HomeMy WebLinkAboutMarch 23, 2017 ,r
KRONOS Workforce Ready Order Form
Date: 3/23/2017 Customer PO 0:
Version 8: 0 Salesperson: Barry Madsen
Expires: 6/21/2017
Bill To: Attn:Heather Pennington Ship To: Attn:Heather Pennington
City of Jeffersonville City of Jeffersonville
500 Quartermaster Court 500 Quartermaster Court
Jeffersonville,IN 47130 Jeffersonville,IN 47130
FOB: Shipping Point Solution ID:6113284
Shipping Method: FedEx Ground
Currency: USD Email Contact:hpennington@cttyofieff.net
Payment Terms: N30 Phone JI: 812-285-6424
THIS WORKFORCE READY ORDER FORM("Order Form")is by and between Kronos Incorporated("Kronos")and the customer who has signed in the space provided below or electronically clicked a box
indicating its acceptance("Customer").This Order Form incorporates the Kronos terms and conditions for the ordered Services which shall be attached to Customers initial Order Form("SaaS Terms and
Conditions"),and together they form the Agreement between the parties.Customer has read and agrees to the SaaS Terms and Conditions,including any applicable policies referenced therein.Capitalized
terms on this Order Form are defined where they appear on this Order Form or in the SaaS Terms and Conditions.As of the Start Date,Kronos will provide,and Customer will purchase,under the SaaS Terms
and Conditions,the SaaS Services listed below.Customer may order additional or amended Services in the future via additional signed or electronically accepted Order Forms.Such Order Forms plus the SaaS
Terms and Conditions,whether attached to an Order Form or not,will govern such added or amended Services.
Initial Term:One Year
Billing Start Date:90 days from execution of Order Form
Renewal Term:One Year
Payment Terms:Net 30
Billing Frequency(unless otherwise noted,all invoices are due per the payment terms noted above):
SaaS Services:Monthly in Arrears
Professional Services: Fixed Fee,100%at Signing
This order is made as part of a Kronos promotion.All pricing is discounted solely in connection with such promotion and will not be applied to future orders.This promotion extends the Initial Term for two(2)
additional months and is applied to the two(2)month period immediately following the Billing Start Date.For these two(2)additional months,Kronos will not charge Customer for the Monthly Service Fees
for the Applications and Equipment Rental Fees(to the extent Equipment is rented on this Order Form).Professional Services concessions valid only for version of Workforce Ready Applications stated on this
Order Form.
SaaSi? iL4P';
Me. License/Qty Unit Price P,i,.,
Workforce Ready Time Keeping 200 $3.15 $630.00
Workforce Ready Accruals 200 $0.631 $126.00
Minimum Mo thlyTotal:1 $756.00
dtem Total Price
Workforce Ready Setup Fee $2,000.00
Total Price: $2,tJ00.tJ0
Quote Summary
Minimum Monthly Fee ,$756.00
Minimum Annual Fee $9,072.00
One Time Setup Fees $2,000.00
NOTICES:All legal [ices r quire to be given r under shall be in writing and shall be deemed given if sen[to the addressee specified herein:(a)by either registered or certified United Slates mail,return
receipt requested, stag prepai three days a t r such mailing;or(b)by national overnight courier service and addressed to the persons set forth herein,the next business day.All other notices,including
notices of non-pay nt, ay also a sent via fai i ile or email,and will be deemed given on the day delivery is electronically confirmed.
City of J erso it _
8y:
Name:
Title:
Date:
Kronos 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 WORKFORCE READY®-SOFTWARE AS A SERVICE
TERMS AND CONDITIONS
Customer and Kronos agree that the terms and conditions set forth below shall apply to the Kronos supply of
the commercially available version of the Workforce Ready® SaaS Applications in Kronos' hosting
environment,the services related thereto,and the sale or rental of Equipment(if any)specified on a Kronos
Order Form. The Applications described on the Order Form shall be delivered by means of Customer's
permitted access to the Kronos infrastructure hosting such Applications.
BY MANUALLY OR ELECTRONICALLY EXECUTING AN INITIAL ORDER FORM
REFERENCING THESE TERMS AND CONDITIONS OR TO WHICH THESE TERMS ARE
ATTACHED, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS FOR ALL ORDER
FORMS. THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF
CUSTOMER REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO CONTRACTUALLY BIND
CUSTOMER. THESE TERMS AND CONDITIONS AND THE ORDER FORM(S) (AND ANY
ATTACHMENTS THERETO) TOGETHER FORM A BINDING AND EXECUTED WRITTEN
AGREEMENT BETWEEN CUSTOMER AND KRONOS.
1. DEFINITIONS
"Agreement"means these terns and conditions and the Order Form(s).
"Application(s)" or "SaaS Application(s)" means those Kronos software application programs set forth
on an Order Form which are made accessible for Customer to use under the terms of this Agreement.
"Billing Start Date" means the date the billing of the Monthly Service Fees commences as indicated on
the applicable Order Form. The Billing Start Date of the Monthly Service Fees for any Services ordered by
Customer after the date of this Agreement which are incremental to Customer's then-existing Services shall
be the date the applicable Order Form is executed by Kronos and Customer.
