HomeMy WebLinkAbout10 - Recreation Registration Software UpgradeCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 10
June 22, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Recreation & Senior Services Department
Laura Detweiler, Director
949 - 644 -3157, Idetweiler(a)newportbeachca.00v
Matthew Lohr, Recreation Manager
949 - 644 -3164, mlohr(cDnewoortbeachca.gov
SUBJECT: REGISTRATION SOFTWARE UPGRADE WITH THE ACTIVE NETWORK TO
PROVIDE RECREATION CLASS REGISTRATION, MEMBERSHIP, POINT OF
SALE AND FACILITY RESERVATION SERVICES
ISSUE
Should the City upgrade the software for recreation registration, facility reservations, point of
sale and membership utilized by the Recreation & Senior Services Department to ActiveNet?
RECOMMENDATION
City Council authorize the waiver of Council Policy F -5, the adopted purchasing
guidelines, and authorize the Recreation & Senior Services Director and the City
Attorney or his designee to negotiate with the sole source vendor The Active Network
(TAN) for maintenance support and hosting data to upgrade the existing software of
Recware Safari to ActiveNet which provides online recreation class registration,
membership, and facility reservation services; and
2. Approve a three -year contract, with option to renew annually after the first three years
with TAN; and
Authorize the City Manager to negotiate and execute contract extensions at the end of
the initial three -year contract on a year -to -year basis.
DISCUSSION
BACKGROUND:
Current Software — RecWare Safari - The
RecWare Safari ( "Safari ") software owned
90% of the recreation registration software
dollar company. Other local cities such a
software companies which have proven tc
the product and /or going out of business.
Recreation & Senior Services Department has used
by TAN for over 10 years. TAN oversees more than
in the United States & Canada and is a multi - billion
Garden Grove and Costa Mesa have used other
be problematic with the companies not supporting
Currently, the City hosts RecWare Safari on City servers and software updates /improvements
are completed by the IT Division. Approximately three years ago TAN announced that they
would no longer provide enhancements to Safari but would continue technical support of the
product until 2012. With this 3 -5 year period of no enhancements, the City will lose the
opportunity to utilize new technologies to improve customer service, communication, reduce
staff resources needed for management and to provide the most effective technology available.
REGISTRATION SOFTWARE UPGRADE WITH THE ACTIVE NETWORK TO PROVIDE RECREATION CLASS
REGISTRATION, MEMBERSHIP, POINT OF SALE AND FACILITY RESERVATION SERVICES
Page 2
In addition to the improved technology, there is a need to purchase a membership software
module for the OASIS Fitness Center as well as enhance the City's servers to meet mandatory
PCI Compliance (security of credit card and customer data). With this software upgrade TAN
will provide for these needs with their new generation software — ActiveNet, which will replace
RecWare Safari and provide the membership software needed for the new Fitness Center at
OASIS. And finally, Recware Safari will not operate with the Windows 7 operating system which
the City will eventually migrate to.
Proposed Software – ActiveNet - ActiveNet owned by TAN is a full- featured management
solution, designed to give the City secure, on- demand access to our organization's data from
any computer with an Internet connection. TAN hosts and manages the data securely, through
their servers, using the latest technology infrastructure. This will allow the City to avoid major
upfront investments in computer hardware upgrades, software licenses, web servers and allow
the City to be PCI compliant with major credit card providers. Outside hosting of credit card
information would shift the liability from the City to TAN.
Staff recommends that the City upgrade to TAN's fully hosted recreation application, ActiveNet
for the following reasons:
• TAN has offered a $21,866 savings of transactions fees per year, for the first two years
which is a prorated incentive by TAN to offset the remaining life of the current software.
• The Membership Software Module to accommodate the OASIS Fitness Center in fall 2010
will be included.
• Enhanced services to residents, businesses and visitors:
• User friendly and will improve customer service.
• Online module for membership, class registration and facility use (currently only class
registration is offered online).
• Customers can request automatic payments to cover costs of ongoing classes.
• Enhanced security of customer data. Software is PCI Compliant (securing credit card
and customer information data on TAN servers).
• Offer membership /punch passes for lap swim, recreational swim and fitness classes.
• Better communication between instructors, students and service desks through readily
available data.
• Reduced Administrative Services Department IT support and yearly cost to maintain
servers. Infrastructure fully maintained by TAN.
• Enhanced marketing and financial reports.
• Software will integrate with Finance Plus (the City's Finance software), currently RecWare
Safari does not.
• All community centers and pools will have access to software. Also, Park Patrol will be able
to view reservations and classes while in the field.
• Quick implementation of updates and enhancements to software at no additional cost.
• Expanded customer support hours and days for City staff to contact ActiveNet software
customer support.
• Unlimited number of licenses and workstations will have access to the system. With
RecWare Safari the City pays for each workstation license which can limit staff access to
information.
• Added online instructor tools for instructors to log -in to print class rosters, attendance
sheets, class schedules, etc., which will reduce City staff time.
REGISTRATION SOFTWARE UPGRADE WITH THE ACTIVE NETWORK TO PROVIDE RECREATION CLASS
REGISTRATION, MEMBERSHIP, POINT OF SALE AND FACILITY RESERVATION SERVICES
Page 3
Recreation staff, Administrative Services Infordmation Technology Division and TAN held a live web
meeting to review the capabilities of ActiveNet. Recreation staff also visited other southern
California cities that use ActiveNet. All agencies expressed their recommendation of the software
quality and support provided by TAN.
ActiveNet software is patented to TAN. They are the sole licensor of the software and the only third
party solution available that provides a software system that meets the needs of the Recreation &
Senior Services Department.
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As an alternative to this upgrade solution, continued use of the existing software RecWare Safari
would remain with no enhancements and a fiscal increase to the budget in the amount of $150,000
— $180,000 for FY 2010/11 to upgrade the City's servers to meet the PCI (Payment Card Industry)
standards as required by law and an ongoing cost of $50,000 - $60,000 per fiscal year, to have the
City servers audited.
FISCAL IMPLICATION
The upgrade of the software will not increase expenditures to the General Fund, detailed below
by increasing user administrative fee by $2 per transaction and lowering the credit processing
fee percentage between .25% and .95 %.
Software Maintenance Fee - TAN's software maintenance fees will apply 4.25% per total
transaction receipt for online internet registration and 1.5% for fax and walk in registration. The
Department will increase the current administration fee from $3 to $5 per program or facility
reservation to cover the software maintenance fee. The administration fee, which has not
increased since it was established in 2000 exists to assist with processing costs. The increase
in administration fees will offset the cost difference in price between what the City currently pays
for RecWare Safari and upgrading to ActiveNet.
Credit Card Processing Fee - Currently the City pays between 2.5% and 3.2% in credit card
fees per transaction, which is included in the budget each year.
The City has negotiated with TAN to manage credit card processing services with this software
upgrade, which they would charge a set 2.25% for all credit card transaction fees which will
decrease expenditures for credit card processing fees to the budget.
ENVIRONMENTAL REVIEW
The City Council's approval of this Agenda Item does not require environmental review.
PUBLIC NOTICE
The agenda item has been noticed according to the Brown Act (72 hours in advance of the
meeting at which the City Council considers the item).
Prepared by: Submitted by:
Matthew Lohr aura Detweil
Recreation Manager ecreation & Senior Services Director
Attachment: Contract with The Active Networ
PRODUCTS AND SERVICES AGREEMENT
ORGANIZATION FULL
LEGAL NAME:
City of Newport Beach
Recreation & Senior Services
Department
ADDRESS:
3330 Newport Blvd.
Newport Beach, CA 92663
CONTACT NAME:
Teri Craig
Matt Lohr
TELEPHONE:
(949) 644 -3158
(949) 644 -3164
EMAm:
tcraia(a)newportbeachca.gov
FAx:
(949) 644 -3155
mlohr@newoortbeachca aov
Pricing Form
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Ibis document (the "Agreement') consists of this cover page, the General Terms, and the following Schedules and Exhibits
(check all applicable Schedules)
X
Schedule A:
Hosted Software
X
Schedule B:
Licensed Software; Support and Maintenance
X
Schedule C:
Third Party Products
X
Exhibit 1:
Pricing Form
Exhibit 2:
Services Exhibit
X
Exhibit 3:
Maintenance Exhibit
NOTE: If customer is tax exempt, certificate must be provided along with signed contract.
In consideration of the mutual promises and covenants contained in this Agreement, Customer and TAN hereby agree to be
bound by this Agreement. By signing below, Customer acknowledges and confirms that it has read the General Terms and all
attached Schedules and understands that each forms an integral part of this Agreement.
CUSTOMER
THE ACTIVE NETWORK, INC. ( "TAN ")
h
Signature:
Signature:
Name: Laura Detweiler
Name:
Title: Recreation & Senior Services
Title:
Director
Date:
Date:
o ne Active nctworK, mc., Iul bL Iclesls Cotm, San Ltego, [,'alltomla 92121
Telephone: (858) 964 -3801, Fax: (858) 964 -3978
GENERALTERMS
GENERAL TERMS: TERMS APPLICABLE TO ALL
PRODUCTS AND SERVICES
INTERPRETATION
1.1 Definitions. For the purposes of interpreting this
Agreement, the following terms will have the following
meanings:
(a) "Agreement" means this Products and Services
Agreement, inclusive of all Schedules.
(b) "Concurrent Use" means use at the same moment in time
to access a given server computer (of any kind) owned or
controlled by Customer.
(c) "Customer" means the legal entity other than TAN
entering this Agreement.
(d) "Database Server" means the single server computer upon
which the Enterprise Database is resident.
(e) "Effective Date" means the last date set forth on page one
of this Agreement.
(f) "Enterprise Database" means the MSDE, MS SQL
Server, or Oracle database files containing customer data and
that are accessed by the Licensed Software.
(g) "Hosted Software" means computer code and programs,
in executable code form only, including related data files, rules,
parameters and documentation, which have been created or
licensed by TAN and are identified in the Pricing Form as
licensed (or sublicensed) to Customer by TAN in connection
with this Agreement, and which reside on TAN's servers and are
accessible by Customer's staff or Users via the Internet.
