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HomeMy WebLinkAboutTerms and ConditionsKRONOS„ immixTechno o g y TERMS AND CONDITIONS APPLICABLE TO PURCHASE OF KRONOS GENERAL PURPOSE COMMERCIAL INFORMATION TECHNOLOGY EQUIPMENT (SPECIAL ITEM NUMBER 132-8) 1. MATERIAL AND WORKMANSHIP All equipment (including any software contained therein) furnished hereunder must satisfactorily perform the function for which it is intended in accordance with the manufacturer's (Kronos) then current published specifications provided with the shipped product. Therefore, items delivered shall be considered accepted by the Government (hereinafter referred to as "Government" or "Customer") upon satisfactory delivery. 2. ORDER Written orders, EDI orders (GSA Advantagel and FACNET), credit card orders, and orders placed under blanket purchase agreements (BPA) agreements shall be the basis for purchase In accordance with the provisions of this contract. If time of delivery extends beyond the expiration date of the contract, the Contractor will be obligated to meet the delivery and installation date specified in the original order. For credit card orders and BPAs, telephone orders are permissible. 3. TRANSPORTATION OF EQUIPMENT FOB DESTINATION. Prices cover equipment delivery to destination, for any location within the Continental U.S. 4. INSTALLATION AND TECHNICAL SERVICES a. INSTALLATION. When the equipment provided under this contract is not normally self -installable, the Contractor's technical personnel shall be available to the ordering activity, at the ordering activity's location, to install the equipment and to train ordering activity personnel In the use and maintenance of the equipment provided the Government has purchased the appropriate Training and/or Services at the prices designated in the GSA Price List. The chargesfor such services are listed in the price schedule: b. INSTALLATION, DEINSTALLATION, REINSTALLATION. The Davis -Bacon Act (40 U.S.C. 278a-278a-7) provides that contracts in excess of $2,000 to which the United States or the District of Columbia is a party for construction, alteration, or repair (including painting and decorating) of public buildings or public works with the United Stales, shall contain a clause that no laborer or mechanic employed directly upon the site of the work shall received Tess than the prevailing wage rates as determined by the Secretary of Labor. The requirements of the Davis -Bacon Act do not apply if the construction work Is incidental to the furnishing of supplies, equipment, or services. For example, the requirements do not apply to simple installation or alteration of a public building or public work that is Incidental to furnishing supplies or equipment under a supply contract. However, if the construction, alteration or repair is segregable and exceeds $2,000, then the requirements of the Davis - Bacon Act applies. The ordering activity issuing the task order against this contract will be responsible for proper administration and enforcement of the Federal labor standards covered by the Davis -Bacon Act. The proper Davis -Bacon wage determination will be Issued by the ordering activity at the time a request for quotations is made for applicable construction classified installation, deinstallation, and reinstallation services under SIN 132-8. c, OPERATING AND MAINTENANCE MANUALS. The Contractor shall furnish the ordering activity with one (1) copy of ail operating and maintenance manuals which are normally provided with the equipment being purchased. 5. INSPECTION/ACCEPTANCE The Contractor (immixTechnology, Inc.) can only, and shall only tender for acceptance those items that substantially conform to Kronos' then current published specifications provided with the shipped product (the "Specifications"). The ordering activity reserves the right to inspect or test any equipment that has been delivered (the "Test Period"). The Test Period commences upon Installation. Installation shall be defined as: a) the Equipment Is mounted. During the Test Period, the ordering activity shall determine whether the Equipment conforms to Kronos' Specifications. The Test Period shall be for 30 days. if the ordering activity has not given Kronos a written deficiency statement specifying how the Equipment fails to meet the Specifications ("Deficiency Statement') within the test Period, the Equipment shall be deemed accepted. If the ordering activity provides a Deficiency Statement within the Test Period, Kronos shall GS-35F-0330J immixTechnology Page 1 KRONOSY have 30 days to correct the deficiency, and the ordering activity hsall have an additional 30 days to evaluate the Equipment. 6. WARRANTY a. Unless specified otherwise in this contract, the Contractor's standard commercial warranty as stated in the contract's commercial pricelist will apply to this contract. 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 the dale of delivery. This warranty is extended to Customer only and shall not apply to any Equipment, (or parts thereof) or Software media in the event of: 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; Failure of Customer to provide and maintain a suitable installation environment, as specified in Kronos' published specifications provided with the shipped product; Malfunctions resulting from the use of badges or supplies not approved by Kronos. If Customer is licensing Workforce Payroll Software the following additional warranty exclusions shall apply: i) Customer is solely responsible for the content and accuracy of all reports and documents prepared in whole or in part by using the Software, (ii) using the 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 the 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 the Software and satisfy itself that those calculations are correct. b. EXCEPT AS PROVIDED HEREIN, THE PARTIES AGREE THAT ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. immixl-echllolocjV Niklf c. Limitation of Liability, Limitation of Liability; Customer's sole remedy, and the sole liability of Kronos and Contractor, for any breach of the foregoing limited warranty by Kronos shall be to repair or replace, at Kronos' option, any parts or Software media found to be defective, without charge to Customer for parts or labor, provided that the Kronos' Equipment and Software media have been installed, maintained and used in accordance with Kronos' published specifications provided with the shipped product and have not been subject to abuse or tampering. EXCEPT FOR KRONOS' INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS SET FORTH IN SCHEDULE A ATTACHED HERETO, IN NO EVENT SHALL KRONOS' OR ITS PARENTS', SUBSIDIARIES' AFFILIATES' OR THIRD PARTY LICENSORS LIABILITY TO A CUSTOMER, HOWSOEVER CAUSED, EXCEED THE VALUE OF THE ORDER WHICH GIVES RISE TO THE CLAIM. FURTHERMORE, IN NO EVENT SHALL KRONOS OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OR THIRD PARTY LICENSORS BE LIABLE FOR LOST PROFITS, LOST DATA OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR THE EXISTENCE, FURNISHING, FUNCTIONING OR CUSTOMER'S USE OF, OR INABILITY TO USE, ANY EQUIPMENT, SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT. 7. PURCHASE PRICE FOR ORDERED EQUIPMENT The purchase price that the ordering activity will be charged will be the ordering activity purchase price in effect at the time of order placement, or the ordering activity purchase price in effect on the installation date (or delivery date when installation is not applicable), whichever Is less. 8. RESPONSIBILITIES OF THE CONTRACTOR The Contractor shall comply with all laws, ordinances, and regulations (Federal, State, City or otherwise) covering work of this character, and shall include all costs, If any, of such compliance in the prices quoted in thisschedule. 