"Confidential Information"means any non-public information of a party or its Suppliers relating to such
entity's business activities, financial affairs,technology,marketing or sales plans that is disclosed pursuant
to this Agreement and reasonably should have been understood by the receiving party, because of(i)
legends or other markings,(ii)the circumstances of disclosure or(iii)the nature of the information itself,to
be proprietary and confidential to the disclosing party or its Suppliers.
"Customer Content" means all content Customer, or others acting on behalf of or through Customer,
posts or otherwise inputs into the Services.
"Documentation"means technical publications published by Kronos relating to the use of the Services.
"Educational Content"has the meanings ascribed in Section 7.3.
"Equipment"means the Kronos equipment purchased or rented by Customer under this Agreement.
"Initial Term"means the initial term of the Services as indicated on the Order Form.
"Minimum Contract Value"means the total of all Monthly Service Fees to be invoiced during the Initial
Tenn or a Renewal Term,as applicable.
"Monthly Service Fee(s)" means the monthly fees described in an Order Form. Monthly Service Fees
include fees for usage of the Applications, the Services, and Equipment rental, if any. Billing of the
Monthly Service Fee(s)commences on the Billing Start Date.
"Order Form"means an order form mutually agreed upon by Kronos and Customer setting forth the items
ordered by Customer and to be provided by Kronos and the fees to be paid by Customer.
"Personally Identifiable Data" means information concerning individually identifiable employees of
Customer that is protected against disclosure under applicable law or regulation.
"Renewal Term"means the renewal term of the Services as indicated on the Order Form.
"Services" means(i) accessibility to the commercially available version of the Applications by means of
access to the password protected customer area of a Kronos website, and all such services, items and
offerings accessed by Customer therein,and(ii)the Equipment rented hereunder,if any.
"Supplier" means any contractor, subcontractor or licensor of Kronos providing software, equipment
and/or services to Kronos which are incorporated into or otherwise related to the Services.
"Term"means the Initial Tenn and any Renewal Terms thereafter.
1
Rev.WFRUS07112015
2. TERM
2.1 The Services shall commence on the Billing Start Date,and shall continue for the Initial Term or until
terminated in accordance with the provisions hereof. At the expiration of the Initial Term and each
Renewal Term as applicable, the Services shall automatically renew for additional Renewal Terms until
terminated in accordance with the provisions hereof.
2.2 Customer may terminate the Services and this Agreement for convenience upon ninety(90)days prior
written notice subject to Customer's payment of the Minimum Contract Value. Kronos may terminate the
Services and this Agreement to be effective at the expiration of the then current Term upon no less than
sixty(60)days prior written notice.
2.3 Either party may terminate the Services and the Agreement upon a material breach of the Agreement
by the other party if such breach is not cured within fifteen (15) days after receipt of written notice.
Notwithstanding the foregoing, Kronos may suspend the Services immediately upon notice in the event of
any Customer breach of Sections 4(Rights to Use),5(Acceptable Use),or 15(Confidential Information).
2.4 In the event that either party becomes insolvent, makes a general assignment for the benefit of
creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, or
files a petition seeking reorganization, the other party may request adequate assurances of future
performance. Failure to provide adequate assurances, in the requesting party's reasonable discretion,
within ten(10)days of delivery of the request shall entitle the requesting party to terminate the Agreement
immediately upon written notice to the other party.
2.5 If the Agreement is terminated for any reason:
(a) Customer shall pay Kronos within thirty (30) days of such termination, all fees accrued under this
Agreement prior to the effective date of such termination, provided however, if Customer terminates for
material breach of the Agreement by Kronos,Kronos shall refund Customer any pre-paid fees for services
not delivered by Kronos;
(b)Customer's right to access and use the Applications shall be revoked and be of no further force or effect
and return rented Equipment as provided in Section 9.1 below;
(c)No more than fifteen(15)days after termination(or upon Customer's written request at any time during
the Term),Kronos will provide to Customer,at no charge to Customer,the Customer Content.After such time
period, Kronos shall have no further obligation to store or make available the Customer Content and will
securely delete any or all Customer Content without liability;
(d) Customer agrees to timely return all Kronos-provided materials related to the Services to Kronos at
Customer's expense or, alternatively, destroy such materials and provide Kronos with an officer's
certification of the destruction thereof;and
(e) All provisions in the Agreement, which by their nature are intended to survive termination, shall so
survive.
3. FEES AND PAYMENT
3.1 Customer shall pay Kronos the Setup Fees,the Monthly Service Fees and any additional one time,set-
up or recurring fees, all as defined on the Order Form or subject to Section 17.9 below. Billing will
commence on the Billing Start Date with the Monthly Service Fees to be billed on the frequency set forth
on the Order Form("Billing Frequency"). Unless otherwise indicated on the Order Form, Kronos will bill
Customer for all implementation services in advance. Purchased Equipment will be billed upon shipment
of such Equipment. Customer authorizes Kronos to charge the debit card or credit card on file with Kronos
in an amount equal to the Monthly Service Fees as all such fees become due under this Agreement. For all
other payments and fees due under this Agreement,payment shall be due 30 days following date of invoice
unless otherwise indicated on an Order Form. Except as expressly set forth in the Agreement,all amounts
paid to Kronos are non-refundable. Customer is responsible for all applicable taxes relating to the goods
and services provided by Kronos hereunder(including without limitation GST and/or VAT if applicable),
excluding taxes based on Kronos' income or business privilege.