(h) "Internet Client" means a remote device capable of using
the Internet to access selected Licensed Software on the Internet
Server or the Enterprise Database on the Database Server via the
Intemet Server.
(i) "Internet Server" means a single server computerused by
Customer which enables access to the Licensed Software by
individuals using an Intranet or the Intemet, having a minimum
configuration as set out in hardware specifications previously
described to Customer as applicable to the Licensed Software to
be installed and used upon it.
(j) "IVR Server" means a single server computer used by
Customer for voice - recognition and telephone- based, rather than
computer- based, access to the Enterprise Database by
Customer's clients, having a minimum configuration as set out in
hardware specifications previously described to Customer as
applicable to the Licensed Software to be installed and used
upon it.
(k) "Licensed Software" means computer code and programs,
in executable code form only, including related data files, rules,
parameters and documentation, which have been created or
licensed by TAN and are identified in the Pricing Form as
licensed (or sublicensed) to Customer by TAN in connection
with this Agreement, and/or which are in the future provided to
Customer by TAN under any circumstances unless provided
under a separate licensing agreement.
(1) " Maintenance" means the provision of error investigation
and repair services as set out in sections 22 through 25,
Maintenance Exhibit 3, and the provision of new Versions and
Releases in respect of the Licensed Software all as more
particularly set out in the Support and Maintenance Handbook.
(m) "Module" means a single module element of Licensed
Software listed in the Pricing Form.
(n) "Online Services" means services, such as Internet
registration, that are enabled by Hosted Software and available to
the public via the Intemet.
(o) "Other Services" means Services other than Pre - Agreed
Services acquired by Customer under this Agreement or any
further Professional Services as provided in an agreed Statement
of Work, purchase order, or pricing form.
(p) "Payment Server" means a single server computer used by
Customer to process electronic payments from its clients, having
a minimum configuration as set out in hardware specifications
previously described to Customer as applicable to the Licensed
Software to be installed and used upon it.
(q) "Pre- Agreed Services" means Services which are
expressly listed in the Pricing Form as being acquired hereunder
by Customer.
(r) "Pricing Form" means the itemized pricing form attached
as Exhibit 1 to the Agreement listing the products and services
provided by TAN to the Customer under this Agreement
(s) "Products" means all Licensed Software, Hosted Software,
Third Party products, and other products (including
documentation) provided to Customer by or on behalf of TAN.
(t) "Professional Services" means any and all types of
services which TAN provides, to Customer and /or to other
customers of TAN, in the course of TAN's business, including
but not limited to services relating to the installation,
implementation, optimization, administration, training and
troubleshooting of computers, computer software including the
Licensed Software, computer networks, databases, intetnet-
related equipment and applications, but expressly excludes
Support and Maintenance. Professional Services that are not
included as part of the Pre - Agreed Services, as defined above,
shall be as set forth in any applicable and mutually agreed
statement(s) of work (each a "Statement of Work "). Each such
Statement of Work shall, upon mutual agreement by the parties,
become part of and incorporated by reference into this
Agreement.
(u) "Related Third Party Documentation" means any end
specifications, manuals, instructions, and other materials, and
any copies of any of the foregoing, in any medium, related to the
Third Party Products and supplied by TAN to Customer with the
Third Party Products.
GENERALTERMS
(v) "Release" means any release, update, patch, set of
revisions, or bug/permanent fix or temporary bypass solution
released by TAN to its customers generally during the term of
this Agreement, which provides enhancements and/or error
corrections to the then- 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.
(w) "Services" means all Professional Services, Support and
Maintenance, Online Services, and other services provided to
Customer by or on behalf of TAN.
(x) "Software" means the Licensed Software and the Hosted
Software as defined elsewhere in this section.
(y) "Support" means the ongoing telephone, email, web -
based and dial -in support and problem resolution to assist
Customer in the use of the Licensed Software, the Hosted
Software, and other services and products of TAN as set out in
the Support and Maintenance Handbook.
(z) "Support and Maintenance Handbook" means the
documents published by TAN setting out the applicable service
levels, processes, restrictions, and other particulars of Support
and Maintenance provided in respect of the Software and Other
Services and Products of TAN, as amended from time to time
upon notice to Customer.
(aa) "Support and Maintenance Start Date" means, for
implementations performed by TAN, the first day of
implementation of the Licensed Software or 90 days following
the delivery of the Licensed Software, whichever occurs first,
and upon delivery of the Licensed Software for implementations
being performed by the customer or a 3rd party vendor.
(bb) "System Utilities" includes the following: Accounting
Processes, Central Login, Log File, Copy Database, Maintain
Database, MSDE Tool, Oracle Setup Utility, Query Tool,
System Maintenance, Upgrade Database and View Components.
(cc) "TAN" means The Active Network as referenced on the
first page of this Agreement.
(do) "Third Party Products" means those hardware, firmware
and/or software products, provided to TAN by third parties,
listed in the Pricing Form, together with all user manuals and
other documents accompanying the delivery of the Third Party
Products, provided that the Third Party Products shall not
include software developed by TAN.
(ee) "Third Party Products Support" means assistance to
isolate the source of problems and/or to troubleshoot difficulties
resulting from sources other than TAN products or services, such
as general network support (for example network access,
printing, backup & restoration); PC hardware trouble shooting;
PC setup, configuration and optimization; network operating
system configuration and functionality; basic Microsoft
Corporation "Windows" functionality (for example, using File
Manager or Explorer), modem configuration & setup; data
corruption due to lack of disk space; and loss of supervisor or
other password, all as further set out in the Support and
Maintenance Handbook.
(ff) "User" means a person who accesses and uses any of the
Products in any manner whatsoever.
(gg) "Version" means a version of the Licensed Software
providing a particular functionality, while a new Version of the
Licensed Software will provide new /additional functionality
and/or improvements to a previous Version. New Versions will
be denoted by a change to the version number to the left of the
decimal point such as from Version 1.0 to Version 2.0.
(hh) "Workstation" means a computer attached to a local or
wide -area network (including an Intranet), which accesses the
Licensed Software or Enterprise Database.
1.2 Headings. The headings contained in this Agreement are
inserted for convenience and do not form a part of this
Agreement and are not intended to interpret, define or limit the
scope, extent or intent of this Agreement or any provision hereof.
2. CHARGES AND PAYMENTS
2.1 Taxes and Other Charges. Customer will pay all shipping
& handling costs and, unless exempted by law and unless a valid
tax exemption certificate has been provided to TAN prior to
invoicing, all applicable sales, use, withholding and excise taxes,
and any other assessments against Customer in the nature of
taxes, duties or charges however designated on the Services and
Products or their license or use, on or resulting from this
Agreement, exclusive of taxes based on the net income of TAN.
Sales and any other applicable taxes, duties, or any other charges
in the nature of taxes and duties are not included unless
specifically identified as line items in the Pricing Form, attached
hereto as Exhibit 1 and incorporated here in..
2.2 Currency. Unless otherwise indicated in the Pricing Form,
all prices are in the currency of the country in which the
Customer is located.
2.3 Delivery. Delivery for the Products supplied by TAN under
this Agreement will be deemed to have occurred F.0.13 origin,.
which in the case of Licensed Software and/or Hosted Software
will typically be in the form of an email from TAN providing a
FTP (i.e. file transfer protocol) downloadable link.
2.4 Invoices /Payment. TAN will provide invoices to Customer
for all amounts owing by Customer hereunder. Such invoices
are to be provided as indicated in the attached Schedules or
Pricing Form, and subsequently due within 30 days from the date
of invoice.
3. CUSTOMER INFORMATION; CONFIDENTIALITY
3.1 Customer Information. In order to assist TAN in the
successful provision or services and products to Customer,
Customer shall provide to TAN all information relating to
GENERALTERMS
Customer's organization, technology platforms, systems
configurations, and business processes and otherwise relating to
Customer as is as legally permissible and reasonably requested
by TAN from time to time.
3.2 Confidential Information.
(a) In the performance of or otherwise in connection with this
Agreement, one party ( "Disclosing Party") may disclose to the
other party ( "Receiving Party") certain Confidential Information
of the Disclosing Party. "Confidential Information" means any
information of either party, which is not generally known to the
public, whether of a technical, business or other nature
(including, but not necessarily limited to: trade secrets, know
how, computer program source codes, and information relating
to the customers, business plans, promotional and marketing
activities, finances and other business affairs of such party);
provided that the same is conspicuously marked or otherwise
identified as confidential or proprietary information prior to,
upon or promptly after receipt by the other party; and provided
further that the any software or software application server
source code provided by TAN or its licensors shall be deemed to
constitute Confidential Information without further designation
by TAN. The Receiving Party will treat such Confidential
Information as confidential and proprietary of the Disclosing
Party and will use such Confidential Information solely for the
purposes for which it is provided by the Disclosing Party and
will not disclose such Confidential Information to any third party
(other than a third party under contract whereby that third party
has agreed in writing to keep the Confidential Information
confidential).
(b) Exclusions. The obligations under this paragraph will not
apply to any: (i) use or disclosure of any information pursuant to
the exercise of the Receiving Party's rights under this
Agreement; (ii) information that is now or later becomes
publicly available through no fault of the Receiving Party; (iii)
information that is obtained by the Receiving Party from a third
party authorized to make such disclosure (other than in
connection with this Agreement) without any obligation of
secrecy or confidentiality; (iv) information that is independently
developed by the Receiving Party (e.g., without reference to any
Confidential Information); (v) any disclosure required by
applicable law (e.g., pursuant to applicable securities laws or
legal process), provided that the Receiving Party will use
reasonable efforts to give advance notice to and cooperate with
the Disclosing Party in connection with any such disclosure; and
(vi) any disclosure with the consent of the Disclosing Party.
4. WARRANTY
Limited Warranty of Software. TAN warrants that when
utilized by Customer in a manner authorized hereunder, the
Software will conform to the functional specifications set out in
the user documentation accompanying the Software for ninety
(90) days from delivery of the Software ( "Warranty Period ").
Delivery shall be deemed to have occurred upon TAN's email
transmission of an FTP link to Customer permitting download of
the Software from TAN's designated online site, or where
delivered in the form of physical media, F.O.B. destination.
