salve support option as the then current Software
support coverage in place under these terms. Customer agrees to pay the charges for such addition, and any such addition shall be automatically renewed as provided in these
terms.
(h) RESPONSIBILITIES OF CUSTOMER
Customer agrees (i) to provide Kronos personnel with full, free and safe access to Software for purposes of support, including use of Kronos' standard remote access
technology, if required; (u) to maintain and operate the Software in an environment and according to procedures which conform to the Specifications; and (iii) not to allow
support of the Software by anyone other than Kronos without prior written authorization from Kronos. Failure to utilize Kronos' remote access technology may delay
Kronos' response and/or resolution to Customers reported Software problem. If Customer requires the use of a specific remote access technology not specified by Kronos,
then Customer must purchase the Plus option to receive support and provide Kronos personnel with full, free and safe access to the remote access hardware and/or
software.
(i) DEFAULT
Customer shall have the right to tenninate Kronos support services in the event that Kronos is in breach of the support services warranty set forth below and such breach is
not cured within fifteen (15) days after written notice specifying the nature of the breach. In the event of such termination, Kronos shall refund to Customer on a pro-ram
basis those pre -paid annual support fees associated with the unused portion of the support term. Krems reserves the right to terminate or suspend support service in the event
the Customer is in default under this Agreement with Kronos and such default is not cornrotcd within fifteen (15) days after written notice. In addition, the support services will
terminate and all charges due hereunder will become immediately due and payable in the event that Customer ceases to do business as a going concern or has its assets
assigned by law.
(1) WARRANTY
Kronos warrants that all support services shall be perforated in a professional and competent manner.
(k) KRONOS SUPPORT SERVICE POLICIES
Kronos' then- cuneot Support Services Policies shall apply to all Support Services purchased and may be accessed at
littn://www.kamos.comrSupport/SupoottServiettsPoliciesittin ( "Support Policies"). In the event of a conflict between the Support Policies and this Agreement, the terms of
this Agreement shall prevail.
15. KNOWLEDGEPASS EDUCATION SUBSCRIPTION:
The parties hereby agree that the following terms shall apply to Customer's purchase of the Kronos KnowledgePass Education Subscription only, if sprx:ified on the Order
Form:
(a) Scope: The KnowledgePass Education Subscription is available to customers who are licensing Kronos' Workforce Central and iSeries Timekeeper Software products
and who are maintaining such products under a support plan with Kronos. The KnowledgePass Education Subscription provides access via the interact to certain educational
offerings provided by Kronos (the "KnowledgePass Content "), including:
• Product and upgrade information for project teams and end users
• Hands -on interactive instruction on common tasks
• Self-paced tutorials covering a range of topics
• Job aids
• Knowledge assessment and reporting tools to measure progress
• Webinars
(b) Term of Subscription: The KnowledgePass Education Subscription shall run co-tenninously with Customer's Software Support, and shall renew for additional one (1) year
terms provided Customer renews its KnowledgePass Education Subscription as provided below.
(c) Payment: Customer shall pay the annual subscription charge for the initial term of the KnowledgePass Education Subscription in accordance with the payment teens on
the Order Form. Kronos will send Customer a renewal invoice for renewal of the KnowledgePass Education Subscription at least forty five (45) days prior to expiration of the
then current teat. KnowledgePass Education Subscription shall renew for an additional one (1) year term if Customer pays such invoice before the end of the initial term or
any renewal term.
(d) Limitations: Customer recognizes and agrees that the KnowledgePass Content is copyrighted by Kronos. Customer is pemtitted to make copies of the KnowledgePass
Content provided in •pdf form solely for Customer's internal use and may not disclose such KnowledgePass Consent to any third party other than Customer's employees.
Customer nay not edit, modify, revise, amend, change, alter, customize or vary the KnowledgePass Content without the written consent of Kronos, provided that
Customer may download and modify contents of Training Kits solely for Customer's internal use.
(e) Train- the-Trainer Program (TTT): Certification under the Train- the - Trainer Program is valid only for the point release of the Software for which the TTT Program is
taken, and covers only the Customer employee who completes the TTT Program.
16. CONFIDENTIAL INFORMATION
"Confidential Information" is defined as information that is: i) disclosed between the parties after the date of this Agreement that is considered confidential or proprietary to the
disclosing party; and ii) identified as `confidential" at the time of disclosure, or would be reasonably obvious to the receiving party to constitute confidential information
because of legends or other markings, by the circumstances of disclosure or the nature of the information itself Additionally, the Software (and Software documentation) and
the Specifications shall be deemed to be Kronos' Confidential Information. Each party shall protect the Confidential Information of the other party with at least the same
degree of care and confidentiality, but not less than a reasonable standard of care, which such party utilizes for its own information of similar character that it does not
wish disclosed to the public. Neither party shall disclose to third parties (except the parent company or the wholly owned subsidiaries of the receiving parry who have a
need to know) the other party's Confidential Information, or use it for any purpose not explicitly set forth herein, without the prior written consent of the other party. The
obligation of confidentiality shall survive for three (3) years after the disclosure ofsuch Confidential Information.
