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Kronos Incorporated; 2014-09-02;
~ Payment terms. City will pay invoices issued by Kronos hereunder within thirty (30) days of receipt. 6. Restrictions. City Agrees that Voxeo Prophecy has not been designed for, and may not be used as, a means to connect with 911 or E911 emergency services. Kronos shall have no liability for any delays, failures or unavailability of Voxeo Prophecy due to transmission or other delays, errors or problems beyond Kronos' control, or any other interruptions caused by the mobile communications network and/or mobile devices. Use of Voxeo Prophecy is subject to the software license terms set forth in the Agreement as well as the Acceptable Use Policy is attached hereto as Exhibit "2". Kronos, through its supplier, will provide City notice of any material changes, which shall only be applicable upon a written amendment to the Agreement. City is responsible for damage or injury that may result from City's failure to abide by such Policy. City acknowledges that communications occurring through Voxeo Prophecy may be subject to standard mobile carrier policies or government regulatory requirements for mobile communications. 7. Security. The Voxeo Prophecy service relies upon a third party hosted communication platform. Accordingly, notwithstanding any other provision of the Agreement or this Addendum to the contrary, City understands and acknowledges that the exclusive statement of the security protections provided fori) Interactions by City and its employees through Voxeo Prophecy, and ii) all associated data, is attached hereto as Exhibit "3", under the heading "Security of Your Personal Information. Kronos will provide City notice of any material changes, which shall only be applicable upon a written amendment to the Agreement. 8. Renewal and Termination. The initial Term is twelve months. At the expiration of the initial Term, the Term shall automatically renew on a month-to-month basis until terminated in accordance with the provisions hereof. At any time: (i) City may terminate the Voxeo Prophecy service for convenience upon thirty (30) days prior written notice, and (ii) Kronos may terminate the Voxeo Prophecy service for convenience upon one hundred and twenty ( 120) days prior written notice. Kronos may increase the per minute rate upon renewal with sixty (60) days prior written notice. In the event of termination by Kronos for convenience, Kronos will assist City to offer a reasonable alternative IVR solution. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 2 The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. 3. That the above recitals, B. through C.8 . identified and set forth therein are incorporated, by reference, herein. (signature page follows) City Attorney Approved Version 1/30/13 2 KRONOS (print name/title) By: (sign here) Alyce Moore, Assistant Secretary (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: ATTEST: BARBARA ENGLE~N City Clerk City Manager If required by City, proper notarial acknowledgment of execution by Contractor must be attached. !f a corporation , Amendment must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation . APPROVED AS TO FORM: City Attorney Approved Version 1/30/13 3 EXHIBIT "1" STATEMENT OF WORK Sales Executive Nedim Pajevic Presales Consultant Expiration Date 11/8/2015 Service Portfolio Consultant Howard Stahlman Customer Name City of Carlsbad File Name ControiiD 2015-21690 SOW Create Date 8/10/2015 Revision# 2 Project Type Services-only Status Approved 1. PROJECT SCOPE This Statement of Work (also known as the "SOW") documents the agreement between Kronos and City of Carlsbad concerning the services to be performed by Kronos for the City of Carlsbad's Police and Fire Departments, including the deliverables, and the costs of the project. 1.1 . PROJECT OVERVIEW Successfully deliver the following remotely: 1. Configure Aspect for the City of Carlsbad's Police and Fire Department's Production and Test Workforce TeleStaff environments. 1.2. PRODUCT SUMMARY The following products are considered in scope for the services and fees defined within this document, unless otherwise noted below. Additional products and/or licenses may incur additional fees. Product Implementation Type Version Aspect -Evolution Ne N/A 2. PROJECT GUIDELINES 2.1. CHANGE CONTROL If the Scope of Services defined in this document changes at any time during the course of this project, Kronos and City of Carlsbad will review and adjust the scope and budget of services through standard Kronos change control procedures in place at the time of signing of this SOW, located http://www.kronos.com/professionalservicesengagementpolicies.aspx as documented in Appendix A. City Attorney Approved Version 1/30/13 4 Exhibit 1 -Statement of Work-APPENDIX A 1.1. Professional and Educational Services Engagement Policies The following are intended to provide the policies under which Kronos Professional and Educational Services will operate during the cou rse of a City engagement: 1. Kronos will provide the City with a Services Scope Statement (also known as the "Statement of Work" or SOW) that outlines the project deliverables and provides an estimate for the project scope and cost required to complete the engagement, based upon preliminary information provided by the City. This Services Scope Statement is an estimate; the Assess Phase of the engagement will be used to determine whether modifications to the project scope or project budget are required . 2. The Services Scope Statement is valid for one year from the date of signature. 3. Any changes to the project scope and/or project duration will be reflected through the generation of a Kronos Change Order, which is initiated by the Kronos Project Manager and approved and signed by the City. a. These changes could be due to an increase or change in project scope or deliverables, insufficient City resources or time commitment, changes to City project schedule, or technical limitations. 4. Unless otherwise addressed within these policies, the hourly rate(s) quoted within a Change Order for work to be performed within normal business hours will be consistent with that contained within the original Services Scope Statement. In instances where specialized resources are requested, but not contained within the original Services Scope Statement, the quoted rate will be established as Kronos' current rate for such requested services. 5. Kronos personnel working at the City site shall have access to necessary infrastructure (servers, network, etc.). 6. In instances where Kronos personnel are working remotely access will be granted through the use of industry standard tools (VPN, DTS, GoToMyPC, PCAnywhere, etc.). 7. City agrees to not hire any Kronos employee who has performed services under the Agreement for a period of one-year after the completion of such services 8. If not hosted by Kronos Cloud Services, all required system administration, maintenance, backups, tuning, etc., is the responsibility of the City 9. City Data: To perform the implementation and to provide support after completion, Kronos may need to access and retain information regarding your employees and business organization. Kronos will take all reasonable steps to limit and safeguard the security of this information. 10. Scheduled Work Policies: a. Professional Services City Attorney Approved Version 1/30/13 0 i. Professional Services work will be conducted during normal business hours, 8:00AM -5:00PM , Monday through Friday. ii. All Professional Services work scheduled to start outside of normal business hours will be billed in full at a premium rate described below. For work to be performed after hours, on holidays, or on weekends, an approved Change Order will be required prior to scheduling (see Change Order Process below).City will be charged as follows: 1. All Professional Services will be scheduled and billed in 4 hour increments with a minimum charge of 4 hours. b. Education Services a. After Hours i. All scheduled work will be billed at 1.5 times the contract rate by role ii. After Hours is considered 5:00PM-8:00AM, Monday through Friday b. Weekends i. All scheduled work will be billed at 2.0 times the contract rate by role ii. Weekends are considered 5:00PM Friday through 8:00AM Monday c. Holiday i. All scheduled work will be billed at 2.0 times the contract rate by role ii. ii. Holidays are any Kronos recognized Holidays, which include: New Year's Day, President's Day, Memorial Day, Independence Day, Thanksgiving Day, the day after Thanksgiving, Christmas Day. i. All training course delivery scheduled to start outside of normal business hours will be billed in full at a premium rate described below. City will be charged as follows: 1. After Hours a. There will be a 1.5 times premium per student for public courses or per class for private day rates b. After Hours is considered 5:00PM-8:00AM, Monday through Friday 2. Weekends a. There will be a 2.0 times premium per student for public courses or per class for private day rates b. Weekends are considered 5:00PM Friday through 8:00AM Monday 3. Holidays a. There will be a 2.0 times premium per student for public courses or per class for private day rates City Attorney Approved Version 1/30/13 b. Holidays are any Kronos recognized Holidays, which include: New Year's Day, President's Day, Memorial Day, Independence Day, Thanksgiving Day, the day after Thanksgiving, Christmas Day. 11. Travel Policies a. City is responsible for airfare, lodging and related travel expenses for onsite consultants. b. City is responsible for travel costs for employees attending training at a Kronos location. c. City is responsible for travel and related costs for a Kronos trainer providing instruction at the City location . d. If a Kronos employee is required on-site per the City request, a minimum of 8 hours will be billed per day. 12. Cancellation Policies: Kronos requires notification for the cancellation or rescheduling of Kronos personnel as well as the cancellation of Instructor led classes. City wi ll be charged for fa ilure to meet the fo llowing notification requirements: a. Professional Services: 1. 2 business days prior to scheduled work -50% of pl anned charges are invoiced for schedule work 11. 