TAN's sole obligation and liability hereunder with respect to any
failure to so perform will be to use reasonable efforts to remedy
any non - conformity which is reported to TAN in writing by
Customer within that Warranty Period. In the event TAN is
unable to remedy such non - conformity within a reasonable time
using reasonable efforts, a) in respect to the Licensed Software
TAN may refund to Customer the license fee pertaining to the
Licensed Software, subject to Customer's return of the Licensed
Software, and this Agreement will be automatically terminated,
or b) in respect to Hosted Software TAN may refund to
Customer the fees paid by the Customer to TAN for Services
provided to implement the Hosted Software, and this Agreement
will be automatically terminated . All warranty service will be
performed at service locations designated by TAN. This Limited
Warranty is void if failure of the Software has resulted from
accident, abuse or misapplication. Any replacement Software
will be warranted for the remainder of the original warranty
period or 30 days, whichever is longer.
5. EXCLUSION OF WARRANTIES AND
LIMITATION OF LIABILITY
5.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES.
THE EXPRESS WARRANTIES SET OUT IN THIS
AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES, AND THERE ARE NO OTHER
WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
GUARANTEES OF ANY KIND WHATSOEVER
APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW
(IN CONTRACT OR TORT OR OTHERWISE) OR CUSTOM,
INCLUDING, BUT NOT LIMITED TO THOSE REGARDING
MERCHANTABILITY, FITNESS FOR PURPOSE,
DURABILITY, CORRESPONDENCE TO SAMPLE, TITLE,
DESIGN, CONDITION, OR QUALITY. WITHOUT
LIMITING THE ABOVE, TAN DOES NOT WARRANT
THAT ANY PRODUCTS OR SERVICES PROVIDED
HEREUNDER WILL MEET THE REQUIREMENTS OF
CUSTOMER OR THAT THE OPERATION OF PRODUCTS
PROVIDED HEREUNDER WILL BE FREE FROM
INTERRUPTION OR ERRORS.
5.2 RESTRICTIONS ON WARRANTY. TAN HAS NO
OBLIGATION TO REPAIR OR REPLACE PRODUCTS
DAMAGED BY ACCIDENT OR OTHER EXTERNAL
CAUSE OR THROUGH THE FAULT OR NEGLIGENCE OF
ANY PARTY OTHER THAN TAN.
5.3 NO INDIRECT DAMAGES. WITHOUT LIMITING
THE GENERALITY OF SECTIONS 5.1 AND 5.4, IN NO
EVENT WILL TAN BE LIABLE TO CUSTOMER OR TO
ANY OTHER PARTY FOR INDIRECT DAMAGES OR
LOSSES (IN CONTRACT OR TORT OR OTHERWISE),
INCLUDING BUT NOT LIMITED TO DAMAGES FOR
LOST PROFITS, LOST SAVINGS, LOST DATA, LOSS OF
USE OF INFORMATION OR SERVICES, OR INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES.
5.4 LIMITS ON LIABILITY. IF, FOR ANY REASON, TAN
BECOMES LIABLE TO CUSTOMER OR ANY OTHER
PARTY FOR DIRECT OR ANY OTHER DAMAGES FOR
GENERALTERMS
ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE
FORM OF ACTION (IN CONTRACT OR TORT OR
OTHERWISE), THEN:
(a) THE AGGREGATE LIABILITY OF TAN TO
CUSTOMER AND ALL OTHER PARTIES IN CONNECTION
WITH THE PRODUCTS AND THE SERVICES WILL BE
LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT
PAID TO TAN HEREUNDER, DURING THE TWO YEARS
PRECEDING THE LAST INCIDENT GIVING RISE TO THE
LIABILITY; AND
(b) IN ANY CASE CUSTOMER MAY NOT BRING OR
INITIATE ANY ACTION OR PROCEEDING AGAINST TAN
ARISING OUT OF THIS AGREEMENT OR RELATING TO
ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER
MORE THAN TWO YEARS AFTER THE RELEVANT
CAUSE OF ACTION HAS ARISEN.
5.5 SEPARATE ENFORCEABILITY. SECTIONS 5.1
THROUGH 5.4 ARE TO BE CONSTRUED AS SEPARATE
PROVISIONS AND WILL EACH BE INDIVIDUALLY
ENFORCEABLE.
6. RESTRICTIONS
6.1 U.S. GOVERNMENT RESTRICTED RIGHTS. The
Products are provided with restricted rights. Use, duplication, or
disclosure by the U.S. Government is subject to restrictions as
set forth in subparagraph (c) (1)(ii) of The Rights in Technical
Data and Computer Software clause atDFARS 252.227 -7013, or
subparagraphs (c) (1) and (2) of the Commercial Computer
Software - Restricted Rights at 48 CFR 52.227 -19, as applicable.
The Manufacturer is The Active Network, Inc., 10182 Telesis
Court, San Diego, California, United States, 92121.
6.2 Export Restrictions. The Products may include encryption
software or other encryption technologies that maybe controlled
for import, export, or purposes under the laws and regulations of
the countries and /or territories in which the Products are used
( "Applicable Law "). Customer may not export, re- export, or
assist or facilitate in any manner the export or re -export of, any
portion of the Products, as determined by Applicable Law under
which the Customer operates: (i) to any country on Canada's
Area Control List; (ii) to any country subject to UN Security
Council embargo or action; (iii) contrary to Canada's Export
Control List Item 5505; (iv) to countries subject to U.S.
economic sanctions and embargoes; and (v) to persons or entities
prohibited from receiving U.S. exports or U.S. -origin items.
Customer hereby represents and covenants that: (i) to the best of
Customer's knowledge Customer is eligible to receive the
Products under Applicable Law; (ii) Customer will import,
export, or re -export the Products to, or use the Products in, any
country or territory only in accordance with Applicable Law; and
(iii) Customer will ensure that Customer's Users use the
Products in accordance with the foregoing restrictions.
6.3 Third Party Software and Open Source Components.
The Software may contain open source components or other
third party software of which the use, modification, and
distribution is governed by license terms (including limitations
of liability) set out in the applicable documentation (paper or
electronic) or read me files.
7. TERMINATION
7.1 Termination. This Agreement will terminate:
(a) at the option of either party if the other party materially
defaults in the performance or observance of any of its
obligations hereunder and fails to remedy the default within 30
days after receiving written notice thereof; and
(b) without limiting (a), at the option of TAN if Customer
breaches section 2 of this Agreement, provided that the right of
termination will be in addition to all other rights and remedies
available to the parties for breach or default by the other.
7.2 Suspension of Obligations. If either party should
materially default in the performance or observance of any of its
obligations hereunder, then, in addition to all other rights and
remedies available to the non - defaulting party, the non-
defaulting party may suspend performance and observance of
any or all its obligations under this Agreement, without liability,
until the other party's default is remedied, provided however that
this section will not permit Customer to suspend its obligation to
make any payments due for Products or Services that are
unrelated to any default alleged against TAN.
7.3 Return of Materials. In the event of termination of this
Agreement for any reason whatsoever, Customer will
immediately (i) return to TAN all physical copies of Products
delivered by TAN to Customer or otherwise in Customer's
possession or control, or (ii) if expressly permitted by TAN,
destroy all physical copies of the Products not returned to TAN
and delete all electronic copies of the Products from its systems
and certify in writing to TAN that such actions have all been
completed.
S. AUDIT AND MONITORING RIGHTS
TAN may, upon a minimum of 1 business day written notice to
Customer, attend upon Customer's premises and verify that the
Products are being used only as permitted hereby. Such
inspections shall be limited to a maximum of twice per calendar
year, and will be performed only during Customer's regular
business hours and conducted in a manner as to minimize, to the
extent reasonable, interference with Customer's business.
Further, TAN may, using automatic means which do not
interfere with the use of the Products by Customer or Users other
than as described in this provision, monitor at any time usage of
the Products by Customer and or its Users including through
monitoring of the number of copies of any particular Module(s)
in Concurrent Use.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Warranty of Title. TAN warrants that it has all rights
necessary to make the grant of license herein by having all right,
title, and interest in and to the Products (other than Third Party
Products) or as licensee of all such rights from the owner thereof.
GENERALTERMS
9.2 Intellectual Property. TAN and its licensors shall retain
all right, title, and interest in and to the Products and the results
of the Services and to all software, trademarks, service marks,
logos, and trade names and other worldwide proprietary rights
related thereto ( "Intellectual Property"). Customer shall use the
Intellectual Property only as provided by TAN, and shall not
alter the Intellectual Property in any way, or act or permit action
in any way that would impair TAN's or its licensors' rights in its
Intellectual Property. Customer acknowledges that its use of the
Intellectual Property shall not create in Customer or any other
person any right, title, or interest in or to such Intellectual
Property. Any goodwill accruing from the use of the Intellectual
Property shall inure solely to the benefit of TAN or its licensors,
as applicable.