3.2 The Setup Fees shall be invoiced upon execution of the Agreement and shall be due net 30 days
following date of invoice. Customer acknowledges that setup fees may be charged to Customer by third
parties for Add-on Features. Third party setup and monthly fees shall be set forth on an Order Form or
subject to Section 17.9 below. Monthly Service fees shall be based on monthly periods that begin on the
Billing Start Date. Monthly Service Fees shall include fees for Equipment rental, if any. Monthly Service
Fees for Services added on or before the 15'h day of a given month will be charged for that full monthly
period and each monthly period of the Term thereafter; Monthly Service Fees for Services added after the
15`h day of a given month will begin to accrue as of the 0 day of the following month and will be charged
2
Rev.WFRUS07112015
for each monthly period of the Term thereafter. Monthly Service Fees shall be invoiced promptly
following the end of the calendar month in which the Monthly Service Fees were accrued. Kronos will
monitor Customer's"Usage" of the Services(as defined below) in order to calculate the Usage portion of
the Monthly Service Fees to be charged. Usage of the Services, depending on applicable features,
components,or services,shall be priced as identified on the Order Form either on a:(a)per month basis;(b)
per active employee(herein"Active Employee")per month usage basis;(c)per transaction basis(e.g.:pay
statement); or, (d) per access point. For purposes of the Agreement, an employee shall be deemed an
Active Employee during any applicable billing period if through the Services: (i)time has been entered for
such employee; (ii) records have been included for such employee for the purpose of processing payroll;
(iii)records have been included for such employee within an import/export process;(iv)such employee has
accessed the Services, regardless of the purpose; (v) benefit time has been accrued for such employee; or
(vi)such employee has been marked by Customer as having an"Active"status during the period.
3.3 Customer agrees that except in those circumstances in which Customer is entitled to invoke the
termination for cause provision set forth in Section 2.3 above, in consideration of Kronos' delivery of the
Services on a variable fee basis, Customer agrees to pay Kronos each month during the Term in which
charges accrue no less than the minimum monthly fees ("Minimum Monthly Fees") which shall be
calculated by Kronos based the amounts identified on all Order Forms for Customer's Usage of the
Services, plus Equipment rental fees, if any. In the event that Customer does not reach the anticipated
Usage upon which the Minimum Monthly Fees was based for any given month during the Term,Customer
shall remain responsible for paying the Minimum Monthly Fees for that month. If an Order Form or the
Agreement is suspended by Kronos for non-payment or otherwise terminated by Kronos for cause,
Customer shall remain liable to pay the applicable Minimum Monthly Fees up to and including the last day
of the month in which the effective date of termination occurs.
3.4 If any amount owing under this or any other agreement between the parties is thirty(30)or more days
overdue, Kronos may, without limiting Kronos' rights or remedies, suspend Services until such amounts
are paid in full. Kronos will provide at least seven(7)days' prior written notice that Customer's account is
overdue before suspending Services.
3.5 At the later of(i)one(1)year after the effective date of this Agreement,or(ii)expiration of the Initial
Term,and at each annual anniversary of that date thereafter,Kronos may increase the Monthly Service Fee
rates in an amount not to exceed four percent(4%). The increased Monthly Service Fees will be reflected
in the monthly invoice following the effective date of such increase without additional notice.
3.6 Customer agrees that except if Customer terminates for material breach of the Agreement by Kronos,if
Customer has not paid the Minimum Contract Value to Kronos prior to the expiration or termination of the
Initial Term or a Renewal Term, as applicable, Customer shall pay within thirty (30) days of the date of
such expiration or termination, the difference between the total Monthly Service Fees then paid by
Customer for the Initial Term or Renewal Term,as applicable,and the Minimum Contract Value.
4.RIGHTS TO USE
4.1 Subject to the terms and conditions of the Agreement, Kronos hereby grants Customer a limited,
revocable, non-exclusive, non-transferable, non-assignable right to use during the Term and for internal
business purposes only: a)the Applications and related services, including the Documentation and training
materials; and,b)any embedded third party software, libraries, or other components, which form a part of
the Services. The Services contain proprietary trade secret technology of Kronos and its Suppliers.
Unauthorized use and/or copying of such technology are prohibited by law, including United States and
foreign copyright law. Customer shall not reverse compile, disassemble or otherwise convert the
Applications or other software comprising the Services into uncompiled or unassembled code. Customer
acknowledges and agrees that the right to use the Services is limited based upon authorized Usage and the
amount of the Monthly Service Fees to be paid by Customer. Customer agrees to use only the modules
and/or features described on the Order Form. Customer agrees not to use any other modules or features
unless Customer has licensed such additional modules or features. Customer may not relicense or
sublicense the Services, or otherwise permit use of the Services(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 Services without the express prior written consent of Kronos. No license,right,or interest in any
Kronos trademark, trade name, or service mark, or those of Kronos' licensors or Suppliers, is granted
hereunder. When using and applying the information generated by the Services, Customer is responsible
for ensuring that Customer complies with applicable laws and regulations.
3
Rev.WFRUS07112015
4.2 Customer may authorize its third party contractors and consultants to access the Services through
Customer's administrative access privileges on an as needed basis, provided Customer: a) abides by its
obligations to protect Confidential Information as set forth in this Agreement;b)remains responsible for all
such third party usage and compliance with the Agreement; and c) does not provide such access to a
competitor of Kronos who provides workforce management services.