1 business day prior to scheduled work -100% of planned charges are invoiced for scheduled work 111. Business days are: Monday, Tuesday, Wednesday, Thursday, and Friday, excluding Holidays b. Education Services: 1. For any PUBLIC course held in the traditional classroom or in the virtual classroom, attendees must cancel at least five business days before the class start date to avoid cancellation fees (equal to the cost of the course). Student substitutions can be made at any time as long as prerequisites have been met. 11. For any PRIVATE course held at a City site, in the traditional classroom, or in the virtual classroom: attendees must cancel at least ten business days before the class start date to avoid cancellation fees (equal to the cost of the course). Student substitutions can be made at any time as long as prerequisites have been met. c. Cancellation Policy Exampl e: 1. Work is schedule for Wednesday, 1 p-5p (4 hours) 11. If City cancels on: 1. Friday -no penalty 2. Monday -50% of planned charges are invoiced (2 hours) 3. Tuesday -100% ofplanned charged are invoiced (4 hours) d. Cancellati on Policy Exampl e with a Holiday: 1. Work is schedule for Wednesday, 1 p-5p (4 hours) 11. If City cancels on: 1. Thursday -no penalty 2. Friday -50% of planned charges are invo iced (2 hours) 3. Monday -holiday, doesn't count as "business day" 2 City Attorney Approved Version 1/30/13 4. Tuesday -100% ofplanned charged are invoiced (4 hours) 13. Additional Education Services Policies a. All Instructor-led Educational Services classes will be held at a Kronos facility, or via the Kronos Virtual Classroom (if offered in that modality), unless City has purchased onsite location training. City Attorney Approved Version 1/30/13 3 EXHIBIT 2 ACCEPT ABLE USE POLICY US Acceptable Use Policy for Aspect Subscription Services Updated: February 2, 2015 1. Introduction 1.1 This Acceptable Use Policy ("AU P") is part of your agreement with Aspect Software, Inc. ("Aspect") for an Aspect subscription service, including without limitation Aspect Hosted Service, Voxeo Cloud Service, Zipwire Service, Aspect Outbound Cloud Service, and Aspect Social, or for the right to resell an Aspect subscription service ("Agreement"). By using an Aspect subscription service ("Service"), you agree to comply with this Acceptable Use Policy ("AUP'') and to be responsible for use by your users and your customers' users. Aspect may suspend or terminate your Service) for violation of th is AUP in accordance with your Agreement. "Aspect" includes any Aspect vendor providing hosting services to Aspect. 1.2 Aspect may modify the AUP at any time without notice by posting a revised AUP on www.aspect.com. Changes are effective on posting. Your use of a Service after changes to the AUP are posted constitutes acceptance of any changed or additional terms. Aspect makes this AUP available in an online format. You also may request the latest version by contacting Aspect. 2. Abuse You may not use Aspect's network or a Service to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including: i. Use of an internet account or computer without the owner's authorization; ii. Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the data, system or network; iii. Collecting or using email addresses, screen names or other identifiers without the consent of the person identified if prohibited by applicable law (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting); iv. Collecting or using information without the consent of the owner of the information if prohibited by applicable law; v. Use of any false, misleading, or deceptive TCP/IP packet header information in an email or a newsgroup posting; vi. Distribution of software that covertly gathers information about a user or covertly transm its information about the user; vii. Distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and co nspicuous notice of the nature of the software, and (i i) the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft's "ad/remove" tool); viii. Any conduct that results in retaliation against the Aspect network or website, or Aspect's employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack. ix. Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network; City Attorney Approved Version 1/30/13 4 x. Interference with or disruption of a Service or Aspect servers or networks or service to any other user of a Service or the Aspect or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; xi. Defamation, abuse, harassment, stalking, threatening or otherwise violating the legal rights (such as rights or privacy and publicity) of others; xii. Use in connection with pyramid schemes, chain letters, junk email, spamming, or any duplicative, unsolicited, or disruptive messages (commercial or otherwise); or xiii. Creating user accounts by automated means or under false or fraudulent pretenses. 3. Content 3.1 You are solely and fully responsible for the content of any material posted, hosted , downloaded, uploaded, created, accessed or transmitted using a Service. Aspect has no responsibility for any material created on or accessible using the Service. 3.2 You may not publish, transmit or store via a Service or the Aspect network or equipment any content or links to any content that Aspect reasonably believes: i. Constitutes inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information; ii. Is excessively violent, incites violence, threatens violence or contains harassing content or hate speech; iii. Is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes; iv. Creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security or interferes with an investigation by law enforcement; v. Improperly exposes trade secrets or other confidential or proprietary information of another person; vi. Is intended to assist others in defeating technical copyright protections; vii. Infringes on another person's copyright, trade or service mark, patent or other intellectual property rights; viii. Promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking; ix. Is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Aspect; or x. Is malicious, fraudulent or may result in retaliation against Aspect by reasonably offended viewers. 4. System and Network Security You may not: i. Upload any files that contain viruses, Trojan horses, works, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of the Aspect network, Aspect equipment, or a Service or use a Service in any way that is harmful to or interferes with Aspect's network, equipment, or systems; ii. Circumvent user authentication or security of any host, network or account; iii. Execute any program or process that causes security breaches or disruptions of a Service, including without limitation war dialing, flood pings, packet spoofing, and forged telephone information; iv. Otherwise use a Service in any way that is a security risk; or v. Refuse to comply, in a timely manner, with Aspect requirements for network security, including changes required to comply with Payment Card Industry (PCI) security standards, Health Insurance Portability and Accountability Act (HIPAA), Gramm-Leach-Biiley Act, or other security and privacy laws, regulations or standards .. City Attorney Approved Version 1/30/13 5 5. Excessive Use of System Resources You may not use any shared system provided by Aspect in a way that unnecessarily interferes with the normal operation of the shared system or with the use of the system by other Aspect customers or resellers. You agree that Aspect may quarantine or delete any data stored on a shared system if Aspect reasonably believes that if the data is infected with a virus or is otherwise corrupted and has the potential to infect or corrupt the system or other customers' data that is stored on the same system . 6. Email Requirements;SPAM 6.1 Messages sent using a Service must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email , including without limitation the following requirements: i. Your intended recipients have given their consent to receive email via some affirmative means, such as an opt-in procedure; ii. Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the email address for which the consent is given; iii. You retain evidence of the recipient's consent in a form that may be promptly produced on request, and you honor the recipient's and Aspect's requests to produce consent evidence within 72 hours of receipt of the request; iv. You have procedures in place that allow recipients to revoke their consent, such as a link in the body of the email or instructions to reply with the word "Remove" in the subject line, you honor revocations of consent within 48 hours and notify recipients; v. You post an email address for complaints (such as abuse@yourdomain.com) in a conspicuous place on any website associated with the email, you must register that address at abuse.net, and you promptly respond to messages sent to that address; vi. You have a privacy policy posted for each domain associated with the mailing; vii. You have the means to track anonymous complaints; viii. You do not obscure the source of your email in any manner. Your email must include the recipient's email address in the body of the message or in the "TO" line of the email; ix . You do not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than 15 days; and x. You do not use the Service or your account to collect replies to messages sent from another provider that violate the acceptable use policy or other rules of that provider. 6.2 Aspect may block the transmission of email that violates any of these provisions. 7. Vulnerability Testing You may not attempt to probe, scan, penetrate or test the vulnerability of an Aspect system or network, or to breach the Aspect security or authentication measures, whether by passive or intrusive techniques, without Aspect's express written consent. 8. Copyrighted Material 8.1 You may not use Aspect's network or the Service to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image or other work protected by copyright law unless (a) you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or (b) you are otherwise permitted by established copyright law to copy the work in that manner. City Attorney Approved Version 1/30/13 6 8.2 It is Aspect's policy, in appropriate circumstances, to terminate the Service of customers who are repeat infringers. 