9.3 Restrictions. Customer will not anytime whether before or
after the termination of this Agreement:
(a) reverse engineer, disassemble, or decompile any Products
or prepare derivative works thereof;
(b) copy, transfer, display, or use the Products except as
expressly authorized in this Agreement or in the applicable
documentation;
(c) disclose, furnish, or make accessible to anyone any
confidential information received from TAN or make any use
thereof other than as expressly permitted under this Agreement,
which confidential information is deemed to include the source
and executable code of the Software and all related
documentation;
(d) contest or do or aid others in contesting or doing anything
which impairs the validity of any proprietary or intellectual
property rights, title, or interest of TAN in and to any Products;
or
(e) obliterate, alter, or remove any proprietary or intellectual
property notices from the Products in physical or electronic
forms.
io. INDEMNIFICATION
(a) TAN Indemnity. TAN agrees to indemnify, defend and
hold harmless Customer, its officers, directors, employees and
agents from and against all damages and costs (including
reasonable attomeys' fees) finally awarded against Customer (or
finally settled upon) and arising from or relating to: (i) any
violation of law or claim of personal injury or tangible personal
property damage arising, in whole or in part, out of or in
connection with the gross negligent or wilful misconduct of
TAN; and (ii) any claim brought against Customer by a third
party alleging that the Licensed Software directly infringes any
patent, copyright, trademark or other intellectual property right
or misappropriates any trade secret. If any claim that TAN is
obligated to defend has occurred or, in TAN's opinion, is likely
to occur, TAN may, at its option and expense either (1) obtain
for Customer the right to continue to use the applicable
Software, (2) replace or modify the Software so it becomes non -
infringing, without materially adversely affecting the Software's
specified functionality, or (3) if (1) or (2) are not readily
available after using reasonable commercial efforts or, if neither
of the foregoing options is commercially reasonable, refund a
pro -rata portion of the fees paid by Customer based on its lost
use and terminate this Agreement. Notwithstanding the
foregoing, TAN shall not indemnify, defend or hold harmless
Customer for any claims solely based on: (x) any Customer or
third party intellectual property or software incorporated in or
combined with the Licensed Software where in the absence of
such incorporated or combined item, there would not have been
infringement, but excluding any third party software or
intellectual property incorporated into the Software at TAN's
discretion; (y) Software which has been altered or modified by
Customer, by any third party or by TAN at the request of
Customer (where TAN had no discretion as to the
implementation of modifications to the Software or
documentation directed by Customer), where in the absence of
such alteration or modification the Software would not be
infringing; or (z) use of any version of the Software with respect
to which TAN has made available a non - infringing updated,
revised or repaired subsequent version or other applicable
update, patch or fix;
(b) Customer Indemnity. Except where precluded by
applicable law (e.g. sovereign immunity of a governmental
entity), the Customer agrees to indemnify, defend and hold
harmless TAN, its officers, directors, employees, affiliate
entities, subcontractors, vendors and agents from and against all
damages and costs (including reasonable attorneys' fees) finally
awarded against TAN (or finally settled upon) and arising from:
(i) any violation of law or claim of personal injury or tangible
personal property damage arising, in whole or in part, out of or
in connection with the gross negligent or wilful misconduct of
Customer, its employees, subcontractors or agents; (ii) any claim
brought against TAN by a third party alleging that any Customer
provided materials provided to TAN under this Agreement
directly infringe any U.S. copyright or trademark or
misappropriate any trade secret in existence as of the Effective
Date; or (iii) any claim brought against TAN by a third party
arising from or relating to any modification of the Licensed
Software by Customer or any use of the Software other than as
permitted under this Agreement. Customer shall not indemnify,
defend or hold harmless TAN for any claims arising from: (A)
any TAN intellectual property or software incorporated in or
combined with the Customer provided materials where in the
absence of such incorporated or combined item, there would not
have been infringement; (B) Customer provided materials which
have been altered or modified by TAN as part ofthis Agreement,
where in the absence of such alteration or modification the
Customer materials would not be infringing; (C) use of an any
version of the Customer provided materials for which Customer
has made available an updated, revised or repaired subsequent
version; or (D) the gross negligence or wilful misconduct of
TAN or any of its agents, subcontractors or employees. Upon
notice of any claim of infringement or upon reasonable belief of
the likelihood of such a claim, Customer shall have the right, at
its option, to: (x) obtain the rights to continued use of the
Customer materials by TAN; (y) substitute other suitable,
GENERALTERMS
functionally- equivalent, non - infringing materials; or (z) replace
or modify the Customer provided materials or then design so
that they are no longer infringing.
(c) Indemnification Claims Procedure. Each Party's
indemnification obligations hereunder are conditioned upon (A)
prompt written notice of the existence of a claim, suit, action or
proceeding (each a "Claim ") for which a Party seeks
indemnification from the other Party, provided that a failure of
prompt notification shall not relieve the indemnifying Party of
liability hereunder except to the extent that defenses to such
Claim are materially impaired by such failure of prompt
notification; (B) sole control over the defense or settlement of
such Claim by the Indemnifying Party; and (C) the provision of
assistance by the indemnified Party at the indemnifying Party's
request to the extent reasonably necessary for the defense of such
Claim.
11. GENERAL
11.1 Entire Agreement. This Agreement, including all
attachments and referenced schedules, constitutes the complete
and exclusive statement of the agreement between TAN and
Customer with respect to the subject matter hereof. It supersedes
and replaces all oral or written RFPs, proposals, prior
agreements, and other prior communications between the parties
concerning the subject matter of this Agreement. This
Agreement may not be modified 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. Any Addendum attached hereto
shall form an integral part of this Agreement and, in the event of
any inconsistency between these General Terms and any
Addendum, the provisions of the Addendum shall prevail. Any
`click -wrap' agreement, terms of use, electronic acceptance or
other terms and conditions which attempt to govern the subject
matter of this Agreement that Customer might be required to
acknowledge or accept before using a TAN product are of no
force and effect as between Customer and TAN and are
superseded by this Agreement.
11.2 Force Majeure. Dates or times by which either party is
required to perform under this Agreement, excepting the
payment of any fees or charges due hereunder, will be postponed
automatically to the extent that any party is prevented from
meeting them by causes beyond its reasonable control, provided
such party promptly notifies the other thereof and makes
reasonable efforts to perform.
11.3 Notices. All notices and requests in connection with this
Agreement will be given to the respective parties in writing and
will be deemed given as of the first business day of the notified
party following the day the notice is faxed or sent via overnight
courier, providing a hard copy acknowledgment of such
successful faxed notice transmission or evidence of such
couriering, as applicable, is retained. Notice may also be
deposited in the mails, postage pre -paid, certified or registered,
return receipt requested, and addressed to the parties as indicated
on the face of this Agreement or such other address of which the
party gives notice in accordance herewith, and receipt of any
such notice will be deemed to be effective as of the third
business day following such deposit.
11.4 Governing Law. This Agreement and performance
hereunder will be governed by the laws of the jurisdiction in
which the Customer is located as indicated on the face of this
Agreement.
11.5 Intentionally Left Blank.
11.6 Non - Assignability. Neither party may assign its rights or
obligations arising out of this Agreement without the other
party's prior written consent, except that TAN may assign this
Agreement in connection with any sale or security interest
involving all or substantially all of its assets or any other
transaction in which more than fifty percent of its voting
securities are transferred, with reasonable notice to Customer.
11.7 Term and Survival. The term of this Agreement shall
commence on the Effective Date set out on the coverpage hereof
and shall continue as set forth in Sections 18 or 25.1, as
applicable, or until terminated in accordance with Section 7.
Sections 1.1, 5, 7.3, 9.2, 9.3, 10, 11, 29.1, and 29.2 of this
Agreement, along with all unpaid payment obligations, will
survive termination and expiration of this Agreement.
11.8 No Authority to Bind. Neither party shall incur any
obligations for or in the name of the other party, or have the
authority to bind or obligate the other party. Neither party shall
make, issue or authorize any statements (whether oral or written)
in contravention of the foregoing.
11.9 Counterparts. This Agreement may be executed in
separate counterparts and delivered by facsimile or such other
electronic means as are available to the Parties. Such
counterparts taken together shall constitute one and the same
original document.
11.10 Severability. If any provision of this Agreement is
held by a court of competent jurisdiction to be invalid,
unenforceable, or void, the remainder of this Agreement and
such provisions shall remain in full force and effect.
11.11 Cooperative Procurement. Upon consent by TAN,
this Agreement may be used for permitted cooperative
procurement by any public or municipal body, entity, agency or
institution. If so authorized, and in order to forego a related
entity RFP or similar competitive bidding process, the
Agreement may be extended to such other entities indicated
above for the procurement of similar products and/or services
provided to Customer herein and at fees in accordance with the
Agreement unless separately negotiated between such other
entities and TAN. Further related entities participating in a
cooperative procurement process shall place their own orders
directly with TAN and will fully and independently administer
their use of the Agreement to include such contractual as those
GENERALTERMS
entities and TAN deem appropriate without direct administration
from the original Customer.
SCHEDULE A: TERMS APPLICABLE ONLY TO
HOSTED SOFTWARE
12. HOSTED SOFTWARE
12.1 TAN will provide Customer with access to hosted versions
of the products identified in the Pricing Form and associated
Online Services, and TAN hereby grants to Customer a limited,
non - exclusive, non - transferable license to use the Hosted
Software in accordance with the applicable documentation.
12.2 Customer elects to receive notifications of free product,
promotional items and giveaways through the TAN program
known as ActiveRewards. TAN will offer the Customer (and for
the purposes of clarification not to your users directly)
opportunities for free product, promotional items and giveaways
at your event(s) or facility(ies) as applicable, the exact manner
and type of which will be mutually agreed upon by you and TAN
upon your acceptance of a particular program.
12.3 Customer understands that some TAN products may
contain TAN or third party promotions or offers to users and
such offers will be made to individuals on an opt -in basis. TAN
(and any such third party) shall be responsible for administration
and customer service issues on any such offer or promotion.
13. SUPPORT FOR HOSTED SOFTWARE
TAN will, during all periods in respect of which Customer has
subscribed for Hosted Software, provide Support to Customer
(and, where applicable, directly to users of Customer's own
services and products who access the Hosted Software) in
accordance with applicable sections of the Support and
Maintenance Handbook.
14. LICENSE AND BRANDING
TAN hereby grants to Customer a limited, non - exclusive, non-
transferable license to display, reproduce, distribute, and transmit
in digital form TAN's name and logo in connection with
promotion of the Online Services only in the manner approved of
by TAN during the term of this Agreement. Customer hereby
grants to TAN a limited non - transferable license to use, display,
reproduce, distribute, adapt and transmit in digital or printed
form information provided by Customer relating to its
organization, including its name, trademarks, service marks and
logo, in connection with the implementation and promotion of
the Online Services; provided, however, that such use shall be as
necessary to TAN's performance under this Agreement.
Customer will make reasonable efforts to encourage adoption of
the Online Services, including displaying TAN's name and logo
or "Powered by TAN" logo, in the form supplied by TAN from
time to time and in a manner approved by TAN, acting
reasonably, in any medium used by Customer to promote its
programs or services to prospective participants.
15. INFORMATION SECURITY AND PRIVACY FOR
HOSTED SOFTWARE
TAN will collect information, including names, addresses,
gender, phone numbers, email addresses, birth dates, financial
information (for payment purposes) and other such information
from individuals using the Online Services as is reasonably
required to provide the Services. TAN will store such
information on a secure remote server using reasonable
safeguards in accordance with TAN's published online privacy
policies and in compliance with all applicable laws, codes of
practice, and other legal obligations associated with the
collection, use, and disclosure of personal information.