This Agreement imposes no obligation upon either party with respect to the other party's Confidential Information which the receiving party can establish by legally
SRT rr5 OtI414_13a 14r.tt.17,59
EXHIBIT A Li of
Kronos Incorporated
297 Billerica Road
Chelmsford, MA 01824
Phone: (978)250 -9800
Page: 5 / 5
sufficient evidence: (a) was rightfully possessed by the as:eiving party without an obligation to maintain its confidentiality prior to receipt from the disclosing party, (b) is
generally known to the public without violation of this Agreement; (c) is obtained by the receiving party in good faith front a third party having the right to disclose it without
an obligation with respect to confidentiality; (d) is independently developed by the receiving party without use of the disclosing party's confidential information, which can
be shown by tangible evidence; or (e) was required to be disclosed by applicable law; provided that the receiving party notifies the disclosing party of such requirement prior to
disclosure, and provided further that the receiving party makes diligent efforts to limit disclosure.
17. THIS SECTION WAS DELETED INTENTIONALLY..
18. LIMITATION OF LIABILITY
CUSTOMER'S EXCLUSIVE REMEDIES AND KRONOS' SOLE LIABILITY FOR ANY KRONOS BREACH OF THIS AGREEMENT ARE EXPRESSLY STATED
HEREIN. EXCEPT AS PROVIDED IN THIS AGREEMENT, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED.
EXCEPT FOR KRONOS' INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL KRONOS' OR ITS PARENTS',
SUBSIDIARIES', AFFILIATES', OR THIRD PARTY LICENSOR'S LIABILITY TO A CUSTOMER, HOWSOEVER CAUSED, EXCEED TILE VALUE OF THE
ORDER WHICH GIVES RISE TO THE CLAIM, AND IN NO EVENT WILL KRONOS OR ITS PARENTS, SUBSIDIARIES AFFILIATES OR THIRD PARTY
LICENSORS BE LIABLE FOR LOST PROFITS, LOST DATA OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS
AGREEMENT WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR THE EXISTENCE, FURNISHING, FUNCTIONING OR
CUSTOMER'S SPECIFIC USE OF, OR INABILITY TO SO USE, ANY EQUIPMENT, SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT.
19. GENERAL
(a) This Agreement shall be governed by Indiana law, provided however, if such jurisdiction has adopted the Uniform Computer Information Transactions Act (UCITA),
or such other similar law, the parties expressly agree to "opt -out" of and not he governed by UCITA or such other similar law. The parties waive the application of the
United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or
enforcement of this Agreement.
(b) The invalidity or illegality of any provision of this Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected
provisions to remain in full force and effect.
(c) Customer shall not assign this Agreement or the license to the Software without the prior written consent of Kronos and any purported assignment, without such
consent, shall be void.
(d) Neither party shall be liable for failures or delays in performance due to causes beyond its reasonable control, including war, strikes, lockouts, fire, flood, storm Or
other acts of God. Both parties agree to use their best efforts to minimize the effects of such failures or delays.
(c) All notices given under this Agreement shall be in writing and sent postage pre -paid, if to Kronos, to the Kronos address on the Order Form, or if to Customer, to the
billing address on the Order Fonn.
(f) THIS SECTION WAS DELETED INTENTIONALLY.
(g) The section headings herein are provided for convenience only and have no substantive effect on the conshucdon of this Agreement.
(h) The parties agree that if this Agreement is delivered via fax or electronically delivered via etnail it shall constitute a valid and enforceable agreement.
(i) This Agreement and any information expressly incorporated herein (including information contained in any referenced URL), together with the applicable Order Form,
constitute the entire agreement between the parties for the products and services described herein and supersede all prior or contemporaneous representations, negotiations,
or other communications between the parties relating to the subject matter of this Agreement. This Agreement may be amended only in writing signed by authorized
representatives of both parties. Customer understands and acknowledges that while Kronos may disclose to customers certain confidential information regarding general
product development direction, potential future products and/or product enhancements under consideration, Customer is not entitled to any products or product
enhancements other than those contained on the Order Form. Customer has not relied on the availability of any future version of the Software or Equipment identified on an
Order Form, nor any other future product in executing this Agreement.
(j) Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and
Computer Software clause at DEARS 252.227 -7013, or subparagraph (c)(1)(2) of the Commercial Computer Software Restricted Rights clause at FAR 52.227 -19, as
applicable. Manufacturer /distributor is Kronos Incorporated, 297 Billerica Road, Chelmsford, MA.
EXHIBIT A <
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