9. Newsgroup, Chat Forums, Other Networks You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate using the Service, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums. You must comply with the rules of any other network you access or participate in using the Service . 10. Compliance with Laws; Export. You must ensure that neither the Service, nor any software component Aspect provides you required to access the Service ("Client Software"), is used in or for any illegal, fraudulent, unauthorized or improper manner or purpose. You must comply, and insure that the Service and Client Software are used only in compliance, with applicable U.S., foreign, and international laws and regulations, including without limitation (i) Internet, data, telecommunications, telemarketing and "spam" laws and regulations, (ii) the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, other anti-corruption laws, U.S. Export Administration and Treasury Department's Office of Foreign Assets Control regulations, and (iii) other anti-boycott and import regulations. You agree: (i) that the export, re-export, transfer, re-transfer, sale, supply, access to, or use of a Service or Client Software to or in a third country or to, by, or for a different end user or end usemay require a U.S. or other government license or other authorization; and (ii) not to, directly or indirectly, export, re-export, transfer, re-transfer, sell, supply, or allow access to or use of a Service or Client Software to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end uses under U.S. or other applicable law (collectively, "Prohibited Uses"). You are responsible for screening for Prohibited Uses and obtaining any required licenses or other authorizations. You indemnify Aspect for any violation by you, your customers, your customers' users of any applicable export controls and/or economic sanctions laws and regulations. 11, Other Requirements 11.1 You may only use a Service in a manner that is consistent with the purpose of intent of the Service. If you are unsure of the acceptable use or purpose of a Service, you should contact Aspect and obtain clarification and approval for its specific use. 11.2 You may only use IP addresses assigned to you by Aspect in connection with your Aspect Service. 11.3 You agree that if Aspect IP numbers assigned to your account are listed on an abuse database like Spamhaus, you will take prompt action to remedy the issue. If you do not do so within 10 days of written notice from Aspect, Aspect may take reasonable action to protect its IP addresses, including suspension and/or termination of your Service, if the IP addresses were listed as a result of your actions. 11.4 You agree that if you register a DNS record or zone on Aspect managed or operated DNS servers or Service for a domain of which you are not the registrant or administrative contact according to the registrar's WHO IS system, that, upon request from the registrant or administrative contact according to the registrar's WHOIS system, Aspect may modify, transfer, or delete such records or zones. 11.5 You may not register to use any Service under a false name, or use an invalid or unauthorized credit card in connection with any Service. 11.6 You may not furnish false or incorrect data on Aspect required documentation or attempt to circumvent or alter the processes or systems that measure time, calls, or other methods for calculating your use of a Service. City Attorney Approved Version 1/30/13 7 11.7 You are responsible for taking prompt corrective action(s) to remedy a violation of this AUP and to help prevent similar future violations. 12. SLA No credit will be available under any service level agreement for interruptions of a Service resulting from any AUP violation. 13. Payment Card Industry ("PCI") Environment 13.1 If Aspect makes available, and Customer has ordered and paid for, PCI Environment, you will use the Service in accordance with the requirements of this Section (in addition to the other requirements of this AUP). You also acknowledge and agree that PCI Environment does not mean that Applications (as defined in Section 14 of this AUP) will be PCI Compliant, and that it is your sole responsibility to secure sensitive data running in your Applications. "PCI Compliant" means certified as compliant with Payment Card Industry Data Security Standards (PCI) Level 1. 13.2 You will: i. Not access any carrier services that you have not ordered or for which you have not paid applicable fees; ii. Not store sensitive data (including credit card numbers and all sensitive cardholder data) at rest on the Service; iii. Disable logging if an Application or the Service has the possibility of capturing cardholder data; iv. Use the encrypted call recording platform feature when recording any audio that may contain sensitive data; and v. Not send unencrypted sensitive data to any external location including your own web servers. 14. Applications Running on Voxeo Cloud Service 14.1 "Applications" means web pages, software applications (including software applications designed by you or your designees}, code, information and data you own or control that run on Voxeo Cloud Service. 14.2 You may not deploy Applications or services that contain endless loops. 14.3. Any Application or session must contain an explicit termination event. 14.4. Once your receive Aspect sign-off for an Application to be launched in production on Voxeo Cloud Service, you must provide Aspect written notice at least 24 hours before making a material change to the Application that would affect Voxeo Cloud Service resource utilization or deployment. 14.5. All required fields on the Application launch forms must be complete and accurate. 14.6. No Application will be launched on the Voxeo Cloud Service production network until the launch process has been completed. 14.7. Any new Application must complete the launch process before moving into production. 14.8. Customer may not substitute a new Application for an existing one without written approval from Aspect. 14.9. You must provide written notice to Aspect if you have reason to believe that usage of Voxeo Cloud Service by you or your end users is likely to increase by 25% or more ("spike") for any reason (such as an advertising campaign you conduct; expected daily, weekly, monthly or seasonal usage variations; etc.), as far City Attorney Approved Version 1/30/13 8 in advance of the expected spike as reasonably possible. The required launch document contains your best good faith estimate of usage of Voxeo Cloud Service and peak loads. 14.10. You will upon reasonable notice comply with re-provisioning of telephone provider lines due to network changes, changes to Aspect data centers, and facilities. Aspect may charge additional fees for non- compliance. 15. SMS Service Acceptable Use Policy 15.1 By using SMS Service you also will comply with this Section 15. 15.2. General. You acknowledge that (i) users of the SMS Service are also customers of the carriers whose services are used by Aspect to transmit messages over the carrier networks ; and (ii) those carriers assert that information of or about their customers (who may also be Customer's end users), derived solely by such end user customers' use of the carriers' networks, is confidential information of the carriers and the private information of such end user customers of the carriers and subject to the confidentiality provisions under the Agreement. You must comply with the Common Short Code Administration's Best Practices, which can be found at http://www.usshortcodes.com/csc best practices.html. 15.3 Unacceptable Uses.You will not use SMS Service to upload, post, email, transmit, or otherwise make available: i. junk mail , spam , or unsolicited material to persons or entities that have not agreed to receive such material or to whom Customer or its end users do not otherwise have a legal right to send such material; ii. material that infringes or violates any third party's intellectual property rights, rights of publicity, privacy, or confidentiality, or the rights or legal obligations of any wireless service provider or any of its customers or subscribers; iii. material or data, that is illegal, or material or data, as determined by Aspect in its sole discretion, that is harassing, coercive, defamatory, libelous, abusive, threatening, obscene, or otherwise objectionable, materials that are harmful to minors or excessive in quantity, or materials the transmission of which could diminish or harm the reputation of Aspect or any third-party service provider involved in the provision of SMS Service; iv . material or data that is alcoholic beverage-related (e.g., beer, wine, or liquor), tobacco-related (e.g., cigarettes, cigars, pipes, chewing tobacco), guns or weapons-related (e.g., firearms, bullets), illegal drugs- related (e.g., marijuana, cocaine), pornographic-related (e.g., adult themes, sexual content), crime-related (e.g., organized crime, notorious characters), violence-related (e.g., violent games), death-related (e .g., funeral homes, mortuaries), hate-related (e.g. racist organizations), gambling-related (e.g., casinos, lotteries), specifically mentions any wireless carrier or copies or parodies the products or services of any wireless carrier; v. viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information; vi. material or information that is false, misleading, or inaccurate; vii. material that would expose Aspect, any third-party service provider involved in providing the Services, or any other third party to liability; and/or viii. any signal or impulse that could cause electrical, magnetic, optical , or other technical harm to the equipment or facilities of Aspect or any third party. 