9. TRADE-IN OF INFORMATION TECHNOLOGY EQUIPMENT GS-35F-0330J irnmixTechnology Page 2 KRONOS» When an ordering activity determines that Information Technology equipment will be replaced, the ordering activity shall follow the contracting policies and procedures in the Federal Acquisition Regulation (FAR), the policies and procedures regarding disposition of immixTechno ogy information technology excess personal property in the Federal Property Management Regulations (FPMR) (41 CFR 101-43.6), and the policies and procedures on exchange/sale contained in the FPMR (41 CFR part 101- 46). GS-35F-0330J immixTechnology Page 3 KRONOS' irnrnixTechnology TERMS AND CONDITIONS APPLICABLE TO KRONOS MAINTENANCE, SERVICE, REPAIR SERVICE FOR GOVERNMENT -OWNED GENERAL PURPOSE COMMERCIAL INFORMATION TECHNOLOGY EQUIPMENT (AFTER EXPIRATION OF GUARANTEEIWARRANTY PROVISIONS AND/OR WHEN REQUIRED SERVICE IS NOT COVERED BY GUARANTEE/WARRANTY PROVISIONS) (SPECIAL ITEM NUMBER 132-12) 1. SERVICE AREAS a. The maintenance and repair service rates listed within the Pricelist are applicable to any ordering activity location in the Continental U.S. b. When repair services cannot be performed at the ordering activity installation site, the repair services will be performed at the Manufacturer's plant(s) listed below: Kronos Incorporated 297 Billerica Road Chelmsford, MA 01824 (978) 250-9800 Fax: (978) 367-5900 Service and Training (978) 947-1500 2. MAINTENANCE ORDER a. Agencies may use written orders, EDI orders, credit card orders, or BPAs, for ordering maintenance under this contract. The Contractor shall confirm orders within fifteen (15) calendar days from the date of receipt, except that confirmation of orders shall be considered automatic for renewals for maintenance (Special Item Number 132-12). Automatic acceptance of order renewals for maintenance service shall apply for machines which may have been discontinued from use for temporary periods of time not longer than 120 calendar days. If the order is not confirmed by the Contractor as prescribed by this paragraph, the order shall be considered to be confirmed by the Contractor. b. The Contractor shall honor orders for maintenance for the duration of the contract period or a lessor period of time, for the equipment shown In the pricelist. Maintenance service shall commence on a mutually agreed upon date, which will be written into the maintenance order. Maintenance orders shall not be made effective before the expiration of any applicable maintenance and parts guarantee/warranty period associated with the purchase of equipment. Orders for maintenance service shall not extend beyond the end of the contract period. c, Maintenance may be discontinued by the ordering activity or Kronos on thirty (30) calendar days written notice, or shorter notice when agreed to by the Contractor; such notice to become effective thirty (30) calendar days from the date on the notification. Upon any termination, suspension, or expiration under this Agreement, Government Customer shall promptly pay all amounts accrued or otherwise owing to Contractor for the terminated, suspended or expired portion of this Agreement. However, the ordering activity may extend the original discontinuance date upon written notice to the Contractor, provided that such notice is furnished at least ten (10) calendar days prior to the original discontinuance date. d. Annual Funding. When annually appropriated funds are cited on a maintenance order, the period of maintenance shall automatically expire on September 30th of the contract period, or at the end of the contract period, whichever occurs first. Renewal of a maintenance order citing the new appropriation shall be required, if maintenance is to continue during any remainder of the contract period. e. Cross -year Funding Within Contract Period. Where an ordering activity's specific appropriation authority provides for funds in excess of a 12 month, fiscal year period, the ordering activity may place an order under this schedule contract for a period up to the expiration of the contract period, notwithstanding the intervening fiscal years. f. Ordering activities should notify the Contractor in writing thirty (30) calendar days prior to the expiration of maintenance service, If maintenance is to be terminated at that time. Orders for continued maintenance will be required if maintenance is to be continued during the subsequent period. 3. REPAIR SERVICE ORDERS Agencies may use written orders, EDI orders, credit card orders, blanket purchase agreements (BPAs), or small order procedures for ordering repair service under this contract. Orders for repair service shall not extend beyond the end of the contract period. GS-35F-0330J immixTechnology Page 4 KRONOS» 4. LOSS OR DAMAGE When the Customer ships equipment to Kronos's establishment for repairs, Kronos shall be responsible for any damage or loss, provided that the Customer has packaged the equipment in the same manner as Kronos packaged the equipment when initially shipping to the Customer from the time the equipment is removed from the ordering activity installation, until the equipment is returned to such installation. 5. SCOPE a. The Contractor shall provide maintenance for all equipment listed herein, as requested by the ordering activity during the contract term. Repair service and repair parts/spare parts shall apply exclusively to the equipment types/models within the scope of this Information Technology Schedule. DEPOT REPAIR MAINTENANCE Term. This Agreement has a term of one (1) year commencing upon expiration of any applicable warranty period as specified in the Sales Agreement and Software License. The Agreement will be automatically extended for additional one year terms on the anniversary of its commencement date (the "Renewal Date"), unless either party has given the other thirty (30) days prior written notice of its Intent not to renew. DEPOT REPAIR MAINTENANCE SERVICE It is Customer's obligation to purchase and retain, at Customer's location and at Customer's sole risk and expense, a sufficient number of spare products ("Spare Products") to allow customer to replace failed Products at all Customer locations. Upon failure of an installed Product, Customer shall install a Spare Product to replace the failed Product. In addition, during the hours of 8:00 a.m. to 5:00 p.m. E.S.T., Monday through Friday, exclusive of Kronos holidays, Customer shall call Kronos Global Support Organization at 1-800-394-4357 to notify them of such failure. Global Support will provide remote fault isolation and attempt to resolve the problem. Those failures determined by Global Support to be Product related shall be dispatched to the Depot Repair Center by Global Support. Customer shall be provided with a Return Authorization number for the failed product, Customer shall also specify the address to which the repaired Product should be shipped, and any special shipping or insurance instructions. Customer shall then return, at Its expense and its risk of loss or damage, the failed Product, with the required Return Authorization Number, to the Krona' Depot, 300 Billerica Road, Chelmsford, immixieciliiology Massachusetts 01824, Customer shall make every reasonable effort to return the failed Product using the same packing materials in which the original Product was sent. Customer agrees that it shall return failed Products promptly as the failures occur and that it shall not hold failed Equipment and send failed Product to Kronos in "batches" which shall result in a longer turnaround time and surcharge to Customer. Upon receipt of the failed Product, Kronos shall repair the failed Product and return it, within ten (10) business days after receipt, to Customer. Unless specified otherwise by Customer at the time of Customer's call for a Return Authorization Number, Kronos shall ship the repaired Product by regular surface transportation to the Customer's address specified on theOrder Form. DEPOT REPAIR MAINTENANCE EXCLUSIONS. Depot repair maintenance service does not include, and Customer agrees to pay on a time and materials basis for, repair of damages resulting from: (a) Any cause external to the Products including, but not limited to, electrical work, fire, flood, water, wind, lightening and transportation, or any act of God; (b) Customer's failure to continually provide a suitable installation environment including, but not limited to, adequate electrical power; (c) Customer's improper use, relocation, refinishing, management or supervision of the Product(s), or other failure to use Products in accordance with Kronos' specifications; s; (d) Customer's use of the Products for purposes other than those for which they are designed or the use of accessories or supplies not approved by Kronos. (e) Customer shall be charged Kronos' then -current time and materials rate for the installation of any Software or firmware upgrades, if available, and if requested by Customer. If such Software or firmware upgrades are available on Kronos' Customer web site, Customer may download such Software or firmware upgrades for no additional