4.3 Customer acknowledges and agrees that, as between Customer and Kronos, Kronos retains ownership
of all right, title and interest to the Services, all of which are protected by copyright and other intellectual
property rights, and that, other than the express rights granted herein and under any other agreement in
writing with Customer, Customer shall not obtain or claim any rights in or ownership interest to the
Services or any associated intellectual property rights in any of the foregoing. Customer agrees to comply
with all copyright and other intellectual property rights notices contained on or in any information obtained
or accessed by Customer through the Services.
4.4 Kronos will make updates and upgrades to the Services (tools, utilities, improvements, third party
applications,general enhancements)available to Customer at no charge as they are released generally to its
customers as part of the Services. Customer agrees to receive those updates automatically as part of the
Services. Kronos also may offer new products and/or services to Customer at an additional charge.
Customer shall have the option of purchasing such new products and/or services under a separate Order
Form or in accordance with Section 17.9 below.
4.5 Kronos reserves the right to change the Services, in whole or in part, including but not limited to, the
Internet based services, technical support options, and other Services-related policies. Customer's
continued use of the Services after Kronos posts or otherwise notifies Customer of any changes indicates
Customer's agreement to those changes.
5. ACCEPTABLE USE
5.1 Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the
Services, and to ensure that no persons authorized to have such access shall take any action that would be
in violation of this Agreement.
5.2 Customer represents and warrants to Kronos that Customer has the right to publish and disclose the
Customer Content in connection with the Services. Customer represents and warrants to Kronos that the
Customer Content: (a) does not infringe or violate any third-party right, including but not limited to
intellectual property, privacy, or publicity rights, (b) is not abusive, profane, or offensive to a reasonable
person,or,(c)is not hateful or threatening.
5.3 Customer will not(a)use,or allow the use of,the Services in contravention of any federal,state,local,
foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (b)
introduce into the Services any virus or other code or routine intended to disrupt or damage the Services,or
alter,damage,delete,retrieve or record information about the Services or its users;(c)excessively overload
the Kronos systems used to provide the Services;(d)perform any security integrity review,penetration test,
load test, denial of service simulation or vulnerability scan; (e) use any tool designed to automatically
emulate the actions of a human user (e.g., robots); or, (f) otherwise act in a fraudulent, malicious or
negligent manner when using the Services.
6. CONNECTIVITY AND ACCESS
Customer acknowledges that Customer shall (a) be responsible for securing, paying for, and maintaining
connectivity to the Services (including any and all related hardware, software, third party services and
related equipment and components); and (b) provide Kronos and Kronos' representatives with such
physical or remote access to Customer's computer and network environment as Kronos deems reasonably
necessary in order for Kronos to perform its obligations under the Agreement. Customer will make all
necessary arrangements as may be required to provide access to Customer's computer and network
environment if necessary for Kronos to perform its obligations under the Agreement. Kronos is hereby(i)
granted access to such Customer data to perform its obligations under the Agreement and (ii) authorized
to audit the number of Active Employee counts or other transactions that have occurred to measure
Usage.
7. IMPLEMENTATION AND SUPPORT
7.1 Implementation. Kronos will configure the Services utilizing scheduled remote resources. Software
module configuration will be based on information and work flows obtained from Customer during the
discovery portion of the implementation. Customer shall provide Kronos with necessary configuration-
4
Rev.WFRUS07112015
related information in a timely manner to ensure that mutually agreed implementation schedules are met.
Kronos and Customer's implementation responsibilities are described more specifically in the Services
Implementation Guideline set forth at: http://www.kronos.com/products/workforce-ready/implementation-
guidlines.asix
7.2 Standard Support.Kronos will provide telephone support 8:00 a.m.to 5:00 p.m.,local time,Monday—
Friday. Customers also shall be provided the capability to log questions online via the Kronos Customer
Portal.
7.3 Equipment Support. If Equipment is rented in accordance with Section 9.1 below or if Equipment
Support Services are purchased for Equipment purchased in accordance with Section 9.2 below, Kronos
will provide the following Depot Exchange Support Services to Customer:
(a) Upon the failure of installed Equipment,Customer shall notify Kronos of such failure and Kronos will
provide remote fault isolation at the FRU (Field Replacement Unit) or subassembly level and attempt to
resolve the problem.Those failures determined by Kronos to be Equipment related shall be dispatched to a
Kronos Depot Repair Center,and Customer will be provided with a Return Material Authorization Number
(RMA) for the failed Equipment if Customer is to return the failed Equipment to Kronos, as reasonably
determined by Kronos.Customer must return the failed Equipment with the supplied RMA number. Hours
of operation, locations and other information related to Kronos' Depot Repair Centers are available upon
request and are subject to change. Return and repair procedures for failed Equipment shall be provided
based on the Depot option - Depot Exchange or Depot Repair - selected by Customer on the applicable
Order Form and as specified herein and in Kronos'then-current Support Services Policies.
(b) Kronos will provide a replacement for the failed Equipment at the FRU or subassembly level on an
"advanced exchange" basis, utilizing a carrier of Kronos' choice. Replacement Equipment will be shipped
the same day, for delivery to Customer's location as further described in the Support Policies.