15.4 Carrier Services. You will not access any carrier services that you have not ordered or paid for. © 2015 Aspect Software, Inc. -See more at: City Attorney Approved Version 1/30/13 9 PRIVACY POLICY Updated January 30, 2015 Welcome to aspect.com and voxeo.com. Aspect.com, voxeo.com , and their subpages and related sites (together, "this website"), which are owned and operated by Aspect Software, Inc., located at 300 Apollo Drive, Chelmsford, MA 01824, USA ("Aspect" or "we" or "us" or "our"). This privacy policy ("Privacy Policy") explains how we collect, use, and disclose the personal information that we obtain through this website. This Privacy Policy applies to all users of this website and/or of any services offered through this website ("Services"), whether or not you click "I Agree" through any registration or access process and whether or not you are a registered user. If you do not agree to this Privacy Policy, do not use this website or use or access the Services. Consent Your use of, and entry of personal information into, this website constitutes your consent to the use, processing, and transfer of you r personal information in accordance with this Privacy Policy. This website is hosted from servers in the Un ited States. Accordingly, if you are located in a different jurisdiction and enter personal information into this website, your personal information may be transferred to the United States or any other country as required by Aspect. See "Transfer of Your Information," below. This website does not normally collect "sensitive" personal information, such as information about ethnic or racial origin, religious or philosophical beliefs, and/or health or medical conditions. However, if this website collects any sensitive personal information, your use and voluntary entry of information into this website constitutes your explicit consent to the collection, use, and disclosure of that information for the purposes and in the manner described in this Privacy Policy. Information We Collect Aspect may collect and use personal information and anonymous information and may use this information to create aggregate information about our users. In addition , in order to access a Service, you may be requ ired to complete one or several registration or order forms. During registration (and possibly thereafter), we may ask you to give your name, title, company name, telephone number, address and e-mail address, and other contact or identifying information. We also may ask you to choose a user ID, PIN and/or password . We may collect information by your presence on this website, even if you have not registered or subscribed to a Service. The information we collect will fall into one of the following categories: (1) "Personal Information," such as your name and e-mail address, which can be used to personally identify or contact you or confirm your identity; (2) "Billing Information ," such as cred it card information and bill ing address, which also is Personal Information; (3) "Usage Information," such as usage, viewing and technical data, including your device identifier or IP address, when you visit this website or open emails we send (see "Cookies and Other Passive Tracking Devices," below), and Service usage; and (4) "Anonymous Information," as described under "Cookies and Other Passive Tracking Devices," which we can aggregate across users. How We Use Your Information Aspect uses the personal information we collect to provi de the highest level of customer service to our prospects, customers, investors and users in general. We use your personal information to register you, regulate access to the Services, personalize and enhance your experience when visiting this website, contact you , provide materials to you upon your request, allow you access into proprietary systems, to respond to City Attorney Approved Version 1/30/13 10 your request or direction, and for any other purposes identified when your information is collected. Aspect will not use your information in ways unrelated to the ones described above without first obtaining you r permission. We use Billing Information and Usage Information to bill you for Services and to provide you with technical and billing support. W e also use Usage Information to deliver content based on your usage patterns, provide you with information about Aspect products and services that we believe would be of interest, provide you with advertising based on your activity on ou r sites and on third-party sites, and other uses described under "Cookies and Other Passive Tracking Devices," below. You may choose to opt-out of receiving such emails by clicking on "Unsubscribe" at the bottom of the email and completing the on-screen form. We use Anonymous Information as described under "Cookies and Other Passive Tracking Devices," below. Transfer of Your Information We may, and you authorize Aspect to, transfer your information to Aspect Software, Inc. in the United States and to any Aspect affiliate worldwide for the purpose of processing or storage. In no circumstance will Aspect sell, rent, transfer or lease your information to any third party except in the following circumstances: • Aspect has your written consent. • Transfer is to other Aspect entities and/or business partners who are acting on Aspect's behalf for the uses described in "How We Use Your Information". Such Aspect entities and/or business partners will be under the same duties as is Aspect under this Privacy Policy to keep the data secure, confidential and private. • Transfer is required by law or court order. • Transfer is done in connection with a business transaction, such as a merger, acquisition by another company, or the sale or transfer of all or a portion of Aspect's assets to a successor-in-interest. You will be notified via email or prominent notice on this website of any such change in ownership or control of your Personal Information. • Aspect believes, in its sole discretion, that transfer is necessary to protect and defend the rights, property or personal safety of Aspect, its affiliated companies, this website or its users. • Your contact information (your name and email address) • Your changed name, address, title, phone number or email address Updating Your Personal Information Please notify us of any changes to your name, address, title, phone number or email address by emailing us at communications@aspect.com . To aid in processing your request, please include the following details: • Your contact information (your name and email address). • Your changed name, address, title, phone num ber or email address. Security of Your Personal Information Aspect takes appropriate technical , physical and administrative steps to protect the security of your information. Access to your personal information is limited only to those employees, contractors or authorized agents of Aspect who have authorization to access your personal information and such access is limited to the extent such information is needed to fulfill the task for which personal information was collected. While we strive to protect your personal information, we cannot ensure the security of the information you transmit. We recommend you to take every precaution to protect your personal information when you are on the Internet. For example, change your passwords often, use a combination of letters and numbers when creating passwords, and make sure you use a secure browser. City Attorney Approved Version 1/30/13 11 Cookies and Other Passive Tracking Devices Aspect and certain service providers operating on our behalf use cookies, Web bugs and IP addresses ("Passive Tracking Devices") to automatically collect aggregate and anonymous statistics about your activity on the website. If you have provided your contact information to us, we may also use Passive Tracking Devices to collect information about your activity on the website and use that information to provide you with information about Aspect's products and services that may be of particular interest. "Cookies" are small files that this website places on your computer (if your computer accepts cookies) to identify your computer, but not you . Cookies cannot be used to access or otherwise compromise the data on your computer. You may choose to change your browser settings to disable cookies, however, you will not be able to complete certain activities or access certain information on this website if cookies are disabled. In addition, service providers that collect tracking data on our behalf may provide an opportunity for you to choose not to be tracked online. For example, you can opt out of Google's use of cookies by visiting Google's Ads Settings page. Aspect uses the information it collects using Passive Tracking Devices to: • Monitor the use and operation of this website to make it easier to use and otherwise improve it. • Manage features and programs made available through this website. • Tailor the content of the website to make it more effective. • Deliver content based on your usage patterns. • Provide you with information about Aspect products and services that we believe would be of interest. • Provide you with advertising based on your activity on our sites and on third-party sites. o Optimize our marketing efforts (such as keyword advertising purchase and search engine optimization) and to determine the success of our marketing campaigns. Aspect may combine the information it collects using Passive Tracking Devices with personal information about you. Aspect also may disclose aggregate information collected using Passive Tracking Devices to third parties. Content You Post Any material you post on this website (for example, commenting on a blog or submitting questions, responses or other content to any Aspect hosted user group), including personal information, will be publically viewable on the website as soon as that information is submitted. By posting any such material, you waive any privacy expectations that you may have with respect to the material posted. If you don't want others to see such information, don't submit it. Links This website contains links to other websites that are not owned by Aspect. You may also be directed to a third party website for certain purposes, such as registering with us or submitting a job application. Please note that these other websites' privacy policies may differ from those of Aspect. We encourage you to read the privacy statement of any website you may visit because we are not responsible for any such website's content or policies. Children's Privacy Aspect does not knowingly collect personal information from children under the age of 13. If we learn that we have collected personal information of a child under the age of 13, we will take reasonable steps to delete that City Attorney Approved Version 1/30/13 12 data from our systems. Please visit the Federal Trade Commision's website for more tips on protecting children's privacy online. Safe Harbor Privacy Statement Aspect complies with the U.S.