charge. DEPOT EXCHANGE MAINTENANCE Term. This Agreement has a term of one (1) year commencing upon the expiration of any applicable warranty period, as specified In the Sales Agreement and Software License. The Agreement 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. Depot Exchange Maintenance Service: Upon the failure of an installed Product, Customer shall notify Kronos' Global GS-35F-0330J immixTechnology Page 5 KRONOS Support organization at 1-800-394-4357 of such failure. Global Support will provide remote fault isolation and attempt to resolve the problem. Those failures determined by Global Support to be Product related shall be dispatched to the Depot Repair Center by Global Support. Hours of operation for the Depot Repair Center are Monday through Friday 8:00 A.M. to 5:00 P.M. EST, excluding Kronos holidays. Kronos will provide a replacement for the failed Product on an "advanced exchange" basis, utilizing a carrier of Kronos' choice. Replacement Product will be shipped the same day, for next business day delivery to Customer, if such request is received prior to 3:30 P.M., EST. REPLACEMENT PRODUCT(S) MAY BE NEW OR RECONDITIONED. Customer shall specify the address to which the Product is to be shipped, and any special shipping or insurance instructions. All shipments will include a Return Shipping Label designating Kronos Depot, 300 Billerica Road, Chelmsford, Massachusetts 01824, as the recipient. Customer, upon receipt of the replacement Product from Kronos, shall package the defective Product in the materials provided by Kronos, with the return label supplied. Failed Product not received by ronos within ten (10) calendar days shall be billed to the Customer at the prevailing Kronos List Price. All returned Product becomes the property of Kronos. Failed Product returned between calendar days eleven (11) through thirty (30) will be subject to an additional $150 processing fee. Kronos will not accept Product after thirty (30) days, and Customer shall not be issued any credit for any attempted return. Depot Exchange Maintenance Exclusions Depot Exchange Maintenance service does not include, and Customer agrees to pay on a time and materials basis for, repair of damages resulting from: (a) Any cause external to the Products Including, but not limited to, electrical work, fire, flood, water, wind, lightning and transportation, or any act of God; (b) Customer's failure to continually provide a suitable installation environment including, but not limited to, adequate electrical power; (c) Customer's improper use, relocation, refinishing, management or supervision of the Product(s) or other failure to use Products in accordance with Kronos' specifications; (d) Customer's use of the Products for purposes other than those for which they are designed or the use of accessories or supplies not approved by Kronos; or (e) Customer shall be charged Kronos' then -current time and materials rate for the installation of any Software or firmware upgrades, if available, and if requested by Customer. If such Software or firmware upgrades are available on Kronos' Customer web site, 4164,, ICY immixTechnology Customer may download such Software or firmware upgrades for no additional charge. b. Equipment placed under maintenance service shall be in good operating condition. (1) In order to determine that the equipment is in good operating condition, the equipment shall be subject to inspection byKronos, without charge to the ordering activity. (2) Costs of any repairs performed for the purpose of placing the equipment in good operating condition shall be borne byKronos, if the equipment was under Kronos's guarantee/warranty or maintenance responsibility prior to the effective date of the maintenance order. (3) If the equipment was not under Kronos's responsibility, the costs necessary to place the equipment in proper operating condition are to be borne by the ordering activity, in accordance with the provisions of Special item Number 132-12 (or outside the scope of this contract). 6. RESPONSIBILITIES OF THE ORDERING ACTIVITY a. Ordering activity personnel shall not perform maintenance or attempt repairs to equipment while such equipment Is under the purview of a maintenance order, unless agreed to by the Contractor. RESPONSIBILITIES OF CUSTOMER FOR DEPOT REPAIR. Customer agrees to: (a) Maintain the Products and Spare Products in an environment conforming to Kronos' established specifications for such Products; and (b) deinstall all failed Products and install all repaired Products in accordance with instructions given by Kronos. RESPONSIBILITIES OF CUSTOMER FOR DEPOT EXCHANGE Customer agrees to: (a) Maintain the Products in an environment conforming to Kronos' established specifications for such Products; (b) Deinstall all failed Products and install all replacement Products in accordance with Kronos' published installation guidelines; and (c) Ensure that the Product(s) are returned to Kronos properly packaged. GS-35F-0330J immixTechnology Page 6 KRONOS- 7. RESPONSIBILITIES OF THE CONTRACTOR For equipment not covered by a maintenance contract or warranty, the Contractor's repair service personnel shall complete repairs as soon as possible after notification by the ordering activity that service is required. 8. MAINTENANCE RATE PROVISIONS a. Kronos shall bear all costs of maintenance, Including labor, parts, and such other expenses as are necessary to keep the equipment in good operating condition, provided that the required repairs are not occasioned by fault or negligence of the ordering activity and provided that the Customer has purchased a fully paid -up current Annual Maintenance Subscription Support Plan. b. REGULAR HOURS The Annual Maintenance Subscription Support Plan for each make and model of equipment shall entitle the ordering activity to equipment maintenance service duringthe hours specified, Monday through Friday, exclusive of holidays observed at the ordering activity location. 9. REPAIR SERVICE RATE PROVISIONS (a) When equipment is returned to Kronos's shop for adjustments or repairs which are not covered by the guarantee/warranty provision, the cost of transportation, packing, etc., from the ordering activity location to Kronos's plant, and return to the ordering activity location, shall be borne by the ordering activity. (b) The ordering activity should not return defective equipment to Kronos for adjustments and repairs or replacement without his prior consultation and instruction. 10. GUARANTEE/WARRANTY—REPAIR SERVICE a. REPAIR SERVICE FOR DEPOT REPAIR: WARRANTY. Kronos warrants that all repairs performed under this Agreement shall be performed in a professional and competent manner. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE AND ERCHANTABILITY, ARE EXCLUDED BY AGREEMENT OF THE PARTIES. immixTechnology DEFAULT. Kronos reserves the right to terminate or suspend maintenance service in the event Customer is In default under this or any other Agreement with Kronos and such default is not corrected within fifteen (15) business days after written notice. In addition, this Agreement 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. LIMITATION OF REMEDIES. The exclusive remedy of Customer and sole liability of Kronos and the Contractor shall be replacement of the repaired Product. IN NO EVENT SHALL KRONOS OR ITS SUBSIDIARIES OR AFFILIATES, OR THE CONTRACTOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES. FOR DEPOT EXCHANGE: WARRANTY Kronos warrants that all repairs performed under this Agreement shall be performed in a professional and competent manner. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE AND MERCHANTABILITY, ARE EXCLUDED BY AGREEMENT OF THE PARTIES. DEFAULT Kronos reserves the right to terminate or suspend maintenance service in the event Customer is in default under this or any other Agreement with Kronos, and such default Is not corrected within fifteen (15) business days after written notice. In addition, this Agreement 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. LIMITATION OF REMEDIES The exclusive remedy of Customer and sole liability of Kronos and the Contractor shall be replacement of the repaired Product. IN NO EVENT SHALL KRONOS OR ITS SUBSIDIARIES OR AFFILIATES, OR THE CONTRACTOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES. 11. INVOICES AND PAYMENTS a. Maintenance Service (1) Invoices for maintenance service shall be submitted by the Contractor on a quarterly or monthly GS-35F-0330J immixTechnology Page 7 KRONOS basis, after the completion of such period. Maintenance charges must be paid in arrears (31 U.S.C. 3324). PROMPT PAYMENT DISCOUNT, IF APPLICABLE, SHALL BE SHOWN ON THE INVOICE. (2) Payment for maintenance service of less than one month's duration shall be prorated at 1130th of the monthly rate for each calendar day. b. Repair Service and Repair Parts/Spare Parts Invoices for repair service and parts shall be submitted by the Contractor as soon as possible after completion of A- immixTechnology work, Payment under blanket purchase agreements will be made quarterly or monthly, except where cash payment procedures are used, Invoices shall be submitted separately to each ordering activity office ordering services under the contract. The cost of repair parts shall be shown as a separate item on the invoice, and shall be priced in accordance with paragraph #10, above. PROMPT PAYMENT DISCOUNT, IF APPLICABLE, SHALL BE SHOWN ON THE INVOICE. GS-35F-0330J immixTechnology Page 8 KRONOS' immixleclino TERMS AND CONDITIONS APPLICABLE TO KRONOS PERPETUAL SOFTWARE LICENSES (SPECIAL ITEM NUMBER 132.33) AND MAINTENANCE (SPECIAL ITEM NUMBER 132-34) OF GENERAL PURPOSE COMMERCIAL INFORMATION TECHNOLOGY SOFTWARE 1. INSPECTIONIACCEPTANCE The Contractor (immixTechnology, Inc.) can only, and shall only tender for acceptance those items that substantially conform to Kronos' then current published specifications provided with the shipped product (the "Specifications"). The ordering activity (also referred to herein as "Customer") reserves the right to inspect or test any software that has been tendered for acceptance (the "Test Period"). The Test Period commences upon Installation. Installation shall be defined as: a) the Software is installed on the database server(s) and/or personal computers) of the ordering activity. During the Test Period, the ordering activity shall determine whether the Software conforms to Kronos' Specifications. The Test Period shall be for 30 days. If the ordering activity has not given Kronos a written deficiency statement specifying how the Software fails to meet the Specifications ("Deficiency Statement") within the test Period, the Software shall be deemed accepted. If the ordering activity provides a Deficiency Statement within the Test Period, Kronos shall have 30 days to correct the deficiency, and the ordering activity hsall have an additional 30 days to evaluate the Software. 2. GUARANTEEWARRANTY a. Unless specified otherwise In this contract, the Contractor's standard commercial guarantee/warranty as stated in the contracts commercial pricelist will apply to this contract. 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 the date of delivery. This warranty is extended to Customer only and shall not apply to any Equipment, (or parts thereof) or Software media in the event of: 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; Failure of Customer to provide and maintain a suitable installation environment, as specified in Kronos' published specifications provided with the shipped product; Malfunctions resulting from the use of badges or supplies not approved by Kronos. If Customer is licensing Workforce Payroll Software the following additional warranty exclusions shall apply: i) Customer is solely responsible for the content and accuracy of all reports and documents prepared in whole or in part by using the Software, (ii) using the 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 the 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 the Software and satisfy itself that those calculations are correct. b. EXCEPT AS PROVIDED HEREIN, THE PARTIES AGREE THAT ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. c. LIMITATION OF LIABILITY: Customer's sole remedy, and the sole liability of Kronos or Contractor, for any breach of the foregoing limited warranty by Kronos shall be to repair or replace, at Kronos' option, any parts or Software media found to be defective, without charge to Customer for parts or labor, provided that the Kronos Equipment and Software media have been installed, maintained and used in accordance with Kronos' published specifications provided with the shipped product and have not been subject to abuse or tampering. EXCEPT FOR KRONOS' INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS SET FORTH IN SCHEDULE A ATTACHED HERETO, IN NO EVENT SHALL KRONOS' OR ITS PARENTS', SUBSIDIARIES' AFFILIATES' OR THIRD PARTY LICENSOR'S LIABILITY TO A CUSTOMER, HOWSOEVER CAUSED, EXCEED THE VALUE OF THE ORDER WHICH GIVES RISE TO THE CLAIM. FURTHERMORE, IN NO EVENT WILL GS-35F-0330J immixTechnology Page 9 KRONOS' KRONOS OR ITS PARENTS, SUBSIDIARIES AFFILIATES, OR THE CONTRACTOR OR THIRD PARTY LICENSORS BE LIABLE FOR LOST PROFITS, LOST DATA OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR THE EXISTENCE, FURNISHING, FUNCTIONING OR CUSTOMER'S USE OF, OR INABILITY TO USE, ANY EQUIPMENT, SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT. 3. TECHNICAL SERVICES Kronos shall provide a hotline technical support number for the purpose of providing user assistance and guidance in the implementation of the software. The technical support number is as described below. 4. SOFTWARE MAINTENANCE a, Software maintenance service shall Include the following: Maintenance Options. Customer may select from the following software support purchase options: Silver, 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"). 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 ofr the Visionware Software). All services shall be provided via remote access. Customer may purchase support services for Equipment under a separate agreement. Term of Maintenance. Maintenance shall commence on the software delivery date, and shall continue for an initial term of twelve (12) months. Software Service Offerings Provided for all Service Types (Silver, Gold/Gold Plus, or Platinum/Platinum Plus). a. 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 configuration requirements, as reasonably determined by Kronos. If Customer requests Kronos to install such Service Packs, Point Releases and/or Major Releases (including legislative updates, if available) or to provide retraining, Customer agrees to pay Ittar immixlTeclu ology Kronos for such installation or retraining at Kronos' then - current time and materials rate. b. Telephone and/or electronic access to the Kronos Global Support Center at 1-800-394-4357 for the logging of requests for service during the Service Coverage Period. c. Web -based support Including access to Software documentation, live online help, FAQ's, access to Kronos knowledge base, Customer forums, e-case management and e-mail support. Such offerings are subject to modification by Kronos. Current offerings can be found at www.kronos.com/customer. d. Remote diagnostic technical assistance may be utilized to resolve Software functional problems and user problems during the Service Coverage Period. Additional Software Services Provided by Service Type. a. Gold and Platinum: Technical advisories, learning quick tips, brown bag seminars, technical insider tips, and white papers. Such offerings are subject to modification by Kronos without notice. Current offerings can be found at www.kronos.com/customer. b. Gold Plus: Customers purchasing Gold support service may purchase, for an additional fee, the Gold Pius services of a dedicated, but not exclusive, Kronos technical account manager ("Technical Account Manager") to provide on -going account management support to Customer. Customer shall designate up to one primary and one secondary backup technical contact ("Technical Contacts") to be the sole contacts with the Technical Account Manager. Customer shall notify Kronos in writing whenever there is a change of Technical Contacts. Customer is required to place Technical Contacts through Kronos certification support training for the Software at Customer's expense. c. Platinum: A one day per year visit to be performed at the Customer location where the Software is installed. During this onsite visit, a Kronos application consultant shall work with Customer to identify ways to help Customer increase functionality or maximize utilization of the Software in Customer's specific environment, provided Customer's annual Software maintenance fee Is at least $5,000 per year. Customer must be utilizing the then - current version of the Software. Travel time and expenses are not