REPLACEMENT EQUIPMENT MAY BE NEW OR RECONDITIONED. Customer shall specify the
address to which the Equipment is to be shipped. All shipments will include the Kronos provided RMA
designating the applicable Kronos Depot Repair Center, as the recipient. Customer, upon receipt of the
replacement Equipment from Kronos, shall package the defective Equipment in the materials provided by
Kronos,with the RMA supplied and promptly return failed Equipment directly to Kronos.
(c) Equipment support also includes Customer access to Equipment service packs via the Kronos Customer
Portal.
7.4 Educational Materials and Content. Customer will have access to certain educational materials and
content (the "Educational Content") within the Services. Customer recognizes and agrees that the
Educational Content is copyrighted by Kronos. Customer is permitted to make copies of the Educational
Content provided in *pdf form solely for Customer's internal training purposes and may not disclose such
Educational Content to any third party other than Customer's employees. Customer may not edit, modify,
revise, amend, change, alter, customize or vary the Educational Content without the written consent of
Kronos,provided that Customer may download and modify contents of Training Kits solely for Customer's
internal use
8. CUSTOMER CONTENT
Customer shall own all Customer Content. Kronos acknowledges that all of the Customer Content is
deemed to be the Confidential Information of Customer. Notwithstanding the foregoing, Customer grants
Kronos permission to combine Customer's business data with that of other customers in a manner that does
not identify the Customer or any individual in order to evaluate and improve the services Kronos offers to
customers. In addition,Kronos may,but shall have no obligation to,monitor Customer Content from time
to time to ensure compliance with the Agreement and applicable law.
9. EQUIPMENT
If Customer purchases or rents Equipment from Kronos, a description of such Equipment (model and
quantity),the applicable pricing,and delivery terms shall be listed on the Order Form.
9.1 Rented Equipment. The following terms apply only to Equipment Customer rents from Kronos:
(a) Rental Term and Warranty Period. The term of the Equipment rental and the "Warranty Period"
for such Equipment shall run coterminously with the Term of the other Services provided under the
Agreement.
(b) Insurance. Customer shall insure the Equipment for an amount equal to the replacement value of
the Equipment for loss or damage by fire, theft, and all normal extended coverage at all times. No loss,
5
Rev.WFRUS07112015
theft or damage after shipment of the Equipment to Customer shall relieve Customer from Customer's
obligations under the Agreement.
(c) Location/Replacement. Customer shall not make any alterations or remove the Equipment from
the place of original installation without Kronos'prior written consent. Kronos shall have the right to enter
Customer's premises to inspect the Equipment during normal business hours. Kronos reserves the right,at
its sole discretion and at no additional cost to Customer, to replace any Equipment with newer or
alternative technology Equipment as long as the replacement Equipment at least provides the same level of
functionality as that being replaced.
(d) Ownership. All Equipment shall remain the property of Kronos. All Equipment is, and at all
times shall remain, separate items of personal property, notwithstanding such Equipment's attachment to
other equipment or real property. Customer shall not sell or otherwise encumber the Equipment. Customer
shall furnish any assurances,written or otherwise,reasonably requested by Kronos to give full effect to the
intent of terms of this paragraph(d).
(e) Equipment Support. Kronos shall provide to Customer the Equipment support services described
in Section 7.
(f) Return of Equipment. Upon termination of the Agreement or the applicable Order Form,
Customer shall return, within thirty (30) days of the effective date of termination and at Customer's
expense, the Equipment subject to this Section 9.1. Equipment will be returned to Kronos in the same
condition as and when received,reasonable wear and tear excepted. If Customer fails to return Equipment
within this time period, upon receiving an invoice from Kronos, Customer shall pay Kronos the then list
price of the unreturned Equipment.
9.2 Purchased Equipment. The following terms apply only to Equipment Customer purchases from
Kronos:
(a) Ownership and Warranty Period. Title to the Equipment shall pass to Customer upon delivery to
the carrier. The"Warranty Period" for the Equipment shall be for a period of ninety (90)days from such
delivery(unless otherwise required by law).
(b) Equipment Support. Kronos shall provide to Customer the Equipment support services described
in this Agreement if purchased separately by Customer as indicated on the applicable Order Form. If
purchased, Equipment support services have a term of one (1) year commencing upon expiration of the
Warranty Period. Equipment support services will be automatically extended for additional one year terms
on the anniversary of its commencement date ("Renewal Date"), unless either party has given the other
thirty (30) days written notification of its intent not to renew. Kronos may change the annual support
charges for Equipment support services effective at the end of the initial one(1)year term or effective on
the Renewal Date,by giving Customer at least thirty(30)days prior written notification.
10. SERVICE LEVEL AGREEMENT
Kronos shall: (a) provide basic support for the Services at no additional charge, (b) use commercially
reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned
downtime (when it shall give at least 8 hours notice via the Services and shall schedule to the extent
practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday, Eastern Time), or(ii)
any unavailability caused by circumstances beyond Kronos' reasonable control, including without
limitation, acts of nature, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes
or other labor problems(other than those involving Kronos employees),internet service provider failures or
delays, or denial of service attacks, and (iii) provide Services in accordance with applicable laws and
government regulations.
11.LIMITED WARRANTY; DISCLAIMERS OF WARRANTY
11.1 Kronos represents and warrants to Customer that the Services,under normal operation as specified in
the Documentation and when used as authorized herein,will perform substantially in accordance with such
Documentation during the Term.
11.2 Kronos' sole obligation and Customer's sole and exclusive remedy for any breach of the foregoing
warranty is limited to Kronos' reasonable commercial efforts to correct the non-conforming Services at no
additional charge to Customer. In the event that Kronos is unable to correct material deficiencies in the
Services arising during the Warranty Period,after using Kronos' commercially reasonable efforts to do so,
Customer shall be entitled to terminate the then remaining Term of the Agreement as Customer's sole and
exclusive remedy. Kronos' obligations hereunder for breach of warranty are conditioned upon Customer
6
Rev.WFRUS07112015
notifying Kronos of the material breach in writing, and providing Kronos with sufficient evidence of such
non-conformity to enable Kronos to reproduce or verify the same.
11.3 Kronos warrants to Customer that each item of Equipment shall be free from defects in materials and
workmanship during the Warranty Period. In the event of a breach of this warranty, Customer's sole and
exclusive remedy shall be Kronos' repair or replacement of the deficient Equipment, at Kronos' option,
provided that Customer's use, installation and maintenance thereof have conformed to the Documentation
for such Equipment.This warranty is extended to Customer only and shall not apply to any Equipment(or
parts thereof)in the event of:
(a) damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, (including
without limitation 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
published specifications for such Equipment;or
(c) malfunctions resulting from the use of badges or supplies not approved by Kronos.
EXCEPT AS PROVIDED FOR IN THIS SECTION 11, KRONOS HEREBY DISCLAIMS ALL
WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE
SERVICES, EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE,TITLE AND NON-INFRINGEMENT,AND WHETHER OR NOT ARISING
THROUGH A COURSE OF DEALING. THE SERVICES ARE NOT GUARANTEED TO BE ERROR-
FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,
KRONOS MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE
COMPATIBILITY OF THE SERVICES, THE SAAS APPLICATIONS OR THE EQUIPMENT NOR
ANY RESULTS TO BE ACHIEVED THEREFROM.
12.0 DATA SECURITY
12.1 As part of the Services, Kronos shall provide administrative, physical, and technical safeguards for
the protection of the security, confidentiality and integrity of Customer data. Customer acknowledges that
such safeguards endeavor to mitigate security incidents,but such incidents may not be mitigated entirely or
rendered harmless. Customer should consider any particular Kronos supplied security-related safeguard as
just one tool to be used as part of Customer's overall security strategy and not a guarantee of security. Both
parties agree to comply with all applicable privacy or data protection statutes, rules, or regulations
governing the respective activities of the parties under the Agreement.
12.2 As between Customer and Kronos, all Personally Identifiable Data is Customer's Confidential
Information and will remain the property of Customer. Customer represents that to the best of Customer's
knowledge such Personally Identifiable Data supplied to Kronos is accurate. Customer hereby consents to
the use,processing or disclosure of Personally Identifiable Data by Kronos and Kronos' Suppliers wherever
located only for the purposes described herein and only to the extent such use or processing is necessary for
Kronos to carry out Kronos'duties and responsibilities under the Agreement or as required by law.
12.3 Prior to initiation of the Services under the Agreement and on an ongoing basis thereafter,Customer
agrees to provide notice to Kronos of any extraordinary privacy or data protection statutes, rules, or
regulations which are or become applicable to Customer's industry and which could be imposed on Kronos
as a result of provision of the Services. Customer will ensure that: (a)the transfer to Kronos and storage of
any Personally Identifiable Data by Kronos or Kronos' Supplier's data center is permitted under applicable
data protection laws and regulations; and, (b) Customer will obtain consents from individuals for such
transfer and storage to the extent required under applicable laws and regulations.
13. INDEMNIFICATION
13.1 Kronos shall defend Customer and its respective directors, officers,and employees(collectively,the
"Customer Indemnified Parties"), from and against any and all notices, charges, claims, proceedings,
actions, causes of action and suits, brought by a third party (each a "Claim") alleging that the permitted
uses of the Services infringe or misappropriate any United States or Canadian copyright or patent and will
indemnify and hold harmless the Customer Indemnified Parties against any liabilities, obligations,costs or
expenses (including without limitation reasonable attorneys' fees) actually awarded to a third party as a
result of such Claim by a court of applicable jurisdiction or as a result of Kronos' settlement of such a
Claim. In the event that a final injunction is obtained against Customer's use of the Services by reason of
7
Rev.WFRUS07112015
infringement or misappropriation of such copyright or patent, or if in Kronos' opinion, the Services are
likely to become the subject of a successful claim of such infringement or misappropriation, Kronos, at
Kronos'option and expense,will use commercially reasonable efforts to(a)procure for Customer the right
to continue using the Services as provided in the Agreement, (b)replace or modify the Services so that the
Services become non-infringing but remain substantively similar to the affected Services,and if neither(a)
or (b) is commercially feasible, to (c) terminate the Agreement and the rights granted hereunder after
provision of a refund to Customer of the Monthly Service Fees paid by Customer for the infringing
elements of the Services covering the period of their unavailability.