-EU Safe Harbor program and the U.S.-Swiss Safe Harbor program for the collection, use, and retention of personal information Aspect receives from customers located in the European Economic Area and Switzerland (see Aspect's Safe Harbor Policy. Changes to this Privacy Policy Aspect may make changes to this Privacy Pol icy at any time. When we do, we will change the "updated" date at the beginning of this Privacy Policy. Please review this Privacy Policy frequently. If we make material changes to this Privacy Policy, we will notify you by placing a prominent notice on the home page of this website. Contact Us For further information about Aspect's privacy practices, please contact: Aspect Software Legal Department 300 Apollo Drive Chelmsford, MA 01824 978 250 7900 (phone) 978 244 7410 (fax) legal-info@aspect.com © 2015 Aspect Software, Inc., 300 Apollo Drive, Chelmsford, 13 City Attorney Approved Version 1/30/13 .KRONOS" / Quotel: 405506 -1 Expires: 27-MAR-2015 Prepared By. Lyle, Branda Green Bill To: CARLSBAD POLICE 2560 ORION WAY CARLSBAD CA92010 United States Solution ID: 6116951 Payment Terms: N30 Cumncy: USO Customer PO Number: Order Not .. : TeleStalf Arst Year Support ORDER FORM Order Type: Standard US Date: 28-JAN-2015 Page: 1/3 Ship To: Attn:DIANNE EVANS CARLSBAD POLICE 2560 ORION WAY CARLSBAD CA 92010 United States Contact: Dianne Evans Email: Olanne.Evans@Cartsbadca.gov FOB: Shipping Point Ship Method: Freight Term: Prepay & Add Kronos agrees to provide Customer 6 montns of no cost software support maintenance at the level of support Indicated on this Order Form. The value of such free software support maintenance Is $2. m.44. Upon expiration of the first 12 montns of support. a renewal wll be generated at the annualzed rate SUb)ed to the terms of the agreement. This order Is subject to the terms and conditions of that certain Sales, Software Ucense and Services Agreement between Kronoa and Customer dated 0910212014. The GM meuage types used to build the Interface to lawson lncor end CybefsNft Sum Total are covered under Kronos software support In accotdance with the terms of the Agreement for the term Indicated on this Omer Form. The professioN! and educa!lonal services listed on this Order Form are fl.rther desaibed In the SeMces Scope Statement executed cona.rrently with this Omer Form. Fixed Fee Services For the aervlees set forttlln the Statement ofWortt (or "SOW) and this Order Form, Krooos agrees to complete the services, as described In the SOW for the fixed fee aet forth hentln, unless addiCJonal hours are required to complete such setvlces due to a material change In the scope of the project. Customer delay In fUfi~g lis obligations, or as a resiAt of a change In lie compleldty of the Oflglnatacope of services based on Information unllnown at the time the parties entered Into this SOW. Any sud! additional hours shal be agreed upon by the parties pursuant to the Change Order process described In the Sr:JN and the 1\xad fee amount desaibed herein shal be amended as prOIIided In such Change Order. If Kronos has noC lnwlced for the entire &xed fee amount as set forttlln this Sr:JN (and any Change Orlie11. If applc.ble) upon completion of the services, Krenos wiN Invoice Customer for any remaining fees up 1o the fixed fee amount and Customer shal pay such fees upon the payment terms agreed upon by the parties. All services shd be Invoiced In accordance with the terms of the Agreement unless otherNise spedfted In the Sr:JN. The professional services listed herein wil be Invoiced In aa;o~nce with the ldledl* set forth In Section .c Pro}ed Delverables of the SeMees Scope Statement executed concurrently with tNs quote. Your Kronos solution Includes SOFTWARE Item LlccnsciQty Total Price WORKFORCE TELESTAFF ENTERPRISE V4 175 WORKFORCE TELESTAfF GLOBAl ACCESS V4 175 WORKFORCE TELESTAFF GATEWAY MANAGER V4 1 WORKFORCE TELESTAfF CONTACT MANAGER V4 m WORKFORCE TELESTAFF BIDDING w, m T otlll PrtC4 122,117 .5CI •Jnc:Uies applcable software media Kronos I Time & Attendance • Scheduling • Absence Management • HR & Payroll • Hiring • Labor Analytics Kronos Incorporated 297 Billerica Road Chelmsford, MA 01824 (800) 225·1561 (978) 250..9800 www kronos com Kronos Incorporated 297 Billerica Road Chelmsford, MA 01824 Phone: (978)250-9800 KRONOS SALES, SOFTWARE LICENSE AND SERVICES AGREEMENT Page: 1/43 Rev KR-022811.1 City of Carlsbad ("Customer") and Kronos agree that the terms and conditions set forth in this SALES, SOFTWARE LICENSE AND SERVICES AGREEMENT hereby known as a "SSLSA" and the City of Carlsbad Professional Services Agreement ("PSA") attached as "Exhibit A", together the "Master Agreement", shall apply to all Kronos Equipment, Software, Professional and Educational Services, Support, and such other Kronos offerings, expressly specified in a document signed by the parties which expressly references this Agreement (or is signed contemporaneously hereto) (i.e. an order form ("Order Form"). The services to be provided in any specific services engagement shall be described in a Services Scope Statement ("SSS") which shall be executed by both parties in addition to an Order Form. Certain of Kronos' policies may be negotiated for a specific services engagement. In the event of a conflict between the documents, the following shall be the order of precedence: a) Master Agreement; b) Order Form c) SSS and any negotiated policies attached as exhibits to the SSS; d) The Kronos policies located on the Kronos website. Kronos and Customer hereby agree that the terms and conditions of this Master Agreement apply to any Order Forms executed by Kronos and Customer which expressly references this Master Agreement (including any Order Form signed contemporaneously with this Master Agreement regardless of the appearance of any express reference to this Master Agreement) unless the SSS and Order Form has terms that were negotiated by the Parties and the Parties intend that the negotiated terms are to take precedence over the Master Agreement. Kronos or Customer may require additional terms and conditions for the sale or license of products or services not contemplated by this Master Agreement (including without limitation those that may be related to international services) provided that no such additional terms and conditions shall be binding upon Customer or Kronos without Customer's and Kronos' prior written consent. Notwithstanding, neither party will not be obligated to accept or approve an order for any products or services for which such additional terms and conditions are required. All orders are subject to the approval of Kronos' corporate office in Chelmsford, Massachusetts and the approval of the Customer. This Master Agreement and the Order Form shall supersede the pre-printed terms of any Customer purchase order and no such Customer pre-printed terms shall apply to the items ordered. I. PAYMENT AND DELIVERY Unless otherwise set forth in this Master Agreement, payment tenns are indicated on the Order Form or SSS or other contemporaneous ordering document containing product- specific payment tenns signed by the parties (e.g. SSS). Software and equipment delivery terms are as stated on the Order Form. Kronos will invoice Customer for software and equipment products upon Delivery. Unless otherwise set forth on the Order Form or SSS, Professional and Educational Services are provided on a time and materials basis, invoiced monthly as rendered. Customer agrees to pay all applicable taxes levied or based on the products, services or other charges hereunder, including state and local sales and excise taxes, and any taxes or amount in lieu thereof paid or payable by Kronos, exclusive of taxes based on net income. 2. GENERAL LICENSE TERMS Kronos owns or has the right to license the Software. The Software and Software documentation are confidential and may not be disclosed to a third party without Kronos' written consent. The Software contains proprietary trade secret technology. Unauthorized use and copying of such Software is prohibited by law, including United States and foreign copyright law. The price Customer pays for a copy of the Software constitutes a license fee that entitles Customer to use the Software as set forth below. Kronos grants to Customer a non-exclusive, nontransferable, perpetual (except as provided herein) license to use the Software. This license may be terminated by Kronos by written notice to Customer upon any material breach of this Agreement by Customer which remains uncured for a period of thirty (30) days after such written notice from Kronos. Upon such termination of this license by Kronos, Customer will have no further right to use the Software and will return the Software media to Kronos and destroy all copies of the Software (and related documentation) in Customer's possession or control. This license is subject to all of the terms of this Agreement. 3. FEE BASED LIMITATIONS Customer recognizes and agrees that the license to use the Software is limited, based upon the amount of the license fee paid by Customer. Limitations, which are set forth on the Order Form, may include the number of employees, simultaneous or active users, Software product modules, Software features, computer model and serial number and partition, and/or the number of telephone lines or terminals to which the Software is permitted to be connected. Customer agrees to: i) use the Software only for the number of employees, simultaneous or active users, computer model, partition and serial number, and/or terminals permitted by the applicable license fee; ii) use only the product modules and/or features permitted by the applicable license fees; and iii) use the Software only in support of Customer's own business. Customer agrees not to increase the number of employees, simultaneous or active users, partitions, terminals, products modules, features, or to upgrade the model, as applicable, unless and until Customer pays the applicable fee for such increase/upgrade. Customer may allow other service providers access to the Software in the furtherance of their business needs, provided they have agreed to confidentiality terms no less restrictive than Customer and provided further that Customer shall be liable for any claims, acts or omissions by any such third party arising out of or related to this Master Agreement. Customer may not relicense or sublicense the Software to, or otherwise permit use of the Software (including timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Software without the express prior written consent of Kronos. 