Customer may access this information by downloading it from
TAN's servers using a Customer assigned private password and
"login" identifier. Upon request TAN will make such
information available to Customer via e-mail, fax or airmail.
Customer will be responsible for protecting the privacy and
security of any information that Customer retrieves from TAN's
servers and shall prevent any unauthorized or illegal use or
dissemination of such information and shall be solely responsible
for ensuring compliance with any applicable data and privacy
protection laws, codes of practice, and other legal obligations
associated with the collection, use, and disclosure of personal
information by Customer, including such disclosure to TAN as
is necessary for TAN to provide the Services and Products to
Customer. Customer and/or its clients shall exclusively own the
personal data collected by TAN in connection with the Hosted
Software; provided, however, TAN is granted a royalty -free,
perpetual, non - exclusive right and license to use, reproduce,
distribute and adapt the collected data as is necessary for TAN to
perform its obligations under this Agreement, including for
purposes of communicating with Customer or Customer's clients
as necessary, fulfilling requests for products and services
requested from Customer or Customer's clients, providing
customized content and advertising provided in connection with
the Hosted Software, conducting intertal TAN research intended
to improve the products and services provided by TAN and its
affiliates, and to provide anonymous and aggregated reporting of
non- individual data for internal and external clients of Customer
or TAN. Any use of such data will conform with applicable
laws related to personal privacy and best practices around
permissive marketing, such as use of "opt -in" and /or "opt -out"
notifications and rights.
16. FEES FOR HOSTED SOFTWARE
16.1 Transaction fees.
(a) Customer shall pay to TAN the Hosted Software service
fees ( "Service Charge(s) ") as set out in the Pricing Form
(b) In cases where TAN's banking or financial partners or
similar service providers impose changes in processing costs
payable by TAN, TAN reserves the right to modify Service
Charges. TAN shall notify Customer at least ninety (90) days in
advance of any such changes. Customer agrees to such changes
unless Customer provides TAN with written objection to such
charges within thirty (30) days from the date such change is
implemented. In the event Customer notifies TAN of its
GENERALTERMS
objection to the changes as noted above, Customer's sole remedy
shall be to immediately terminate the Agreement as applied to
the Hosted Software, subject to payment of any fees due prior to
such notice of termination.
(c) TAN will be responsible for collecting all payments
processed through the Online Services and all Service Charges
assessed by TAN. All payments are Customer's exclusive
property and will be sent to Customer twice a month (or as
otherwise indicated in the Pricing Form) while Service Charges
shall be retained by TAN.
(d) If Customer enters transactions at fee amounts less than
those actually charged to Customer's Users, thus reducing or
avoiding applicable Service Charges, such action shall constitute
a material breach of this Agreement.
(e) TAN shall not be responsible for processing or making any
refunds. All refunds for payments processed will be assessed a
$.10 fee charged by TAN to Customer. TAN may set off against
user fees collected by TAN to the amount of any credit card
charge backs and associated fees applicable to user transactions
and to reimburse itself for any overdue fees owed to TAN by
Customer. To the extent that such funds are not available for set
off, Customer shall promptly reimburse TAN for any deficiency.
16.2 Subscription fees.
Customer shall pay to TAN the Hosted Software subscription
fees ( "Subscription Fees ") set out in the Pricing Form and for
the term of this Agreement established in Section 18 below.
Customer will be invoiced for their first year Subscription Fees
upon the first live operational use of the Hosted Software ( "Go-
Live Date "), with subsequent annual Subscription Fees being
invoiced upon each anniversary of Go -Live Date. Payment will
be made Net 30 days from invoice date.
17. EXCLUSIVITY FOR HOSTED SOFTWARE
TAN will, during all periods for which Customer has subscribed
for Hosted Software, be the sole and exclusive provider to
Customer of the Hosted Software and Online Services, or any
products or services substantially similar thereto, for the part of
Customer's organization utilizing the Hosted Software and
Online Services.
18. TERM FOR HOSTED SOFTWARE
Unless otherwise provided in the Pricing Form, TAN shall
provide to Customer, and Customer shall purchase from TAN,
the Hosted Software commencing on the Effective Date of this
Agreement, and remaining in full force for a period of three (3)
years from the Go -Live Date of the Hosted Software (the "Initial
Term "), with automatic renewals for three (3) year terms (each
a "Renewal Term ") thereafter until either party gives written
notice to terminate the Hosted Software no less than twelve (12)
months prior to the end of the Initial Term or Renewal Term, as
applicable.
SCHEDULE B: TERMS APPLICABLE ONLY TO
LICENSED SOFTWARE AND ASSOCIATED SUPPORT
AND MAINTENANCE SERVICES
19. ACCESS TO SYSTEM AND OTHER CUSTOMER
OBLIGATIONS
19.1 Access. Customer will provide, at no cost to TAN:
(a) subject to the security requirements of Customer, 24 hour
access to Customer's system via either an always - available
telephone circuit or an always available internet connection to
enable TAN or its designated representative to perform any of
the obligations placed upon TAN by this Agreement; and
(b) subject to the security requirements of Customer, remote
dial up /intemet access methods approved by TAN to allow TAN
to remotely diagnose and correct errors in the Licensed Software
and provide other Services.
19.2 Customer Obligations. Without limiting any of
Customer's other obligations under this Agreement, Customer
will:
(a) use its best efforts to upgrade to any new Release or
Version of the Licensed Software as soon as possible after
becoming aware of its availability;
(b) ensure that at all times at least one current staff person of
Customer has been fully trained on the Licensed Software; and
(c) designate by written notice a single site and single person
as the point of contact for telephone or other contact, which site
and/or person Customer may change upon 14 days prior notice to
TAN.
20. GRANT OF LICENSES AND LIMITATIONS
THEREON
20.1 TAN hereby grants to Customer a non - exclusive and
non- transferable right and license, subject to this Agreement, to
install and /or use the Licensed Software, in the manner and for
the term stated in the Pricing Form (Exhibit l) and TAN
provided and related written user documentation as follows:
(a) Workstation -Based Modules. In respect of each
Workstation -based core Module and each Workstation -based
add -on Module, Customer may install and use each Module on
Workstations to access the Enterprise Database on the Database
Server, provided that the number of copies of any particular
Module in use does not exceed the number of licenses granted to
Customer therefore as set out in the Pricing Form.
(b) Server -based Add -on Modules. Customer may install and
use each server -based Module on as many Workstations as is
desired by Customer, and Customer may use and permit use of
such Modules by its clients, all without limit to the number of
Users or transactions which simultaneously use any such
Module, provided however that:
(1) in respect of each TeleReg & Voice Server Module,
Customer may install one copy of each Module on one
GENERALTERMS
IVR Server, provided that the number of copies of any
particular Module in use does not exceed the number of
licenses granted to Customer therefore as set out in the
Pricing Form, and all such Modules together may be in
Concurrent Use not to exceed the number of licenses
granted to Customer for TeleReg Lines Modules as set
out in the Pricing Form; and
(ii) in respect of each Payment Server Module, such
Modules may be in Concurrent Use not to exceed the
number of licenses granted to Customer for Point of
Sale Modules as set out in the Pricing Form.
(c) Server -based On -line (Internet) Modules. In respect of
each Server -based On -line (Internet) Module, Customer may:
(i) install one copy of each Module on one Intemet server,
provided that the number of copies of the Module in
use does not exceed the number of licenses granted to
Customer therefore as set out in the Pricing Form; and
(ii) subject to 20(d), permit Users to access and use such
Modules to access the Database Server via Internet
Clients connecting via a licensed Intemet Server, and
all such Modules together may be in Concurrent Use
not to exceed the number of licenses granted to
Customer for Online Client Access Modules as set out
in the Pricing Form multiplied by twenty -five (25).
(d) Cumulative Workstation -based Modules. In respect of
each Cumulative Workstation -based Module, Customer may:
(i) install one copy of each Module on a single
Workstation for each license granted to Customer
therefore as set out in the Pricing Form; and
(ii) permit Users using such licensed Workstation(s) to use
such Module(s) provided, for greater certainty, that the
Modules may be in Concurrent Use not to exceed the
number of licenses granted to Customer therefore as set
out in the Pricing Form.
(e) Customer hereby acknowledges that the mechanism
utilized by the Licensed Software to control the number of Users
or Online Client Access which can simultaneously access and
use Server -based On -line (Intemet) Modules is based upon the
number of Users who have at any time logged into Customer's
computer network using their passwords, such that any User so
logged into such network in a manner that would automatically
enable the User to access and use such Modules will reduce by
one the number of Users able to simultaneously access those
Modules, regardless of whether or not such User is in fact
accessing or using any such Module. Customer hereby waives
any claim, and releases TAN from any such claim and from any
losses or damages Customer suffers in relation thereto, in
connection with the inability of Users to simultaneously access
such Modules where such inability is the result of inactive
logged -in Users absorbing available login access.
20.2 Additional Copies. Customer will not make any copies of
the Licensed Software except as necessary for the installation
permitted hereby and except for:
(a) copies of each Module licensed hereunder for training and
testing purposes, and
(b) for backup purposes, provided that all electronic copies
made include screen displays of TAN's proprietary or intellectual
property notices as recorded on the original copy provided by
TAN and Customer affixes a label to each disk, reel, or other
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 Licensed Software from which the copy
is made in the same manner as those notices appear on that
original copy.
21. LICENSED SOFTWARE FEES
21.1 In respect of each Module, Customer shall pay to TAN all
applicable Licensed Software fees listed in the Pricing Form
upon delivery (as defined in Section 2.3) of the Licensed
Software.
22. MAINTENANCE SERVICES
22.1 TAN will develop new Releases and new Versions of
Licensed Software in accordance with the procedures and other
particulars set out in the Support and Maintenance Handbook
attached as Exhibit 3.
22.2 Provided that Customer continues to subscribe for Support
and Maintenance in respect of a particular Licensed Software
Product, TAN will provide to Customer, either in physical form
by mail or courier or in electronic form via the Internet, new
Releases and Versions (and appropriate documentation) for such
Licensed Software Products on a when - and -if- available basis.