13.2 Kronos shall have no liability to indemnify or defend Customer to the extent the alleged infringement
is based on: (a)a modification of the Services by anyone other than Kronos; (b)use of the Services other
than in accordance with the Documentation for such Service or as authorized by the Agreement;(c)use of
the Services in conjunction with any data, equipment, service or software not provided by Kronos, where
the Services would not otherwise itself be infringing or the subject of the claim; or(d) use of the Services
by Customer other than in accordance with the terms of the Agreement. Notwithstanding the foregoing,with
regard to infringement claims based upon software created or provided by a licensor to Kronos or
Suppliers, Kronos' maximum liability will be to assign to Customer Kronos' or Supplier's recovery rights
with respect to such infringement claims,provided that Kronos or Kronos' Supplier shall use commercially
reasonable efforts at Customer's cost to assist Customer in seeking such recovery from such licensor.
13.3 Customer shall defend Kronos,its Suppliers and their respective directors,officers,employees,agents
and independent contractors(collectively,the"Kronos Indemnified Parties") harmless, from and against
any and all Claims alleging that: (a)employment-related claims arising out of Customer's configuration of
the Services; (b) Customer's modification or combination of the Services with other services, software or
equipment not furnished by Kronos,provided that such Customer modification or combination is the cause of
such infringement and was not authorized by Kronos;or,(c)a claim that the Customer Content infringes in
any manner any intellectual property right of any third party,or any of the Customer Content contains any
material or information that is obscene, defamatory, libelous, or slanderous violates any person's right of
publicity,privacy or personality,or has otherwise caused or resulted in any tort, injury,damage or harm to
any other person. Customer will have sole control of the defense of any such action and all negotiations for
its settlement or compromise. Kronos will cooperate fully at Customer's expense with Customer in the
defense, settlement or compromise of any such action. Customer will indemnify and hold harmless the
Kronos Indemnified Parties against any liabilities, obligations, costs or expenses (including without
limitation reasonable attorneys' fees)actually awarded to a third party as a result of such Claims by a court
of applicable jurisdiction or as a result of Customer's settlement of such a Claim.
13.4 The Indemnified Party(ies) shall provide written notice to the indemnifying party promptly after
receiving notice of such Claim. If the defense of such Claim is materially prejudiced by a delay in
providing such notice,the purported indemnifying party shall be relieved from providing such indemnity to
the extent of the delay's impact on the defense. The indemnifying party shall have sole control of the
defense of any indemnified Claim and all negotiations for its settlement or compromise,provided that such
indemnifying party shall not enter into any settlement which imposes any obligations or restrictions on the
applicable Indemnified Parties without the prior written consent of the other party. The Indemnified Parties
shall cooperate fully, at the indemnifying party's request and expense, with the indemnifying party in the
defense,settlement or compromise of any such action. The indemnified party may retain its own counsel at
its own expense,subject to the indemnifying party's rights above.
14. LIMITATION OF LIABILITY
14.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, KRONOS AND ITS
SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES CAUSED BY THE USE
OF THE SERVICES OR BY ANY ERRORS, DELAYS, INTERRUPTIONS IN TRANSMISSION, OR
FAILURES OF THE SERVICES.
14.2 EXCEPT FOR KRONOS' INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 13
ABOVE, THE TOTAL AGGREGATE LIABILITY OF KRONOS OR KRONOS' SUPPLIERS TO
CUSTOMER AND/OR ANY THIRD PARTY IN CONNECTION WITH.THE AGREEMENT SHALL
BE LIMITED TO DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH DIRECT DAMAGES NOT
TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY KRONOS
FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
DATE IN WHICH SUCH CLAIM ARISES.
8
Rev.WFRUS07112015
14.3 EXCEPT FOR KRONOS' INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 13
ABOVE, IN NO EVENT SHALL KRONOS OR KRONOS' SUPPLIERS, THEIR RESPECTIVE
AFFILIATES, SERVICE PROVIDERS, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD
PARTY FOR ANY INCIDENTAL, SPECIAL,PUNITIVE,CONSEQUENTIAL OR OTHER INDIRECT
DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES,LOST DATA OR COST
OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS,
NONDELIVERIES, MISDELIVERIES OR SERVICES INTERRUPTION, HOWEVER CAUSED,
ARISING FROM OR RELATED TO THE SERVICES OR THE AGREEMENT, REGARDLESS OF
THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED,WHETHER BREACH OF
WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND
WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND
REGARDLESS OF WHETHER KRONOS OR SUPPLIER HAS BEEN ADVISED OF THE
POSSIBILITY OF ANY SUCH LIABILITY,LOSS OR DAMAGE.
14.4 EXCEPT WITH RESPECT TO LIABILITY ARISING FROM KRONOS' GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, KRONOS DISCLAIMS ANY AND ALL LIABILITY, INCLUDING
WITHOUT LIMITATION LIABILITY RELATED TO A BREACH OF DATA SECURITY AND
CONFIDENTIALITY OBLIGATIONS, RESULTING FROM ANY EXTERNALLY INTRODUCED
HARMFUL PROGRAM(INCLUDING WITHOUT LIMITATION VIRUSES,TROJAN HORSES,AND
WORMS), CUSTOMER'S CONTENT OR APPLICATIONS, THIRD PARTY UNAUTHORIZED
ACCESS OF EQUIPMENT,SAAS APPLICATIONS OR SYSTEMS,OR MACHINE ERROR.
15. CONFIDENTIAL INFORMATION
15.1 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 the other Party's Confidential Information, or use it for any purpose not explicitly
authorized herein, without the prior written consent of the other Party. The obligation of confidentiality
shall survive for five(5) years after the return of such Confidential Information to the disclosing party or
five(5)years after the expiration or termination of the Agreement,whichever is later,as applicable.
15.2 Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required:
(a)to any subsidiary or affiliate of such Party,or(b)to any consultants,contractors,and counsel who have
a need to know in connection with the Agreement and have executed a non-disclosure agreement with
obligations at least as stringent as this Section 15,or(c)by law,or by a court or governmental agency,or if
necessary in any proceeding to establish rights or obligations under the Agreement;provided,the receiving
party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice
sufficient to permit the disclosing party an opportunity to contest such disclosure. If a party commits, or
threatens to commit,a breach of this Section 15,the other party shall have the right to seek injunctive relief
from a court of competent jurisdiction.
15.3 This Agreement imposes no obligation upon either Party with respect to the other Party's Confidential
Information which the receiving Party can establish:(a)is or becomes generally known through no breach of
the Agreement by the receiving party,or(b)is already known or is independently developed by the receiving
party without use of or reference to the Confidential Information.
16. EXPORT
Customer understands that any export of the Equipment may require an export license and Customer assumes
full responsibility for obtaining such license. Customer must obtain Kronos' prior written consent before
exporting the Equipment.
17. GENERAL
17.1 This Agreement shall be governed by and construed in accordance with the laws of the state,province
and country in which Kronos is incorporated without regard to any conflict of law provisions. The parties
waive the application of the United Nations Commission on International Trade Law and United Nations
Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of the
Agreement and waive and "opt out" of the Uniform Computer Information Transactions Act(UCITA), or
such other similar law.
17.2 The invalidity or illegality of any provision of the Agreement shall not affect.the validity of any other
provision.The parties intend for the remaining unaffected provisions to remain in full force and effect.
9
Rev.WFRUS07112015
17.3 Customer shall not assign the Agreement or the rights to use the Services without the prior written
consent of Kronos and any purported assignment,without such consent,shall be void.
17.4 Neither Party shall be responsible for any failure to perform or delay in performing any of its
obligations under this Agreement (other than a failure to comply with payment obligations) where and to
the extent that such failure or delay results from an unforeseeable event beyond a party's reasonable
control,including but not limited to,acts of war;acts of nature;earthquake; flood;embargo;riot; sabotage;
labor shortage or dispute;changes in government codes,ordinances, laws,rules,regulations or restrictions;
failure of the Internet; terrorist acts; failure of data, products or services controlled by any third party,
including the providers of communications or network services; utility power failure; material shortages or
unavailability or other delay in delivery not resulting from the responsible party's failure to timely place
orders therefor,or lack of or delay in transportation(each a"Force Majeure Event").
17.5 All notices given under the Agreement shall be in writing and sent postage pre-paid, if to Kronos,to
the Kronos address on the Order Form,or if to Customer,to the billing address on the Order Form.
17.6 No action regardless of form,may be brought by either party more than two(2)years after the cause
of action has arisen.
17.7 The section headings herein are provided for convenience only and have no substantive effect on the
construction of the Agreement.
17.8 The parties agree that if the Agreement is accepted by the parties and that acceptance is delivered via
fax or electronically delivered via email or the internet it shall constitute a valid and enforceable agreement.
17.9 Use of the Service includes the ability to enter into agreements and/or to make transactions
electronically. CUSTOMER ACKNOWLEDGES THAT WHEN IT INDICATES ACCEPTANCE OF AN
AGREEMENT AND/OR TRANSACTION ELECTRONICALLY, THAT ACCEPTANCE WILL
CONSTITUTE ITS LEGAL AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR
SUCH AGREEMENTS AND TRANSACTIONS. THIS ACKNOWLEDGEMENT THAT CUSTOMER
INTENDS TO BE BOUND BY SUCH ELECTRONIC ACCEPTANCE APPLIES TO ALL
AGREEMENTS AND TRANSACTIONS CUSTOMER ENTERS INTO THROUGH THE SERVICE,
SUCH AS ORDERS, CONTRACTS, STATEMENTS OF WORK, AND NOTICES OF
CANCELLATION.
17.10 This Agreement and any information expressly incorporated by reference herein, together with the
applicable Order Form, constitute the entire agreement between the parties for the Services described
herein and supersede all prior or contemporaneous representations, negotiations, or other communications
between the parties relating to the subject matter of this Agreement.This Agreement may be amended only
in writing signed by authorized representatives of both parties. Customer understands and acknowledges
that while Kronos may disclose to customers certain confidential information regarding general Service or
product development direction, potential future Services, products or product enhancements under
consideration,Customer is not entitled to any Services, products or product enhancements other than those
contained on the Or r orm.Customer has not relied on the availability of any future version of the Services
(including SaaS plic tions or equi ent) identified on an Order Form, nor any other future product in
executing the g eme t.
DATED:
CUSTOME
BY:
NAME: i/tCe �� oUrE
TITLE: 7Q Li02
KRONOS:
BY:
NAME:
TITLE:
10
Rev.WFRUS07112015