4. OBJECT CODE ONLY Customer may use the computer programs included in the Software (the "Programs") in object code form only, and shall not reverse compile, disassemble or otherwise convert the Programs into un-compiled or unassembled code. The Programs include components owned by third parties. Such third party components are deemed to be Software subject to this Master Agreement. Customer shall not use any of the Programs (or the data models therein) except solely as part of and in connection with the Software and as described in the published documentation for such Software. Customer shall indemnifY and hold harmless Kronos for all damages or liability caused by Customer's failure to comply with the foregoing restriction. 5. PERMITTED COPIES Customer may copy the Programs as reasonably necessary to load and execute the Programs and for backup and disaster recovery and testing purposes only, except for additional copies of the Teletime Software and the Kronos iSeries (which must be licensed separately). All copies of the Programs or any part thereof, whether in printed or machine readable form and whether on storage media or otherwise, are subject to all the tenns of this license, and all copies of the Programs or any part of the Programs shall include the copyright and proprietary rights notices contained in the Programs as delivered to the Customer. 6. UPDATES In the event that Kronos supplies Service Packs, Point Releases and Major Releases (including legislative updates if available) of the Software (collectively referred to as "Updates"), such Updates shall be part of the Software and the provisions of this license shall apply to such Updates and to the Software as modified thereby. 7. EXPORT Customer acknowledges that the Equipment and Software may be restricted by the United States Government or by the country in which the Equipment or Software is installed from export to certain countries and certain organizations and individuals, and agrees to comply with such laws. Customer agrees to comply with all applicable Kronos Incorporated 297 Billerica Road Chelmsford, MA 01824 Phone: (978)250-9800 Page: 2 I 43 laws of all of the countries in which the Equipment and Software may be used by Customer and shall indemnifY Kronos for any noncompliance which results in damages or liability for Kronos. Customer's obligations hereunder shall survive the termination or expiration of this Master Agreement. Customer must obtain Kronos' prior written consent before exporting the Software. 8. FIRMWARE Customer may not download firmware updates for the Kronos Equipment unless Customer is maintaining such Equipment under a support plan with Kronos. If Customer is not maintaining the Equipment under a support plan with Kronos, Kronos shall have the right to verifY Customer's Kronos Equipment to determine if Customer has downloaded any firmware to which Customer is not entitled. If Customer has downloaded firmware for the Kronos Equipment to which Customer is not entitled, Customer shall be responsible to pay Kronos for such updated firmware in accordance with Kronos' then-current support policies. 9. TRAINING POINTS Training Points which are purchased by Customer may be redeemed for an equivalent value of instructor-led training sessions offered by Kronos. Available instructor-led sessions are listed at http://customer.Kronos.com and each session has the Training Points value indicated. Training Points may be redeemed at any time within 12 months of the date of the applicable Order Form at which time they shall expire. Training Points may not be exchanged for other Kronos products and/or services. Kronos will invoice Customer for the Training Points identified in the Order Form upon execution of such Order Form with payment due upon the payment terms indicated in such Order Form. 10. ACCEPTANCE For Customer's initial purchase of each Equipment and Software product, Kronos shall provide an acceptance test period (the "Test Period") that commences upon Installation. Installation shall be defined as: a.) the Equipment, if any, is mounted; b.) the Software is installed on Customer's server(s); and c.) Kronos has configured the Software for Customer's work and/or pay rules within the Software's standard application parameters; d.) standard interfaces are transmitting data; e.) standard application reports can be generated; .f.) implementation team training, if any, is complete. During the Test Period, Customer shall determine whether the Equipment and Software meet the Kronos published electronic documentation, ("Specifications"). The Test Period for equipment and Software product shall be for 30 days. For professional services, acceptance shall be outlined in a SSS. If Customer has not given Kronos a written deficiency statement specifYing how the Equipment or Software fails to meet the Specifications ("Deficiency Statement") within the Test Period, the Equipment and Software shall be deemed accepted. If Customer provides a Deficiency Statement within the Test Period, Kronos shall have 30 days to correct the deficiency, and Customer shall have an additional30 days to evaluate the Equipment and Software. If the Equipment or Software does not meet the Specifications at the end of the second 30 day period, either Customer or Kronos may terminate this Master Agreement. Upon any such termination, Customer shall return all Equipment and Software (Kronos provided documentation) to Kronos, and Kronos shall refund any monies paid by Customer to Kronos for the returned Equipment and Software and Professional Services. Neither party shall then have any further liability to the other for the products that were the subject of the Acceptance Test. II. LIMITED WARRANTY Kronos warrants that all Kronos Equipment and Software media shall be free from defects in materials and workmanship, for a period of ninety (90) days from Delivery. In the event of a breach of this warranty, Customer's exclusive remedy shall be Kronos' repair or replacement of the deficient Equipment and/or Software media, at Kronos' option, provided that Customer's use, installation and maintenance thereof have conformed to the Specifications. This warranty is extended to Customer only and shall not apply to any Equipment (or parts thereof) or Software media in the event of: (a) damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, (including modification or replacement of any Kronos components on any boards supplied with the Equipment), unusual physical or electrical stress or causes other than normal and intended use; (b) failure of Customer to provide and maintain a suitable installation environment, as specified in the Specifications; or (c) malfunctions resulting from the use of badges or supplies not approved by Kronos. When using and applying the information generated by Kronos products, Customer is responsible for ensuring that Customer complies with the applicable requirements of federal and state law. If Customer is licensing Workforce Payroll Software or Workforce Absence Management Software: (i) Customer is solely responsible for the content and accuracy of all reports and documents prepared in whole or in part by using such Software, (ii) using such Software does not release Customer of any professional obligation concerning the preparation and review of such reports and documents, (iii) Customer does not rely upon Kronos, Best Software, Inc. or such Software for any advice or guidance regarding compliance with federal and state laws or the appropriate tax treatment of items reflected on such reports or documents, and ( iv) Customer will review any calculations made by using such Software and satisfY itself that those calculations are correct. 12. INDEMNIFICATION Kronos agrees to indemnifY Customer and to hold it harmless from and against any and all claims, costs, fees and expenses (including reasonable legal fees) relating to actual or alleged infringement of United States or Canadian patents or copyrights asserted against Customer by virtue of Customer's use of the Software as delivered and maintained by Kronos, provided that: i) Kronos is given prompt written notice of any such claim and has sole control over the investigation, preparation, defense and settlement of such claim; and, ii) Customer reasonably cooperates with Kronos in connection with the foregoing and provides Kronos with all information in Customer's possession related to such claim and any further assistance as reasonably requested by Kronos. Kronos will have no obligation to indemnifY Customer to the extent any such claim is based on the use of the Software with software or equipment not supplied by Kronos. Should any or all of the Software as delivered and maintained by Kronos become, or in Kronos' reasonable opinion be likely to become, the subject of any such claim, Kronos may at its option: i) procure for Customer the right to continue to use the affected Software as contemplated hereunder; ii) replace or modifY the affected Software to make its use non-infringing; or iii) should such options not be available at reasonable expense, terminate this Agreement with respect to the affected Software upon thirty (30) days prior written notice to Customer. In such event of termination, Customer shall be entitled to a pro-rata refund of all fees paid to Kronos for the affected Software, which refund shall be calculated using a five year straight- line depreciation commencing with the date of the relevant Order. Additionally, Kronos agrees to be liable for tangible property damage or personal injury caused solely by the negligence or willful misconduct of its employees. 