included and shall be charged to Customer in accordance with Federal and Joint Travel Regulations. Platinum Customers also receive a two hour or less GS-35F-0330J immixTechnology Page 10 KRONOS' response time for all calls placed to Kronos Global Support, regardless of the Priority level. d. Platinum Plus; Customers purchasing Platinum maintenance services may purchase, for an additional fee, the Platinum Plus services of a dedicated Kronos Technical Account Manager to provide on -going account management support to Customer. Customer shall designate up to two primary and three secondary backup Technical Contacts to be the sole contacts with the Technical Account Manager. Upon request, Customer may designate additional and/or backup Technical Contacts. Kronos Response Time. Kronos utilizes a priority based support focus. Customers with the most critical request will be serviced in accordance with the following guidelines: a. Priority High: a critical Customer problem such as the Software is "down" and Customer cannot utilize the Software will have a response time of two business hours or less. b. Priority Medium: a serious Customer problem which impacts Customer's ability to utilize the Software effectively will have a response time of four business hours or less. c. Priority Low: a non -critical problem with an acceptable workaround will have a response time of one business day or less. d. Priority LowIRFE: a Customer "request for enhancement" of the Software, will have a response time of two business days or Tess. Response time shall mean from the time a call Is received by Kronos' Global Support Center until a Kronos service representative contacts the Customer to begin service. Kronos provides "bug fixes" for the then -current version of the Software only. Therefore, if Customer is not utilizing the then -current version of the Software, resolution may require that Customer upgrade to the then -current version of the Software. Service Coverage Period. Sliver Service: 8:00 a.m. to 5:00 p.m., local time, Monday through Friday, excluding Kronos holidays, with direct telephone access to Kronos' technical support staff. Gold Service: 8:00 a.m. to 5:00 p.m., local time, Monday through Friday, excluding Kronos holidays, with direct telephone access to Kronos' technical support staff. APAL Ifigr immixTechnology Platinum Support: 24 hours a day, seven days a week, 365 days a year, with direct telephone access to Kronos' technical support staff. Addition of Software. Additional Software purchased by Customer during the initial or any renewal term shall be added to this Agreement at the same maintenance option as the Software originally covered under this Agreement. Customer agrees to pay the prorated charges for such addition, and any such addition shall be automatically renewed as provided in this Agreement. Maintenance Exclusions and Maintenance Discontinuance. Maintenance service does not include service to the Software resulting from: a. Any cause external to the Software Including, but not limited to, electrical work, fire, flood, water, wind, lightning and transportation, or any act of God; b. Customer's failure to continually provide a suitable installation environment as specified in Kronos' specifications; c. Customer's improper use, management or supervision of the Software or other failure to use the Software in accordance with Kronos' specifications; d. Customer's repair, attemp ted repair or modification of the Software without prior authorization from Kronos; e. Customer's use of the Software for purposes other than those for which they are designed or the use of accessories or supplies not approved by Kronos; f. Customer's computer or operating system malfunctions; g. Services required for application programs and/or conversions from products or software not supplied by Kronos; h. Reprogramming, including reconfiguration of the Software or the rebuilding of Customer's database; i. On -site support of the Software; or J. Service to any Kronos custom software. Any maintenance, including rebuilds or correction of corrupted files necessary as a result of this section a. through J. shall be considered work outside of the scope of this Agreement and charged to Customer at the then - current Kronos time and materials rate. GS-35F-0330J immixTechnology Page 11 KRONOS'X Kronos may discontinue maintenance support for the Software upon 180 days written notice to Customer, or at the anniversary date of this Agreement, whichever is longer. If such maintenance is discontinued during the initial or any renewal term of this Agreement; Kronos shall provide Customer with a pro-rata refund of any applicable pre -paid maintenance fees. Reinstatement of Maintenance Services. In the event that Customer allows Software maintenance services to lapse or if Customer did not originally purchase Software maintenance services and wishes to reinstate or procure such services, Customer must pay the list price for the Silver Support plan for such lapsed or unprocured time period, plus a twenty per cent (20%) reinstatement fee in addition to the then -current Software maintenance fee for the maintenance option being purchased by Customer. Responsibilities of Customer. Customer agrees (a) to provide Kronos personnel with full, free and safe access to the Software for purposes of maintenance, including use of data communication facilities, if required; (b) to maintain and operate the Software in an environment and according to procedures which conform to Kronos' specifications; and (c) not to allow maintenance of the Software by anyone other than Kronos without prior written authorization from Kronos. 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 herein and such breach is not cured within fifteen (15) days after written notice specifying the nature of the breach. Kronos reserves the right to terminate or suspend maintenance service in the event the Customer is in default under this or any other agreement with Kronos and such default is not corrected within fifteen (15) days after written notice. Warranty and Warranty Exclusion. Kronos warrants that all services performed under this Agreement shall be performed in a professional and competent manner. THE PARTIES AGREE THAT ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. Limitation of Remedies. Customer's exclusive remedy, and the sole liability of Kronos and the Contractor, of the Warranty specified above for any breach by Kronos shall be repeat performance of any repair, replacement, or maintenance required under this Agreement. Kronos agrees to be liable for tangible property damage or personal injury caused solely by the negligence or willful misconduct of its employees. 424- immixieci liology EXCEPT AS PROVIDED HEREIN, THE PARTIES AGREE THAT ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. EXCEPT FOR KRONOS' INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS SET FORTH IN SCHEDULE A ATTACHED HERETO, IN NO EVENT SHALL KRONOS' OR ITS PARENTS', SUBSIDIARIES' AFFILIATES' OR THIRD PARTY LICENSOR'S LIABILITY TO A CUSTOMER, HOWSOEVER CAUSED, EXCEED THE VALUE OF THE ORDER WHICH GIVES RISE TO THE CLAIM. FURTHERMORE, IN NO EVENT SHALL KRONOS OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OR THIRD PARTY LICENSORS BE LIABLE FOR LOST PROFITS, LOST DATA OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR THE EXISTENCE, FURNISHING, FUNCTIONING OR CUSTOMER'S USE OF, OR INABILITY TO USE, ANY EQUIPMENT, SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT. b. Invoices for maintenance service shall be submitted by the Contractor on a quarterly or monthly basis, after the completion of such period. Maintenance charges must be paid in arrears (31 U.S.C. 3324). PROMPT PAYMENT DISCOUNT, IF APPLICABLE, SHALL BE SHOWN ON THE INVOICE. 5. PERIODS OF MAINTENANCE (132-34) a. The Contractor shall honor orders for periods for the duration of the contract period or a lessor period of time, b. Maintenance may be discontinued by the ordering activity on thirty (30) calendar days written notice to the Contractor and Kronos. c. Annual Funding. When annually appropriated funds are cited on an order for maintenance, the period of the maintenance shall automatically expire on September 30 of the contract period, or at the end of the contract period, whichever occurs first. Renewal of the maintenance orders citing the new appropriation shall be required, if the maintenance is to be continued during any remainder of the contract period. d. Cross -Year Funding Within Contract Period. Where an ordering activity's specific appropriation authority provides for funds in excess of a 12 month (fiscal GS-35F-0330J ImmixTechnology Page 12 KRONOS* year) period, the ordering activity may place an order under this schedule contract for a period up to the expiration of the contract period, notwithstanding the Intervening fiscal years. e. Ordering activities should notify the Contractor in writing thirty (30) calendar days prior to the expiration of an order, if the maintenance is to be terminated at that time. Orders for the continuation of maintenance will be required if the term licenses andlor maintenance is to be continued during the subsequent period. d. The Contractor agrees to provide updates and maintenance service for the software after a perpetual license has accrued, at the prices and terms of Special Item Number 132-34, if the licensee elects to order such services. Title to the software shall remain with the Contractor. 6. UTILIZATION LIMITATIONS - (132-33 AND 132-34) a. Software acquisition is limited to commercial computer software defined in FAR Part 2.101. b. When acquired by the ordering activity, commercial computer software and related documentation so legend shall be subject to the following: (1) Title to and ownership of the software and documentation shall remain with Kronos, unless otherwise specified. (2) Software licenses are sold to sites and by ordering activities. An ordering activity Is defined as a cabinet level or independent ordering activity. The software may be used by any subdivision of the ordering activity (service, bureau, division, command, etc.) that has access to the site the software is placed at, even if the subdivision did not participate in the acquisition of the software provided such subdivision of the agency has purchased a non-exclusive license to use the Software. Further, the software may be used on a sharing basis where multiple agencies have joint projects that can be satisfied by the use of the software placed at one ordering activity's site. This would allow other agencies access to one ordering activity's database. For ordering activity public domain databases, user agencies and third parties may use the computer program to enter, retrieve, analyze and present data. The user ordering activity will take appropriate action by instruction, agreement, or otherwise, to protect Kronos' proprietary property with any third parties that are permitted access to the computer programs and documentation in connection with the user AVA iIT! frlix1�cci-ir1Iogy ordering activity's permitted use of the computer programs and documentation. For purposes of this section, all such permitted third parties shall be deemed agents of the user ordering activity. (3) Except as is provided in paragraph 6.b(2) above, the ordering activity shall not provide or otherwise make available the software or documentation, or any portion thereof, in any form, to any third party without the prior written approval ofKronos. Third parties do not include prime Contractors, subcontractors and agents of the ordering activity who have the ordering activity's permission to use the licensed software and documentation at the facility, and who have agreed to use the licensed software and documentation only in accordance with these restrictions. This provision does not limit the right of the ordering activity to use software, documentation, or Information therein, which the ordering activity may already have or obtains without restrictions. (4) The ordering activity shall have the right to use the computer software and documentation with the computer for which it is acquired at any other facility to which that computer may be transferred, or in cases of disaster recovery, the ordering activity has the right to transfer the software to another site if the ordering activity site for which it is acquired is deemed to be unsafe for ordering activity personnel; to use the computer software and documentation with a backup computer when the primary computer is inoperative; to copy computer programs for safekeeping (archives) or backup purposes; to transfer a copy of the software to another site for purposes of benchmarking new hardware andlor software; and to modify the software and documentation or combine it with other software, provided that the unmodified portions shall remain subject to these restrictions. (5) "Commercial Computer Software" may be marked with the Contractor's standard commercial restricted rights legend, but the schedule contract and schedule pricelist, including this clause, "Utilization Limitations" are the only governing terms and conditions, and shall take precedence and supersede any different or additional terms and conditions included in the standard commercial legend. (6) Kronos License Terms Kronos owns or has the right to license the Software. The Software and 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 GS-35F-0330J immixTechnology Page 13 KRONOS' 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 Otis Agreement by Customer. This license is subject to all of the terms of this Agreement, including those set forth below: (a) Customer recognizes and agrees that the license to use the Software is limited, based upon the amount of the license fee pald by Customer. Limitations may include the number of employees, simultaneous or active users, Software product modules, Software features, computer model and serial number, and/or the number of 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 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, terminals, products modules, features, or to upgrade the model, as applicable, unless and until Customer pays the applicable fee for such increase/upgrade. Customer may not relicense or sublicense the Software to, or otherwise permit use of the Software (including timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Software without the express prior written consent of Kronos. (b) 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 uncompiled or unassembled code. (c) Customer may copy the Programs as necessary to load and execute the Programs and for backup purposes only. 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 terms 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. immixTechnalogy (d) In the event that Kronos supplies version upgrades, updates or enhancements of the Software, or legislative updates, if applicable, (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. (e) Customer may terminate this license at any time by returning to Kronos the original copy of the Software and destroying all other copies of the Software. Upon termination of this license by Kronos, Customer will return the original Software to Kronos and destroy all other copies of the Software. (f) If Customer is licensing Kronos iSeries Central Software, the following additional terms shall apply; Upon Customer's request and full payment of all license fees, Kronos shall license to Customer, for Customer's internal use only, the source code for the Kronos iSeries Central. application programs licensed to Customer under this license. All of the terms and conditions specified in this Agreement for object code shall also apply to the source code. Customer acknowledges and agrees that the Software, all source code, object code and algorithms relating thereto, all user Interface screens generated by the Software and source code, and all copyright, trade secret and of her proprietary rights therein, are and shall remain the sole and exclusive property of Kronos. Customer agrees that it shall not disclose or otherwise make the Software available to third parties unless such disclosure Is necessary for Customer's permitted use of the Software. Furthermore, Customer must obtain Kronos' written consent to any such disclosure and any such third party must agree in writing to be bound by the terms contained herein. (g) If Customer is sublicensing Microsoft SQL software, the following additional terms shall apply: The Microsoft SQL software being sublicensed hereunder ("SQL") as part of the Kronos Software is "Runtime -Restricted Use" software; as such, SQL may only be used to run the Software. SQL may not be used either (i) to develop and/or (II) In conjunction with, new applications, databases or tables other than those contained in the Software. The foregoing, however, does not prohibit Customer from using a tool to run queries or reports from existing tables, and/or from using a development environment of workbench, which is part of the Software to configure or extend such Software, Notwithstanding any provision of this Agreement, Customer may only transfer SQL as part of the Software. Customer also agrees to use the Microsoft SQL software only on the servers, processors or other electronic devices which the Software is permitted to be connected. GS-35F-033OJ immixTechnotogy Page 14 KRONOS„ (h) Restricted Rights. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252,227- 7013, or subparagraph (c)(1)(2) of the Commercial Computer Software Restricted Rights clause at FAR 52.227-19, as applicable. Manufacturer/distributor is Kronos Incorporated, 297 Billerica Road, Chelmsford, MA 01824. (i) If Customer is licensing Training Materials and/or purchasing the Kronos Train -the -Trainer Program (the "Certification Program"), the following additionalterms shall apply: "Training Materials" shall mean the instructor guide(s), student guide(s), Job aids, recorded executable files, and/or tutorials developed by Kronos for one or more Kronos products. Kronos grants to Customer a non- exclusive, non -transferable license to use the Training Materials. Customer recognizes and agrees that: i) the Training Materials constitute confidential and proprietary information of Kronos; ii) the Training Materials are copyrighted by Kronos; iii) the license to use the Training Materials is limited, based upon the amounmt of the license fee paid by Customer; iv) Customer may not copy or reproduce the Training Materials in excess of the number of copies permitted by the applicable license fee; v) Customer may not transmit, distribute or disclose the Training Materials to any third party, unless agreed to in writing by Kronos; vi) Customer's license to use the training Materials is granted solely for the purpose of permitting Customer to train Customer's employees and no other use of the Training Materials is permitted; and viii) Customer may not edit, modify, revise, amend, change, alter, customize or vary the Training Materials in any manner without the written consent of Kronos. Certification under the Certification Program Is valid for two (2) years after successful completion of the Certification Program, applies only to the point release of the Software for which the Certification Program is taken, and covers only the Customer employee who completes the Certification Program. KRONOS SALES AGREEMENT AND SOFTWARE LICENSE Customer and Kronos agree that the terms and conditions contained in this of the Agreement apply to any Equipment, Software and other items specified on the purchase order. In addition to the terms and conditions, this section of this Agreement applies to the Software, if any, and to the firmware contained In or downloaded to the Equipment, If any, and to the Training Materials, If any, specified on the purchase order, and also applies to third party, payroll tax services, if any, provided to Customer by 4211,. immixTec oloqv Kronos as specified on the purchase order for two (2) years after successful completion of the certification Program and only for the point release of the Software for which the Certification Program is taken and only for the Customer employee who completes the Certification Program. TERMS AND CONDITIONS APPLICABLE TO PURCHASE OF PAYROLL TAX PROCESSING SERVICES ONLY 1. Kronos is an authorized reseller of certain payroll tax processing services ("Payroll Tax Services") supplied by Federal Liaison Services, Inc. ("FLS"). If Customer is purchasing such Payroll Tax Services from Kronos, in addition to entering into this Agreement, Customer agrees to sign, and be bound by the terms of, FLS' required Outsourcing Services Agreement provided to Customer (the "FLS Agreement"). 2. Customer understands that FLS shall supply the Payroll Tax Services to Customer using the Customer's data, and that Customer is required to transmit clean and accurate data to FLS, and review all draft returns provided to Customer by FLS, in a timely fashion, in accordance with the requirements of the FLS Agreement. 3. Customer further understands and acknowledges that all Payroll Tax Services rendered will be based upon information furnished by Customer. Given accurate information, timely and correct data, and, if applicable, timely funding of payroll tax liabilities by Customer, then FLS shall assume full responsibility for the accurate and timely payment of said liabilities to the proper taxing authorities, in the manner prescribed by those agencies. Should FLS fail to comply due to its negligence FLS shall be responsible for any related penalties which may result, provided FLS has the exclusive authority to negotiate those penalties at Its own expense. Payment of such penalties on Customer's behalf constitutes the sole and exclusive obligation of FLS, Kronos, and the Contractor's, and Customer's sole remedy, for such failure. IN NO EVENT SHALL KRONOS, CONTRACTOR, OR FLS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR OTHER SPECIAL INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF THE PAYROLL TAX SERVICES, HOWEVER CAUSED AND WHETHER ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. 7. SOFTWARE CONVERSIONS — (132-33) Full monetary credit will be allowed to the ordering activity when conversion from one version of the software to another is made as the result of a change in operating system , or from one computer system to GS-35F-0330J ImmixTechnology Page 15 KRONOS' another provided that Customer has most current version of Kronos product. Under a perpetual license (132-33), the purchase price of the new software shall be reduced by the amount that was paid to purchase the earlier version. 8. DESCRIPTIONS AND EQUIPMENT COMPATIBILITY immixiechrio orgy The Contractor shall include, in the schedule pricelist, a complete description of each software product and a list of equipment on which the software can be used. Also, included shall be a brief, introductory explanation of the modules and documentation which are offered. GS-35F-0330J immixTechnology Page 16 KRONOS' 1. SCOPE & immixTechnology TERMS AND CONDITIONS APPLICABLE TO PURCHASE OF KRONOS TRAINING COURSES FOR GENERAL PURPOSE COMMERCIAL INFORMATION TECHNOLOGY EQUIPMENT AND SOFTWARE (SPECIAL ITEM NUMBER 132-50) a. Kronos shall provide training courses normally available to commercial customers, which will permit ordering activity users to make full, efficient use of general purpose commercial IT products. Training is restricted to training courses for those products within the scope of this solicitation. Kronos' then -current Educational Services Policies shall apply to all Educational Services purchased, and may be accessed at http:/Iwww.kronos.com/SupportlProfessionalServicesEnga gementPolicies.htm ("Professional Services Policies.). In •the event of a conflict between the Professional Services Policieis and this Agreement, the terms of this Agreement shall prevail. b. Kronos shall provide training at Kronos's facility and/or at the ordering activity's location, as agreed to by the Contractor and the ordering activity. 2. ORDER Written orders, EDI orders (GSA Advantaget and FACNET), credit card orders, and orders placed under blanket purchase agreements (BPAs) shall be the basis for the purchase of training courses in accordance with the terms of this contract. Orders shall include the student's name, course title, course date and time, and contracted dollar amount of the course. 3. TIME OF DELIVERY Kronos shall conduct training on the date (time, day, month, and year) agreed to by the Contractor and the ordering activity. 4. CANCELLATION AND RESCHEDULING a. The ordering activity will notify Kronos at least seventy-two (72) hours before the scheduled training date, if a student will be unable to attend. -Kronos will then permit the ordering activity to either cancel the order or reschedule the training at no additional charge. In the event the training class is rescheduled, the ordering activity will modify its original training order to specify the time and date of the rescheduled training class. b. In the event the ordering activity fails to cancel or reschedule a training course within the time frame specified in paragraph a, above, the ordering activity will be liable for the contracted dollar amount of the training course. Kronos agrees to permit the ordering activity to reschedule a student who fails to attend a training class within ninety (90) days from the original course date, at no additional charge. c. The ordering activity reserves the right to substitute one student for another up to the first day of class. d. In the event Kronos is unable to conduct training on the date agreed to by Kronos and the ordering activity, Kronos must notify the ordering activity at least seventy- two (72) hours before the scheduled training date. 5. FOLLOW-UP SUPPORT Kronos agrees to provide each student with unlimited telephone support for a period of one (1) week from the completion of the training course. During this period, the student may contact -Kronos's instructors for refresher assistance and answers to related course curriculum questions. 6. PRICE FOR TRAINING The price that the ordering activity will be charged will be the ordering activity training price in effect at the time of order placement, or the ordering activity price in effect at the time the training course is conducted, whichever is less. 7. INVOICES AND PAYMENT Invoices for training shall be submitted by the Contractor after ordering activity completion of the training course. Charges for training must be paid in arrears (31 U.S.C. 3324). PROMPT PAYMENT DISCOUNT, IF APPLICABLE, SHALL BE SHOWN ON THE INVOICE. 8. FORMAT AND CONTENT OF TRAINING a. Kronos shall provide written materials (i.e., manuals, handbooks, texts, etc.) normally provided with GS-35F-0330J immixTechnology Page 17 KRONOS' course offerings. Such documentation will become the property of the student upon completion of the training class. b. **If applicable** For hands-on training courses, there must be a one-to-one assignment of IT equipment to students. c. Kronos shall provide each student with a Certificate of Training at the completion of each training course. d. Kronos shall provide the following information for each training course offered: (1) The course title and a brief description of the course content, to include the course format (e.g., lecture, discussion, hands-on training); (2) The length of the course; (3) Mandatory and desirable prerequisites for student enrollment; (4) The minimum and maximum number of students per class; (5) The locations where the course is offered; (6) Class schedules; and (7) Price (per student, per class (if applicable)). e. For those courses conducted at the ordering activity's location, instructor travel charges (if applicable), including mileage and daily living expenses, must be billed in accordance with the Federal Travel Regulations or Joint Travel Regulations. Rates paid as a result of travel must comply with the Federal Travel Regulation or Joint Travel Regulations, as applicable, in effect on the date(s) the travel is performed. Contractors cannot use GSA city pair contracts. : immixTechnology GS-35F-0330J immixTechnology Page 18 KRONOS' SCHEDULE A — SUPPLEMENTAL EQUIPMENT, SOFTWARE LICENSE AND MAINTENANCE TERMS TERMS AND CONDITIONS APPLICABLE TO EQUIPMENT AND SOFTWARE ONLY 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 U.S. 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. TERMS AND CONDITIONS APPLICABLE TO PROFESSIONAL SERVICES AND EDUCATIONAL SERVICES ONLY ESTIMATED PROFESSIONAL SERVICES RESOURCES AND HOURS Customer recognizes and agrees that the Kronos professional services resources ("PS Resources") identified and the hours defined within any Professional Services Estimate (PSE), or similar immixiecl�hno statement of work document that may be provided by Kronos, have been estimated based upon: (i) the preliminary information provided by Customer; and, (ii) Customer fulfilling its obligations as defined in the PSE or similar statement of work document. Additional PS Resources and/or hours may be required to complete the implementation as a result of newly discovered information, Customer's delay in fulfilling its obligations, or a change in the scope of the project. Kronos will review with Customer the PS Resources and the number of hours Kronos anticipates will be required for the completion of the work after assessment of Customer's requirements. Kronos will monitor the PS Resources and hours used as the work progresses, and will advise Customer through a change order if more are required. The applicable rate for each PS Resource is set forth in the PSE and/or the Order Form and shall remain in effect for 12 months from the effective date of the PSE or similar statement of work document. Pricing for professional services associated with the implementation of add -on Software licensed subsequent to an initial PSE will be priced at the then -current Kronos professional service rates. EDUCATIONAL SERVICES/TRAINING POINTS Customer agrees to purchase the quantity of Kronos "training points" indicated on the Order Form at the rate quoted (the "Training Points"). Purchased Training Points 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. PROFESSIONAL SERVICES AND EDUCATIONAL SERVICES PAYMENT Contractor will invoice Customer for professional services at the PS Resource rates and on the payment terms identified in the Price List. Contractor will invoice Customer for the Training Points identified in the Order Form on the payment terms indicated in the Price List. WARRANTY Kronos warrants that all professional and educational services performed under this GS-35F-0330J immlxTechnology Page 19 KRONOS„ Agreement shall be performed in a professional and competent manner. In the event that Kronos breaches this warranty, and Customer so notifies Kronos within ninety (90) days of completion of the Services, the Customer's sole remedy and Kronos' exclusive liability shall be to perform the deficient services. KRONOS PROFESSIONAL/EDUCATIONAL SERVICES POLICIES Kronos' then -current Professional Services Policies shall apply to all Professional Services purchased and may be accessed at: http://www.kronos.com/SupportiProfessionalService sEngagementPolicies.htm ("Professional Services Policies"). In the event of a conflict between the Professional Services Policies and this Agreement, the terms of this Agreement shall prevail. CONFIDENTIAL INFORMATION Confidential Information means any information of one party that is clearly marked as "confidential" and that is disclosed to the other party pursuant to this Agreement. Additionally, the terms, conditions and pricing contained in this Agreement and the Order Form, 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 disclosing 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 lts 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 an obligation with respect to immixTechnology confidentiality; (d) is independently developed by the receiving party without use of the disclosing party's confidential information, which can be shown by tangible evidence; or (e) was required to be disclosed by applicable law; provided that the receiving party notifies the disclosing party of such requirement prior to disclosure, and provided further that the receiving party makes diligent efforts to limit disclosure. Customer agrees that Kronos may use Customer's name as part of Kronos' published customer lists. GENERAL The invalidity or illegality of any provision of this Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect. Customer shall not assign this Agreement or the license to the Software without the prior written consent of Kronos and any purported assignment, without such consent, shall be void. Neither party shall be liable for failures or delays in performance due to causes beyond its reasonable control, including war, strikes, lockouts, fire, flood, storm or other acts of God. Both parties agree to use their best efforts to minimize the effects of such failures or delays. Customer understands that any export of the Equipment or Software or related documentation or information may require an export license and Customer assumes full responsibility for obtaining such license. Customer must obtain Kronos' prior written consent before exporting the Software. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. This Agreement and any information expressly incorporated herein (including Information contained in any referenced URL), together with the applicable Order Form, constitute the entire agreement between the parties for the products and services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of this Agreement. GS-35F-0330J immixTechnology Page 20