23. EXCLUDED SUPPLIES AND SERVICES
Without limitation, the following supplies and services are
excluded from Support and Maintenance:
(a) Services which are required to remedy problems that stem
from changes to or defects in system configuration upon which
the Licensed Software was initially installed;
(b) Services which are required to remedy problems which do
not stem from any defect in Licensed Software;
(c) Services which are required to remedy problems caused by
lack of training of Customer's personnel or improper treatment
or use of the Licensed Software;
(d) Full report customization service;
(e) Any and all hardware support, maintenance or
troubleshooting issues, except as described in section 28
regardless of the source of such hardware.
24. FEES FOR SUPPORT AND MAINTENANCE
24.1 Support and Maintenance services begin for all Licensed
Software listed in the Pricing Form on the Support and
Maintenance Start Date. The cost for Support and Maintenance
GENERAL TERMS
services is payable annually in advance and is due in its entirety
thirty (30) days from date of TAN's delivered invoice. Customer
may elect to specify a preferred alternate Support Renewal Date
by so notifying TAN in writing. If an alternate preferred Support
Renewal Date is specified, the cost of Support and Maintenance
will be prorated from the anniversary of the Support and
Maintenance Start Date to the specified Support Renewal Date.
Thereafter, the Support and Maintenance fee is payable in
advance on every annual anniversary of the Support and
Maintenance Start Date or, if there is a Support Renewal Date,
every anniversary of the Support Renewal Date (the applicable
anniversary being the "Support Renewal Date "). TAN will
provide invoices to Customer for all such amounts, such invoices
due on the later of (a) the Support and Maintenance Start Date or
applicable Support Renewal Date, as applicable, and (b) 30 days
from the date of the invoice.
24.2 For the first year of this Agreement commencing with the
Effective Date, Support and Maintenance pricing shall be equal
to twenty -five percent (25 %) of the gross software license fees.
Support and Maintenance pricing for all successive years shall
be equal to twenty -five percent (25 %) of the gross software
license pricing charged by TAN for equivalent software as of the
date of each such renewal year, provided, however, that any
increase in TAN's annual Support and Maintenance pricing for
any renewal year shall not exceed ten percent (10 %) of the
renewal fees charged in the prior year. Any additional software
licensed to Customer by TAN will increase the total gross
software license fees upon which Maintenance and Support
pricing is based. TAN will provide invoices to Customer for
renewal fees up to 60 days prior to expiration of each term.
24.3 The Support and Maintenance fees identified in the Pricing
Form are applicable only upon the date of entry into this
Agreement, and are subject to change thereafter in accordance
with this Agreement's terms.
24.4 In consideration of the Support and Maintenance provided
hereunder, Customer agrees to pay TAN the fees described in the
Pricing Form, as modified explicitly pursuant to this Agreement.
In the event Customer requires Support and Maintenance for
additional Licensed Software, Customer agrees to pay TAN the
additional Support and Maintenance fees applicable based upon
the fees then in effect, prorated from the date of agreement to
acquire such services to the Support Renewal Date.
24.5 Unless the Pricing Form indicates otherwise, the fees
charged hereunder are applicable to Support and Maintenance of
Licensed Software used with respect to only a single database of
Customer data. If Customer, after entering this Agreement,
places in service one or more additional databases to be used in
relation to the Licensed Software, then for each such additional
database, an additional 25% of all gross Licensed Software fees
due, exclusive of such extra database fees, will be payable
hereunder for Support and Maintenance. Customer will notify
TAN as soon as reasonably possible of the installation or use of
any such additional database(s).
24.6 TAN may terminate and suspend performance of all
Support and Maintenance if Customer fails to pay any past due
10
TAN invoice within 30 days of written notice of such failure, in
the event of any other material breach by Customer which
remains uncured 30 days after notice thereof or if any of the
Licensed Software ceases to be subject of a valid Software
License Agreement.
24.7 If at any time after Customer has initially licensed any of
the Licensed Software from TAN, Customer's right to receive
Support and Maintenance, or comparable services, from TAN
under this Agreement or a comparable agreement has lapsed for
any reason whatsoever, voluntarily or otherwise, and Customer
wishes to receive Support and Maintenance from TAN,
Customer will pay to TAN, prior to re- instatement of Support
and Maintenance services:
(a) a reinstatement fee equal to the greater of 50% of the
current annual support fee or the sum of the unpaid support fees
that would have been payable hereunder had this Agreement
been in force during the time in which Support and Maintenance
rights had so lapsed to the date of reinstatement, and
(b) at least one additional year of Support and Maintenance
from the date of reinstatement.
2s. TERM FOR SUPPORT AND MAINTENANCE
25.1 Term. TAN shall provide to Customer, and Customer shall
purchase from TAN, Support and Maintenance for a period
commencing on the Support and Maintenance Start Date and,
subject to termination as provided herein, continuing until the
following Support Renewal Date or anniversary of the Support
and Maintenance Start Date, with automatic renewals for one (1)
year terms thereafter until either party gives written notice to
terminate Support and the Maintenance no less than ninety (90)
days prior to the end of the then - current term, provided however
that the fees payable in respect of the Services and the Products
may be revised by TAN in accordance with this Agreement.
SCHEDULE C: TERMS APPLICABLE ONLY TO THIRD
PARTY PRODUCTS AND SERVICES
26. PURCHASE AND SALE; DELIVERY
26.1 Purchase Commitment and Price. TAN hereby agrees to
sell to Customer, and Customer hereby agrees to purchase from
TAN, the Third Party Products listed in the Pricing Form in the
volumes and at the prices described therein.
26.2 Delivery. TAN will ship all or any part of the Third Party
Products to Customer as soon as reasonably practicable (or, if
the below- described purchase order documentation does not seek
immediate shipping, at the time TAN considers reasonable in
order to meet the desired delivery date described) after receipt by
TAN of a purchase order from Customer specifying the
particular Third Party Products sought, the number of such Third
Party Products sought, the price payable therefore, and the
desired date and location of delivery thereof Any such purchase
order must, at a minimum, reference quantity, description and
price.
GENERALTERMS
26.3 Changes by Customer to Delivery Schedule. Following
delivery by Customer of any purchase order documentation
described in section 26.2, no changes by Customer to the
shipment schedule described therein will be permitted unless
TAN is notified thereof in writing at least ninety (90) days in
advance of the delivery date sought in such purchase order
documentation.
26.4 Acceptance of Purchase Orders. Purchase orders
delivered by Customer to TAN in respect of Third Party
Products are not binding upon TAN until accepted by TAN in
writing. In any case, despite any indication to the contrary
contained in any such purchase order documentation, no terms or
conditions on purchase order documentation issued by Customer,
other than the information required by TAN as set forth
expressly in this Agreement, will be binding upon TAN, nor will
any such terms or conditions modify or supplement this
Agreement in any way, notwithstanding the fact that TAN may
accept or otherwise approve such purchase orders. TAN reserves
the right to refuse any such purchase order for any reason not
contrary to this Agreement, including without limitation pricing
differences as described in section 27.2.
26.5 Additional Third Party Products. Customer may
purchase Third Party Products in addition to those listed in the
Pricing Form by issuing additional purchase order
documentation as described herein, provided that the supply (or
non - supply) of such additional Third Party Products will be
subject to this Agreement as though such additional Third Party
Products had been included in the Pricing Form on the date of
execution of Pricing Form subject to the following:
(a) the price for such additional Third Party Products is subject
to agreement between the parties each in their own absolute
discretion, and
(b) TAN shall have the right to discontinue delivery of such
additional Third Party Products upon at least ninety (90) days
written notice to Customer without any liability to Customer
whatsoever for such discontinuance.
27. CHARGES AND PAYMENTS
27.1 Prices. The pricing applicable to Third Party Products is as
set out in the Pricing Form in the form finally agreed to by the
Parties.
27.2 Pricing Variability. Customer acknowledges that
(a) the prices described in Pricing Form are applicable for
six (6) months after the date of execution hereof, and such prices
are based upon Customer taking delivery of the full number of
any particular Third Party Product listed in Pricing Form in a
single shipment; and
(b) Customer hereby agrees that after the expiry of such initial
six-month period or, in case of Customer seeking, in a particular
shipment, delivery of less than all of the Third Party Products of
a particular type listed Pricing Form, the actual prices may be
higher. Prior to shipment of any Third Party Products that would
be subject to pricing that differs from that described in the
11
Pricing Form, TAN will notify Customer of any such different
pricing and Customer will accept such different pricing, as
mutually agreed between Customer and TAN, in writing.
28. SUPPORT FOR THIRD PARTY PRODUCTS
For the purpose of isolating support issues and responsibility in
respect of Third Party Products and their interaction with any
Products, TAN will provide initial first -tier support, to a
maximum of fifteen (15) minutes per support inquiry, for Third
Party Products, as further specified in the Support and
Maintenance Handbook.
29. PROPRIETARY RIGHTS
29.1 Third Party Proprietary Rights and Indemnity by
Customer. Customer acknowledges that any Third Party
Products supplied by TAN hereunder are supplied by TAN as a
reseller thereof and that the Third Party Products are subject to
the intellectual property rights of the various third party
developers and/or manufacturers thereof, as applicable, including
without limitation copyright, trade secret, trademark, and patent
rights. Customer will maintain in confidence and not use or
disclose any and all confidential business or technical
information connected with any Third Party Product except as
specifically permitted by a party having legal control of such
rights, and Customer will defend or settle any claim made or any
suit or proceeding brought against TAN insofar as such claim,
suit, or proceeding is based on an allegation that any Third Party
Product provided to Customer hereunder has been installed,
used, or otherwise treated by Customer or any client or customer
of Customer in violation of the proprietary rights of any third
party or on an allegation that Customer or any client or customer
of Customer has disclosed or used any confidential business or
technical information connected with any Third Party Product,
provided that TAN will notify Customer in writing promptly
after the claim, suit, or proceeding is known to TAN and will
give Customer such information and assistance as is reasonable
in the circumstances. Customer will have sole authority to
defend or settle any such claim at Customer's expense. Customer
will indemnify and hold TAN harmless from and against any and
all such claims and will pay all damages and costs finally agreed
to be paid in settlement of such claim, suit or proceeding.
29.2 Third Party Products which are Software. Customer
acknowledges that the possession, installation and use of all
Third Party Products which are software shall be governed by
the terms of the software license(s) of the persons other than
TAN who possess the rights to control such possession,
installation and use.
30. WARRANTY
30.1 Warranty. TAN warrants to Customer that TAN has the
right to deliver the Third Party Products subject to any
documentation accompanying such Third Party Products at the
time of delivery and/or any licensing mechanisms, physical,
electronic or otherwise, included in any Third Party Products that
are software.
GENERALTERMS
30.2 Warranties Provided by Third Party Suppliers. Third
Party Products are warranted by the manufacturers thereof in
accordance with the warranty statements accompanying delivery
of the Third Party Products, and Customer agrees that Customer
will rely solely on such Third Party Product warranties and
Customer shall make no claim against TAN on account of any
warranty, express or implied, which may apply to any Third
Party Product.
31. NO COMMERCIAL ADVERTISING
31.1 No Commercial. No commercial advertising of any
products shall be permitted on any of the products and services
provided by TAN to Customer including any web page that
appears in the normal use by Customer of the ActiveNet
software such as "pop up" advertising or any advertising in the
margins of any webpage provided to Customer by TAN.
Customer and TAN understands and agree that the elimination of
all such commercial advertising will increase fees paid by the
Customer to TAN by $0.50 per online transaction per Exhibit 4.
12
i
I
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By: /
o e e'17 Bp uchamp
A istant Ci ttorney
ATTEST:
IN
Leilani Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
0
Keith Curry
Mayor
CONSULTANT: The Active Network
IN
(Corporate Officer)
Title:
Print Na
(Financial Officer)
Title:
Print Name:
Attachments: Exhibit 1 — General Term /Pricing Form
Exhibit 2 — Blank
Exhibit 3 — Maintenance Exhibit
Exhibit 4 — ActiveNet Transactional Service Fees Overview
A08 -00093 5.13.10
Page 13
GENERALTERMS
EXHIBIT 1
PRICING FORM
The Active Network Quote #: 3722 -1
10182 Telesis Court, 1 st floor Pricing Form Date: 03/0312010
San Diego, CA, 92121, United States Expires 06101/2010
Customer: Address:
Bill To:
Ship To:
CITY OF NEWPORT
Attn:Matt Lohr
Attn:Matt Lohr
Newport Beach,Orange
CITY OF NEWPORT
CITY OF NEWPORT
3300 Newport Blvd
3300 Newport Blvd
Newport Beach,Orange CA 92663 US
Newport Beach, ORANGE, CA 92663, Unite.
States
Sales Representative: Jessica Walsh - Krenicki Payment Terms: 30 Net
Line Product Units Qty Unit Price Selling Total Price Selling
(US D) (USD)
1.0 70179 Ea
ActiveNet - Activity Registration
0.00
0.00
2.0 70181 Ea 1 0.00 0.00
ActiveNet - Facility Reservation
3.0 70183 Ea 1 0.00 0.00
ActiveNet - Membership
4.0 70185 Ea 1 0.00 0.00
ActiveNet - Point of Sale
5.0 70186 Ea 1 0.00 0.00
ActiveNet - Public Access
VDO_DOCS #1577247 v. 1
GENERALTERMS
6.0
70197 Ea 1
ActiveNet - Data Conversion
0.00
0.00
7.0
70201 Hr 76
ActiveNet - Standard Professional Services (one time fee)
100.00
7,600.00
8.0
70201 Hr 1
ActiveNet — Pre Project Planning (one time fee)
700.00
700.00
9.0
70202 Hr 8
200.00
1,600.00
ActiveNet - Technical Professional Services- Data Conversion (one time fee)
10.0
70178 Yr 1
ActiveNet -Annual Transaction Minimums
120,000.00
120,000.00
11.0
70200 Hr 8
ActiveNet - Senior Professional Services- Financial Integration (one time fee)
175.00
1,400.00
12.0
70204 Yr 1
ActiveNet - ACH Remittance - Every 1 week
2,000.00
2,000.00
13.0
71931 Ea 1
- 21,616.72
- 21,616.72
ctiveNet - Online Transaction Conversion to ActiveNet Credit- First Year
14.0
71931 Ea 1
- 21,616.72
- 21,616:72
ActiveNet - Online Transaction Conversion to ActiveNet Credit- Second Year
15.0
70207 Day 5
500.00
2,500.00
ActiveNet - Daily Onsite Fee (min 3 days)
2
Subtotal
Selling Price
Charges
Tax
GENERALTERMS
92,566.56
0.00
COUNTY (Rate 0% ) 0.00
COUNTY (Rate 1.5 %) 0.00
STATE (Rate 0% ) 0.00
STATE (Rate 7.25 %) 0.00
Total(USD) 92,566.56
Additional Information
_.
Customer shall pay TAN all fees for licensed software purchased hereunder upon delivery of the software.
Delivery of licensed software shall be deemed to have occurred upon TAN's email transmission to customer's designee of an FTP link permitting download of the software from TANS designated online site, or where delivered in the form of
physical media, FOB Origin.
The start date for support no maintenance for implementations performed by TAN will be the first day of implementation of the licensed software or 90 days following the delivery of the licensed software, whichever occurs first, and upon
',. delivery of the licensed software for implementations performed by customer or a third party vendor.
Sales taxes, where applicable, are not included and prices are in the currency of the country of installation (subject to change without notice).
Hardware, operating system, 3rd party software and site preparation are not included unless other Wise noted.
On -site services are exclusive of airfare.
j The software and manuals are available for download.
Onsite services billed in minimum 8 hour daily increments.
All hardware sales are final. Hardware is covered by standard manufacturer's warranty. Equipment that is defective upon arrival will be replaced. RMA process will apply for items after support has indicated there are no alternatives.
Customer must notify TAN in writing of any defective hardware within 7 days of its receipt. Any notices received after 7 days concerning defective hardware will be null and void and will not be accepted for return or replacement by TAN.
3
GENERALTERMS
O. ............................... .
nqoina Fees
Transactions entered directly by participants online will be assessed the customary Service Charge by TAN to online registrants, as described below. Transactions entered by a member of the Customer on behalf of a participant will be
assessed a service Charge equal to 1.5% for all Cash, ECP and Check transactions and an additional 2.25% for credit card transactions. Each online registrant will pay the event registration fee charged by Customer plus a Service Charge
equal to 6.5% + $1,00 for all transactions $1 -$150, $150 -$500 = 3.5% +$5.50, and $500+ = 2.5% + $10.50 with a minimum Service Charge of $2. TAN may change the Service Charges at anytime and Customer agree to such change
unless Customer provides TAN with written objection to such change within 30 days from the date such change is first implemented. TAN will be responsible for collecting all registration fees charged by Customer and all Service Charges
assessed by TAN. All registration fees. except Service Charges, are Customer's exclusive property. Any registration fees collected by TAN will be sent to Customer weekly and Service Charges shall be retained by TAN. Customer shall
guarantee and pay to TAN a minimum aggregate Service Charge, whether through offline or online transactions, of $120,000 per calendar year (the "Minimum Yearly Service Charge'). Customer shall pay to TAN the difference between
such Minimum Yearly service Charge and the actual Service Charges collected by TAN during the year, which will be billed at the end of each year beginning from the dale set forth in the Agreement. TAN shall not be responsible for
processing or making any refunds. All credit card refunds processed by Customer will be assessed a $10 fee charged by TAN to Customer. TAN may reimburse itself for any credit card chargebacks and associated fees out of registration
fees collected by it. In the event such funds are not available, Customer agrees to reimburse TAN for any chargebacks or refunds.
Uebh d of Payment
C a
Invoice me Purchase Order P:umber.
C
Credit Card
r Visa r— ivlsstetGard r American Express
Number:
I hereby Agree to pay the above quoIR with the stated method.
CITY OF NEWPORT BEACH / CDM5K
Signature _
Name
Title
Effective Date
Exxpiration Late:
4
End of Quote
GENERAL TERMS
EXHIBIT 2
SERVICES EXHIBIT
INTENTIONALLY LEFT BLANK
1
VDO_DOCS #1577247 v. 1
NETWORK
GENERALTERMS
EXHIBIT 3
MAINTENANCE EXHIBIT
SUPPORT AND MAINTENANCE HANDBOOK
The following supplies and services are included in Support and Maintenance:
• Unlimited technical support between 6:00am and 6:00pm Pacific Time, Monday through Friday via
telephone (800.663.4991), email or web portal ( http: / /supnorLtheactivenetwork.com)
• Unlimited phone support for System Down issues on a 24 hours x 7 days a week basis, provided that:
• Site has remote access and Internet email capability for extended support hours
• Support calls placed during extended support hours must be placed by an authorized contact
person
• Support calls during extended support hours are for `system down' problems that result in a
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 placed during extended support hours will be billed to the customer.
• Access to the Active Network's secure customer care web portal and online training materials
• Regular documentation and communication
• New releases and versions of the software and free assistance in planning upgrades
• Support also includes, if such assistance can be provided in 15 minutes or less:
• Limited assistance with report customization (Class) or creation of custom queries
• Assistance troubleshooting Third Party products i.e. Crystal Reports, SQL Server, Oracle
• Assistance to isolate and /or troubleshoot difficulties resulting from sources other than Active
Network products and services, such as:
General network support i.e. network access, printing, backup and restoration
PC hardware troubleshooting
PC setup, configuration and optimization
• Network operating system configuration and functionality
Basic Microsoft Windows functionality (i.e. Windows Explorer or Internet Explorer)
Data corruption due to lack of disk space
• Loss of supervisor or other password
2
GENERALTERMS
TICKET RESOLUTION TARGETS
• New support incidents are assigned one of the following levels, each with its respective standard ticket
resolution target:
Call
Description
Standard
Priori Level
Completion Target
Priority 1
Fatal issues that result in the customer's inability to fulfill
1 business day
critical business functions (i.e. those pertaining to core
functionality such as processing registrations, memberships,
rentals) and that have no reasonable work - around
Priority 2
Serious issues significantly impacting use of system but do
2 business days
not prevent core functions from being fulfilled
Priority 3
All other issues, except those classified as D (Low); i.e. how-
3 business days
to questions, reporting/reconciliation issues
Priority 4
Issues that are not time - sensitive or may be undertaken as
None
customer service initiatives outside the scope of this
Agreement
SERVICES NOT INCLUDED
The following supplies and services are excluded from Support and Maintenance:
• Services which are required to remedy problems that stern from changes to or defects in system
configuration upon which the software was originally installed
• Services which are required to remedy problems which do not stern from any defect in the software
• Services which are required to remedy problems caused by lack of training of the customers' personnel
• Improper treatment or use of the software
• Onsite or remote training services
• Full report customization service (Class)
• Database - specific services or assistance
3
GENERAL TERMS
The following actions will void the support and maintenance portion of the Active contract:
• The use of any other application that modifies data in the database, whether created by you or otherwise
• The use or creation of any application that competes with or replaces a module that is offered by the Active
Network to work with either the application or the application's database
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4'
♦'%'�F'.n ini3� I
Holiday
Open with
reduced staff
Closed
New Year's Day (January 1 st)
✓
Martin Luther King Day (3rd Monday in January)
✓
President's Day (3rd Monday in February)
✓
Good Friday (Friday before Easter)
✓
Victoria Day (3rd Monday in May)
✓
Memorial Day (Last Monday in May)
✓
Canada Day (July 1st)
✓
Independence Day (July 4th)
✓
Civic holiday (1st Monday in August)
✓
Labor Day (Ist Monday in September)
✓
Canadian Thanksgiving/Columbus Day (2nd Monday in October)
✓
Remembrance Day /Veteran's Day (November 11 (h)
✓
US Thanksgiving (4th Thursday in November)
✓
Day after US Thanksgiving (4th Friday in November)
✓
Christmas Day (Dec. 25th)
✓
Boxing Day (December 26th)
✓
4
Exhibit 4
a6GSICNETWORK
ActiveNet Transactional Service Fees Overview
Why do we pay service fees to use ActiveNet?
In order to provide your organization with continued support, a lifetime of no charge product
enhancements, and the many benefits of hosted technology, a small transaction charge will be applied to
each receipt generated by ActiveNet. With the exception of processing credit card transactions, there are
no other charges to worry about. ActiveNet has been modeled on a pay -as- you -go system to ensure that
you never pay for more than you need.
Transaction Fees
Regardless of payment method, a standard fee will be assessed for each receipt produced by ActiveNet.
This fee is applied to the total receipt amount and is based on the expected annual revenue of your
organization.
Annual Revenue Fee /Receipt
Less than $250,000
1.5%
$250,001 - $500,000
1.5%
$500,001 - $750,000
1.5%
$750,001 - $1,000,000
1.5%
$1,000,001 - $1,500,000
1.5%
$1,500,001 and higher
1.5%
Quarterly Minimum
Simply explained, the Quarterly Minimum exists to ensure that Active Communities is able to recover the
minimum costs associated with providing your organization hosted services, and the internal resources
required to support them. If in any given quarter, your organization's transaction fees amount to more than
the Quarterly Minimum, the Quarterly Minimum is waived. If the opposite should be true, and your
organization's transaction fees amount to less than Quarterly Minimum, Active Communities will invoice
your organization for the difference. "file option for an Annual Minimum is also available.
Payment Processing
Credit Card/ Debit Card Processing (Visa, Discover, AMEX, Master Card)
For transactions paid for by credit card, an additional processing fee of 2.251% will be applied. You do not
require a separate merchant account for processing credit cards. Payment processing fees are also applied
towards the Quarterly Minimum.
Confidential Document:
Do Not Release Contents or Portions Thereof to Unauthorized Persons
Online Transactions
For each transaction entered into the system directly by your patrons using the self -serve online registration
option, only the following transaction fees below are applied:
• 6.5% plus $0.50 of the total receipt amount, for transactions less then $150
• 3.5% plus $5.00 of the total receipt amount, for transactions between $150 - $500
• 2.5% plus $10.00 of the total receipt amount, for transactions greater then $500
Please note that payment processingjees are already included in these costs
How can I get these services at no charge?
Every day, consumers make the choice to incur charges for the sake of convenience. For example:
• $1.50 to withdraw $50 from the ATM
• $2.50 to pay the city a parking ticket online
• $4.50 to have a book delivered at home
• $7.50 to book a concert ticket on the Internet
This consumer paid $16.00 in charges, saved $10.00 in gas and parking, and avoided three hours of travel
time and line -ups, time that can be better spent with family and friends. Convenience is a service that
people demand and are willing to pay for.
Active Communities offers a unique payment option, whereby your patrons help support your investment
in an automated solution: they pay a convenience fee equal to the transaction fees normally charged to your
organization for each online transaction. For example, a mother registering her son for soccer will pay less
for the convenience of registering from home than for her morning cafe latte, and your organization will
pay nothing, not even the credit card processing!
Why Your Patrons Will Participate
Customers value having access to activities, membership benefits and facilities, 24 hours a day, 7 days a
week. They like to research and shop at their leisure. Rather than travelling to your facilities during hours
of operation, many will be willing to pay the small online fee to register from home or the office at their
convenience.
flow do we know?
Our customers have achieved online registration rates as high as 80 percent of total registrations! Offering
online transactions has helped these organizations invest in technology, improve customer satisfaction, and
maximize community participation.
Confidential Document:
Do Not Release Contents or Portions Thereof to Unauthorized Persons
What do Transaction Fees Cover?
In this day and age, antiquated software and manual processing doesn't just slow down your staffs
productivity, it limits their ability to interact effectively with your participants. It also limits your
participant's choices and overall experience, as well as decreasing the likelihood of enhancing participation
within your community through technology and marketing solutions.
Intuitive software wilt support more effective interaction between your staff and participants online,
wirelessly, in person or over the phone; it improves efficiency, productivity and offers more personalized
service options to our community. Plus, with the Marketing services and community networks provided to
your organization without additional charge, you gain the added benefits of bolstering online service
launches, ongoing promotions and extend your community access and the value we provide to your
participants.
So, in addition to allowing an unlimited number of users — both internal customers (staff) and external
participants (your community) can access ActiveNet at any time — "24/7, 365 days /year ", wherever an
internet connection exists — this transaction fee model also provides you the following:
Support & Maintenance
Unlimited number of users accessing the system at any point in time
Remembering with ActiveNet there is no annual support & maintenance fee, our customers have
access to around the clock support.
o Live 6:00 am — 5:30 pm Pacific Time, Monday — Friday
o Live 24 -7, System -Down, System - Critical
0 15 minute response time
Additional customer services. For example, Active acts as first- responder and will field calls from
your participants regarding charges on their credit card from your department... and will also act as
lead (if your organization desires) with respect to working with the credit card company about the
query.
Data Integrity and Security
Secure Transactions (128 SSL encryption) protecting data while the transaction is being
processed.
Data back -ups occur every 30 minutes, translating into 24 -7 security and reliability
Physical security of data
• Many of our participants are in geologically unsafe conditions (Horida hurricanes, etc.. )
where their servers could potentially be in dangerous scenarios; our hosting faeilily is in a
location where necessary precautions been taken to ensure protection on a level tcw
government agencies can match.
• With dedicated Servers in a remote location, should your organization be subject to theft
- stolen, damaged, contract a virus - your database is not compromised
• Security of your data against intrusion / "hackers ". The Intrusion detection and Firewall
system in place is deemed state of the art and again, few organizations would be ahle to
implement such similar capabilities.
Confidential Document:
Do Not Release Contents or Portions Thereof to Unauthorized Persons
Provides a Long -Term Solution
Scalability — ActiveNetwill adapt to your organization's needs, meaning no need for reinvestment
into infrastructure down the road.
• Are your community operations growing? Shrinking? Regardless, ActiveNet can
accommodate either. If your need to expand when your new center opens, you only need
to take into account training new staff on the system (often can do this with your own
core group of Power Users), as there is still one common database everyone can access.
• If your organization is downsizing and truly has to "do more with less ", with ActiveNet
there's no need to concern yourself with the capital investment you may have made into
costly hardware, servers, connection between sites, etc.
Technical Benefits
Decreased requirements for the "latest and greatest" desktop computers, as ActiveNet does not
require "super computers" to run the application — because ActiveNet is hosted on our servers,
even computers from 5 years ago can work with the system flawlessly.
Infrastructure and Technical requirements such as connectivity between various sites within your
organization, one or more servers — including costly web servers, IIS certificates, firewalls,
maintenance of OS licenses and hardware upkeep /replacement
Active takes responsibility for Credit Card processing and charges, maintenance of merchant
accounts, etc.
Upgrades
• One of the greatest benefits of a hosted solution is the method of software updates: the automatic
software updates mean organizations don't go through the usual `upgrade' process. Upgrades are
work - intensive processes costing time and money (specifically for staff needed to help with the
update, plus loss of revenue due to any `downtime' tire organization might incur).
• Immediate deployment of new functionality: A hosted solution allows for quicker releases of
maintenance fix requirements, commonly called "bug fixes" in the industry. If bug is found —
and all software has bugs! — Active can push out the bug fix in a more timely fashion than when
compared with the traditional client- server technology.
• Zero Down time upgrades, which means the system is available through upgrades
• Quarterly upgrades /new releases, versus every 9 -12 months for traditional client - server solutions
• The Enhancement Request process in place looks to our customers for future functionality; we
look to have at least 25% of all new functionality directly from our customers
Marketing Services
Access to our Professional Marketing ideas and support that will help you communicate more
effectively with your participants and help drive online registration — which in turn saves your
organization money while improving customer communications.
Active Rewards: Active Rewards is a no -fee, no- obligation, 100% opt -in opportunity for Active
customers. As a member of Active Rewards, sampling and promotional opportunities are brought
to you. If your organization has facilities, events, camps or other activities that meet the sponsor's
criteria, you receive FIRST NOTIFICATION to participate in programs that might include free
samples, product stuffers, on -site promotions, donations and more. Over the years, we've brought
millions of samples and promotions to our customers from big -name brands like Timex, Degree,
Fig Newtons, Crystal Light, Bull Frog, Snicker's Marathon, Wisk, and many more.
Confidential Document:
Do Not Release Contents or Portions Thereof to Unauthorized Persons