13. PROFFESSIONAL AND EDUCATIONAL SERVICES (a) TRAVEL EXPENSES Customer agrees to reimburse Kronos for all reasonable and necessary travel incurred by Kronos in the performance of any professional and/or educational services, provided that such travel complies with Exhibit D and Exhibit E. Customer further agrees to pay any travel expenses such as airfare, lodging, meals and local transportation incurred by Kronos to deliver purchased professional services and/or educational services in accordance with Exhibit D and Exhibit E. Customer will be provided a copy of all travel invoices and will be billed by Kronos for such travel expenses and payment thereof shall be due net 30. All travel will be preapproved by Customer. Kronos Incorporated 297 Billerica Road Chelmsford, MA 01824 Phone: (978)250-9800 (b) ENGAGEMENTS Page: 3/43 Unless otherwise indicated on the Order Form or SSS, Professional and Educational Services ("Professional Services") shall be provided on a time and material basis at the rates set forth in the Order Form or SSS. If a dollar limit is stated in the Order Form or any associated statement of work ("SSS"), the limit shall be deemed an estimate for Customer's budgeting and Kronos' resource scheduling purposes. After the dollar limit is expended, Kronos will continue to provide Professional Services on a time and materials basis, only if a change order or an amendment is expressly signed by the parties. (c) WARRANTY Kronos warrants that all professional and educational services performed under this Master Agreement shall be performed in a professional and competent manner. In the event that Kronos breaches this warranty, and Customer so notifies Kronos within 30 days of receipt of invoice for the applicable services, the Customer's sole remedy and Kronos' exclusive liability shall be to re-perform the services which were deficient in a manner so as to conform to the foregoing warranty, at no additional cost to Customer. (d) KRONOS PROFESSIONAUEDUCATIONAL SERVICES POLICIES Kronos' then-current Professional/Educational Services Policies shall apply to all Professional and/or Educational Services purchased under the applicable SSS and may be accessed at: http://www.kronos.com/Support!Professiona!ServicesEngagementPolicies.htm ("Professional Services Policies"). In the event of a conflict between the Professional Services Policies and an applicable SSS, the terms of the applicable SSS shall prevail. 14. SOFTWARE SUPPORT SERVICES (a) SUPPORT OPTIONS Customer may select from the following Software support purchase options: Gold (or Gold Plus) and Platinum (or Platinum Plus) support ("Service Type"), each providing different service coverage periods and/or service offerings, as specified herein ("Service Offerings") and in the Kronos Support Service Policies (defined below). Customer must purchase the same Service Type for all of the Software specified on the Order Form, (however, if Customer is purchasing support services for Visionware Software, Customer may only purchase Gold Service Type for the Visionware Software).All Updates shall be provided via remote access. Customer may purchase support services for Equipment in accordance with the terms and conditions of Kronos' standard Equipment Support Services Agreement, a copy of which is available upon request and is located at: http://www.kronos.com/Legal/EquipmentSupportAgr.aspx (b) THIS SECTION WAS DELETED INTENTIONALLY. (c) TERM OF SOFTWARE SUPPORT Unless otherwise indicated on the Order Form, support service shall commence on the Software Delivery date and shall continue for an initial term of one (I) year. Support service shall automatically renew for additional one year terms on the anniversary date of its commencement date, unless either party notifies the other in writing sixty (60) days prior to that anniversary renewal date. After the one year initial term of this Master Agreement, the Service Offerings provided and the Service Coverage period are subject to change by Kronos with sixty (60) days advance written notice to Customer. For the initial two (2) renewal years the annual support fee, for the same products and service type, will not increase by more than 4% over the prior year's annual support fee. (d) GOLD SERVICE OFFERINGS Customer shall be entitled to receive for all production instances of the Software: (i) Updates for the Software (not including any Software for which Kronos charges a separate license fee), provided that Customer's operating system and equipment meet minimum system configurntion requirements, as reasonably determined by Kronos. If Customer requests Kronos to install such Updates or to provide retraining, Customer agrees to pay Kronos for such installation or retraining at Kronos' then-current time and materials rate. (ii) Telephone and/or electronic access to the Kronos Global Support Center for the logging of requests for service during the Service Coverage Period. The Service Coverage Period for the Gold Service Offering is 8:00a.m. to 8:00p.m., local time, Monday through Friday, excluding Kronos holidays. (iii) Web-based support including access to Software documentation, FAQ's, access to Kronos knowledge base, Customer forums, and e-case management. Such offerings are subject to modification by Kronos. Current offerings can be found on the Kronos customer portal. (iv) Web-based remote diagnostic technical assistance which may be utilized by Kronos to resolve Software functional problems and user problems during the Service Coverage Period. I. Access to specialized content as and when made available by Kronos such as technical advisories, learning quick tips, brown bag seminars, technical insider tips, SHRM e-Leaming, HR Payroll Answerforce and service case studies. (e) PLATINUM AND PLUS SERVICE OFFERINGS: Platinum: In addition to the Service Offerings specified for the Gold Service Offering above, the Service Coverage Period for the Platinum Service Offering is 24 hours a day, seven days a week, 365 days a year. Plus option: In addition to the Service Offerings specified for the Gold Service Offering above, customers purchasing the Plus option shall receive the services of a dedicated, but not exclusive, Kronos Technical Account Manager ('TAM") for each production instance of the Software. Customers purchasing the Gold-Plus option shall designate up to one primary and one secondary backup technical contacts ("Technical Contacts") to be the sole contacts with the TAM, while customers purchasing the Platinum-Plus option shall designate up to two primary and three secondary backup Technical Contacts. Upon request, Customer may designate additional and/or backup Technical Contacts. Customer is required to place all primary Technical Contacts through Kronos product training for the Software covered under this Master Agreement at Customer's expense. All Customers purchasing the Platinum-Plus option shall also receive a one day per year visit to be performed at the Customer location where the Software is installed. During this onsite visit, Kronos shall work with Customer to identify ways to help Customer increase functionality or maximize utilization of the Software in Customer's specific environment. Customer must be utilizing the then-current version of the Software. Travel and expenses are not included and shall be paid by Customer. (f) PAYMENT Customer shall pay annual support charges for the initial term in accordance with the payment terms on the Order Form and for any renewal term upon receipt of invoice net 30 provided that customer provides an email address on the order form. Customer shall pay additional support charges, if any, and time and material charges upon receipt of invoice, net 30 provided that customer provides an email address on the order form. If no email address is provided, the invoices shall be due net upon receipt. Kronos Incorporated 297 Billerica Road Chelmsford, MA 01824 Phone: (978)250-9800 (g) ADDITION OF SOFTWARE Page: 4/43 Additional Software purchased by Customer via an Order Form during the initial or any renewal term shall be added to this Agreement at the same support option as the then current Software support coverage in place under these terms. Customer agrees to pay the agreed upon charges for such addition, and any such addition shall be automatically renewed as provided in these terms. (h) RESPONSIBILITIES OF CUSTOMER Customer agrees (i) to provide Kronos personnel with supervised access to Software for purposes of support, including use of Kronos' standard remote access technology, if required; (ii) to maintain and operate the Software in an environment and according to procedures which conform to the Specifications; and (iii) not to allow support of the Software by anyone other than Kronos without prior written authorization from Kronos. Failure to utilize Kronos' remote access technology may delay Kronos' response and/or resolution to Customer's reported Software problem. If Customer requires the use of a specific remote access technology not specified by Kronos, then Customer must purchase the Plus option to receive support and provide Kronos personnel with full, free and safe access to the remote access hardware and/or software. (i) DEFAULT Customer shall have the right to terminate Kronos support services in the event that Kronos is in breach of the support services warranty set forth below and such breach is not cured within fifteen ( 15) days after written notice specifying the nature of the breach. In the event of such termination, Kronos shall refund to Customer on a pro-rata basis those pre-paid annual support fees associated with the unused portion of the support term. Kronos reserves the right to terminate or suspend support service in the event the Customer is in default under this Master Agreement with Kronos and such default is not corrected within fifteen ( 15) days after written notice. In addition, the support services will terminate and all charges due hereunder will become immediately due and payable in the event that Customer ceases to do business as a going concern or has its assets assigned by law. U) WARRANTY Kronos warrants that all support services shall be performed in a professional and competent manner. (k) KRONOS SUPPORT SERVICE POLICIES Unless otherwise specified in an Order Form, Kronos' then-current Support Services Policies shall apply to all Support Services purchased and may be accessed at: http://www.kronos.com/Support/SupportServicesPolicies.htm ("Support Policies"). In the event of a conflict between the Support Policies or Order Form, the terms of the Order Form shall prevail. 15. KNOWLEDGEPASS EDUCATION SUBSCRIPTION: The parties hereby agree that the following terms shall apply to Customer's purchase of the Kronos KnowledgePass Education Subscription only, if specified on the Order Form: (a) Scope: The KnowledgePass Education Subscription is available to customers who are licensing Kronos' Workforce Central and iSeries Timekeeper Software products and who are maintaining such products under a support plan with Kronos. The KnowledgePass Education Subscription provides access via the internet to certain educational offerings provided by Kronos (the "KnowledgePass Content"), including: • Product and upgrade information for project teams and end users • Hands-on interactive instruction on common tasks • Self-paced tutorials covering a range of topics • Job aids • Knowledge assessment and reporting tools to measure progress • Webinars (b) Term of Subscription: The KnowledgePass Education Subscription shall run co-terrninously with Customer's Software Support, and shall renew for additional one (I) year terms provided Customer renews its KnowledgePass Education Subscription as provided below. (c) Payment: Customer shall pay the annual subscription charge for the initial term of the KnowledgePass Education Subscription in accordance with the payment terms on the Order Form. Kronos will send Customer a renewal invoice for renewal of the KnowledgePass Education Subscription at least forty five (45) days prior to expiration of the then current term. KnowledgePass Education Subscription shall renew for an additional one (I) year term if Customer pays such invoice before the end of the initial term or any renewal term. (d) Limitations: Customer recognizes and agrees that the KnowledgePass Content is copyrighted by Kronos. Customer is permitted to make copies of the KnowledgePass Content provided in *pdfform solely for Customer's internal use and may not disclose such KnowledgePass Content to any third party other than Customer's employees. Customer may not edit, modify, revise, amend, change, alter, customize or vary the KnowledgePass Content without the written consent of Kronos, provided that Customer may download and modify contents of Training Kits solely for Customer's internal use. (e) Train-the-Trainer Program (TTT): Certification under the Train-the-Trainer Program is valid only for the point release of the Software for which the TTT Program is taken, and covers only the Customer employee who completes the TIT Program. 16. CONFIDENTIAL INFORMATION "Confidential Information" is defined as information that is: i) disclosed between the parties after the date of this Agreement that is considered confidential or proprietary to the disclosing party; and ii) identified as "confidential'' at the time of disclosure, or would be reasonably obvious to the receiving party to constitute confidential information because of legends or other markings, by the circumstances of disclosure or the nature of the information itself Additionally, the Software (and Software documentation), and the Specifications shall be deemed to be Kronos' Confidential Information. Each party shall protect the Confidential Information of the other party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither party shall disclose to third parties (except the parent company or the wholly owned subsidiaries of the receiving party who have a need to know) the other party's Confidential Information, or use it for any purpose not explicitly set forth herein, without the prior written consent of the other party. The obligation of confidentiality shall survive for three (3) years after the disclosure of such Confidential Information. This Agreement imposes no obligation upon either party with respect to the other party's Confidential Information which the receiving party can establish by legally sufficient evidence: (a) was rightfully possessed by the receiving party without an obligation to maintain its confidentiality prior to receipt from the disclosing party, (b) is generally known to the public without violation of this Agreement; (c) is obtained by the receiving party in good faith from a third party having the right to disclose it without Kronos Incorporated 297 Billerica Road Chelmsford, MA 01824 Phone: (978)250-9800 Exhibit"A" City of Carlsbad Professional Services Agreement (PSA) Page: 6 I 43 A City requires the professional services of a software vendor that is experienced in the installation, support and maintenance of Safety Services Scheduling Systems. B. Contractor has the necessary experience in providing professional services and advice related to installing, configuring, maintaining and supporting the Krenos TeleStaffWorkforce application. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in a SSS or order form in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the United States, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. COMPENSATION The total fee payable for the Services to be performed will be outlined in a SSS or in an order form. No other compensation for the Services will be allowed except for items covered by subsequent amendments to a SSS or an order form. Incremental payments, if applicable, should be made as outlined in a SSS or an order form. 4. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 5. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every Kronos Incorporated 297 Billerica Road Chelmsford, MA 01824 Phone: (978)250-9800 Page: 7/43 subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 6. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. An authorized third party contractor acting solely for and on behalf of Customer may use the Software provided that such third party agrees in writing to Krenos to abide by the confidentiality and Software license terms of this Agreement and provided further that Customer shall be liable for any claims, acts or omissions by any such third party arising out of or related to this Agreement. 7. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney's fees for personal injury, death, or damage to tangible personal property arising out of the performance of the work described herein, caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 8. INSURANCE 8.1 During the term of this Agreement, Kronos agrees to maintain insurance at the minimum levels indicated in the Certificate of Insurance attached hereto as "Exhibit B" to the SSLSA and to name Customer as an additional insured. Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-: VII". 8.2 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 8.3 Providing Certificates of Insurance. Subsequent to City's execution of this Agreement, Contractor will furnish certificates of insurance to City. Contractor's failure to provide the required certificates of insurance within 14 days following the execution of this Agreement shall be deemed a material breach of this Agreement and the City may, without liability, immediately terminate this Agreement. 8.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 9. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 10. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred by City under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, Kronos Incorporated 297 Billerica Road Chelmsford, MA 01824 Phone: (978)250-9800 Page: 8/43 audit, and make transcripts or copies of records pertaining to the costs incurred by City. Contractor will allow inspection of such documents, for a period of three (3) years from the date of final payment under this Agreement. 11. OWNERSHIP OF DOCUMENTS All intellectual property rights in the services provided by Contractor or its agents, employees, and subcontractors pursuant to this Agreement are the property of Contractor. All documents, data and reports generated by the City using the Software are the property of the City. 12. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Tina Steffan Title Director Department Address Phone No. IT City of Carlsbad 1635 Faraday Drive Carlsbad, CA 92008 760-390-8459 (cell) For Contractor Name Title General Counsel Address 297 Billerica Road Chelmsford, MA 01824 Phone No. 978-250-9800 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 13. CONFLICT OF INTEREST City may require Contractor to file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code as shown in "Exhibit C" of the SSLSA. The Contractor shall report investments or interests in all four categories. 14. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 15. DISCRIMINATION AND HARASSMENT PROHffiiTED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 16. DISPUTE RESOLUTION Except for claims for injunctive relief or other equitable relief, in the event a controversy, dispute or disagreement arises between Kronos and Customer with respect to any matter arising out of this Agreement which cannot be resolved in the normal course, either party may escalate any such controversy, dispute or disagreement as follows: Within ten (10) Kronos Incorporated 297 Billerica Road Chelmsford, MA 01824 Phone: (978)250-9800 Page: 9 I 43 business days of a written request by either party, Customer's designated project manager and Kronos' Project Manager/ Account Executive shall meet and attempt to resolve the issue amicably and expeditiously. If these parties cannot resolve the issue within ten (1 0) business days of the meeting, then the issue shall be submitted to Customer's designated executive and Kronos' designated executive. If these parties cannot resolve the issue within fifteen (15) business days of submission to them, then the issue shall be submitted for resolution to Customer's designated senior executive and Kronos' designated senior executive. If the parties are still unable to resolve their dispute, they shall be free to pursue such other remedies as they deem appropriate subject to the terms of this Agreement. 17. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 18. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. 19. GOVERNING LAW Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be governed by the laws of the State of California. tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 20. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned, except to a successor in interest, by Contractor without the prior consent of City, which shall not be unreasonably withheld. 21. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 22. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement.